J-A10027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    RANDALL WINSLOW                            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
              v.                               :
                                               :
    GOLDBERG, MEANIX & MUTH, EVAN              :
    J. KELLY, JOHN DOE, T/A OR DBA             :
    GOLDBERG, MEANIX & MUTH                    :   No. 3606 EDA 2017

                Appeal from the Order Entered October 5, 2017
    In the Court of Common Pleas of Chester County Civil Division at No(s):
                                 2016-02828


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JULY 17, 2018

       Randall Winslow appeals pro se from the trial court’s denial of his

petition to open the judgment of non pros entered against him in this legal

malpractice action. We affirm.

       The facts underlying this case arise from an incident which occurred on

the night of October 31, 2009,1 following which Winslow was charged with

driving under the influence of alcohol (“DUI”), simple assault, and disorderly

conduct.2 A jury found Winslow guilty following a three-day trial. The court
____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1 See Winslow v. Pennsylvania Bd. of Prob. & Parole, No. CIV.A. 12-
3543, 2014 WL 2892401, at *1-2 (E.D. Pa. June 25, 2014) (unreported) for a
recitation of the facts of the underlying criminal case.

2 75 Pa.C.S.A. § 3802(a)(1) and 18 Pa.C.S.A. §§ 2701(a)(1) and 5503(a)(1),
respectively.
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sentenced Winslow to serve an aggregate of one month and five days’ to 18

months’ incarceration. Winslow filed a timely appeal, challenging the

sufficiency of the evidence supporting his convictions and the trial court’s

preclusion of testimony at trial referencing the results of Winslow’s pre-arrest

breathalyzer test. We affirmed the judgment of sentence in 2011,3 and the

Pennsylvania Supreme Court denied his petition for allowance of appeal in

2012.4 Winslow did not seek review of his conviction in the United States

Supreme Court.5

       Winslow initiated the instant action on March 28, 2016, when he filed a

pro se civil Complaint against the attorney who represented him on his direct

appeal, Evan Kelly, Esquire, and Kelly’s law firm, Goldberg, Meanix, & Muth

(together, “Appellees”). In his Complaint, Winslow alleged that Kelly had

agreed to pursue a certain issue on appeal—Winslow’s “constitutional right to

a complete defense” (which Winslow defined as the “right to testify, cross-

examine the witnesses against him, and enter exculpatory evidence”)—and

that Kelly had failed to properly present this issue in the appellate brief he

filed on Winslow’s behalf. See Complaint, 3/28/16, at ¶ 4-10. Winslow argued
____________________________________________


3Commonwealth v. Winslow, 31 A.3d 731 (Pa. Super. 2011) (unpublished
memorandum).

4   Commonwealth v. Winslow, 40 A.3d 122 (Pa. 2012).

5 Soon after the Pennsylvania Supreme Court denied review of his case,
Winslow filed a pro se petition for habeas corpus in the United States District
Court for the Eastern District of Pennsylvania. The federal district court denied
the petition in 2014. See Winslow v. Pennsylvania Bd. of Prob. & Parole,
No. CIV.A. 12-3543, 2014 WL 2892401, at *12.

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that Kelly had wrongfully informed Winslow that raising the issue of the

sufficiency of the trial evidence was the same as raising the issue of a

“complete defense.” Id.

       On June 9, 2016, approximately 73 days after Winslow filed the

Complaint, Appellees filed a “Notice of Intention to Enter a Judgment of [Non

Pros] for Failure to File a Certificate of Merit,” pursuant to Pa.R.C.P. 1042.6.

Appellees argued that Winslow had failed to file a certificate of merit within 60

days of his Complaint. See Pa.R.C.P. 1042.3(a).6 Winslow responded on June

28, 2016, by filing a Certificate of Merit, that he—a non-lawyer—signed,

stating that “expert testimony of an appropriate licensed professional is

unnecessary for prosecution of the claim against this defendant.” Certificate

of Merit, 6/28/16, at 1 (unpaginated).

       Appellees filed a “Motion to Strike [Winslow’s] Certificate of Merit and

for Entry of Judgment of [Non Pros].” Appellees argued that Winslow’s

Certificate of Merit was improper, as Rule 1042.3 requires that if the certificate

is not signed by an attorney, the plaintiff must attach to the certificate a

“written statement from an appropriate licensed professional.” See Pa.R.C.P.

1042.3(e).


____________________________________________


6 Although Winslow styled the claims in his Complaint as claims for breach of
contract and fraudulent inducement, the trial court ruled that Winslow’s
“causes of action sound in professional negligence despite being captioned as
contract claims,” Order, 3/30/17, at 1 n.1. Winslow does not challenge this
ruling in his appeal, or contest that Rule 1042.3 requires him to file a
certificate.

