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Orlando Bartolomeo, Administrator of the Estate of Daniel Bartolomeo v. Steven Marshall and Tammy Marshall

May 2, 2013

ORLANDO BARTOLOMEO, ADMINISTRATOR OF THE ESTATE OF DANIEL BARTOLOMEO, AND ORLANDO BARTOLOMEO AND MARY BARTOLOMEO, IN THEIR OWN RIGHT, APPELLANTS
v.
STEVEN MARSHALL AND TAMMY MARSHALL, INDIVIDUALLY AND JOINTLY, AND MARSHALL TREE EXPERTS, INC., APPELLEES



Appeal from the Order Entered January 30, 2012, In the Court of Common Pleas of Lawrence County, Civil Division, at No. 11933 of 2010.

The opinion of the court was delivered by: Shogan, J.:

2013 PA Super 103

BEFORE: DONOHUE, SHOGAN and WECHT, JJ.

OPINION BY SHOGAN, J.:

Orlando Bartolomeo, as administrator of the estate of Daniel Bartolomeo ("Decedent"), and Orlando Bartolomeo and Mary Bartolomeo in their own right (collectively "Appellants"), appeal from the order entered on January 30, 2012, in which the trial court, following an order expressly granting reconsideration of a judgment of non pros in favor of Marshall Tree Experts, Inc. ("Appellee"), ultimately denied Appellants' petition to open a judgment of non pros.*fn1 We affirm.

The relevant facts and procedural history of this matter were set forth by the trial court as follows:

[Decedent] was born on June 20, 1989, and was a member of the U.S. Army, who recently completed basic training and returned home on leave to celebrate the holidays. The Decedent resided with [Appellants] until his death on December 20, 2008. During the late evening hours of December 19, 2008, and the early morning hours of December 20, 2008, the Decedent was attending a party hosted in an old school bus that was parked on property owned by the defendants Steven Marshall and Tammy Marshall (hereinafter "Marshalls") located at 5213 Ellwood Road, Ellwood City, Lawrence County, Pennsylvania. That address is also the principal place of business for [Appellee]. The property was transferred from Stephen J. Marshall to Stephen J. Marshall and Tami S. Marshall by deed dated November 29, 2010, and recorded with the Lawrence County Recorder of Deeds at Document Number: 2010-009836. There is no indication on the record that the property was owned by Defendant Marshall Tree Experts, Inc. at any time.

The old school bus was furnished with couches and a pot belly stove to be used for parties hosted by the Marshalls' minor children. On the night in question, beer and Jaegermeister were present at the party and the Decedent ingested Oxycodone. Eventually, some of the party goers, including the Decedent, went into the residence owned by the Marshalls to sleep for the night. In the early morning hours of December 20, 2008, one of the party guests discovered that the Decedent was in distress, an ambulance was called and he was transported to Ellwood City Hospital where he was pronounced dead.

[Appellants] initiated suit against [the Marshalls and Appellee] by filing a Praecipe For Writ Of Summons on December 15, 2010. [Appellee] filed a Praecipe To Issue Rule Upon [Appellants] To File Complaint on December 30, 2010. In her deposition, Attorney Breonna Frisk-Miller n1 testified that she received a 30-day extension to file a complaint in early January 2011, in order to conduct depositions to determine the merits of the case. Counsel for [Appellee] contacted [Appellants'] counsel by telephone on March 2, 2011, to provide notice, as a professional courtesy, that counsel was pursuing a Judgment of Non Pros. On March 9, 2011, [Appellee] served a Notice Of Intent To Enter Judgment Of Non Pros upon [Appellants'] counsel, Peter J. Pietrandrea, Esquire, and it served [Appellants'] counsel, Nick A. Frisk, Jr., Esquire, with the same on March 10, 2011. On March 25, 2011, [Appellee] served [Appellants] with an Affidavit Of Service Of Notice Of Intent To Enter Judgment Of Non Pros. [Appellee] subsequently filed a Notice Of Intention To Enter Judgment Of Non Pros and a Praecipe For Entry Of Judgment Of Non Pros on March 28, 2011. On the same day, the Prothonotary of Lawrence County entered a Judgment Of Non Pros against [Appellants] for failure to file a Complaint. [Appellants], through newly-acquired counsel, filed a Petition To Open Judgment Of Non Pros and attached a copy of their proposed Complaint on May 26, 2011.

