J-A15033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NELLIE M. NORMAN                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

HOSPITAL OF THE UNIVERSITY OF
PENNSYLVANIA,
AND JENNIFER TOBEY, M.D., AND BRIAN
CZERNIECKI, M.D.

                            Appellee                No. 1833 EDA 2015


                  Appeal from the Order Entered May 19, 2015
             In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): November Term, 2010 No. 01888


BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED AUGUST 16, 2016

       Appellant Nellie M. Norman appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas on May 19, 2015, which

denied her petition to open, vacate or strike the order entered on August 9,

2012 granting Appellees’1 motion to strike her certificates of merit and enter

judgment of non pros in favor of HUP. After careful review, we affirm.




____________________________________________


1
  Named Appellees include the Hospital of the University of Pennsylvania
(“HUP”), Jennifer Tobey, M.D., and Brian Czerniecki, M.D. However, this
appeal is only from the order denying Appellant’s petition to strike the
judgment of non pros entered in favor of HUP.
J-A15033-16


       This Court set forth the following procedural and factual history in a

previous appeal as follows:2

          On November 12, 2010, [Appellant] filed a writ of
          summons against [HUP], Jennifer Tobey, M.D., and Brian
          Czerniecki, M.D. (collectively, Defendants). On April 15,
          2011, [Appellant] filed a complaint against Defendants
          (without certificates of merit) claiming a breach of the
          standard of care in failing to properly locate and mark
          cancerous masses prior to her breast surgery. In her
          complaint, [Appellant] asserts counts of medical
          negligence as well as “ordinary negligence” arising from
          her November 14, 2008, admission and surgery.
          [Appellant] describes the ordinary negligence as
          Defendants’ failure to remove all the cancerous cells during
          the first surgery. Specifically, in her complaint, [Appellant]
          averred that a cytology report revealed the presence of a
          two-centimeter adenocarcinoma in her left breast; and
          that in a preoperative procedure, Defendant Tobey failed
          to properly “wire-mark” the location of the two masses
          that were to be excised. [Appellant] further averred that
          Defendant Czerniecki performed the surgery on November
          14, 2008, at Defendant HUP and did not excise the
          cancerous auxiliary lymph node (adenocarcinoma).
          Instead, [Appellant] contends that he removed a “clump”
          of normal, noncancerous left breast lymph node tissue. As
          a result, on January 15, 2009, [Appellant] underwent a
          second surgical procedure, performed by Defendant
          Czerniecki, to remove the remaining cancerous tissue in
          her left breast.

          On June 8, 2011, [Appellant] filed a motion to extend the
          time to file certificates of merit.8 Defendants did not
          oppose the motion and by Order dated July 7, 2011, the
          Honorable Allan L. Tereshko granted [Appellant]’s motion.
____________________________________________


2
  Appellant’s previous appeal was from an order denying her petition to
open, vacate, or strike the judgment of non pros entered in favor of the
individual physician defendants. Appellant named HUP as a defendant and
appellant, however, this Court affirmed the order denying her petition as it
related to the doctors only.



                                           -2-
J-A15033-16


          Accordingly, the certificates of merit became due by
          August 15, 2011.
              8
                Pursuant to Pennsylvania Rule of Civil Procedure
              (Pa.R.C.P.) 1042.3, a plaintiff must file either with
              the complaint or within sixty (60) days after filing
              the complaint, a certificate of merit.

          On August 17, 2011, Defendants filed notice of intent to
          enter judgment of non pros for failure to file certificates of
          merit in support of [Appellant]’s allegations.

          On September 7, 2011, [Appellant] filed a second motion
          to extend time to file certificates of merit. In their
          response filed on September 26, 2011, Defendants
          opposed the motion on the basis of untimeliness and lack
          of merit.

          In the interim, on September 23, 2011, [Appellant] filed a
          certificate of merit against each Defendant essentially
          asserting that expert witnesses were not necessary since
          her claims were of “ordinary negligence” only.[3]

          On September 29, 2011, [Appellant] filed her first appeal
          to the Superior Court challenging an Order issued by Judge
          Tereshko dated September 20, 2011, which denied a
          discovery motion to strike Defendants’ objection to
          disclose certain requested documents. This appeal was
          subsequently quashed on February 3, 2012, by the
          appellate court at 2774 and 2795 EDA 2011.11
              11
                On July 9, 2012, the Supreme Court at 56 EM
              2012 denied [Appellant]’s petition for review.



