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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
JAMES EDWARD NOTTINGHAM : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
WILLIAM MIELE, ESQUIRE : No. 617 MDA 2023
Appeal from the Order Entered March 28, 2023
In the Court of Common Pleas of Lycoming County Civil Division at
No(s): CV 22-01071
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: MARCH 5, 2024
James Edward Nottingham appeals pro se from the order dismissing his
objections in the underlying malpractice suit against his former divorce
attorney, William Miele, Esquire. We affirm.
We glean the following from the certified record. Appellant filed a
complaint against Attorney Miele on November 2, 2022, alleging “negligent
malpractice by dishonest services in the unlawful act of grand theft” of the
proceeds from the sale of the marital home in connection with Attorney Miele’s
representation of Appellant in his divorce proceedings. See Complaint,
11/2/22, at ¶¶ 1-8. The President Judge of Lycoming County recused all
judges on the Lycoming County Court of Common Pleas because Attorney
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* Former Justice specially assigned to the Superior Court.
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Miele regularly practiced before the court. The matter was thereafter assigned
to Senior Judge Samuel Kline.
On December 14, 2022, Attorney Miele filed a notice of intent to file a
praecipe to enter judgment of non pros because Appellant had not filed a
certificate of merit (“COM”) with his complaint as required by Pa.R.Civ.P.
1042.3.1 Appellant responded with a bevy of motions in January, including
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1Professional liability actions are governed by Pa.R.Civ.P. 1042.1-1042.12.
Those rules provide in pertinent part as follows:
(a) In any action based upon an allegation that a licensed
professional deviated from an acceptable professional standard,
the attorney for the plaintiff, or the plaintiff if not represented,
shall file with the complaint or within sixty days after the filing of
the complaint, a certificate of merit signed by the attorney or party
that either
(1) an appropriate licensed professional has supplied a
written statement that there exists a reasonable probability
that the care, skill or knowledge exercised or exhibited in
the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional standards
and that such conduct was a cause in bringing about the
harm, or
(2) the claim that the defendant deviated from an
acceptable professional standard is based solely on
allegations that other licensed professionals for whom this
defendant is responsible deviated from an acceptable
professional standard, or
(3) expert testimony of an appropriate licensed professional
is unnecessary for prosecution of the claim.
Pa.R.Civ.P. 1042.3(a). If a plaintiff fails to comply, a defendant may file a
praecipe for a judgment of non pros pursuant to Rule 1042.7:
(Footnote Continued Next Page)
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preliminary objections, a motion for extension of time to file pleadings, a
motion to dismiss Attorney Miele’s notice, and a motion to determine the
necessity to file a COM. At no point did Appellant file a COM in compliance
with Pa.R.Civ.P. 1042.3(a). Thereafter, Attorney Miele filed the praecipe, and
the prothonotary entered judgment of non pros on February 13, 2023.
Four days later, Appellant filed a motion for summary judgment because
Attorney Miele did not provide a defense to his complaint, and,
[o]n February 23, [he additionally] filed a “Motion to Strike Default
Judgment Pursuant to Rule 1042.7 and 1042.3 Et Seq.” The court
held a hearing on March 2, 2023[,] wherein the court directed
[Appellant] that, since judgment was entered, [Appellant] would
need to petition to open the judgment, and that the court would
likely not grant such petition unless and until [Appellant] were to
file a [COM] pursuant to Pa.R.Civ.P. 1042.3. The court entered
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(a) The prothonotary, on praecipe of the defendant, shall enter a
judgment of non pros against the plaintiff for failure to file a
certificate of merit within the required time provided that
(1) there is no pending motion for determination that the
filing of a certificate is not required or no pending timely
filed motion seeking to extend the time to file the certificate,
(2) no certificate of merit has been filed,
(3) except as provided by Rule 1042.6(b) [pertaining to an
extension of time to file a certificate of merit], the defendant
has attached to the praecipe a certificate of service of the
notice of intention to enter the judgment of non pros, and
(4) except as provided by Rule 1042.6(b), the praecipe is
filed no less than thirty days after the date of the filing of
the notice of intention to enter the judgment of non pros.
Pa.R.Civ.P. 1042.7.
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an order on the same day reiterating that the court would be
unlikely to be able to provide relief from the default judgment
absent a [COM].
On March 8, 2023, [Appellant] filed a “Motion to Strike
Default Judgment for insufficient service, lack of jurisdiction, and
lack of authorization.” Soon after, [Appellant] filed an “Objection
to Summary Judgment.” The court entered an order on March 15,
2023[,] denying the motion to strike and the objection to
summary judgment on the basis that [Appellant2] did not present
a certificate of merit as directed by the court. On March 20, 2023,
[Appellant] filed objections on the grounds of “lack of jurisdiction
and improper service,” that the “judgment is illegal and void,” and
that any “order by this court is futile in respect to the defendants
[sic] filings are only to cause undue delay and harass the plaintiff.”
The court dismissed those objections as lacking procedural basis
by order filed on March 28, 2023.
Trial Court Opinion, 8/3/23, at 1-2 (cleaned up, spelling corrected).
