                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown,                                :
                              Appellant        :
                                               :
               v.                              :
                                               :
Dugan, Brinkmann, Maginnis and                 :   No. 37 C.D. 2017
Pace, and John D. Brinkmann                    :   Submitted: July 28, 2017


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                        FILED: December 15, 2017

               Alton D. Brown (Brown) appeals, pro se, from the Philadelphia County
Common Pleas Court’s (trial court) December 8, 2016 order denying his Motion to
Strike or Open Judgment of Non Pros (Motion). Essentially, there are two issues before
this Court: (1) whether the trial court erred by entering a judgment of non pros as to
Brown’s malpractice claim; and (2) whether the trial court erred by denying Brown’s
Motion.1 After review, we affirm.



      1
          The “QUESTIONS INVOLVED” listed in Brown’s brief include three additional issues:
               I. WHETHER [THE] TRIAL COURT ERRED IN GRANTING A JUDGMENT OF
               NON PROS [RELATIVE TO THE MOTION]?

               ....
               III. WHETHER [THE] TRIAL COURT’S RELIANCE ON HEARSAY
               TESTIMONY AND UNSWORN TESTIMONY AS [A] BASIS FOR ITS
               JUDGMENT OF NON PROS AND REFUSAL TO STRIKE/OPEN JUDGMENT
               OF NON PROS CONSTITUTE[S] A DENIAL OF DUE PROCESS?
               In December 2014, Brown filed a legal malpractice action (Complaint)
against Dugan, Brinkmann, Maginnis and Pace, and John D. Brinkmann (collectively,
Defendants) alleging breach of contract, malpractice, increased risk of harm, and
intentional infliction of emotional distress.2 At the time the Complaint was filed and
the alleged acts occurred, Brown was incarcerated at Smithfield, State Correctional
Institution (SCI) at Huntington.3 In January 2015, the trial court granted Brown in
forma pauperis status. The Complaint was served and Defendants filed an answer.
               On April 15, 2015, Brown filed a certificate of merit (COM) pursuant to
Pennsylvania Rule of Civil Procedure No. (Rule) 1042.3(a)(3), wherein he declared an
expert was unnecessary to prosecute his claim. On May 7, 2015, Defendants filed a
motion to strike the COM. On July 15, 2015, the trial court struck Brown’s COM. On
August 31, 2015, because Brown did not file an amended COM, the trial court entered
a judgment of non pros. On December 11, 2015, the non pros judgment was amended
and entered only as to Brown’s malpractice claim. On January 29, 2016, the trial court
scheduled trial for April 18, 2016 in the Stout Criminal Justice Center (CJC) due to
Brown’s incarceration (Order). Pursuant to the Order, Brown was responsible for
arranging his transport to the CJC, or to notify the trial court if video conferencing
would be necessary.
               On March 9, 2016, Brown filed a Motion for Continuance of the trial date,
which the trial court denied, and the matter proceeded to trial as previously ordered on


               IV. WHETHER [THE] TRIAL COURT’S REFUSAL TO ALLOW ORAL
               ARGUMENT PRIOR TO DENYING [THE MOTION] CONSTITUTE[S] A
               DENIAL OF DUE PROCESS?

Brown Br. at 2. These issues are subsumed in the stated issues and will be addressed accordingly.
        2
          Defendants represented Brown as court-appointed counsel in a civil rights lawsuit filed in
the United States District Court for the Eastern District of Pennsylvania. Brown initiated the instant
action after discharging Defendants on the basis that their representation caused Brown substantial
harm for which he seeks money damages.
        3
          Brown is currently incarcerated at Greene, SCI-Waynesburg.
                                                  2
April 18, 2016. A judgment of non pros was entered after Brown failed to make the
necessary arrangements to participate at trial. Brown filed a timely Petition to Open
the Non Pros (Petition), which was granted, and trial was rescheduled for October 19,
2016 by video conference. However, because Brown again failed to appear via the
arranged video conference, a judgment of non pros was entered. On November 9, 2016,
Brown filed the instant Motion. On December 8, 2016, the trial court denied Brown’s
Motion. Brown appealed to this Court.4 The trial court filed its opinion on April 6,
2017.5


