Monger, F. v. Encompass Health Rehab. Hospital

J-S35003-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FLORENCE R. MONGER, AS : IN THE SUPERIOR COURT OF
EXECUTOR OF THE ESTATE OF : PENNSYLVANIA
ROBERT E. MONGER, SR., A/K/A :
ROBERT E. MONGER, DECEASED; :
AND FLORENCE R. MONGER, :
INDIVIDUALLY :
:
Appellant :
: No. 862 MDA 2021
:
v. :
:
:
ENCOMPASS HEALTH :
REHABILITATION HOSPITAL OF :
READING, LLC, F/K/A HEALTHSOUTH :
OF READLING, LLC AND :
HEALTHSOUTH READING :
REHABILITATION HOSPITAL, LLC; :
ENCOMPASS HEALTH CORPORATION, :
F/K/A HEALTHSOUTH CORPORATION :
AND HEALTHSOUTH :
REHABILITATION CORPORATION; :
SUZANNE ELLWANGER ADAM, D.O.; :
BARBARA ANN HOFFER, D.O.; ST :
JOSEPH REGIONAL HEALTH :
NETWORK, T/D/B/A PENN STATE :
HEALTH ST JOSEPH AND ST JOSEPH :
MEDICAL CENTER, F/K/A ST JOSEPH :
HOSPITAL, INC; ST JOSEPH MEDICAL :
GROUP, T/D/B/A PENN STATE :
HEALTH ST JOSEPH :
CARDIOTHORACIC; AND REBECCA A :
O'DONNELL, CRNP :
Appeal from the Order Entered June 14, 2021
In the Court of Common Pleas of Berks County Civil Division at No(s):
19-14751,
19-17176
FLORENCE R. MONGER, AS : IN THE SUPERIOR COURT OF
EXECUTOR OF THE ESTATE OF : PENNSYLVANIA
ROBERT E. MONGER, SR., A/K/A :
J-S35003-21
ROBERT E. MONGER, DECEASED; :
AND FLORENCE R. MONGER, :
INDIVIDUALLY :
:
Appellant :
: No. 863 MDA 2021
:
v. :
:
:
ENCOMPASS HEALTH :
REHABILITATION HOSPITAL OF :
READING, LLC, F/K/A HEALTHSOUTH :
OF READLING, LLC AND :
HEALTHSOUTH READING :
REHABILITATION HOSPITAL, LLC; :
ENCOMPASS HEALTH CORPORATION, :
F/K/A HEALTHSOUTH CORPORATION :
AND HEALTHSOUTH :
REHABILITATION CORPORATION; :
SUZANNE ELLWANGER ADAM, D.O.; :
BARBARA ANN HOFFER, D.O.; ST :
JOSEPH REGIONAL HEALTH :
NETWORK, T/D/B/A PENN STATE :
HEALTH ST JOSEPH AND ST JOSEPH :
MEDICAL CENTER, F/K/A ST JOSEPH :
HOSPITAL, INC; ST JOSEPH MEDICAL :
GROUP, T/D/B/A PENN STATE :
HEALTH ST JOSEPH :
CARDIOTHORACIC; AND REBECCA A :
O'DONNELL, CRNP :
Appeal from the Order Entered June 8, 2021
In the Court of Common Pleas of Berks County Civil Division at No(s):
19-14751,
19-17176
FLORENCE R. MONGER, AS : IN THE SUPERIOR COURT OF
EXECUTOR OF THE ESTATE OF : PENNSYLVANIA
ROBERT E. MONGER, SR., A/K/A :
ROBERT E. MONGER, DECEASED; :
AND FLORENCE R. MONGER, :
INDIVIDUALLY :
:
Appellant :
-2-
J-S35003-21
: No. 864 MDA 2021
:
v. :
:
:
ENCOMPASS HEALTH :
REHABILITATION HOSPITAL OF :
READING, LLC, F/K/A HEALTHSOUTH :
OF READLING, LLC AND :
HEALTHSOUTH READING :
REHABILITATION HOSPITAL, LLC; :
ENCOMPASS HEALTH CORPORATION, :
F/K/A HEALTHSOUTH CORPORATION :
AND HEALTHSOUTH :
REHABILITATION CORPORATION; :
SUZANNE ELLWANGER ADAM, D.O.; :
BARBARA ANN HOFFER, D.O.; ST :
JOSEPH REGIONAL HEALTH :
NETWORK, T/D/B/A PENN STATE :
HEALTH ST JOSEPH AND ST JOSEPH :
MEDICAL CENTER, F/K/A ST JOSEPH :
HOSPITAL, INC; ST JOSEPH MEDICAL :
GROUP, T/D/B/A PENN STATE :
HEALTH ST JOSEPH :
CARDIOTHORACIC; AND REBECCA A :
O'DONNELL, CRNP :
Appeal from the Order Entered June 14, 2021
In the Court of Common Pleas of Berks County Civil Division at No(s):
19-14751,
19-17176
FLORENCE R. MONGER, AS : IN THE SUPERIOR COURT OF
EXECUTOR OF THE ESTATE OF : PENNSYLVANIA
ROBERT E. MONGER, SR., A/K/A :
ROBERT E. MONGER, DECEASED; :
AND FLORENCE R. MONGER, :
INDIVIDUALLY :
:
Appellant :
: No. 865 MDA 2021
:
v. :
:
:
-3-
J-S35003-21
ENCOMPASS HEALTH :
REHABILITATION HOSPITAL OF :
READING, LLC, F/K/A HEALTHSOUTH :
OF READING, LLC AND :
HEALTHSOUTH READING :
