Arnold, B. v. Appel & Yost, LLP

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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.

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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) ____________________________________________ 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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