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

J-A14039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STEVEN FRIEDMAN, M.D., : IN THE SUPERIOR COURT
INDIVIDUALLY AND AS EXECUTOR : OF PENNSYLVANIA
OF THE ESTATE OF GAIL FRIEDMAN, :
DECEASED :
:
Appellant :
:
:
v. : No. 2915 EDA 2016
:
:
BRYN MAWR HOSPITAL, ALLISON :
WILLIAMS, PA, CHRISTOPHER X. :
DALY, MD, GEORGE J. HART, MD, :
GRAHAME C. GOULD, MD, ANCY :
SKARIAH, DO, ROSEMARY A. COOK, :
MD AND MAIN LINE HOSPITALS, :
INC.
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, J., and SHOGAN, J.
DISSENTING MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 27, 2017
I respectfully dissent from the learned Majority’s conclusion that we lack
jurisdiction over this matter and must quash the appeal. Rather, I conclude
that this Court has jurisdiction pursuant to Pa.R.A.P. 313, the collateral-order
doctrine. Thus, I would proceed to the merits of the appeal and find that the
order declaring that Appellant is not an “attorney” for purposes of Pa.R.C.P.
1042.3(a) and (e) should be reversed and the case remanded.
J-A14039-17
As noted by the Majority, Appellant, Steven Friedman, M.D., filed a
complaint on July 6, 2015, on behalf of himself, individually and as executor
of the Estate of Gail Friedman,1 against Appellees, Bryn Mawr Hospital, Main
Line Hospitals, Inc., Allison Williams, P.A. (“Williams”), Christopher X. Daly,
M.D. (“Daly”), George J. Hart, M.D. (“Hart”), Grahame C. Gould, M.D.
(“Gould”), Ancy Skariah, D.O., and Rosemary A. Cook, M.D.2 The complaint
alleged negligence, negligent and intentional infliction of emotional distress,
vicarious liability, willful and wanton misconduct, reckless endangerment, and
loss of consortium. Complaint, 7/6/15, at 12–19. Eight amended complaints
followed the filing of the initial complaint.
On August 7, 2015, Appellees filed a notice of intent to enter a judgment
of non pros due to Appellant’s failure to file certificates of merit with
attachments from licensed professionals pursuant to Pa.R.C.P. 1042(e). On
August 14, 2015, Appellant filed certificates of merit for each defendant, which
he, an attorney, signed electronically. As stated by the trial court, Appellant
“has steadfastly contended that he is not required to file certificates of merit
with statements of reasonable probability pursuant to Pa.R.C.P. 1042.3(e).”
Trial Court Opinion, 10/27/16, at 2. Rather, Appellant has consistently
____________________________________________
1
Gail Friedman, Appellant’s wife, passed away on October 31, 2014; her
estate was dismissed by order dated June 20, 2016, leaving Appellant as the
sole remaining plaintiff.
2
Appellees Bryn Mawr Hospital, Main Line Hospitals, Inc., Dr. Skariah, and
Dr. Cook (“Hospital Appellees”) jointly filed a brief herein.
-2-
J-A14039-17
asserted to the trial court and maintains herein that he is entitled to file
certificates of merit without the statements because he is an “attorney” as
contemplated by Pa.R.C.P. 1042(a).
The Majority has aptly summarized the procedural history as it relates
to this appeal. I note, however, the following additional commentary from the
trial court on the procedural posture of the case:
At an August 18, 2016 hearing, [Appellant] disclosed that
he has in his possession statements of reasonable probability from
Dr. Dana Liefer, who [Appellant] contends is an “appropriate
licensed professional” under Rule 1042.3(a)(1). However, he had
heretofore refrained from filing the statements of reasonable
probability because “the plaintiff in this case is represented by an
attorney. The attorney submits a certificate of merit. That ends
it.” N.T. 8/18/16, 7:8–10.
On August 24, 2016, this [c]ourt ordered [Appellant] to file
the statements of reasonable probability of Dr. Liefer in order to
satisfy Rule 1042.3. All parties were further directed to brief the
issue of his qualifications under MCARE § 512, as Rule 1042.3(1)
requires the appropriate licensed professional to be so qualified.
