Madrid v. ALPINE MOUNTAIN CORP.

OPINION BY

LAZARUS, J.:

Carlos and Julliette Madrid (“the Ma-drids”) appeal from the order entered in the Court of Common Pleas of Monroe County on May 4, 2010, denying their petition to open judgment of non pros. After careful review, we affirm.

Carlos Madrid allegedly sustained injuries while snow tubing on the premises of Alpine Mountain Corporation (“Alpine”) on January 11, 2004. The Madrids brought a premises liability suit against Alpine on December 19, 2005. Depositions of the Madrids and Nick DeConti, a witness, were taken on January 24, 2007. A motion for summary judgment brought by Alpine was denied on May 29, 2007. Thereafter, additional depositions were taken of Alpine employees. On September 15, 2007, the Madrids served Alpine with a supplemental request for admissions, which were timely answered. No further docket activity occurred.

On January 27, 2010, two years and four months after the Madrids’ last docket activity in the case, Alpine filed a motion to dismiss for lack of prosecution. The Ma-drids responded and the trial court heard oral argument, after which it issued an order dismissing the Madrids’ action on March 8, 2010. On March 29, 2010, the Madrids filed a notice of appeal to this Court, which they subsequently withdrew after the Superior Court Central Legal Staff informed counsel for the Madrids that their appeal may have been premature. On May 3, 2010, the Madrids filed a petition to open judgment of non pros pursuant to Pa.R.C.P. 3051, which was denied by order dated May 5, 2010. This appeal followed, in which the Madrids raise the following issue for our review:

DID THE TRIAL COURT ERR IN DENYING [THE MADRIDS’] PETITION TO OPEN JUDGMENT OF NON-PROS FOR ALLEGED LACK OF PROSECUTION?

Brief of Appellants, at 4.

“A request to open a judgment of non pros, like the opening of a default judgment, is in the nature of an appeal to the equitable powers of the court and, in order for the judgment of non pros to be opened, three elements must coalesce: 1) the petition to open must be promptly filed; 2) the default or delay must be reasonably explained or excused; and 3) facts must be shown to exist which support a cause of action.” Jung v. St. Paul’s Parish, 522 Pa. 167, 560 A.2d 1356, 1358 (1989); Pa.R.C.P. 3051. A petition under Rule 3051 is the only means by which relief from a judgment of non pros may be sought. See Pa.R.C.P. 3051, Comment. 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. Id.; Stephens v. Messiah, 799 A.2d 793, 798 (Pa.Super.2002). Finally, failure to file a timely or rule-compliant petition to open operates as a waiver of any right to address issues concerning the underlying judgment of non pros. Id. at 797, 800.

A trial court’s decision to deny a petition to open or strike a judgment of non pros is scrutinized on the abuse of discretion standard of appellate review. Parkway Corp. v. Margolis Edelstein, 861 A.2d 264, 265 (Pa.Super.2004) (citation omitted).

Prior to addressing the substance of the Madrids’ appeal, we must determine whether they properly preserved the single issue they have raised on appeal. An appellant’s failure to include an issue in his Rule 1925(b) statement waives that issue for purposes of appellate review. Karn v. Quick & Reilly Incorporated, 912 A.2d 329, 335 (Pa.Super.2006) (citation omitted). Here, the Pa.R.A.P. 1925(b) statement filed by the Madrids raises issues related only to the trial court’s underlying grant of judgment non pros. Specifically, after reciting the procedural background of the matter, the Madrids assert the following:

a. In filing its Motion to Dismiss, [Alpine] must meet all three prongs of the test in question.

b. Since [Alpine] failed in proving that [the Madrids] demonstrated a want of due diligence in failing to proceed with reasonable promptitude, that there has been no compelling reason for the delay, and that the delay has caused some prejudice, the [Motion to Dismiss] should have been denied.

c.Therefore, [the trial court] erred in granting [Alpine’s] Motion to Dismiss because [Alpine] failed to prove all three aspects of the requisite test.

Appellants’ Concise Statement of Matters Complained of on Appeal, 6/21/10, at 2. In contrast, the Madrids framed their issue thusly in their brief on appeal:

Did the trial court err in [d]enying [the Madrids’] Petition to Open Judgment of Non-Pros for Alleged Lack of Prosecution?

Brief of Appellant, at 4.

Based upon the issues raised in the Ma-drids’ Rule 1925(b) statement, the trial court issued a brief opinion pursuant to Rule 1925(a), in which it relied upon its previous opinion in support of its order granting judgment non pros and concluded:

We can find nothing in the Rules of Appellate Procedure which allows an appeal a second time in the same case based on the same underlying order. We respectfully request the Superior Court to quash this appeal as duplica-tive, untimely and in violation of the rules.

Trial Court Opinion, 6/21/10, at 1 (emphasis added). As the Madrids did not raise any issues related the trial court’s denial of their petition to open in their Rule 1925(b) statement, the trial court was not provided an opportunity to address the matter. Rather, based on the manner in which the issues were framed in the Rule 1925(b) statement, the trial court appeared to be under the impression that the Madrids were again appealing its order granting judgment non pros. We have previously noted that:

When a court has to guess what issues an appellant is appealing, that is not enough for meaningful i'eview. When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues.

Kam, 912 A.2d at 335 (citation omitted).

In light of the foregoing, we conclude that the Madrids have failed to preserve any issues related to the denial of their Rule 3051 petition to open. As such, any argument related thereto is waived. See Kam, supra. On that basis alone, we may affirm the order of the trial court.