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        The trial court denied Appellees’ Motion in August 2016, but vacated the

denial on March 30, 2017, and instead granted the Motion in part: the court

ordered the Prothonotary to strike Winslow’s Certificate of Merit from the

record, but granted Winslow leave to file within 30 days a “proper” certificate

of merit. On April 25, 2017, Winslow filed a “Letter/Request to the [Trial Court

Judge],” in which he requested the court waive the requirement for a

certificate of merit, and moved, in the alternative, for a 45-day extension in

which to procure an attorney. In response, Appellees filed a “Motion for Entry

of Judgment of [Non Pros].”

        On June 2, 2017, approximately one year and 66 days after the filing of

the Complaint, the court entered an order denying Winslow’s request for an

extension of time and granted Appellees’ Motion for Entry of Judgment of Non

Pros.7 The court determined that Winslow had failed to file a new certificate of

merit within 30 days of the March 30, 2017 Order, and had failed to file a valid

certificate since the inception in the case. See Order, 6/2/17, at 1 n.3.

Moreover, the court determined that Winslow had not shown good cause to

warrant an extension of time. Id.

        Winslow filed a notice of appeal on June 26, 2017.8 On August 10, 2017,

we issued a per curiam order quashing the appeal on the basis that Winslow

had waived all claims on appeal by his failure to file a petition to open the

____________________________________________


7   The order was dated June 1, 2017, but docketed on June 2, 2017.

8   See Winslow v. Evan J. Kelly etc., No. 2087 EDA 2017.

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judgment of non pros. See Order, 8/10/17 (per curiam) (citing Pa.R.C.P. 3051

(“Relief from Judgment of [Non Pros]”) and Sahutsky v. H.H. Knoebel Sons,

782 A.2d 996 (Pa. 2001)).

       Approximately two weeks later, on August 25, 2017, Winslow filed with

the trial court a “Petition for Relief From the Judgment of [Non Pros].” The

court denied Winslow’s Petition on October 5, 2017.

       Winslow filed a timely notice of appeal,9 and raises the following issue:

       Whether the Pennsylvania Certificate of Merit Rule 1042.3 violates
       The Pennsylvania Constitution and The United States Constitution
       by placing an undue financial burden on [plaintiffs] and creates
       two separate classes?

Winslow’s Br. at iii (pre-paginated portion).10

       A court’s grant or refusal of a request to open a judgment of non pros

under the Rule “is peculiarly a matter for the [trial] court’s discretion.”

Gondek v. Bio-Med. Applications of Pennsylvania, Inc., 919 A.2d 283,

286 (Pa.Super. 2007) (alterations in original) (quoting O'Hara v. Randall,

879 A.2d 240, 243 (Pa.Super. 2005)). We will not overturn the trial court’s

decision unless it “reflects manifest unreasonableness, or partiality, prejudice,

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9 Winslow’s appeal from the court’s denial of his Petition for Relief is
immediately appealable under Pa.R.A.P. 311(a)(1). See French v.
Commonwealth Assocs., Inc., 980 A.2d 623, 628 (Pa.Super. 2009).

10In contravention of the Rules of Appellate Procedure, Winslow fails to include
a Statement of Questions Involved. See Pa.R.A.P. 2116. However, in the
section of his brief titled “Text of the Order in Question,” rather than setting
forth the language of the order under appeal, see Pa.R.A.P. 2115 (“Order or
Other Determination in Question”), Winslow presents the above issue.
Winslow’s Br. at iii (pre-paginated portion).

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bias, or ill-will, or such lack of support as to be clearly erroneous.” Womer v.

Hilliker, 908 A.2d 269, 273 (Pa. 2006).

      Rule 3051(b) of the Rules of Civil Procedure provides that a judgment

of non pros may be opened when the petition for relief alleges “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. 3051(b)

(italicization added).

      A petition for relief from judgment of non pros is untimely when the only

excuse for the delay was the petitioner’s previous premature appeal from the

order entering judgment of non pros. See Madrid v. Alpine Mountain Corp.,

24 A.3d 380, 383 (Pa.Super. 2011). In Madrid, the appellants filed a notice

of appeal from the order entering judgment of non pros, but later withdrew

their appeal and filed a petition to open judgment, 56 days after the court

entered judgment of non pros. Id. at 381, 383. Their petition was denied by

the court. Id. at 381. On appeal, we found the petition to be untimely, because

“ignorance of the procedural rules does not justify or provide a reasonable

explanation for failure to comply.” Id. at 383.

      Here, the trial court found Winslow’s Petition to be untimely for the same

reason as the court in Madrid. See Order, 10/5/17, at 1-3 n.1. The court

explained that the Petition was filed 85 days after judgment of non pros was

entered, and only after Winslow had erroneously filed a premature appeal

from the judgment of non pros. Id. at 2 n.1.

