Horwath, S. v. DiGrazio, J.

J-A11025-16
2016 Pa. Super. 133
SUSAN HORWATH AND SUSAN IN THE SUPERIOR COURT OF
HORWATH, EXECUTRIX OF THE ESTATE PENNSYLVANIA
OF ROBERT S. HORWATH, DEC’D
Appellant
v.
JUANITA DIGRAZIO AND PASQUALE
DIGRAZIO, JR.
Appellees No. 2069 EDA 2015
Appeal from the Order Entered April 2, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2013-31772
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
OPINION BY MUNDY, J.: FILED June 24, 2016
Appellant, Susan Horwath, appeals from the April 2, 2015 order,
denying her petition to open the judgment of non pros (JNP), entered in
favor of Appellees, Juanita DiGrazio and Pasquale DiGrazio, Jr.1 After careful
review, we reverse and remand for further proceedings.
We summarize the relevant procedural history of this case as follows.
On October 23, 2013, Appellant filed a praecipe for summons to commence
a civil action against Appellees. The praecipe was signed by Thomas Novak,
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*
Former Justice specially assigned to the Superior Court.
1
We note that an order denying a petition to open a judgment is an
interlocutory appeal of right. Pa.R.A.P. 311(a)(1).
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Esquire (Attorney Novak). However, no complaint was filed. On June 20,
2014, Appellees filed a praecipe for JNP pursuant to Pennsylvania Rule of
Civil Procedure 237.1 for failure to file a complaint. That same day, the trial
court’s prothonotary entered a JNP in favor of Appellees. On July 14, 2014,
Appellants filed a petition to open the JNP. The petition to open was filed by
Danielle L. Duffy, Esquire (Attorney Duffy), who represents Appellant on
appeal. In said petition, Appellant argued that Attorney Novak effectively
abandoned her and at the time the JNP was entered, she was “in the process
of transferring representation.”2 Appellant’s Petition to Open JNP, 7/14/14,
at ¶ 8. Appellees filed their response on August 13, 2014. The trial court
heard argument on Appellant’s petition on March 25, 2015.3 On April 2,
2015, the trial court entered an order denying Appellant’s petition to open.
Appellant filed a petition for reconsideration on April 14, 2015. On
April 23, 2015, the trial court entered an order, expressly granting
reconsideration. On April 30, 2015, Appellees filed a response to Appellant’s
motion, to which Appellant filed a reply on May 7, 2015. On May 28, 2015,
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2
We note that Appellant included a copy of the complaint she wished to file
as Exhibit D to her petition. See Pa.R.C.P. 237.3(a) (stating, “[a] petition
for relief from a [JNP] … entered pursuant to Rule 237.1 shall have attached
thereto a verified copy of the complaint or answer which the petitioner seeks
leave to file[]”).
3
We note that Appellees did not appear at the March 25, 2015 argument.
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the trial court entered an order denying Appellant’s motion on the merits.
On June 26, 2015, Appellant filed a timely notice of appeal.4
On appeal, Appellant raises the following issue for our review.
1. Did [t]he [h]onorable [t]rial [c]ourt make an
error of law and abuse its discretion in denying
[Appellant’s] [p]etition to [o]pen [JNP] initially,
and upon reconsideration, where:
a) [Appellant’s] [p]etition to [o]pen was
promptly filed under the circumstances;
b) [Appellant] presented a reasonable
explanation or legitimate excuse for the
failure to file a timely complaint due to
former counsel’s gross neglect and
abandonment; and
c) [Appellant] presented a meritorious
cause of action and balancing equities
weighed in favor of opening the
judgment?
Appellant’s Brief at 4.
We begin with our well-settled standard of review.
A request to open a [JNP], 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 [JNP] 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. A petition
under Rule 3051 is the only means by which relief
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4
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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from a [JNP] may be sought. Any appeal related to
a [JNP] lies not from the judgment itself, but from
the denial of a petition to open or strike. 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 [JNP].
A trial court’s decision to deny a petition to
open or strike a [JNP] is scrutinized on the abuse of
discretion standard of appellate review.