REHABILITATION HOSPITAL, LLC; :
ENCOMPASS HEALTH CORPORATION, :
F/K/A HEALTHSOUTH CORPORATION :
AND HEALTHSOUTH :
REHABILITATION CORPORATION; :
SUZANNE ELLWANGER ADAM, D.O.; :
BARBARA ANN HOFFER, D.O.; ST :
JOSEPH REGIONAL HEALTH :
NETWORK, T/D/B/A PENN STATE :
HEALTH ST JOSEPH AND ST JOSEPH :
MEDICAL CENTER, F/K/A ST JOSEPH :
HOSPITAL, INC.; ST JOSEPH :
MEDICAL GROUP, T/D/B/A PENN :
STATE HEALTH ST. JOSEPH :
CARDIOTHORACIC; AND REBECCA A. :
O'DONNELL, CRNP :
Appeal from the Order Entered June 8, 2021
In the Court of Common Pleas of Berks County Civil Division at No(s):
19-14751,
19-17176
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 10, 2022
Appellant, Florence R. Monger, in her individual capacity and as executor
of the estate of Robert E. Monger, Sr., a.k.a., Robert E. Monger, deceased,
appeals from four orders entered on June 8, 2021, denying her motions to
open judgments of non pros entered in favor of Encompass Health
Rehabilitation Hospital of Reading, LLC, St. Joseph Health Network, Suzanne
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Ellwanger Adam, D.O., and Barbara Ann Hopper, D.O. (hereinafter Appellees).
We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On September 23, 2019, Appellant filed a complaint against the
above-captioned parties asserting claims of direct and vicarious liability for
professional negligence following her husband’s death. On November 8, 2019,
Appellant filed timely certificates of merit pursuant to Pa.R.C.P. 1042.3.1 As
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1 Rule 1042.3 provides, in pertinent part:
(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[.]
* * *
(b)(1) A separate certificate of merit shall be filed as to each
licensed professional against whom a claim is asserted.
(Footnote Continued Next Page)
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Appellant acknowledges, the heading of each certificate of merit asserted that
claims were raised pursuant to both paragraphs (a)(1) and (a)(2) under Rule
1042.3. See Appellant’s Brief at 4. However, the substance of each certificate
of merit completely omitted the confirmatory language required by Rule
1042.3(a)(1) and “contained only language under paragraph (a)(2) but
repeated that paragraph two times.” Id. Thus, no certificate of merit was
filed to support Appellant’s claims for direct liability. The certificates of merit
filed only supported claims for vicarious liability. Thereafter, as the trial court
recounts:
[Between November 27, 2019 and December 16, 2019, Appellees]
filed petitions for judgment of non pros as to direct liability
[alleging that Appellant filed defective certificates of merit].
[Appellant] filed responses in opposition to these petitions.
[Appellant] argued exclusively that the certificates of merit
against all [Appellees] were sufficient as filed. [Appellant] did
not raise or acknowledge any errors with the filed certificates, and
counsel did not request leave to file amended certificates.
The [trial] court heard argument on January 28, 2020 regarding
[Appellees’] petitions for non pros. [At argument, Appellant]
again did not acknowledge any deficiency with the certificates,
offer any excuse for the deficiencies, or request leave of court to
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(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).
