J-A11025-16


                                  2016 PA Super 133

SUSAN HORWATH AND SUSAN                           IN THE SUPERIOR COURT OF
HORWATH, EXECUTRIX OF THE ESTATE                        PENNSYLVANIA
OF ROBERT S. HORWATH, DEC’D

                            Appellant

                       v.

JUANITA DIGRAZIO AND PASQUALE
DIGRAZIO, JR.

                            Appellees                 No. 2069 EDA 2015


                   Appeal from the Order Entered April 2, 2015
              In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2013-31772


BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

OPINION BY MUNDY, J.:                                   FILED June 24, 2016

        Appellant, Susan Horwath, appeals from the April 2, 2015 order,

denying her petition to open the judgment of non pros (JNP), entered in

favor of Appellees, Juanita DiGrazio and Pasquale DiGrazio, Jr.1 After careful

review, we reverse and remand for further proceedings.

        We summarize the relevant procedural history of this case as follows.

On October 23, 2013, Appellant filed a praecipe for summons to commence

a civil action against Appellees. The praecipe was signed by Thomas Novak,

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
   We note that an order denying a petition to open a judgment is an
interlocutory appeal of right. Pa.R.A.P. 311(a)(1).
J-A11025-16


Esquire (Attorney Novak). However, no complaint was filed. On June 20,

2014, Appellees filed a praecipe for JNP pursuant to Pennsylvania Rule of

Civil Procedure 237.1 for failure to file a complaint. That same day, the trial

court’s prothonotary entered a JNP in favor of Appellees. On July 14, 2014,

Appellants filed a petition to open the JNP. The petition to open was filed by

Danielle L. Duffy, Esquire (Attorney Duffy), who represents Appellant on

appeal.    In said petition, Appellant argued that Attorney Novak effectively

abandoned her and at the time the JNP was entered, she was “in the process

of transferring representation.”2 Appellant’s Petition to Open JNP, 7/14/14,

at ¶ 8. Appellees filed their response on August 13, 2014. The trial court

heard argument on Appellant’s petition on March 25, 2015.3         On April 2,

2015, the trial court entered an order denying Appellant’s petition to open.

        Appellant filed a petition for reconsideration on April 14, 2015.   On

April 23, 2015, the trial court entered an order, expressly granting

reconsideration. On April 30, 2015, Appellees filed a response to Appellant’s

motion, to which Appellant filed a reply on May 7, 2015. On May 28, 2015,




____________________________________________
2
  We note that Appellant included a copy of the complaint she wished to file
as Exhibit D to her petition. See Pa.R.C.P. 237.3(a) (stating, “[a] petition
for relief from a [JNP] … entered pursuant to Rule 237.1 shall have attached
thereto a verified copy of the complaint or answer which the petitioner seeks
leave to file[]”).
3
    We note that Appellees did not appear at the March 25, 2015 argument.



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the trial court entered an order denying Appellant’s motion on the merits.

On June 26, 2015, Appellant filed a timely notice of appeal.4

       On appeal, Appellant raises the following issue for our review.

              1.     Did [t]he [h]onorable [t]rial [c]ourt make an
                     error of law and abuse its discretion in denying
                     [Appellant’s] [p]etition to [o]pen [JNP] initially,
                     and upon reconsideration, where:

                     a)     [Appellant’s] [p]etition to [o]pen was
                            promptly filed under the circumstances;

                     b)     [Appellant] presented a reasonable
                            explanation or legitimate excuse for the
                            failure to file a timely complaint due to
                            former counsel’s gross neglect and
                            abandonment; and

                     c)     [Appellant] presented a meritorious
                            cause of action and balancing equities
                            weighed in favor of opening the
                            judgment?

Appellant’s Brief at 4.

       We begin with our well-settled standard of review.

                     A request to open a [JNP], 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 [JNP] 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. A petition
              under Rule 3051 is the only means by which relief
____________________________________________
4
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.




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J-A11025-16


            from a [JNP] may be sought. Any appeal related to
            a [JNP] lies not from the judgment itself, but from
            the denial of a petition to open or strike. 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 [JNP].

                  A trial court’s decision to deny a petition to
            open or strike a [JNP] is scrutinized on the abuse of
            discretion standard of appellate review.

