J-A17003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM HAGEMAN,                                    IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

WALTER PITTENGER,

                            Appellee                     No. 3303 EDA 2015


                 Appeal from the Order Entered October 2, 2015
                  in the Court of Common Pleas of Pike County
                        Civil Division at No.: 2009-01482

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED SEPTEMBER 22, 2016

        Appellant, William Hageman, appeals from the order entered October

2, 2015, denying his petition to open/strike a judgment of non pros. For the

reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this matter

from the trial court’s December 8, 2015 opinion and our independent review

of the certified record.

        Appellant, William Hageman, commenced this action by filing a

complaint on July 21, 2009.            In the complaint, Appellant alleged that a

vehicle operated by Appellee, Walter Pittenger, struck Appellant’s vehicle


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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from behind, on July 27, 2007, causing Appellant serious injuries.       (See

Complaint, 7/21/09, at 1-2 ¶¶ 6-7). On August 18, 2009, Appellee filed an

answer and new matter. Appellant filed a reply on September 11, 2009.

        No further docket action occurred with respect to this matter until

September 26, 2013, when Appellant’s counsel filed a motion to withdraw as

counsel. The trial court granted the motion April 22, 2014.

        On June 9, 2014, Appellee filed a motion for entry of judgment of non

pros.    On June 12, 2014, the trial court issued an order setting a rule

returnable for answer to the motion for twenty days from the date of service

of the rule upon Appellant. On July 8, 2014, Appellee filed a praecipe for

withdrawal of the motion for entry of judgment of non pros.

        On March 3, 2015, Appellee filed a second motion for entry of

judgment of non pros.      In the motion, he claimed that the parties had

exchanged written discovery and been deposed on February 18, 2010. (See

Motion for Entry of Judgment of Non Pros on Behalf of [Appellee] Walter

Pittenger, 3/03/15, at unnumbered page 1 ¶¶ 3-4).              Appellee also

maintained that the parties attempted to settle the matter in 2011, but

Appellant’s counsel failed to respond to letters sent by Appellee’s counsel on

December 27, 2011, and on July 31 and September 28, 2012. (See id. at

unnumbered pages 1-2 ¶¶ 5-9).        Appellee’s counsel stated that, in June

2014, Jeffrey Lessin, Esquire, who purported to represent Appellant in this




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action, contacted her.1 (See id. at unnumbered page 2 ¶ 12). She noted

that she again attempted to settle the matter but never received any

response from either Appellant or Attorney Lessin. (See id. at unnumbered

pages 2-3 ¶¶ 13-16).

        On March 9, 2015, the trial court filed an order setting a rule

returnable for answer to the motion for twenty days from the date of service

of the rule upon Appellant.        On March 20, 2015, Appellant, acting pro se,

filed a “Motion for Entry of Judgment to Deny Non Pros on Behalf of

[Appellant] Walter Pittenger.”         In the motion, Appellant claimed that he

unsuccessfully “attempted, submitted, requested, directed, demanded and

ordered” several attorneys to proceed with the litigation. (Motion for Entry

of Judgment to Deny Non Pros on Behalf of [Appellant] Walter Pittenger,

3/20/15, at unnumbered pages 2-3, ¶ 3). Appellant also maintained that he

directed counsel to refuse the settlement offer and that a counter offer was

“under construction, and once completed and reviewed” would be sent to

Appellee.    (Id. at unnumbered page 4, ¶¶ 6-6(a), (b)).        Appellant alleged

that he had been unable to obtain a copy of his file from former counsel.

(See id. at unnumbered page 6, ¶ 10(b)).            Appellant stated that he fired

Attorney Lessin on March 3, 2015.              (See id. at unnumbered page 9 ¶

14(b)).

____________________________________________


1
    We note that Attorney Lessin never entered his appearance in this matter.



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        On March 25, 2015, the trial court issued an order scheduling a

hearing on the matter for April 28, 2015. At the hearing, Appellant, acting

pro se, argued that he, personally, had done everything possible to push the

case forward but prior counsel thwarted him. (See N.T. Hearing, 4/28/15,

at unnumbered pages 6-8).          On May 5, 2015, the trial court granted

Appellee’s motion for entry of a judgment of non pros.

