Bisher, B. v. Lehigh Valley Health ( 2020 )

J-A21020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRENTON D. BISHER, CARLA S. : IN THE SUPERIOR COURT OF
BISHER AND ESTATE OF CORY ALLEN : PENNSYLVANIA
BISHER :
:
Appellants :
:
:
v. :
: No. 2743 EDA 2018
:
LEHIGH VALLEY HEALTH NETWORK, :
INC., LEHIGH VALLEY HOSPITAL, :
INC., LEHIGH VALLEY ANESTHESIA :
SERVICES, PC, LVPG PULMONARY :
AND CRITICAL CARE MEDICINE, DR. :
BRIAN CIVIC, DR. DOROTHEA :
WATSON, DR. JENNIFER STROW, DR. :
BONNIE PATEK, DR. FREDERIC :
STELZER, EASTERN PENNSYLVANIA :
GASTROENTEROLOGY AND LIVER :
SPECIALISTS, PC, AND NORMA D. :
WILSON, CRNA :
Appeal from the Order Entered September 5, 2018
In the Court of Common Pleas of Lehigh County Civil Division at No(s):
2017-C-2434
BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JUNE 30, 2020
Appellants, Brenton D. Bisher (“Brenton Bisher”), Carla S. Bisher (“Carla
Bisher”), and the Estate of Cory Allen Bisher (“the Estate”) appeal from the
September 5, 2018 order that, inter alia, struck an amended complaint against
Dr. Frederic Stelzer and Eastern Pennsylvania Gastroenterology and Liver
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Specialists, P.C. (collectively, “Stelzer”) with prejudice.1 We quash this
appeal.
The trial court summarized the factual history as follows:
On October 15, 2015, the decedent[,] Cory Bisher[,] was
transferred as a patient from the Good Samaritan Hospital in
Lebanon, Pennsylvania to the Lehigh Valley Hospital - Cedar Crest
campus facility in Salisbury Township, Lehigh County,
Pennsylvania. Upon transfer, Bisher was initially []treated for
community acquired pneumonia, but allegedly developed a
gastrointestinal bleeding condition [that] ultimately led to his
death at Lehigh Valley Hospital on November 22, 2015.
Trial Court Opinion, 6/11/18, at 4 (extraneous capitalization omitted).
The record demonstrates that on August 3, 2017, Brenton Bisher and
Carla Bisher, Cory Bisher’s parents, filed pro se a complaint against Lehigh
Valley Health Network, Inc., Lehigh Valley Hospital, Inc., Lehigh Valley
Anesthesia Services, P.C., Lehigh Valley Physicians Group Pulmonary and
Critical Care Medicine, Dr. Brian Civic, Dr. Dorothea Watson, Dr. Jennifer
Strow, Dr. Bonnie Patek, and Norma D. Wilson, CRNA (collectively, “LVHN”).
The complaint was also filed against Dr. Frederic Stelzer and Eastern
Pennsylvania Gastroenterology and Liver Specialists, P.C. The complaint
alleged, inter alia, a cause of action for negligence – medical malpractice
stemming from the death of Cory Bisher. Carla Bisher and Brenton Bisher
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1 As our recitation of the procedural history of this case will demonstrate, the
dismissal of the amended complaint against Dr. Frederic Stelzer and Eastern
Pennsylvania Gastroenterology and Liver Specialists, P.C. with prejudice
represents a final, appealable order since that order, coupled with a prior order
entered June 11, 2018, dismissing claims against other defendants, disposed
of all remaining claims against the named defendants as a whole.
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instituted their claims pro se in their individual capacities, as survivors, and
allegedly as the personal representatives of the Estate.
Stelzer filed preliminary objections in the form of demurrers, as well as
motions to strike the complaint for failure to comply with the Pennsylvania
Rules of Civil Procedure. Both LVHN and Stelzer subsequently filed notices of
intent to enter a judgment of non pros for failure to file certificates of merit
with the complaint pursuant to Pennsylvania Rule of Civil Procedure 1042.3.
The trial court denied Carla Bisher’s pro se motion to determine the
necessity to file a certificate of merit and to strike the notices of intent to enter
judgments of non pros for failure to file certificates of merit. Trial Court Order,
10/3/17. Carla Bisher then filed pro se a second motion to determine the
necessity to file a certificate of merit and to request an additional 60 days to
file the certificate of merit, if deemed necessary. The trial court denied Carla
Bisher’s second motion to determine the necessity of the certificate of merit
and granted an additional 60 days to file certificates of merit “with respect to
all defendants against whom certificates of merit must be filed pursuant to
Pennsylvania Rules of Civil Procedure[.]” Trial Court Order, 10/16/17, at 2
(extraneous capitalization omitted).
Before the expiration of the 60-day period, Carla Bisher filed pro se a
third motion to determine the necessity to file certificates of merit and to
request an additional 90 days to file the appropriate certificates of merit.
Following a hearing on Carla Bisher’s motion, the trial court determined that
certificates of merit were necessary “with respect to the professional medical
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service providers identified” in the complaint, denied Carla Bisher’s request
for a 90-day extension, and instructed that any necessary certificates of merit
be filed within 20 days. Trial Court Order, 2/2/18.
