Gera, M. v. Rainone, M. ( 2014 )

J. A14013/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
MICHAEL GERA (DECEASED), : IN THE SUPERIOR COURT OF
DOROTHY GERA, MICHAEL G. GERA : PENNSYLVANIA
AND JOHN M. GERA, :
:
Appellants :
:
v. :
:
MARYLOU RAINONE, D.O., : No. 1951 MDA 2013
ROBERT DECOLLI, JR., D.O., AND :
SCHUYLKILL MEDICAL CENTER :
Appeal from the Judgment Entered October 2, 2013,
in the Court of Common Pleas of Schuylkill County
Civil Division at No. S-641-2013
MICHAEL GERA, DECEASED, : IN THE SUPERIOR COURT OF
DOROTHY GERA, MICHAEL G. GERA, : PENNSYLVANIA
AND JOHN M. GERA :
:
v. :
:
MARYLOU RAINONE, D.O., :
ROBERT DECOLLI, JR., D.O., :
SCHUYLKILL MEDICAL CENTER :
:
APPEAL OF: DOROTHY GERA, :
MICHAEL G. GERA AND JOHN M. GERA :: No. 2163 MDA 2013
:
Appellants :
Appeal from the Order Entered November 1, 2013,
in the Court of Common Pleas of Schuylkill County
Civil Division at No. S-641-13
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ.
* Retired Senior Judge assigned to the Superior Court.
J. A14013/14
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 06, 2014
Dorothy Gera, Michael G. Gera, and John M. Gera (collectively,
“appellants”), pro se, initiated this medical malpractice action by filing a
praecipe for writ of summons on April 5, 2013. Subsequently, on May 7,
2013, a rule was entered to file a complaint within 20 days or suffer a
judgment of non pros. Appellants filed their complaint on May 10, 2013,
bringing numerous claims including for medical malpractice, negligence,
infliction of emotional distress, and loss of consortium. Appellants alleged
that the 79-year-old decedent, Michael Gera, presented to Schuylkill Medical
Center (“SMC”) on April 6, 2011, for an exploratory laparotomy with right
hemicolectomy for a cecal mass. According to the medical records, he
tolerated the procedure well and his wounds were intact; however, by April 9
he was complaining of nausea and had a low grade temperature. A CT scan
of the abdomen revealed a large amount of peritoneal fluid and the decedent
was brought to the operating room on April 10, 2011, where he underwent
an exploratory laparotomy. Post-operatively, the decedent was kept on the
ventilator. On April 16, 2011, there was a “code blue” and the decedent was
unresponsive and non-verbal. He was transferred to Geisinger Medical
Center on May 9, 2011, with diagnoses including sepsis and acute
respiratory failure. The decedent died on July 1, 2011. Appellants alleged
that defendants-appellees failed to properly diagnosis and treat the
decedent’s post-operative condition which led to his death.
-2-
J. A14013/14
On June 11, 2013, appellees filed notice of intention to enter judgment
of non pros for failing to file a Certificate of Merit (“COM”) as required by
Pa.R.C.P. 1042.3 for professional liability claims. On July 9, 2013,
appellants filed a COM for each defendant, certifying that expert testimony
of an appropriate licensed professional was unnecessary for prosecution of
the claim. See Pa.R.C.P. 1042.3(a)(3). Thereafter, appellees filed motions
to strike and for entry of judgment of non pros. Appellants filed a
response, again claiming that expert testimony was unnecessary where the
defendants’ conduct was so grossly negligent that it was within the common
knowledge of laypersons.
On August 26, 2013, the trial court granted appellees’ motions in part,
and denied them in part. The trial court found that appellants failed to
comply with Pa.R.C.P. 1042.3(e),1 which the trial court interpreted as
prohibiting a pro se litigant from filing a COM stating that expert testimony
is not required in their case under Rule 1042.3(a)(3). According to the trial
1
If a certificate of merit is not signed by an attorney,
the party signing the certificate of merit shall, in
addition to the other requirements of this rule,
attach to the certificate of merit the written
statement from an appropriate licensed professional
as required by subdivisions (a)(1) and (2). If the
written statement is not attached to the certificate of
merit, a defendant seeking to enter a judgment of
non pros shall file a written notice of intent to enter
a judgment of non pros for failure to file a written
statement under Rule 1042.11.
Pa.R.C.P. 1042.3(e).
-3-
J. A14013/14
court, only an attorney can file a COM pursuant to Rule 1042.3(a)(3).
(Order, 8/26/13 at 4.)2 However, the trial court denied appellees’ requests
for judgments of non pros because they failed to comply with
Pa.R.C.P. 1042.11, requiring written notice of intent to enter a judgment of
non pros for failure to file a written statement. (Id. at 6.)
Subsequently, appellees filed notices of intent to enter judgment of
non pros within 30 days for failure to file a written statement from an
appropriate licensed professional pursuant to Rule 1042.11. On
September 25, 2013, appellants filed a response to the trial court’s
August 26, 2013 order striking their COM. Appellants reiterated their claim
that expert testimony was unnecessary and disagreed with the trial court’s
interpretation of Rule 1042.3(e) that a pro se plaintiff cannot file a COM
under Rule 1042.3(a)(3).
On October 1-2, 2013, appellees filed praecipes for entry of judgment
of non pros for failure to file a written statement from an appropriate
licensed professional pursuant to Pa.R.C.P. 1042.12. The prothonotary
entered judgments of non pros against appellants and in favor of each
defendant/appellee on October 1 and 2, 2013. Instead of filing a petition to
open and/or strike off the judgments of non pros, appellants filed a notice
of appeal on October 31, 2013, which was docketed by this court at
No. 1951 MDA 2013. By order filed November 1, 2013, in view of the
2
The pages of the order are unnumbered; pagination is by our own count.
-4-
J. A14013/14
judgments of non pros entered by the prothonotary, the trial court
denied/dismissed all outstanding motions as moot and discharged the
defendants.
On November 13, 2013, while the appeal at No. 1951 MDA 2013 was
pending, appellants filed with the trial court a “petition pursuant to
Pa.R.C.P. 3051 for relief from judgment of non pros.” Appellants’ petition
was denied on November 20, 2013, without comment. On December 2,
2013, this court issued a rule to show cause why the appeal at No. 1951
MDA 2013 should not be quashed as premature. We noted that a direct
appeal does not lie from entry of a judgment of non pros; an appellant
must first seek relief in the trial court, and failure to do so results in waiver.
Gera, et al. v. Rainone, et al., No. 1951 MDA 2013, per curiam order
(Pa.Super. filed December 2, 2013), citing Pa.R.C.P. 3051; Womer v.
Hilliker, 908 A.2d 269 (Pa. 2006); Madrid v. Alpine Mountain Corp., 24
A.3d 380, 381-382 (Pa.Super. 2011), appeal denied, 40 A.3d 1237 (Pa.
2012).
Appellants did not respond to the show cause order; however, on
December 3, 2013, appellants filed another appeal at No. 2163 MDA 2013,
appealing the November 1, 2013 order discharging appellees and denying
and dismissing all of their outstanding motions as moot. Appellants’ appeal
notice also referenced the trial court’s November 20, 2013 order denying
their Rule 3051 petition. The trial court filed a Pa.R.A.P. 1925(a) opinion on
-5-
J. A14013/14
December 20, 2013, directing this court to its August 26, 2013 order. On
December 26, 2013, this court discharged the show cause order and
referred the matter to the merits panel. The appeals at No. 1951 MDA 2013
and No. 2163 MDA 2013 were consolidated sua sponte.
The Pennsylvania Rules of Civil Procedure set forth
provisions which apply specifically to professional
liability actions and require a certificate of merit as a
prerequisite to the action. See Pa.R.C.P. 1042.1-
1042.8. Rule 1042.3, pertaining to the certificate of
merit, states in relevant part:
(a) In any action based upon an allegation
that a licensed professional deviated
from an acceptable professional
standard, the attorney for the plaintiff
. . . shall file with the complaint or within
sixty days after the filing of the
complaint, a certificate of merit signed
by the attorney or party that either
(1) an appropriate licensed
professional has supplied a
written statement that there
exists a reasonable
probability that the care, skill
or knowledge exercised or
exhibited 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, or
(2) the claim that the defendant
deviated from an acceptable
professional standard is
based solely on allegations
that other licensed
-6-
J. A14013/14
professionals for whom this
defendant is responsible
deviated from an acceptable
professional standard, or
(3) expert testimony of an
appropriate licensed
professional is unnecessary
for prosecution of the claim.
....
[1] (d) The court, upon good
cause shown, shall
extend the time for
filing a certificate of
merit for a period not
to exceed sixty days.
The motion to extend
the time for filing a
certificate of merit
must be filed on or
before the filing date
that the plaintiff seeks
to extend. The filing
of a motion to extend
tolls the time period
within which a
certificate of merit
must be filed until the
court rules upon the
motion.
Pa.R.C.P. 1042.3(a), (d) (notes omitted). This rule
applies to professional liability claims against
licensed professionals, including ‘a health care
provider as defined by Section 503 of the Medical
Care Availability and Reduction of Error (MCARE)
Act[.]’ Pa.R.C.P. 1042.1(b)(1)(i). ‘The rule
contemplates that a certificate of merit will be filed
contemporaneously with or shortly after the filing of
the complaint, and provides a 60-day window after
the filing of the complaint to accomplish the filing of
the certificate of merit.’ Varner v. Classic Cmtys.
-7-
J. A14013/14
Corp., 890 A.2d 1068, 1073 (Pa.Super.2006)
(citation, internal quotation marks, and brackets
omitted). If the rule applies and the plaintiff fails to
provide the certificate of merit, the prothonotary
may, on praecipe of the defendant, enter a judgment
of non pros against the plaintiff. See Pa.R.C.P.
1042.6.
Ditch v. Waynesboro Hospital, 917 A.2d 317, 320-321 (Pa.Super. 2007).
In Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996 (Pa. 2001), as in
this case, the trial court granted the defendant’s motion for judgment of
non pros and dismissed the plaintiffs’ complaint with prejudice; however,
instead of filing a motion to open the judgment of non pros, the plaintiffs
filed a notice of appeal. Id. at 997. Our supreme court held that
Pa.R.C.P. 3051, governing relief from judgments of non pros, requires a
party to file a petition to open the non pros with the trial court rather than
seek appellate review. Because the plaintiffs failed to file the petition to
open as required, their claims were deemed waived pursuant to
Pa.R.A.P. 302. Id. at 1001.
Similarly, in Krell v. Silver, 817 A.2d 1097 (Pa.Super. 2003), appeal
denied, 830 A.2d 976 (Pa. 2003), the trial court granted the defendant’s
motion for judgment of non pros. Instead of a petition to open, the plaintiff
filed a “motion for reconsideration” and an accompanying brief. Id. at 1099.
The motion was denied, and the plaintiff filed an appeal. Id. Following
Sahutsky, this court found that the plaintiff’s failure to file a petition to
open or strike the judgment of non pros waived all claims on appeal. Id. at
-8-
J. A14013/14
1101. We also declined to consider the motion for reconsideration as the
“functional equivalent” of a petition to open or strike, concluding that the
motion did not substantially comply with Rule 3051. Id.
Instantly, appellants did not file a petition to open or strike the
judgments of non pros as required by Rule 3051. Although Sahutsky and
Krell did not involve a failure to comply with the COM requirements of
Rule 1042.3, the comment to Rule 3051 indicates it applies to all judgments
of non pros. Sahutsky, 782 A.2d at 999. The Sahutsky court found that
“there is nothing in Rule 3051 or its Comment to suggest that any
differentiation between the various types of non pros orders is appropriate.”
Id. at 1000. Accordingly, Sahutsky controls.
Instead of filing the requisite Rule 3051 petition, appellants filed an
appeal directly from judgment of non pros. The failure to file a Rule 3051
petition with the trial court in the first instance operates as a waiver of any
claims of error concerning the judgment of non pros entered by the trial
court. Sahutsky. Therefore, all the issues raised in appellants’ brief are
waived. While we recognize the fact that appellants are pro se and that this
case sadly involves the loss of a loved one, it is well established that pro se
status confers no special benefit and “a pro se litigant must comply with the
procedural rules set forth in the Pennsylvania Rules of the Court.”
Commonwealth v. Lyons, 833 A.2d 245, 251-252 (Pa.Super. 2003),
appeal denied, 879 A.2d 782 (Pa. 2005) (citation omitted). Appellants are
-9-
J. A14013/14
charged with knowing the Rules of Civil Procedure the same as a
represented plaintiff.
We acknowledge that, subsequent to their October 31, 2013 appeal,
appellants filed a petition to open pursuant to Rule 3051 on November 13,
2013. While not binding on this court, we find the case of Dockery v.
Borough of East Stroudsburg, 24 A.3d 485 (Pa.Cmwlth. 2011), appeal
denied, 46 A.3d 718 (Pa. 2012), to be illuminating. In that case, the
Borough filed a motion for judgment of non pros for failure to prosecute,
which was granted and the plaintiffs’ complaint was dismissed. The plaintiffs
filed an appeal to this court, followed by a petition to open or strike the
judgment of non pros with the trial court. The trial court declined to rule on
the petition due to the pending appeal. Subsequently, the plaintiffs
voluntarily discontinued their appeal. Id. at 486.