____________________________________________


3
  These “certificates of merit” merely stated that she did not need to file
certificates of merit because her claims sounded in ordinary negligence.
However, in these “certificates of merit,” she purported to reserve her right
“to timely file certificates of merit… as to… professional liability, medical
negligence…claims.”      See Certificate of Merit as to HUP, 9/23/2011;
Certificate of Merit as to Jennifer Tobey, M.D., 9/23/2011; Certificate of
Merit as to Brian Czerniecki, M.D., 9/23/2011.



                                           -3-
J-A15033-16


          By order dated September 30, 2011, Judge Tereshko
          denied [Appellant]’s second motion to extend time to file
          the certificates of merit.

          This matter was marked deferred from October 27, 2011,
          until May 25, 2012, pending [Appellant]’s appeal. Once the
          appeal was quashed, the matter was returned to active
          status.

          On June 6, 2012, a revised case management order was
          issued designating deadlines for significant events. On that
          same date, Defendants filed a motion to strike
          [Appellant]’s certificates of merit. Said motion was granted
          by [the] motion judge by Order dated July 2, 2012.

          On July 11, 2012, Defendants Tobey and Czerniecki filed
          their praecipe for entry of non pros based upon
          [Appellant]’s failure to file certificates of merit against
          them within the time period required by Pa.R.C.P. 1042.3.

          On July 12, 2012, Defendant HUP filed a motion to strike
          the certificate of merit [Appellant] filed against it.

          On July 13, 2012, [Appellant] filed another certificate of
          merit against Defendant HUP only[4, 5]; and two appeals to
____________________________________________


4
 This certificate of merit included an expert report from George G. Kuritz,
M.D.
5
  This Court inserted the following footnote in the previous appeal. The
footnote explains why Appellant can now appeal her issue as it regards her
medical negligence claims:

          [Footnote 2] This certificate of merit included an expert
          report from George G. Kuritza, M.D. (See RR at 303a.) At
          oral argument, appellant argued that the trial court abused
          its discretion in refusing to accept Dr. Kuritza’s report.
          However, the instant appeal is from denial of appellant’s
          petition to open/strike judgment of non pros entered for
          defendants Tobey and Czerniecki only, and does not
          involve appellant’s July 13, 2012 certificate of merit filed
          with regard to defendant HUP. Accordingly, whether or not
          the trial court should have accepted appellant’s July 13,
(Footnote Continued Next Page)


                                           -4-
J-A15033-16


          the Superior Court challenging the July 2, 2012 Order;
          appeals identified as Superior Court docket numbers 2039
          and 2040 EDA 2012.

          On July 21, 2012, [Appellant] filed a motion for
          reconsideration of the Order of July 2, 201[2], which
          struck the certificates of merit. The motion to reconsider
          was denied on July 31, 2012.

          On July 23, 2012, [Appellant], relying on Pa.R.C.P.
          1042.3(a)(3), filed a petition to open, vacate, or strike
          Defendants’ entry of judgment of non pros arguing again
          that the averments in her medical malpractice complaint
          were of “ordinary negligence” and did not necessitate
          expert testimony. [Appellant]’s petition was denied by
          Order dated August 17, 2012.

          In the interim, by Order dated August 9, 2012, the…
          motion judge granted Defendant HUP’s motion to strike
          the certificate of merit [Appellant] filed on July 2, 2012,
          against it, and entered an order of judgment of non pros
          as to all claims against Defendant HUP.

          On August 23, 2012, [Appellant] filed another appeal to
          the Superior Court challenging the Order of August 9,
          2012; appeal identified as 2569 EDA 2012.[6]



                       _______________________
(Footnote Continued)

          2012 certificate of merit containing Dr. Kuritza’s expert
          report is not before this court. According to appellees, the
          matter has been stayed pending appeal and the trial court
          has not yet ruled on appellant’s petition to open or strike
          judgment of non pros entered on behalf of defendant HUP.
          (Appellees’ brief at 8.)

