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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
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 : No. 2743 EDA 2018
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.
DISSENTING MEMORANDUM BY BOWES, J.: FILED JUNE 30, 2020
I agree with the Majority that the Bishers’ actions of filing and litigating
a complaint, petitions, and motions in the trial court constituted the
unauthorized practice of law under this Court’s precedent.1 However, I do not
____________________________________________
1The earlier cases addressing the unauthorized practice of law concerned non-
parties who sought to represent another person or entity. See, e.g., Shortz
v. Farrell, 193 A. 20, 24 (Pa. 1937) (providing corporation cannot litigate but
J-A21020-19
believe that the pro se or unverified nature of the complaint that initiated this
case rendered it a nullity such that there was no action over which the trial
court could exercise jurisdiction. In my view, the case law and the particular
circumstances of this case do not warrant quashal, but rather that we remand
to allow counsel to file the appropriate pleadings.
First, this Court has held that “a defective verification does not affect
the jurisdiction of the court.” George H. Althof, Inc. v. Spartan Inns of
Am., Inc., 441 A.2d 1236, 1238 n.3 (Pa.Super. 1982). “[A]t a bare minimum,
a court confronted by a defective verification should grant leave to amend[.]”
Reilly v. Ernst & Young, LLP, 929 A.2d 1193, 1201 (Pa.Super. 2007)
____________________________________________
through counsel); Kohlman v. Western Pennsylvania Hospital, 652 A.2d
849 (Pa.Super. 1994) (holding non-lawyer attorney-in-fact not permitted to
represent principal in litigating medical malpractice action). However, in
survival and wrongful death actions like the one at issue here, the personal
representative of the estate is the actual party-plaintiff. See Bouchon v.
Citizen Care, Inc., 176 A.3d 244, 258 (Pa.Super. 2017). Therefore, such
plaintiffs do not represent third parties by virtue of litigating without counsel,
but rather represent themselves in their capacity as the estate
representatives. While there has been some suggestion that this distinction
might be relevant when the non-lawyer personal representative is the sole
beneficiary of the estate, it has additionally been noted that “estates also
normally involve third parties and the payment of estate taxes to the
Commonwealth.” In re Estate of Rowley, 84 A.3d 337, 342 (Pa.Cmwlth.
2013). Since we have no information regarding the solvency of Cory Bisher’s
estate or other indication that the Bishers alone will be impacted by the
outcome of this action, I do not disagree with the Majority’s conclusion that
the Bishers, although the actual plaintiffs by virtue of being co-administrators
of their son’s estate, may not proceed pro se in litigating their survival and
wrongful death claims on behalf of the estate and themselves as the wrongful
death beneficiaries, respectively.
-2-
J-A21020-19
(internal quotation marks omitted). Further, by failing to object in the trial
court to the lack of a proper verification, a party waives the issue on appeal.2
See Avery v. Cercone, 225 A.3d 873, 883 (Pa.Super. 2019).
Since a defective verification does not implicate jurisdiction, there is no
basis for this Court to address it sua sponte. See, e.g., Wiegand v.
Wiegand, 337 A.2d 256, 257–58 (Pa. 1975) (reversing Superior Court for
addressing non-jurisdictional not raised by the parties). Moreover, because
no party objected to the lack of a verification, the plaintiffs did not have the
opportunity to correct the omission. As its absence does not impact our ability
to review the issues raised in this appeal, quashal of this appeal based upon
lack of a verification to the complaint is unwarranted.
Second, not all pro se filings that are deemed “legal nullities” are treated
as having no legal effect whatsoever. Specifically, we have held that an
improper pro se filing made to protect a right, rather than to pursue a legal
strategy, retains its legal effect. See, e.g., S.C.B. v. J.S.B., 218 A.3d 905,
____________________________________________
2 The Majority cites Atlantic Credit & Finance, Inc. v. Giuliana, 829 A.2d
340, 344 (Pa.Super. 2003), for the proposition that a complaint is void ab
initio if it is not properly verified. See Majority Memorandum at 14-15.
However, in that case, we held that a preliminary objection challenging the
verification was meritorious, and remanded the case for the trial court to
dismiss the complaint without prejudice for the plaintiff to correct the
defect by filing an amended complaint. See Atl. Credit & Fin., Inc.,
supra at 345. Were the complaint void ab initio, there would have been
nothing to amend. See McClean v. Djerassi, 84 A.3d 1067, 1071 (Pa.