Pa.R.C.P. 1042.3.
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file amended certificates. [The trial] court thereafter granted the
petitions.
[Appellant] filed petitions to open [Appellees’] judgments of non
pros. [Appellant] submit[ted] that the failures to include the
correct verbiage to match the headings were not discovered until
after the orders granting non pros were entered. After []
consideration of the petitions, [Appellees’] responses, briefs,
[and] oral argument[, the trial] court denied [Appellant’s]
petitions [to open judgments of non pros] by order entered on
June 8, 2021. Appellant appealed.2
Trial Court Opinion, 8/2/2021, at 2-3 (superfluous capitalization omitted;
emphasis added).
On appeal, Appellant presents the following issues for our review:
I. Whether the trial court abused its discretion and/or
committed an error of law by misapplying the equitable
considerations found in Pa.R.C.P. 126 and Pa.R.C.P. 3051,
which address petitions to open a judgment of non pros, as
recognized by [] Sabo v. Worrall, 959 A.2d 346 (Pa. Super.
2008), and its progeny[?]
II. Whether the trial court abused its discretion and/or
committed an error of law when it failed to open a judgment
of non pros and permit the filing of an amended certificate
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2 This matter originally began as four separate cases, but the trial court
consolidated them upon stipulation of the parties. On June 23, 2021,
Appellant filed timely notices of appeal and the appeal is properly before us.
See Bartolomeo v. Marshall, 69 A.3d 610, 611 (Pa. Super. 2013), citing
Pa.R.A.P. 311(a)(1) (“An order denying a petition to open a judgment of non-
pros, while not disposing of all parties and all claims, is an interlocutory order
immediately appealable as of right.”); see also Always Busy Consulting,
LLC v. Babford & Co., 247 A.3d 1033, 1043-1044 (Pa. 2021) (filing a notice
of appeal from a single order entered at the lead docket number for
consolidated civil matters where all information necessary to adjudication of
the appeal exists and involves identical parties, claims and issues does not
run afoul of Pa.R.A.P. 341 or Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018)). Appellant filed a timely concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on August 2, 2021.
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of merit nunc pro tunc where Appellant offered a reasonable
explanation for failure to file a correctly worded certificate
of merit and Appellant substantially complied with the
certificate of merit rule[?]
III. Whether the trial court abused its discretion and/or
committed an error of law when it concluded that
[Appellant] did not prove a cause of action under Pa.R.C.P.
1042.3(a)(1)[?]
Appellant’s Brief at 2 (complete capitalization omitted).
Appellant’s three appellate issues are interrelated and, therefore, we will
examine them together. Generally, Appellant argues that the trial court erred
by denying her petitions to open four judgments of non pros. Appellant
explains:
Pursuant to Pa.R.C.P. 1042.3(b)(1), a separate certificate of merit
was filed [by Appellant] for each licensed professional and
organization against whom claims were asserted. Pursuant to
Pa.R.C.P. 1042.3(b)(2)(ii), [each] single certificate of merit stated
that claims were raised in both subparagraphs (a)(1) and (a)(2).
Although ... the heading of [each] certificate of merit [stated] that
claims were raised covering both paragraphs (a)(1) and (a)(2) of
Pa.R.C.P. 1042.3, the verbiage [in the body of each certificate]
contained only language under paragraph (a)(2) but repeated that
paragraph two times. This was a clerical error wherein the first
paragraph should have contained the verbiage under (a)(1) and
the second paragraph should have contained the verbiage under
(a)(2).[3]
* * *
The [trial] court concluded …. that [Appellant] failed to timely
provide certificates of merit for any claims of direct liability under
[Pa.R.C.P. 1042.3](a)(1). The [trial] court noted that oral
____________________________________________
3 Appellant argues that the clerical error resulted when lead counsel forwarded
the original, correct certificates of merit to local counsel who then retyped the
certificates incorrectly for electronic filing with the trial court. Appellant’s Brief
at 5.
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argument was heard and that the error was not discovered [by
Appellant] until after entry of judgment.
[In ruling on Appellant’s petitions to open judgment[s of] non
pros, the trial court] acknowledged that [Appellant] filed petitions
to open promptly, but then found that [Appellant] did not
reasonably explain or explain the “default” or show that facts exist
which support a cause of action under [Pa.R.C.P. 1042.3](a)(1).
