Superior Court upholds dismissal of Judgment of Non Pros in legal malpractice litigation

By Nicholas Malfitano | Nov 16, 2016

HARRISBURG – The Superior Court of Pennsylvania has affirmed the denial of a motion to strike the entry of a Judgment of Non Pros rendered in a legal malpractice action.

Superior Court Judge Kate Ford Elliott said Nov. 8 that a lack of response to the complaint on the part of plaintiffs Sibil White, Ulysses Brown, Sabrina Whitaker and Margaret Anthony both led to the initial denial of their motion to strike the judgment and its instant denial on appeal.

“On March 9, 2015, plaintiffs filed a complaint against defendant Vivienne Crawford, Esq., alleging, among other injuries, legal malpractice. Defendant filed notice of intention to enter a Judgment of Non Pros for failure to file a Certificate of Merit (COM) on May 14, 2015,” Ford Elliott said.

“On June 16, 2015, defendant filed a praecipe for entry of Judgment of Non Pros and one week later, defendants filed a petition to strike the entry of Non Pros. On Aug. 4, 2015, this Court denied the petition to strike,” Ford Elliott added.

The original lawsuit resulted from Crawford’s representation of the plaintiffs between 2009 and 2013 in a lawsuit against Saint Joseph’s Hospital School of Nursing. Defendants retained Crawford as counsel and instituted an action against St. Joseph’s claiming breach of contract and fraud.

“Defendants in the case were students at St. Joseph’s who alleged they were ‘fraudulently prevented from passing classes and /or graduating by the school without cause,' however, failed to name North Philadelphia Health System (NPHS) as a party,” Ford Elliott said.

After defendant St. Joseph’s filed for bankruptcy, defendant sought to amend the complaint to add NPHS, the motion was denied because the statute of limitations had passed.

“As a result, defendants filed the instant action against Crawford. Defendants, however, failed to file a COM as is required in all professional malpractice actions pursuant to Pa.R.C.P. 1042.3(a). On May 14, 2015, 66 days after defendants filed their complaint, Crawford filed notice of intention to enter a Judgment of Non Pros for Failure to File a COM. On June 16, 2015, 33 days later, Crawford filed a praecipe for Entry of Judgment of Non Pros. On June 23, 2015, defendant filed a petition to strike the Entry of Non Pros,” Ford Elliott said.

On Aug. 4, 2015, that petition was denied and a timely appeal to the Superior Court followed.

“The crux of plaintiffs’ argument is that they were never properly served with 30-day notice of defendant’s intention to file a praecipe for Judgment of Non Pros as required by Pa.R.C.P. 1042.6 and 1042.7,” Ford Elliott said.

“Here, defendant complied with all the requirements of Rules 1042.6 and 1042.7. Defendant waited until May 14, 2015, 66 days after plaintiffs filed their complaint, to file notice of intention to enter Judgment of Non Pros. The Rule 1042.6 notice was filed with the prothonotary, time-stamped, and entered on the docket,” Ford Elliott added.

Ford Elliott continued Crawford attached an affidavit of service to the Rule 1042.6 notice indicating that service was made upon counsel for the plaintiffs via first-class United States mail. The plaintiffs subsequently failed to respond, and Crawford filed a praecipe for entry of Judgment of Non Pros 33 days later.

“Therefore, plaintiffs were properly served by mail with a hard copy of the Rule 1042.6 notice of intention to enter Judgment of Non Pros for failure to file a COM. Moreover, plaintiffs do not dispute that they received actual notice of both the notice of intent and the praecipe for entry of judgment by first-class U.S. mail,” Ford Elliott said. “As the trial court observed, ‘plaintiffs had actual notice of both filings, and should have filed a COM or a motion to extend time for filing before the prothonotary entered a Judgment of Non Pros.”

“Plaintiffs’ argument misses the mark. [They] cite no authority whatsoever for the proposition that the failure to be electronically served with a copy of the Rule 1042.6 notice tolled the 30-day time period within which to respond and/or constituted a breakdown in the operations of the court. Plaintiffs had actual notice and simply chose not to respond. The trial court did not abuse its discretion in refusing to strike off judgment,” Ford Elliott stated.

The plaintiffs are represented by Matthew B. Weisberg of Weisberg Law, in Morton.

The defendant is an attorney and represented herself in this matter.

Superior Court of Pennsylvania case 2839 EDA 2015

Philadelphia County Court of Common Pleas case 141100103

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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