Simmons, C. v. All About Smiles & Associates ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
CAROL ANN SIMMONS, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
: No. 1523 WDA 2017
ALL ABOUT SMILES & ASSOCIATES :
(DR. DAVID ZIPNOCK, DDS) :
Appeal from the Order, September 18, 2017,
in the Court of Common Pleas of Beaver County
Civil Division at No. 10851-2017
BEFORE: STABILE, J., MUSMANNO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 21, 2018
Carol Ann Simmons appeals pro se the order of the Court of Common
Pleas of Beaver County that granted the motion of All About Smiles and
Associates (Dr. David Zipnock, DDS) (“appellee”) to dismiss for failure to file
a certificate of merit and to dismiss all of appellant’s claims against appellee.
After careful review, we affirm.
The factual and procedural history as recounted by the trial court is as
follows:
This case began at the District Magistrate.
[Appellant] filed an action against [appellee],
following a root canal procedure. The Magisterial
District Judge entered a decision in favor of
[appellee] on June 6, 2017.
[Appellant] filed an appeal to the decision on
June 29, 2017 with the Court of Common Pleas.
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[Appellee] filed a rule to file a Complaint on July 6,
2017 and [appellant] filed her Complaint a few days
later on July 10, 2017.
On July 31, 2017, [appellee] filed preliminary
objections to the Complaint, alleging, among other
things, that the Complaint failed to conform to the
Rules of Civil Procedure. On August 28, 2017, a
notice was sent to the parties scheduling argument
on the preliminary objections for September 27,
2017.
Before argument could be held on the preliminary
objections, [appellee] filed a motion to strike the
certificate of merit that [appellant] had filed. Notice
of presentation was given to [appellant] under Local
Rule 208.3(a), that the motion to strike would be
presented at 9:00 a.m. on August 8, 2017. The
certificate of service indicates that it was sent on
July 31, 2017.[1] On August 8, 2017, only
[appellee’s] counsel appeared in motions court for
the presentation of the motion to strike.
The [trial c]ourt granted the motion to strike and
gave [appellant] 30 days to file a proper certificate
of merit. Although the Rules of Civil Procedure
(Pa.R.C.P. 1042.8) only require 20 days, the [trial]
court gave her an extra 10 days to file the proper
certificate. The certificate [appellant] originally filed
only indicated what a second dentist did to treat her
condition. It did not state that [appellee] was
negligent or breached a duty of care owed to
[appellant]. Thus, it did not satisfy the requirement
that the malpractice case has merit, as required by
Rule 1042.3. This Rule requires a party to check one
of the three boxes on a certificate of merit form.
She checked none of them, but instead, merely
signed and dated the bottom of the form and
attached a summary of her new dentist’s work to the
form.
1Beaver County Local Rules require a three-business-day notice in writing.
Beaver County R.C.P. LR 208.3(a)(3).
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Since she failed to appear in motions court on
August 8, 2017, the [trial c]ourt took extra measures
in order to aid [appellant], so she could correct her
mistake; the [trial c]ourt specifically stated in its
order “the certificate provided states what the
follow-up dentist did for [appellant]. It does not
state what the previous dentist did wrong or
negligent.” To comply with Rule 1042.3, [appellant]
needed a statement from a licensed professional that
there was “a basis to conclude that the care, skill or
knowledge exercised or exhibited by this defendant
in the treatment, practice or work that is the subject
of the complaint, fell outside acceptable professional
standards and that such conduct was a cause in
bringing about the harm.” Rule 1042.3(a)(1).
Pursuant to the Court Order dated August 8, 2017, a
proper certificate of merit should have been filed by
September 7, 2017. On September 11, 2017,
[appellee] again gave notice to [appellant], that he
was filing another motion with the [trial c]ourt. This
time it was a motion to dismiss the case for failure to
file a certificate of merit. The notice indicated that
the Motion would be presented on September 18,
2017.
On September 18, 2017, [appellant] did not appear
in motions court, and the motion to dismiss the
lawsuit was presented as an uncontested motion.
The [trial c]ourt granted the motion.
[Appellant] filed this appeal to the Superior Court on
October 13, 2017.
Upon reading the notice of appeal, the [trial c]ourt
learned for the first time, that [appellant] had
requested additional time to file her certificate of
merit. [Appellant] apparently filed a motion with the
Prothonotary’s office requesting additional time. She
never gave notice [to] [appellee], or presented the
motion for additional time in motions court. No court
order was ever signed granting her request. She
claims in her appeal that her request was never
addressed but ignored. The [trial c]ourt did not
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address it, because she failed to present it in open
court as required by Local Rule 208.3(a). She failed
to follow proper court procedures and local rules for
the presentation of her motion. The Prothonotary’s
office is merely a filing office. Any motion requiring
court action must be presented in court. The [trial
c]ourt hears civil motions on Mondays, Tuesdays and
Thursdays at 9:00 a.m. and hears emergency
motions as needed. No motion requesting additional
time was ever presented.
Trial court opinion, 11/27/17 at 1-3.
The trial court did not order appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On
November 27, 2017, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Appellant raises the following issues for this court’s review: “1. Did
the Magistrate Judge err in dismissing [appellant’s] subpoenaed witness and
dismissing her case? 2. Did the trial court err in dismissing [a]ppellant’s
case without affording [a]ppellant an opportunity to defend [appellee’s]
motion to dismiss?” (Appellant’s brief at 3-4.)
A review of appellant’s brief reveals that she has not addressed either
issue raised in the statement of questions involved in the argument section
of her brief. See Pa.R.A.P. 2119(a) (“The argument shall be divided into as
many parts as there are questions to be argued; and shall have at the head
of each part--in distinctive type or in type distinctively displayed--the
particular point treated therein, followed by such discussion and citation of
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authorities as are deemed pertinent.”). Appellant’s argument is only five
sentences and consists of the following:
[Appellee] did not do other definitive tests such as
CT or MRI scan of the mouth, jaw, cheek, face, head,
etc. to determine why [appellant] was experiencing
physical as well as apparent facial deformity.
It was the duty of the attending dentist to provide
adequate care of [appellant]. [Appellee] breached
responsibility of his profession by not providing
orders for the heretofore mentioned tests (CT scans
or MRI). All [appellee] did was to order routine
x-rays, a non-definitive diagnosis. Therefore,
[appellee’s] insufficient care of [appellant] was the
causation of her medical issues for over a year and
six months.
Appellant’s brief at 9.
This argument is not capable of meaningful appellate review. Because
appellant failed to develop or even mention these issues in the argument
section of her brief, these issues are waived. See Commonwealth v.
Jones, 815 A.2d 598, 604 n.3 (Pa. 2002) (where an appellant failed to
address an issue raised in the statement of questions involved in the body of
the brief, the claim was waived). See also Commonwealth v. Jackson,
431 A.2d 944, 945 n.1 (Pa. 1981) (issue listed in the brief’s statement of
questions involved was waived when it was not addressed in the argument
section of the brief).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2018
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