J. A19010/16
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SIBIL WHITE, ULYSSES BROWN, IN THE SUPERIOR COURT OF
SABRINA WHITAKER AND PENNSYLVANIA
MARGARET ANTHONY,
Appellants
v. No. 2839 EDA 2015
VIVIENNE A. CRAWFORD, ESQUIRE
Appeal from the Order Entered August 4, 2015,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. 141100103
BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 08, 2016
Sibil White, Ulysses Brown, Sabrina Whitaker, and Margaret Anthony
(collectively, "appellants ") appeal the order of August 4, 2015, denying their
"motion to strike /open /vacate entry of non pros." We affirm.
The trial court has aptly summarized the history of this case as
follows:
On March 9, 2015, [appellants] filed a
complaint against [appellee] Vivienne Crawford,
Esq., alleging, among other injuries, legal
malpractice.[Footnote 1] [Appellee] filed Notice of
Intention to Enter a Judgment of Non Pros for Failure
to File a Certificate of Merit ( "COM ") on May 14,
2015. On June 16, 2015, [appellee] filed a Praecipe
for Entry of Judgment of Non Pros; one week later,
[appellants] filed a Petition to Strike the Entry of
* Former Justice specially assigned to the Superior Court.
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Non Pros. On August 4, 2015, this Court denied the
Petition to Strike.
[Footnote 1] The other claims made were
for breach of contract, breach of fiduciary
duty, and loss of consortium. Those
allegations are not at issue here.
This case stems from [appellee]'s
representation of [appellants] between 2009 and
2013 in a lawsuit against Saint Joseph's Hospital
School of Nursing ( "St. Joseph's "). [Appellants]
retained as counsel [appellee] herein, who instituted
an action against St. Joseph's claiming breach of
contract and fraud. [Appellants] in that case were
students at St. Joseph's who alleged they were
"fraudulently prevented from passing classes and /or
graduating by the school without cause." [Appellee],
however, failed to name North Philadelphia Health
System ( "NPHS ") as a party. After defendant
St. Joseph's filed for bankruptcy, [appellee] herein
sought to amend [appellants'] complaint to add
NPHS. The Motion to Amend was denied because
the statute of limitations had passed.
As a result, [appellants] filed the instant action
against [appellee] Crawford. [Appellants], however,
failed to file a [COM] as is required in all professional
malpractice actions pursuant to Pa.R.C.P. 1042.3(a).
On May 14, 2015, sixty -six days after [appellants]
filed their complaint [appellee] filed Notice of
Intention to Enter a Judgment of Non Pros for Failure
to File a COM. On June 16, 2015, thirty -three days
later, [appellee] filed a Praecipe for Entry of
Judgment of Non Pros. On June 23, 2015,
[appellants] filed a Petition to Strike the Entry of
Non Pros.
Trial court opinion, 11/18/15 at 1 -2 (footnote 2 omitted).
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The trial court denied appellants' petition to strike on August 4, 2015.
This timely appeal followed.' Appellants were not ordered to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);
however, on November 18, 2015, the trial court filed an opinion.
Appellants have raised the following issue for this court's review:
Did the trial court commit an abuse of discretion in
denying Appellants (Plaintiffs below), White, et al.'s
Motion to Strike /Open /Vacate Entry of Non Pros
when the Notice of Intent to Enter Judgment of
Non Pros was not served electronically pursuant to
Local Rule?
Appellants' brief at 8.
"When reviewing a petition to open and /or strike a judgment of
non pros pursuant to Pa.R.C.P. 1042.6, our Court may reverse the decision
of the trial court only if we find that the trial court abused its discretion in
reaching its determination." Zokaites Contracting Inc. v. Trant Corp.,
968 A.2d 1282, 1286 (Pa.Super. 2009), appeal denied, 985 A.2d 972 (Pa.
i
The trial court's interlocutory order is appealable as
of right pursuant to Pa.R.A.P. 311(a)(1) (stating that
orders refusing to open, vacate, or strike off a
judgment are appealable as of right). See Krauss
v. Claar, 879 A.2d 302, 303 n.4 (Pa.Super. 2005),
appeal denied, 586 Pa. 713, 889 A.2d 1217 (2005)
(noting that an order denying a motion to strike a
judgment of non pros is appealable as of right
pursuant to Pa.R.A.P. 311(a)(1)).
Smith v. Friends Hosp., 928 A.2d 1072, 1074 n.1 (Pa.Super. 2007).
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2009), quoting Mumma v. Boswell, Tintner, Piccola & Wickersham, 937
A.2d 459, 463 (Pa.Super. 2007) (citation omitted).
"It iswell -established that a motion to strike off a
judgment of non pros challenges only defects
appearing on the face of the record and that such a
motion may not be granted if the record is
self- sustaining." Hershey v. Segro, 252 Pa.Super.
240, 381 A.2d 478, 479 (1977). Additionally, the
rule governing relief from judgment of non pros
indicates in pertinent part:
(b) 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 inactivity or
delay, and
(3) there is a meritorious cause
of action.
Pa.R.C.P. 3051(b).
Varner v. Classic Communities Corp., 890 A.2d 1068, 1072 (Pa.Super.
2006). The dispute in this case focuses on the second element, i.e.,
whether appellants provided a legitimate excuse explaining their failure to
file a COM.