Attorney Frisk-Miller is the daughter of [Appellants'] previous counsel, Nick A[.] Frisk, Jr., Esquire. She became involved in representing [Appellants] when Attorney Frisk was hospitalized. On January 7, 2011, Attorney Frisk was hospitalized and, his daughter, Breonna Frisk-Miller, Esquire, began acting as counsel for [Appellants] when Attorney Frisk was infirmed. Attorney Frisk-Miller testified during her deposition that Robert Grimm, Esquire, who was counsel for [Appellee], contacted her via telephone on March 2, 2011, and indicated that he intended on pursuing the entry of judgment of non pros. Throughout this period of time, Attorney Frisk-Miller remained in close contact with [Appellants], especially Mr. Bartolomeo who was visiting Attorney Frisk-Miller's office almost every other day. Upon reading the deposition transcripts, [Appellants'] counsel decided that they would not file a Complaint, which was immediately communicated to [Appellants]. Additionally, [Appellants] were informed that they should seek new counsel rather quickly if they wanted to proceed with their claims because they were facing a deadline to file the Complaint. [Appellants] retained new counsel on April 21, 2011, received a portion of [their] case file on May 5, 2011, and filed a Petition To Open Judgment Of Non Pros. In response, this Court issued a rule to show cause why [Appellants] were not entitled to the relief requested and the Court scheduled oral argument for September 26, 2011. On November 14, 2011, this Court denied [Appellants'] Petition To Open Judgment Of Non Pros and, on [January 30,] 2012, the Court denied [Appellants'] Motion For Reconsideration. [Appellants] have now filed this appeal. Trial Court Opinion, 4/19/12, at 1-5 (footnote in original). On appeal, Appellants raise the following issues for this Court's consideration: 1. Whether the trial court erred in ruling that the deviation from Lawrence County Local Rule L237.[4] was a slight procedural defect and did not violate the substantive rights of the Appellants. 2. Whether the trial court erred in holding that the Appellants were provided with adequate notice and opportunity to file a Complaint after entry of Judgment of Non Pros pursuant to Pa.R.C.P. No. 237.3. 3. Whether the trial court erred in determining that the actions of Appellants' previous counsel was [sic] not a reason for granting the Petition to Open Judgment of Non Pros. 4. Whether the trial court erred in finding that the Appellee was unaware of and did not provide alcohol and drugs to the Appellants' Decedent. 5. Whether the trial court erred in determining that the Decedent's act of ingesting Oxycodone bars the Appellants' recovery and Appellee was not liable under the social host theory of liability. 6. Whether the trial court erred in ruling that the "no felony conviction recovery rule" barred the Appellants' recovery in the instant case. Appellants' Brief at 8. A request to open a judgment of non pros, like the opening of a default judgment, is in the nature of an appeal to the equitable powers of the court and, in order for the judgment of non pros to be opened, a three-pronged test must be satisfied: 1) the petition to open must be promptly filed; 2) the default or delay must be reasonably explained or excused; and 3) facts must be shown to exist that support a cause of action. Madrid v. Alpine Mountain Corp., 24 A.3d 380, 381 (Pa. Super. 2011) (citation omitted); Pa.R.C.P. 3051. A petition under Pa.R.C.P. 3051 is the only means by which relief from a judgment of non pros may be sought. Id.; Pa.R.C.P. 3051, Comment. "Any appeal related to a judgment of non pros lies not from the judgment itself, but from the denial of a petition to open or strike." Madrid, 24 A.3d at 381-382 (citation omitted). The "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." Id. at 382. Finally, a trial court's decision to deny a petition to open or strike a judgment of non pros is reviewed pursuant to an abuse of discretion standard. Id. (citation omitted). In their first issue on appeal, Appellants claim that the trial court erred in ruling that Appellee's deviation from Lawrence County Local Rule L237.4 concerning the notice of praecipe to enter judgment of non pros was a slight defect and did not violate the substantive rights of the Appellants or affect the notice requirements under Pa.R.C.P. 237.1.*fn2 We conclude that Appellants are entitled to no relief on this claim.

Lawrence County Local Rule L237.4 states as follows:

Rule L237.4 FORM OF NOTICE OF PRAECIPE TO ENTER JUDGMENT OF NON PROS

The notice of every praecipe to enter judgment of non pros for failure to file a complaint shall include the following name and address of the office from which the plaintiff can receive information about ...


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