          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Born E. Divine a/k/a Baron Darnell, :
                   Appellant        :
                                    :
             v.                     : No. 18 C.D. 2017
                                    : ARGUED: October 19, 2017
City of Philadelphia, Louis Giorla, :
Michelle Farrell                    :


BEFORE:      HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE J. WESLEY OLER, JR., Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE OLER, JR.                     FILED: December 8, 2017

             This appeal of Born E. Divine (Appellant) arises out of the entry of a

judgment of non pros by the Court of Common Pleas of Philadelphia County (trial

court) and the trial court’s subsequent denial of a request to open the judgment. The

trial court’s entry of judgment was precipitated by Appellant’s failure to file a

complaint after Appellant initiated a civil action against the City of Philadelphia, the

Commissioner of the Philadelphia Prison System, the Curran Fromhold Correctional
Facility (Correctional Facility),1 and the Warden of the Correctional Facility

(together, Appellees) by a praecipe for writ of summons. We affirm.

               On June 23, 2013, Appellant allegedly suffered harm at the

Correctional Facility as an inmate when a water faucet button injured his finger.

(Reproduced Record (R.R.) at 11a.) On June 26, 2015, Appellant initiated a civil

action in the trial court by filing a praecipe for writ of summons. (Id. at 1-2a.) On

August 27, 2015, the trial court issued a rule directing Appellant to file a complaint

within twenty days of that date or suffer a judgment of non pros. (Id. at 4a.) That

date passed, and the case proceeded to a case management conference in November

2015 and then to a pre-trial conference in June 2016. (Id. at 3-7a.) Appellant’s

counsel failed to appear at the pre-trial conference and failed to file a settlement

memorandum. (Id. at 7a.)

               Shortly before trial, the trial court discovered that Appellant had never

filed a complaint. (Trial Court Opinion, 12/7/2016, at 2.) On July 25, 2016, the trial

court entered a judgment of non pros because Appellant had failed to file a complaint

within twenty days of the trial court’s August 27, 2015 rule directing that he do so.

Id. On August 3, 2016, Appellant filed a motion to reconsider the judgment of non




       1
          This Court issued an order on August 9, 2017 removing the Correctional Facility as an
active party to this appeal because it was not served and did not participate in the action before the
trial court.
                                                  2
pros. (R.R. at 8a.) In support of the motion, Appellant made the following

averments:

             1. Plaintiffs [sic] initiated this action by Writ of Summons
                on June 26, 2015.
             2. This action arises out of an accident that occurred on
                June 26, 2013, when plaintiff, was lawfully and
                properly trying to use the hot water at a sink in Curran
                Fromhold Correctional Facility and the defective
                button snapped his right middle finger.
             3. The accident was caused by the defendants' negligence,
                carelessness and recklessness including, but not limited
                to, creating a dangerous condition, which defendants
                knew or had reason to know existed and/or created, and
                the dangerous condition existed for some time prior
                thereto, which caused plaintiff serious and permanent
                injuries.
             4. A Rule to File a Complaint was filed on August 27,
                2015.
             5. The last time counsel heard from her client was
                September 8, 2014 - he has been out of custody at least
                since then.
             6. Counsel has been attempting to locate the client to
                verify the complaint without success.
             7. Plaintiffs [sic] have stated a meritorious cause of action
                against all Defendants.
             8. Pursuant to Pa.R.C.P. [No.] 237.3, the judgment of
                non-pros as to all Defendant's [sic] should be opened
                since the instant motion will be filed ten (10) days of
                its entry.
             9. The plaintiffs [sic] failure to file complaint deemed to
                be reasonably explained pursuant to Pa. R.C.P. [No.]
                237.2 [sic] by the filing of this petition and counsel has
                not failed to act.


                                          3
             10.The judgment of non pros should be opened and this
                matter should proceed to trial as to all Defendants.



(R.R. at 11-12a.) On August 29, 2016, the trial court issued an order denying

Appellant’s motion. (Id. at 8a.)

