Gross, R. v. Cross, M.

J-A13026-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROSE A. GROSS, INDIVIDUALLY AND : IN THE SUPERIOR COURT OF
AS EXECUTRIX OF THE WILL OF : PENNSYLVANIA
WILLIAM P. GROSS, DECEASED AND :
OXFORD TRANSPORTATION INC., :
COVENTRY TRANSPORTATION INC., :
G&L STUDENT TRANSPORTATION, :
INC., GROSS SCHOOL BUS SERVICE :
INC., AND SCHOOL BUS SERVICE, :
INC. : No. 3159 EDA 2019
:
:
v. :
:
:
MICHAEL L. CROSS & COMPANY, LTD :
AND MICHAEL L. CROSS, CPA :
:
:
APPEAL OF: ROSE A. GROSS, :
INDIVIDUALLY AND AS EXECUTRIX :
OF THE WILL OF WILLIAM P. GROSS, :
DECEASED :
Appeal from the Order Entered September 3, 2019
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2018-29784
BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*
DISSENTING MEMORANDUM BY LAZARUS, J.: Filed: September 1, 2020
I respectfully dissent. In my opinion, this case is analogous to Womer,
and the trial court did not err or abuse its discretion in denying Gross relief
from the judgment of non pros.
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* Retired Senior Judge assigned to the Superior Court.
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As the majority points out, our Supreme Court explained in Womer
that:
[P]rocedural rules are not ends in themselves, and [] the
rigid application of our rules does not always serve the
interests of fairness and justice. It is for this reason that we
adopted Rule 126, which . . . incorporated equitable
considerations in the form of a doctrine of substantial
compliance [], giving the trial courts the latitude to
overlook any “procedural defect” that does not prejudice a
party’s [substantive] rights.
***
Rule 126 is available to a party who makes a substantial
attempt to conform, and not to a party who disregards the
terms of a rule in their entirety and determines for himself
the steps he can take to satisfy the [Rules of Civil P]rocedure.
Id. at 267-68, 278 (emphasis added).
Here, Gross was on notice per our Rules of Civil Procedure that, upon
filing her complaint on May 7, 2019, she had until July 6, 2019, to timely file
the requisite COM. “Not only did [she] fail to timely file a COM, [she] did not
mo[ve] to extend the time to file [one][1] or argue that [her] claim did not
require [one].” Trial Court Opinion, 12/2/19, at 7.
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1 Our Supreme Court further explained in Womer that:
Rule 1042.3 is clear and unambiguous in its mandate that
in every professional liability action a specific representation about
the plaintiff’s claim must be filed in the official record in a
document called a “certificate of merit” [COM] at the time the
complaint is filed or within sixty days thereafter. . . .
Moreover, [Rule] 1042.3(d), which allows for the filing and
granting upon good cause shown of a motion to extend the
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Applying Womer, I agree with the trial court that here, where Gross
failed to take any steps to comply with Rule 1042.3, “disregard[ed] the terms
of [that Rule] . . . and determine[d] for [her]self” that filing a COM by July 17,
2019 would satisfy it, Rule 126 was inapplicable to excuse this procedural
defect. Womer, supra; cf. Sabo v. Worrall, 959 A.2d 347 (Pa. Super.
2008) (plaintiff substantially complied with Rule 1042.3 despite failure to
timely file COM where “the failure to file [a prepared COM] was an inadvertent
mistake or oversight by counsel’s paralegal” and “counsel believed [filing with
the prothonotary] had been accomplished until he received notice of the entry
of a judgment of non pros”). In contrast, because Cross substantially
complied with Rule 1042.6 by filing the requisite notice of intent to seek a
judgment of non pros, albeit early, the trial court was within its discretion to
overlook this misstep. See Womer, supra at 278 (“[t]he equitable doctrine
[of] Rule 126 is one of substantial compliance, not one of no compliance”).
Significantly, Cross’ premature Rule 1042.6 notice had no effect on Gross’
substantive rights given that (1) the judgment of non pros was not entered
until after the sixty-day deadline for timely filing the COM as mandated by
Rule 1042.3, and (2) Gross conceded that she did not obtain the requisite
____________________________________________
time for filing a COM, sets forth the one and only step that
a plaintiff is to take if he finds himself unable to secure a COM
and desires to avoid the consequences of not
satisfying Rule 1042.3(a)’s COM[-]filing requirement in a
timely fashion.
Womer, supra at 270-71 (emphasis added).
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COM until three days after that deadline. See Brief of Appellant, at 14;
Womer, supra. Gross’ assertion that the premature Rule 1042.6 notice
somehow “deprived [her] of the sixty[-]day period” to timely file her COM is
meritless. Pa.R.C.P. 1042.3; Womer, supra at 267-71.
In my opinion, therefore, the record is self-sustaining despite Cross’
defective notice, and the trial court did not abuse its discretion in denying
Gross’s motion to strike the judgment of non pros. Ditch, supra.
Regarding the trial court’s decision not to open the judgment of non
pros, Rule 3051(b) provides that a petition seeking the opening of a judgment
shall allege that: (1) the petition is timely filed; (2) there is a reasonable
explanation for the conduct that gave rise to the entry of judgment of non
pros; and (3) there is a meritorious underlying cause of action. Pa.R.C.P.
3051(b). Gross argues that the docket entry for the affidavit of service, filed
on June 17, 2019, “caused an understanding that the time period in which to
file the certificates of merit was thirty days from that date.” Brief of Appellant,
at 18. I agree with the trial court that, based on the clear language of Rule
1042.3(a), this assertion is unreasonable. As previously stated, Rule 1042.3
clearly and unambiguously requires that Gross file a COM in this professional
liability action either with her complaint or within sixty days thereafter.
Womer, supra at 271. Gross’ arguments that the docket entry on June 17,
2019, somehow modified the mandatory sixty-day period for filing a COM, or
created confusion as to when the COM should be filed, are not reasonable or
justifiable explanations for her disregard of the clear and unambiguous
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mandate of Rule 1042.3. See Parkway Corp v. Edelstein, 861 A.2d 264,
267-69 (Pa. Super. 2004) (ignorance is no reasonable explanation, excuse, or
justification for failure to comply with Rule 1042.3; court did not abuse
discretion in denying motion to open judgment of non pros where plaintiff
“failed to comply with the specific time requirements of the Rule by either
submitting a [COM] or requesting an extension of time to do so,” even where
plaintiff filed COM “a few days after [receiving defendant’s] praecipe to enter
judgment”); see also Hoover v. Davila, 862 A.2d 591, 595 (Pa. Super.
2003) (rejecting pro se litigant’s claims that “he was unaware of the new rule
[] requiring [COMs] [and] that he did not understand the rule” as just causes
for untimely filing a COM). Thus, in my opinion, the trial court did not err or
abuse its discretion in denying Gross’ motion to open the judgment of non
pros. Pa.R.C.P. 3051(b).
Accordingly, I would affirm the trial court’s order.
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