Norman v. HUP, 2819 EDA 2012, filed June 12, 2014, at 4, n. 2.
6
  “On September 14, 2012, [Appellant] filed a petition to open, vacate or
strike the order dated August 9, 2012 by the Honorable Nitza I. Quinones
Alejandro. After the case was removed from deferred status, [the trial
court] denied the petition on May 19, 2015.” Trial Court Pa.R.A.P. 1925(a)
Opinion, filed November 19, 2015.



                                            -5-
J-A15033-16


        On September 23, 2012, [Appellant] filed another appeal
        challenging the Order of August 17, 2012; appeal
        identified as 2819 EDA 2012.

        By Order of the Superior Court dated September 17, 2012,
        [Appellant]’s appeal designated as 2040 EDA 2012 was
        dismissed for failure to comply with Pennsylvania Rule of
        Appellate Procedure (Pa.R.A.P.) 3517, requiring the filing
        of a docketing statement. Subsequently, appeals identified
        at 2039 and 2569 EDA 2012 were dismissed by Per Curiam
        decision; to wit:

           These appeals have been taken from the July 2,
           2012 order granting the defendants’ motion to strike
           the plaintiff’s certificates of merit and the August 9,
           2012 order granting the motion of the [HUP] to
           strike certificate of merit and entering a judgment of
           non pros. See Pa.R.A.P. 3051(a) (relief from
           judgment of non pros shall be sought by petition;
           see also Sahutsky v. H.H. Knoebel & Sons, 782
           A.2d 996 (Pa.2001) (failure to file petition to open
           non pros operates as waiver of any claims of error
           concerning the judgment); Madrid v. Alpine
           Mountain Corp., 24 A.3d 380 (Pa. Super. 2001)
           (any appeal related to judgment of non pros lies not
           from judgment itself, but from denial of petition to
           open or strike; failure to file timely or rule-compliant
           petition to open or strike operates as waiver of any
           right to address issues concerning the underlying
           judgment of non pros); Krell v. Silver, 817 A.2d
           1097 (Pa.Super.2003) (failure to file petition to
           open/strike judgment of non pros resulted in waiver
           of all claims on appeal).

           Accordingly, the appeals at Nos. 2039 and 2569 EDA
           2012, are hereby DISMISSED.17
              17
                  Per Curiam, Nos. 2039, 2569 EDA 2012,
              filed on November 19, 2012.

Norman v. HUP, 2819 EDA 2012, filed June 12, 2014 (quoting Trial Court

Pa.R.A.P. 1925(a) Opinion, filed January 24, 2013, at 1-5) (additional

footnotes omitted).


                                    -6-
J-A15033-16


       On June 12, 2014,7 this Court affirmed the August 17, 2012 order

denying her petition to open and or strike judgment of non pros entered on

behalf of Drs. Tobey and Czerniecki. On May 19, 2015, the trial court denied

Appellant’s September 14, 2012 petition to open, vacate or strike the August

9, 2012 order.          On June 17, 2015, Appellant filed a motion for

reconsideration of the court’s May 19, 2015 order. Appellant filed a notice of

appeal on June 18, 2015.8

       Appellant raises the following 16 issues for our review:


          A. WHETHER THE COURT ERRED AND ABUSED ITS
          DISCRETION WHEN IT ENTERED ITS JUDGMENTS
          DENYING APPELLANT’S MOTION TO OPEN, STRIKE
          AND/OR VACATE THE COURT’S ORDER GRANTING [HUP’s]
          MOTION TO STRIKE [APPELLANT’S] CERTIFICATES OF
          MERIT AND ENTERING [HUP’s] JUDGMENT OF NON PROS,
____________________________________________


