J-A09021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KALA CORDELL,                                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

MICHAEL STAINS,

                            Appellee                 No. 1672 MDA 2016


               Appeal from the Order Entered September 6, 2016
                In the Court of Common Pleas of Adams County
                       Civil Division at No(s): 14-SU-497


BEFORE: SHOGAN, OTT, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JUNE 22, 2017

       Appellant, Kala Cordell, appeals from the order denying her “Petition to

Strike Non-Pros Entered and Restore the Complaint”1 in this civil action

____________________________________________


1
    We note that a petition to open a judgment and a petition to strike a
judgment are generally not interchangeable. Cf. Stauffer v. Hevener, 881
A.2d 868, 870 (Pa. Super. 2005) (observing that a petition to open default
judgment, which is an appeal to the discretion of the court that will only be
granted if there is a manifest abuse of discretion or error of law, and a
petition to strike a default judgment, which is will only be granted where
there is a fatal defect or irregularity that is apparent from the face of the
record, seek distinct remedies and are generally not interchangeable). See
also Cintas Corp. v. Lee’s Cleaning Services, 700 A.2d 915, 918-919
(Pa. 1997) (comparing petitions to open judgments with petitions to strike
judgments).      It appears that Appellant mislabeled her post-judgment
petition as a petition to “strike.” However, the document should have been
titled a petition to “open.” This is so given the fact that Appellant resorted
to the relief associated with a petition to open judgment of non pros set
forth under Pa.R.C.P. 3051, namely: (1) whether the petition was timely
filed, (2) whether Appellant had a reasonable explanation for the conduct
(Footnote Continued Next Page)
J-A09021-17


alleging negligence against Appellee, Michael Stains, for his involvement in a

motor vehicle accident. We affirm.

      The trial court set forth the history of this case as follows:

            The procedural background of this case reveals that the
      action arises out of a motor vehicle accident which is alleged to
      have occurred on or about May 14, 2012. [Appellant] initiated
      this action by filing a Writ of Summons on May 5, 2014. Initial
      attempts at service on [Appellee] were unsuccessful.
      Approximately 6 months later on November 14, 2014,
      [Appellant’s] counsel caused the Summons to be reissued.
      Further attempts at service were unsuccessful. Those attempts
      at service were consistently made only at [Appellee’s] previous
      address or his parent’s address in Hanover, Pennsylvania. On
      November 5, 2014, approximately a year and a half after the
      action was initiated and 11 months after the Summons was first
      re-issued, [Appellant’s] counsel caused the Summons to be re-
      issued for the second time. Continued attempts at service were
      unsuccessful.      On January 29, 2016, [Appellant’s] counsel
      caused the Summons to be re-issued for a third time.

             The Summons was sent via certified mail, addressed to
      [Appellee] c/o a business in Texas. That certified mail was
      signed for by Cindy Reyes on February 8, 2016. Some issue
      remains as to whether there has been effective service, although
      that issue is not presently before the Court.

             On February 26, 2016, [Appellee’s] counsel entered his
      appearance and issued a Rule to File a Complaint. The Rule was
      issued that same day and promptly delivered to [Appellant’s]
      counsel. On April 5, 2016, [Appellee’s] counsel issued and
      delivered to [Appellant’s] counsel a 10 day Default Notice for
      failure to file a Complaint in response to the Rule. Twenty-One
      days after the Notice of Default was delivered, on April 26, 2016
      [Appellee’s] counsel filed a Praecipe for Entry of Judgment of
      Non-Pros.       The next day April 27, 2016 at 10:49 a.m.
      [Appellant] filed a Complaint in this action. On May 9, 2016[,]
                       _______________________
(Footnote Continued)

that gave rise to the entry of judgment of non pros, and (3) whether
Appellant had a meritorious cause of action.



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      the Honorable Michael A. George entered an Order striking the
      Complaint of April 27, 2016 due to the fact that Judgment of
      Non-Pros was entered April 26, 2016. On May 20, 2016, three
      weeks after entry of the Order by Judge George, [Appellant’s]
      counsel filed a Petition to Strike Non-Pros and to Restore the
      Complaint filed. . . .

Trial Court Opinion, 9/6/16, at 1-2.

      The trial court held oral argument on August 24, 2016, and on

September 6, 2016, entered an order that denied Appellant’s petition for

relief from the judgment of non pros and to restore the complaint.         This

timely appeal followed.     Both Appellant and the trial court have complied

with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

             Where [Appellant] sent a Complaint to the Court and it
      was received but not docketed, prior to the entry of non-pros for
      failure to file a Complaint, and where [Appellee’s] counsel
      received the Complaint before filing a motion for non-pros for
      failure to file the Complaint, and thereafter [Appellant] filed a
      Motion to Open Judgment promptly, where [Appellant] had plead
      a meritorious claim of action, where [Appellee’s] insurer was
      aware of the action and the nature of [Appellant’s] claims,
      should the petition have been granted?