        On June 16, 2015, Appellant, now represented by counsel, filed a

petition to strike/open the judgment of non pros. On July 2, 2015, Appellee

filed a response.      On September 29, 2015, a hearing took place on

Appellant’s motion.

        At the hearing, Appellant testified that he fired prior counsel, Attorney

Harry Coleman, in 2012, because Attorney Coleman, “refused to follow my

directions and wishes, refused to file proper paperwork with the agencies

and authorities that were affiliated with my case.” (N.T. Hearing, 9/29/15,

at 7). Appellant claimed he regularly contacted Attorney Coleman, provided

him with all requested documentation and directed him to proceed with the

matter. (See id.). Appellant averred that he retained new counsel, Jeffrey

R. Lessin, Esquire, and had two meetings with him in late 2013 and early

2014.     (See id. at 8).   Appellant noted that, until he contacted Attorney

Lessin, he had been unable to find counsel who was willing to take his case.

(See id.).     He also argued that he had difficulty obtaining his file from

Attorney Coleman. (See id. at 8-9).


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      Appellant continued to testify that he had additional difficulties with

Attorney Lessin because he would not communicate with various state and

federal agencies “involved in my case.” (Id. at 9). Appellant explained that

Medicare, the Pennsylvania Homeowner Emergency Mortgage Assistance

Program, as well as Social Security, and “government agencies for security

clearances[,]” required detailed information about any legal activities

“associated” with his name.    (Id. at 9-10).   Appellant also claimed that,

because of a lack of proper maintenance by various unnamed medical

facilities, he had difficulty obtaining medical records.    (See id. at 11).

Appellant concluded that he had diligently attempted to move the case

forward but counsel failed to follow his directions on how to proceed with the

matter. (See id. at 12). He noted that he communicated on a weekly basis

with Medicare and hired an unnamed trial consultant. (See id.).

      On October 2, 2015, the trial court denied Appellant’s petition to

strike/open the judgment of non pros. The instant, timely appeal followed.

On November 3, 2015, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal.         See Pa.R.A.P. 1925(b).

Appellant filed a timely Rule 1925(b) statement on November 9, 2015. See

id. On December 8, 2015, the trial court issued an opinion. See Pa.R.A.P.

1925(a).

            On appeal, Appellant raises the following issue for our review:

           Did the trial court abuse its discretion in denying
      [Appellant’s] petition to open judgment of non pros for inactivity

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      when [Appellant] timely filed his petition, has pled sufficient
      facts in this complaint that if proved at trial would entitle him to
      relief, the trial court failed to take into account the non-docket
      activity in [Appellant’s] case and the fact that the delay was
      caused by [Appellant’s] counsel, and the record is devoid of any
      facts showing that the delay caused any diminution in
      [Appellee’s] ability to present his case at trial?

(Appellant’s Brief, at 4).

      Appellant challenges the denial of his petition to open a judgment of

non pros. (See id. at 16). Our standard of review is settled.

             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, a three-pronged test must be satisfied:
      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 that support a cause of action. [See]
      Madrid v. Alpine Mountain Corp., 24 A.3d 380, 381 (Pa.
      Super. 2011)[, appeal denied, 40 A.3d 1237 (Pa. 2012)]
      (citation omitted); Pa.R.C.P. 3051. A petition under Pa.R.C.P.
      3051 is the only means by which relief from a judgment of non
      pros may be sought. [Id.]; 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.” Madrid, 24 A.3d at 381–382 (citation omitted). The
      “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 382. Finally, a
      trial court’s decision to deny a petition to open or strike a
      judgment of non pros is reviewed pursuant to an abuse of
      discretion standard. Id. (citation omitted).

Bartolomeo v. Marshall, 69 A.3d 610, 613-14 (Pa. Super. 2013).               This

Court has also stated:

      [j]udicial discretion requires action in conformity with law on
      facts and circumstances before the trial court after hearing and
      consideration. Consequently, the court abuses its discretion if,
      in resolving the issue for decision, it misapplies the law or

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     exercises its discretion in a manner lacking reason. Similarly,
     the trial court abuses its discretion if it does not follow legal
     procedure.

