Arnold, B. v. Appel & Yost, LLP ( 2014 )

J-A26018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BETTY ARNOLD IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
APPEL & YOST, LLP, GRETA R. AUL,
ESQ., ROBERT L. ARNOLD, ESQ., DAVID
W. MERSKY, ESQ., ALBERT D.
BRISELLI FINANCIAL GROUP,
Appellees No. 2305 MDA 2013
Appeal from the Order Entered December 9, 2013
In the Court of Common Pleas of York County
Civil Division at No(s): 2000-SU-04750-01
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 29, 2014
Appellant, Betty Arnold, appeals from the December 9, 2013 order
denying her petition to strike a judgment of non pros pursuant to
Pennsylvania Rule of Civil Procedure 3051. Appellees have filed a motion to
dismiss this appeal pursuant to Pennsylvania Rule of Appellate Procedure
1972(a)(5) which allows for d for failure to preserve the question
motion and dismiss this appeal.
We summarize the relevant procedural background of this case as
follows. A judgment of non pros was entered against Appellant on March 1,
2013. Appellant filed a timely notice of appeal on March 22, 2013, which
J-A26018-14
was docketed at 527 MDA 2013. On July 3, 2013, this Court entered an
appellant must seek relief from the [judgment of] non pros in the trial court
laims concerning the
judgment of non pros
On July 24, 2013, Appellant filed a petition to strike the judgment of
non pros in the trial court. Pursuant to York County Rule of Civil Procedure
206.4(c), Appellant contemporaneously filed a petition for the trial court to
issue a rule to show cause why her petition should not be granted. On
December 9, 2013, the trial court entered an order denying her petition. On
December 23, 2013, Appellant filed a timely notice of appeal.1
On May 13, 2014, Appellees filed a motion to dismiss the instant
appeal pursuant to Rule 1972(a)(5). Appellant filed her response on May
28, 2014. On July 7, 2014, this Court entered an order denying the motion
to dismiss without -raise the issue before
the merits panel. Superior Court Order, 2305 MDA 2013, 7/7/14, at 1.
-12.
petition under Pa.R.C.P.
3051 is the only means by which relief from a judgment of non pros may be
Bartolomeo v. Marshall, 69 A.3d 610, 613 (Pa. Super. 2013)
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1
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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compliant petition to open operates as a waiver of any right to address
issues concerning the underlying judgment of non pros. Id. at 614 (citation
omitted). Appellees argue that by taking an appeal directly from the
judgment of non pros instead of filing a petition to open or strike under Rule
3051, Appellant waived all claims regarding the judgment, and this appeal
counters that she was not precluded from filing a Rule 3051 petition once
her first appeal was dismissed by this Court on the grounds of waiver.
petition is a collateral attack on a judgment of non pros.
Our Supreme Court has stated that a judgment of non pros is a final
appealable order as it disposes of all claims and all parties. Sahutsky v.
H.H. Knoebel Sons, 782 A.2d 996, 1001 n.3. (Pa. 2001), citing Pa.R.A.P.
and of
-trial motion. Id. at
1000. The Sahutsky
same function as a post-trial
trial court] an opportunity to correct alleged errors before an appeal is
Id. Based on these considerations, our Supreme Court concluded
that when a litigant appeals from a judgment of non pros,
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consequence of the failure to file a Rule 3051 petition is a waiver of the
substantive claims that would be raised Id. at 1001 n.3 (emphasis
added).
Since Sahutsky was decided, this Court has characterized Sahutksy
rule as one of complete waiver of all claims relating to the judgment of non
pros. In Madrid v. Alpine Mountain Corp., 24 A.3d 380 (Pa. Super.
2011), appeal denied, 40 A.3d 1237 (Pa. 2012), the Madrids had a judgment
of non pros entered against them and filed a direct appeal with this Court.
Id.attorneys informed them it may have been premature, so no decision was
rendered by this Court. Id. The Madrids then filed a Rule 3051 petition,
which was denied, and a new appeal was taken. Id. Although this Court
found their issues waived for failure to comply with Rule 1925(b), this Court
commented on the effect of their prior appeal as follows.
[W]e note that the Madrids have only been able to
sustain their action as long as they have due to the
Indeed, had our staff not contacted them to suggest
that their appeal was premature, the case would
have proceeded to the merits panel, which would
have been constrained to conclude that the Madrids
had waived all claims by failing to file a petition
under Rule 3051. See Sahutsky[, supra] (failure
to file Rule 3051 petition prior to appeal operates
as complete waiver of any claims of error
concerning judgment of non pros; quashal
inappropriate).
Id. at 383 n.2 (emphasis added).
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In this case, the parties agree that Appellant filed a direct appeal to
this Court from the judgment of non pros without first filing a Rule 3051
petition in the trial court. The parties also agree that this Court dismissed
that appeal on the basis of waiver. The only dispute between the parties in
to file a
Rule 3051 petition after said appeal was dismissed. We conclude that it did.
As noted above, our Supreme Court has not characterized Rule 3051
petitions as collateral to a judgment of non pros, as Appellant appears to
argue, but rather it explicitly equated a Rule 3051 petition to a post-trial
motion.2 Sahutsky, supra at 1000. Therefore, in order to preserve any
claims regarding the judgment of non pros, Appellant was required to file a
Rule 3051 petition before she could take any appeal to this Court
concerning the same. See id. Had Appellant withdrawn or discontinued her
appeal before a merits decision, waiver would not follow. See Madrid,
supra____________________________________________
2
We are cognizant that in Stephens v. Messick, 799 A.2d 793 (Pa. Super.
2002) this Court considered a Rule 3051 petition after a direct appeal from a
judgment of non pros was quashed by this Court. Id. at 796. In Stephens,
on the basis of untimeliness of the
Rule 3051 petition, rather than on waiver. Id. at 801. However, as a
order quashing the [first] appeal
Sahutsky[; therefore,]
quashal in Stephens Krell v. Silver, 817
A.2d 1097, 1101 n.4 (Pa. Super. 2003), appeal denied, 830 A.2d 976 (Pa.
2003). We reach the same conclusion regarding Stephens
case.
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merits, on the basis of waiver. See Pa.R.A.P. 1972(a)(5). As a result,
substantive claims that would be raised
such a petition in the future. Madrid, supra; Sahutsky, supra (emphasis
any right to address [the] issues
concerning the underlying judgment of non pros Bartolomeo, supra.Based on the foregoing, we conclude that Appellant waived all claims
regarding the judgment of non pros in this case based on her failure to file a
Rule 3051 petition in the trial court before taking an appeal from the
judgment of non pros. See Sahusky, supra. Accordingly, we grant
Motion to dismiss granted. Appeal dismissed. Case stricken from
argument list.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
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