Madrid v. Alpine Mountain Corp., 24 A.3d 380, 381-382 (Pa. Super.

2011) (internal quotation marks and citations omitted), appeal denied, 40

A.3d 1237 (Pa. 2012). As the trial court stated, it denied Appellant’s petition

to open solely based on the timeliness and reasonable excuse prongs;

therefore, it is not contested that Appellant has satisfied the meritorious

cause of action prong. Trial Court Opinion, 8/21/15, at 8.

      Turning to the timeliness prong, Appellant argues that the trial court

erred when it concluded that because Appellant failed to file her petition to

open within ten days under Rule 237.3(b), the petition was untimely filed.

Appellant’s Brief at 12-15. In Appellant’s view, the standards of promptness

under Rule 3051(b)(1) governed the petition to open, and her petition was

timely under our Rule 3051 cases. Id. at 12, 15-19. Appellees counter that

Rule 237.3(b) displaces Rule 3051(b)(1) and imposes a special ten-day per

se rule. Appellees’ Brief at 10.

            In construing the Rules of [Civil] Procedure, as the
            ultimate promulgator of said Rules, it is the intent of
            our Supreme Court that controls. Commonwealth
            v. Baker, 690 A.2d 164, 167 (Pa. 1997).              In
            performing our task, we also look to the tools of

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J-A11025-16


          statutory construction. Id. In analyzing the intent
          of our Supreme Court, “the best indication of [said]
          intent is the plain language of a [rule].”
          Commonwealth v. Wilson, 111 A.3d 747, 751 (Pa.
          Super. 2015) (citations omitted). “In pursuing that
          end, we are mindful that ‘[w]hen the words of a
          [rule] are clear and free from all ambiguity, the
          letter of it is not to be disregarded under the pretext
          of pursuing its spirit.’” Id., quoting 1 Pa.C.S.A.
          § 1921(b). In addition, “‘[w]ords and phrases shall
          be construed according to rules of grammar and
          according to their common and approved usage,’
          while any words or phrases that have acquired a
          ‘peculiar and appropriate meaning’ must be
          construed according to that meaning.” Id., quoting
          1 Pa.C.S.A. § 1903(a). Also, we presume that our
          Supreme Court “does not intend a result that is
          absurd, impossible of execution or unreasonable.” 1
          Pa.C.S.A. § 1922(1).

Commonwealth v. Williams, 125 A.3d 425, 428 (Pa. Super. 2015).

     Rules 237.3 and 3051 provide in relevant part as follows.

          Rule 237.3 Relief From Judgment of Non Pros
          or by Default

          (a) A petition for relief from a [JNP] or of default
          entered pursuant to Rule 237.1 shall have attached
          thereto a verified copy of the complaint or answer
          which the petitioner seeks leave to file.

          (b) If the petition is filed within ten days after the
          entry of the judgment on the docket, the court shall
          open the judgment if the proposed complaint or
          answer states a meritorious cause of action or
          defense.

                Note: Rule 236 requires the prothonotary to
                give notice of the entry of any judgment and to
                note in the docket the giving of the notice.

                                       …


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J-A11025-16


                See Schultz v. Erie Insurance Exchange,
                505 Pa. 90, 477 A.2d 471 (1984) for the
                requirements for opening a judgment by
                default and Pa.R.C.P. 3051 as to a [JNP]. Rule
                237.3 does not change the law of opening
                judgments. Rather, the rule supplies two of
                the three requisites for opening such
                judgments by presupposing that a petition filed
                as provided by the rule is timely and with
                reasonable explanation or legitimate excuse for
                the inactivity or delay resulting in the entry of
                the judgment. The requirement of this rule for
                proceeding within ten days is not intended to
                set a standard for timeliness in circumstances
                outside this rule.

                A defendant who seeks to file a pleading other
                than an answer is not entitled to the benefit of
                this rule but must comply with the
                requirements of Schultz v. Erie Insurance
                Exchange, supra.

          Rule 3051. Relief from Judgment of Non Pros

          (a) Relief from a [JNP] 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), 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 [the JNP], and

                (3) there is a meritorious cause of action.

                      Note: See Rule 237.3 for special
                      provisions relating to relief from a [JNP]
                      entered pursuant to Rule 1037(a).

