Wishnefsky, B. v. Salameh, J.

• Court: Superior Court of Pennsylvania
• Decided: November 30, 2023
• Docket: 1496 WDA 2022
• Status: Unpublished

Opinion

J-A22012-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

BRUCE L. WISHNEFSKY : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JAWAD A. SALAMEH, M.D. : No. 1496 WDA 2022

Appeal from the Order Entered November 16, 2022 In the Court of Common Pleas of Somerset County Civil Division at No(s): 654 Civil 2016

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY BOWES, J.: FILED: November 30, 2023

Bruce L. Wishnefsky appeals pro se from the order denying as untimely

his petition to strike the judgment of non pros entered in his action against

Jawad A. Salameh, M.D. (“Dr. Salameh”). We affirm.

This matter has a substantial history and is presently before this Court

for the third time. For purposes of our review, it is sufficient to recount that

Appellant is currently serving a sentence of forty-five to ninety years for

convictions relating to sexually abusing two children. On December 16, 2016,

he filed a pro se complaint against Dr. Salameh, then medical director of State

Correctional Institution - Laurel Highlands, asserting a professional liability

claim based on the doctor’s refusal to refer Appellant to a urologist.

Early in the proceedings, Appellant filed a motion for determination of

whether a certificate of merit (“COM”) must be filed. Before the motion was

decided, Dr. Salameh filed a notice of intent to enter judgment of non pros J-A22012-23

based on Appellant’s failure to file a COM, and later a praecipe for entry of

judgment. The trial court denied Appellant’s subsequent petition to strike the

judgment of non pros, and Appellant appealed to this Court. We reversed the

matter and remanded for additional proceedings for reasons not relevant

herein. See Wishnefsky v. Salameh, 193 A.3d 1091 (Pa.Super. 2018)

(unpublished memorandum).

After remand, the trial court vacated the entry of judgment and entered

an order directing Appellant to file a COM within sixty days. Appellant failed

to do so. In June of 2019, Dr. Salameh filed another praecipe for entry of

judgment of non pros, but neglected to file a copy of his notice of intent. When

the trial court again denied Appellant’s subsequent petition to strike the

judgment, Appellant appealed. This Court determined that because Dr.

Salameh did not file a copy of a notice of intention to file for judgment of non

pros, the judgment could not stand. See Wishnefsky v. Salameh, 253 A.3d

252, 2021 WL 1235390 at *3 (Pa.Super. 2021) (non-precedential decision).

Accordingly, we vacated and remanded the matter a second time.

The trial court and the parties then participated in a case management

conference on June 14, 2021. At its conclusion, the court granted Appellant

an additional twenty days to file a COM, which Appellant failed to do. He did,

however, move for leave to amend his complaint. The court permitted

Appellant to amend several of the paragraphs, denying the request as to the

remainder because they suggested a new cause of action after the statute of

limitations had expired. The order granting leave was entered on July 21,

-2- J-A22012-23

2021. On August 9, 2021, Dr. Salameh served and filed another notice of

intent to enter judgment of non pros based upon Appellant’s failure to submit

a COM, and then a corresponding praecipe for entry of judgment on

September 20, 2021.

On September 19, 2022, nearly a full year later, Appellant petitioned to

strike the judgment. After entertaining argument, the trial court denied the

petition, finding that it was not promptly filed pursuant to Pa.R.C.P. 3051(b).

This timely appeal followed.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following three issues on appeal:

I. Whether the trial court erred when it denied Appellant’s petition to strike judgment non pros, because it believed the petition was untimely, when there is no set time to file a petition to strike.

II. Whether the trial court erred when it held that a [COM] is required for the claim that arose when Dr. Salameh was the medical director, with overall responsibility for the provision of medical case for S.C.I. Laurel Highland’s inmates, but was not Appellant’s treating physician.

III. Was the praecipe for judgment premature since the notice of intent to dismiss was filed and served before [thirty] days had elapsed since the filing of the amended complaint[?]

Appellant’s brief at 1-2 (cleaned up).

We begin with a review of the pertinent law. This Court has stated that

“the decision to deny a petition to open or strike a judgment of non pros is

reviewed pursuant to an abuse of discretion standard.” Banks v. Cooper,

171 A.3d 798, 801 (Pa.Super. 2017) (citation omitted). As such, “the trial

-3- J-A22012-23

court’s decision will be overturned only if it reflects manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support as to be clearly erroneous.” Id.

Rule 3051 governs the procedure for challenging a judgment of non

pros, providing in relevant part as follows:

(a) Relief from a judgment of non pros shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition.

(b) [Excepting when a judgment is entered for lack of activity], 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.C.P. 3051.