Madrid v. Alpine Mountain Corp., 24 A.3d 380, 381-382 (Pa. Super.
2011) (internal quotation marks and citations omitted), appeal denied, 40
A.3d 1237 (Pa. 2012). As the trial court stated, it denied Appellant’s petition
to open solely based on the timeliness and reasonable excuse prongs;
therefore, it is not contested that Appellant has satisfied the meritorious
cause of action prong. Trial Court Opinion, 8/21/15, at 8.
Turning to the timeliness prong, Appellant argues that the trial court
erred when it concluded that because Appellant failed to file her petition to
open within ten days under Rule 237.3(b), the petition was untimely filed.
Appellant’s Brief at 12-15. In Appellant’s view, the standards of promptness
under Rule 3051(b)(1) governed the petition to open, and her petition was
timely under our Rule 3051 cases. Id. at 12, 15-19. Appellees counter that
Rule 237.3(b) displaces Rule 3051(b)(1) and imposes a special ten-day per
se rule. Appellees’ Brief at 10.
In construing the Rules of [Civil] Procedure, as the
ultimate promulgator of said Rules, it is the intent of
our Supreme Court that controls. Commonwealth
v. Baker, 690 A.2d 164, 167 (Pa. 1997). In
performing our task, we also look to the tools of
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statutory construction. Id. In analyzing the intent
of our Supreme Court, “the best indication of [said]
intent is the plain language of a [rule].”
Commonwealth v. Wilson, 111 A.3d 747, 751 (Pa.
Super. 2015) (citations omitted). “In pursuing that
end, we are mindful that ‘[w]hen the words of a
[rule] are clear and free from all ambiguity, the
letter of it is not to be disregarded under the pretext
of pursuing its spirit.’” Id., quoting 1 Pa.C.S.A.
§ 1921(b). In addition, “‘[w]ords and phrases shall
be construed according to rules of grammar and
according to their common and approved usage,’
while any words or phrases that have acquired a
‘peculiar and appropriate meaning’ must be
construed according to that meaning.” Id., quoting
1 Pa.C.S.A. § 1903(a). Also, we presume that our
Supreme Court “does not intend a result that is
absurd, impossible of execution or unreasonable.” 1
Pa.C.S.A. § 1922(1).
Commonwealth v. Williams, 125 A.3d 425, 428 (Pa. Super. 2015).
Rules 237.3 and 3051 provide in relevant part as follows.
Rule 237.3 Relief From Judgment of Non Pros
or by Default
(a) A petition for relief from a [JNP] or of default
entered pursuant to Rule 237.1 shall have attached
thereto a verified copy of the complaint or answer
which the petitioner seeks leave to file.
(b) If the petition is filed within ten days after the
entry of the judgment on the docket, the court shall
open the judgment if the proposed complaint or
answer states a meritorious cause of action or
defense.
Note: Rule 236 requires the prothonotary to
give notice of the entry of any judgment and to
note in the docket the giving of the notice.
…
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See Schultz v. Erie Insurance Exchange,
505 Pa. 90, 477 A.2d 471 (1984) for the
requirements for opening a judgment by
default and Pa.R.C.P. 3051 as to a [JNP]. Rule
237.3 does not change the law of opening
judgments. Rather, the rule supplies two of
the three requisites for opening such
judgments by presupposing that a petition filed
as provided by the rule is timely and with
reasonable explanation or legitimate excuse for
the inactivity or delay resulting in the entry of
the judgment. The requirement of this rule for
proceeding within ten days is not intended to
set a standard for timeliness in circumstances
outside this rule.
A defendant who seeks to file a pleading other
than an answer is not entitled to the benefit of
this rule but must comply with the
requirements of Schultz v. Erie Insurance
Exchange, supra.
Rule 3051. Relief from Judgment of Non Pros
(a) Relief from a [JNP] 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 [the JNP], and
(3) there is a meritorious cause of action.
Note: See Rule 237.3 for special
provisions relating to relief from a [JNP]
entered pursuant to Rule 1037(a).