7
  In its Pa.R.A.P. 1925(a) Opinion, filed 11/19/15, the trial court states that
this Court affirmed the order on January 14, 2015, and that the matter was
returned to active status at that point. In fact, our decision was filed on
June 12, 2014.
8
  During the pendency of this appeal, Appellant filed a third petition to open,
vacate or strike the order. After a hearing on August 28, 2015, the court
denied Appellant’s third petition to open, vacate or strike the order and her
motion for reconsideration on August 31, 2015. On September 29, 2015,
Appellant filed a notice of appeal from the August 31, 2015 order. This was
docketed at 3004 EDA 2015. On November 4, 2015, this Court consolidated
the appeals sua sponte. On December 10, 2015, this Court granted HUP’s
motion to quash the appeal at 3004 EDA 2015, because the denial of
reconsideration is generally not subject to review on appeal See Cheathem
v. Temple Univ. Hosp., 743 A.2d 518 (Pa.Super.1999); Goodman By
Goodman v. Pizzutillo, 682 A.2d 363 (Pa.Super.1996).




                                           -7-
J-A15033-16


       IN NON-CONFORMITY WITH PA.R.C.P. 1042.7(A)(2) AND
       “OFFICIAL   NOTE”    AND     PA.R.C.P.  3051,  AND
       INCONSISTENTLY WITH MOORE V. LUCHSINGER, 862
       A.2D 631 ([PA.SUPER.]2004), AND HELFRICK V. UPMC
       SHADYSIDE HOSPITAL, 64 PA. D. & C. 4TH 129, 2003
       PA. DIST. & CNTY. DEC. LEXIS 181, AND WHERE
       [APPELLANT’S] JULY 13, 2012 CERTIFICATE OF MERIT AS
       TO [HUP’S] PROFESSIONAL LIABILITY AND MEDICAL
       NEGLIGENCE WAS FILED PRIOR TO THE AUGUST 9, 2012
       ENTRY OF [HUP’S] JUDGMENT OF NON PROS, AND WHERE
       APPELLANT HAD PREVIOUSLY SECURED A JULY 11, 2012
       WRITTEN MEDICAL EXPERT OPINION CITING SAID [HUP’S]
       PROFESSIONAL LIABILITY AND MEDICAL NEGLIGENCE?

       B. WHETHER THE [TRIAL] COURT ERRED AND ABUSED
       ITS DISCRETION WHEN IT ENTERED ITS JUDGMENTS
       DENYING APPELLANT’S MOTION TO OPEN, STRIKE
       AND/OR VACATE THE COURT’S ORDER GRANTING [HUP’S]
       MOTION TO STRIKE [APPELLANT’S] JULY 13, 2012
       CERTIFICATE OF MERIT IN CORPORATE NEGLIGENCE,
       RESPONDIAT SUPERIOR AND VICARIOUS LIABILITY AND
       ENTERING    [HUP’S]   JUDGMENT     OF   NON   PROS,
       INCONSISTENTLY WITH MOORE V. LUCHSINGER, 862
       A.2D 631 ([PA.SUPER.]2004), AND HELFRICK V. UPMC
       SHADYSIDE HOSPITAL, 64 PA. D. & C. 4TH 129, 2003
       PA. DIST. & CNTY. DEC. LEXIS 181, WHERE
       [APPELLANT’S] JULY 13, 2012 CERTIFICATE OF MERIT AS
       TO [HUP’S] CORPORATE NEGLIGENCE, RESPONDIAT
       SUPERIOR AND VICARIOUS LIABILITY WAS FILED PRIOR
       TO ENTRY OF [HUP’S] AUGUST 9, 2012 JUDGMENT OF
       NON PROS[?]

       C. WHETHER DEFENDANTS ARE REQUIRED TO PRODUCE
       ADMINISTRATIVE AND HOSPITAL RECORDS (E.G.,
       HOSPITAL GUIDELINES, OPERATING AND REPORT-
       WRITING   PROCEDURES,  EMPLOYEE   QUALIFICATION
       RECORDS, AS WELL AS, HIRING, TRAINING AND
       SUPERVISING REQUIREMENTS AND GUIDELINES), WHICH
       APPELLANT PREVIOUSLY REQUESTED IN HER REQUEST
       FOR PRODUCTION OF DOCUMENTS, AND WHICH ARE
       NEEDED TO SECURE [APPELLANT’S] CERTIFICATES OF
       MERIT (WHICH ARE REQUIRED OF PLAINTIFF WITHIN
       SIXTY DAYS OF FILING PLAINTIFFS COMPLAINT)
       REGARDING    [HUP’S]  CORPORATE     NEGLIGENCE,
       RESPONDIAT SUPERIOR AND VICARIOUS LIABILITY AND

                              -8-
J-A15033-16


       ARE NEEDED FOR EXPERT MEDICAL OPINIONS AND TO
       PROSECUTE APPELLANT'S CLAIMS?