                                           Jurisdiction
               In its opinion, the trial court maintained that this Court is without
jurisdiction to hear and decide the instant appeal. See Trial Court Op. at 4. Similarly,
Defendants object to this Court’s jurisdiction. See Defendants’ Br. at 1. Accordingly,
before deciding the merits of the appeal, we will address the jurisdiction issue. See
Trial Court Op. at 4; Defendants’ Br. at 1.
               Initially, we recognize that Section 742 of the Judicial Code provides:

               The [Pennsylvania] Superior Court shall have exclusive
               appellate jurisdiction of all appeals from final orders of
               the courts of common pleas, regardless of the nature of the
               controversy or the amount involved, except such classes of
               appeals as are by any provision of this chapter within the




       4
          “Our standard of review regarding the denial of a petition to open a judgment of non pros is
whether the trial court abused its discretion.” Merlini v. Gallitzin Water Auth., 980 A.2d 502, 504
(Pa. 2009).
        5
          The trial court opined that Brown’s appeal was untimely because his Notice of Appeal was
filed January 10, 2017 and it had to be filed by January 9, 2017. However, because Brown is
incarcerated, the mailbox rule applies. Thus, since Brown’s Notice of Appeal was postmarked
January 9, 2017, his appeal is timely.


                                                  3
              exclusive jurisdiction of the [Pennsylvania] Supreme Court
              or the [Pennsylvania] Commonwealth Court.[6]

42 Pa.C.S. § 742 (emphasis added).              However, Pennsylvania Rule of Appellate
Procedure 741(a) provides:

              The failure of an appellee to file an objection to the
              jurisdiction of an appellate court on or prior to the last day
              under these rules for the filing of the record shall, unless
              the appellate court shall otherwise order, operate to perfect
              the appellate jurisdiction of such appellate court,
              notwithstanding any provision of law vesting jurisdiction of
              such appeal in another appellate court.

Pa.R.A.P. 741(a) (emphasis added). Pursuant to Pennsylvania Rule of Appellate
Procedure 1931(a)(1), “the record on appeal, including the transcript and exhibits
necessary for the determination of the appeal, shall be transmitted to the appellate
court within 60 days after the filing of the notice of appeal.” Pa.R.A.P. 1931(a)(1)
(emphasis added).
              Although in this particular case the record was filed late, “the record was
due on March 13, 2017 (60 days after filing the appeal),”7 Commonwealth Court
Overdue Record Letter at 1, Defendants did not file an objection to this Court’s
jurisdiction on or before that date. Defendants raised their objection for the first time
in their brief filed on July 5, 2017. Therefore, in accordance with Pennsylvania Rule
of Appellate Procedure 741(a), this Court’s appellate jurisdiction was perfected.
Accordingly, Defendants waived any objection to jurisdiction.




       6
          This appeal is not within the exclusive jurisdiction of our Supreme Court, see Section 722
of the Judicial Code, 42 Pa.C.S. § 722, or the Commonwealth Court. See Section 762(a) of the
Judicial Code, 42 Pa.C.S. § 762(a).
        7
          The record was filed on April 12, 2017.
                                                 4
                                 Malpractice Claim
            Brown contends that since his COM was proper under Rule 1042.3(a)(3),
the judgment of non pros should not have been entered as to his malpractice claim. We
disagree.
            Initially, Rule 1042.3(a) provides:

            In any action based upon an allegation that a licensed
            professional deviated from an acceptable professional
            standard, the attorney for the plaintiff, or the plaintiff if not
            represented, shall file with the complaint or within sixty days
            after the filing of the complaint, a [COM] signed by the
            attorney or party that either
            (1) an appropriate licensed professional has supplied a
            written statement that there exists a reasonable probability
            that the care, skill or knowledge exercised or exhibited in the
            treatment, practice or work that is the subject of the
            complaint, fell outside acceptable professional standards and
            that such conduct was a cause in bringing about the harm, or
            (2) the claim that the defendant deviated from an acceptable
            professional standard is based solely on allegations that other
            licensed professionals for whom this defendant is responsible
            deviated from an acceptable professional standard, or
            (3) expert testimony of an appropriate licensed professional
            is unnecessary for prosecution of the claim.