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…
Pa.R.C.P. 237.3, 3051.
Appellees rely in part on our Supreme Court’s decision in Simmons v.
Luallen, 763 A.2d 810, 812 (Pa. 2000), in support of their argument that
Rule 237.3(b) imposes a per se ten-day rule. Appellees’ Brief at 11, 14. In
Simmons, a JNP was entered against Simmons for her failure to file a
complaint under Rule 237.1, and Simmons filed her petition to open the
same seven days later. Simmons, supra at 810. The trial court denied the
petition to open, and this Court affirmed, concluding that under Rule
3051(b)(2), Simmons had not shown a reasonable excuse for the delay in
filing her complaint. Id. at 812.
Our Supreme Court granted allocatur and reversed. Specifically, it
held that in a case where a JNP is entered for failure to file a complaint, and
a petition to open is filed within ten days, Rule 3051(b)(1) “does not apply
when a [JNP] is entered because of a party’s failure to file a complaint.” Id.
Rather, Rule 237.3 applies, noting that Rule 3051 is a general rule, Rule
237.3 is a specific rule, and “the particular controls over the general[.]” Id.,
citing Pa.R.C.P. 132. Our Supreme Court further stated, “[a]lthough Rule
237.3 does not alter the law of opening judgments as reflected in Rule
3051(b), it presupposes that a petition to open filed within the ten-day
period is timely or prompt and that a reasonable explanation or excuse for
the delay exists.” Id.; see also Kruis v. McKenna, 790 A.2d 322, 326 (Pa.
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Super. 2001) (stating, “where a [JNP] has been entered by the prothonotary
for a plaintiff’s failure to file a timely complaint, Rule 237.3(b) excuses a
petitioner from establishing the first two prongs of that standard, where the
petitioner filed a petition to open the [JNP] within ten days from the date the
[JNP] was entered[]”).
[Rule 237.3] serves the salutary purpose of avoiding
“snap judgments” and easing the procedural burdens
of a party who promptly moves to open the
judgment. Indeed, relaxing the burden of proof by
presuming that a legitimate excuse for the delay
exists is appropriate in this context, since the delay
is not lengthy. By contrast, a [JNP] entered due to
inactivity in prosecuting a claim often involves longer
delay, which more directly implicates the equitable
principle underlying the grant of a [JNP], namely, the
injustice of permitting the assertion of a claim after a
lengthy inexcusable delay that visits prejudice upon
the defendant.
Simmons, supra at 812-813. Therefore, because Simmons filed her
petition to open within Rule 237.3(b)’s ten-day period, the specific rule
applied. Accordingly, pursuant to Rule 237.3(b), it is presumed there was a
reasonable excuse for Simmons not filing her complaint sooner, and the
reasonable excuse analysis of Rule 3051(b)(2) was not required.
After careful review, we reject Appellees’ contention that Appellant’s
petition was untimely because it was not filed within Rule 237.3(b)’s ten-day
period. We acknowledge that Simmons stated that Rule 3051(b) “does not
apply” to a JNP entered pursuant to Rule 237.1. Simmons, supra at 812.
However, the procedural posture of Simmons, where the petition to open
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was timely filed under Rule 237.3(b), is critical to our resolution of the
instant appeal. Our Supreme Court made it clear in Simmons, that Rule
3051(b)(2)’s analysis of reasonable excuse was not necessary when the
petition to open was filed within the ten-day period of Rule 237.3(b). As
noted above, our Supreme Court’s intent in promulgating Rule 237.3(b) was
to “eas[e] the procedural burdens of a party who promptly moves to open
the judgment.” Id. That is, Rule 237.3(b) dispenses with the reasonable
excuse requirement of Rule 3051(b)(2) when a petition to open a JNP is filed
within ten days of the same. Rule 237.3 was not intended to, as Appellees
aver, foreclose all petitions to open filed after ten days. Such a reading
would not “eas[e] … procedural burdens” but rather it would aggravate
them. Id.
