J-A25029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DIANTHE GELOK                                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

DAVID R. BRYCE, D.O.; DAVID C.
PRESTOSH, D.O.; ST. LUKE’S
UNIVERSITY HEALTH NETWORK; ST.
LUKE’S AND ST. LUKE’S UNIVERSITY
HOSPITAL

                            Appellee                   No. 842 EDA 2015


               Appeal from the Order Entered February 18, 2015
                In the Court of Common Pleas of Lehigh County
                      Civil Division at No(s): 2014-C-3495


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

MEMORANDUM BY MUNDY, J.:                          FILED DECEMBER 14, 2015

        Appellant, Dianthe Gelok, appeals from the February 18, 2015 order

denying her petition for relief from a judgment of non pros (JNP) entered in

favor of Appellees, David R. Bryce, D.O., Luke University Health Network,

and St. Luke’s and St. Luke’s University Hospital.1 After careful review, we

affirm.



____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
  The JNP appears not to have been entered in favor of David C. Pretosh,
D.O. Nevertheless, an order denying a petition to open or strike a judgment
is an interlocutory appeal of right. Pa.R.A.P. 311(a)(1).
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       We summarize the procedural background of this case as follows. On

October 31, 2014, Appellant filed a complaint alleging three counts of

negligence in the form of medical malpractice, and one count each of

vicarious liability, ostensible agency, and corporate liability. As Appellant did

not file certificates of merit with her complaint sounding in professional

liability, they were due on December 30, 2014.          See Pa.R.C.P. 1042.3(a)

(stating that the certificate of merit shall be filed “with the complaint or

within sixty days after the filing of the complaint[]”). Additionally, Appellees

were permitted to file their notice of intention to seek JNP for failure to file

certificates of merit beginning on December 1, 2014.2 See id. at 1042.6(a)

(stating that a defendant may file its intention to seek JNP “no sooner than

the thirty-first day after the filing of the complaint[]”).

       On December 9, 2014, as Appellant had not filed her certificates of

merit, Appellees filed notice of their intention to enter JNP against Appellant

for her failure to file a certificate of merit pursuant to Pennsylvania Rule of

Civil Procedure 1042.3. Appellees filed a praecipe for a JNP on January 13,

2015, which was entered the same day. Appellant filed her certificates of

merit as well as a petition for relief from the JNP pursuant to Rule 3051 on
____________________________________________
2
   We note that the 30th day from the date Appellant filed her complaint was
November 29, 2014, which fell on a Saturday. When computing the 30-day
filing period “[if] the last day of any such period shall fall on Saturday or
Sunday … such day shall be omitted from the computation.” 1 Pa.C.S.A.
§ 1908. Therefore, the first day for Appellees to file their notice was on
Monday, December 1, 2014.



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January 20, 2015, along with a memorandum of law in support thereof.

Appellees filed their answer and a memorandum of law on February 5, 2015.

The trial court heard argument on Appellant’s petition on February 18, 2015.

That same day, the trial court entered an order denying Appellant’s Rule

3051 petition. Appellant filed a motion for reconsideration on February 25,

2015, which the trial court denied on March 9, 2015. On March 19, 2015,

Appellant filed a timely notice of appeal.3

       On appeal, Appellant presents one issue for our review.

              Whether the [trial c]ourt erred in denying
              [Appellant]’s petition for relief from a [JNP] where
              [Appellees] failed to serve her with a time-stamped
              copy of their notice of intent to enter [JNP] until she
              was served with one as an attachment to their
              Praecipe for [JNP]?

Appellant’s Brief at 6.
____________________________________________
3
   On March 27, 2015, the trial court entered an order directing Appellant to
file a concise statement of errors complained of on appeal within 21 days,
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant
timely filed her statement on April 10, 2015.