                                    -6-
J-A11025-16



                                       …

Pa.R.C.P. 237.3, 3051.

      Appellees rely in part on our Supreme Court’s decision in Simmons v.

Luallen, 763 A.2d 810, 812 (Pa. 2000), in support of their argument that

Rule 237.3(b) imposes a per se ten-day rule. Appellees’ Brief at 11, 14. In

Simmons, a JNP was entered against Simmons for her failure to file a

complaint under Rule 237.1, and Simmons filed her petition to open the

same seven days later. Simmons, supra at 810. The trial court denied the

petition to open, and this Court affirmed, concluding that under Rule

3051(b)(2), Simmons had not shown a reasonable excuse for the delay in

filing her complaint. Id. at 812.

      Our Supreme Court granted allocatur and reversed.          Specifically, it

held that in a case where a JNP is entered for failure to file a complaint, and

a petition to open is filed within ten days, Rule 3051(b)(1) “does not apply

when a [JNP] is entered because of a party’s failure to file a complaint.” Id.

Rather, Rule 237.3 applies, noting that Rule 3051 is a general rule, Rule

237.3 is a specific rule, and “the particular controls over the general[.]” Id.,

citing Pa.R.C.P. 132.    Our Supreme Court further stated, “[a]lthough Rule

237.3 does not alter the law of opening judgments as reflected in Rule

3051(b), it presupposes that a petition to open filed within the ten-day

period is timely or prompt and that a reasonable explanation or excuse for

the delay exists.” Id.; see also Kruis v. McKenna, 790 A.2d 322, 326 (Pa.

                                     -7-
J-A11025-16


Super. 2001) (stating, “where a [JNP] has been entered by the prothonotary

for a plaintiff’s failure to file a timely complaint, Rule 237.3(b) excuses a

petitioner from establishing the first two prongs of that standard, where the

petitioner filed a petition to open the [JNP] within ten days from the date the

[JNP] was entered[]”).

            [Rule 237.3] serves the salutary purpose of avoiding
            “snap judgments” and easing the procedural burdens
            of a party who promptly moves to open the
            judgment. Indeed, relaxing the burden of proof by
            presuming that a legitimate excuse for the delay
            exists is appropriate in this context, since the delay
            is not lengthy. By contrast, a [JNP] entered due to
            inactivity in prosecuting a claim often involves longer
            delay, which more directly implicates the equitable
            principle underlying the grant of a [JNP], namely, the
            injustice of permitting the assertion of a claim after a
            lengthy inexcusable delay that visits prejudice upon
            the defendant.

Simmons, supra at 812-813.           Therefore, because Simmons filed her

petition to open within Rule 237.3(b)’s ten-day period, the specific rule

applied. Accordingly, pursuant to Rule 237.3(b), it is presumed there was a

reasonable excuse for Simmons not filing her complaint sooner, and the

reasonable excuse analysis of Rule 3051(b)(2) was not required.

      After careful review, we reject Appellees’ contention that Appellant’s

petition was untimely because it was not filed within Rule 237.3(b)’s ten-day

period. We acknowledge that Simmons stated that Rule 3051(b) “does not

apply” to a JNP entered pursuant to Rule 237.1. Simmons, supra at 812.

However, the procedural posture of Simmons, where the petition to open


                                     -8-
J-A11025-16


was timely filed under Rule 237.3(b), is critical to our resolution of the

instant appeal.   Our Supreme Court made it clear in Simmons, that Rule

3051(b)(2)’s analysis of reasonable excuse was not necessary when the

petition to open was filed within the ten-day period of Rule 237.3(b).           As

noted above, our Supreme Court’s intent in promulgating Rule 237.3(b) was

to “eas[e] the procedural burdens of a party who promptly moves to open

the judgment.”    Id.   That is, Rule 237.3(b) dispenses with the reasonable

excuse requirement of Rule 3051(b)(2) when a petition to open a JNP is filed

within ten days of the same. Rule 237.3 was not intended to, as Appellees

aver, foreclose all petitions to open filed after ten days.       Such a reading

would not “eas[e] … procedural burdens” but rather it would aggravate

them. Id.

