White, S. v. Crawford, V.
2839 EDA 2015
| Pa. Super. Ct. | Nov 8, 2016Background
- Appellants (White, Brown, Whitaker, Anthony) sued their former attorney Vivienne Crawford for legal malpractice and related claims after counsel failed to add NPHS, causing statute-of-limitations bar.
- Appellants did not file a Certificate of Merit (COM) required for professional liability claims under Pa.R.C.P. 1042.3.
- Sixty-six days after the complaint, Crawford filed a Notice of Intention to Enter a Judgment of Non Pros under Rule 1042.6 alleging failure to file a COM; service was by first-class mail with an affidavit of service.
- Thirty-three days after the notice, Crawford filed a praecipe and the prothonotary entered judgment of non pros.
- Appellants moved to strike/open/vacate the non pros judgment, arguing they were not served electronically per local rule and that the lack of e-service tolled the 30-day period or constituted a court breakdown.
- The trial court denied the petition; the Superior Court affirmed, holding appellants had actual notice and no authority showing failure of e-service tolled the response period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 1042.6 notice must be served electronically under local rule such that failure to e-serve tolls the 30-day response period | Appellants: prothonotary’s failure to e-serve per local rule deprived them of proper service and tolled the 30-day period; court operations breakdown | Crawford: Notice was properly served by first-class mail with affidavit; appellants received actual notice and had the duty to file COM or motion to extend | Held: Service by mail satisfied the rules; actual notice existed; failure to e-serve did not toll the period or constitute a breakdown in court operations |
| Whether trial court abused its discretion in denying motion to strike/open judgment of non pros | Appellants: denial was an abuse because of defective service method | Crawford: denial proper because prerequisites for non pros were met and appellants offered no meritorious excuse | Held: No abuse of discretion; appellants failed to show legitimate excuse and had actual notice |
Key Cases Cited
- Zokaites Contracting Inc. v. Trant Corp., 968 A.2d 1282 (Pa. Super. 2009) (standard for reviewing denial of petition to open/strike non pros)
- Varner v. Classic Communities Corp., 890 A.2d 1068 (Pa. Super. 2006) (COM rule contemplates filing contemporaneous with complaint and provides 60-day window)
- Mumma v. Boswell, Tintner, Piccola & Wickersham, 937 A.2d 459 (Pa. Super. 2007) (standards for Rule 1042.6 practice and relief)
- Hershey v. Segro, 381 A.2d 478 (Pa. Super. 1977) (motion to strike non pros challenges defects on face of record)
- Krauss v. Claar, 879 A.2d 302 (Pa. Super. 2005) (orders refusing to open or strike judgments are appealable as of right)