       On May 1, 2015, the trial court filed a “statement” pursuant to Rule
1925(a), in which it stated it “adopts and incorporates [t]herein the
reasoning set forth in the Memorandum of Law in support of Defendants’
Opposition to Plaintiff’s Petition for Relief from Judgment of Non Pros filed
February 5, 2015.” Trial Court Statement, 5/1/15, at 1. Our Supreme Court
has expressly disapproved of the practice of trial courts adopting briefs filed
by litigants in their Rule 1925(a) opinions. Commonwealth v. Williams,
732 A.2d 1167, 1176 (Pa. 1999). On September 28, 2015, this Court
remanded this case to the trial court for a supplemental opinion. Superior
Court Order, 9/28/15, at 1. The trial court filed its supplemental opinion on
October 22, 2015, and the certified record was returned to this Court.




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J-A25029-15


       At the outset, we observe that Rule 3051 governs petitions for relief

from JNPs, and states that such a petition may seek to either open or strike

the judgment.4 Pa.R.C.P. 3051(a). 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
              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).


____________________________________________
4
  Although Appellant’s petition only used the word “strike,” Appellant’s
memorandum of law in support of her petition, argued that she has satisfied
the three elements of Rule 3051(b), regarding petitions to open. Appellees
argued Rule 3051(b) on its merits before the trial court, and both parties
have argued the issue as one under Rule 3051(b) in this Court. N.T.,
2/18/15, at 9; Appellant’s Brief at 12-13; Appellees’ Brief at 4. We therefore
decline to find waiver in this instance.



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      In this case, the only element of Rule 3051(b) that is in dispute is

whether Appellant’s “default or delay [was] reasonably explained or

excused[.]” Id. at 381. Appellant argues that her delay should be excused

because Rule 1042.7(a) required Appellees to serve her with a time-

stamped copy of their notice of intention to seek JNP. Appellant’s Brief at

17. According to Appellant, the reason the Rules collectively imply a time-

stamped copy is to be served, is to provide her with notice as to when the

30-day clock for filing of the praecipe began. Id. Appellees counter that the

Rules do not require the notice to be time-stamped, only that Appellant be

served with a copy of the same. Appellees’ Brief at 4.

      Rule 1042.7 authorizes a defendant to seek JNP if the plaintiff has not

filed a certificate of merit and the plaintiff has not filed a motion with the

trial court seeking either an extension of time or a judicial determination

that one is not required. Pa.R.C.P. 1042.7(a). Rule 1042.6(a) states, with

few exceptions not relevant to this case, “a defendant seeking to enter a

[JNP] under Rule 1042.7(a) shall file a written notice of intention to file the

praecipe and serve it on the party’s attorney of record or on the party if

unrepresented, no sooner than the thirty-first day after the filing of the

complaint.” Id. at 1042.6(a). Once the defendant completes this step, “the

praecipe is filed no less than thirty days after the date of the filing of the

notice of intention to enter the [JNP].” Id. at 1042.7(a)(4). Appellant avers

that because the Rules require the notice to be filed and served on her,


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“[t]his implies that a time-stamped copy of the notice must be provided to

[Appellant] so as to put her on notice of the date the 30 days begins to run

under Rule 1042.7(a).”5         Appellant’s Brief at 17.   However, we have held

that the prothonotary’s act of time-stamping a document is a mere

“ministerial act” that does not control the filing of the notice, rather the

notice “is filed when received by the prothonotary[.]”           Griffin v. Cent.

Sprinkler Corp., 823 A.2d 191, 197 (Pa. Super. 2003) (stating that the trial

court wrongly concluded that, “[the a]ppellant’s praecipe [to backdate a writ

of summons] had not been ‘filed’ until it had been time-stamped by a clerk

in the prothonotary’s office[] … [rather,] a document is filed when received

by the prothonotary, regardless of when it is later time-stamped[]”); accord

Pa.R.C.P. 205.1.

        Nothing explicitly in the text of Rules 1042.6 or 1042.7 requires that

a document served on an opposing party be a time-stamped copy.