             On December 7, 2016, the trial court issued an opinion in support of its

denial of Appellant’s motion to reconsider. The trial court stated that the entry of a

judgment of non pros had been proper because Appellant showed a lack of due

diligence for failure to proceed with reasonable promptitude, Appellant failed to

offer a compelling reason for the delay, and Appellees were prejudiced by

Appellant’s failure to file a complaint. (Trial Court Opinion, 12/7/2016, at 2-3.) The

trial court indicated that the failure of Appellant’s counsel to file a complaint for

more than a year since the initiation of the lawsuit, counsel’s failure to have

Appellees served with original process, and counsel’s failure to appear at, and submit

material for, a scheduled settlement conference all constituted a lack of due

diligence. (Id. at 3-4.) The trial court further stated that Appellant’s counsel failed

to provide a compelling excuse for the lack of due diligence or the continued failure

to make contact with Appellant. (Id. at 4.) The trial court concluded that Appellees

had been prejudiced because, although the statute of limitations had ostensibly been

tolled, Appellant had failed to put forth a good faith effort to secure service upon

Appellees. (Id. at 4-5.)
                                          4
               Finally, the trial court found that its denial of the request to open the

judgment was proper under Pa.R.C.P. No. 3051(c) because, although the request to

open the judgment was timely filed, Appellant failed to demonstrate a meritorious

cause of action and failed to show that the requirements for entry of judgment of non

pros had not been met. (Id. at 5-6.) In particular, the trial court pointed to

Appellant’s failure to file a complaint setting forth the facts supporting his cause of

action and found that the record supported the proposition that the requirements for

the entry of a judgment of non pros for inactivity had been satisfied. This appeal of

the trial court’s denial to open the judgment of non pros followed.2

               A trial court has the authority to enter a judgment of non pros when a

party to the proceeding has (1) shown a lack of due diligence in failing to proceed

with reasonable promptitude; (2) there has been no compelling reason for the delay;

and (3) the delay has caused some amount of prejudice to the adverse party. James

Bros. Lumber Co. v. Union Banking & Trust Co. of Du Bois, Pennsylvania, 247 A.2d

587, 589 (Pa. 1968) (internal citations omitted). Rule 3051 provides that the only

relief from a judgment of non pros must be sought by a petition to strike or a petition


2
  A grant of a judgment of non pros because of the failure of a party to prosecute the action within
a reasonable time rests within the discretion of the trial court and will not be disturbed absent proof
of a manifest abuse of discretion. Gallagher v. Jewish Hospital Ass’n of Philadelphia, 228 A.2d
732, 733 (Pa. 1967). A trial court's decision to deny a petition to open or strike a judgment of non
pros is scrutinized pursuant to the abuse of discretion standard of appellate review. Madrid v.
Alpine Mountain Corp., 24 A.3d 380, 381-82 (Pa. Super. 2011).


                                                  5
to open, and that all grounds for relief must be asserted in a single petition. Pa.R.C.P.

No. 3051(a).3

              In order to open a judgment of non pros that was entered for reasons of

inactivity, the moving party must show that (1) the petition to open was promptly

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. No. 3051(c); Madrid v. Alpine Mountain Corp., 24 A.3d 380,

381-82 (Pa. Super. 2011). Failure to file a timely and rule-compliant petition to open

operates as a waiver of issues concerning the judgment of non pros, as any appeal

related to a judgment of non pros lies not from the judgment itself, but from the trial

court’s denial of a petition to open or strike. Madrid, 24 A.3d at 382.