In the March 28, 2023 order, the court instructed Appellant that he had
thirty days from the entry of that order to file a notice of appeal to this Court.
Relying upon that directive, Appellant filed the instant appeal.3 The trial court
ordered Appellant to file a concise statement of errors complained of on
appeal. In response, Appellant submitted a document over twenty pages in
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2 In its opinion, the trial court states that “Miele” did not present the COM as
directed. We understand this to be a typographical error, as it was clearly
Appellant who failed to file a COM.
3 Due to this breakdown in the court system, we decline Attorney Miele’s
request to quash the instant appeal as untimely filed from the judgment of
non pros. See Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa.Super.
2003) (permitting untimely appeal to proceed because the “error resulted
from the trial court’s misstatement of the appeal period, which operated as a
breakdown in the court’s operation” (cleaned up)).
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length, with attachments, which is practically identical to the brief entered in
this Court.4 The trial court authored a Pa.R.A.P. 1925(a) opinion.
Appellant presents three issues for our consideration:
1. Whether the lower court erred in not enforcing the
Pennsylvania rules, laws, and constitution in the theft of
[Appellant]’s divorce settlement that the defendant failed
entirely to proffer a defense, answer the petition, or enter a
timely appearance, and is defendant[’]s rights waived for his
failure to abide by the Pennsylvania Rules of Civil Procedure?
2. Whether the court abused its discretion by the recusal from the
president judge of all judges in the county without their written
consent and sua sponte transfer the case without request or by
petition from either party that is improper for a want of
jurisdiction and [Appellant]’s subpoena, and summary
judgment should have been granted in his favor that was
entered in the record before the judgment of non pros create
a manifest injustice?
3. Whether there was acts of fraud committed against [Appellant]
during the proceeding in acts of bad faith and should the
sanctions have been granted in his favor?
Appellant’s brief at 6.
At the outset, there are a slew of defects preventing us from reaching
the merits of these issues. Beginning with the most recent transgression, we
could dismiss the instant appeal based solely upon Appellant’s brief, which is
largely a reproduction of his concise statement and wholly fails to set forth a
coherent argument addressing any of the above-cited claims. See 9795
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4 The only significant substantive changes were the addition of a third issue in
his statement of questions involved, and the insertion, mid-sentence, of two
paragraphs of additional argument. Compare Appellant’s brief at 20 with
Rule 1925(b) statement, 6/2/23, at 20.
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Perry Highway Mgmt., LLC v. Bernard, 273 A.3d 1098, 1103 (Pa.Super.
2022) (“Rule of Appellate Procedure 2119(a) requires that each distinct issue
in the argument section of a brief contain such discussion and citation of
authorities as are deemed pertinent. This Court will not act as counsel and
will not develop arguments on behalf of an appellant. When deficiencies in a
brief hinder our ability to conduct meaningful appellate review, we can dismiss
the appeal entirely or find certain issues to be waived.” (citations omitted)).
Second, as noted, Appellant’s Rule 1925(b) statement was over twenty
pages in length. The statement’s format was more akin to a brief. Indeed, it
was nearly identical to the brief he filed in this Court. Since the statement
was anything but concise, we could find waiver of all issues. See Pa.R.A.P.
1925(b)(4)(iv) (“The Statement should not be redundant or provide lengthy
explanations as to any error.”). Similarly, we could find waiver of Appellant’s
third issue on appeal for failure to include it in his Rule 1925(b) statement.
See Commonwealth v. Davis, 273 A.3d 1228, 1239 n.5 (Pa.Super. 2022)
(deeming issue waived on appeal for failing to include it in concise statement
pursuant to Pa.R.A.P. 1925(b)(4)(vii)).
Fundamentally, though, Appellant’s appeal is hindered by the fact that
he never obtained a COM or filed a petition to open the judgment of non pros
pursuant to Pa.R.Civ.P. 3051 before filing the instant appeal. Our Supreme
Court has made it clear that Rule 1042.3 “requires that a [COM] be filed in
any professional liability action in which it is alleged that a licensed
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professional deviated from the acceptable standard of care.” Womer v.
Hilliker, 908 A.2d 269, 272 (Pa. 2006). The Court explained:
Rule 1042.3 is clear and unambiguous in its mandate that in every
professional liability action a specific representation about the
plaintiff’s claim must be filed in the official record in a document
called a “certificate of merit” at the time the complaint is filed or
within sixty days thereafter. Pa.R.Civ.P. 1042.3(a). [Rule]
1042.8 provides that “the certificate required for filing by Rule
1042.3(a) shall be substantially in the following form,” and
displays a sample COM that shows precisely what Rule 1042.3
requires. Moreover, Pa.R.Civ.P. 1042.3(d), which allows for the
filing and granting upon good cause shown of a motion to extend
the time for filing a COM, sets forth the one and only step that a
plaintiff is to take if he finds himself unable to secure a COM and
desires to avoid the consequences of not satisfying Rule
1042.3(a)’s COM filing requirement in a timely fashion.
Id. at 278 (cleaned up).