On February 22, 2018, Carla Bisher filed pro se a single certificate of
merit intended to encompass and apply to all named defendants and attached
a written statement from Dr. Marvin Ament. LVHN subsequently filed a motion
to strike the certificate of merit, as well as preliminary objections in the form
of a demurrer. The trial court struck the certificate of merit with prejudice as
to Dr. Civic, Dr. Watson, Dr. Strow and CRNA Wilson because Dr. Ament was
not board certified by the same or similar approved medical boards as the
aforementioned defendants and, therefore, would not qualify as an expert
witness at trial.2 Trial Court Order, 3/22/18, at 1-2, 2 n.i. The trial court
struck the certificate of merit without prejudice as to all other defendants on
the grounds “Dr. Ament does not identify the named [d]efendants to whom
[the certificate of merit] relates [and] does not indicate that any specific
[d]efendant breached the applicable standard of care about which Dr. Ament
is qualified to opine.” Id. at 3 n.ii. Carla Bisher did not challenge or object
to the trial court’s determinations.
On March 28, 2018, Dr. Civic, Dr. Watson, Dr. Strow, and CRNA Wilson
filed a praecipe for entry of judgment of non pros pursuant to Rule 1042.12.
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2The trial court determined that with regard to Dr. Patek’s actions, Dr. Ament
might qualify to offer expert testimony at trial. Trial Court Opinion, 3/22/18,
at 3 n.ii.
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Carla Bisher filed pro se five certificates of merit separately naming Frederic
A. Stelzer, M.D., Eastern Pennsylvania Gastroenterology and Liver Specialists,
P.C., Bonnie Patek, DO, Lehigh Valley Health Network, Inc., and Lehigh Valley
Hospital, Inc.3 Stelzer subsequently filed a motion to strike the certificates of
merit pertaining to Frederic A. Stelzer, M.D. and Eastern Pennsylvania
Gastroenterology and Liver Specialists, P.C. In response, Carla Bisher filed
pro se a praecipe to attach the curriculum vitae of Dr. Ament as an addendum
to the five certificates of merit and later a praecipe to substitute and replace
the statement of Dr. Ament attached to the five certificates of merit.
On June 11, 2018, the trial court sustained LVHN’s preliminary
objections in the form of a demurrer and dismissed the complaint with
prejudice against LVHN.4 Trial Court Order (LVHN), 6/11/18.5 In a separate
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3 Carla Bisher did not file separate certificates of merit specifically naming
either Lehigh Valley Anesthesia Services, P.C. or Lehigh Valley Physicians
Group Pulmonary and Critical Care Medicine even though, at this point, the
complaint had not been dismissed against these two defendants.
4 Although the trial court struck the certificate of merit with prejudice as to
Dr. Civic, Dr. Watson, Dr. Strow, and CRNA Wilson in its March 22, 2018 order,
the complaint filed against these parties was not dismissed with prejudice until
June 11, 2018. The June 11, 2018 order dismissed the complaint with
prejudice as to these four aforementioned defendants, as well as Lehigh Valley
Health Network, Inc., Lehigh Valley Hospital Inc., Lehigh Valley Anesthesia
Services, P.C., Lehigh Valley Physicians Group Pulmonary and Critical Care
Medicine, and Dr. Patek. The only remaining defendants were Dr. Frederic
Stelzer and Eastern Pennsylvania Gastroenterology and Liver Specialists, P.C.
5 The trial court issued two orders on June 11, 2018. For purposes of
clarification, the first order pertaining to LVHN is identified as “Trial Court
Order (LVHN).” The second order pertaining to Stelzer is identified as “Trial
Court Order (Stelzer).”
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order entered on June 11, 2018, the trial court granted Stelzer’s motion to
strike the certificates of merit pertaining to Frederic A. Stelzer, M.D. and
Eastern Pennsylvania Gastroenterology and Liver Specialists, P.C. with
prejudice and sustained, in part, and overruled, in part, Stelzer’s preliminary
objections. Trial Court Order (Stelzer), 6/11/18. The trial court granted leave
to file an amended complaint against Stelzer within 20 days. Id. On June 12,
2018, Stelzer filed a praecipe for entry of judgment non pros for failure to file
a certificate of merit.
Carla Bisher filed pro se a motion for reconsideration of both June 11,
2018 orders. Carla Bisher also filed pro se a motion to strike Stelzer’s praecipe
for entry of judgment non pros, as well as a subsequent amended motion to
strike Stelzer’s praecipe for entry of judgment non pros. On June 29, 2018,
Brenton Bisher and Carla Bisher filed pro se an amended complaint against
Dr. Frederic Stelzer and Eastern Pennsylvania Gastroenterology and Liver
Specialists, P.C. raising claims of, inter alia, negligence – medical malpractice
and a wrongful death action. Carla Bisher filed pro se a motion to amend the
complaint on August 10, 2018.
