Almes v. Burket

881 A.2d 861, 2005 Pa. Super. 289, 2005 Pa. Super. LEXIS 2844

• Court: Superior Court of Pennsylvania
• Decided: August 9, 2005
• Status: Published

Opinions

OPINION BY

BENDER, J.:

¶ 1 This is an appeal from an order denying Appellants’ Petition for Relief from Judgment of Non Pros. Appellants raise one issue for our resolution, “did the Appellant (sic) meet the requirements of Pa.R.C.P. 3051(b) for relief from judgment of non pros?” We reverse and remand.

¶ 2 The facts relevant to our discussion follow: on October 23, 2003, Appellants filed a complaint that included, inter alia, a claim of professional negligence against Appellee, Myron Hay Tomb, Esquire,-relating to Tomb’s representation of Appellants in the purchase of real estate. The complaint alleges that in March of 1999, Appellants entered into an agreement to purchase two parcels of land from the Burkets and that settlement on the transaction took place on April 9, 1999, via the execution by the parties of a general warranty deed. Between the signing of the purchase agreement and closing on the property, Appellants retained Tomb to represent them in the transaction and to ensure the property had a marketable title. The complaint further alleges that Tomb employed Sehillinger & Keith Abstract & Settlement, Inc., to perform a title search.

¶ 3 In July of 2001, Appellants entered into an agreement to convey a portion of the property purchased from the Burkets to a third-party. In August of 2001, Appellants weré informed that a cloud on the title existed in the form of a “right of first refusal,” or option to buy, contained in an earlier deed from the Burkets to Charles Mackall, Jr., executed in 1996. Due to the existence of the right of first refusal, Appellants were forced to negotiate a settlement with Mackall. This settlement required Appellants to convey to Mackall a right-of-way across the subject property. Appellants allege that the value of the property was diminished by $58,500 as a result of the right-of-way.

¶ 4 After the filing of their complaint, Appellants, through their counsel, David C. Pohland, Esquire, sought a written statement from a licensed professional that there exists a reasonable probability that the care, skill or knowledge exercised by Tomb in representing Appellants fell outside acceptable legal standards. This statement was sought to comply with Pa. R.C.P. 1042.3, which requires that a “certificate of merit” be filed within 60 days of the filing of the complaint. In the present case, the sixtieth day from the date the complaint was filed was December 22, 2003. On December 18, 2003, the attorney Appellants’ counsel had retained for purposes of reviewing the case of professional negligence against Tomb mailed the statement in question to Appellants’ counsel. On that same day, and prior to receipt of the statement, Appellants’ counsel learned that his mother-in-law was “gravely ill.” In response to the news, counsel, his wife and their children, traveled to the residence of his mother-in-law. On that evening, counsel’s mother-in-law died and was subsequently buried on December 22, 2003.

¶ 5 As the Christmas holiday fell almost immediately after the funeral for counsel’s mother-in-law, counsel did not return to his office until December 26, 2003, where, upon opening his accumulated mail, counsel discovered both the statement from his retained counsel-expert and a copy of a praecipe to enter judgment of non pros filed on behalf of Tomb. The praecipe was dated December 22, 2003. Judgment of non pros was entered on December 26, 2003, and notice of entry of the same was mailed to Appellant that same day. On December 31, 2003, Appellant filed a petition for relief from judgment of non pros. Attached to the petition for relief was the statement of opinion and certificate of merit required by Pa.R.C.P. 1042.3, and an affidavit setting forth the facts relevant to counsel’s absence from the office from December 18, 2003 through December 22, 2003. The affidavit further asserts that, during the time between counsel’s departure from his office in response to the urgent situation and through the burial, counsel’s “heart and mind were focused on the needs of my family.” Exhibit “C,” Affidavit of David C. Pohland, Esquire, ¶ 4.

¶ 6 On April 21, 2004, argument was heard on Appellants’ petition. The parties stipulated on the record that the contents of the affidavit of Appellants’ counsel (Exhibit C) were “true and correct for purposes of this proceeding.” N.T. Argument, 4/21/04 at 4. In an order dated April 26, 2004, Appellants’ petition was denied. The order denying Appellants’ petition contained no explanation,¹ but did refer to the cases of Helfrick v. UPMC, Shadyside Hospital, 65 Pa. D. & C. 4th 420 (2003), and Kerry v. Butler Memorial Hospital, 66 Pa. D. & C. 4th 569 (2004). The present appeal followed.