Our review of the certified record confirms that at no point did Appellant
produce a COM. Insofar as he now contends summarily in his brief that expert
testimony was not necessary for his malpractice suit, he was required to make
such an assertion in a COM. See Pa.R.Civ.P. 1042.3(a)(3) (providing a
declaration that “expert testimony of an appropriate licensed professional is
unnecessary for prosecution of the claim” as one of the three available
assertions in the mandatory COM).
We note that Appellant filed a motion for extension of time on January
11, 2023, prior to the entry of judgment of non pros. While the purpose of
the extension is not entirely clear, Appellant cited Rule 1042.6(a) and
requested sixty days “to investigate and interact with an appropriate licensed
professional.” Plaintiff Motion for Extension of Time, 1/11/23, at unnumbered
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1. Assuming this was a request for an extension of time to obtain a COM and
Appellant wanted to argue that the court erred in failing to grant the
extension,5 the proper avenue for relief would be to file a petition to open the
judgment of non pros pursuant to Rule 3051. Indeed, for any challenge to
the entry of the judgment of non pros, Appellant was required to proceed
pursuant to Rule 3051. Womer, 908 A.2d at 279 (“This does not mean,
however, that a plaintiff who. . . fails to file a Rule 1042.3 COM and against
whom a Rule 1042.6 judgment of non pros is entered, has no avenue by which
to save his action. Under Pa.R.Civ.P. 3051, which allows a trial court to grant
relief from a judgment of non pros, such a plaintiff has the opportunity to
demonstrate that his failure to follow Pa.R.Civ.P. 1042.3 should be excused.”
(cleaned up)).
In that regard, Rule 3051 provides in pertinent part as follows:
(a) Relief from a judgment of non pros shall be sought by petition.
All grounds for relief, whether to strike off the judgment or to open
it, must be asserted in a single petition.
(b) Except as provided in subdivision (c), if the relief sought
includes the opening of the judgment, the petition shall allege
facts showing that
(1) the petition is timely filed,
(2) there is a reasonable explanation or legitimate excuse
for the conduct that gave rise to the entry of judgment of
non pros, and
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5 At the March 2, 2023 hearing, the court indicated that if it were to consider
that extension, it would be denied because Appellant still had not secured a
COM. See N.T. Hearing, 3/2/23, at 7.
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(3) there is a meritorious cause of action.
Pa.R.Civ.P. 3051. “The Rule’s mandatory phrasings that relief from a non pros
‘shall be sought by petition’ and ‘must be asserted in a single petition’ clearly
connote a requirement that parties file a petition with the trial court in the
first instance.” Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996, 999 (Pa.
2001) (emphasis in original) (quoting Pa.R.Civ.P. 3051).
The reason for requiring that the petition be directed to the trial
court initially is both obvious and salutary: it ensures that the
trial court, which is in the best position to rule on the matter in
the first instance, shall have an opportunity to do so. Such an
approach will avoid unnecessary appeals, thereby assuring judicial
economy, and will provide a better record for review in those cases
where the question is close enough to warrant an appeal.
Id. at 1000 (cleaned up). Accordingly, our High Court has held that the failure
to file a petition to open a judgment of non pros pursuant to Rule 3051 will
result in waiver of any substantive claims on appeal. Id. at 1001 (“Because
appellees failed to file the petition to open as required, they failed to preserve
the issues raised therein and, therefore, the claims are waived. See Pa.R.A.P.
302.” (footnote omitted)); Id. at 1001 n.3 (concluding that “quashal is
inappropriate” where an appeal was timely filed, and, rather, that “the proper
consequence of the failure to file a Rule 3051 petition is a waiver of the
substantive claims that would be raised”).
Instantly, Appellant did not file a petition to open the judgment of non
pros pursuant to Rule 3051 before filing the instant appeal. As illustrated
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above, and as aptly observed by the trial court, this failure was part of a larger
pattern of systemic problems with Appellant’s filings:
[Appellant] here has failed to comport with the Rules of Civil
Procedure from the initiation of this matter. Judgment was
entered due to his failure to comport with the Rules of Civil
Procedure. His various motions and petitions failed to comport
with the Rules of Civil Procedure. The appealed order sub judice
denied [Appellant]’s [motion] for failure to comport with the Rules
of Civil Procedure.
Trial Court Opinion, 8/3/23, at 2 (cleaned up; spelling corrected).
In the end, it is on this foundational basis that we determine Appellant
has waived his issues on appeal. See Sahutsky, 782 A.2d at 1001; see also
Cardona v. Buchanan, 230 A.3d 476, 480 (Pa.Super. 2020) (finding waiver
of the sole issue raised on appeal because plaintiff did not file a petition to
open the judgment of non pros before filing the notice of appeal). We
recognize that Appellant adamantly wishes to pursue the merits of his
underlying malpractice action. However, that matter simply is not before this
Court, as he has waived the only issues that could presently be before us by
failing to file a petition to open the judgment of non pros.
Since Appellant has waived any issue that could be argued before this
Court, we affirm the order of the trial court.
Order affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 03/05/2024
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