On September 5, 2018, the trial court denied Carla Bisher’s pro se
motion for reconsideration, denied Carla Bisher’s pro se motion to strike
Stelzer’s praecipe for entry of judgment of non pros, and denied Carla Bisher’s
pro se amended motion to strike Stelzer’s praecipe for entry of judgment of
non pros. Trial Court Order, 9/5/18, at 2. The trial court also struck Brenton
Bisher and Carla Bisher’s amended complaint with prejudice and denied as
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moot Carla Bisher’s pro se motion to amend the complaint. Id. The trial
court’s striking of the amended complaint terminated the litigation against Dr.
Frederic Stelzer and Eastern Pennsylvania Gastroenterology and Liver
Specialists, P.C., the only remaining defendants after the June 11, 2018
orders. Carla Bisher filed pro se a notice of appeal of the trial court’s
September 5, 2018 order.6
On October 15, 2018, this Court directed Brenton Bisher, Carla Bisher,
and the Estate to show cause why this appeal should not be quashed as
untimely filed and directed Carla Bisher to notify this Court whether she is
licensed to practice law in the Commonwealth of Pennsylvania. Per Curiam
Order, 10/15/18. Brenton Bisher and Carla Bisher filed pro se a response
arguing the appeal of the September 5, 2018 order was timely because the
June 11, 2018 orders did not “‘dispose of all claims and all parties’ as required
by Pa.R.A.P. 341(b)(1)” and the orders were ambiguous as to whether they
were final appealable orders. Response, 10/19/18, at 1-4. The response also
stated Carla Bisher was not licensed to practice law in the Commonwealth of
Pennsylvania. Id. at 4 ¶7. Brenton Bisher and Carla Bisher contend they
acted pro se when they filed the complaint and that Carla Bisher was
authorized to appear pro se on behalf of Brenton Bisher, in his absence,
pursuant to a power of attorney. Response, 10/19/18, at 1-4. They also
____________________________________________
6 The trial court ordered Carla Bisher to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days. On
September 28, 2018, Carla Bisher filed pro se a Rule 1925(b) statement. The
trial court subsequently filed its Rule 1925(a) opinion.
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contend Carla Bisher is the administrator of the Estate and that a short
certificate authorized her to appear pro se on behalf of the Estate. Id.
On October 26, 2018, this Court prohibited Carla Bisher from filing any
papers with this Court on behalf of Brenton Bisher or the Estate because
neither a power of attorney nor a short certificate authorized Carla Bisher to
practice law without a license in the Commonwealth of Pennsylvania. Per
Curiam Order, 10/26/18. Carla Bisher was directed to retain counsel on behalf
of the Estate. Id. Brenton Bisher and Carla Bisher filed pro se a response
reiterating their prior argument that Carla Bisher’s pro se representation of
Brenton Bisher and the Estate was permitted pursuant to a power of attorney
and short certificate, respectively. Response, 11/4/18.
On November 12, 2018, Laura A. Walker, Esq., entered her appearance
on behalf of Brenton Bisher and Carla Bisher, as individuals, and as
administrators of the Estate (collectively, “Appellants”). This Court
subsequently discharged its rule to show cause order but advised that the
merits panel may raise the issue of an untimely notice of appeal. Per Curiam
Order, 11/26/18. Upon grant of an application for remand, Attorney Walker
filed an amended Rule 1925(b) statement, and the trial court subsequently
filed an amended Rule 1925(a) opinion.
Appellants raise the following issues for our review:
1. Did the trial court err in permitting a non-attorney[], Carla
Bisher, to represent[] Brenton Bisher and the Estate[]
throughout the legal proceedings?
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2. Did the trial court err in striking [Carla Bisher’s] certificates
of merit by order dated June 11, 2018, where the
certificates of merit signed by Dr. Marvin Ament, with
amendments, satisfied the requirements of Pa.R.[Civ.]P.
1042.3 and the [Medical Care Availability and Reduction of
Error (“MCARE”)] Act[7]?
3. Did the trial court err in denying [Carla Bisher’s] motion to
strike [Stelzer’s praecipe for entry of] judgment of non pros
filed on June 18, 2018[,] and denied by order dated
September 5, 2018?
4. Did the trial court err in sustaining the demurrer of [LVHN]
by order dated June 11, 2018, where the trial court held
that [Brenton Bisher and Carla Bisher] could not sustain a
viable cause of action against [LVHN] after the trial court
granted [LVHN’s] motion to strike the certificate of merit
filed on behalf of [Carla Bisher]?
Appellants’ Brief at 5 (extraneous capitalization omitted).
We must first examine whether the notice of appeal was timely filed, as
the timeliness of the appeal implicates the jurisdiction of this Court.
Krankowski v. O’Neil, 928 A.2d 284, 285 (Pa. Super. 2007). Except in
certain circumstances, which do not apply here, Pennsylvania Rules of
Appellate Procedure require a notice of appeal to be filed within 30 days of the
entry of a final order. Pa.R.A.P. 341(a) and 903(a). A final order is an order
that “disposes of all claims and all parties” or is an order disposing of fewer
than all of the claims or parties but is entered as a final order upon an express
determination by the trial court that an immediate appeal would facilitate
resolution of the entire case. Pa.R.A.P. 341(b)(1) and (2), and (c).
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7 40 P.S. §§ 1303.101-1303.910.