             Where the non-pros was granted on the basis of a failure
      to file a Complaint, could the Court refuse to reopen the matter
      based upon considerations of delay in service which were not the
      basis of the non–pros granted, to in effect convert a hearing on
      the question of reopening to permit the filing of the Complaint
      into an issue that was not the basis for the non–pros granted,
      and which did not permit plaintiff to present evidence relevant to
      those issues?

Appellant’s Brief at 3-4.




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      Appellant’s issues essentially address whether the trial court erred in

determining that she met the requirements for relief from the judgment of

non pros.   Because she has presented these issues in a single argument

section of her brief, we will address her claims regarding these issues in a

single discussion.

      We have long stated that, “[b]y definition, a non pros is a judgment

entered by the trial court which terminates a plaintiff’s action due to the

failure to properly and/or promptly prosecute a case. Following entry of the

judgment, plaintiff may seek relief by petitioning the court to strike or open

the judgment.”       Dombrowski v. Cherkassky, 691 A.2d 976, 977 (Pa.

Super. 1997).

      Pennsylvania Rule of Civil Procedure 1037 addresses the entry of

judgment upon default or admission, and provides, in relevant part, as

follows:

            (a) If an action is not commenced by a complaint,
      the prothonotary, upon praecipe of the defendant, shall enter
      a rule upon the plaintiff to file a complaint. If a complaint
      is not filed within twenty days after service of the rule,
      the prothonotary, upon praecipe of the defendant, shall enter
      a judgment of non pros.

Pa.R.C.P. 1037(a) (emphases added). Pennsylvania Rule of Civil Procedure

237.3 addresses petitions requesting relief from judgment of non pros or by

default, and provides, in pertinent part, the following bright-line rule:

      (b) (1) If the petition is filed within ten days after the entry
      of a judgment of non pros on the docket, the court shall open


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J-A09021-17


       the judgment if the proposed complaint states a meritorious
       cause of action.

Pa.R.C.P. 237.3(b)(1) (emphases added). In addition, Pennsylvania Rule of

Civil Procedure 3051 governs petitions requesting relief from judgment of

non pros,2 and provides, in relevant part, as follows:

       (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),[3] 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.
____________________________________________


2
   In Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996 (Pa. 2001), our
Supreme Court noted that

       [u]nder case law existing prior to the January 1, 1992 effective
       date of [Pa.R.C.P.] 3051, a party seeking review of a judgment
       of non pros could proceed in two ways: either petition the trial
       court to open the judgment or seek appellate review of the
       judgment.

Id., 782 A.2d at 998 (citation omitted). However, Rule 3051 was adopted to
“eliminate[ ] the choice and establish [ ] a uniform procedure when relief is
sought from a judgment of non pros.” Pa.R.C.P. 3051, 1991 cmt.
3
   Rule 3051 was amended in 2013 to add subdivision (c), in order to
specifically address the opening of a judgment of non pros that dismissed a
case for inactivity. See Explanatory Comment-2013 (setting forth reasoning
behind addition to Rule 3051).



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      Note: See Rule 237.3 for special provisions relating to relief
      from a judgment of non pros entered pursuant to Rule 1037(a).

Pa.R.C.P. 3051(a), (b). As this Court has explained, “if the petition is filed

within ten days or less, Rule 237.3(b) applies, if it is after ten days, Rule

3051(b) applies.”   Horwath v. Digrazio, 142 A.3d 877, 882 (Pa. Super.

2016).

      In determining that Appellant was not entitled to relief from the entry

of judgment of non pros, the trial court offered the following analysis, which

we adopt as our own:

      Initially it appears as though Rule 237.3 of the Pennsylvania
      Rules of Civil Procedure would control disposition of the issue.
      However, under authority of the Pennsylvania Superior Court,
      Rule 237.3(b) only displaces Rule 3051(b) for petitions filed
      “within ten days after the entry of the judgment on the docket.”
      [Horwath 142 A.3d at 882]. The record reveals that the
      Petition for Relief from a Judgment of Non-Pros was not filed
      within ten days after the entry of the Judgment on the docket,
      so Rule 237.3(b) does not operate here to establish a bright[-
      ]line rule that the Judgment of Non-Pros must be opened by the
      Court.

            So the issue presently before the Court must be evaluated
      under the requirements of Pa. R. Civ. P. 3051. As required by
      that Rule, the petition seeking to open judgment of non-pros
      must allege facts showing: (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.