Importantly, the pertinent Rule’s text states that “a defendant seeking to


____________________________________________
5
  In this case, Appellees’ notice was dated December 4, 2014, although it
was not time-stamped until December 9, 2014. Therefore, Appellant was
aware that Appellees had until Monday, January 5, 2015 before JNP would
be sought, as the 30th day, January 3, 2015, was a Saturday.             See
generally 1 Pa.C.S.A. § 1908. However, since the notice was not time-
stamped until December 9, 2015, JNP could not be entered until January 8,
2015. We further note that Appellant acknowledged receiving not only a
copy of this notice, but also a copy of Appellees’ letter to the trial court,
dated December 4, 2014, asking the clerk of courts to file the original copy
of record. See Appellant’s Petition for Relief from JNP, 1/20/15, at ¶ 3,
Exhibit B.



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J-A25029-15


enter a [JNP] under Rule 1042.7(a) shall file a written notice of intention to

file the praecipe and serve it on the party’s attorney of record or on the

party if unrepresented, no sooner than the thirty-first day after the filing of

the complaint.” Id. at 1042.6(a). The use of the word “and serve it” in Rule

1042.6(a) refers back to the notice as its antecedent.      At most, the text

places a duty on the defendant to send a copy to the trial court for filing and

serve a copy of the same on opposing counsel simultaneously.           This is

because Rule 205.1 explicitly permits the filing of documents with the trial

court by mail. See Pa.R.C.P. 205.1 (stating, “[a]ny legal paper not requiring

the signature of, or action by, a judge prior to filing may be delivered or

mailed to the prothonotary, sheriff or other appropriate officer accompanied

by the filing fee, if any.   Neither the party nor the party’s attorney need

appear personally and present such paper to the officer[]”).

      In this case, the trial court found the following and concluded that

Appellant’s argument was meritless.

            Here … Appellant took no steps to comply with
            Pa.R.C.P. 1042.3. Appellant was on notice from the
            date of the filing of the complaint on October 31,
            2014, that to comply with Pa.R.C.P. 1042.3, the
            certificates of merit needed to be filed by December
            30, 2014. Appellant then received an additional
            reminder about the certificates of merit when she
            received the December 4, 2015, letter from counsel
            for [] Appellees with [an] attached letter to the Clerk
            of Courts dated December 4, 2014, asking the Clerk
            to file the enclosed Notice of Intention to Enter
            [JNP]. The Notice of Intention to Enter [JNP] was
            attached to the December 4, 2014, letter and was in
            substantially the form prescribed by Pa.R.C.P.

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J-A25029-15


           1042.6(d) and warned Appellant that if a certificate
           of merit was not filed within thirty (30) days of the
           date of the filing of this notice, Appellees would enter
           a [JNP] against [] Appellant. It requires no leap of
           logic for Appellant to conclude based upon the dated
           letter to the Clerk of Courts and the enclosed Notice
           of Intention to Enter [JNP], that the Notice would be
           filed upon receipt by the Clerk of Courts. Appellant
           took no steps at any time to seek an extension of
           time to file the Certificates of Merit after receiving
           the December 4, 2014, letter and notice. … After
           receiving the December 4, 2014, letter and notice,
           Appellant did not check the docket to ensure that the
           certificates of merit had been filed or contact
           opposing counsel to inquire as to why he thought the
           certificates of merit had not been filed, but instead,
           determined, “somebody’s confused here … maybe
           they’ll figure it out.”      [N.T., 2/18/15, at 4-5].
           Appellant did not check the docket on or before
           December 30, 2014, to ensure that the mistake was
           not her own. Instead, it was not until the entry of
           the [JNP], that Appellant concluded, “oh, it wasn’t
           filed.” Id.

Trial Court Opinion, 10/22/15, at 11-12.

     After careful review, we conclude Appellant is not entitled to relief. As

the trial court pointed out, Appellant’s certificates of merit were due on

December 30, 2014. Appellant took no steps to comply with Rule 1042.3,

by either consulting the docket, opposing counsel, or filing a motion for an

extension of time under Rule 1042.3(d).        As the trial court noted, to

conclude that a defendant’s failure to serve a time-stamped copy of the

notice excuses a failure to comply with the independent 60-day filing period

“would eviscerate Pa.R.C.P. 1042.3.”        Id. at 12.       Based on these




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considerations, we decline Appellant’s invitation to read into Rule 1042.7(a),

an additional requirement of serving a time-stamped copy.

