J. A25013/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

CHERLENE GUDALEFSKY,                      :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                         Appellant        :
                                          :
                    v.                    :
                                          :
DR. JOHN NIPPLE, PHYSICIAN WITH           :              No. 442 MDA 2016
COMMUNITY GENERAL OSTEOPATHIC             :
HOSPITAL                                  :


             Appeal from the Order Entered February 17, 2016,
              in the Court of Common Pleas of Dauphin County
                   Civil Division at No. 2013-CV-10101-MM


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED JANUARY 24, 2017

     Cherlene Gudalefsky, pro se, appeals the order of the Court of

Common Pleas of Dauphin County in which the trial court declined to

entertain appellant’s motion to strike judgment because the case was closed.

     The   facts,   as   recounted   by   this   court    in   a   previous   related

memorandum opinion, are as follows:

                 In November 2013, Appellant, proceeding
           pro se, initiated this action by writ of summons
           against Appellee.     Appellant filed a complaint in
           March 2014, alleging medical malpractice resulting in
           the death of her mother, Ms. Shirley Homer.
           Appellant did not file a certificate of merit with her
           complaint. Accordingly, Appellee filed a notice of his
           intention to enter a judgment of non pros.



* Former Justice specially assigned to the Superior Court.
J. A25013/16


                   In April 2014, Appellant filed a document,
            entitled “Certificate of Qualified Expert.”     The
            document appears to be a summary report authored
            by Dr. Terrance L. Baker, who suggests that Appellee
            breached the applicable standard of care during the
            course of his treatment of Appellant’s mother.

                  In May 2014, Appellee filed a praecipe for
            entry of judgment of non pros on the ground that
            Appellant had not filed a proper certificate of merit.
            Thereupon, the Dauphin County Prothonotary
            entered judgment in Appellee’s favor.

                   In June 2014, Appellant filed a motion, denied
            by the trial court for failing to comply with local
            rules, and thereafter, an amended motion, asserting
            that she had filed a suitable substitute for a
            certificate of merit and requesting that the trial court
            reopen her case. In September 2014, the trial court
            denied Appellant’s prayer for relief. Appellant timely
            appealed and filed a court-ordered Pa.R.A.P. 1925(b)
            statement.      The trial court issued a responsive
            opinion.

Gudalefsky v. Nipple,            A.3d        (Pa.Super. 2015) (unpublished

memorandum at 1-3), petition for allowance of appeal denied, 130 A.3d

1290 (Pa. 2015) (footnote omitted).

      This court affirmed the determination that appellant failed to file a

certificate of merit (“COM”) in the form required by Pennsylvania Rule of

Civil Procedure 1042.10 and determined that the trial court did not abuse its

discretion when it denied appellant’s motion to open judgment of non pros.

      On December 29, 2015, the Supreme Court of Pennsylvania denied

appellant’s petition for allowance of appeal. Id.




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      On February 12, 2016, appellant petitioned to strike judgment and

alleged that she filed the required COM on April 28, 2014.

      By order dated February 17, 2016, the trial court stated that the

petition “will not be entertained as this case is closed.        Judgment of

non pros was entered on May 29, 2014, and plaintiff’s appeals to this court

regarding said judgment were denied.”      (Order, 2/17/16 at 1.)     The trial

court explained its decision:

                  It is well-settled law that all legal pleadings
            and civil actions must be done in accordance with
            the Pennsylvania Rules of Civil Procedure.           In
            Dauphin County, a pleading will not be entertained
            when a litigant fails to follow either the Pennsylvania
            Rules of Civil Procedure or the Dauphin County Local
            Rules of Court. In the instant matter, Appellant
            attempted to file a pleading after a judgment of
            non pros had been entered, her petition to open
            judgment of non pros was denied, and the Superior
            Court affirmed the denial and the judgment of
            non pros.

                  Pennsylvania Rule of Civil Procedure 3051 sets
            forth the procedure for requesting relief from a
            judgment of non pros. It states that relief must be
            sought by petition, and “[a]ll grounds for relief,
            whether to strike off the judgment or to open it,
            must be asserted in a single petition.” In the instant
            case, Appellant filed a petition to open judgment in
            2014, which was ultimately denied. Following the
            disposition of the appeal from that decision,
            Appellant filed a petition to strike judgment in an
            attempt to get a second bite of the appellant [sic].
            According to the rule, Appellant only gets one chance
            for relief from a judgment of non pros -- that was
            done in 2014.        Appellant’s Petition to Strike
            Judgment was properly non-entertained.

Trial court opinion, 3/28/16 at 2.


                                     -3-
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      On appeal to this court, appellant contends that the judgment of

non pros must be stricken because appellant filed a motion requesting

consideration involving both medical malpractice and wrongful death

date-stamped April 28, 2014, which included a [COM].

             Our standard of review from the denial of a petition
             to strike a judgment is limited to whether the trial
             court manifestly abused its discretion or committed
             an error of law. A petition to strike a judgment will
             not be granted unless a fatal defect in the judgment
             appears on the face of the record. Matters outside of
             the record will not be considered, and if the record is
             self-sustaining, the judgment will not be stricken.

Bell v. Kater, 943 A.2d 293, 295 n.1 (Pa.Super. 2008) (citation omitted).

      As the trial court stated, Pennsylvania Rule of Civil Procedure 3051(a)

provides, “[r]elief 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.” Pa.R.C.P. 3051(a). The trial court properly

declined to entertain this petition to strike because appellant previously filed

a motion which the trial court considered a motion to open judgment of

non pros. Appellant’s motion to strike did not comply with Rule 3051(a) of

the Pennsylvania Rules of Civil Procedure because she did not bring her

requests for relief in a single petition.1

      Order affirmed.




                                       -4-
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/24/2017




1
  Even if the trial court had entertained the motion, appellant would not
prevail as she asserts that she did file the required COM. The trial court and
this court already held that she did not.


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