However, even if we were not to have found the Madrids’ issue waived for failure to raise it in their Rule 1925(b) statement, they would still be entitled to no relief. As stated above, in order to prevail on a petition to open under Rule 3051, a party must satisfy three elements: 1) the petition to open must be promptly filed; 2) the default or delay must be reasonably explained or excused; and 3) facts must be shown to exist which support a cause of action. See Jung, supra; Pa. R.C.P. 3051(b). Here, the Madrids have failed to satisfy two of the three elements under Rule 3051 and, as such, have waived all issues related to the underlying judgment of non pros.

First, the Madrids filed their petition to open 56 days after the entry of judgment of non pros.¹ We have previously held that unexplained delays of 37, 41, and 47 days render a petition to open untimely. Hatgimisios v. Dave’s N.E. Mint, Inc., 251 Pa.Super. 275, 380 A.2d 485 (1977); Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 519 A.2d 500 (1986); Schutte v. Valley Bargain Center, Inc., 248 Pa.Super. 532, 375 A.2d 368 (1977).² The Madrids argue that their delay in filing “is reasonably explained because the filing of the petition was due to [the Madrids’] thought that the lower court’s March 8, 2010 Order and opinion ... was a final and appealable order which required instant appeal to the Superior Court.” Brief of Appellant, at 7. However, a brief review of Rule 3051 and the Comments thereto would have promptly disabused the Madrids of that faulty notion. As ignorance of procedural rules does not justify or provide a reasonable explanation for failure to comply, we find that the Madrids’ petition was untimely. See Parkway Corp., 861 A.2d at 269.

Second, and more significantly, the Rule 3051 petition filed by the Madrids failed to provide any explanation for the nearly 2% year period of inactivity in the underlying civil matter which led to the grant of judgment of non pros.³ Rather, in a clear misunderstanding of Rule 3051, the Madrids provided an explanation for the 56-day delay in filing of the petition to open. See Petition to Open Judgment of Non-Pros, 5/3/10, at ¶ 35. Where a party fails to provide a reasonable excuse for the delay in prosecution of the underlying claim, a petition to open is properly denied. Sahutsky v. Mychak, Geckle & Welker, P.C., 900 A.2d 866 (Pa.Super.2006) (judgment of non pros properly entered where no reasonable excuse or explanation provided for delay); Pa.R.C.P. 3051(b)(2). In any event, the Madrids acknowledged at oral argument that “no reasonable excuse existed for the delay.” Trial Court Opinion, 3/12/10, at 3. Thus, by their omission, as well as their admission, the Ma-drids have failed to satisfy the second element required under Rule 3051.

As the Madrids have failed to comply with the dictates of Rule 3051, we conclude that the trial court did not abuse its discretion in denying their request to open the judgment of non pros.⁴

Order affirmed.

Judge STRASSBURGER files a Dissenting Opinion.

1 . The Madrids claim that their Rule 3051 petition was filed a mere 45 days after the judgment of non pros was entered. However, our own independent calculation reveals that the petition was filed 56 days thereafter.

2 . The dissent asserts, based on the facts of Schutte, that we should exclude from our calculation the days during which the Madrids, having improperly filed an appeal to this Court rather than a petition to open under Rule 3051, were "operating under the mistaken belief that [they] had taken the steps necessary to protect [their] interests.” Dissenting Opinion, at 387. In this regard, we note that the Madrids have only been able to sustain their action as long as they have due to the intervention of this Court's Central Legal Staff. Indeed, had our staff not contacted them to suggest that their appeal was premature, the case would have proceeded to the merits panel, which would have been constrained to conclude that the Madrids had waived all claims by failing to file a petition under Rule 3051. See Sahutsky v. H.H. Knoebel Sons, 566 Pa. 593, 782 A.2d 996 (2001) (failure to file Rule 3051 petition prior to appeal operates as complete waiver of any claims of error concerning judgment of non pros; quashal inappropriate). Thus, we can see no reason to exclude from our calculation those days during which the Madrids were in contravention of the clear mandate of Rule 3051.

3 . While acknowledging the complete lack of activity by the Madrids for the nearly two-year period between September 2007 and July 2009, the dissent asserts that one attempt by the Madrids' counsel to contact counsel for Alpine Mountain by letter in July 2009 should serve to remediate the Madrids’ prior period of extended inactivity. Thus, the dissent would excuse the Madrids’ failure to provide an explanation in its Rule 3051 petition. We disagree. In LaCaffinie v. Mirk, Inc., 719 A.2d 361 (Pa.Super.1998), cited by the dissent, this Court strictly enforced compliance with the three required elements set forth in Rule 3051, and denied relief because the appellant had failed to comply with the third prong of the rule, requiring the petitioner to show facts “to exist which support a cause of action.” Id. at 362.

4 . The dissent argues that, because a party is required to prove prejudice in order to receive a judgment of non pros, a party seeking to open such a judgment should be entitled to prevail if he is able to demonstrate a lack of prejudice. However, Rule 3051 does not provide for such a possibility. We acknowledge that the trial court’s underlying decision to enter the non pros judgment may have been in error, in that the prejudice alleged by Alpine Mountain may not, in fact, have been sufficient to support such a judgment. However, for the reasons stated in this opinion, we are unable to reach the merits of the underlying judgment of non pros. As the dissent correctly notes, it is within the purview of the Supreme Court and its Rules Committee to make any changes they may deem necessary to the rule governing the opening of a non pros. As the law currently stands, a party must be found to have strictly complied with Rule 3051 before we may review the underlying judgment of non pros. Because the Ma-drids failed to do so, we are compelled to affirm the order of the trial court.