      The text of Rule 3051(b)(1) states a general prescription of timeliness

for petitions to open. However, when the two rules are read together, we

conclude Rule 237.3(b) only displaces Rule 3051(b) for petitions filed “within

ten days after the entry of the judgment on the docket[.]”               Pa.R.C.P.

237.3(b).   This gives effect to all of the provisions of both Rules, 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. See generally Penn-Delco Sch. Dist. v. Bell-

Atlantic-Pa., Inc., 745 A.2d 14, 17 n.4 (Pa. Super. 1999), appeal denied,

795 A.2d 978 (Pa. 2000).       This is consistent with the note to Rule 237.3,

which states that Rule 237.3(b) “presuppos[es] that a petition filed as


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J-A11025-16


provided by the rule is timely” and that “Rule 237.3 does not change the law

of opening judgments.” Pa.R.C.P. 237.3, note. Therefore, it follows that a

petition filed outside the Rule 237.3(b) period is not untimely, rather it is

merely not presumed to be timely.5                 We therefore decline Appellees’

invitation to elevate Rule 237.3(b)’s status from a specific rule to a bright-

line rule.

         In this case, Appellant filed her petition to open 24 days after the JNP

was entered.       Under our cases construing Rule 3051(b)(1), Appellant’s

petition was timely under the circumstances.           See Myers v. Wells Fargo

Bank, N.A., 986 A.2d 171, 176 (Pa. Super. 2009) (noting that one month or

less between the entry of judgment and the filing of a petition to open

typically meets the time requirement for “prompt filing”), quoting Casting

Condos. Ass’n, Inc. v. Klein, 663 A.2d 220, 223 (Pa. Super. 1995). Based

on these considerations, we conclude that Appellant’s petition was timely

filed.




____________________________________________
5
   This is also consistent with Illustration 6 in Rule 237.3’s explanatory
comment. Illustration 6 states that if “a petition to open the judgment [is
filed] more than ten days after the date of entry of the judgment on the
docket[, t]he petition to open is not within the scope of Rule 237.3(b)[,
rather the party] must proceed pursuant to case law and meet the standards
of Schultz v. Erie Ins. Exch., 477 A.2d 471 (Pa. 1984).” Pa.R.C.P. 237.3,
cmt. (parallel citation omitted). Although Schultz predates Rule 3051, it
contains the same three-prong requirements as contained in Rule 3051(b).
See Schultz, supra at 472.



                                          - 10 -
J-A11025-16


      Turning to the reasonable excuse prong of Rule 3051(b)(2), Appellant

avers that the “gross negligence and abandonment” of Attorney Novak

satisfied her burden for this prong. Appellant’s Brief at 10. Appellant relies

on this Court’s decision in Esslinger v. Sun Ref. & Mktg. Co., 549 A.2d

600 (Pa. Super. 1988).

      In Esslinger, Esslinger began an action by filing “a praecipe for

summons against various defendants[.]”       Id. at 602.   Almost five months

later, one defendant, Baker, filed a “Rule to File Complaint[.]”      Id.   No

complaint was filed and a JNP was entered on praecipe approximately three

and one-half months later.

      Esslinger filed a petition to open the JNP 15 months later, which the

trial court granted, concluding, relevant to the instant case, that Esslinger

“reli[ed] on her counsel’s representations that the lawsuit was being

diligently pursued; the fact that Esslinger was not aware of the demand that

a complaint be filed until well after she became aware of the [JNP]; and the

fact that after she became aware of the real status of the case, Esslinger

retained new counsel, who filed a petition to open the [JNP].” Id. at 603.

This Court affirmed the trial court’s granting the petition to open.

Specifically, we concluded that the petition to open, filed 15 months after

the JNP was entered was timely, and Esslinger had a reasonable excuse.

