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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


TOMAS OLIVER,                               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellant         :
                                            :
                    v.                      :
                                            :
IN S. LEE,                                  :
                                            :
                          Appellee          :     No. 2802 EDA 2014

                 Appeal from the Order Entered August 12, 2014
              In the Court of Common Pleas of Philadelphia County
                   Civil Division No(s).: 3188 June Term, 2013

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 27, 2015

        Appellant, Thomas Oliver, appeals from the order entered in the

Philadelphia County Court of Common Pleas denying his petition to open

judgment of non pros.1         Appellant contends the trial court abused its

discretion in refusing to consider his petition to open in accordance with the

criteria mandated by Pa.R.C.P. 3051(b) and in ruling the cause of action was

barred by the doctrine of laches and the statute of limitations. We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
  We note a trial court’s interlocutory order denying a petition to open a
judgment of non pros is immediately appealable. See Pa.R.A.P. 311(a)(1)
(stating orders refusing to open, vacate or strike off judgment are
appealable as of right); Krauss v. Claar, 879 A.2d 302, 303 n.4 (Pa. Super.
2005).
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      The trial court summarized the facts and procedural posture of this

case as follows:

         This case arose from a motor vehicle/bicycle accident that
         occurred on June 25, 2011 near 16th Street in
         Philadelphia. On June 25, 2013, [Appellant] filed a Writ of
         Summons and claimed a demand of less than $50,000.00
         which placed it in this court’s Compulsory Arbitration
         Program. The Arbitration was originally scheduled for
         March 13, 2014.          [Appellant] filed a request for
         continuance which stated among other things that service
         had not been made and no Complaint filed. The request
         was granted and the Arbitration was subsequently
         rescheduled to May 13, 2014. [Appellant] filed a second
         request for a continuance, stating the same reasons as the
         first continuance request. The second continuance was
         denied. [Appellant] failed to appear for his Arbitration
         hearing and a Rule was issued against [Appellant] to show
         cause why a judgment of non pros should not be entered
         for his failure to attend the Arbitration hearing. The Rule
         hearing was scheduled for June 24, 2014. At the Rule
         hearing counsel appeared without his client, acknowledged
         that his client did not attend the Arbitration hearing
         because he knew the case could not go forward since he
         had not filed a Complaint nor made service. Sometime
         after the scheduled Arbitration hearing and before the Rule
         hearing [Appellant] filed a complaint[2] but failed to

2
 The complaint was filed on June 23, 2014.       The Pennsylvania Supreme
Court has explained:

         The Superior Court has previously recognized that there
         are two different standards governing relief from a
         judgment of non pros, the application of which is
         dependent upon the circumstance under which the
         judgment was entered. In this regard, Rule 3051 affords
         relief from such a judgment where the moving party has
         timely filed a petition to open, has supplied a reasonable
         explanation for the inactivity, and there is a meritorious
         cause of action. See Pa.R.C.P. No. 3051(b)(1-3). This
         provision, however, does not apply when a judgment of
         non pros is entered because of a party’s failure to file a



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         effectuate and/or attempt service or file a Motion for
         Alternative service.   This court found that [Appellant]
         offered no satisfactory excuse for [Appellant’s] failure to
         attend the arbitration hearing, and entered an Order of
         Judgment of Non Pros against [Appellant] on June 25,
         2014]. On the [sic] June 28, 2014, [Appellant] filed a
         Petition to Open Judgment of Non Pros.[3] After reviewing
         the Petition, response, and supplemental briefs filed by
         both sides, this court denied the Petition to Open
         Judgment of Non Pros.

Trial Ct. Op., 10/27/14, at 1-2. This timely appeal followed.4



         complaint; rather, that circumstance is covered by Rules
         237.1 and 237.3. See generally Pa.R.C.P. No. 3051 Note
         (referring to Rule 237.3 for relief where a party has failed
         to file a complaint pursuant to Rule 1037(a)); Pa.R.C.P.
         No. 132 (prescribing as a rule of construction that the
         particular controls over the general). Rule 237.1 states
         that a party seeking to enter a judgment of non pros for
         the failure to file a complaint must provide the opposing
         party with notice of such intention. See Pa.R.C.P. No.
         237.1(a)(1), (2).[ ]

Simmons v. Luallen, 763 A.2d 810, 812 (Pa. 2000) (some citations
omitted). Rule 237.1 defines “judgment of non pros” as “a judgment
entered by praecipe pursuant to Rules 1037(a) and 1659[.]” Pa.R.C.P.
237.1(a)(1). Rule 1037(a) provides: “(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). Rule
1659 pertains to actions upon mechanics liens. In the instant case, the trial
court entered the judgment of non pros. Therefore, Rule 3051 is applicable.
3
  We note present Appellate counsel entered his appearance and filed the
petition to open the judgment of non pros on behalf of Appellant on June 28,
2014.
4
  Appellant was not ordered to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.