In addition, this [c]ourt issued [a] declaratory judgment that
[Appellant] is not an “attorney” for the purposes of this case
because he is representing himself. The Estate of Gail Friedman
is no longer a party to this case; as such, [Appellant] is not
representing anybody but himself, thereby designating him as a
pro se litigant.
Trial Court Opinion, 10/27/16, at 2–3. Appellant timely appealed the August
24, 2016 order on September 2, 2016. Disposition of the motions to strike
Appellant’s certificates of merit was stayed pending this appeal. Id. at 3.
On October 6, 2016, this Court issued a rule to show cause, directing
Appellant to explain why the appeal should not be quashed as premature.
Appellant filed a response on October 17, 2016. Hospital Appellees filed an
-3-
J-A14039-17
application to quash this appeal on November 9, 2016. On January 11, 2017,
by per curiam order, a motions panel of this Court denied Hospital Appellees’
application to quash without prejudice, thereby allowing Hospital Appellees to
raise the issue before the merits panel.
I repeat the issues Appellant raises on appeal:
(1) Did the Montgomery County Court of Common Pleas, by error
of law and/or abuse of discretion, essentially take away appellant-
attorney’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 County 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.
As recognized by the Majority, we must initially address the question of
our jurisdiction over this appeal. The Majority agrees with Hospital Appellees
that we should quash this appeal as interlocutory, contending it is not an
appeal from a final order, an interlocutory order as of right or by permission,
or a collateral order. Hospital Appellees’ Brief at 34–41. For the reasons that
follow, I am compelled to disagree.
Under the Pennsylvania Rules of Appellate Procedure, a litigant may
appeal “(1) a final order or an order certified as a final order (Pa.R.A.P. 341);
(2) an interlocutory order as of right (Pa.R.A.P. 311); (3) an interlocutory
order by permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a
-4-
J-A14039-17
collateral order (Pa.R.A.P. 313).” Veloric v. Doe, 123 A.3d 781, 784 (Pa.
Super. 2015) (quoting Berkeyheiser v. A-Plus Investigations, Inc., 936
A.2d 1117, 1123 (Pa. Super. 2007)). A final order is an order that “disposes
of all claims and of all parties.”3 Pa.R.A.P. 341(b). Because the August 24,
2016 order does not dispose of all claims, and the order has not been certified
as a final order pursuant to Pa.R.A.P. 341(c), the instant appeal is not from a
final order.
An interlocutory appeal as of right permits immediate appeals in limited,
specified circumstances. Pa.R.A.P. 311 (permitting, e.g., appeal of “[a]n order
refusing to open, vacate, or strike off a judgment”). An interlocutory appeal
by permission is the result of express permission by the trial court. Pa.R.A.P.
____________________________________________
3
Pa.R.A.P. 341(b)(2) formerly permitted an appeal from an order “expressly
defined as a final order by statute.” Veloric, 123 A.3d at 784. The
Declaratory Judgments Act provides that declaratory judgments “shall have
the force and effect of a final judgment or decree.” 42 Pa.C.S. § 7532.
However, the Pennsylvania Supreme Court rescinded Pa.R.A.P. 341(b)(2),
effective April 1 of 2015. Pa.R.A.P. 341 cmt. The note to Pa.R.A.P. 341
explains:
One of the further effects of the rescission of subparagraph (b)(2)
is to change the basis for appealability of orders that do not end
the case but grant or deny a declaratory judgment. See
Nationwide Mut. Ins. Co. v. Wickett, 763 A.2d 813, 818 (Pa.
2000); Pa. Bankers Ass'n v. Pa. Dep't. of Banking, 948 A.2d
790, 798 (Pa. 2008). The effect of the rescission is to eliminate
waiver for failure to take an immediate appeal from such an order.
Id. As a result, the Declaratory Judgments Act no longer enables appeals
from declaratory judgments that do not meet the finality requirement of
Pa.R.A.P. 341 or qualify as appealable interlocutory or collateral orders.
-5-
J-A14039-17
312. The circumstances of this appeal do not trigger an interlocutory appeal
as of right, and the trial court has not approved an interlocutory appeal by
permission.
Therefore, like the Majority, I turn to whether Appellant’s appeal of the
trial court’s declaratory judgment constitutes a collateral order pursuant to
Pa.R.A.P. 313. The collateral-order doctrine permits appellate jurisdiction
where: “an order is (1) separable from and collateral to the main cause of
action, (2) implicates rights which are too important to be denied review, and
(3) the appellant’s claim as to that order will be lost if postponed until final
judgment.” Rae v. Pa. Funeral Directors Ass’n, 977 A.2d 1121, 1124 (Pa.