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Here, a review of the June 11, 2018 order sustaining LVHN’s preliminary
objections and dismissing the complaint against LVHN with prejudice was not
a final order because the order did not dispose of all parties and claims, and
the trial court did not make an express determination that an immediate
appeal would facilitate resolution of the entire case.8 Trial Court Order
(LVHN), 6/11/18. The June 11, 2018 order striking the certificates of merit
pertaining to Frederic A. Stelzer, M.D. and Eastern Pennsylvania
Gastroenterology and Liver Specialists, P.C. with prejudice and sustaining, in
part, and overruling, in part, Stelzer’s preliminary objections was not a final
order. The order permitted the filing of an amended complaint within 20 days
against Dr. Frederic Stelzer and Eastern Pennsylvania Gastroenterology and
Liver Specialists, P.C. and, therefore, did not dispose of all claims against all
parties. Trial Court Order (Stelzer), 6/11/18. The trial court also made no
express determination that an immediate appeal would facilitate resolution of
the entire case. Id. The record reveals that Brenton Bisher and Carla Bisher
subsequently filed pro se an amended complaint. Amended Complaint,
6/26/18. The trial court’s September 5, 2018 order striking with prejudice
the amended complaint against Dr. Frederic Stelzer and Eastern Pennsylvania
Gastroenterology and Liver Specialists, P.C. constituted a final order because
it disposed of all remaining claims and all remaining defendants. Pa.R.A.P.
____________________________________________
8For clarity, the complaint was dismissed with prejudice against Lehigh Valley
Health Network, Inc., Lehigh Valley Hospital Inc., Lehigh Valley Anesthesia
Services, P.C., Lehigh Valley Physicians Group Pulmonary and Critical Care
Medicine, Dr. Civic, Dr. Watson, Dr. Strow, Dr. Patek, and CRNA Wilson.
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341(b)(1). Consequently, we find Carla Bisher’s pro se notice of appeal filed
on September 14, 2018, well within the 30-day timeframe, to be timely.
However, we must examine the merits of Appellants’ first issue before
determining if this Court, indeed, has jurisdiction.
In their first issue, Appellants contend Carla Bisher, a non-attorney,
should not have been permitted to represent Brenton Bisher and the Estate in
this matter. Appellants’ Brief at 14-23. Appellants contend the trial court
lacked jurisdiction to consider the entire matter because a non-attorney,
acting on behalf of herself and the other plaintiffs, initiated this action. Id.
Appellants’ issue raises questions of the unauthorized practice of law
and the trial court’s jurisdiction, which are pure questions of law, and
therefore, our standard of review is de novo and our scope of review plenary.
See Harkness v. Unemployment Comp. Bd. of Review, 920 A.2d 162,
166 n.2 (Pa. 2007) (holding, question of whether non-attorney may represent
another party in proceeding is pure question of law, and standard of review is
de novo and scope of review plenary); see also David R. Nicholson,
Builder, LLC v. Jablonski, 163 A.3d 1048, 1054 (Pa. Super. 2017) (holding,
“[i]n a civil action, the court lacks jurisdiction to consider the claims raised by
non-attorney” whose conduct constitutes the unauthorized practice of law),
appeal denied, 173 A.3d 266 (Pa. 2017); Barak v. Karolizki, 196 A.3d 208,
215 (Pa. Super. 2018) (stating, “[j]urisdiction is purely a question of law; the
appellate standard of review is de novo and the scope of review plenary.”
(citation omitted)).
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With few exceptions, which do not apply in the case sub judice, the
general rule is that non-attorneys are not permitted to represent other parties
before Pennsylvania courts and most Pennsylvania administrative agencies.
Jablonski, 163 A.3d at 1054, citing In re Estate of Rowley, 84 A.3d 337,
340 (Pa. Cmwlth. 2013) (affirming trial court's decision not to allow
non-attorney administrator to represent estate in action to vacate judicial tax
sale of estate’s property), appeal denied, 97 A.3d 746 (Pa. 2014), cert.
denied, 575 U.S. 943 (2015); see also Spirit of the Avenger Ministries v.
Commonwealth, 767 A.2d 1130, 1131 (Pa. Cmwlth. 2001) (holding, the
Commonwealth Court lacked jurisdiction to consider claims brought by
non-attorney pastor on behalf of church in appeal from tax-exemption
determination of administrative agency); McCain v. Curione, 527 A.2d 591,
594 (Pa. Cmwlth. 1987) (holding, the Commonwealth Court lacked jurisdiction
to consider pleadings filed by non-attorney on behalf of prisoner in civil
action).9 “Given the complex legal issues that may arise during the
representation of an estate[,] prohibiting a non-attorney from representing an
estate is essential to protecting the interests of the public.” Norman for
Estate of Shearlds v. Temple Univ. Health Sys., 208 A.3d 1115, 1120
(Pa. Super. 2019) (citation, ellipses, and original quotation marks omitted).
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9“This Court is not bound by decisions of the Commonwealth Court. However,
such decisions provide persuasive authority, and we may turn to our
colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa. Super. 2010) (citation
omitted), appeal denied, 12 A.3d 371 (Pa. 2010).