The text of Rule 3051(b)(1) states a general prescription of timeliness
for petitions to open. However, when the two rules are read together, we
conclude Rule 237.3(b) only displaces Rule 3051(b) for petitions filed “within
ten days after the entry of the judgment on the docket[.]” Pa.R.C.P.
237.3(b). This gives effect to all of the provisions of both Rules, 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. See generally Penn-Delco Sch. Dist. v. Bell-
Atlantic-Pa., Inc., 745 A.2d 14, 17 n.4 (Pa. Super. 1999), appeal denied,
795 A.2d 978 (Pa. 2000). This is consistent with the note to Rule 237.3,
which states that Rule 237.3(b) “presuppos[es] that a petition filed as
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provided by the rule is timely” and that “Rule 237.3 does not change the law
of opening judgments.” Pa.R.C.P. 237.3, note. Therefore, it follows that a
petition filed outside the Rule 237.3(b) period is not untimely, rather it is
merely not presumed to be timely.5 We therefore decline Appellees’
invitation to elevate Rule 237.3(b)’s status from a specific rule to a bright-
line rule.
In this case, Appellant filed her petition to open 24 days after the JNP
was entered. Under our cases construing Rule 3051(b)(1), Appellant’s
petition was timely under the circumstances. See Myers v. Wells Fargo
Bank, N.A., 986 A.2d 171, 176 (Pa. Super. 2009) (noting that one month or
less between the entry of judgment and the filing of a petition to open
typically meets the time requirement for “prompt filing”), quoting Casting
Condos. Ass’n, Inc. v. Klein, 663 A.2d 220, 223 (Pa. Super. 1995). Based
on these considerations, we conclude that Appellant’s petition was timely
filed.
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5
This is also consistent with Illustration 6 in Rule 237.3’s explanatory
comment. Illustration 6 states that if “a petition to open the judgment [is
filed] more than ten days after the date of entry of the judgment on the
docket[, t]he petition to open is not within the scope of Rule 237.3(b)[,
rather the party] must proceed pursuant to case law and meet the standards
of Schultz v. Erie Ins. Exch., 477 A.2d 471 (Pa. 1984).” Pa.R.C.P. 237.3,
cmt. (parallel citation omitted). Although Schultz predates Rule 3051, it
contains the same three-prong requirements as contained in Rule 3051(b).
See Schultz, supra at 472.
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Turning to the reasonable excuse prong of Rule 3051(b)(2), Appellant
avers that the “gross negligence and abandonment” of Attorney Novak
satisfied her burden for this prong. Appellant’s Brief at 10. Appellant relies
on this Court’s decision in Esslinger v. Sun Ref. & Mktg. Co., 549 A.2d
600 (Pa. Super. 1988).
In Esslinger, Esslinger began an action by filing “a praecipe for
summons against various defendants[.]” Id. at 602. Almost five months
later, one defendant, Baker, filed a “Rule to File Complaint[.]” Id. No
complaint was filed and a JNP was entered on praecipe approximately three
and one-half months later.
Esslinger filed a petition to open the JNP 15 months later, which the
trial court granted, concluding, relevant to the instant case, that Esslinger
“reli[ed] on her counsel’s representations that the lawsuit was being
diligently pursued; the fact that Esslinger was not aware of the demand that
a complaint be filed until well after she became aware of the [JNP]; and the
fact that after she became aware of the real status of the case, Esslinger
retained new counsel, who filed a petition to open the [JNP].” Id. at 603.
This Court affirmed the trial court’s granting the petition to open.
Specifically, we concluded that the petition to open, filed 15 months after
the JNP was entered was timely, and Esslinger had a reasonable excuse.