2009) (citing Ben v. Schwartz, 729 A.2d 547 (Pa. 1998)). All “three prongs
[must] be clearly present before collateral appellate review is allowed.” Rae,
977 A.2d at 1126 (citing Melvin v. Doe, 836 A.2d 42, 47 (Pa. 2003)).
An order is separable from the main cause of action if it is “entirely
distinct from the underlying issue in the case” and “can be resolved without
an analysis of the merits of the underlying dispute.” K.C. v. L.A., 128 A.3d
774, 778 (Ps. 2015) (quoting Commonwealth v. Blystone, 119 A.3d 306,
312 (Pa. 2015)); see, e.g., Yorty v. PJM Interconnection, L.L.C., 79 A.3d
655, 662 (Pa. Super. 2013) (noting the elements of negligence and observing
that immunity, the subject of the collateral order, “is factually distinct from
the proof of any of these elements”). With regard to the second prong of the
collateral-order doctrine, “[i]t is not sufficient that the issue be important to
-6-
J-A14039-17
the particular parties. Rather it must involve rights deeply rooted in public
policy going beyond the particular litigation at hand.” Melvin, 836 A.2d at 47
(quoting Geniviva v. Frisk, 725 A.2d 1209, 1213–1214 (Pa. 1999)).
Collateral review is appropriate where “the interests that would go
unprotected without immediate appeal are significant relative to the efficiency
interests served by the final order rule.” K.C., 128 A.3d at 779 (citing
Commonwealth v. Williams, 86 A.3d 771, 782 (Pa. 2014)). Finally, our
Supreme Court has interpreted “irreparable loss” within the context of the
third prong as a loss that is not “fully remediable after final judgment.”
Blystone, 119 A.3d at 313. This Court has similarly defined irreparable loss
as follows:
To 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 due to the
processes of trial.
Commonwealth v. Sabula, 46 A.3d 1287, 1293 (Pa. 2012).
Here, Appellant asks us to resolve whether a licensed attorney acting
pro se is an “attorney” within the meaning of Pa.R.C.P. 1042.3(e). Hospital
Appellees maintain that the order does not satisfy the collater-order doctrine,
and is thus not appealable at this point, because: (1) we must “reference” the
medical malpractice claim to resolve the appeal, (2) a determination of the
meaning of a rule of civil procedure does not outweigh the efficiency interest
-7-
J-A14039-17
of the final-order rule, and (3) the trial court’s declaratory judgment can be
appealed at a later date. Hospital Appellees’ Brief at 38-41. I disagree.
While we may “reference” the medical-malpractice claim during this
appeal, the interpretation of Pa.R.C.P. 1042.3 requires an analysis that is
entirely distinct from the merits of Appellant’s medical-malpractice claim.
Thus, as acknowledged by the Majority, the first prong of the collateral-order
doctrine is met.
The second prong requires that the rights involved be too important to
be denied review. As previously noted, “it must involve rights deeply rooted
in public policy going beyond the particular litigation at hand.” Melvin, 836
A.2d at 47. Appellant argues that the trial court’s order implicates such rights
in that “took away [his] license as an attorney, and/or his right . . . to fully
represent himself.” Appellant’s Brief at 14. I cannot agree that Appellant is
unable to represent himself; however, he is subject to requirements not
imposed on attorneys who are not representing themselves.
I note that our Supreme Court and this Court have, at times, broadly
interpreted the interests implicated by an issue raised on collateral appeal in
order to protect important interests. For example, the High Court has found
interests “deeply rooted in public policy” to include freedom of speech rights
in Melvin, 836 a.2d at 47; the “fair and impartial administration of justice” in
divorce proceedings in Fried v. Fried, 501 A.2d 211, 214 (Pa. 1984); and the
United States Congress’s interest in controlling the long-term costs and
-8-
J-A14039-17
liabilities of aviation manufacturers, Pridgen v. Parker Hannifin Corp., 905
A.2d 422, 433 (Pa. 2006). This Court has likewise found the second prong
satisfied where an order implicates: the integrity of the judicial system,
Sabula, 46 A.3d 1287, 1292 (Pa. super. 2012); the availability of medical
care “through a comprehensive and high-quality health care system,”
Osborne v. Lewis, 59 A.3d 1109, 111 n.3 (Pa. Super. 2012); and a statute’s
purpose of “protecting and promoting marital harmony,” CAP Glass, Inc. v.
