J-A26038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KATHLEEN D. DAUTRICH, IN HER                   IN THE SUPERIOR COURT OF
CAPACITY AS ADMINISTRATRIX OF THE                    PENNSYLVANIA
ESTATE OF SHANNON K. DAUTRICH

                            Appellant

                       v.

READING HOSPITAL AND MEDICAL
CENTER AND DR. DOE

                            Appellee                No. 1467 MDA 2014


             Appeal from the Judgment Entered on August 1, 2014
                In the Court of Common Pleas of Berks County
                        Civil Division at No.: 14-3418


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                       FILED DECEMBER 18, 2015

       Kathleen Dautrich, Esq., appearing as administratrix of the estate of

Shannon Dautrich, appeals the trial court’s August 1, 2014 entry of a

judgment of non-pros. In the trial court, she failed in her effort to file her

petition to open the judgment electronically, as permitted but not required

by local rule. She contends that defects in the notice furnished to her and

what amounts to a clerical error or overly technical decision by the

prothonotary, as well as her lack of familiarity with the then-newly-

implemented electronic filing system, conspired to prevent her from filing

the petition in a fashion that was acceptable to the trial court. She seeks a
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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remand to enable her to file a technically compliant petition to open nunc

pro tunc. We quash Dautrich’s appeal and remand.

      The trial court has provided the following brief procedural history of

the instant matter:

      On March 3, 2014[, Dautrich] filed a Praecipe for Writ of
      Summons against [Reading Hospital and Medical Center and Dr.
      Doe (hereinafter, “Reading Hospital”)] for a medical malpractice
      action. On April 24, 2014[, Dautrich] reissued the writ. On May
      12, 2014[, Reading Hospital] issued a rule to file a complaint.
      On May 29, 2014[, Dautrich] filed a complaint. On June 30,
      2014[,Reading Hospital] file[d] a Notice of Intention to Enter
      Judgment of Non Pros on the [p]rofessional [l]iability [c]laim for
      failure to file a certificate of merit as required by
      Pa.R.C.P. 1042.3.    Said notice was served by certified and
      ordinary mail to [Dautrich] at 530 Court Street, 2nd floor,
      Reading, PA 196012, the same address [Dautrich] filed with the
      [p]rothonotary. On August 1, 2014[, Reading Hospital] filed a
      Praecipe for Entry of Judgment of Non Pros Pursuant to Rule
      1042.7 and served the same on [Dautrich] by regular mail as
      evidenced by the [c]ertificate of [s]ervice. On August 1, 2014[,]
      the [p]rothonotary, pursuant to Pa.R.C.P. 236 entered a
      judgment of non pros. On September 2, 2014[, Dautrich] filed a
      [n]otice of [a]ppeal to the Superior Court. On September 9,
      2014[, the trial court] directed [Dautrich] to file a [concise
      statement of errors complained of on appeal pursuant to
      Pa.R.A.P. 1925(b)].

Trial Court Opinion, 1/13/2015, at 1-2.

      Conspicuously absent from this account of the procedural history is

any mention of the petition to open that furnishes the subject of this appeal.

That is a consequence of the fact that none was filed as of the date that

Dautrich filed her notice of appeal, nor does any such filing appear on the




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trial court docket as of June 2, 2015.        Nonetheless, we must review

Dautrich’s account of those events that are not reflected in the docket.

        As Dautrich correctly notes, although the judgment of non pros was

entered of record on August 1, 2014, the requisite Rule 236 notice of the

judgment was not served upon the parties until August 12, 2014. Dautrich

avers that she attempted to file a petition to open the judgment

electronically on August 28, 2014. She filed the instant notice of appeal two

business days later on September 2, 2014. On September 3, 2014, three

business days after she attempted to file her petition to open, the

prothonotary notified her that her electronically-filed petition was defective

because it lacked an acceptable signature.

        On December 2, 2014, this Court entered a rule directing Dautrich to

show cause within fourteen days why her appeal should not be dismissed.

