J.   A19010/16

NON -PRECEDENTIAL DECISION           - SEE SUPERIOR COURT I.O.P.        65.37
SIBIL WHITE, ULYSSES BROWN,                   IN THE SUPERIOR COURT OF
SABRINA WHITAKER AND                                PENNSYLVANIA
MARGARET ANTHONY,

                        Appellants

                   v.                              No. 2839 EDA 2015

VIVIENNE A. CRAWFORD, ESQUIRE


                Appeal from the Order Entered August 4, 2015,
             in the Court of Common Pleas of Philadelphia County
                        Civil Division at No. 141100103


BEFORE:     FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED NOVEMBER 08, 2016

        Sibil White, Ulysses Brown, Sabrina Whitaker, and Margaret Anthony

(collectively, "appellants ") appeal the order of August 4, 2015, denying their

"motion to strike /open /vacate entry of non pros." We affirm.

        The trial court has aptly summarized the history of this case as

follows:

                   On   March   9,   2015, [appellants] filed a
             complaint against [appellee] Vivienne Crawford,
             Esq.,   alleging,   among     other injuries, legal
             malpractice.[Footnote 1] [Appellee] filed Notice of
             Intention to Enter a Judgment of Non Pros for Failure
             to File a Certificate of Merit ( "COM ") on May 14,
             2015. On June 16, 2015, [appellee] filed a Praecipe
             for Entry of Judgment of Non Pros; one week later,
             [appellants] filed a Petition to Strike the Entry of

* Former Justice specially assigned to the Superior Court.
J.   A19010/16

             Non Pros.   On August 4, 2015, this Court denied the
             Petition to Strike.

                  [Footnote 1] The other claims made were
                  for breach of contract, breach of fiduciary
                  duty, and loss of consortium.        Those
                  allegations are not at issue here.

                  This     case    stems    from      [appellee]'s
            representation of [appellants] between 2009 and
            2013 in a lawsuit against Saint Joseph's Hospital
            School of Nursing ( "St. Joseph's ").    [Appellants]
            retained as counsel [appellee] herein, who instituted
            an action against St. Joseph's claiming breach of
            contract and fraud. [Appellants] in that case were
            students at St. Joseph's who alleged they were
            "fraudulently prevented from passing classes and /or
            graduating by the school without cause." [Appellee],
            however, failed to name North Philadelphia Health
            System ( "NPHS ") as a party.       After defendant
            St. Joseph's filed for bankruptcy, [appellee] herein
            sought to amend [appellants'] complaint to add
            NPHS. The Motion to Amend was denied because
            the statute of limitations had passed.

                   As a result, [appellants] filed the instant action
            against [appellee] Crawford. [Appellants], however,
            failed to file a [COM] as is required in all professional
            malpractice actions pursuant to Pa.R.C.P. 1042.3(a).
            On May 14, 2015, sixty -six days after [appellants]
            filed their complaint [appellee] filed Notice of
            Intention to Enter a Judgment of Non Pros for Failure
            to File a COM. On June 16, 2015, thirty -three days
            later, [appellee] filed a Praecipe for Entry of
            Judgment of Non Pros.            On June 23, 2015,
            [appellants] filed a Petition to Strike the Entry of
             Non Pros.

Trial court opinion, 11/18/15 at   1   -2 (footnote 2 omitted).
J.   A19010/16

        The trial court denied appellants' petition to strike on August 4, 2015.

This timely appeal followed.' Appellants were not ordered to file           a   concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);

however, on November 18, 2015, the trial court filed an opinion.

        Appellants have raised the following issue for this court's review:

                Did the trial court commit an abuse of discretion in
               denying Appellants (Plaintiffs below), White, et al.'s
               Motion to Strike /Open /Vacate Entry of Non Pros
               when the Notice of Intent to Enter Judgment of
               Non Pros was not served electronically pursuant to
                Local Rule?

Appellants' brief at 8.

        "When reviewing       a   petition to open and /or strike    a   judgment of

non pros pursuant to Pa.R.C.P. 1042.6, our Court may reverse the decision

of the trial court only if we find that the trial court abused its discretion in

reaching its determination."        Zokaites Contracting Inc.       v.   Trant Corp.,
968 A.2d 1282, 1286 (Pa.Super. 2009), appeal denied, 985 A.2d 972 (Pa.




i
               The trial court's interlocutory order is appealable as
               of right pursuant to Pa.R.A.P. 311(a)(1) (stating that
               orders refusing to open, vacate, or strike off a
               judgment are appealable as of right). See Krauss
               v. Claar, 879 A.2d 302, 303 n.4 (Pa.Super. 2005),
               appeal denied, 586 Pa. 713, 889 A.2d 1217 (2005)
               (noting that an order denying a motion to strike a
               judgment of non pros is appealable as of right
               pursuant to Pa.R.A.P. 311(a)(1)).

Smith    v.   Friends Hosp., 928 A.2d 1072, 1074 n.1 (Pa.Super. 2007).

                                          -3-
J.   A19010/16

2009), quoting Mumma v. Boswell, Tintner, Piccola & Wickersham, 937

A.2d 459, 463 (Pa.Super. 2007) (citation omitted).

                  "It   iswell -established that a motion to strike off a
                  judgment of non pros challenges only defects
                  appearing on the face of the record and that such a
                  motion may not be granted if the record is
                  self- sustaining." Hershey v. Segro, 252 Pa.Super.
                  240, 381 A.2d 478, 479 (1977). Additionally, the
                  rule governing relief from judgment of non pros
                  indicates in pertinent part:

                  (b)        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 inactivity or
                                   delay, and

                             (3)   there is a meritorious cause
                                   of action.

                  Pa.R.C.P. 3051(b).

Varner v. Classic Communities Corp., 890 A.2d 1068, 1072 (Pa.Super.
2006).        The dispute in this case focuses on the second element, i.e.,

whether appellants provided               a   legitimate excuse explaining their failure to

file   a   COM.

                  Pa.R.C.P.   1042.3 applies to professional liability
                  claims against licensed professionals.        Pa.R.C.P.
                  1042.1(b)(1)(i).      "The rule contemplates that a
                  [COM] will be filed contemporaneously with or
                  shortly after the filing of the complaint, and provides
                  a 60 -day window after the filing of the complaint to
                  accomplish the filing of the [COM]." Varner[], 890


                                                  -4
J.   A19010/16

               A.2d [at] 1073 [] (citation, internal quotation marks,
               and brackets omitted). Among other things, a COM
               must contain a certified statement from a licensed
               professional that the defendant's conduct fell outside
               professional standards of care or that expert
               testimony is unnecessary for prosecution of the
               claim. Pa.R.C.P. 1042.3(a)(1) -(3).

Zokaites, 968 A.2d at 1286.
               If Pa.R.C.P. 1042.3 applies and the plaintiff fails to
               provide a COM, the prothonotary must, on praecipe
               of the defendant, enter a judgment of non pros
               against the plaintiff, so long as there is no pending
               timely filed motion seeking to extend the time to file
               a COM. See Pa.R.C.P. 1042.6(a) (amended June 16,
               2008). A motion to extend the time for filing a COM
               must be filed on or before the date in which the filing
               of the COM is due -60 days after the filing of the
               complaint.    See Pa.R.C.P. 1042.3(d) (amended
               June 16, 2008).

Id.
        The crux of appellants' argument is that they were never properly

served with 30 -day notice of appellee's intention to file         a   praecipe for

judgment of non pros as required by Pa.R.C.P. 1042.6 and 1042.7. Those

rules provide, in pertinent 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.

Pa. R.C. P.   1042.6(a).




                                        -5
J.   A19010/16

                (a)     The prothonotary,      on   praecipe of the
                        defendant, shall enter a judgment of non pros
                        against the plaintiff for failure to file a
                        certificate of merit within the required time
                        provided that

                        (1)   there is no pending motion for
                              determination that the filing of a
                              certificate is not required or no
                              pending timely filed motion seeking
                              to extend the time to file the
                              certificate,

                        (2)   no   certificate of merit has been
                              filed,

                        (3)   except       as      provided     by
                              Rule 1042.6(b), the defendant has
                              attached     to   the    praecipe  a
                              certificate of service of the notice
                              of intention to enter the judgment
                              of non pros, and

                        (4)   except       as     provided      by
                              Rule 1042.6(b), the praecipe is
                              filed no less than thirty days after
                              the date of the filing of the notice
                              of intention to enter the judgment
                              of non pros.