Coffman, 130 A.3d 783, 790 (Pa. Super. 2016).
In particular, orders in cases involving “counsel,” the right to have
counsel, and the right to have counsel present have all been reviewed as
collateral orders recently, and “the apparent growth in the number of these
cases suggests an increased willingness to permit collateral order review in
this area.” Bruce P. Merenstein, “Pennsylvania’s Appellate Courts Strike Out
on their Own Collateral Order Path, “October 2016 PA Bar Quarterly, Vol. 57,
No. 4, at 183, 191. Furthermore, this Court has held that “any matter
implicating and potentially infringing upon a litigant’s right to counsel is
undeniably too important to be denied review.” Shearer v. Hafer, 135 A.3d
637, 642 (Pa. Super. 2016), appeal granted, 157 A.3d 477 (Pa. 2016). In my
view, an attorney’s right to self-representation similarly implicates and
infringes upon the right to counsel, impacts the scope of an attorney’s license,
and is too important to be denied review. Thus, because the instant issue
-9-
J-A14039-17
involves “rights deeply rooted in public policy,” Appellant’s claim satisfies the
second prong of the collateral-order doctrine. Melvin, 836 A.2d at 47.
The final requirement for collateral review, and the one upon which the
Majority bases its decision, is that the claim will be lost if postponed until final
judgment. Rae, 977 A.2d at 1124. Unlike the Majority, I conclude that the
issue of whether a licensed attorney proceeding pro se is an attorney within
the meaning contemplated by Rule 1042.3(e) will be irreparably lost if
collateral review is denied. Appellant is faced with the decision of either
incurring the costs of compliance with Rule 1042.3(e) or allowing the suit to
be dismissed. Assuming that Appellant continues pursuing this suit by either
hiring an attorney or filing a statement of reasonable probability, the issue of
whether licensed attorneys representing themselves are pro se litigants would
be moot by the time of appeal. The instant issue of the interpretation of
Pa.R.C.P. 1042.3(e)—and its important public policy implications—would
“disappear due to the processes of trial” in the event that collateral review is
denied. Sabula, 46 A.3d at 1293. As stated by the Shearer Court, win or
lose, the right would be “irreparably lost.” Shearer, 135 A.3d at 642. As a
result, I conclude that this Court has jurisdiction of this matter by virtue of
the collateral-order doctrine. Therefore, I would proceed to the merits of the
appeal.
- 10 -
J-A14039-17
The issue Appellant raises is whether a licensed attorney representing
himself constitutes an “attorney” for purposes of Pa.R.C.P. 1042.3. This is a
matter of first impression.
Pa.R.C.P. 1042.3(a) and (e) provide as follows:
Rule 1042.3. Certificate of Merit
(a) In any action based upon an allegation that a licensed
professional deviated from an acceptable professional standard,
the attorney for the plaintiff, or the plaintiff if not represented,
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. . . .
* * *
(e) 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 [of reasonable probability] 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 (a) and (e).
The explanatory comment to Pa.R.C.P. 1042.3 states:
These proposed amendments also add a procedure for when the
certificate of merit is not signed by an attorney. New subdivision
(e) of Rule 1042.3 would require the attachment of the written
statement from an appropriate licensed professional to the
certificate of merit.
* * *
The Committee is proposing this amendment for several reasons.
First, only an attorney is subject to disciplinary proceedings
for abusing the rules of civil procedure governing
- 11 -
J-A14039-17
certificates of merit. Second, it is not unusual for an
unrepresented plaintiff to file a certificate of merit without having
received a written statement from a licensed professional
supporting his or her claim. Third, the rules governing the
certificates of merit already make a distinction between an
attorney and an unrepresented plaintiff filing a certificate of merit.
Pa.R.C.P. 1042.12 cmt. (emphasis added).