              Here, Appellant filed the equivalent of a petition to open the judgment

of non pros with the trial court. Despite titling the petition “Plaintiff’s Motion to


       3
         The trial court’s opinion indicated that, although Appellant’s petition to open cited to
Pa.R.C.P. No. 237.3 as the rule governing the entry of judgments of non pros, Pa.R.C.P. No. 3051
properly controls this matter because Rule 3051 governs the entry of judgments of non pros by the
court, while Rule 237.3 governs the entry of judgments by the prothonotary upon praecipe.
                                               6
Reconsider Non Pros,” Appellant stated within the petition that “[p]ursuant to

Pa.R.C.P. [No.] 237.3, the judgment of non-pros as to all Defendant’s [sic] should

be opened since the instant motion will be filed [within ten] days of its entry,” and

“[t]he judgment of non pros should be opened and this matter should proceed to trial

as to all Defendants.” (R.R. at 12a) (emphasis added). As a result, the request is

properly treated as a petition to open the judgment of non pros, subject to the

requirements of Rule 3051.

             Appellant’s petition to open the judgment was timely, but we must

address whether Appellant’s petition satisfied the second and third mandates of Rule

3051. The trial court determined that Appellant’s petition failed to sufficiently

allege facts showing a meritorious cause of action. We agree. The trial court

correctly notes that Appellant failed at any point in the litigation to file a complaint

– or attach a proposed complaint to his petition to open – which would have

facilitated the allegation of facts in support of his negligence claims against

Appellees. As a result, the only facts alleged by Appellant that might show a

meritorious cause of action are those found in his petition to open. In the petition,

Appellant claims only that

             this action arises out of an accident that occurred on June
             26, 2013, when plaintiff, was lawfully and properly trying
             to use the hot water at a sink in Curran Fromhold
             Correctional Facility and the defective button snapped his
             right middle finger.… The accident was caused by the

                                           7
               defendants’ negligence, carelessness and recklessness
               including, but not limited to, creating a dangerous
               condition, which defendants knew or had reason to know
               existed and/or created, and the dangerous condition
               existed for some time prior thereto, which caused plaintiff
               serious and permanent injuries.


(Id. at 11a.) A petition to open a judgment of non pros that “merely repeats the

averments from [the] complaint does not satisfy the meritorious cause of action

requirement in Rule 3051(c)(2).” Intech Metals, Inc. v. Meyer, Wagner & Jacobs,

153 A.3d 406, 411 (Pa. Super. 2016) (quoting Stephens v. Messick, 799 A.2d 793,

800 (Pa. Super. 2002)). Here, Appellant has failed even to repeat averments from a

complaint; rather, in the absence of any complaint, he is presenting general and

conclusory averments for the first time in his request to open judgment. Appellant’s

general assertions without any factual detail are insufficient to satisfy Rule

3051(c)(2).4

               Next, the trial court determined that Appellant failed to satisfy the third

prong in Rule 3051(c) because he failed to demonstrate that the record does not

support a finding that the requirements for the underlying entry of judgment were



       4
         We note that Appellees argued in their brief that Appellant’s underlying negligence claim
against them was precluded under the Political Subdivision Tort Claims Act, 42 Pa.C.S. §§ 8541-
8564, because Appellant failed to demonstrate that the action came within any of the Act’s stated
exemptions. Because we find that Appellant failed to satisfy the basic requirement that he allege
a factual basis for a meritorious cause of action, we will not analyze whether Appellant’s
negligence claim was precluded by the Tort Claims Act.
                                                8
satisfied. Appellant’s petition failed to address requirements set forth in Rule

3051(c)(3)(ii) and (iii). As a result, although he addresses the issues now in his

appellate brief, Appellant has waived his ability to challenge whether the trial court

properly found that he failed to show a compelling reason for the delay in filing his

complaint and that the delay has caused actual prejudice to the defendant. See

Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”) Based on the matters contained in his request

to open, Appellant can challenge only the trial court’s finding that Appellant

exercised a lack of due diligence for failure to proceed with reasonable promptitude.