Super. 2013) (holding complaint filed against dead person was completely
void and could not be amended).
-3-
J-A21020-19
911 n.4 (Pa.Super. 2019) (declining to treat the represented appellant’s notice
of appeal as a legal nullity); Commonwealth v. Williams, 151 A.3d 621,
624 (Pa.Super. 2016) (same).3 More importantly, in prior instances in which
the Pennsylvania appellate courts considered pro se appeals involving the
viability of actions brought pro se by non-lawyer personal representatives of
estates, we have not quashed such appeals for lack of jurisdiction. Nor have
we held that the pro se pleading that commenced the action was void ab initio.
Rather, we affirmed the trial court orders that dismissed the pending pleadings
only after having provided the personal representative the
opportunity to obtain counsel.
A Pennsylvania appellate court first addressed the issue in In re Estate
of Rowley, 84 A.3d 337 (Pa.Cmwlth. 2013). Therein, our sister Court
considered the pro se appeal of Miller, the non-lawyer administrator of
Rowley’s estate, from an order that dismissed his pro se petition to vacate a
judicial tax sale of property of the estate. The local tax bureau moved to
____________________________________________
3 As I noted above, the Bishers, as co-administrators of their son’s estate, are
the proper parties to bring the instant survival and wrongful death actions.
See Bouchon v. Citizen Care, Inc., 176 A.3d 244, 258 (Pa.Super. 2017).
Therefore, this is not an instance where a complaint is wholly without effect
for want of a competent legal party. Cf. McClean v. Djerassi, 84 A.3d 1067,
1071 (Pa.Super. 2013) (“It is fundamental that an action at law requires a
person or entity which has the right to bring the action, and a person or entity
against which the action can be maintained. By its very terms, an action at
law implies the existence of legal parties; they may be natural or artificial
persons, but they must be entities which the law recognizes as competent. A
dead man cannot be a party to an action, and any such attempted proceeding
is completely void and of no effect.” (cleaned up)).
-4-
J-A21020-19
dismiss the petition, contending that Miller’s litigation of the petition amounted
to the unauthorized practice of law. Id. at 339. The trial court held that the
estate must be represented by an attorney, and thus entered an order
providing that the petition would be dismissed if Miller failed to retain counsel
within sixty days. Id. Miller filed a pro se appeal prior to the expiration of
the sixty-day window, challenging the ruling that he could not represent the
estate.
The Commonwealth Court, after determining that it had jurisdiction over
the collateral order, noted that whether a non-attorney could litigate on behalf
of an estate was an issue of first impression in Pennsylvania state court. The
Court examined our Supreme Court’s precedent concerning what constitutes
the practice of law and the policy reasons prohibiting non-lawyers from
engaging in it, and it also considered federal court decisions on the issue.
Ultimately, the Court held that Miller could not represent the estate, stating:
“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[.]” Id. at 342.
Of importance to the case sub judice, the Commonwealth Court did not
quash Miller’s pro se appeal as a nullity, or indicate that the pro se petition
pending in the trial court was void ab initio. Instead, it affirmed the order
providing that the pro se petition would be dismissed if Miller did not timely
-5-
J-A21020-19
obtain counsel, and remanded the case to the trial court for further
proceedings.
This Court had occasion to address the issue in Norman v. Temple
University Health System, 208 A.3d 1115 (Pa.Super. 2019). In that case,
Norman, the administrator of his mother’s estate, filed pro se a medical
malpractice complaint against various defendants. The action was litigated
for months with the parties filing “alternating preliminary objections and
amended complaints.” Id. at 1117. Citing Estate of Rowley, the trial court
ruled that no non-lawyer could represent the estate pro se, and stayed the
case for sixty days to allow the estate to retain an attorney.4 After Norman
failed to obtain counsel, the trial court granted the defendants’ motion to
dismiss the pro se complaint. Norman filed a pro se appeal to this Court,
challenging the trial court’s determination that he could not litigate the
personal injury action pro se as the estate administrator.