       D. WHETHER THE [TRIAL] COURT ERRED WHEN IT FAILED
       TO    DISCLOSE    THE    PARTNERSHIP/SHAREHOLDER
       ASSOCIATION THE [TRIAL COURT] JUDGE’S WIFE SHARED
       WITH THE DEFENDANTS’ LAWYER’S LAW FIRM, SINCE THE
       [TRIAL COURT’S] SUBSEQUENT JUDGMENTS AND ORDERS
       WERE ENTERED ALL IN DEFENDANTS’ FAVOR, WITHOUT
       REASON, AND AGAINST [APPELLANT], AND ALL WERE
       EITHER    IN    NON-CONFORMITY    WITH    VARIOUS
       PROVISIONS OF RULE 1042 (I.E., 1042.5, 1042.(3)(D),
       1042.7(A)(2) AND 3051), AND/OR WERE INCONSISTENT
       WITH THE APPLICABLE PENNSYLVANIA SUPERIOR AND
       SUPREME COURT RULINGS[?]

       E. WHETHER THE [TRIAL]    COURT ERRED WHEN IT
       ALLOWED THE DEFENDANTS TO BENEFIT FROM PARTIAL
       AND FAVORED JUDGMENTS AND ORDERS WHILE THERE
       EXISTED A NON-DISCLOSED RELATIONSHIP BETWEEN
       THE SITTING JUDGE-JUDGE ALLEN TERESHKO’S SPOUSE,
       HEATHER TERESHKO, BEING A PARTNER AND/OR
       SHAREHOLDER IN THE DEFENDANTS’ ATTORNEY’S LAW
       OFFICE - CHRISTIE PABARUE - AT THE VERY MOMENT
       [APPELLANT]’S MOTIONS TO COMPEL PRODUCTION OF
       NEEDED RECORDS AND TO BE GRANTED AN EXTENSION
       TO GET NEEDED RECORDS, WAS UNFAIRLY DENIED BY
       JUDGE TERESHKO, WITHOUT REASON, IN DEFENDANTS’
       FAVOR[?]

       F. WHETHER THE [TRIAL]    COURT ERRED WHEN IT
       ENTERED A DISCOVERY COURT ORDER THAT DENIED
       [APPELLANT]   PRODUCTION     OF    THE     NEEDED
       ADMINISTRATIVE AND MEDICAL RECORDS THAT WOULD
       ENABLE [APPELLANT] TO TIMELY SECURE [APPELLANT]’S
       EXPERT   MEDICAL   OPINION   AND   THE    MEDICAL
       MALPRACTICE CERTIFICATES OF MERIT, IN NON
       CONFORMITY WITH DISCOVERY RULES 4001-4009 AND
       1042.5, AND IN DEFENDANTS’ FAVOR, WHILE THE
       JUDGE’S WIFE WAS A SHAREHOLDER AND/OR PARTNER
       AT THE DEFENDANTS’ ATTORNEY’S LAW OFFICE[?]

       G. WHETHER THE [TRIAL]    COURT ERRED WHEN IT
       UNFAIRLY DENIED [APPELLANT]’S SECOND MOTION TO
       EXTEND TIME FOR CERTIFICATES OF MERIT, IN NON


                              -9-
J-A15033-16


       CONFORMITY WITH PA. R.C.P. 1042.3(D) AND DISCOVERY
       RULES 4001-4009 AND 1042.5, IN DEFENDANTS’ FAVOR,
       WHILE THE JUDGE’S WIFE WAS A SHAREHOLDER AND/OR
       PARTNER AT THE DEFENDANTS’ ATTORNEY’S LAW OFFICE,
       SO AS TO UNFAIRLY ENABLE DEFENDANTS’ JUDGMENTS
       OF NON PROS[?]