¶ 7 We begin our analysis of the present case by acknowledging that “[a] Petition to Open a judgment of non pros is addressed to the equitable powers of the court. It is a request to open a judgment of non pros by way of grace and not of right.” Walker v. Pugliese, 317 Pa.Super. 595, 464 A.2d 482, 484 (1983). Since the decision to open a judgment of non pros is a matter of equity and grace, appellate review of the decision is subjected to an abuse of discretion standard. Sklar v. Harleysville Ins. Co., 526 Pa. 617, 587 A.2d 1386 (1991).

¶ 8 In Hoover v. Davila, 862 A.2d 591 (Pa.Super.2004), we concluded that relief from a judgment of non pros taken for failure to file a Rule 1042.3² certificate of merit in a timely fashion is subject to the same guidelines as the opening of a judgment of non pros under Rule 3051. Pa. R.C.P. 3051 reads, in relevant part:

Rule 3051. Relief from Judgment of Non Pros

... (b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that (1) the petition is timely filed, (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action. Pa. R. Civ. P. 3051(b)(l-3).

¶ 9 Appellants contend that they met the requirements for the opening of a judgment of non pros. By implication then, they further assert that the court abused its discretion in refusing to open the judgment. As Appellee acknowledges, the present case hinges upon whether or not there is a reasonable explanation or legitimate excuse for Appellants’ failure to file the certificate of merit in timely fashion. It would seem uncontested that Appellants have met the first and third prong of the test. Appellants filed the petition for relief within a week of the entry of the judgment and the certificate of merit and supporting statement suggest that a prima facie case of professional negligence exists. Thus, we concur with Appellee that the case hinges upon whether Appellants have satisfied prong two of the rule. Athough we are without the benefit of the trial court’s reasoning, we must equate the trial court’s denial of Appellants’ petition with the conclusion that the court found Appellants’ excuse as not legitimate or unreasonable. With this conclusion, we disagree.

¶ 10 Years ago, the appellate courts, if not the trial courts, of this Commonwealth were fairly loathe to put a litigant out of court for missing a filing deadline due to lawyer oversight. The following passage reflected the prevailing point-of-view, “[wjhile, generally speaking, a litigant is bound by the actions or inactions of his counsel, there is authority for the proposition that when a plaintiff places his case in the hands of reputable counsel he will not be turned out of court if the delay complained of was almost entirely on account of neglect or oversight of his counsel.” Manson v. First Nat’l Bank, 366 Pa. 211, 77 A.2d 399 (1951). Thus, in Moyer v. Americana Mobile Homes, Inc., 244 Pa.Super. 441, 368 A.2d 802 (1976), this Court seemingly adhered to the above philosophy and excused the failure to file a timely answer to a complaint when the delay was caused, in part, by the misplacing of the file in an attorney’s office.³ We stated:

It is well settled that the power to open a default judgment entered as a result of mistake or oversight of counsel is frequently exercised where the petition is promptly filed and a reasonable excuse for the delay is presented. Alexander v. Jesray Construction Co., 237 Pa.Super. 99, 346 A.2d 566 (1975). The purpose of the rules in authorizing the entry of default judgments is to prevent a dilatory defendant from impeding the plaintiff in establishing his claim. The rules are not primarily intended to provide the plaintiff with a means of gaining a judgment without the difficulties which arise from litigation. Kraynick v. Hertz, supra[, 443 Pa. 105, 277 A.2d 144 (1971) ]; Slott v. Triad Distributors, Inc., 230 Pa.Super. 545, 327 A.2d 151 (1974). Therefore, in most cases such as the instant case, when judgment is taken on the twenty-first day after the filing of the complaint, the purpose of the rules is not served when a timely filed petition to open is denied. Such “snap” judgments are disfavored by the law.

Id. at 804-05.

¶ 11 Similarly, in Nardulli v. John Carlo, Inc., 274 Pa.Super. 34, 417 A.2d 1238 (1979), a default judgment was entered when an attorney representing two defendants erroneously believed that he had procured an extension of time to file an answer for both defendants. Counsel had received an extension to file a responsive pleading from the plaintiffs attorney, but had neglected to inform opposing counsel that he represented both the defendant-contractor and the contractor’s surety. A review of the written correspondence verified that counsel had neglected to inform opposing counsel of his representation of the surety. When the plaintiff took a default judgment as to the surety, a petition to open default judgment was filed, which was denied. On appeal, we reversed, concluding that the court’s refusal to open the judgment under the facts presented constituted an abuse of discretion. We stated that “errors of counsel which indicate an oversight rather than a deliberate decision not to defend, have been held to constitute sufficient legal justification to open a default judgment.” Id. at 1240.