Pa.R.C.P. No. 1042.3(a) (Notes omitted). Rule 1042.6 provides, in relevant part:

            (a) Except as provided by subdivision (b), a defendant
            seeking to enter a judgment of non pros under Rule 1042.7(a)
            shall file a written notice of intention to file the praecipe and
            serve it on the party’s attorney of record or on the party if
            unrepresented, no sooner than the thirty-first day after the
            filing of the complaint.
            ....
            (c) Upon the filing of a notice under subdivision (a) of this
            rule, a plaintiff may file a motion seeking a determination
            by the court as to the necessity of filing a [COM]. The
            filing of the motion tolls the time period within which a
                                           5
            [COM] must be filed until the court rules upon the
            motion. If it is determined that a [COM] is required, the
            plaintiff must file the [COM] within twenty days of entry
            of the court order on the docket or the original time period,
            whichever is later.
Pa.R.C.P. No. 1042.6 (Notes omitted; emphasis added).
             Here, Brown filed his COM under Rule 1042.3(a)(3) indicating that expert
testimony of an appropriate licensed professional is unnecessary for prosecution of his
claim. Thereafter, rather than file a notice of intention to file a praecipe for judgment
of non pros, Defendants filed a motion to strike the COM and enter a judgment of non
pros on the grounds that an expert is indeed necessary to prosecute a legal malpractice
claim. Brown answered by filing a response to the motion to strike, rather than a
motion seeking the trial court’s determination as to the necessity of the filing of the
COM. Notwithstanding, the parties’ filings put that question before the trial court,
which determined that expert testimony was necessary. The trial court gave Brown the
required 20 days to file an appropriate COM. Because Brown failed to do so, the
judgment of non pros was properly entered on his malpractice claim.


                                        Motion

             To obtain relief from a judgment of non pros in a [legal]
             malpractice action, a plaintiff must show: the petition to open
             the judgment of non pros is timely filed; there is a reasonable
             explanation or legitimate excuse for the inactivity . . . ; and,
             there is a meritorious cause of action. The trial court may
             only open a judgment of non pros where the plaintiff
             demonstrates in a satisfactory manner he has a
             reasonable explanation for the delay that formed the
             basis of entry of judgment.

Reaves v. Knauer, 979 A.2d 404, 413 (Pa. Cmwlth. 2009) (citation omitted; emphasis
added).




                                            6
             Brown first argues that the trial court had no legal basis to support its
judgment of non pros because there was no valid evidence that Brown refused to attend
the proceeding. We disagree.
             “The question of granting a non pros due to the failure of the plaintiff to
prosecute his action within a reasonable time rests within the discretion of the trial
court and will not be disturbed absent an abuse of discretion.” Jacobs v. Halloran, 710
A.2d 1098, 1101 (Pa. 1998). Here, SCI-Greene’s video coordinator Mindy Andreetti
(Andreetti) testified at the trial via speaker phone:

             THE COURT: This is Judge Keogh of the [trial court]. I’m
             assigned to a trial where one of your inmates, [] Brown, is
             the plaintiff. The [trial c]ourt has been informed that you
             have information that [] Brown does not wish to participate
             in this matter?
             MS. ANDREETTI: Yeah. I just got a call from F Block,
             which is where he’s being housed, and they said that he is
             refusing to attend.
             THE COURT: I see. Can you tell me who you received that
             information from?
             MS. ANDREETTI: I can find out. They just said that this is
             F Block calling just to let you know that [] Brown is refusing.
             THE COURT: It was certainly a communication from within
             the facility?
             MS. ANDREETTI: Oh, yes.[8]

Supplemental Reproduced Record at 36a. Brown asserts that the above testimony is
hearsay and thus should not be considered by this Court. However: “Res gestae
statements, such as . . . present sense impressions . . . are normally excepted out of the
hearsay rule.” Commonwealth v. Murray, 83 A.3d 137, 157 (Pa. 2013). The statement
from F Block that Brown was refusing to participate “w[as] admissible under the