       H. WHETHER THE [TRIAL] COURT ERRED WHEN IT RULED
       THAT [APPELLANT]’S MANY FILINGS AND EFFORTS TO GET
       THE NEEDED MEDICAL RECORDS TO TIMELY SECURE
       [APPELLANT]’S EXPERT OPINION AND [CERTIFICATES OF
       MERIT], INCLUDING, BUT NOT LIMITED TO THE APPEALS
       TAKEN BY [APPELLANT] TO OBTAIN SUCH RECORDS,
       CONSTITUTED A “DELAY” AND “INACTIVITY” UNDER RULE
       3051(B), FOR THE PURPOSE OF THE [TRIAL] COURT’S
       UNFAIRLY DENYING PLAINTIFF’S MOTIONS TO OPEN,
       VACATE AND/OR STRIKE JUDGMENTS OF NON PROS, AS
       TO [APPELLANT’]S JULY 13, 2012 [CERTIFICATE OF
       MERIT], AND THE RELATED MEDICAL MALPRACTICE,
       PROFESSIONAL LIABILITY AND CORPORATE LIABILITY
       CLAIMS, AS AGAINST THE HOSPITAL, IN DEFENDANTS’
       FAVOR[?]

       I. WHETHER THE [TRIAL]      COURT ERRED WHEN IT
       UNFAIRLY REFUSED TO OPEN AND/OR VACATE ITS
       JUDGMENTS OF NON PROS AS TO [APPELLANT]’S JULY 13,
       2012 CERTIFICATE OF MERIT REGARDING [HUP’S]
       MEDICAL    MALPRACTICE,    PROFESSIONAL   LIABILITY,
       CORPORATE      NEGLIGENCE,    VICARIOUS   LIABILITY,
       RESPONDIAT SUPERIOR AND RES IPSA LOQUITUR
       CLAIMS, SINCE SAID [CERTIFICATE OF MERIT] WAS FILED
       PRIOR TO DEFENDANTS’ AUGUST 9, 2012, AUGUST 17,
       2012 AND MAY 19, 2015 JUDGMENTS OF NON PROS, AND
       [APPELLANT]’S [CERTIFICATE OF MERIT] WAS SUPPORTED
       BY A JULY 11, 2012 WRITTEN EXPERT MEDIAL OPINION BY
       GEORGE KURITZ, M.D. REGARDING [APPELLANT]’S
       MEDICAL MALPRACTICE, PROFESSIONAL LIABILITY AND
       CORPORATE NEGLIGENCE CLAIMS[?]

       J. WHETHER THE [TRIAL] COURT ERRED IN STRIKING
       [APPELLANT]’S [CERTIFICATES OF MERIT], THEREBY
       CIRCUMVENTING RULE 1042.7(A)(2) AND ENABLING
       DEFENDANTS TO DOCKET JUDGMENTS OF NON PROS
       AFTER [APPELLANT] HAD FILED HER CERTIFICATES OF
       MERIT IN ACCORDANCE WITH THE PROVISIONS OF RULES

                              - 10 -
J-A15033-16


       1042.3(D) AND 1042.7(A)(2) & (NOTE), WHERE THE
       LEGISLATURE FAILED TO PROVIDE THE [TRIAL COURT]
       AUTHORITY TO DO SO, WITHIN THE PROVISIONS OF RULE
       1042[?]

       K. WHETHER THE [TRIAL] COURT ERRED WHEN IT
       ENTERED ITS MAY 19, 2015 ORDER DENYING
       [APPELLANT]’S MOTION TO OPEN, VACATE AND/OR
       STRIKE JUDGMENTS OF NON PROS, UNDER THE ABOVE -
       STATED CIRCUMSTANCES[?]