Therein, we observed that no direct appeal will lie from a judgment of non

pros.    Rather, under Pa.R.C.P. 3051, the subject of a non pros judgment

must file a petition to open the judgment in the trial court to enable

appellate review.    An appeal will lie only from a trial court’s denial of a

petition to open. See Rule to Show Cause, 8/1/2014, at 1 (citing Sahutsky

v. H.H. Knoebel Sons, 782 A.2d 996 (Pa. 2001); Madrid v. Alpine

Mountain Corp., 24 A.3d 380 (Pa. Super. 2011)).

        On December 17, 2014, Dautrich filed her response, which was

untimely by one day. Therein, Dautrich raised the issue of her vain attempt

to file a petition to open or strike on August 28, 2014, and attached

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documentation to support her account.      By order entered on January 8,

2015, this Court dismissed the rule, but referred the issue to this panel

without deciding whether the non pros judgment is appealable under the

circumstances of this case.

     We need not be unsympathetic to Dautrich’s plight to conclude that we

may not consider the merits of her appeal in this posture:

     “A request to open a judgment of non pros, like the opening of a
     default judgment, is in the nature of an appeal to the equitable
     powers of the court and, in order for the judgment of non pros to
     be opened, three elements must coalesce: 1) the petition to
     open must be promptly filed; 2) the default or delay must be
     reasonably explained or excused; and 3) facts must be shown to
     exist which support a cause of action.” Jung v. St. Paul's
     Parish, 560 A.2d 1356, 1358 (Pa. 1989); Pa.R.C.P. 3051. A
     petition under Rule 3051 is the only means by which relief from
     a judgment of non pros may be sought. See Pa.R.C.P. 3051,
     Cmt. Any appeal related to a judgment of non pros lies not from
     the judgment itself, but from the denial of a petition to open or
     strike.   Id.; Stephens v. Messick, 799 A.2d 793, 798
     (Pa. Super. 2002).    Finally, failure to file a timely or rule-
     compliant petition to open operates as a waiver of any right to
     address issues concerning the underlying judgment of non pros.
     Id. at 797, 800.

     A trial court’s decision to deny a petition to open or strike a
     judgment of non pros is scrutinized on the abuse of discretion
     standard of appellate review. Parkway Corp. v. Margolis
     Edelstein, 861 A.2d 264, 265 (Pa. Super. 2004).

Madrid, 24 A.3d at 381-82 (citations modified).

     That Dautrich attempted to file such a petition does not change the

fact that she failed. That being said, it does not appear to us that Dautrich

is without any avenue by which to pursue relief in the wake of this appeal.



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As she notes, the time period within which a petition to open must be filed is

not absolute or impervious to equitable considerations.

      In evaluating whether the petition to open judgment has been
      promptly filed, “[the c]ourt does not employ a bright[-]line
      test . . . . [The court focuses] on two factors: (1) the length of
      the delay between discovery of the entry of a default judgment
      [and the filing of the petition], and (2) the reason for the delay.”
      Allegheny Hydro No. 1 v. Amer. Line Builders, Inc.,
      722 A.2d 189, 193 (quoting Quatrochi v. Gaiters, 380 A.2d
      404, 407 (Pa. Super. 1977)).

Dumoff v. Spencer, 754 A.2d 1280, 1282 (Pa. Super. 2000) (citations

modified).

      While Dautrich’s failure to file her petition to open the judgment may

be her own doing, the trial court retains broad discretion to review the

reasons for the delay with an eye toward equity.       Indeed, insofar as her

arguments before this Court fundamentally appeal to this Court’s sense of

equity, they are precisely the arguments she may raise before the trial court

on remand as a basis for that court to forgive the delay.      But we will not

impinge upon the trial court’s discretion in the first instance.   Thus, while

Dautrich is not yet entirely out of court, she is out of this Court. Because

the trial court has not entered a disposition that we may review at this

juncture, we have no choice but to quash this appeal and remand.




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     Appeal quashed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2015




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