      8
         Immediately following this exchange, Judge Keogh swore Andreetti in, to ensure the
testimony was given under oath.
                                             7
present sense impression exception to the hearsay rule, as [it was a] contemporaneous
verbalization[] of [the facilities’ representative] present observation[] of the events
occurring before him.” Commonwealth v. Peterkin, 513 A.2d 373, 380 (Pa. 1986).
             Pennsylvania Rule of Evidence 803 provides in relevant part:
             The following are not excluded by the rule against hearsay,
             regardless of whether the declarant is available as a witness:
             (1) Present Sense Impression. A statement describing or
             explaining an event or condition, made while or immediately
             after the declarant perceived it.
             Comment: This rule is identical to F[ederal] R[ule] [of]
             E[vidence] 803(1).
             For this exception to apply, declarant need not be excited or
             otherwise emotionally affected by the event or condition
             perceived. The trustworthiness of the statement arises from
             its timing. The requirement of contemporaneousness, or near
             contemporaneousness, reduces the chance of premeditated
             prevarication or loss of memory.
Pa.R.E. 803(1). This Court has explained:
             A present sense impression is not excluded under the hearsay
             rule because there is implicit reliability in a statement made
             ‘without time for retrospective deliberation.’ Municipality of
             Bethel Park v. Workmen’s Comp[.] Appeal [Bd.] (Willman),
             . . . 636 A.2d 1254, 1258 ([Pa. Cmwlth.] 1994). Further,
             [Rule] 803(1) specifically provides that this exception
             applies, ‘even though the declarant is available as a witness.’

Bell Beverage v. Unemployment Comp. Bd. of Review, 49 A.3d 49, 53 (Pa. Cmwlth.
2012).
             Consequently, the above testimony is record evidence to support the trial
court’s conclusion that Brown refused to participate in the proceedings on October 19,
2016. Given that Brown also did not appear at the first scheduled trial on April 18,
2016 after his request for a continuance prior thereto was denied, and that the trial court
had already entered and removed a non pros when Brown failed to make the necessary

                                            8
arrangements to participate at the first trial, we find no basis upon which to conclude
that the trial court abused its discretion in granting the current judgment of non pros
for Brown’s failure to prosecute his action.
               Brown next contends that he satisfied the elements required to open/strike
the judgment of non pros. We disagree. “[I]n order to remove a judgment of non pros,
three elements must be met: (1) a petition to open must be promptly filed; (2) the delay
must be reasonably explained; and (3) facts must be shown to exist which support a
cause of action.” Jacobs, 710 A.2d at 1100 n.4; see also Rule 3051.
               This Court acknowledges that by filing his Motion on November 9, 2016,
Brown has met the first requirement to open/strike the judgment of non pros. With
respect to the second element, Brown’s entire argument is as follows:

               [Brown] provided more than sufficient justification for his
               failure to attend the trial,[9] which the trial court has yet to
               provide any reasons for rejecting; and it chose to rely on the
               same invalid evidence relied upon to base the judgment of
               non pros in the first place: which further supports the fact that
               the trial court[’s] mind was made up before [Brown] even
               filed his [M]otion, clearly reflecting an abuse of discretion.

Brown Br. at 8. Beyond his uncorroborated, unsworn statement, Brown presented no
evidence to establish that he was prevented from participating at the trial. Brown
offered no explanation as to who refused to take him to the video conference, or whom
he contacted to assure he would in fact be attending the same. Indeed, Brown did not
provide any reason for why the prison officials would refuse to take him to the video
conference or his reaction, if any, thereto or what steps he took thereafter. Accordingly,
this Court has no basis upon which to conclude that such an event occurred. Relative
to the third element, Brown states: “The fact that the case was at trial supports the third