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        Appellant raises the following issue for our review:

               Whether the court below abused its discretion in failing
           and refusing to consider Appellant’s Petition to Open
           Judgment of Non Pros in accordance with the criteria
           mandated by Pa.R.Civ.P. 3051(b), all of which Appellant
           clearly satisfied, and instead gratuitously and erroneously
           ruling that Appellant’s cause of action was barred by the
           doctrine of laches and the applicable statute of limitations?

Appellant’s Brief at 5.

        Appellant contends he satisfied the criteria of Rule 3051(b)5 because

the petition to open judgment was promptly filed within three days of the

entry of the non pros.         Id. at 17.      He avers there was a reasonable

explanation for the delay. Id. Appellant claims “[t]here is no evidence in

the record that Appellant’s counsel’s failure to appear was ‘part of a pattern

of improper behavior, misconduct or abuse.’”         Id. at 26.   Appellant avers

Appellee cannot claim he was prejudiced by the delay because he evaded


5
    Rule 3051(b) provides:

           (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.

Pa.R.C.P. 3051(b).     However, in the instant case, subdivision (c) is
applicable. See infra.



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the Sheriff’s efforts to serve him, which was the primary cause of the delay.

Id. Appellant also contends “the sanction of a judgment of non pros was not

commensurate with Appellant’s acknowledged transgressions.”              Id.   He

argues the trial court erred in holding Appellant did not establish “a

compelling excuse for inactivity in this case.”          Id. at 23 (emphasis

supplied).     He complains that pursuant to Rule 3051(b), he need only

establish “‘a reasonable explanation or legitimate excuse for the inactivity

or delay,’ the lower court’s imposition of a far more stringent standard was

an abuse of discretion and constitutes reversible error.”        Id. (emphasis

supplied). Appellant lastly contends he has a meritorious cause of action as

evidenced by his complaint.       Id. at 26.   He avers the trial court did not

consider this prong of Rule 3051(b).       Id. at 27.   Appellant argues “[t]he

lower court in this case did not apply the appropriate Rule 3051 standard but

instead held Appellant to the stringent standard of James Bros. Lumber

Co. v. Union Banking & Trust Co., [ ] 247 A.2d 587 ([Pa.] 1968)[.]” Id.

at 22.

         Our review is governed by the following principles:

           “[T]he ruling that a trial court makes under Pa.R.C.P. 3051
           is reviewed on appeal for an abuse of discretion.”

              Judicial 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 exercises its
              discretion in a manner lacking reason. Similarly, the



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             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) (citations omitted).

        Pennsylvania Rule of Civil Procedure 30516 provides for relief from a

judgment of non pros for inactivity as follows:

          (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, [ ]
             710 A.2d 1098 ([Pa.] 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:

             (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(c)(1)-(3)(i)-(iii)7 (emphases added).


6
    We note this Rule was amended effective May 5, 2013.




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        The 2013 comment to the rule provides:

          The Supreme Court of Pennsylvania has amended Rule
          3051 governing relief from a judgment of non pros to
          clarify the requirements for opening a judgment of non
          pros entered for inactivity.        In Madrid v. Alpine
          Mountain Corp., 24 A.3d 380 (Pa. Super. 2011), the
          Superior Court of Pennsylvania ruled that under the
          current language of Rule 3051(b) it was compelled to
          conclude that a plaintiff is not entitled to relief from a
          judgment of non pros for inactivity without a showing that
          there was a reasonable explanation or legitimate excuse
          for the inactivity.     Under this interpretation of Rule
          3051(b), a judgment of non pros for inactivity cannot be
          opened even if the record did not establish actual prejudice
          unless the plaintiff could also show a reasonable
          explanation or legitimate excuse for the delay. Thus, while
          the defendant was required to show that the delay caused
          actual prejudice in order to obtain a judgment of non pros
          for inactivity, the plaintiff who cannot show a reasonable
          excuse for the delay may not challenge the entry of the
          judgment of non pros on the ground that the record failed
          to establish actual prejudice.