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Protecting and securing the public’s interest in competent legal representation
is of tantamount importance and one way this is achieved is by prohibiting the
unauthorized practice of law. The issue of whether a non-attorney’s actions
constitute the unauthorized practice of law implicates a trial court’s jurisdiction
over a particular matter. Therefore, the issue cannot be waived and may be
raised sua sponte by an appellate court.
Here, Carla Bisher is not a licensed attorney in this Commonwealth.
Therefore, she is prohibited from representing the Estate in this matter. See
Norman, 208 A.3d at 1120. The Estate must be represented by a licensed
attorney, and any complaint failed on behalf of the Estate must be filed by a
licensed attorney. Consequently, the complaint as it pertains to the Estate is
a legal nullity, void ab initio, and the trial court was without jurisdiction to
consider the matter as it relates to the Estate.10
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10 The Dissent, relying on Norman, supra, and Estate of Rowley, supra,
suggests that when a non-attorney files a claim on behalf of an estate, the
trial court, before dismissing the action for the unauthorized practice of law,
must first advise the non-attorney that the practice of law without a license in
this Commonwealth is prohibited and second, must afford the non-attorney
the opportunity to obtain counsel. Dissenting Memorandum at *8. Neither of
the cases cited by the Dissent set forth the proposition that notice of the
unauthorized practice of law and the opportunity to obtain counsel is required
before the pleading is dismissed, and we decline to adopt such a requirement.
See Harkness, 920 A.2d at 166 (stating, “[t]he Pennsylvania Constitution
vests with our [Supreme] Court the exclusive authority to regulate the
practice of law, which includes the power to define what constitutes the
practice of law” (citation omitted)).
In the instant case, Carla Bisher, through her pro se representation of the
Estate, was improperly permitted by the trial court, without objection from
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With regard to an individual’s pro se representation of himself or herself,
Pennsylvania Rule of Civil Procedure 1023.1 states, in pertinent part, as
follows:
Rule 1023.1. Scope. Signing of Documents.
Representations to the Court. Violation
....
(b) Every pleading, written motion, and other paper directed to
the court shall be signed by at least one attorney of record in the
attorney's individual name, or, if the party is not represented by
an attorney, shall be signed by the party.
Pa.R.Civ.P. 1023.1(b) (emphasis added). Pennsylvania Rule of Civil Procedure
1024(a) states, in pertinent part, as follows:
Rule 1024. Verification
(a) Every pleading containing an averment of fact not appearing
of record in the action or containing a denial of fact shall state that
the averment or denial is true upon the signer's personal
knowledge or information and belief and shall be verified. . . .
....
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LVHN or Stelzer, to act as counsel for the Estate from the inception of this
action in August 2017. Although the trial court should have recognized that
Carla Bisher’s unauthorized practice of law was prohibited and, thus,
dismissed the complaint, as it pertained to the Estate, for lack of jurisdiction,
the record reveals that the trial court gave Carla Bisher great latitude in her
attempt to litigate, albeit unpermitted, the causes of action. In fact, the record
reflects that the trial court entertained multiple attempts by Carla Bisher to
satisfy the requirements of the necessary certificates of merit. To remand this
case and allow it to begin anew after Carla Bisher has been unsuccessful in
providing adequate certificates of merit would, in essence, reward Carla Bisher
for the unauthorized practice of law, which is something this Court cannot
condone. Moreover, a remand of this case would serve a great prejudice to
LVHN and Stelzer.
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(c) The verification shall be made by one or more of the
parties filing the pleading . . . .
Pa.R.Civ.P. 1024(a) & (c) (emphasis added). The term “‘verified,’ when used
in reference to a written statement of fact by the signer, means supported by
oath or affirmation or made subject to the penalties of 18 Pa.C.S.[A.] § 4904
relating to unsworn falsification to authorities.” Pa.R.Civ.P. 76. Courts are
willing to liberally construe materials filed by a pro se individual. However,
“pro se status confers no special benefit upon the [individual]. To the
contrary, any person choosing to represent himself [or herself] in a legal
proceeding must, to a reasonable extent, assume that his [or her] lack of
expertise and legal training will be his [or her] undoing.” Norman, 208 A.3d
at 1118-1119 (citation omitted).
A complaint is a legal nullity, void ab initio, when the complaint is not
signed by the pro se plaintiff and fails to include the essential verification
statement signed by the plaintiff. See Atl. Credit and Finance, Inc. v.
Giuliana, 829 A.2d 340, 344 (Pa. Super. 2003) (citation omitted) (holding,
the verification requirement is essential to the pleading “because without it a
pleading is mere narration, and amounts to nothing”); see also Monroe
Contract Corp. v. Harrison Square, Inc., 405 A.2d 954, 958 (Pa. Super.
1979) (holding, non-compliance with verification requirement will not be
condoned); Rupel v. Bluestein, 421 A.2d 406, 414 (Pa. Super. 1980)
(stating, to hold unexplained and unexcused non-compliance with verification
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requirement as unimportant would only encourage non-compliance by others,
and laxity on part of trial courts).