       9
          With the exception of the sentence included in his Statement of the Case, i.e., “[Brown] was
ready for trial but was never taken to the video conference room by prison officials[,]” Brown Br. at
3, contrary to his representation, Brown makes no mention of his “sufficient justification” anywhere
in his brief. Brown Br. at 8.
                                                  9
element.” Brown Br. at 7. Clearly, these “argument[s are] so undeveloped that [they
are] the functional equivalent of no argument at all. Therefore, the issue must be
deemed waived in this Court.” Commonwealth v. D’Amato, 856 A.2d 806, 814 (Pa.
2004).
               Further, and more importantly, since the trial court’s case management
order specified that any witnesses not identified prior to trial would be precluded from
testifying and, as of the trial date, Brown had not provided an expert to meet his burden
of proving that Defendants breached their duty of care on his contract claim 10 or a
medical expert to meet his burden of proving his emotional distress claim, 11 he could
not meet the third requirement of a meritorious cause of action.12 “A party seeking to
open a judgment of non pros must show that [his] petition to open satisfied the material
elements of [Rule] 3051(c). The test requires the movant to establish all three prongs.”
Intech Metals, Inc. v. Meyer, Wagner & Jacobs,153 A.3d 406, 411 (Pa. Super. 2016)
(citation omitted). “One of the required elements of a [Rule] 3051 petition is that facts
must be shown to exist which support a meritorious cause of action.” Id. (quoting
Stephens v. Messick, 799 A.2d 793, 800 (Pa. Super. 2002)). Because Brown could not
establish the third prong of the test, the trial court properly denied his Petition.
               Lastly, Brown asserts that the trial court violated his due process rights by
ruling on the Motion without a hearing because Rule 211 permits any interested party
to request oral argument on a motion. However, Rule 211 states in its entirety: “Any
interested party may request oral argument on a motion. The court may require oral


       10
            See 412 N. Front St. Assocs., LP v. Spector Gadon & Rosen, P.C., 151 A.3d 646, 661 (Pa.
Super. 2016) (“the standard of care applicable to a given profession must be determined from the
testimony of experts, unless the conduct involved is within the common knowledge of the ordinary
layperson.”).
         11
            See Kazatsky v. King David Mem’l Park, Inc., 527 A.2d 988, 995 (Pa. 1987) (The “existence
of [] alleged emotional distress must be supported by competent medical evidence.”).
         12
            With respect to Brown’s increased risk of harm claim, no such claim is recognized in a legal
malpractice action. See Myers v. Seigle, 751 A.2d 1182 (Pa. Super. 2000).
                                                  10
argument, whether or not requested by a party. The court may dispose of any motion
without oral argument.” Pa.R.C.P. No. 211 (emphasis added). Moreover, the
explanatory comment to Rule 211 provides:
             Current Rule 211, if read literally, confers on a party the right
             to argue any motion before the trial court. However, the
             Superior Court and the Commonwealth Court have both held
             that any right to oral argument conferred by Rule 211 is
             only a qualified right subject to judicial discretion. See
             Gerace v. Holmes Prot[.] of Phila[.], 516 A.2d 354 (Pa.
             Super. 1986); City of Phila[.] v. Kenny, 369 A.2d 1343 (Pa.
             Cmwlth. 1977). To remedy any confusion between the text
             of the rule and actual practice supported by appellate
             precedent, Rule 211 has been amended to provide that a party
             has the right to request oral argument, and gives discretion to
             the trial court to require oral argument, whether requested or
             not, or to dispose of any motion without oral argument.

Pa.R.C.P. No. 211 Explanatory Comment (emphasis added). Thus, Brown’s argument
is without merit.


             For all of the above reasons, the trial court’s order is affirmed.


                                        ___________________________
                                        ANNE E. COVEY, Judge

Judge Cosgrove did not participate in the decision in this case.




                                            11
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alton D. Brown,                       :
                       Appellant      :
                                      :
           v.                         :
                                      :
Dugan, Brinkmann, Maginnis and        :   No. 37 C.D. 2017
Pace, and John D. Brinkmann           :



                                   ORDER

           AND NOW, this 15th day of December, 2017, the Philadelphia County
Common Pleas Court’s December 8, 2016 order is affirmed.


                                   ___________________________
                                   ANNE E. COVEY, Judge