          New subdivision (c) is intended to alter the ruling in Madrid
          by providing for the opening of a judgment of non pros
          dismissing a case for inactivity upon a showing that the
          defendant did not meet each of the three requirements for
          the entry of a judgment of non pros.

7
    In Jacobs, the Pennsylvania Supreme Court opined:

             The effect of our decision today is to return to the three
          part test of James Brothers. To dismiss a case for
          inactivity pursuant to a defendant’s motion for non pros
          there must first be a lack of due diligence on the part of
          the plaintiff in failing to proceed with reasonable
          promptitude.      Second, the plaintiff must have no
          compelling reason for the delay. Finally, the delay must
          cause actual prejudice to the defendant. . . .

Jacobs, 710 A.2d at 1103. Rule 3051(c) codifies the James Brothers test.
See Pa.R.C.P. 3051(c)(3)(iii).



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Pa.R.C.P. 3051, cmt.

      In Jacobs, the Pennsylvania Supreme Court opined:

            We recognize that defendants may be prejudiced by
         undue delays in litigation-memories fade, witnesses
         disappear and documents become lost or are destroyed.
         Additionally, pending lawsuits often cause undue stress
         and anxiety. However, the rules concerning the dismissal
         of cases for inactivity reflect policy concerns which
         implicate the interests of both plaintiffs and defendants. It
         is unnecessary to presume prejudice because the
         defendant is free to present evidence of actual prejudice.
         In cases where no activity has occurred for a period of two
         years, but the defendant has not lost his ability to
         adequately prepare a defense, it serves no equitable
         purpose to dismiss the plaintiff’s case solely due to the
         passage of time. There is no logical distinction between the
         harm caused to a defendant by the plaintiff's delay of two
         years and the harm caused to a defendant by a delay of
         two years less one day.

Jacobs, 710 A.2d at 1102 (emphasis added).         The Pennsylvania Supreme

Court noted that our Court “has further defined prejudice as any substantial

diminution of a party’s ability to properly present its case at trial.”   Id. at

1103, citing Metz Contracting, Inc., v. Riverwood Builders, Inc., 520

A.2d 891, 894 (Pa. Super. 1987).

      In the case sub judice, the trial court found that this case satisfied the

three pronged test enunciated in James Brothers. Trial Ct. Op. at 3. The

court opined:

            First, [Appellant] filed a Writ on the last day of the
         statute of limitations expiring in June of 2013 and did
         nothing for nine months until requesting a continuance for
         the Arbitration hearing. The only attempt at service was
         made by the Sheriff over the course of a week in August of


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        2013. [Appellant] did not reinstate the Writ after 30 days.
        [Appellant] did not file a motion for alternative service.
        Further, [Appellant] did not even file a Complaint until
        after the Rule was entered against him for failure to
        appear at the arbitration hearing. This is clearly a lack of
        due diligence on the part of [Appellant].

           Next, [Appellant] offered no reason for failing to appear
        at the Arbitration hearing once his request to continue was
        denied.     Counsel for [Appellant] merely implied that
        [Appellee] may have purposely avoided service without
        offering any facts in support of this argument. Counsel for
        [Appellant] also contended that he had appeared for the
        Arbitration but advised his client no to come because there
        was no service and no complaint filed. These arguments
        do not constitute a compelling excuse for [Appellant’s]
        inactivity in this case.

            Finally, [Appellee] is prejudiced by [Appellant’s] failure
        to prosecute this matter because the statute of limitations
        has since tolled. It is well settled under Pennsylvania Law
        that the filing of a Praecipe for a Writ of Summons will only
        toll the statute of limitations if, during the life of the Writ,
        the plaintiff makes a good faith attempt to effectuate
        service of the Writ. What constitutes a “good faith” effort
        to serve legal process is a matter to be assessed on a case
        by case basis. [Appellant] clearly did not put forth a “good
        faith” effort here.

Trial Ct. Op. at 3-4 (citations omitted). We agree with the trial court that

the three prong test enunciated in Jacobs has been met. See Jacobs, 710

A.2d at 1103; Rule 3051(c)(3)(iii). Accordingly we affirm the order denying

Appellant’s petition to open judgment of non pros.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/27/2015




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