The [trial] court went on to state that [Appellant] did not
substantially comply with the procedural rule requiring a
certificate of merit be filed and that [Appellant] had not reasonably
explained the reasons for default. The [trial] court concluded that
[Appellant’s] explanation of clerical error was waived because it
was not raised until after the entry of judgment and after oral
argument. The [trial] court commented that [Appellant] never
demonstrated she had a cause of action [pursuant to Pa.R.C.P.
1042.3](a)(1) and its decision on the non pros was correct
because [Appellant] still has viable claims pending [on] other
theories of negligence.
Id. at 4-6 (record citations and superfluous capitalization omitted). Appellant
argues that the trial court abused its discretion or erred as a matter of law
when it concluded that she did not prove a cause of action for direct liability
under Rule 1042.3(a)(1) because, at this preliminary stage of the
proceedings, “the requirement that a plaintiff allege facts showing a
meritorious cause of action is satisfied if the claim, as pleaded, and provided
at trial, would entitle [her] to relief.” Id. at 27. Finally, Appellant suggests
that Pa.R.C.P. 1264 “permits a court to excuse non-compliance with a
____________________________________________
4 Rule 126 provides:
The rules shall be liberally construed to secure the just, speedy
and inexpensive determination of every action or proceeding to
which they are applicable. The court at every stage of any such
action or proceeding may disregard any error or defect of
(Footnote Continued Next Page)
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[procedural] rule if the non-conforming party made significant efforts to
substantially comply with the rule.” Id. at 23.
Citing various Pennsylvania appellate court decisions, Appellant argues
that “cases about the [c]ertificate of [m]erit rule establish that judgments of
non pros entered as a result of an attorney’s oversight, as opposed to a
deliberate disregard of the rules, should ordinarily be opened.” Id. at 10.
Appellant further maintains that the Rules of Civil Procedure provide equitable
exceptions to “give a trial court discretion to excuse a party’s unintentional
failure to comply with any procedural rule, including the [c]ertificate of [m]erit
rule, [Appellant maintains that equitable considerations support her
contention that counsel’s] oversight was excusable and thus, the judgment of
non pros should have been opened.” Id. at 18. Appellant also asserts that
she substantially complied with Rule 1042.3. Id. at 20. Appellant claims she
“should be granted leave to correct the clerical error by filing an amended
certificate of merit nunc pro tunc.” Id. at 26. Finally, Appellant contends the
trial court abused its discretion by concluding Appellant did not prove a cause
of action under Pa.R.C.P. 1042.3(a)(1). Id. at 27-34. “[Appellant] submits
that the facts pled against [Appellees], if proven at trial, would entitle her to
relief.” Id. at 33. Appellant asserts that “the allegations of her [c]omplaint
together with counsel’s certification that she secured a written statement from
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procedure which does not affect the substantial rights of the
parties.
Pa.R.C.P. 126.
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an appropriately licensed professional are sufficient to satisfy her burden of
establishing a meritorious cause of action[.]” Id.
“The standard governing our review of a trial court decision to deny a
petition to open a judgment of non pros is one of abuse of discretion.” Florig
v. Estate of O'Hara, 912 A.2d 318, 323 (Pa. Super. 2006) (citations
omitted). “A trial court will be found to have abused its discretion if, in
reaching its conclusion, the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable or the result of partiality, prejudice, bias
or ill will.” Id. at 323–324 (citation omitted).
“Relief from a judgment of non pros shall be sought by petition. All
grounds for relief, whether to strike off the judgment or to open it, must be
asserted in a single petition.” Pa.R.C.P. 3051(a). To open a judgment of non
pros, the petition shall allege facts showing that:
(1) the petition is timely filed,
(2) there is a reasonable explanation or legitimate excuse
for the conduct that gave rise to the entry of judgment of
non pros, and
(3) there is a meritorious cause of action.
Pa.R.C.P. 3051(b)(1-3) (emphasis added).
In interpreting Rule 3051, this Court has stated that:
in order for the judgment of non pros to be opened, three
elements must coalesce: 1) the petition to open must be promptly
filed; 2) the default or delay must be reasonably explained or
excused; and 3) facts must be shown to exist which support a
cause of action. Jung v. St. Paul's Parish, 560 A.2d 1356, 1358
(Pa. 1989); Pa.R.C.P. 3051.