In his first issue, Appellant disputes that his petition to strike was

untimely. In total, he argues thusly:

The trial court relies on Pa.R.C.P. 3051(b), to justify its belief that Appellant’s petition to strike is untimely. Rule 3051(b) states, “if the relief sought includes the opening of the judgment, the petition shall allege facts showing that . . . the petition is timely filed.” By its own language, Rule 3051(b) only applies when the relief sought is to open the judgment, not to strike the judgment, which is the relief sought here.

Appellant’s brief at 4 (cleaned up and emphases added).

The trial court found that Appellant’s petition to strike was untimely

since it was filed almost a year after entry of the judgment of non pros and

-4- J-A22012-23

because Appellant provided no explanation as to why he failed to challenge

the judgment sooner. See Trial Court Opinion, 1/27/23, at 5-6. It observed

that Rule 3051’s timeliness requirement applies whether a petition is styled

as one seeking to strike a judgment or open it. Id. at 5 (citing Sahutsky v.

Mychak, Geckle & Welker, P.C., 900 A.2d 866, 869 (Pa.Super. 2006) and

Stephens v. Messik, 799 A.2d 793, 797 (Pa.Super. 2002)). Further, the

court recounted that at oral argument, when asked about why it took so long

to file the petition, Appellant responded by stating “[y]our Honor, I cannot

give you any explanation for that.” Id. at 5-6 (citing N.T. Argument,

11/15/22, at 4).1

Upon review of the certified record, we conclude that the court did not

abuse its discretion by denying the petition to strike. Our caselaw is clear that

the timeliness requirement in Rule 3051 applies to both petitions to open and

petitions to strike. See Sahutsky, supra at 869 (stating that “in all cases

where non pros has been entered, . . . a petition to strike off or open must

be timely filed after the non pros in order to preserve the issue for appeal”

(emphasis added)). Thus, we reject Appellant’s contrary and constrained

interpretation of Rule 3051.

____________________________________________

1 For his part, Dr. Salameh joins the trial court’s rationalethat the petition was untimely. See Dr. Salameh’s brief at 22-25. In addition, Dr. Salameh encourages this Court to find that even if the petition was timely filed, we should nonetheless affirm the trial court’s decision pursuant to the equitable doctrine of laches. Id. at 24-25.

-5- J-A22012-23

Further, we readily agree with the trial court that the instant petition

was not promptly filed. This Court has previously observed that “unexplained

delays of 37, 41, and 47 days render a petition to open untimely.” Madrid v.

Alpine Mountain Corp., 24 A.3d 380, 383 (Pa.Super. 2011) (citations

omitted). Stated another way, even if filed within a month-and-a-half of entry

of a judgment, a petition will not be considered timely absent a reasonable

explanation or legitimate excuse. Here, it took Appellant 364 days, nearly

twelve full months, to file his petition to strike. Moreover, he admittedly could

not proffer any explanation as to why he did not challenge the judgment

sooner. See N.T. Argument, 11/15/22, at 4. Under these circumstances, the

court’s finding of untimeliness was not “manifestly unreasonable” or “clearly

erroneous.” Banks, supra at 801. Therefore, Appellant is not entitled to

relief on this claim.

In his second and third issues, Appellant attacks the validity of the

underlying judgment of non pros on two bases: first, because he believes that

he should not have been required to file a COM, and second, because the

praecipe for entry of the judgment was entered less than thirty days from the

filing of the amended complaint, purportedly in violation of Rule 1042.6(a).2

2 This rule provides that, excepting certain limited circumstances not applicable here, a party seeking to enter a judgment of non pros “shall file a written notice of intention to file the praecipe and serve it on the party’s attorney of record or on the party if unrepresented, no sooner than the thirty- first day after the filing of the complaint.” Pa.R.C.P. 1042.6(a).

-6- J-A22012-23

See Appellant’s brief at 4-6. However, we note that “failure to promptly file

a [Rule] 3051 petition to strike or open the judgment of non pros operates as

a waiver of any rights to address issues concerning the underlying judgment

of non pros and, therefore, precludes our review of the entry of the judgment

. . . in the first instance.” Stephens, supra at 797; see also Horwath v.

DiGrazio, 142 A.3d 877, 879-80 (Pa.Super. 2016) (holding that “failure to

file a timely or rule-compliant petition to open operates as a waiver of any

right to address issues concerning the underlying [judgment of non pros]”).

As discussed above, Appellant did not promptly file his petition to strike,

instead waiting nearly a year before doing so. Accordingly, he has waived all

issues relating to the underlying judgment, and we are therefore precluded

from reviewing Appellant’s remaining claims.

For all of the foregoing reasons, we affirm the trial court’s order denying

Appellant’s petition to strike the judgment of non pros.

Order affirmed.

11/30/2023

-7-