Case Information
- SEE SUPERIOR COURT I.O.P. 65.37 NON -PRECEDENTIAL DECISION SIBIL WHITE, ULYSSES BROWN, IN THE SUPERIOR COURT OF SABRINA WHITAKER AND PENNSYLVANIA MARGARET ANTHONY,
Appellants No. EDA 2015 v.
VIVIENNE A. CRAWFORD, ESQUIRE
Appeal from the Order Entered August 4, 2015, the Court of Common Pleas Philadelphia County Civil Division at No. 141100103 BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ. FILED NOVEMBER 08, 2016
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Sibil White, Ulysses Brown, Sabrina Whitaker, Margaret Anthony (collectively, "appellants ") appeal the order of August 2015, denying their "motion strike /open /vacate entry pros." We affirm. trial court has aptly summarized the history this case as
follows:
On March 9, 2015, [appellants] filed complaint against [appellee] Vivienne Crawford, Esq., alleging, among other injuries, legal malpractice.[Footnote 1] [Appellee] filed Notice of Intention Enter Judgment of Non Pros for Failure File Certificate of Merit ( "COM ") May 14, 2015. On June 16, [appellee] Praecipe Entry of Judgment of Non Pros; one week later, [appellants] Petition Strike Entry * Former Justice specially assigned the Superior Court.
Non Pros. On August 4, 2015, this Court denied Petition to Strike.
[Footnote 1] other claims made were for breach contract, breach fiduciary duty, and loss of consortium. Those allegations are not at issue here. from [appellee]'s This stems case representation [appellants] between 2009 2013 in lawsuit against Saint Joseph's Hospital School of Nursing ( "St. Joseph's "). [Appellants] retained as counsel [appellee] herein, who instituted action against St. Joseph's claiming breach of contract fraud. [Appellants] case were students at St. Joseph's who alleged they were "fraudulently prevented from passing classes and /or graduating school without cause." [Appellee], however, failed to name North Philadelphia Health System ( "NPHS ") a party. After defendant St. Joseph's filed for bankruptcy, [appellee] herein [appellants'] complaint add sought to amend NPHS. The Motion to Amend was denied because statute limitations had passed.
As a result, [appellants] filed instant action against [appellee] Crawford. [Appellants], however, failed [COM] required professional malpractice actions pursuant 1042.3(a).
On May 14, sixty -six after [appellants] complaint filed [appellee] filed Notice Intention Enter Judgment Non Pros for Failure File COM. On June 16, thirty -three days later, [appellee] Entry of Praecipe Judgment of Non Pros. On June 23, 2015, [appellants] Petition Strike the Entry of Non Pros.
Trial court opinion, 11/18/15 -2 (footnote omitted).
The trial court denied appellants' petition strike on August 2015. This timely appeal followed.' Appellants were not ordered to file concise statement of errors complained of appeal pursuant Pa.R.A.P. 1925(b); however, November 2015, the trial court an opinion.
Appellants have raised the following issue for this court's review:
Did trial court commit an abuse of discretion in denying Appellants (Plaintiffs below), White, et al.'s Motion to Strike /Open /Vacate Entry of Non Pros when Notice of Intent to Enter Judgment of Non Pros was electronically pursuant Local Rule?
Appellants' brief 8.
"When reviewing petition to open and /or strike judgment pros pursuant 1042.6, our Court may reverse the decision of trial court only if we find trial court abused its discretion in reaching its determination." Zokaites Contracting Inc. v. Trant Corp., 968 A.2d 1282, 1286 (Pa.Super. 2009), appeal denied, 985 A.2d 972 (Pa. trial court's interlocutory order appealable as i right pursuant Pa.R.A.P. 311(a)(1) (stating that
orders refusing to open, vacate, strike off are appealable right). See Krauss v. Claar, 879 A.2d 302, 303 n.4 (Pa.Super. 2005), appeal denied, Pa. 713, 889 A.2d 1217 (2005) (noting order denying strike pros appealable right pursuant Pa.R.A.P. 311(a)(1)).
Smith v. Friends Hosp., 928 A.2d 1072, 1074 n.1 (Pa.Super. 2007).
-3- 2009), quoting Mumma v. Boswell, Tintner, Piccola & Wickersham, 937 A.2d 463 (Pa.Super. 2007) (citation omitted).
"It is well -established that strike off a non pros challenges only defects appearing the face of the record such a motion may granted if the record is self- sustaining." Hershey v. Segro, 252 Pa.Super. A.2d 478, 479 (1977). Additionally,
rule governing relief from pros indicates pertinent part: If the relief sought includes the opening
(b)
of the judgment, the petition shall allege facts showing that (1) the petition timely filed, (2) there reasonable legitimate explanation or excuse inactivity or delay,
(3) there meritorious cause of action. 3051(b).
