Cordell, K. v. Stains, M.

J-A09021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KALA CORDELL, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MICHAEL STAINS,
Appellee No. 1672 MDA 2016
Appeal from the Order Entered September 6, 2016
In the Court of Common Pleas of Adams County
Civil Division at No(s): 14-SU-497
BEFORE: SHOGAN, OTT, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 22, 2017
Appellant, Kala Cordell, appeals from the order denying her “Petition to
Strike Non-Pros Entered and Restore the Complaint”1 in this civil action
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1
We note that a petition to open a judgment and a petition to strike a
judgment are generally not interchangeable. Cf. Stauffer v. Hevener, 881
A.2d 868, 870 (Pa. Super. 2005) (observing that a petition to open default
judgment, which is an appeal to the discretion of the court that will only be
granted if there is a manifest abuse of discretion or error of law, and a
petition to strike a default judgment, which is will only be granted where
there is a fatal defect or irregularity that is apparent from the face of the
record, seek distinct remedies and are generally not interchangeable). See
also Cintas Corp. v. Lee’s Cleaning Services, 700 A.2d 915, 918-919
(Pa. 1997) (comparing petitions to open judgments with petitions to strike
judgments). It appears that Appellant mislabeled her post-judgment
petition as a petition to “strike.” However, the document should have been
titled a petition to “open.” This is so given the fact that Appellant resorted
to the relief associated with a petition to open judgment of non pros set
forth under Pa.R.C.P. 3051, namely: (1) whether the petition was timely
filed, (2) whether Appellant had a reasonable explanation for the conduct
(Footnote Continued Next Page)
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alleging negligence against Appellee, Michael Stains, for his involvement in a
motor vehicle accident. We affirm.
The trial court set forth the history of this case as follows:
The procedural background of this case reveals that the
action arises out of a motor vehicle accident which is alleged to
have occurred on or about May 14, 2012. [Appellant] initiated
this action by filing a Writ of Summons on May 5, 2014. Initial
attempts at service on [Appellee] were unsuccessful.
Approximately 6 months later on November 14, 2014,
[Appellant’s] counsel caused the Summons to be reissued.
Further attempts at service were unsuccessful. Those attempts
at service were consistently made only at [Appellee’s] previous
address or his parent’s address in Hanover, Pennsylvania. On
November 5, 2014, approximately a year and a half after the
action was initiated and 11 months after the Summons was first
re-issued, [Appellant’s] counsel caused the Summons to be re-
issued for the second time. Continued attempts at service were
unsuccessful. On January 29, 2016, [Appellant’s] counsel
caused the Summons to be re-issued for a third time.
The Summons was sent via certified mail, addressed to
[Appellee] c/o a business in Texas. That certified mail was
signed for by Cindy Reyes on February 8, 2016. Some issue
remains as to whether there has been effective service, although
that issue is not presently before the Court.
On February 26, 2016, [Appellee’s] counsel entered his
appearance and issued a Rule to File a Complaint. The Rule was
issued that same day and promptly delivered to [Appellant’s]
counsel. On April 5, 2016, [Appellee’s] counsel issued and
delivered to [Appellant’s] counsel a 10 day Default Notice for
failure to file a Complaint in response to the Rule. Twenty-One
days after the Notice of Default was delivered, on April 26, 2016
[Appellee’s] counsel filed a Praecipe for Entry of Judgment of
Non-Pros. The next day April 27, 2016 at 10:49 a.m.
[Appellant] filed a Complaint in this action. On May 9, 2016[,]
_______________________
(Footnote Continued)
that gave rise to the entry of judgment of non pros, and (3) whether
Appellant had a meritorious cause of action.
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the Honorable Michael A. George entered an Order striking the
Complaint of April 27, 2016 due to the fact that Judgment of
Non-Pros was entered April 26, 2016. On May 20, 2016, three
weeks after entry of the Order by Judge George, [Appellant’s]
counsel filed a Petition to Strike Non-Pros and to Restore the
Complaint filed. . . .
Trial Court Opinion, 9/6/16, at 1-2.
The trial court held oral argument on August 24, 2016, and on
September 6, 2016, entered an order that denied Appellant’s petition for
relief from the judgment of non pros and to restore the complaint. This
timely appeal followed. Both Appellant and the trial court have complied
with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
Where [Appellant] sent a Complaint to the Court and it
was received but not docketed, prior to the entry of non-pros for
failure to file a Complaint, and where [Appellee’s] counsel
received the Complaint before filing a motion for non-pros for
failure to file the Complaint, and thereafter [Appellant] filed a
Motion to Open Judgment promptly, where [Appellant] had plead
a meritorious claim of action, where [Appellee’s] insurer was
aware of the action and the nature of [Appellant’s] claims,
should the petition have been granted?