Here, a review of the record demonstrates that both Brenton Bisher and
Carla Bisher signed the complaint as pro se individuals. Although both Brenton
Bisher and Carla Bisher were permitted to sign the complaint as pro se
individuals, each representing themselves in this matter, a review of the
complaint demonstrates it does not contain the necessary and essential
verification statement signed by both of the pro se individuals. Therefore, the
complaint, absent the necessary verification statement, was nothing more
than a narration of events and a legal nullity, void ab initio, as to the pro se
individuals, Brenton Bisher and Carla Bisher. Consequently, the trial court
was without jurisdiction over the matter as it pertained to Brenton Bisher and
Carla Bisher, as individuals.11
Accordingly, this Court is without jurisdiction to review the merits of this
matter on appeal, and we are constrained to quash the appeal.12
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11 It is incumbent upon trial courts to recognize the importance of adherence
to all procedural rules and, especially, to determine if the trial court lacks
jurisdiction over a matter ab initio at the earliest possible stage of the
proceedings in order to avoid, as in this case, the unnecessary expenditure of
time and money by the parties and the court.
12The Dissent’s reliance on George H. Althof, Inc. v. Spartan Inns of Am.,
Inc., 441 A.2d 1236 (Pa. Super. 1982) and Reilly v. Ernst & Young, LLP,
929 A.2d 1193 (Pa. Super. 2007) to suggest that remand is appropriate is
unavailing. Dissenting Memorandum at *2-3, 8. The instant case differs, in
material ways, from the cited cases such that similar treatment would be
inappropriate. In the cited cases, there was attempted, but failed, compliance
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with the relevant procedural rules. Here, however, Appellant never attempted
to include a verification over the course of nearly two years, despite filing an
amended complaint. In addition, remand was deemed appropriate in the cited
cases only after the respective panels determined that the causes of action
would not change, the ends of justice required opportunity for amendment,
and the substantive rights of the defendants, or third persons, would not be
prejudiced. The Dissent makes no effort to determine whether the same is
true for LVHN or Stelzer in the instant case.
In Althof, supra, the verification attached to the complaint in a confessed
judgment action was made by the attorney, not the appellant, and did not set
forth, inter alia, “the source of the person's information as to matters not
stated upon his or her own knowledge and the reason why the verification is
not made by a party.” See Althof, 441 A.2d at 1237; see also Pa.R.Civ.P.
1024(c). In other words, a verification was attached to the complaint but it
did not technically satisfy all of the requirements of Rule 1024. In the instant
case, Appellant did not attempt to include a verification in the nearly two years
of litigation. Moreover, in Althof, supra, this Court remanded the case for
purposes of filing a proper verification because “the ends of justice require[d]
the allowance of such amendement[,]” the allegations in the complaint were
not spurious, and the substantive rights of the defendant or any third party
would not be prejudiced. Althof, 441 A.2d at 1238 (stating, “[f]ormal defects,
mistakes and omissions, in confessions of judgment, may be corrected by
amendment where the cause of action is not changed, where the ends of
justice require the allowance of such amendment and where the substantive
rights of defendant or of any third persons will not be prejudiced thereby”).
In so deciding, the Althof Court relied on Monroe Contract Corp. v.
Harrison Square, Inc., 405 A.2d 954 (Pa. Super. 1979), noting that in
Monroe Contract, the attorney verified the complaint stating the appellant
lacked sufficient knowledge but did not state that the appellant was without
sufficient information to do so. The Monroe Contract Court found this error
to be de minimis and held that when confronted with such verification the trial
court should grant leave to amend the petition to strike or open a judgment
rather than dismiss the petition. Monroe Contract, 405 A.2d at 958-959.
The error was held to be inconsequential, did not prejudice the parties, and
was in the best interests of judicial economy. Id. at 959.
Similarly, in Davis v. Safeguard Investment Co., 361 A.2d 893 (Pa. Super.
1976), also examined by the Althof Court, the appellant filed separate
petitions to open or strike separate judgments. The appellant properly verified
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Alternatively, if the complaint had contained a verification statement,
thus giving the trial court jurisdiction over the claims raised pro se by Brenton
Bisher and Carla Bisher, as individuals, the record demonstrates that the
complaint and amended complaint were the only documents in the case that
were signed by both pro se individuals. See Pa.R.Civ.P. 1023.1 (requiring
each party to sign pleading, motion, or other paper in pro se situations). Carla
Bisher is not a licensed attorney in the Commonwealth of Pennsylvania and a
____________________________________________
one petition. The other petition was verified by appellant’s attorney but did
not comply with the requirements of Rule 1024 (it is unclear what the defect
was). The Davis Court found the error inconsequential and that it did not
prejudice the other party. Davis, 361 A.2d at 896.
The Dissent also relies on Reilly, supra, in which only one defendant verified
the joint answers and objections to the Reillys’ requests for admissions.