       L. WHETHER THE [TRIAL] COURT ERRED WHEN IT
       ENTERED ITS EX PARTE, IN CAMERA MAY 19, 2015
       “NONINVOLVEMENT DISPOSITION ORDER”, IN FAVOR OF
       DEFENDANTS, WITHOUT A MOTION REQUESTING SAID
       ORDER FROM DEFENDANTS, WITHOUT PRIOR NOTICE OF
       SAID ORDER TO [APPELLANT], NOR [APPELLANT]’S
       OPPORTUNITY TO RESPOND TO ANY MOTION AND BEFORE
       PLAINTIFFS THIRTY (30) DAY, RULE 341, APPEAL PERIOD
       EXPIRED[?]

       M. WHETHER THE [TRIAL] COURT ERRED WHEN IT
       ENTERED ITS MAY 19, 2015 ORDER UNFAIRLY GRANTING
       DEFENDANTS A RE-DOCKETED JUDGMENT OF NON
       PROS[?]

       N. WHETHER THE [TRIAL] COURT ERRED WHEN IT
       ENTERED ALL THE ABOVE-DESCRIBED ORDERS AND
       JUDGMENTS IN NON-CONFORMITY WITH PA.R.C.P.
       1042.5, 1042.3(D), 1042.7(A)(2)(NOTE) AND 3051, AND
       INCONSISTENTLY WITH APPLICABLE PENNSYLVANIA
       SUPERIOR COURT AND SUPREME COURT CASES, TO WIT:
       MOORE V. LUCHSINGER, 862 A.2D 631 (PA.SUPER.
       2004), BOURNE V TEMPLE UNIVERSITY HOSPITAL, ET
       AL, 932 A.2D 11 [PA.SUPER.2007)]., WOMER V
       HILLIKER, 908 A.2D 269 ([PA.2006), FRENCH V
       COMMONWEALTH          ASSOC.,     980   A.2D    623
       [(PA.SUPER.2009)], BOYD V. CHELTENHAM YORK
       ROAD NURSING AND REHABILITATION CENTER,
       INC., CCP, PHILADELPHIA, APRIL TERM, 2003, NO. 1243
       (BERNSTEIN, J.), AND WHITSEL V. COMMONWEALTH,
       DEPARTMENT OF TRANSPORTATION, PICS CASE NO.
       05-1909 (C.P. DAUPHIN OCT. 26, 2005) (KLEINFELTER
       J.)[?]



                              - 11 -
J-A15033-16


         O. WHETHER THE [TRIAL COURT’S] ENTRY OF JUDGMENTS
         OF NON PROS, WAS AN ABUSE OF DISCRETION, BASED
         UPON     THE    [TRIAL    COURT’S]     “...MANIFEST
         UNREASONABLENESS, PARTIALITY, PREJUDICE, BIAS, ILL-
         WILL AND/OR LACK OF SUPPORT AS TO BE CLEARLY
         ERRONEOUS”, AS A RESULT OF THE NON-DISCLOSED
         POSITION HELD BY THE JUDGE’S WIFE IN DEFENDANT’S
         ATTORNEYS LAW FIRM -- CHRISTIE PABARUE -- DURING
         THE LITIGATION OF PLAINTIFF’S CASE, GIVING UNFAIR
         FAVORITISM TO DEFENDANTS[?]

         P. WHETHER THE [TRIAL COURT] ERRED AND VIOLATED
         [APPELLANT]’S STATE AND FEDERAL CONSTITUTIONAL
         RIGHTS TO DUE PROCESS WHEN IT STRUCK PLAINTIFF’S
         2012 CERTIFICATES OF MERIT, IN DEFENDANTS’ FAVOR,
         WITHOUT PRE-MARCH 20, 2013 AUTHORITY TO DO SO,
         AND ENTERED ORDERS OF JUDGMENTS OF NON PROS,
         WITHOUT EXPRESS AUTHORITY TO DO SO WITHIN THE
         PROVISIONS OF RULE 1042?

Appellant’s Brief at 2-4.

      Preliminarily, this appeal, taken from the May 19, 2015 order, which

was entered on the docket on May 21, 2015, and which denied Appellant’s

petition to open, vacate or strike judgment of non pros, was immediately

appealable pursuant to Pa.R.A.P. 311(a)(1) (an appeal may be taken as of

right from an order refusing to open, vacate or strike off a judgment).

