Case Information

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 FRAIDEL PHELPS & AVI PHELPS IN THE SUPERIOR COURT OF

PENNSYLVANIA Appellants

v.

SABINA DOPIRO & VALENTIN DOPIRO

AND ENID NELSON & MARTIN NELSON

No. EDA 2016 Appeal from the Order Entered April 2016 the Court of Common Pleas of Philadelphia County Civil Division at No(s): BEFORE: OTT, RANSOM, and FITZGERALD,* JJ FILED MAY 08, 2017

MEMORANDUM BY FITZGERALD, J.: Appellants, Fraidel Phelps and Avi Phelps, from order entered Philadelphia County Court of Common Pleas entering in of non pros. Because we conclude the order not appealable, quash summarized the procedural posture of this as

follows:

This action arose dog bite incident which occurred Philadelphia August [Appellants] filed Writ of Summons just days before the running of statute limitations. . . A Complaint filed in . * Former Justice specially assigned the Superior Court.

December 2014. . . The matter was listed this court's . Compulsory Arbitration Program.'

[Appellants] filed several continuance requests of the Arbitration hearings.

The continuance[s were] granted matter was rescheduled to the morning of March 4,

[Appellants] failed to appear for March 4, Arbitration. On March 11, 2014, Rule was issued against [Appellants] to show cause why pros should entered [their] failure to attend the Arbitration. The Rule hearing was scheduled April 19, 2016. The Rule notice specifically stated to appear would result dismissal of case and entry of non pros.

[Appellants'] counsel attended the Rule hearing without his clients.

At the conclusion of the hearing, the court questioned [Appellants'] counsel as his clients' whereabouts. Counsel stated [they] were Airmont, New York. Counsel their non-appearance. provided no explanation as Accordingly, this [c]ourt finding [Appellants] failed to appear at the Arbitration failed appear at the Rule hearing, entered Judgment of Non Pros [on April 19, 2016]. next day, [Appellants] filed Motion for

Reconsideration. . . After reviewing the Motion . responses, this court denied Motion [on May 13, 2016]. This appeal followed.

' On June agreement the parties, the remanded arbitration pursuant 1021(d).

Trial Ct. Op., 6/20/16, at 1-4.2

Appellants raise the following issue our review:

Whether the court committed legal error in entering judgment where [Appellants], physically present, attempted use their depositions at arbitration under circumstances where their domicile more than miles from the forum adverse road weather conditions impeded [their] safe travel to the hearing.

Appellants' Brief at

Initially, consider whether Appellants have preserved this issue for our review. "By definition, non pros judgment entered by the trial court which terminates plaintiff's action due to the properly and/or promptly prosecute case. Following entry of the judgment, plaintiff may seek petitioning strike open the judgment." Dombrowski Cherkassky, Super. 1997) (citations omitted). 3051 addresses relief from

provides, pertinent part, as follows:

(a) Relief shall sought by petition. All grounds relief, whether strike off to open it, must asserted single petition.

(b) Except as provided subdivision (c), if relief sought includes opening judgment, petition shall allege facts showing that trial court opinion marked as Appendix "C" Appellants' Brief.

(1) the is timely filed,

(2) there is a reasonable explanation legitimate excuse the conduct that gave rise to of non pros,

(3) there a meritorious cause of action.

Pa.R.C.P. 3051(a) -(b)(1-3).3

In Sahutsky, Pennsylvania Supreme Court "granted allocatur consider the effect of appellees' file a to open a judgment pros pursuant Pa.R.C.P. 3051 before filing direct from that judgment in the Superior Court." at 997. The Sahutsky Court opined:

The Rule's mandatory phrasings relief from pros "shall sought petition" "must asserted a single petition" clearly connote requirement parties petition with the first instance. ^[3] Pennsylvania Supreme Court Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996 2001), noted that

[u]nder law existing prior the January 1, effective date Rule party seeking review of a could proceed two ways: either petition the trial court to open seek appellate review of the judgment. See Valley Peat & Humus Sunny/ands, Inc., [ ] A.2d 193 ([Pa. Super.] 1990). at 998. 3051 was adopted to "eliminate[ ]

choice establish [ ] uniform procedure when sought from a of non cmt.

The reason for requiring that the petition directed to the trial initially is both obvious salutary: it ensures that the court, which is the best position rule on matter first instance, shall have an opportunity to do so. Such an approach will avoid unnecessary appeals, thereby assuring judicial economy, will provide a better record for review those cases where the question close enough to warrant an at 999-1000. "Any appeal related to a judgment of non lies not from the itself, but from the denial of petition to open strike." Madrid v. Alpine Mountain Corp., 24 A.3d 382 (Pa. Super. 2011).

Our Supreme Court Sahutsky concluded that "[b]ecause appellees failed to file the petition to open as required, they failed to preserve the issues raised therein and, therefore, claims are waived." Sahutsky, A.2d at 1001 (citation omitted); see also Krell v. Silver, 817 A.2d 1097, 1101 (Pa. Super. 2003) ("applying the dictates of we conclude Appellant failed file petition to open strike of non pros, and, therefore, find all her claims waived appeal").4

In Stephens Messick, 793 Super. 2002), this Court opined: "failure promptly strike or open pros operates as waiver of any issues concerning the and, therefore, precludes our review of the judgment We note an "[a]ppellant's motion reconsideration not functional equivalent to open Krell, 817 A.2d at 1102. In the sub judice, the motion reconsideration did substantially comply with pros first instance." Id. at 797. Because "an appeal only lies from court's order denying for relief from non pros; no appeal lies from an order entering at (citation omitted). Therefore, an an order entering a of non would quashed. Id.

Pursuant to 3051, Appellants were required to seek trial court petition. Their failure open strike the results waiver of all claims appeal. See 782 A.2d at 1001. We cannot review the non pros.

See Stephens 799 A.2d at 799. Accordingly, we are constrained to quash the

Appeal quashed.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 5/8/2017