Phelps, F. v. Dopiro, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FRAIDEL PHELPS & AVI PHELPS IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
SABINA DOPIRO & VALENTIN DOPIRO
AND ENID NELSON & MARTIN NELSON
No. 1567 EDA 2016
Appeal from the Order Entered April 19, 2016
in the Court of Common Pleas of Philadelphia County Civil Division
at No(s): 140802884
BEFORE: OTT, RANSOM, and FITZGERALD,* JJ
MEMORANDUM BY FITZGERALD, J.: FILED MAY 08, 2017
Appellants, Fraidel Phelps and Avi Phelps, appeal from the order
entered in the Philadelphia County Court of Common Pleas entering
judgment of non pros. Because we conclude that the order is not
appealable, we quash the appeal.
The trial court summarized the procedural posture of this case as
follows:
This action arose from a dog bite incident which
occurred in Philadelphia on August 26, 2012. [Appellants]
filed a Writ of Summons just days before the running of
the statute of limitations.. . A Complaint was filed in
.
* Former Justice specially assigned to the Superior Court.
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December 2014. . The matter was listed in this court's
. .
Compulsory Arbitration Program.'
[Appellants] filed several continuance requests of the
Arbitration hearings.
The continuance[s were] granted and the matter was
rescheduled to the morning of March 4, 2016.
[Appellants] failed to appear for the March 4, 2016
Arbitration. On March 11, 2014, a Rule was issued against
[Appellants] to show cause why a judgment of non pros
should not be entered for [their] failure to attend the
Arbitration. The Rule hearing was scheduled for April 19,
2016. The Rule notice specifically stated that the failure to
appear would result in a dismissal of the case and the
entry of judgment of non pros.
[Appellants'] counsel attended the Rule hearing without
his clients.
At the conclusion of the Rule hearing, the court questioned
[Appellants'] counsel as to his clients' whereabouts.
Counsel stated [they] were in Airmont, New York. Counsel
provided no explanation as to their non-appearance.
Accordingly, this [c]ourt finding that [Appellants] failed to
appear at the Arbitration and failed to appear at the Rule
hearing, entered a Judgment of Non Pros [on April 19,
2016].
The next day, [Appellants] filed a Motion for
Reconsideration. . After reviewing the Motion and
. .
responses, this court denied the Motion [on May 13,
2016]. This appeal followed.
' On June 10, 2015, by agreement of the parties, the case was remanded to
arbitration pursuant to Pa.R.C.P. 1021(d).
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Trial Ct. Op., 6/20/16, at 1-4.2
Appellants raise the following issue for our review:
Whether the court committed legal error in entering
judgment where [Appellants], not physically present,
attempted to use their depositions at arbitration under
circumstances where their domicile was more than 100
miles from the forum and adverse road and weather
conditions impeded [their] safe travel to the hearing.
Appellants' Brief at 4.
Initially, we consider whether Appellants have preserved this issue for
our review. "By 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)
(citations omitted).
Rule 3051 addresses relief from the entry of judgment of non pros and
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
2 The trial court opinion is marked as Appendix "C" in Appellants' Brief.
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(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.
Pa.R.C.P. 3051(a) -(b)(1-3).3
In Sahutsky, the Pennsylvania Supreme Court "granted allocatur to
consider the effect of appellees' failure to file a petition to open a judgment
of non pros pursuant to Pa.R.C.P. 3051 before filing a direct appeal from
that judgment in the Superior Court." Id. at 997. The Sahutsky Court
opined:
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.
3 The Pennsylvania Supreme Court in Sahutsky v. H.H. Knoebel Sons, 782
A.2d 996 (Pa. 2001), noted that
[u]nder case law existing prior to the January 1, 1992
effective date of Rule 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. See Valley Peat &
Humus v. Sunny/ands, Inc., [ ] 581 A.2d 193 ([Pa.
Super.] 1990).
Sahutsky, 782 A.2d at 998. 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.
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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 999-1000. "Any appeal related to a judgment of non pros lies not
from the judgment itself, but from the denial of a petition to open or strike."
Madrid v. Alpine Mountain Corp., 24 A.3d 380, 382 (Pa. Super. 2011).
Our Supreme Court in Sahutsky concluded that "[b]ecause appellees
failed to file the petition to open as required, they failed to preserve the
issues raised therein and, therefore, the claims are waived." Sahutsky, 782
A.2d at 1001 (citation omitted); see also Krell v. Silver, 817 A.2d 1097,
1101 (Pa. Super. 2003) ("applying the dictates of Sahutsky, we conclude
that Appellant failed to file a petition to open or strike the judgment of non
pros, and, therefore, we find all of her claims to be waived on appeal").4
In Stephens v. Messick, 799 A.2d 793 (Pa. Super. 2002), this Court
opined: "failure to promptly file a Pa.R.C.P. 3051 petition to strike or open
the judgment of non pros operates as a waiver of any issues concerning the
non pros and, therefore, precludes our review of the entry of the judgment
4 We note that an "[a]ppellant's motion for reconsideration is not the
functional equivalent of a petition to open a judgment of non pros." Krell,
817 A.2d at 1102. In the case sub judice, the motion for reconsideration did
not substantially comply with Rule 3051.
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of non pros in the first instance." Id. at 797. Because "an appeal only lies
from a trial court's order denying a petition for relief from a judgment of non
pros; no appeal lies from an order entering a judgment of non pros." Id. at
799 (citation omitted). Therefore, an appeal from an order entering a
judgment of non pros would be quashed. Id.
Pursuant to Rule 3051, Appellants were required to seek relief in the
trial court by petition. Their failure to file a petition to open or strike the
judgment of non pros results in a waiver of all claims on appeal. See
Sahutsky, 782 A.2d at 1001. We cannot review the entry of the non pros.
See Stephens 799 A.2d at 799. Accordingly, we are constrained to quash
the appeal.
Appeal quashed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/8/2017
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