Where the non-pros was granted on the basis of a failure
to file a Complaint, could the Court refuse to reopen the matter
based upon considerations of delay in service which were not the
basis of the non–pros granted, to in effect convert a hearing on
the question of reopening to permit the filing of the Complaint
into an issue that was not the basis for the non–pros granted,
and which did not permit plaintiff to present evidence relevant to
those issues?
Appellant’s Brief at 3-4.
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Appellant’s issues essentially address whether the trial court erred in
determining that she met the requirements for relief from the judgment of
non pros. Because she has presented these issues in a single argument
section of her brief, we will address her claims regarding these issues in a
single discussion.
We have long stated that, “[b]y definition, a non pros is a judgment
entered by the trial court which terminates a plaintiff’s action due to the
failure to properly and/or promptly prosecute a case. Following entry of the
judgment, plaintiff may seek relief by petitioning the court to strike or open
the judgment.” Dombrowski v. Cherkassky, 691 A.2d 976, 977 (Pa.
Super. 1997).
Pennsylvania Rule of Civil Procedure 1037 addresses the entry of
judgment upon default or admission, and provides, in relevant part, as
follows:
(a) If an action is not commenced by a complaint,
the prothonotary, upon praecipe of the defendant, shall enter
a rule upon the plaintiff to file a complaint. If a complaint
is not filed within twenty days after service of the rule,
the prothonotary, upon praecipe of the defendant, shall enter
a judgment of non pros.
Pa.R.C.P. 1037(a) (emphases added). Pennsylvania Rule of Civil Procedure
237.3 addresses petitions requesting relief from judgment of non pros or by
default, and provides, in pertinent part, the following bright-line rule:
(b) (1) If the petition is filed within ten days after the entry
of a judgment of non pros on the docket, the court shall open
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the judgment if the proposed complaint states a meritorious
cause of action.
Pa.R.C.P. 237.3(b)(1) (emphases added). In addition, Pennsylvania Rule of
Civil Procedure 3051 governs petitions requesting relief from judgment of
non pros,2 and provides, in relevant 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),[3] 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
(3) there is a meritorious cause of action.
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2
In Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996 (Pa. 2001), our
Supreme Court noted that
[u]nder case law existing prior to the January 1, 1992 effective
date of [Pa.R.C.P.] 3051, a party seeking review of a judgment
of non pros could proceed in two ways: either petition the trial
court to open the judgment or seek appellate review of the
judgment.
Id., 782 A.2d at 998 (citation omitted). However, Rule 3051 was adopted to
“eliminate[ ] the choice and establish [ ] a uniform procedure when relief is
sought from a judgment of non pros.” Pa.R.C.P. 3051, 1991 cmt.
3
Rule 3051 was amended in 2013 to add subdivision (c), in order to
specifically address the opening of a judgment of non pros that dismissed a
case for inactivity. See Explanatory Comment-2013 (setting forth reasoning
behind addition to Rule 3051).
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Note: See Rule 237.3 for special provisions relating to relief
from a judgment of non pros entered pursuant to Rule 1037(a).
Pa.R.C.P. 3051(a), (b). As this Court has explained, “if the petition is filed
within ten days or less, Rule 237.3(b) applies, if it is after ten days, Rule
3051(b) applies.” Horwath v. Digrazio, 142 A.3d 877, 882 (Pa. Super.
2016).
In determining that Appellant was not entitled to relief from the entry
of judgment of non pros, the trial court offered the following analysis, which
we adopt as our own:
Initially it appears as though Rule 237.3 of the Pennsylvania
Rules of Civil Procedure would control disposition of the issue.
However, under authority of the Pennsylvania Superior Court,
Rule 237.3(b) only displaces Rule 3051(b) for petitions filed
“within ten days after the entry of the judgment on the docket.”
[Horwath 142 A.3d at 882]. The record reveals that the
Petition for Relief from a Judgment of Non-Pros was not filed
within ten days after the entry of the Judgment on the docket,
so Rule 237.3(b) does not operate here to establish a bright[-
]line rule that the Judgment of Non-Pros must be opened by the
Court.
So the issue presently before the Court must be evaluated
under the requirements of Pa. R. Civ. P. 3051. As required by
that Rule, the petition seeking to open judgment of non-pros
must allege facts showing: (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
(3) there is a meritorious cause of action.