      In the alternative, Appellant argues that Rule 126 excuses her failure

to timely file certificates of merit. Rule 126 states that the trial court “may

disregard any error or defect of procedure which does not affect the

substantial rights of the parties.”   Pa.R.C.P. 126. Our Supreme Court has

held that Rule 126 does apply to Rule 1042.3’s requirement for the filing of a

certificate of merit. Womer v. Hilliker, 908 A.2d 269, 276 (Pa. 2006).

      In Womer, the plaintiff did not file a certificate of merit, but instead

sent opposing counsel a report that plaintiff believed contained the same

information and contended this report substantially complied with Rule

1042.3.   Id. at 278.    Our Supreme Court rejected plaintiff’s argument,

stating that “this was no procedural misstep within the meaning of

Pa.R.C.P.No. 126[, rather i]t was instead, a wholesale failure to take any of

the actions that one of our rules requires, of the type that we have

heretofore refused to overlook under Rule 126.” Id.

      In this case, the trial court concluded that Rule 126 did not entitle

Appellant to open the JNP, based on the following.

            Here, Appellant realized that someone was mistaken
            about the filing/not filing of the certificates of merit
            after receiving the letter dated December 4, 2014,
            but neglected to look at the docket to ensure that
            the certificates of merit had been filed until after
            receiving the entry of [JNP] on January 13, 2015.
            This is no mere inadvertent mistake or oversight by
            Appellant’s counsel, but rather reflects an indifferent

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           attitude towards the consequences of failing to follow
           the Pennsylvania Rules of Civil Procedure[.]

                                     …

           While the [trial c]ourt may consider prejudice under
           Pa.R.C.P. 126, as the Pennsylvania Supreme Court
           stated in Wormer [sic], “Rule 126 is available to a
           party who makes a substantial attempt to conform,
           and not to a party who disregards the terms of a rule
           in their entirety and determines for himself the steps
           he can take to satisfy the procedure that we have
           adopted to enhance the functioning of the trial
           courts.” [Womer, supra] at 272. As Appellant did
           not make a substantial effort to conform to Pa.R.C.P.
           1042.3, Pa.R.C.P. 126 (and whether Appellees
           suffered prejudice) should not be considered as a
           factor in analyzing whether or not to deny
           Appellant’s Petition for Relief from [JNP].

Trial Court Opinion, 10/22/15, at 14-15.

     In this case, the record supports the trial court’s conclusion. Appellant

did not make any attempt to substantially comply with Rule 1042.3 until

seven days after JNP was entered against her. As noted above, Appellant

did not consult the docket, opposing counsel, or file a motion for an

extension of time under Rule 1042.3(d). Under such circumstances, the trial

court correctly applied Womer to conclude that this was not a case where

an attempt to substantially comply with Rule 1042.3 was shown. Therefore,




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considering all of the above, we are required to conclude Appellant’s

alternative argument on appeal does not entitle her to relief.6

       Based on the foregoing, we are constrained to conclude the trial court

did not abuse its discretion when it denied Appellant’s Rule 3051 petition.

See Madrid, supra. Accordingly, the trial court’s February 18, 2015 order

is affirmed.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




____________________________________________
6
   Appellant argues in the alternative that the trial court’s order should be
reversed because even if she does not have a reasonable excuse for the
delay, Appellees were not prejudiced. We recognize that the Rule 3051
petition which included the certificates of merit was filed promptly after the
entry of JNP. Thus, the certificates of merit were filed 21 days after their
due date. However, as the trial court pointed out, Rule 3051(c) requires a
showing of actual prejudice to obtain a JNP for inactivity.          Pa.R.C.P.
3051(c)(3)(iii). However, a petition to open a JNP generally under Rule
3051(b) does not contain such a requirement. See generally Trial Court
Opinion, 10/22/15, at 15.



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