¶ 12 Perhaps more on point, a recent decision of a panel of this Court affirmed the trial court’s excusal of a failure to file a certificate of merit within the time allowed by Rule 1042.3 due to attorney misapprehension. In that case, Harris v. Neuburger, 2005 PA Super 228, 877 A.2d 1275 (2005), the attorney representing Harris secured expert reports from a medical doctor who opined that the appellee-doctors had breached the standard of care which led to the death of the appellant’s decedent. The appellant’s attorney then forwarded the reports to the Appellees well within the 60-day time window but failed to file the corresponding certificate of merit with the Prothonotary. When the Ap-pellees took a non suit, appellant filed a petition to open arguing that there had been “substantial compliance” with the rule and that the failure to file the certificate resulted from appellant’s attorney’s misapprehension of the requirements of Rule 1042.3. Apparently counsel believed that if the required reports were forwarded to the defendant-professional, it was unnecessary to file a certificate of merit. Id. at ¶ 8. The court opened the judgment and, upon appeal, we affirmed, concluding that the purpose of the rule, “to prevent the filing of baseless, . '.professional liability claims,” id. at ¶ 10, had been satisfied. We ultimately concluded that “since appel-lee has satisfied the purpose of Rule 1042.3, he should not be barred from his day in court because he mistakenly, but reasonably, believed he had met his obligation [under the rule].” Id. at ¶ 11.

¶ 13 Here we must consider the reasonableness of counsel’s actions in failing to take steps to have the certificate of merit filed after he left the office upon learning that his mother-in-law was gravely ill and then being faced with the woman’s subsequent death and burial on the day the certificate was due for filing. It is not inconceivable that an attorney under these circumstances would keep his case obligations compartmentalized in his mind and, despite the tremendous distraction of a death in the family, would take some steps to ensure either that the certificate was prepared and filed in a timely fashion or that an extension to do the same was secured by another lawyer in his office. Nevertheless, while acknowledging the above, and based upon human experience, we cannot assert that the opposite premise is true. That is, we are not prepared to assert that an attorney who forgets that the certificate was due or who fails to take the above mentioned actions when faced with a family crisis like the one presented here is so derelict in his obligations that the oversight should not be excused.

¶ 14 The law requires only that the failure be accompanied by a reasonable explanation or a legitimate excuse. Keeping in mind that the opening of a judgment is an appeal to the equitable powers of the court, we do not believe our law is so cold-hearted as to demand vigilance of an attorney who experiences a death in the family or is so cold as to be unwilling to excuse failure under these circumstances. The purpose of requiring a certificate of merit is to help eliminate frivolous claims of professional negligence and, possibly, to help hasten the prosecution of the same. Another recognized purpose of the rule can be found in Speicher v. Toshok, 63 Pa. D. & C.4th 435, 443 (2003), where it was stated that “the purpose of these rules is to minimize the costs of defense and the time that a licensed professional must devote to the litigation until the plaintiff has been able to secure a certificate of merit.” Under the circumstances of the present case, a delay of a week does little damage to either of these admittedly legitimate goals.

¶ 15 For the above reasons, we conclude that Appellants proffered a reasonable excuse for the failure to file the Rule 1042.3 certificate of merit. As all three prongs of the applicable test were met, the court abused its discretion and/or erred in denying Appellants’ Petition for Relief from Judgment of Non Pros.⁴ Accordingly, we will reverse the order appealed from and remand for proceedings consistent with this Opinion.

¶ 16 Order reversed. Jurisdiction relinquished.

¶ 17 Judge ORIE MELVIN files a dissenting opinion.

1 . Nor was a Rule 1925(a) Opinion filed by the court.

2 . Pa.R.C.P. 1042.3 reads:

Rule 1042.3. Certificate of Merit

(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either

(1)an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or

(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or

(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.

3 . Because non pros in a Rule 1042.3 context results from the failure to file a document within the period prescribed by the rule, cases involving the opening of default judgments stand analogous to the present inquiry.

4 . Since the trial court did not file an opinion in this matter, we are unable to discern whether the denial was based upon a conclusion that the proffered excuse was unreasonable or whether the court misapprehended the applicable law. Nevertheless, as we believe a conclusion by the trial court that counsel’s excuse was unreasonable would constitute an abuse of discretion, we see no reason to remand the present case for the preparation of an opinion. Whether the denial was based upon a misapprehension of the applicable law or an assessment of the reasonableness of the proffered excuse, in our opinion, the denial of Appellants’ petition was in error.