As [Appellee] has made no argument to the contrary, for
purposes of disposition of the instant Petition it is presumed that
there is a meritorious cause of action. The issues here revolve
around whether the Petition to Strike Judgment of Non-Pros was
timely filed and whether there is a reasonable explanation or a
legitimate excuse for the conduct of [Appellant] that gave rise to
the entry of Judgment of Non-Pros in the first place.
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On the issue of timeliness, [Appellant’s] Petition was filed
May 20, 2016 which was 3-1/2 weeks after [Appellee’s] Praecipe
for Entry of Judgment of Non-Pros was filed and served on
Plaintiff’s counsel. Clearly we are outside of the bright[-]line
10[-]day rule provided for in Rule 237.3. Essentially the Petition
was filed exactly 2 weeks after the deadline upon which [the trial
c]ourt would have been required to grant relief under Rule
237.3.
As the Rules contemplate the filing of a petition at some
point in time beyond the 10[-]day period of Rule 237.3 which
would mandate the striking of the Judgment of Non-Pros, this
[c]ourt finds that a delay of an additional 2 weeks does not
render the Petition . . . untimely.
Inquiry then turns to whether there is any reasonable
explanation or legitimate excuse for the conduct that gave rise
to the entry of Judgment of Non-Pros in the first place. It is here
where [Appellant] fails to provide sufficient justification for the
failure to file a Complaint during the approximately four (4) year
period from the May 14, 2012 date of the accident and April 27,
2016, the date on which the Complaint was finally filed.
[Appellant’s] counsel argues that the Complaint was
mailed to the Adams County Prothonotary’s Office on April 15,
2016, but that[,] due to the lack of postage[,] the Complaint
was returned to [Appellant’s] counsel. From the face of
[Appellant’s] Petition, it appears Counsel made numerous
attempts to contact the Prothonotary’s Office by phone to inquire
as to whether the Complaint had been received only to be
informed each time that it had not been received in that Office.
Essentially, [Appellant’s] counsel argues that delays with mail
are a sufficient and reasonable explanation or legitimate excuse
for the conduct giving rise to the entry of the Judgment of Non-
Pros.
However, a close review of the procedural background
shows an unexplained history of delay by [Appellant] in the
prosecution of this action. [Appellant] waited until 9 days prior
to the tolling of the 2 year Statute of Limitations to initiate the
action and then did so only via Writ of Summons. Then, for
some unexplained reason, [Appellant] neglected to file a
Complaint in the 2 years that followed before being instructed to
do so pursuant to the issuance of the Rule to file a Complaint
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[within twenty days or suffer judgment of non pros].
[Appellant’s] counsel was served with [the] Rule to file a
Complaint on March 3, 2016. [Appellant] neglected to do so.
Then, 33 days later, [Appellant] was served with an important
Notice advising that she was in default for failing to file a
Complaint. No explanation is given as to why [Appellant] was
unable to file a Complaint between [the] March 3, 2016 service
of the Rule [to file a Complaint within twenty days or suffer
judgment of non pros] and April 5, 2016[,] when the Default
Notice[4] was delivered [to Appellant’s counsel]. Even then
[Appellant] did not mail the Complaint to the Adams County
Prothonotary’s Office until the tenth day of the 10 day Notice.
The Complaint was sent to the Prothonotary’s Office by ordinary
mail, ensuring or guarantying that the Complaint would not be
received at the Prothonotary prior the expiration of the 10 day
Notice. No reasonable explanation was given for [Appellant’s]
failure to file the Complaint in person or prior to the expiration of
the ten[-]day period.
Importantly, this is not a situation where [Appellee’s]
counsel engaged in a race to the Courthouse in order to secure
Judgment of Non-Pros. To the contrary, despite a strict timeline
set forth by the Pennsylvania Rules of Civil Procedure, counsel
for [Appellee] at all stages deferred acting until days or weeks
beyond the deadlines upon which he was otherwise entitled to
act as set forth in those Rules.
For all of the foregoing reasons, it is clear to the [c]ourt
that [Appellant] has not established that there is a reasonable
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4
The first paragraph of the default notice to Appellant, dated April 5, 2016,
states the following:
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE
A COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN TEN
DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE
ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY
LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THEREBY
LOSE PROPERTY OR OTHER IMPORTANT RIGHTS.
Default Notice, 4/5/16, at 1 (Certified Record #17).
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explanation or legitimate excuse for the [Appellant’s] conduct
that gave rise to the entry of the Judgment of Non-Pros.
Accordingly, [Appellant] is not entitled to the relief
requested. . . .
Trial Court Opinion, 9/6/16, at 2-5 (emphasis in original).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2017
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