Pa. R.C. P.   1042.7.

        Here, appellee complied with all the requirements of Rules 1042.6 and

1042.7.       Appellee waited until May 14, 2015, 66 days after appellants filed

their complaint, to file notice of intention to enter judgment of non        pros.

The Rule 1042.6 notice was filed with the prothonotary, time -stamped, and

entered on the docket.             Appellee attached an affidavit of service to the

Rule 1042.6       notice indicating that service was made upon counsel for



                                            -6
J.   A19010/16

appellants via first -class United States mail.              (Docket #15.)     Appellants

failed to respond, and appellee filed             a   praecipe for entry of judgment of

non pros    33 days later.

        Appellants complain that under local rule, the prothonotary was

required to serve them with         a   copy of the Rule 1042.6 notice electronically,

via e-mail.      Appellants argue that the failure to do so constitutes                 a


breakdown in court operations. Pa.R.C.P. 205.4 provides, in pertinent part:

              (a)(1)    A court by local rule may permit or require
                        electronic filing of legal papers with the
                        prothonotary and shall specify the actions
                        and proceedings and the legal papers
                        subject to the rule.

Pa.R.C.P. 205.4(a)(1).

              (g)(1)    Copies of all legal papers other than original
                        process filed in an action or served upon
                        any party to an action may be served

                        (i)    as provided by Rule 440 or

                        (ii)   by     electronic    transmission,
                               other         than        facsimile
                               transmission, if the parties
                               agree thereto or an electronic
                               mail address is included on an
                               appearance or prior legal paper
                               filed with the court in the action.
                               A paper served electronically is
                               subject to the certifications set
                               forth in subdivision (b)(3).

                  (2)   Service by electronic transmission                is
                        complete when a legal paper is sent

                        (i)    to the recipient's electronic mail
                               address, or


                                             -7
J.   A19010/16


                          (ii)     to   an electronic filing system
                                   website and an e-mail message
                                   is sent to the recipient by the
                                   electronic filing system that the
                                   legal paper has been filed and is
                                   available for review on the
                                   system's website.

Pa.R.C.P. 205.4(g).

                 (a)(1)   Copies of all legal papers other than original
                          process filed in an action or served upon
                          any party to an action shall be served upon
                          every other party to the action. Service
                          shall be made

                          (i)      by handing or mailing a copy to
                                   or leaving a copy for each party
                                   at the address of the party's
                                   attorney of record endorsed on
                                   an appearance or prior pleading
                                   of the party, or at such other
                                   address as a party may agree[.]

Pa.R.C.P.      440(a)(1)(i).

          Therefore, appellants were properly served by mail with            a   hard copy of

the Rule 1042.6 notice of intention to enter judgment of non pros for failure

to file   a   COM.   Moreover, appellants do not dispute that they received actual

notice of both the notice of intent and the praecipe for entry of judgment by

first -class U.S. mail.         As the trial court observed,   "[appellants] had actual

notice of both filings, and should have filed           a COM    or   a   motion to extend

time for filing before the prothonotary entered            a   judgment of non pros."

(Trial court opinion, 11/18/15 at 4.)             Appellants argue in their reply brief

that, "Even if, as Appellee argues, Appellants had [] constructive notice,

                                             -8
J.   A19010/16

Appellants are [] entitled to wait for and then rely upon the Prothonotary's

docketing and transmission."         (Appellants' reply brief at 4 (emphasis in

original).)    Appellants' argument misses the mark.          Appellants cite no

authority whatsoever for the proposition that the failure to be electronically

served with    a   copy of the Rule 1042.6 notice tolled the 30 -day time period

within which to respond and /or constituted    a   breakdown in the operations of

the court.    Appellants had actual notice and simply chose not to respond.

The trial court did not abuse its discretion in refusing to strike off judgment

of non pros.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 11/8/2016




                                        -9
