Phelps, F. v. Dopiro, S.
Phelps, F. v. Dopiro, S. No. 1567 EDA 2016
| Pa. Super. Ct. | May 8, 2017Background
- Plaintiffs Fraidel and Avi Phelps sued after a dog bite that occurred on August 26, 2012; a complaint was filed in December 2014 after a writ of summons.
- The case was placed in Philadelphia County’s Compulsory Arbitration Program and was continued multiple times at plaintiffs’ requests.
- The arbitration was rescheduled for the morning of March 4, 2016; plaintiffs failed to appear.
- A rule to show cause issued; a rule hearing was held on April 19, 2016. Plaintiffs’ counsel attended but the plaintiffs did not; counsel offered no explanation for their absence.
- The trial court entered judgment of non pros on April 19, 2016 and denied plaintiffs’ subsequent motion for reconsideration. Plaintiffs appealed to the Superior Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred in entering judgment of non pros where plaintiffs were not physically present and sought to use depositions at arbitration because their domicile was over 100 miles away and travel/road/weather conditions prevented safe travel | Plaintiffs argued they had legitimate excuses (distance, adverse conditions) and sought to rely on depositions in lieu of personal attendance | Defendants (and trial court) asserted plaintiffs failed to appear without adequate explanation and did not follow the required procedure to obtain relief after a non pros | Appeal quashed: Superior Court held plaintiffs waived review by failing to file a Rule 3051 petition to open or strike the judgment; appeal from entry of non pros is not permitted |
Key Cases Cited
- Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996 (Pa. 2001) (Rule 3051 requires petition to trial court to open or strike a judgment of non pros before appellate review)
- Dombrowski v. Cherkassky, 691 A.2d 976 (Pa. Super. 1997) (definition and effect of judgment of non pros)
- Stephens v. Messick, 799 A.2d 793 (Pa. Super. 2002) (appeal lies only from denial of petition under Rule 3051; appeal from entry of non pros must be quashed)
- Madrid v. Alpine Mountain Corp., 24 A.3d 380 (Pa. Super. 2011) (appeal related to a non pros is from denial of petition to open/strike)
- Krell v. Silver, 817 A.2d 1097 (Pa. Super. 2003) (motion for reconsideration does not substitute for a Rule 3051 petition)