            While it is true that a litigant is generally bound by
            the actions or inactions of his/her counsel, a litigant
            placing his/her case in the hands of a reputable
            counsel should not be turned out of court if the delay

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J-A11025-16


            complained of was almost entirely on account of the
            neglect or oversight of counsel. White v. Alston,
            331 A.2d 765 (Pa. Super. 1974); Poluka v. Cole,
            295 A.2d 132 (Pa. Super. 1972). Attorney neglect
            may provide a sufficient basis on which to justify a
            party’s failure to respond to process, particularly
            where there have been no negotiations or attempts
            by the opposing party to draw the attention of
            counsel to the case. Buxbaum v. Peguero, 484
            A.2d 137 (Pa. Super. 1984). “In fact, pertinent case
            law reveals that the power to open judgment should
            be exercised when the default is the result of
            oversight or mistake by counsel.”        Versak[ v.
            Washington,] 519 A.2d [438,] 441 [(Pa. Super.
            1986)], citing Commonwealth Department of
            Transportation v. Nemeth, 442 A.2d 689, 691 (Pa.
            1982). While it does appear from the record that
            some correspondence took place between Esslinger’s
            counsel and that of the various defendants (including
            Baker) with respect to the course of the litigation,
            nothing on the record indicates that knowledge of
            this correspondence could be attributed to Esslinger.

Id. (parallel citations omitted).

      We conclude Esslinger controls the resolution of this case. The record

reveals that Attorney Novak filed routine praecipes to reissue the writ of

summons, but did not take any further substantive action to advance

Appellant’s interests.         The record also shows that Appellant, through

Attorney Duffy, attempted for months to change representation.                   The

certified record also contains multiple attempts by Attorney Duffy to obtain

the case file and learn of the status of the case.           Attorney Duffy first

informed Attorney Novak through a letter dated April 23, 2014, that

Appellant had retained her to take over the case and requested that he send

her   the   case   file   as    soon   as   possible.   Appellant’s   Petition   for

                                        - 12 -
J-A11025-16


Reconsideration, 4/14/15, Exhibit F-A, at 1.6         When that request went

unanswered, Attorney Duffy sent an e-mail to Attorney Novak on May 19,

2014, requesting he contact her to transfer Appellant’s case file.        Id. at

Exhibit F-B, at 1. Attorney Duffy received the case file on June 17, 2014.

Id. at Exhibit F, at 2.       As the trial court noted, Attorney Novak did not

withdraw his appearance even up to the entering of the order on appeal,

despite Attorney Duffy mailing a praecipe for withdrawal of appearance to

Attorney Novak, that went unsigned.7 Id. at Exhibit F-C, at 1.

       As we cautioned in Esslinger, “a litigant placing his/her case in the

hands of a reputable counsel should not be turned out of court if the delay

complained of was almost entirely on account of the neglect or oversight of

counsel.” Esslinger, supra at 603. The complete lack of action on the part

of Attorney Novak, combined with Appellant’s documented efforts to get in

touch with Attorney Novak in an effort to move the case forward, supports

Appellant’s position that she had been abandoned by counsel.

       Appellees cite to a few of our cases that predate Esslinger, which

state that a JNP should not be opened due to counsel’s “mistake, oversight,

neglect, mere confusion or inadvertence[.]”        Appellees’ Brief at 18, citing

Perri v. Broad St. Hosp., 478 A.2d 1344, 1347 (Pa. Super. 1984);
____________________________________________
6
   We refer to the Exhibit A within Exhibit F as “Exhibit F-A” for the
convenience of the reader.
7
  Appellees do not dispute these efforts by Attorney Duffy. Appellees’ Brief
at 22.



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Corcoran v. Fiorentino, 419 A.2d 759, 762 (Pa. Super. 1980); St. Joe

Paper Co. v. Marc Box Co., Inc., 394 A.2d 1045, 1047 (Pa. Super. 1978);

Dupree v. Lee, 361 A.2d 331, 335 (Pa. Super. 1976).          However, as we

have explained above, the record reveals more than a mere mistake or

oversight.   Therefore, consistent with Esslinger, Appellant has shown “a

reasonable explanation or legitimate excuse” for her failure to file a

complaint. Pa.R.C.P. 3051(b)(2). As a result, Appellant has satisfied both of

the disputed prongs of Rule 3051(b) and is entitled to relief on appeal.

      Based on the foregoing, we conclude the trial court abused its

discretion when it denied Appellant’s petition to open the JNP. See Madrid,

supra. Accordingly, the trial court’s April 2, 2015 order is reversed, and the

case is remanded for further proceedings, consistent with this opinion.

      Order reversed. Case remanded. Jurisdiction relinquished.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/24/2016




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