             As [Appellee] has made no argument to the contrary, for
      purposes of disposition of the instant Petition it is presumed that
      there is a meritorious cause of action. The issues here revolve
      around whether the Petition to Strike Judgment of Non-Pros was
      timely filed and whether there is a reasonable explanation or a
      legitimate excuse for the conduct of [Appellant] that gave rise to
      the entry of Judgment of Non-Pros in the first place.

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J-A09021-17


            On the issue of timeliness, [Appellant’s] Petition was filed
     May 20, 2016 which was 3-1/2 weeks after [Appellee’s] Praecipe
     for Entry of Judgment of Non-Pros was filed and served on
     Plaintiff’s counsel. Clearly we are outside of the bright[-]line
     10[-]day rule provided for in Rule 237.3. Essentially the Petition
     was filed exactly 2 weeks after the deadline upon which [the trial
     c]ourt would have been required to grant relief under Rule
     237.3.

           As the Rules contemplate the filing of a petition at some
     point in time beyond the 10[-]day period of Rule 237.3 which
     would mandate the striking of the Judgment of Non-Pros, this
     [c]ourt finds that a delay of an additional 2 weeks does not
     render the Petition . . . untimely.

            Inquiry then turns to whether there is any reasonable
     explanation or legitimate excuse for the conduct that gave rise
     to the entry of Judgment of Non-Pros in the first place. It is here
     where [Appellant] fails to provide sufficient justification for the
     failure to file a Complaint during the approximately four (4) year
     period from the May 14, 2012 date of the accident and April 27,
     2016, the date on which the Complaint was finally filed.

           [Appellant’s] counsel argues that the Complaint was
     mailed to the Adams County Prothonotary’s Office on April 15,
     2016, but that[,] due to the lack of postage[,] the Complaint
     was returned to [Appellant’s] counsel.         From the face of
     [Appellant’s] Petition, it appears Counsel made numerous
     attempts to contact the Prothonotary’s Office by phone to inquire
     as to whether the Complaint had been received only to be
     informed each time that it had not been received in that Office.
     Essentially, [Appellant’s] counsel argues that delays with mail
     are a sufficient and reasonable explanation or legitimate excuse
     for the conduct giving rise to the entry of the Judgment of Non-
     Pros.

           However, a close review of the procedural background
     shows an unexplained history of delay by [Appellant] in the
     prosecution of this action. [Appellant] waited until 9 days prior
     to the tolling of the 2 year Statute of Limitations to initiate the
     action and then did so only via Writ of Summons. Then, for
     some unexplained reason, [Appellant] neglected to file a
     Complaint in the 2 years that followed before being instructed to
     do so pursuant to the issuance of the Rule to file a Complaint

                                    -7-
J-A09021-17


       [within twenty days or suffer judgment of non pros].
       [Appellant’s] counsel was served with [the] Rule to file a
       Complaint on March 3, 2016. [Appellant] neglected to do so.
       Then, 33 days later, [Appellant] was served with an important
       Notice advising that she was in default for failing to file a
       Complaint. No explanation is given as to why [Appellant] was
       unable to file a Complaint between [the] March 3, 2016 service
       of the Rule [to file a Complaint within twenty days or suffer
       judgment of non pros] and April 5, 2016[,] when the Default
       Notice[4] was delivered [to Appellant’s counsel].         Even then
       [Appellant] did not mail the Complaint to the Adams County
       Prothonotary’s Office until the tenth day of the 10 day Notice.
       The Complaint was sent to the Prothonotary’s Office by ordinary
       mail, ensuring or guarantying that the Complaint would not be
       received at the Prothonotary prior the expiration of the 10 day
       Notice. No reasonable explanation was given for [Appellant’s]
       failure to file the Complaint in person or prior to the expiration of
       the ten[-]day period.

             Importantly, this is not a situation where [Appellee’s]
       counsel engaged in a race to the Courthouse in order to secure
       Judgment of Non-Pros. To the contrary, despite a strict timeline
       set forth by the Pennsylvania Rules of Civil Procedure, counsel
       for [Appellee] at all stages deferred acting until days or weeks
       beyond the deadlines upon which he was otherwise entitled to
       act as set forth in those Rules.

             For all of the foregoing reasons, it is clear to the [c]ourt
       that [Appellant] has not established that there is a reasonable

____________________________________________


4
  The first paragraph of the default notice to Appellant, dated April 5, 2016,
states the following:

            YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE
       A COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN TEN
       DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE
       ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY
       LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THEREBY
       LOSE PROPERTY OR OTHER IMPORTANT RIGHTS.

Default Notice, 4/5/16, at 1 (Certified Record #17).



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J-A09021-17


      explanation or legitimate excuse for the [Appellant’s] conduct
      that gave rise to the entry of the Judgment of Non-Pros.

           Accordingly, [Appellant] is not entitled to the relief
      requested. . . .

Trial Court Opinion, 9/6/16, at 2-5 (emphasis in original).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2017




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