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Madrid v. Alpine Mountain Corp., 24 A.3d 380, 381 (Pa. Super. 2011).
Here, the trial court concluded that Appellant filed her petitions to open
promptly but did not reasonably explain or excuse the default or delay in
corrective action that gave rise to the entry of judgment. Trial Court Opinion,
8/2/2021, at 4. The trial court determined:
[Appellant] was put on notice of the defects on the certificates of
merit from all four health-care providers. Their petitions
[requesting the entry of judgment non pros] provided all the
necessary information to correct the deficient certificates of merit
prior to filing any response to the petitions, prior to oral argument,
and prior to the entry of the judgments. There is no excuse for
why [Appellant] did not discover any defects earlier; instead,
[Appellant] simply denied all four petitions that stated identical
problems by alleging that the certificates of merit were correct.
Thus, [Appellant] did not make any effort to determine whether
the allegations in [the four] petitions [for entry of judgment non
pros] were true. [Appellant] simply labeled [the] allegations as
being “misguided.”
Id. at 5 (some capitalization omitted).
The quoted language makes clear that the trial court did not deny
Appellant’s petitions to open simply because the certificates on file contained
oversights or were defective. Instead, the trial court made clear that despite
ample notice regarding deficiencies in the certificates on file, counsel for
Appellant simply labeled defense allegations as “misguided” and steadfastly
refused to take corrective action such as reviewing the materials on file,
ascertaining the nature of the identified omissions, and/or requesting leave to
amend the certificates of merit.
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Additionally, the trial court found Appellant’s excuse for noncompliance
with Rule 1042.3, that there was a scrivener’s error when electronically filing,
“ridiculous” because “the [c]ertificates of [m]erit did not magically transform
somewhere along the digital pathway from [counsel for Appellant’s] computer
to the Berks County Prothonotary’s computer system.” Id. Essentially, the
trial court found incredible Appellant’s excuse that local counsel would retype
forwarded certificates of merit for electronic filing.
We agree with the trial court’s assessment that Appellant failed to
reasonably explain or give a legitimate excuse for the conduct that gave rise
to the entry of judgment of non pros. Here, on November 8, 2019, Appellant
filed the certificates of merit at issue. Thereafter, between November 27,
2019 and December 16, 2019, Appellees filed petitions for entry of judgments
non pros, alleging Appellant filed defective certificates of merit to support her
medical professional direct liability claims because the certificates of merit
omitted the confirmatory language of Rule 1042.3(a)(1). St. Joseph Health
Network, for example, filed its petition for entry of judgment non pros on
November 27, 2019. In that petition, St. Joseph Health Network averred that
“[a]lthough [Appellant’s] certificates of merit support the[] vicarious liability
claims alleged within [] the complaint, [Appellant’s] certificates [did] not
support [Appellant’s] claims of independent, corporate liability alleged directly
[] within [] the complaint.” St. Joseph Health Network Petition for Judgment
Non Pros, 11/27/2019, at 5, ¶8. St. Joseph’s petition set forth the exact
language used in Appellant’s certificate of merit, explained that the certificate
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was defective because it merely repeated the language of Rule 1042.3(a)(2)
without reference to Rule 1042.3(a)(1), and noted that Appellant did not file
a separate certificate of merit. A copy of the allegedly defective certificate of
merit was attached as an exhibit. Id. at 4-5, ¶7; see also id. at Exhibit B.
The trial court held argument on the various petitions for entry of non pros
judgments on January 28, 2020. There is no dispute that Appellant still did
not acknowledge the defects at argument, and, instead, rested on the
certificates of merit as filed. While Appellant initially may have harbored
skepticism about Appellees’ allegations, ordinary professional caution and
curiosity would dictate that, in the intervening 60 days between Appellees’
filings and oral argument before the trial court, Appellant should have
reviewed the docketed filings to assess the validity of Appellees’ claims. Two
months passed after Appellant was first alerted to the alleged deficiencies and
Appellant failed to take any action. As such, the trial court determined that
counsel’s persistent failure to even review the docketed filings, despite notice
that they were deficient, transformed mere oversight into a deliberate failure
to take necessary corrective actions that would allow the case to proceed to
trial. The trial court entered non pros judgments in favor of Appellees on
January 30, 2020. It was not until February 27, 2020 that Appellant filed her
petitions to open, three months after Appellees alleged error with the
certificates of merit.
