Pennsylvania Superior Court Affirmed Trial Court’s Dismissal of Case Because Appellant Waived Her Substantive Claims by Not Moving to Strike the Non Pros Prior to Appealing

Marshall Dennehey

The appellant initiated a lawsuit, pro se, raising negligence and strict liability claims arising out of allegedly negligent treatment received for gastrointestinal symptoms. After failing to timely file certificates of merit, the trial court ordered their filing within 60 days or it would enter a judgment of non pros. The appellant filed several documents titled “Certificate of Merit,” but the defendants filed motions to strike them for failing to meet the requirements of Pa. R.C.P. 1042.3. The trial court entered a judgment of non pros in favor of the defendants and dismissed the case. 

Instead of filing a petition to open or strike the non pros, the appellant filed a notice of appeal. The Pennsylvania Superior Court reaffirmed the procedure outlined in Pa.R.C.P. 3051, which requires a party seeking relief from a non pros judgment to file a petition to open or strike the judgment. Any appeal from a non pros judgment lies from a denial of a petition to strike or open, not the judgment itself. Failure to move to open or strike the non pros results in waiver of the claims on appeal. The Superior Court affirmed the trial court’s dismissal of the case because the appellant waived her substantive claims by not moving to strike the non pros prior to appealing. 

To proceed with a medical malpractice case, the plaintiff, even if he or she is pro se, must file a certificate of merit that is sufficient to comply with the requirements of Pa.R.C.P. 1042.3. When a plaintiff appeals a judgment of non pros, he or she must first move to strike or open the non pros prior to appealing; only after that motion is denied can a plaintiff appeal a non pros judgment, otherwise, the plaintiff will waive their substantive claims. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Marshall Dennehey | Attorney Advertising

Written by:

Marshall Dennehey

Marshall Dennehey on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide