Friedman, S. v. Bryn Mawr Hospital ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STEVEN FRIEDMAN, M.D., IN THE SUPERIOR COURT
INDIVIDUALLY AND AS EXECUTOR OF OF
THE ESTATE OF GAIL FRIEDMAN, PENNSYLVANIA
DECEASED,
Appellant
v.
BRYN MAWR HOSPITAL, ALLISON
WILLIAMS, P.A., CHRISTOPHER X. DALY,
M.D., GEORGE J. HART, M.D., GRAHAME
C. GOULD, M.D., ANCY SKARIAH, D.O.,
ROSEMARY A. COOK, M.D., AND MAIN
LINE HOSPITALS, INC.,
Appellees No. 2915 EDA 2016
Appeal from the Order Entered August 24, 2016
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 15-11939
BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 27, 2017
Steven Friedman, M.D., appeals from the order entered August 24,
2016, which declared that he was not an “attorney” for the purposes of
Pa.R.C.P. 1042.3 and directing him to file statements of reasonable probability
in compliance with that Rule. We quash.
This matter was commenced on July 6, 2015, when Appellant filed a
complaint raising various claims sounding in medical malpractice. Appellant
was required to file a certificate of merit pursuant to Pa.R.C.P. 1042.3. Such
a certificate is necessary to ensure “an orderly procedure that would serve to
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identify and weed out non-meritorious malpractice claims from the judicial
system efficiently and promptly.” Womer v. Hilliker, 908 A.2d 269, 275 (Pa.
2006). A certificate of merit achieves this purpose by requiring a plaintiff to
substantiate the underlying claims by providing what is, essentially, a prima
facie showing of the merits of the dispute. This initial showing may be
accomplished by, as is relevant here, the signature of plaintiff’s counsel
verifying “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[.]” Pa.R.C.P.
1042.3(a)(1). However, “[i]f a certificate of merit is not signed by an
attorney, the party signing the certificate of merit shall . . . attach to the
certificate of merit the written statement from an appropriate licensed
professional[.]” Pa.R.C.P. 1042.3(e).
The relevant procedural posture is as follows. Appellant, a licensed
attorney, electronically signed his initial certificates of merit, one for each
defendant, filed on August 14, 2015, but did not attach a written statement
from an appropriate licensed professional. Appellees filed various motions to
strike Appellant’s certificates of merit, conceding that Appellant was an
attorney, but arguing that his certifications did not conform to the dictates of
Pa.R.C.P. 1042.3 since he was proceeding pro se and he failed to attach the
necessary written statements of probable cause. These motions were granted
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by the trial court on December 1, 2015, but it permitted Appellant an
opportunity to cure the defects.
On December 20, 2015, Appellant filed a series of certificates of merit
signed by himself, Dr. Ira Mehlman, M.D., and Dr. Marshall Gottlieb, D.O.
Appellees again moved to strike these certifications, challenging Appellant’s
failure to comply with Rule 1042.3, and questioning the qualifications of the
doctors, specifically, that Dr. Mehlman had been retired for more than five
years, Dr. Gottlieb has passed away, and Appellant – who is also a medical
doctor – had his medical license suspended. On April 6, 2016, the court
granted the motion to strike, and provided Appellant an additional twenty days
to cure the defect.
On April 22, 2016, Appellant filed certificates of merit signed solely by
himself. He did not attach written documentation from an appropriate licensed
professional. Appellees renewed their objection to Appellant’s certificates of
merit, again filing motions to strike. On August 4, 2016, after a hearing on
Appellees’ motions to strike, the trial court entered an order deferring its
disposition until after an evidentiary hearing on the qualifications of Dr.
Mehlman, which was scheduled for August 18, 2016. On August 17, 2016,
Appellant sought reconsideration of this order, averring for the first time that
his April 22, 2016 certificates of merit were supported by statements of
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probable cause made by Dr. Dana Leifer.1 In addition, he maintained his belief
that his signature, as a licensed attorney, satisfied Rule 1042.3 and objected
to the court’s decision to request that Dr. Mehlman be offered for questioning.
In response, on August 22, 2016, the trial court granted Appellant’s motion
for reconsideration, directed Appellant to file Dr. Leifer’s written statements,
and expressly rejected his argument that his signature met the requirements
of Rule 1042.3. Appellant then filed a notice of appeal to this Court.
This matter is now ready for our review. Appellant raises two questions
for our consideration:
(1) Did the Montgomery County Court of Common Pleas, by
error of law and/or abuse of discretion, essentially take
away [Appellant’s] license as an attorney, and/or his right
to be an-officer-of-the-Court, and/or to fully represent
himself?
(2) Did the Montgomery Court of Common Pleas, by error of law
and/or abuse of discretion, repeatedly ignore black-letter
law when evaluating who is qualified to submit a statement
of reasonable probability in support of a certificate of merit,
thus delaying and rendering the administration of justice
excessively unpredictable?
Appellant’s brief at 5.
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1
Appellant attached certificates of merit signed by Dr. Leifer to his August 17,
2016 motion for reconsideration. However, as indicated infra, Appellant
appealed to this Court prior to the trial court determining whether Dr. Leifer’s
statements of probable cause satisfied Pa.R.C.P. 1042.3. Although Appellant
has provided the trial court with certificates of merit purporting to establish
his cause of action below, those certificates have been contested, and thus,
the issues he raises on appeal are not moot since the trial court has not ruled
on Dr. Leifer’s qualifications.
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On appeal, Appellant contends that, since he is a licensed attorney, the
requirements of Pa.R.C.P. 1042.3(e) are inapplicable, and he need not attach
the written statement of probable cause that he obtained from Dr. Leifer to
the certificates of merit which he signed on his own behalf in order to satisfy
the Rule. Further, he claims that, although the trial court’s August 24, 2016
order was not a final order, this Court has jurisdiction over his appeal pursuant
to the collateral order doctrine, which permits review of non-final orders in
limited circumstances. See Pa.R.A.P. 313. Before we reach the merits of
Appellant’s claimed errors, we must first determine whether we have
jurisdiction over this matter.
Pennsylvania Rule of Appellate Procedure 313 defines a collateral order
as “an order separable from and collateral to the main cause of action where
the right involved is too important to be denied review and the question
presented is such that if review is postponed until final judgment in the case,
the claim will be irreparably lost.” Pa.R.A.P. 313(b). An appeal from a
collateral order may be taken as of right. Pa.R.A.P. 313(a). If an interlocutory
order does not meet the definition of a collateral order under Rule 313, we
cannot exercise jurisdiction over the matter.2 Rae v. Pennsylvania Funeral
Directors Ass’n, 977 A.2d 1121, 1125 (Pa. 2009). However, our High Court
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2
This appeal does not constitute a final order under Pa.R.A.P. 341 or an
interlocutory order as of right under Pa.R.A.P. 311. Further, Appellant did not
seek an interlocutory appeal by permission under Pa.R.A.P. 312, 1311, or 42
Pa.C.S. § 702(b). Thus, our only avenue to exercise jurisdiction over this
appeal is governed by the collateral order doctrine.
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noted that the United States Supreme Court has warned against an over-
utilization of the collateral order doctrine so that collateral orders did not work
to undermine the final order rule. Id. at 1126 (citing Coopers & Lybrand v.
Livesay, 437 U.S. 463 (1978)). Hence, “the collateral order doctrine is to be
construed narrowly, and we require every one of its three prongs to be clearly
present before collateral appellate review is allowed.” Id. at 1126 (citation
omitted). We emphasize that an appeal must satisfy each prong of the
collateral order doctrine to invoke this Court’s jurisdiction.
With regard to the third prong of the doctrine, we observe that a claim
will be irreparably lost if it is not “fully remediable after final judgment.”
Commonwealth v. Blystone, 119 A.3d 306, 313 (Pa. 2015). Further,
[t]o satisfy this element, an issue must actually be lost if review
is postponed. Orders that make a trial inconvenient for one party
or introduce potential inefficiencies, including post-trial appeals of
orders and subsequent retrials, are not considered as irreparably
lost. An interest or issue must actually disappear to the processes
of trial.
Commonwealth v. Sabula, 46 A.3d 1287, 1293 (Pa.Super. 2012). At this
stage of the litigation, Appellant must choose between complying with the trial
court’s order, and either hire an attorney or produce the necessary written
documentation, or continue along his chosen course of action. If Appellant
maintains his belief that his signature is sufficient to satisfy the dictates of
Pa.R.C.P. 1042.3, then this claim can be subject to an appeal from a final
order. It is from that order that this appeal properly lies.
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If Appellant remains unwavering in his conviction that his signature was
sufficient under Rule 1042.3, then, as the procedural posture indicates,
Appellees would move to strike Appellant’s certificate of merit. This motion
would likely be granted, provoking Appellees to file a notice of intent to enter
judgment of non pros under Pa.R.C.P. 1042.6, as they have already attempted
to do at an earlier stage of this proceeding. Presuming that the trial court
would grant such a motion, Appellant could then appeal from the entry of
judgment non pros, raising the same issue before us now. Alternatively,
Appellant could move to strike or open the entry of judgment non pros,
contending that the court erred in not considering his signature sufficient
under Rule 1042.3. If the court were to deny that motion, then again,
Appellant would have recourse to appeal raising this very same claim. See
Ditch v. Waynesboro Hosp., 17 A.3d 310 (Pa. 2011) (per curiam) (affirming
Superior Court order in case appealed from denial of party’s petition to open
and/or strike the judgment of non pros). As those appeals would be taken
from the entry of a final order, Appellant’s current protestations would not be
irreparably lost if review were postponed.
Finally, even if Appellant were to comply with the court’s order, and this
matter were to proceed to trial, this claim may still garner appellate review
under one of two well-established exceptions to the mootness doctrine.
Appellate review of an otherwise moot claim is subject to the court’s discretion
when “the issue presented is one of great public importance or is one that is
capable of repetition yet evading review.” Association of Pennsylvania
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State College and University Faculties v. Pennsylvania Labor Relations
Bd., 8 A.3d 300, 305 (Pa. 2010) (citation omitted). Although the decision to
review such a claim is discretionary, it does appear that Appellant’s claim
raises an issue that is “capable of repetition yet evad[es] review.” Id. That
is to say, we are not convinced that our denial of review at this juncture
necessarily entails that the claim would evade review altogether.
Our learned Dissent contends that this appeal satisfies the collateral
order doctrine, relying, in part, on Shearer v. Hafer, 135 A.3d 637, 642
(Pa.Super. 2016), appeal granted, 157 A.3d 477 (Pa. 2016),3 for the
proposition that this matter implicates Appellant’s right to counsel, which, it
claims, “is undeniably too important to be denied review.” Dissenting
Memorandum, at 10 (citing Shearer, supra). Even assuming that the Dissent
is correct in this regard, an appeal must satisfy each prong of the collateral
order doctrine, regardless of the import of the rights affected. Rae, supra.
Thus, assuming, arguendo, that we concur with the Dissent that this matter
involves an important right, our agreement in this regard does not forestall
the conclusion that this matter fails to satisfy the collateral order doctrine.
Moreover, Shearer is readily distinguishable from the case sub judice.
First, the plaintiffs in Shearer argued that they had a right to the presence of
counsel during the entirety of an independent neuropsychological
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3
The High Court granted review of this Court’s holdings on the merits of the
Shearer’s claims. Thus, our application of the collateral doctrine rule therein,
is not under review.
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examination, which according to the neuropsychologist therein, breached
certain ethical standards governing the practice. The trial court disagreed
with the plaintiffs, ruling that their attorney could only be present for a portion
of the examination. The plaintiffs appealed that interlocutory order, and
argued that collateral order doctrine supported this Court’s jurisdiction. This
Court determined that the plaintiffs appeal was a collateral order, in part,
because the right to counsel “is undeniably too important to be denied review.”
Shearer, supra at 642.
Here, in contrast, there is no dispute that Appellant will be represented
by counsel at all times, since he himself is an attorney. This dispute centers
upon whether the rules of procedure apply to him, as a self-represented pro
se litigant, differently than other pro se litigants. Unlike Shearer, which
directly implicated the right to counsel, this matter involves the extent and
interpretation of a procedural rule as it applies to an attorney. As such, the
import of the interest at play herein is not as firmly established as that at issue
in Shearer.
Second, in Shearer, this Court determined that the plaintiffs’ claim
would be irreparably lost because, once trial began, their ability to have
counsel present during a pre-trial independent neuropsychological
examination would necessarily be lost. Shearer, supra at 642. Simply, one
cannot take back an independent examination after it has been completed.
Here, as noted above, if Appellant maintains his “steadfast” belief that Rule
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1042.3 is inapplicable, Trial Court Opinion, 10/27/16, at 2, he will have the
opportunity to appeal that issue from a final order.
Respectfully, the learned Dissent does not consider the outcome of this
matter if Appellant were to maintain his current argument, but rather,
determines that this issue will be “irreparably lost” only in the context of
Appellant’s presumed decision to hire counsel or litigate Dr. Leifer’s certificates
of merit. Dissenting Memorandum, at 10-11. Indeed, the Dissent
acknowledges that Appellant must decide whether to comply with Rule 1042.3
or allow the suit to be dismissed, but does not follow that line of reasoning to
its logical conclusion, i.e., that Appellant can appeal this exact issue from the
final order dismissing his suit. We reiterate that the collateral order doctrine
is to be construed narrowly so it does not consume the final order rule, Rae,
supra, and it is not intended to salvage a litigant’s suit or make that suit
economically efficient. Sabula, supra. Accordingly, we are not persuaded
by the Dissent’s contention that this matter would be “irreparably lost” if not
considered now.
In summary, we do not find that Appellant’s claimed errors would be
irreparably lost if collateral review was denied. Accordingly, this appeal does
not constitute a collateral order pursuant to Pa.R.A.P. 313, and we lack
jurisdiction to consider the merits of Appellant’s issues at this stage of the
case.
Appeal quashed.
P.J.E. Bender joins the memorandum.
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Judge Shogan files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2017
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