Reilly, 929 A.2d at 1201. The Reilly Court held that “the terms of Rule 1024
are applicable to all documents requiring a verification, on the ground that
there is ‘no reason why practice regulating a matter as common and collateral
to all proceedings as verification should not be uniform in all cases.’” Id.,citing Monroe, supra. The Reilly Court further noted that verification was
necessary to avoid spurious allegations. Reilly, 929 A.2d at 1201. The Reilly
Court held that the error present in that case was de minimis and the Reillys
would suffer only minimum prejudice if the parties were permitted to amend
the joint answers and objections to include proper verification. Id.In the instant case, Appellant’s actions amounted to more than a failure to
adhere to a technical nuance of Rule 1024 in that Appellant failed to file any
verification. Failure to attempt conformance with Rule 1024 is distinct from
an attempt that fails to conform to Rule 1024. Moreover, Appellant’s
complaint contained spurious allegations, as noted in preliminary objections
filed against the complaint, and LVHN and Stelzer would be prejudiced, at this
stage in the proceedings, if the case was remanded for Appellant to file a
verified complaint and begin this action anew. A remand would serve no
benefit toward achieving the ends of justice, as the causes of action were
properly dismissed and, moreover, would invalidate the requirements of Rule
1024.
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power of attorney executed by Brenton Bisher cannot grant Carla Bisher a
license to practice law or permit her to represent Brenton Bisher in any legal
matters before a court of law. Such conduct constitutes the unauthorized
practice of law. Therefore, all actions taken by Carla Bisher pro se were taken
on behalf of only Carla S. Bisher, including but not limited to, the filing of a
notice of appeal. Brenton Bisher did not file a notice of appeal with this Court.
Consequently, this Court is without jurisdiction with regard to matters
involving Brenton Bisher and the appeal is subject to quashal.
Even if this Court had jurisdiction to consider the merits of Carla Bisher’s
pro se appeal of the trial court’s order that, inter alia, dismissed the amended
complaint with prejudice, we would find that the appeal lacks merit. Carla
Bisher’s appeal raises the issue of whether Carla Bisher’s certificates of merit
failed to comply with the requirements of Rule 1042.3. This issue raises a
question of law. Therefore, our standard of review is de novo and our scope
of review is plenary. Womer v. Hilliker, 908 A.2d 269, 276 n.8 (Pa. 2006);
see also Pollock v. Feinstein, 917 A.2d 875, 877 (Pa. Super. 2007) (stating,
“the interpretation and application of the Pennsylvania Rules of Civil Procedure
present questions of law, and our review on these matters is plenary” (citation
omitted)).
Pennsylvania Rule of Civil Procedure 1042.3 relating to the certificate of
merit states, in pertinent part,
Rule 1042.3. Certificate of Merit
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(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
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 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.
(b) (1) A separate certificate of merit shall be filed as to each
licensed professional against whom a claim is asserted.
(2) If a complaint raises claims under both subdivisions (a)(1) and
(a)(2) against the same defendant, the attorney for the plaintiff,
or the plaintiff if not represented, shall file
(i) a separate certificate of merit as to each claim raised, or
(ii) a single certificate of merit stating that claims are raised
under both subdivisions (a)(1) and (a)(2).
....
(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 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.
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Pa.R.Civ.P. 1042.3.
It is not required that the “appropriate licensed professional” who
supplies the necessary statement in support of a certificate of
merit required by subdivision (a)(1) be the same person who will
actually testify at trial. It is required, however, that the
“appropriate licensed professional” who supplies such a statement
be an expert with sufficient education, training, knowledge and
experience to provide credible, competent testimony, or stated
another way, the expert who supplies the statement must have
qualifications such that the trial court would find them sufficient
to allow that expert to testify at trial. For example, in a medical
professional liability action against a physician, the expert who
provides the statement in support of a certificate of merit should
meet the qualifications set forth in Section 512 of the Medical Care
Availability and Reduction of Error ([“]MCARE[”]) Act, 40 P.S.
§ 1303.512.
Pa.R.Civ.P. 1042.3(a)(1) at Official Note. Section 512 of the MCARE Act
states, in pertinent part,
§ 1303.512. Expert qualifications
(a) General rule.--No person shall be competent to offer an
expert medical opinion in a medical professional liability action
against a physician unless that person possesses sufficient
education, training, knowledge and experience to provide
credible, competent testimony and fulfills the additional
qualifications set forth in this section as applicable.
(b) Medical testimony.--An expert testifying on a medical
matter, including the standard of care, risks and alternatives,
causation and the nature and extent of the injury, must meet the
following qualifications:
(1) Possess an unrestricted physician's license to practice
medicine in any state or the District of Columbia.
(2) Be engaged in or retired within the previous five years
from active clinical practice or teaching.
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(c) Standard of care.--In addition to the requirements set forth
in subsections (a) and (b), an expert testifying as to a physician's
standard of care also must meet the following qualifications:
(1) Be substantially familiar with the applicable standard of
care for the specific care at issue as of the time of the
alleged breach of the standard of care.
(2) Practice in the same subspecialty as the defendant
physician or in a subspecialty which has a substantially
similar standard of care for the specific care at issue, except
as provided in subsection (d) or (e).
(3) In the event the defendant physician is certified by an
approved board, be board certified by the same or a similar
approved board, except as provided in subsection (e).
(d) Care outside specialty.--A court may waive the same
subspecialty requirement for an expert testifying on the standard
of care for the diagnosis or treatment of a condition if the court
determines that:
(1) the expert is trained in the diagnosis or treatment of the
condition, as applicable; and
(2) the defendant physician provided care for that condition
and such care was not within the physician's specialty or
competence.