However, Appellant has waived all her issues concerning the entry of

judgment of non pros by failing to comply with Pa.R.C.P. 3051.

      To obtain relief from judgment of non pros, a party must comply with

Pa.R.C.P. 3051, which provides:

         Rule 3051. Relief from Judgment of Non Pros

         (a) Relief from a judgment of non pros shall be sought by
         petition. All grounds for relief, whether to strike off the


                                   - 12 -
J-A15033-16


        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 judgment of
        non pros, and

        (3) there is a meritorious cause of action.

Pa.R.C.P. No. 3051.

        The rule will apply in all cases in which relief from a
        judgment of non pros is sought, whether the judgment has
        been entered by praecipe as of right or by the court
        following a hearing. Where the court has not participated
        in the entry of judgment, the rule will provide a procedure
        for court involvement and the making of a record which an
        appellate court will be able to review. Where the court has
        entered a judgment of non pros following a hearing, the
        rule will provide the court with an opportunity to review its
        prior decision. However, if the court is certain of its prior
        decision, it will be able to quickly dispose of the matter
        since the parties have already been heard on the issues.

Pa.R.C.P. No. 3051, Note.

     Here, the trial court granted HUP’s motion to strike Appellant’s

certificates of merit and entered judgment of non pros against Appellant on

August 9, 2012. On August 23, 2012, instead of filing a petition to strike or

open the judgment pursuant to Pa.R.C.P. 3051, Appellant filed a timely

notice of appeal to the August 9, 2012 order.         This Court dismissed the

appeal on November 19, 2012.



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       When an appellant files a timely appeal to entry of judgment of non

pros instead of properly filing a petition to strike or open the judgment,

“quashal is inappropriate; the proper consequence of the failure to file a Rule

3051 petition is a waiver of the substantive claims that would be raised.”

Sahutsky, 782 A.2d at 1001. Under Sahutsy, the “failure to file a petition

to open or strike the judgment of non pros before filing an appeal result[s]

in a waiver of all substantive claims.”            Dockery v. Borough of E.

Stroudsburg, 24 A.3d 485, 488 (Pa.Cmwlth.2011).9 See also Stephens

v. Messick, 799 A.2d 793, 801 (Pa.Super.2002) (“By failing to promptly file

a Pa.R.C.P. 3051 petition, Stephens waived all issues concerning the entry of

the judgment of non pros.”).

       Appellant filed a petition to open, vacate, or strike the judgment of

non pros on September 14, 2012, after she filed her notice of appeal. The

trial court denied her petition on May 19, 2015. Appellant has waived any

issues concerning whether the judgment of non pros was properly entered in

the first instance.     See Stephens, 799 A.2d at 796.      Because Appellant




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9
  “While decisions of the Commonwealth Court are not binding upon this
Court, we may elect to follow the Commonwealth Court decisions if we find
the rationale persuasive.”   Beaston v. Ebersole, 986 A.2d 876, 881
(Pa.Super.2009).




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waived all of her issues by failing to comply with Pa.R.C.P. 3051, we

affirm.10, 11

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2016




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10
   “[A]ppellate courts are not limited by the specific grounds raised by the
appellee or invoked by the court under review, but may affirm for any valid
reason.” Pennsylvania Dep't of Banking v. NCAS of Delaware, LLC,
948 A.2d 752, 761-62 (Pa.2008) (citation omitted).
11
    Even if Appellant had not waived all of her claims, they lack merit. HUP
filed a motion to strike Appellant’s certificates of merit and to enter
judgment of non pros on July 12, 2012, before Appellant filed her July 13,
2012 certificate of merit, after the trial court had denied her request for an
extension of time to file the certificate of merit, and nearly a year after the
certificate of merit was due. Appellant is correct that HUP did not praecipe
for judgment of non pros before she filed her certificate of merit, however
judgment of non pros was entered by the trial court, not the prothonotary.
“A Court may properly enter a judgment of non pros when a party to the
proceeding has shown a want of due diligence in failing to proceed with
reasonable promptitude, and there has been no compelling reason for the
delay, and the delay has caused some prejudice to the adverse party[.]”
Stephens, 799 A.2d at 797.



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