This Court did not quash the pro se appeal or hold that Norman’s pro se
complaint was void ab initio. Rather, we extensively discussed Estate of
Rowley, approved the trial court’s reliance on it, and adopted Estate of
Rowley’s prohibition on an estate representative’s litigation before an
____________________________________________
4The order alternatively allowed the administrator to prove that he was the
only beneficiary of the estate. However, the defendants noted that one of the
amended complaints established that the administrator was not the only
beneficiary. See Norman v. Temple University Health System, 208 A.3d
1115, 1117-18 (Pa.Super. 2019).
-6-
J-A21020-19
administrative agency as equally applicable to an administrator’s pro se efforts
in a trial court. Norman, supra at 1121. Therefore, again citing Estate of
Rowley, we affirmed the trial court’s order that dismissed the pro se
complaint after Norman declined to comply with the trial court’s order
to obtain counsel.
In my view, Estate of Rowley and Norman suggest that, while a court
lacks jurisdiction to determine the merits of any issues in an action
commenced by a non-lawyer on behalf of an estate, the pleading that initiated
the action is not itself void ab initio. Instead, these cases indicate that an
action commenced through the unauthorized practice of law is merely
voidable. See also Kohlman v. Western Pennsylvania Hospital, 652 A.2d
849 (Pa.Super. 1994) (affirming, in medical malpractice action initiated by
non-lawyer attorney-in-fact for plaintiff, the denial of petition to strike
judgment of non pros litigated by the attorney-in-fact, but remanding for
refiling of petition by counsel or the plaintiff pro se).5
____________________________________________
5 I acknowledge that in David R. Nicholson, Builder, LLC v. Jablonski, 163
A.3d 1048, 1056 (Pa.Super. 2017), this Court held that the trial court lacked
jurisdiction to consider a pro se complaint, and the subsequent counselled
complaint did not cure the jurisdictional defect. However, Jablonski involved
a layperson non-party’s filing of a complaint on behalf of an LLC, not an estate
representative filing a pro se complaint. This Court’s decision in Norman,
which adopted Estate of Rowley and implicitly approved of the notion that
subsequent actions of counsel may validate a pro se complaint filed by an
estate representative, post-dates Jablonski. Accordingly, I deem Norman,
not Jablonski, as the controlling authority on this point.
-7-
J-A21020-19
Furthermore, Norman and Estate of Rowley are consistent with the
notion that before a voidable claim is nullified based upon the unauthorized
practice of law, the pro se litigant should be advised of the problem and
afforded the opportunity to obtain counsel. The Bishers were not so advised
until the case was pending in this Court.
Accordingly, I would not quash this appeal.6 Instead, based upon the
case law discussed above, I would hold that the trial court did not have
jurisdiction to entertain the merits of the pending action, and, thus, all of its
orders concerning the merits of the Bishers’ claims are void. I would remand
the case for counsel to file an amended complaint within sixty days. If none
is filed, I would instruct that the trial court may dismiss the complaint with
prejudice. If counsel files an amended complaint, the case should proceed
ordinarily therefrom.7
____________________________________________
6 The Majority properly concludes that this is a timely appeal from a final
order. See Majority Memorandum at 9-11. As such, neither untimeliness nor
lack of finality provides an alternate basis to support the Majority’s disposition
of quashal. See Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996, 1001 n.3
(Pa. 2001) (holding quashal was not warranted where the appeal was timely
filed from an appealable order).
7 The Majority suggests that my proposed disposition of this appeal would
“reward Carla Bisher for the unauthorized practice of law” and “serve a great
prejudice to” the defendants. Majority Memorandum at 14 n.10. First, I
reiterate that the reason a non-lawyer estate representative, although the
proper party-plaintiff, is not permitted to proceed pro se is because her actions
impact not only herself, but also the creditors and other beneficiaries of the
estate. See note 1, supra. My disposition is not designed to reward Ms.
Bisher, but to correct the prejudice that those others have suffered by her
-8-
J-A21020-19
Therefore, I respectfully dissent.
____________________________________________
unauthorized actions. Second, the Majority’s bald assertion of prejudice to
the defendants is unsupported by the record. Further, it is the failure of their
attorneys to raise the impropriety of the Bishers’ unauthorized practice of law
that has allowed the time and effort expended to be wasted. Cf. In re Estate
of Rowley, 84 A.3d 337 (Pa.Cmwlth. 2013) (opposing party alerted the court
to issue by moving to dismiss pro se petition of estate representative).
-9-