(e) Otherwise adequate training, experience and
knowledge.--A court may waive the same specialty and board
certification requirements for an expert testifying as to a standard
of care if the court determines that the expert possesses sufficient
training, experience and knowledge to provide the testimony as a
result of active involvement in or full-time teaching of medicine in
the applicable subspecialty or a related field of medicine within the
previous five-year time period.
40 Pa.C.S.A. § 1303.512.
Here, a review of the record demonstrates that the trial court adequately
and comprehensively explained its rationale for striking Carla Bisher’s
certificates of merit with prejudice. We would adopt that portion of the trial
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court’s opinion as our own and incorporate it herein. See Trial Court Opinion,
11/9/18, at 8-18. Specifically, the trial court found that Dr. Ament’s third
amended statement “merely summarizes ‘that [LVHN and Stelzer] breached
the appropriate standard of care, and that this breach was a cause in bringing
about the harm to Cory Bisher.’” Id. at 16. The trial court concluded, and we
concur, “[t]his statement fails to identify the specific defendant who breached
the appropriate standard of care, and that said breach of care led to Bisher's
death.” Id. at 17. Absent specificity, Dr. Ament’s third amended statement
failed to meet the requirements of Rule 1042.3. Id. In sum, the trial court
concluded,
the record reflects that [Carla Bisher] undertook the challenging
task of litigating a complex medical malpractice matter on her own
without any assistance from counsel. The [trial] court granted
[her] a significant amount of leeway. The [trial] court fully and
fairly considered her numerous requests to be excused from the
certificate of merit requirement. The [trial] court also evaluated
the certificate of merit that she provided in a light that was
favorable to her, but concluded that despite Dr. Ament's
qualifications, the certificate he provided did not satisfy the
criteria set forth in Rule 1042.3 or [Section 512 of] the MCARE
Act.
Id. at 18 (extraneous capitalization omitted). For the reasons set forth in the
trial court’s opinion, and incorporated herein, Carla Bisher’s certificates of
merit failed to meet the requirements of Rule 1042.3. Therefore, we would
find no basis upon which to reverse the trial court’s striking of the amended
complaint with prejudice.
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Additionally, there is no merit to Carla Bisher’s argument that the trial
court erred in denying her motion to strike Stelzer’s praecipe for entry of
judgment non pros. In reviewing a trial court’s denial of a motion to strike
the praecipe for entry of judgment of non pros pursuant to Rule 1042.6, our
Court may only reverse the decision of the trial court upon a finding that the
trial court abused its discretion in reaching its determination.13 Ditch v.
Waynesboro Hosp., 917 A.2d 317, 324 (Pa. Super. 2007) (citation omitted),
aff’d, 17 A.3d 310 (Pa. 2011). “It is well-established that a motion to strike
[a praecipe for entry of] judgment of non pros challenges only defects
appearing on the face of the record and that such a motion may not be granted
if the record is self-sustaining.” Ditch, 917 A.2d at 324-325 (citation
omitted).
Here, Carla Bisher contends that Stelzer’s praecipe for entry of
judgment of non pros is “moot because [she] complied with Pa.R.[Civ.]P.
1042.3 by timely filing [c]ertificates of [m]erit as to [Stelzer.]” Carla Bisher’s
Brief in Support of Motion, 6/18/18, at 15.
The trial court held that Stelzer was entitled to an entry of judgment of
non pros pursuant to Rule 1042.7 because a certificate of merit was not filed.
____________________________________________
13“As a general rule, interlocutory orders that are not subject to immediate
appeal as of right may be reviewed on a subsequent timely appeal of the final
appealable order or judgment in the case.” Stephens v. Messick, 799 A.2d
793, 798 (Pa. Super. 2002) (citation omitted).
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Trial Court Opinion, 11/9/18, at 19. Rule 1042.7 permitted Stelzer to obtain
an entry of judgment of non pros based on the failure to file a certificate of
merit. Therefore, the trial court did not abuse its discretion in denying Carla
Bisher’s “motion” upon the striking of the certificate of merit.14 Moreover, as
Carla Bisher did not challenge the praecipe for entry of judgment non pros
filed by LVHN, she waived this issue.15
Appeal quashed.
President Judge Emeritus Ford Elliott joins.
Judge Bowes files a Dissenting Memorandum.
____________________________________________
14 The record demonstrates that Carla Bisher filed pro se a document
containing nothing more than a heading identifying it as a motion to strike the
praecipe for entry of judgment of non pros. Carla Bisher’s Motion, 6/18/18.
Carla Bisher’s filing failed to comply with the bare requirements of a motion’s
form and content under Rule 208.2 that requires, among other things, that
the motion “set forth material facts constituting grounds for the relief sought,
specify the relief sought and include a proposed order[.]” Pa.R.Civ.P.
208.2(a)(3). It is only upon a review of Carla Bisher’s brief accompanying the
“motion” that it can be discerned that the motion challenges the praecipe for
entry of judgment of non pros filed by Stelzer.
15Having found that Carla Bisher failed to file a certificate of merit, as required
by Rule 1042.3, and that LVHN and Stelzer were entitled to entry of judgment
of non pros for the failure to file a certificate of merit, we would not need to
address Carla Bisher’s final issue challenging the trial court’s denial of her
motion for reconsideration.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2020
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