The trial court concluded that an unrepresented attorney is pro se, and
therefore subject to the statement-of-reasonable-probability requirement of
Pa.R.C.P. 1042.3(e). Trial Court Opinion, 10/27/16, at 4. In reaching this
determination, the trial court relied on Black’s Law Dictionary, which defines
pro se as “for oneself; on one’s own behalf; without a lawyer.” Id. The trial
court then “employ[ed] a simple syllogism” to support its interpretation of
Pa.R.C.P. 1042(e): “[Appellant] is the only plaintiff; [Appellant] has not
retained outside counsel; therefore, [Appellant] is acting ‘for oneself’ and is
clearly a pro se litigant.” Trial Court Opinion, 10/27/16, at 4.
Appellant asserts that the trial court’s interpretation of Pa.R.C.P. 1042.3
leads to “absurd” results, and he contends that the trial court’s conclusion
effectively deprives him of his status as an attorney. Appellant’s Brief at 16–
17. Furthermore, Appellant avers that by ignoring the plain meaning of
Pa.R.C.P. 1042.3, the trial court has delayed the administration of justice. Id.
at 18–20.
Appellees mimic the trial court’s truncated reasoning and reliance on
Black’s Law Dictionary’s definition of pro se. Hospital Appellees’ Brief at 19;
Hart’s Brief at 6; Daly and Williams’s Brief at 6. Appellees suggest that the
- 12 -
J-A14039-17
trial court’s interpretation of Pa.R.C.P. 1042.3(e) is consistent with the plain
language of Pa.R.C.P. 1042.3 and the intention of our Supreme Court in
enacting this procedural rule. Hospital Appellees’ Brief at 20. In support, all
Appellees cite the explanatory comment to Pa.R.C.P. 1042.3 and Womer v.
Hilliker, 908 A.2d 269 (Pa. 2006). Hospital Appellees’ Brief at 21–22; Hart’s
Brief at 7–10; Daly and Williams’s Brief at 7–10; Gould’s Brief at 12–13.
Appellee Dr. Gould argues in the alternative that the trial court retains
the discretion to require a plaintiff to attach statements of reasonable
probability even where the certificate of merit is signed by an attorney.
Gould’s Brief at 16–18. Dr. Gould maintains that the statute does not prohibit
a trial court from requiring statements of reasonable probability at its
discretion and that the trial court did not abuse that discretion here. Id.Hospital Appellees further attack the sufficiency and validity of the
certificates of merit that Appellant eventually produced. They assert that
Dr. Dana Leifer, their author, does not meet the qualifications set forth in
Section 512 of the MCARE Act, 40 P.S. § 1303.512 (a)–(e), and therefore is
not qualified to be considered an “appropriate licensed professional” for
purposes of a certificate of merit. Hospital Appellees’ Brief at 26.
I would conclude that the trial court’s interpretation of Pa.R.C.P. 1042.3
lacks meaningful and cogent support for the following reasons. First, the
purpose of the statements-of-reasonable-probability requirement, as noted in
the explanatory comment, supports the conclusion that Appellant is an
- 13 -
J-A14039-17
“attorney” pursuant to Pa.R.C.P. 1042.3(e). Appellant’s decision to represent
himself does not deprive him of his licensed statutory status. My
interpretation of the Pennsylvania Rules of Civil Procedure is guided by
Pa.R.C.P. 127, which provides that “[t]he object of all interpretation and
construction of rules is to ascertain and effectuate the intention of the
Supreme Court.” Pa.R.C.P. 127(a). Because Pa.R.C.P. 1042.3(e) does not
explicitly state the Supreme Court’s intent as to the Rule’s application to
plaintiff-attorneys, I would look to the explanatory comment quoted supra.
Pa.R.C.P. 1042.12 cmt.
The explanatory comment explains that Pa.R.C.P. 1042.3 creates a
distinction between represented and unrepresented parties because “only an
attorney is subject to disciplinary proceedings for abusing the rules of civil
procedure governing certificates of merit.” Pa.R.C.P. 1042.12 cmt. As
Appellant emphasizes, he is a licensed attorney and therefore subject to the
disciplinary rules with which the explanatory comment is concerned.
Appellant’s Brief at 18. It is noteworthy that Appellees also cite the
explanatory comment, but they fail to elaborate or explain its significance to
their position that Appellant is not an “attorney” within the meaning of
Pa.R.C.P. 1042.3(e). Hospital Appellees’ Brief at 22; Hart’s Brief at 5; Daly
and Williams’s Brief at 5. Lacking relevant argument to the contrary, I would
find that the purpose of the statement-of-reasonable-probability requirement
- 14 -
J-A14039-17
compels the conclusion that a plaintiff attorney is not required to attach a
statement of reasonable probability to a certificate of merit.
