Anderson, M. v. Walmer, J. ( 2021 )

J-S03034-21
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
MICHALE J. ANDERSON, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DR. JOHN K. WALMER, LPM, DR. :
SHELLA A. KHATRI, MS. M. PARMAR, :
PSSC, MR. JONATHAN ERRIGO, PSSC, :
MR. EDWARD KECHISEN, PSSC, AND :
MS. CELINE KEITH, PSSC, :
:
Appellees : No. 632 WDA 2020
Appeal from the Order Entered May 19, 2020
in the Court of Common Pleas of Clearfield County
Civil Division at No(s): 2020-22-MD
BEFORE: DUBOW, J., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED: SEPTEMBER 15, 2021
Appellant, Michale J. Anderson, appeals from the trial court’s May 19,
2020 Order dismissing with prejudice Appellant’s civil complaint filed against
Dr. John K. Walmer, LPM; Dr. Shella A. Khatri; Ms. M. Parmar, PSSC; Mr.
Jonathan Errigo, PSSC; Mr. Edward Kechisen, PSSC; and Ms. Celine Keith,
PSSC (collectively, “Psychology Professionals”).1 Upon review, we affirm.
By way of background, Appellant is, and has been at all times relevant
to this case, incarcerated at Pennsylvania State Correction Institute (“SCI”)
1
Dr. Khatri and Mr. Kechisen did not join the other Psychology Professionals’
Brief or otherwise participate in this appeal. Nevertheless, for ease of
reference, we refer to the appellees collectively as the Psychology
Professionals.
* Retired Senior Judge assigned to the Superior Court.
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Houtzdale. Originally, Appellant was serving a life sentence without parole
for crimes he committed as a juvenile in 1989. Pursuant to Miller v.
Alabama, 567 U.S. 460 (2012), and Commonwealth v. Batts, 163 A.3d
410 (Pa. 2017), Appellant underwent a resentencing hearing on April 9,
2018. In connection with the resentencing hearing, the Commonwealth and
Appellant both hired their own experts to review Appellant’s prison records,
which included his psychological and psychiatric records. Following the
hearing, the criminal court re-sentenced Appellant to a term of 50 years to
life in prison.
On March 26, 2020, Appellant filed pro se a petition to proceed in
forma pauperis and a civil Complaint alleging malpractice against the
Psychology Professionals. Appellant alleged the Psychology Professionals are
or were “licensed professional[s]” associated with SCI Houtzdale’s
psychology or medical department who allegedly treated Appellant in their
capacity as members of that unit. Complaint, 3/26/2020, at ¶¶ 1-6.
According to the Complaint, the Psychology Professionals “placed negative
and untrue information in his records to diminish the possibility of
[Appellant’s] being released at the resentencing hearing.” Trial Court Order,
5/20/2020, at 5 (citing Complaint, 3/26/2020, at ¶ 13). Although Appellant
claimed to have copies of his medical records, he did not specify what
comments in the records were untrue or negative. Id. Appellant described
his claims as “professional liability claim[s]” for “malpractice,” “gross
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negligence,” “fraud,” “harassment,” and/or “vicarious liability,”2 and sought
compensatory, punitive, and special damages from the Psychology
Professionals. Complaint, 3/26/2020, at ¶¶ 1-6.
On May 20, 2020, the trial court sua sponte issued an Order denying
his petition to proceed in forma pauperis and dismissing Appellant’s
Complaint as frivolous pursuant to Pa.R.C.P. 240(j)(1) (permitting dismissal
of a frivolous action prior to ruling on a motion for leave to proceed in forma
pauperis). Specifically, the trial court determined that Appellant did not
provide any details as to the comments the Psychological Professionals
allegedly placed in his treatment records. Trial Court Order, 5/20/2020, at
2. Without these specifics, the trial court concluded Appellant’s averments
did not establish that the Psychological Professionals breached a duty owed
to him, thereby failing to state a claim for medical malpractice. Id. (citing
Billman v. Saylor, 761 A.2d 1208, 1211-12 (Pa. Super. 2000) (establishing
four factors a plaintiff must allege in a medical malpractice claim: (1)
physician owed a duty to patient; (2) physician breached duty; (3) breach
was proximate cause of or substantial factor in bringing about harm to
patient; and (4) damages suffered by patient were direct result of harm)).
The trial court determined that Appellant did not establish that the
2
Although counsel for the Pennsylvania Department of Corrections (“DOC”)
filed a brief on appeal on behalf of DOC and some of the Psychology
Professionals, Appellant did not name DOC in his Complaint as a defendant.
Accordingly, DOC is not a party to this action.