Varner v. Classic Communities Corp., 890 A.2d 1068, 1072 (Pa.Super. 2006). dispute this case focuses second element, i.e., whether appellants provided legitimate excuse explaining failure to COM. liability applies to professional
claims against licensed professionals. Pa.R.C.P. 1042.1(b)(1)(i). "The rule contemplates [COM] will be contemporaneously or shortly after filing of the complaint, provides -day window after filing of the complaint accomplish filing [COM]." Varner[], 890 A.2d [at] [] (citation, internal quotation marks, and brackets omitted). Among other things, a COM must contain a certified statement from a licensed professional that the defendant's conduct fell outside professional standards of care or expert testimony is unnecessary prosecution of the claim. Pa.R.C.P. 1042.3(a)(1) -(3).
Zokaites, 968 A.2d at 1286.
If Pa.R.C.P. 1042.3 applies the plaintiff fails provide COM, prothonotary must, on praecipe the defendant, enter judgment of non pros against the plaintiff, so long as there is no pending timely motion seeking to extend time file COM. See Pa.R.C.P. 1042.6(a) (amended June 16, 2008). A extend time for filing COM must on or before the date which the filing COM due -60 after the filing of the complaint. See 1042.3(d) (amended June 16, 2008).
Id. crux of appellants' argument they were never properly -day notice of appellee's intention file for non pros required by 1042.7. Those
rules provide, pertinent part,
(a) Except provided subdivision (b), a
defendant seeking to enter pros under 1042.7(a) written notice intention file the praecipe serve it party's attorney record party if unrepresented, no sooner than the thirty -first day after the filing of the complaint.
Pa. R.C. P. 1042.6(a).
(a) The prothonotary,
defendant, enter of non pros against the plaintiff for failure to a certificate of merit within the required time provided that there no pending motion for
(1) determination the filing of certificate not required or no pending timely filed seeking extend time to file the certificate, no certificate of merit has been
(2) filed,
(3) except provided by as Rule 1042.6(b), the defendant has attached praecipe certificate of service of the notice of intention enter judgment of non pros, and (4) except provided by as Rule 1042.6(b), praecipe no less than thirty after the date of the filing of the notice intention enter judgment pros. Pa. R.C. P. 1042.7.
Here, appellee complied the requirements of Rules and 1042.7. Appellee waited until May 14, 66 days after appellants filed complaint, file notice of intention enter pros. Rule 1042.6 notice was with the prothonotary, time -stamped, entered the docket. Appellee attached affidavit service to the 1042.6 notice indicating service was made upon counsel for appellants via first -class United States mail. (Docket #15.) Appellants failed to respond, appellee filed for entry pros later.
Appellants complain under local rule, prothonotary was required serve them with copy Rule 1042.6 notice electronically, via e-mail. Appellants argue the failure do so constitutes breakdown in court operations. 205.4 provides, in pertinent part:
(a)(1) A court by local rule may permit or require
electronic filing legal papers with the prothonotary specify the actions proceedings legal papers subject rule. 205.4(a)(1).
(g)(1) Copies legal papers other than original
process filed in an action or served upon any party an action may served (i) provided by 440 or (ii) electronic transmission, by other than facsimile transmission, if the parties agree thereto electronic mail address included on an appearance or prior legal paper court the action. A paper served electronically is subject certifications set forth subdivision (b)(3). (2) Service electronic transmission complete when legal paper sent (i) recipient's electronic mail address, or (ii) to an electronic filing system website and an e-mail message sent the recipient by the electronic filing system the legal paper has been for available review on system's website. 205.4(g).
(a)(1) Copies legal papers other than original
process filed an action or served upon any party an action shall be served upon every other party the action. Service made (i) by handing or mailing a copy or leaving a copy each party at the address of the party's attorney of record endorsed on appearance or prior pleading party, or at such other address a party may agree[.] 440(a)(1)(i). Therefore, appellants were properly mail hard copy of notice of intention enter judgment of pros for failure COM. Moreover, appellants do dispute they received actual notice of both the notice of intent for entry by first -class U.S. mail. As trial court observed, "[appellants] had actual notice of both filings, should have filed COM extend time for filing before the prothonotary entered pros." (Trial court opinion, 11/18/15 4.) Appellants argue reply brief that, "Even if, Appellee argues, Appellants had [] constructive notice, Appellants are [] entitled wait for then rely upon the Prothonotary's docketing transmission." (Appellants' reply brief (emphasis in original).) Appellants' argument misses the mark. Appellants cite no authority whatsoever for the proposition failure electronically copy 1042.6 notice tolled the -day time period within which respond and /or constituted breakdown the operations of the court. Appellants had actual notice simply chose not respond. trial court did abuse its discretion refusing strike off judgment pros.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 11/8/2016