Second, I disagree with the trial court’s stated justification for its
interpretation of Pa.R.C.P. 1042.3(e). In determining that Appellant was
required to attach statements of reasonable probability, the trial court based
its interpretation of Pa.R.C.P. 1042.3 on the definition of pro se in Black’s Law
Dictionary. Trial Court Opinion, 10/27/16, at 4. To reiterate, the trial court,
as support for its position, cited the definition of pro se as “[f]or oneself; on
one’s own behalf; without a lawyer.” Id. Relying heavily on the “for oneself”
clause of the definition, the trial court completely disregarded the “without a
lawyer” clause, as well as the assumptions made by Pennsylvania statutes and
courts with respect to pro se litigants.
Pro se litigants are presumed to have no legal training or experience.
See Commonwealth v. Spuck, 86 A.3d 870, 874 (Pa. Super. 2014)
(“Pennsylvania courts endeavor to be fair to pro se litigants in light of the
challenges they face conforming to practices with which attorneys are far more
familiar[.]”); see also Pa.R.C.P. 205.5(c) (“The prothonotary shall assist a
party appearing pro se in the completion of the form.”). Additionally, the
Pennsylvania Rules of Civil Procedure expect a pro se plaintiff to be
unencumbered by the rules of discipline. See Pa.R.C.P. 233.1 cmt. (“While
attorneys are subject to the rules of disciplinary procedure, no analogous rule
exists to curb this type of abuse when done by a pro se party”). Thus,
- 15 -
J-A14039-17
construed in light of the general understanding of pro se within this
Commonwealth, the “without a lawyer” clause of Black’s Law Dictionary is
better understood to mean that the litigant is without the benefit of an
attorney’s knowledge and training. Outside the narrow confines of “for
oneself,” a plaintiff attorney does not fit within the commonly understood
definition of pro se.
Third, I would find the trial court’s conclusion to be inconsistent with the
court’s treatment of Appellant throughout the course of this litigation and
inappropriate in light of the general rule against hybrid representation. Prior
to the trial court’s conclusion that Appellant was a pro se litigant subject to
the statement-of-reasonable-probability requirement, Appellant was not
treated as a pro se party. As Appellant observes in his appellate brief, he did
not file the Montgomery County Form for Entry of Appearance as a Self-
Represented Party, and he has been referred to as “Esquire” multiple times
during this case. Appellant’s Brief at 7–11, 16–17; see, e.g., Order,
11/30/15, at 1, and Order, 12/17/15, at 1. Additionally, Appellant was
permitted to file suit as executor of the Estate of Gail Friedman
notwithstanding that Pennsylvania law prohibits non-attorneys from
representing an estate pro se. See 42 Pa.C.S. § 2521 (“Persons admitted to
the bar of the courts of this Commonwealth and to practice law pursuant to
general rules shall thereby hold the office of attorney at law.”); Pa.B.A.R. 201
(“The following may practice law generally within this Commonwealth: (1)
- 16 -
J-A14039-17
Persons admitted to the bar pursuant to these rules[ and] (2) Persons
heretofore admitted to practice before any court of record of this
Commonwealth pursuant to former Supreme Court Rules 8 and 9. . . .”);
Pa.B.A.R. 204 (defining the term “practice law,” as used in Pa.B.A.R. 201, to
include “[r]epresentation of one or more clients in the private practice of
law”); see also In re Estate of Rowley, 84 A.3d 337, 340–342 (Pa. Cmwlth.
2013) (“[P]rohibiting a non-attorney from representing an estate is essential
to protecting the interests of the public”) (citing Harkness v.
Unemployment Compensation Board of Review, 920 A.2d 162, 167 (Pa.
2007)).4
Additionally, as a general matter, Pennsylvania courts do not permit
hybrid representation. Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.