While it is true that a litigant is generally bound by
the actions or inactions of his/her counsel, a litigant
placing his/her case in the hands of a reputable
counsel should not be turned out of court if the delay
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complained of was almost entirely on account of the
neglect or oversight of counsel. White v. Alston,
331 A.2d 765 (Pa. Super. 1974); Poluka v. Cole,
295 A.2d 132 (Pa. Super. 1972). Attorney neglect
may provide a sufficient basis on which to justify a
party’s failure to respond to process, particularly
where there have been no negotiations or attempts
by the opposing party to draw the attention of
counsel to the case. Buxbaum v. Peguero, 484
A.2d 137 (Pa. Super. 1984). “In fact, pertinent case
law reveals that the power to open judgment should
be exercised when the default is the result of
oversight or mistake by counsel.” Versak[ v.
Washington,] 519 A.2d [438,] 441 [(Pa. Super.
1986)], citing Commonwealth Department of
Transportation v. Nemeth, 442 A.2d 689, 691 (Pa.
1982). While it does appear from the record that
some correspondence took place between Esslinger’s
counsel and that of the various defendants (including
Baker) with respect to the course of the litigation,
nothing on the record indicates that knowledge of
this correspondence could be attributed to Esslinger.
Id. (parallel citations omitted).
We conclude Esslinger controls the resolution of this case. The record
reveals that Attorney Novak filed routine praecipes to reissue the writ of
summons, but did not take any further substantive action to advance
Appellant’s interests. The record also shows that Appellant, through
Attorney Duffy, attempted for months to change representation. The
certified record also contains multiple attempts by Attorney Duffy to obtain
the case file and learn of the status of the case. Attorney Duffy first
informed Attorney Novak through a letter dated April 23, 2014, that
Appellant had retained her to take over the case and requested that he send
her the case file as soon as possible. Appellant’s Petition for
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Reconsideration, 4/14/15, Exhibit F-A, at 1.6 When that request went
unanswered, Attorney Duffy sent an e-mail to Attorney Novak on May 19,
2014, requesting he contact her to transfer Appellant’s case file. Id. at
Exhibit F-B, at 1. Attorney Duffy received the case file on June 17, 2014.
Id. at Exhibit F, at 2. As the trial court noted, Attorney Novak did not
withdraw his appearance even up to the entering of the order on appeal,
despite Attorney Duffy mailing a praecipe for withdrawal of appearance to
Attorney Novak, that went unsigned.7 Id. at Exhibit F-C, at 1.
As we cautioned in Esslinger, “a litigant placing his/her case in the
hands of a reputable counsel should not be turned out of court if the delay
complained of was almost entirely on account of the neglect or oversight of
counsel.” Esslinger, supra at 603. The complete lack of action on the part
of Attorney Novak, combined with Appellant’s documented efforts to get in
touch with Attorney Novak in an effort to move the case forward, supports
Appellant’s position that she had been abandoned by counsel.
Appellees cite to a few of our cases that predate Esslinger, which
state that a JNP should not be opened due to counsel’s “mistake, oversight,
neglect, mere confusion or inadvertence[.]” Appellees’ Brief at 18, citing
Perri v. Broad St. Hosp., 478 A.2d 1344, 1347 (Pa. Super. 1984);
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6
We refer to the Exhibit A within Exhibit F as “Exhibit F-A” for the
convenience of the reader.
7
Appellees do not dispute these efforts by Attorney Duffy. Appellees’ Brief
at 22.
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Corcoran v. Fiorentino, 419 A.2d 759, 762 (Pa. Super. 1980); St. Joe
Paper Co. v. Marc Box Co., Inc., 394 A.2d 1045, 1047 (Pa. Super. 1978);
Dupree v. Lee, 361 A.2d 331, 335 (Pa. Super. 1976). However, as we
have explained above, the record reveals more than a mere mistake or
oversight. Therefore, consistent with Esslinger, Appellant has shown “a
reasonable explanation or legitimate excuse” for her failure to file a
complaint. Pa.R.C.P. 3051(b)(2). As a result, Appellant has satisfied both of
the disputed prongs of Rule 3051(b) and is entitled to relief on appeal.
Based on the foregoing, we conclude the trial court abused its
discretion when it denied Appellant’s petition to open the JNP. See Madrid,
supra. Accordingly, the trial court’s April 2, 2015 order is reversed, and the
case is remanded for further proceedings, consistent with this opinion.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2016
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