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       The trial court did not abuse its discretion in concluding that the Petition

was untimely. Winslow’s pro se status does not absolve him from complying

with procedural rules. See Warner v. Univ. of Pennsylvania Health Sys.,

874 A.2d 644, 648 (Pa.Super. 2005) (quoting Hoover v. Davila, 862 A.2d

591, 595-96 (Pa.Super. 2004) (citing Jones v. Rudenstein, A.2d 520, 522

(Pa.Super. 1991) and Commonwealth v. Abu-Jamal, 555 A.2d 846, 852

(Pa. 1989))). Nor does it confer upon him any particular advantage. Id. (citing

Cole v. Czegan, 722 A.2d 686, 687 (Pa.Super. 1998)). We caution that “any

layperson choosing to represent himself in a legal proceeding must, to some

reasonable extent, assume the risk that his lack of expertise and legal training

will   prove    his   undoing.”     Id.    (quoting   Vann   v.   Commonwealth

Unemployment Compensation Bd. of Review, 494 A.2d 1081, 1086 (Pa.

1985)).

       Moreover, in his Petition for Relief, Winslow did not address the lapse of

time between the court’s entry of judgment of non pros and Winslow’s

Petition.11 Nor, in his appellate brief, does Winslow attempt to make any

argument regarding the timeliness of his Petition. He has therefore waived

any argument that his Petition is timely under the Rule.
____________________________________________


11 In his Petition for Relief, Winslow argued that the Petition was timely
because “the court struck my certificate of merit and gave me not much time
to once again try to find an attorney at a reasonable cost. All quotes were for
a minimum of [$5,000] dollars and up.” Petition, 8/25/17, at 1 (unpaginated).
This argument clearly relates to the entry of judgment of non pros against
Winslow due to his failure to file a timely certificate of merit, and does not
explain his delay in filing the Petition for Relief in the first place.


                                           -7-
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      Even if Winslow’s Petition had been timely, it would fail under the third

prong of the test. Under that prong, a petitioner must assert specific facts in

the Petition to show that there is a meritorious cause of action. See Pa.R.C.P.

3051(b)(3). A petitioner must do more than merely repeat the averments of

the complaint. Stephens v. Messick, 799 A.2d 793, 800 (Pa.Super. 2002).

“A claim of legal malpractice requires that the plaintiff plead the following

three elements: employment of the attorney or other basis for a duty; the

failure of the attorney to exercise ordinary skill and knowledge; and that the

attorney's negligence was the proximate cause of damage to the plaintiff.”

412 N. Front St. Assocs., LP v. Spector Gadon & Rosen, P.C., 151 A.3d

646, 657 (Pa.Super. 2016).

      Regarding the merits of his underlying legal malpractice claim against

Appellees, Winslow asserted in his Petition only that Appellees “were asked to

put forward my rights to a complete defense and fair trial,” and that Winslow

was “fraudulently deceived” by Appellees. Petition for Relief, 8/25/17, at 2

(unpaginated). These bald assertions fall woefully short of the requirement

under the Rule. Winslow did not explain in his Petition what aspect of his

defense he was prevented from presenting at trial, and he asserted no other

facts to support a viable legal malpractice claim. Nor does Winslow, in his

appellate brief, explain why his underlying cause of action was meritorious.




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We therefore conclude that Winslow has waived any argument that his Petition

meets the third prong under Rule 3051(b).12

       As we conclude that Winslow failed to comply with the first and third

prongs of the test set forth in Rule 3051(b), we hold that the trial court did

not abuse its discretion in denying Winslow’s Petition. We therefore need not

consider, under the second prong, whether Winslow’s Petition for Relief

successfully explained and excused his failure to file a timely certificate of

merit, although this is the main substance of Winslow’s argument on appeal.

See Madrid, 24 A.3d at 383 (stating the failure to satisfy 2 of the 3 elements

under Rule 3051 waives issues related to the third prong); Krell v. Silver,

817 A.2d 1097, 1102 (Pa.Super. 2003) (stating petition for relief must do

more than merely offer “reasons for the delay preceding the entry of judgment

of non pros,” under the second prong, and fail to set forth that the “petition

was promptly filed or that there were facts which supported a meritorious

cause of action,” leaving the first and third prong unsatisfied).

       We therefore affirm the order of the trial court denying Winslow’s

Petition for Relief.

       Order affirmed.




____________________________________________


12  Although the trial court elected not to assess this prong, we may affirm the
trial court’s decision on any grounds. See Bartolomeo v. Marshall, 69 A.3d
610, 618 (Pa.Super. 2013) (affirming denial of petition to open judgment of
non pros on different grounds than trial court, where petitioners “failed to
illustrate that they had a meritorious cause of action under Pa.R.C.P. 3051”).

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        Judge Ransom did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/18




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