____________________________________________
4
Decisions of the Commonwealth Court, while not binding on this Court,
nevertheless may serve as persuasive authority. Joseph v. Glunt, 96 A.3d
365, 371 (Pa. Super. 2014) (citing Petow v. Warehime, 996 A.2d 1083,
1088 n.1 (Pa. Super. 2010)). In the absence of binding precedent to the
contrary, I am persuaded by the reasoning of the Commonwealth Court in
Rowley, 84 A.3d 337.
My reliance on Rowley is reinforced by federal decisions reaching the
identical conclusion. See Leary v. UPMC Shadyside, 2014 WL 4198039, at
*1–2 (W.D.Pa. Aug. 22, 2014) (“Pennsylvania substantive law . . . [is] plain
that an estate must be represented in court litigation by a lawyer”); Williams
v. USP–Lewisburg, 2009 WL 4921316, at *2 (M.D.Pa. Dec. 11, 2009) (“To
permit an unlicensed lay administrator to appear pro se would be to permit
the unauthorized practice of law”), aff’d 377 Fed. Appx. 255, 256 (3d. Cir.
2010). Decisions of lower federal courts likewise have persuasive effect on
this Court. Gongloff Contracting, L.L.C. v. L. Robert Kimball &
Associates, Architects and Engineers, Inc., 119 A.3d 1070, 1078 n.6 (Pa.
Super. 2015) (citing In re Stevenson, 40 A.3d 1212, 1222 (Pa. 2012)).
- 17 -
J-A14039-17
Super. 2016). Although the typical factual circumstances of hybrid
representation, e.g., a represented party bypassing counsel and filing directly
with the court, are not present here, the substantive prohibition of hybrid
representation holds that a litigant cannot be both pro se and represented by
counsel. Given the stated purpose of Pa.R.C.P. 1042.3(e), in conjunction with
the meaning of pro se in Pennsylvania, I conceive of no viable reason why
Appellant should be subject to the statement-of-reasonable-probability
requirement, but not the other requirements of pro se litigants.
Additionally, I would reject Appellees’ reliance on Womer, 908 A.2d
269, in support of the trial court’s interpretation of Pa.R.C.P. 1042.3. Hospital
Appellees’ Brief at 21; Hart’s Brief at 7–10; Daly and Williams’s Brief at 7–10;
Gould’s Brief at 12–13. In Womer, our Supreme Court held that a complete
failure to file a certificate of merit with the trial court did not constitute
“substantial compliance” with Pa.R.C.P. 1042.3 and affirmed the trial court’s
denial of a motion to open entry of judgment non pros. Womer, 908 A.2d at
279–280. In reaching this decision, the High Court discussed the purpose of
the certificate-of-merit requirement, observing that certificates of merit
“identify and weed non-meritorious malpractice claims from the judicial
system efficiently and promptly.” Id. at 275. Here, Appellant has filed a
certificate of merit with the trial court. Appellees’ repeated reference to the
purpose of the certificate-of-merit requirement, as stated in Womer, is not
relevant to the interpretation of Pa.R.C.P. 1042.3. I do not question the
- 18 -
J-A14039-17
wisdom of Pa.R.C.P. 1042.3, but rather, its applicability to a plaintiff attorney
who may be disciplined for filing frivolous professional liability actions.
Finally, in response to Appellee Dr. Gould’s argument that the
statement-of-reasonable-probability requirement is within the trial court’s
discretion, Gould’s Brief at 16–21, I note the plain language of Pa.R.C.P.
1042.3(e). Because Pa.R.C.P. 1042.3(e) states the condition precedent for a
statement of reasonable probability in unambiguous terms, I would reject
Appellee Gould’s assertion that Pa.R.C.P. 1042.3(e) vests the trial court with
the discretion to require an attached statement of reasonable probability
where the certificate of merit is signed by an attorney. Pa.R.C.P. 1042.3(e).
Moreover, I observe that Appellee Gould cites no apposite precedent to
support his claim that the trial court may require a statement of reasonable
probability as a means of sanctioning a party who is not otherwise required to
file one.
Therefore, I would hold that this Court has jurisdiction of this matter by
virtue of the collateral-order doctrine. Moreover, regarding the merits, I would
conclude that a plaintiff who is a licensed attorney is an “attorney” for
purposes of Pa.R.C.P. 1042.3. Further, I would determine that such
disposition necessarily precludes the need to address Appellees’ attack on
Dr. Liefer’s qualifications. Thus, I would reverse the common pleas court’s
order and remand.
- 19 -