             The trial court found that Appellant failed to act with due diligence

primarily because Appellant had failed to file a complaint as of the eve of trial. To

compound this failure, Appellant’s counsel disclosed in the petition to open that

counsel had been unable to contact or locate Appellant in the months leading up to

the entry of the judgment of non pros. The trial court detailed a variety of methods

that Appellant’s counsel could have utilized to demonstrate due diligence: counsel

could have provided documentation or proof of attempts to locate Appellant; counsel

could have attached letters mailed to Appellant or other attempts to determine

Appellant’s mailing address; counsel could have filed a complaint in Appellant’s

absence and submitted a new verification when Appellant was located; or counsel

could have withdrawn from the matter entirely. (Trial Court Opinion, 12/7/2016, at

                                          9
3-4.) Because of the failure of Appellant’s counsel to satisfactorily demonstrate an

attempt to either file a complaint or locate Appellant and because of Appellant’s

failure to be a reasonable participant in his litigation, the trial court found a lack of

due diligence with no compelling excuse.

             We agree. Although counsel stated during oral argument that Appellant

has now, in fact, been located, at the time of the filing of the request to open – the

denial of which is on appeal here – there is no indication that Appellant was or

continued to be interested in pursuing this litigation to maintain contact with his

attorney or the court. As a result, we find that the trial court’s determination that

Appellant failed to satisfy the requirement in Rule 3051 related to due diligence was

not an abuse of discretion.

             Finally, Appellant argues in his brief that the entry of a judgment of non

pros was improper because it was entered by the trial court sua sponte and absent a

motion by Appellees. Appellant points to a number of cases where this Court and

the Superior Court have found that a trial court errs when it enters a judgment of non

pros sua sponte. See In the Matter of Slavonic Literary Ass’n, 436 A.2d 1257 (Pa.

Cmwlth. 1981) (citing Paulish v. Bakaitis, 275 A.2d 318, 322 (Pa. 1971))

(determining that when there was no motion for judgment by a party, the trial court

lacked the authority to enter judgment); Hatalowich v. Bednarski, 461 A.2d 1292

(Pa. Super. 1983) (applying the holding in Slavonic specifically to entries of

                                           10
judgments of non pros). Appellant argues that the same should apply here, and that

as a result the trial court abused its discretion.

               The trial court’s December 7, 2016 opinion does not address the sua

sponte issue. However, regardless of whether the trial court erred initially in entering

sua sponte the underlying judgment, Appellant failed to raise this issue in his petition

to open the judgment of non pros. A party must strictly comply with Rule 3051

before an appellate court may review the underlying judgment of non pros, and, if

the party fails to preserve the issues by filing an inadequate petition, the appellate

court will find that all issues related to the underlying judgment have been waived.

Madrid, 24 A.3d at 383. As a result, even if a procedural error occurred in the

underlying entry of judgment of non pros, Appellant waived his right to challenge

that issue because his petition to open failed to meet the requirements of Rule 3051.5

Simply put, Appellant can appeal now only the trial court’s denial of issues that he

preserved in his petition to open.




       5
          The Superior Court in Madrid confronted the issue of waiver through an insufficient
petition as it relates to procedural defects in the underlying entry of judgment of non pros, stating
that while the Superior Court “acknowledge[s] that the trial court’s underlying decision to enter
the non pros judgment may have been in error…we are unable to reach the merits of the underlying
judgment of non pros…[inasmuch as] a party must be found to have strictly complied with Rule
3051 before we may review the underlying judgment of non pros.” Madrid, 24 A.3d at 384 n.4.
                                                11
            Accordingly, we affirm the decision of the trial court to deny

Appellant’s request to open the judgment of non pros.




                                     __________________________________
                                     J. WESLEY OLER, JR., Senior Judge




                                       12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Born E. Divine a/k/a Baron Darnell, :
                   Appellant        :
                                    :
             v.                     : No. 18 C.D. 2017
                                    :
City of Philadelphia, Louis Giorla, :
Michelle Farrell                    :


                                 ORDER


           AND NOW, this 8th day of December, 2017, the order of the Court of
Common Pleas of Philadelphia County is hereby AFFIRMED.




                                   __________________________________
                                   J. WESLEY OLER, JR., Senior Judge