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comments by the Psychological Professionals were a substantial factor in the
harm to Appellant, which the trial court construed as Appellant’s receipt of a
sentence longer than he hoped. Id. at 3-4. Finally, the trial court noted
that Appellant failed to file or attach a certificate of merit for each of the
Psychology Professionals pursuant to Pa.R.C.P. 1042.3 (requiring a
certificate to accompany the filing of any professional malpractice action or
to be filed within 60 days). Based on Appellant’s failure to aver that the
Psychological Professionals breached a duty of care and were a substantial
factor in bringing about harm to him, and his failure to file certificates of
merit, the trial court dismissed his Complaint with prejudice as frivolous.
Appellant timely filed pro se an appeal to this Court.3 Appellant
attached a large volume of documents to his notice of appeal, including a
motion seeking to correct the record to incorporate an Amended Complaint
and a proposed Amended Complaint. The trial court ordered Appellant to file
a Concise Statement of Matters Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b). Appellant complied, and the trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a), which included the court’s observation that
3
Appellant’s appeal was filed more than 30 days after the May 20, 2020
Order dismissing his complaint. This Court issued a Rule to Show Cause as
to the timeliness of the appeal. Appellant ultimately provided
documentation that his appeal was timely-filed pursuant to the prisoner
mailbox rule. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa.
1997) (deeming notice of appeal by pro se prisoner filed on the date the
prisoner deposits the notice with prison mailbox or authorities). Accordingly,
this Court discharged the Rule to Show Cause and permitted the appeal to
proceed.
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Appellant did not request to amend his Complaint prior to the dismissal of
the Complaint. Supplemental Opinion, 8/31/2020, at 2.
On appeal, Appellant presents the following issues, all of which are
variations on his argument that the trial court erred by not permitting him to
amend his Complaint and dismissing the Complaint pursuant to Pa.R.C.P.
240(j)(1):
1. Did the Clearfield County Court of Common Pleas err in
dismissing with prejudice Appellant’s complaint for
Professional Liability-Medical, where the complaint explicitly
requested leave to amend the pleading at a later time?
2. Was it an abuse of discretion, pursuant to Pa.R.C.P. 126, for
the Court to deny Appellant a fair opportunity to amend the
defective complaint filed during the COVID-19 pandemic by
summarily dismissing the complaint with prejudice, rather
than permit amendment?
3. Did the Court’s failure to liberally construe Pa.R.C.P. Rule
1033, prematurely deny Appellant a fair opportunity to be
heard, where Appellant made good faith efforts to request
amendment, inform the Court of his situational status,
followed through on filing an amended complaint with
supporting documents, and where less fatal remedies were
available?
4. Did the Court exercise a manifestly unjust abuse of discretion
in denying permission to amend the complaint, where the
Court’s reasoning mistakenly claimed that Appellant did not
mention seeking leave to amend until after the case was
appealed?
Appellant’s Brief at 4-5 (suggested answers omitted).
Appellate review of a decision dismissing an action pursuant to
Pa.R.C.P. 240(j) is limited to determining whether the appellant’s
constitutional rights have been violated and whether the trial court abused
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its discretion or committed an error of law. Bell v. Mayview State
Hospital, 853 A.2d 1058, 1060 (Pa. Super. 2004). Rule 240 sets forth a
procedure by which a person who is without the financial resources to pay
the costs of litigation may proceed in forma pauperis. Id. (citing Pa.R.C.P.
240). As part of that procedure, subsection (j) thereof describes the
obligation of the trial court when a party seeks to proceed under this rule.
Rule 240(j)(1) provides that “[i]f, simultaneous with the commencement of
an action … a party has filed a petition for leave to proceed in forma
pauperis, the court prior to acting upon the petition may dismiss the action
… if it is satisfied that the action … is frivolous.” Pa.R.C.P. 240(j)(1).4 “A
frivolous action or proceeding has been defined as one that ‘lacks an
arguable basis either in law or in fact.’” Id. at Note (quoting Neitzke v.
Williams, 490 U.S. 319 (1989)). “Under Rule 240(j), an action is frivolous
if, on its face, it does not set forth a valid cause of action.” Ocasio v. Prison
Health Services, 979 A.2d 352, 354 (Pa. Super. 2009) (citation and
internal quotation marks omitted). In reviewing the dismissal of a complaint
pursuant to Rule 240(j), we are mindful that a court should not dismiss a
pro se complaint simply because the plaintiff did not draft it artfully. Id.Appellant’s arguments afford him no relief. Drilled down to their
essence, Appellant argues that the trial court should not have dismissed his
4
Procedurally, the trial court’s denial of Appellant’s petition to proceed in
forma pauperis was technically in error, as the rule requires the trial court to
rule on the frivolity of the action prior to acting on the petition. See id.-6-
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Complaint because within the Complaint he “explicitly and unambiguously
requested ‘leave to amend this complaint to incorporate further fact
development as to each Defendant not spelled out here.’” Appellant’s Brief at
14 (quoting Complaint, 5/26/2020, at 6). Appellant makes no effort to
defend his original pleading except to state baldly that his claim was not
frivolous; in fact, he all but concedes the Complaint had deficiencies.5 See
id. at 18-20. Instead, without elaboration, he summarily argues that the
COVID-19 global health pandemic prevented him from presenting a proper
Complaint. Id. at 18. He claims that he planned to amend the Complaint
and the trial court should have allowed him to do so in the interests of
justice, citing Pa.R.C.P. 126. Finally, he argues that in the interest of the
liberal amendment policy espoused in Pa.R.C.P. 1033, the trial court should
have accepted the 80-page Amended Complaint he attached to his notice of
appeal. Appellant’s Brief at 16 (“In essence, [Appellant’s] filing was a
second opportunity for the Court to review the complaint, in toto, and
rescind its Order of dismissal.”).
