Xu v. Montefiore Hosp.

422 Pa. Superior Ct. 114 (1993)

618 A.2d 1043

Tong Xu XU and Zhangai Xu, His Wife, Appellants, v. MONTEFIORE HOSPITAL and Dr. Allan B. Schachter.

Superior Court of Pennsylvania.

Argued December 9, 1992.

Filed January 11, 1993.

*115 Gregory Whitney, Pittsburgh, for appellants.

James R. Miller, Pittsburgh, for appellees.

Before TAMILIA, HUDOCK and MONTGOMERY, JJ.

TAMILIA, Judge:

Plaintiffs Tong Xu Xu and Zhangai Xu, his wife, bring this direct appeal from the March 20, 1992 judgment of non pros entered in favor of appellee Dr. Allan B. Schachter.

Prior to January 1, 1992, parties seeking relief from a judgment of non pros had the option of filing a petition to open and/or strike judgment or filing a direct appeal to this Court. Valley Peat & Humus v. Sunnylands, Inc., 398 Pa.Super. 400, 581 A.2d 193 (1990). However, on November 19, 1991, a rule was adopted which established relief from a judgment of non pros could be sought only by petition:

Rule 3051. Relief from Judgment of Non Pros (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. . . . . Adopted Nov. 19, 1991, effective Jan. 1, 1992.

Pa.R.C.P. 3051.

Because appellants' challenge to the judgment of non pros was made as a direct appeal, on April 20, 1992, we are constrained to quash this appeal without further discussion.[1]

Appeal quashed.

Jurisdiction relinquished.

NOTES

[1] Although at oral argument plaintiff's counsel informed this Court a petition to strike the judgment of non pros was properly filed, our review of the docket entries and record reveals a petition was not filed with the trial court. Including an alleged copy of said petition in the reproduced record (not time stamped) does not suffice. The appeal, moreover, was taken from the court's Order of March 20th, not from denial of a petition for relief from the judgment of non pros. We also note appellee has contested our consideration of plaintiff's unfiled petition to strike. (Appellee's brief, p. 7, footnote 5.)