French v. Commonwealth Assocs., Inc., 980 A.2d 623, 628 (Pa. Super

2009) (citation omitted). Further, Pa.R.C.P. 3051 provides in pertinent part:

     Rule 3051. Relief from Judgment of Non Pros:

            (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

           (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.

                                  *    *       *

          (c) If the relief sought includes the opening of the
     judgment of non pros for inactivity, the petition shall allege facts
     showing that

          Note: The “inactivity” covered by this subdivision is
     governed by and subject to Jacobs v. Halloran, 551 Pa. 350,
     710 A.2d 1098 (1998).

           (1) the petition is timely filed,

           (2) there is a meritorious cause of action, and

           (3) the record of the proceedings granting the judgment of
     non pros does not support a finding that the following
     requirements for entry of a judgment of non pros for inactivity
     have been satisfied:

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                (i) there has been a lack of due diligence on
           the part of the plaintiff for failure to proceed with
           reasonable promptitude,

                (ii) the plaintiff has failed to show a compelling
           reason for the delay, and

                 (iii) the delay has caused actual prejudice to
           the defendant.

Pa.R.C.P. 3051(a)-(c).

     In the instant matter, for the reasons discussed below, we find that

Appellant has failed to satisfy two of the three elements that permit a trial

court to grant a petition to open. Therefore, he waived any challenge to the

underlying grant of motion to enter a judgement of non pros and the trial

court did not abuse its discretion in denying Appellant’s petition to open.

See Bartolomeo, supra at 613-14; Madrid, supra at 381-82.

     Appellant contends that the trial court erred in denying his petition to

strike/open a judgment of non pros. Specifically, he avers that he filed his

petition within a reasonable amount of time. (See Appellant’s Brief, at 14).

Moreover, he argues his delay in filing the petition to open can be

reasonably explained, given that: (1) he was acting pro se at the time the

trial court granted the judgment of non pros; (2) he had to hire new

counsel; and (3) counsel could not immediately act on the petition because

of a death in his family.   (See id.).   Appellant also claims that he has a

meritorious cause of action because he alleged in his complaint that he

suffered injury at the hands of Appellee. (See id.). We disagree.

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     Here, the trial court found that Appellant’s petition, which was filed

forty-two days after the entry of judgment, was not timely. (See Trial Court

Opinion, 12/08/15, at 4). We agree.

     This Court has expressly held that delays ranging from thirty-seven to

fifty-six days render a petition to open untimely. See Madrid, supra at 383

(collecting cases); cf. Myers v. Wells Fargo Bank, N.A., 986 A.2d 171,

176 (Pa. Super. 2009) (noting that normally petitions to open are found to

be promptly and timely filed when period of delay is less than one month).

Appellant’s petition was filed forty-two days after the entry of the judgment

of non pros; therefore it was not timely filed. See Madrid, supra at 383;

see also Myers, supra at 176. Thus, Appellant has not met the first prong

for the grant of a petition to open. See Bartolomeo, supra at 613.

     Appellant argues that we should disregard the delay, because he has

offered reasonable explanations or excuses for it. (See Appellant’s Brief, at

17-18). Again, we disagree.

     Appellant first attempts to explain the delay by noting that he was pro

se at the time of entry of judgment.         (See Appellant’s Brief, at 18).

However, this Court has long held that:

     [w]hile this [C]ourt is willing to liberally construe materials filed
     by a pro se litigant, we note that appellant is not entitled to any
     particular advantage because [he] lacks legal training. As our
     [S]upreme [C]ourt has explained, any layperson choosing to
     represent [himself] in a legal proceeding must, to some
     reasonable extent, assume the risk that [his] lack of expertise
     and legal training will prove [his] undoing.


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Branch Banking and Trust v. Gesiorski, 904 A.2d 939, 942 (Pa. Super.

2006) (citations omitted). Thus, Appellant’s pro se status does not excuse

the delay in filing his petition. See id.

         Appellant next contends that he needed time to hire new counsel.

(See Appellant’s Brief, at 14).    This claim is equally unavailing.   Appellee

filed his Motion for Entry of Judgment of Non Pros on March 3, 2015. In his

response to the motion, Appellant testified that he fired Attorney Lessin that

same day. (See Motion for Entry of Judgment to Deny Non Pros on Behalf

of [Appellant] Walter Pittenger, 3/20/15, at unnumbered page 9 ¶ 14(b)).

Thus, as of March 3, 2015, Appellant was aware that there was a pending

motion for entry of judgment of non pros, that he was unrepresented, and

that he needed to hire new counsel. Appellant offered no explanation as to

why he waited until some point in May 2015 to hire new counsel. (See N.T.

Hearing, 9/29/15, at 18). Therefore, this does not constitute a reasonable

explanation for the delay.     See Castings Condominium Ass’n., Inc. v.

Klein, 663 A.2d 220, 223 (Pa. Super. 1995) (finding no reasonable excuse

for delay in filing petition to open where appellant was aware that current

counsel would not continue to represent her until he was paid overdue legal

fees).

         Lastly, Appellant contends that counsel was unable to file a timely

petition to open because of a death in counsel’s family in early June 2015.

(See Appellant’s Brief, at 18-19). In support of this contention, Appellant


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relies on this Court’s decision in Almes v. Burket, 881 A.2d 861, 866 (Pa.

Super. 2005). We find Appellant’s reliance on Almes to be misplaced.

      In Almes, Appellant filed a complaint sounding in professional

negligence and thus had to file a certificate of merit within sixty days of filing

the complaint.   See id. at 862-63.      Four days prior to the deadline, trial

counsel received the certificate from the expert; however, prior to opening

the mail, counsel had a family emergency and left town.         See id. at 863.

Due to a death in the family and the Christmas holiday, counsel did not

return to his office until the sixty-fourth day; the same day the prothonotary

entered a judgment of non pros.       See id.   Approximately five days later,

counsel filed a petition to open, explaining that the death in the family and

the Christmas holidays caused the delay in filing the certificate of merit.

See id. The trial court denied the petition without explanation. See id. We

reversed, finding that counsel’s explanation for the delay in filing the

certificate of merit was reasonable. See id. at 866.

      However, Almes does not assist Appellant. Firstly, the issue in Almes

was not whether the appellant timely filed the petition to open, but rather

whether counsel offered a reasonable explanation for failing to file a timely

certificate of merit. See id. Secondly, we largely premised the decision in

Almes on the fact that the appellees’ counsel recorded a “snap” judgment,

filing the praecipe for entry of a default judgment on the same day that the

certificate of merit was due. The law disfavors such snap judgments. See


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id. at 865. Thirdly, the total delay in Almes was less than ten days. See

id. at 862-63.

      Here, the entry of a judgment of non pros was entered after more than

five years of docket inactivity.   Further, the record reflects that Appellant

hired counsel in May 2015, (see N.T. Hearing, 9/25/15, at 18), and

counsel’s grandmother died in early June 2015. (See Appellant’s Brief, at

18). Counsel has offered no explanation as to why he was unable to file the

petition to open in May 2015. (See id. at 18-19). Nor has counsel offered

any explanation as to why it took more than two weeks after the death of his

grandmother to file the petition to open, unlike the detailed timeline offered

in Almes. (See id.). Thus, Almes does not support Appellant’s contention

that a death in counsel’s family provides a sufficient explanation for a forty-

two day delay in filing the petition to open.     See Almes, supra at 866.

Accordingly, for the reasons discussed above, we find that the trial court did

not abuse its discretion in holding that Appellant’s petition to open was

untimely, without reasonable explanation for its delay. See Madrid, supra

at 382-83; see also Myers, supra at 176; Castings, supra at 223.

      As this Court has long held that the failure to file promptly a petition to

open is dispositive, see Stephens v. Messick, 799 A.3d 793, 799-800 (Pa.

Super. 2002), we need not address the issue of whether Appellant satisfied

the meritorious cause of action element. Further, because Appellant failed

to file a timely petition to open, he has waived all issues concerning the


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propriety of the grant of the motion for entry of judgment of non pros. See

Bartolomeo, supra at 613-14; Madrid, supra at 381-82; Stephens,

supra at 799-800. Therefore, the trial court did not abuse its discretion in

denying Appellant’s petition to open. See id.

Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2016




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