Pa.R.C.P. 1042.3 applies to professional liability
claims against licensed professionals. Pa.R.C.P.
1042.1(b)(1)(i). "The rule contemplates that a
[COM] will be filed contemporaneously with or
shortly after the filing of the complaint, and provides
a 60 -day window after the filing of the complaint to
accomplish the filing of the [COM]." Varner[], 890
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A.2d [at] 1073 [] (citation, internal quotation marks,
and brackets omitted). Among other things, a COM
must contain a certified statement from a licensed
professional that the defendant's conduct fell outside
professional standards of care or that expert
testimony is unnecessary for prosecution of the
claim. Pa.R.C.P. 1042.3(a)(1) -(3).
Zokaites, 968 A.2d at 1286.
If Pa.R.C.P. 1042.3 applies and the plaintiff fails to
provide a COM, the prothonotary must, on praecipe
of the defendant, enter a judgment of non pros
against the plaintiff, so long as there is no pending
timely filed motion seeking to extend the time to file
a COM. See Pa.R.C.P. 1042.6(a) (amended June 16,
2008). A motion to extend the time for filing a COM
must be filed on or before the date in which the filing
of the COM is due -60 days after the filing of the
complaint. See Pa.R.C.P. 1042.3(d) (amended
June 16, 2008).
Id.
The crux of appellants' argument is that they were never properly
served with 30 -day notice of appellee's intention to file a praecipe for
judgment of non pros as required by Pa.R.C.P. 1042.6 and 1042.7. Those
rules provide, in pertinent part,
(a) Except as provided by subdivision (b), a
defendant seeking to enter a judgment of
non pros under Rule 1042.7(a) shall file a
written notice of intention to file the praecipe
and serve it on the party's attorney of record
or on the party if unrepresented, no sooner
than the thirty -first day after the filing of the
complaint.
Pa. R.C. P. 1042.6(a).
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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), 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.C. P. 1042.7.
Here, appellee complied with all the requirements of Rules 1042.6 and
1042.7. Appellee waited until May 14, 2015, 66 days after appellants filed
their complaint, to file notice of intention to enter judgment of non pros.
The Rule 1042.6 notice was filed with the prothonotary, time -stamped, and
entered on the docket. Appellee attached an affidavit of service to the
Rule 1042.6 notice indicating that service was made upon counsel for
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appellants via first -class United States mail. (Docket #15.) Appellants
failed to respond, and appellee filed a praecipe for entry of judgment of
non pros 33 days later.
Appellants complain that under local rule, the prothonotary was
required to serve them with a copy of the Rule 1042.6 notice electronically,
via e-mail. Appellants argue that the failure to do so constitutes a
breakdown in court operations. Pa.R.C.P. 205.4 provides, in pertinent part:
(a)(1) A court by local rule may permit or require
electronic filing of legal papers with the
prothonotary and shall specify the actions
and proceedings and the legal papers
subject to the rule.
Pa.R.C.P. 205.4(a)(1).
(g)(1) Copies of all legal papers other than original
process filed in an action or served upon
any party to an action may be served
(i) as provided by Rule 440 or
(ii) by electronic transmission,
other than facsimile
transmission, if the parties
agree thereto or an electronic
mail address is included on an
appearance or prior legal paper
filed with the court in the action.
A paper served electronically is
subject to the certifications set
forth in subdivision (b)(3).
(2) Service by electronic transmission is
complete when a legal paper is sent
(i) to the recipient's electronic mail
address, or
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(ii) to an electronic filing system
website and an e-mail message
is sent to the recipient by the
electronic filing system that the
legal paper has been filed and is
available for review on the
system's website.
Pa.R.C.P. 205.4(g).
(a)(1) Copies of all legal papers other than original
process filed in an action or served upon
any party to an action shall be served upon
every other party to the action. Service
shall be made
(i) by handing or mailing a copy to
or leaving a copy for each party
at the address of the party's
attorney of record endorsed on
an appearance or prior pleading
of the party, or at such other
address as a party may agree[.]
Pa.R.C.P. 440(a)(1)(i).
Therefore, appellants were properly served by mail with a hard copy of
the Rule 1042.6 notice of intention to enter judgment of non pros for failure
to file a COM. Moreover, appellants do not dispute that they received actual
notice of both the notice of intent and the praecipe for entry of judgment by
first -class U.S. mail. As the trial court observed, "[appellants] had actual
notice of both filings, and should have filed a COM or a motion to extend
time for filing before the prothonotary entered a judgment of non pros."
(Trial court opinion, 11/18/15 at 4.) Appellants argue in their reply brief
that, "Even if, as Appellee argues, Appellants had [] constructive notice,
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Appellants are [] entitled to wait for and then rely upon the Prothonotary's
docketing and transmission." (Appellants' reply brief at 4 (emphasis in
original).) Appellants' argument misses the mark. Appellants cite no
authority whatsoever for the proposition that the failure to be electronically
served with a copy of the Rule 1042.6 notice tolled the 30 -day time period
within which to respond and /or constituted a breakdown in the operations of
the court. Appellants had actual notice and simply chose not to respond.
The trial court did not abuse its discretion in refusing to strike off judgment
of non pros.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 11/8/2016
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