The plaintiffs then filed a second petition to open or strike the
judgment of non pros, which was denied. They filed a second appeal to this
court, which transferred the matter to Commonwealth Court. Id. First, the
Commonwealth Court found that the trial court properly declined to consider
the plaintiffs’ first petition, filed while the appeal was pending. Id., citing
Pa.R.A.P. 1701(a) (after an appeal is filed, the trial court may no longer
proceed further in the matter); Sahutsky, 782 A.2d at 1001 n.3 (a
judgment of non pros is not interlocutory and is a final, appealable order
because it fully disposes of the case). Second, once judgment of non pros
- 10 -
J. A14013/14
had been entered, the case in the trial court was terminated, and even
though they discontinued their appeal, the plaintiffs could not revive it by
filing a second petition to open or strike. Id. at 487, citing Sahutsky,
supra (additional citation omitted). Therefore, the Dockery court
determined that because the plaintiffs failed to file a petition to open or
strike the judgment prior to filing the appeal, they waived all claims of error.
Id.
Thus, in the matter sub judice, the trial court should not have
considered appellants’ November 13, 2013 petition to open, filed after an
appeal was taken from the October 1-2, 2013 judgments of non pros.
Appellants’ failure to file a petition to open or strike the judgments of
non pros before filing an appeal results in waiver of all substantive claims.
Sahutsky, supra; Dockery, supra. Furthermore, even if we were to
consider the November 13, 2013 petition, it is woefully inadequate. As
stated in Krell, supra, three factors must be established in order to have a
judgment of non pros opened: First, the petition is promptly filed; second,
there is a reasonable explanation for the delay that preceded the entry of
judgment of non pros; and third, there are facts supporting a meritorious
cause of action. Krell, 817 A.2d at 1101, citing Stephens v. Messick, 799
A.2d 793 (Pa.Super. 2002). Appellants failed to address any of these three
factors.
- 11 -
J. A14013/14
Finally, we note in passing that, clearly, this is a medical malpractice
claim requiring a written statement from an appropriate licensed
professional stating that the case has merit. Appellants’ argument that their
claims sound in ordinary negligence is easily dismissed.
A medical malpractice claim is distinguished by two
defining characteristics. First, medical malpractice
can occur only within the course of a professional
relationship. Second, claims of medical malpractice
necessarily raise questions involving medical
judgment. Claims of ordinary negligence, by
contrast, raise issues that are within the common
knowledge and experience of the [fact-finder].
Therefore, a court must ask two fundamental
questions in determining whether a claim sounds in
ordinary negligence or medical malpractice:
(1) whether the claim pertains to an action that
occurred within the course of a professional
relationship; and (2) whether the claim raises
questions of medical judgment beyond the realm of
common knowledge and experience. If both these
questions are answered in the affirmative, the action
is subject to the procedural and substantive
requirements that govern medical malpractice
actions.
Varner v. Classic Communities Corp., 890 A.2d 1068, 1074 (Pa.Super.
2006), quoting Grossman v. Barke, 868 A.2d 561, 570 (Pa.Super. 2005),
appeal denied, 889 A.2d 89 (Pa. 2005), in turn quoting Bryant v.
Oakpointe Villa Nursing Ctr., 471 Mich. 411, 684 N.W.2d 864, 871 (2004)
(citations and internal quotation marks omitted).
Obviously, appellants’ claim that appellees acted negligently with
respect to performance of the laparotomy and in dealing with the decedent’s
post-surgical complications would require expert medical testimony
- 12 -
J. A14013/14
regarding the decedent’s condition and care. Such issues are not within the
common knowledge and experience of a layperson. Cf. Merlini v. Gallitzin
Water Authority, 934 A.2d 100 (Pa.Super. 2007), affirmed, 980 A.2d 502
(Pa. 2009) (the plaintiff was not required to file a COM against a defendant
engineer where the plaintiff was essentially alleging a negligent trespass
onto her property during the placement of a waterline); Smith v. Friends
Hospital, 928 A.2d 1072 (Pa.Super. 2007) (plaintiff not required to file a
COM where she alleged she sustained injuries during her hospitalization
when she was sexually assaulted, physically assaulted, and beaten by
hospital employees; nothing in her complaint was predicated on substandard
medical treatment or deviation from an acceptable professional standard,
and her cause of action was based solely upon her allegations that she was
assaulted and beaten). As such, we need not address the trial court’s
conclusion that Rule 1042.3(e) requires pro se plaintiffs to attach a written
statement to the COM and that only an attorney can file a COM without
attaching a written statement.
Appeals dismissed.
Olson, J. joins this Memorandum.
Strassburger, J. files a Dissenting Statement.
- 13 -
J. A14013/14
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 11/6/2014
- 14 -