5 Based on the scope of Appellant’s argument, we do not examine whether
Appellant’s Complaint attempted to present other claims beyond medical
malpractice. We do note, however, that the trial court’s reliance upon
Appellant’s failure to present a certificate of merit erroneously did not take
into account that Rule 1042.3 provides a period of 60 days in which a
plaintiff may comply; such time had not elapsed prior to the court’s
dismissal of the Complaint. Nevertheless, “we are not limited by the trial
court’s rationale and … may affirm on any basis.” Goodwin v. Goodwin,
244 A.3d 453, 458 (Pa. Super. 2020).
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Appellant’s argument relies on the purported request to amend the
Complaint nestled within the averments of the Complaint itself. However,
Appellant never presented this request in a motion. Accord Spain v.
Vicente, 461 A.2d 833, 837 (Pa. Super. 1983) (observing that an argument
in a Memorandum of Law opposing Motion for Summary Judgment did not
equate to a request to amend in a formal motion or petition). Essentially,
Appellant is arguing that because he stated within his Complaint that he
reserved the right to amend the Complaint at some unspecified time, the
trial court should have provided him with that opportunity on its own accord
prior to dismissing the case pursuant to Pa.R.C.P. 240(j)(1).
Pennsylvania Rule of Civil Procedure 1019(a) requires parties to state
the material facts on which a cause of action is based in concise and
summary form in the Complaint. Pa.R.C.P. 1019(a). A plaintiff must aver
any averment of fraud with particularity and any averment of time, place,
and items of special damage with specificity. Pa.R.C.P. 1019(b), (f). We
have interpreted Rule 1019 as requiring the Complaint to apprise the
defendant of the claim being asserted and summarize the essential facts to
support the claim. Krajsa v. Keypunch, Inc., 622 A.2d 355, 357 (Pa.
Super. 1993). Although Pa.R.C.P. 126 provides trial courts with some
flexibility to overlook deficiencies and construe the Rules of Civil Procedure
liberally, such “liberal construction does not entail total disregard of those
rules concerning pleading.” Id.-8-
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Moreover, our Supreme Court has held that notwithstanding the liberal
amendment policy pursuant to Rule 1033, no law requires a trial court to
order amendment sua sponte. Werner v. Zazyczny, 681 A.2d 1331, 1338
(Pa. 1996). Nothing in Rule 240 requires the trial court to provide an
opportunity for amendment prior to dismissing the action. See Conover v.
Mikosky, 609 A.2d 558, 560 (Pa. Super. 1992) (“An individual seeking to
proceed in forma pauperis, thus requesting to have court costs paid for from
funds provided to this Commonwealth by its taxpayers, has a responsibility
to present a valid cause of action.”).
We conclude that the trial court did not violate Appellant’s
constitutional rights, abuse its discretion, or err by dismissing Appellant’s
Complaint pursuant to Rule 240(j)(1) without first providing an opportunity
for Appellant to amend the Complaint. We arrive at this conclusion based
upon (1) Rule 240(j)’s public policy, see Conover, 609 A.2d at 560; (2) our
standard of review for dismissals under Rule 240(j), see Bell, 853 A.2d at
1060; (3) Rule 240(j)’s requirement for a plaintiff to state a valid cause of
action on the face of the Complaint to avoid a dismissal based on frivolity,
see Ocasio, 979 A.2d at 354; and (4) the trial court’s lack of an obligation
to order amendment sua sponte, see Werner, 631 A.2d at 1338.
We also reject Appellant’s argument that attaching a Motion to Amend
the Complaint and proposed Amended Complaint to his Notice of Appeal
provided the trial court with a “second opportunity to review the complaint …
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and rescind its Order of dismissal.” Appellant’s Brief at 16. Except in limited
circumstances not relevant here, a trial court loses jurisdiction to proceed in
a matter once a party files a notice of appeal. Pa.R.A.P. 1701(a). In order
for the trial court to have reconsidered its Order, Appellant would have had
to file timely a motion for reconsideration with the trial court. See Pa.R.A.P.
1701(b)(3). Appellant did not do so and opted to appeal to this Court
instead. Accordingly, the trial court no longer had jurisdiction to reconsider
its order once the notice of appeal was filed.
Based on the foregoing, we affirm the trial court’s Order.
Order affirmed.
Judge Murray joins the memorandum.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2021
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