Moreover, while we agree with Appellant that appellate courts have
excused clerical errors and procedural missteps regarding certificates of merit,
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upon review of the cases cited by Appellant, those decisions can be
distinguished from the facts at hand. See Almes v. Burket, 881 A.2d 861(Pa. Super. 2005) (counsel realized he missed the deadline for filing a
certificate of merit after judgment of non pros was entered due to a family
illness resulting in death and the Christmas holiday); Womer v. Hilliker, 908
A.2d 269 (Pa. 2006) (finding counsel served an expert report in discovery
before the time limit in Pa.R.C.P. 1042 expired; the information provided
included all of the information that Pa.R.C.P. No. 1042.3 required; failure to
file the required certificate of merit was due to counsel's oversight or mistake;
counsel was not notified of the intent to secure the judgment of non
pros; and, counsel promptly took steps to open the judgment after learning
of its entry); Sabo v. Worrall, 959 A.2d 347, 352 (Pa. Super. 2008) (noting
“the already prepared [certificate of merit] would have been submitted timely
but for the paralegal's failure to file the [certificate of merit] with the
prothonotary, which [Sabo’s] counsel believed had been accomplished
until he received notice of the entry of a judgment of non pros.”);
Estate of Aranda v. Amrick, ¶ 3, 987 A.2d 727 (Pa. 2009) (petition to open
properly ordered wherein the estate inadvertently filed 14 of 15 required
certificates of merit, the defendant doctor who was the subject of the unfiled
certificate praeciped for entry of judgment of non pros, and judgment was
entered against the estate the same day without the benefit of a response).
In those decisions, missing and/or defective certificates of merit were
discovered only after the entry of judgment non pros and counsel had no
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opportunity to take corrective action before the entry of judgment. In
contrast, Appellant learned of the errors in her certificates of merit well before
the entry of judgment of non pros, over two months before oral argument and
the trial court entered judgments. Appellant did nothing to correct the error,
causing the litigation to halt and prompting entry of judgments of non pros.
Pursuant to the rule governing petitions to open, Appellant needed to allege
facts showing there was “a reasonable explanation or legitimate excuse for
the conduct that gave rise to the entry of judgment of non pros.” Pa.R.C.P.
1035(b)(2) (emphasis added).
In this case, even if an alleged scrivener’s error was initially a legitimate
excuse for the defects, Appellant did not reasonably explain her conduct in
obstinately insisting that the certificates of merit were correct long after
receiving notice of obvious deficiencies. Appellees highlighted the deficiencies
in their four petitions for judgments non pros filed between November 27,
2019 and December 16, 2019. The trial court held oral argument on the issue
on January 28, 2020, but Appellant still claimed there was no error.
Accordingly, we reject Appellant’s suggestion that it was not until after the
entry of non pros that the error was brought to Appellant’s attention. Rather,
despite prior notice of the certificate of merit defects, it was only after the trial
court entered judgments of non pros that Appellant finally acknowledged the
mistakes in her petition to open filed on February 27, 2020, three months
after the errors were first brought to Appellant’s attention. The trial court
found such actions unreasonable under Rule 3051. On appeal, Appellant has
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still not offered an explanation as to why she did nothing to correct the
certificates of merit until after the entry of judgments of non pros. Based
upon our standard of review, we discern no error of law or abuse of discretion
and affirm the trial court’s decision in this regard.5
Finally, we briefly address Appellant’s contention that she is entitled to
relief under the equitable considerations of Pa.R.Civ.P. 126 for substantial
compliance with Rule 1042.3. Initially, we note that our Supreme Court has
stated that “Pa.R.C.P. No. 1042.3 itself sets forth no exceptions, equitable or
otherwise, to its terms.” Womer v. Hilliker, 908 A.2d 269, 276 (Pa. 2006).
Our Supreme Court found:
It is self-evident that our Rules of Civil Procedure are essential to
the orderly administration and efficient functioning of the courts.
Accordingly, [our Supreme Court] expects that litigants will
adhere to procedural rules as they are written, and [the Court]
take[s] a dim view of litigants who flout them. See Wood v.
Garrett, 46 A.2d 321, 323 (Pa. 1946). [Our Supreme Court has]
always understood that procedural rules are not ends in
themselves, and that the rigid application of our rules does not
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5 Since Appellant failed to offer a reasonable excuse for the default, we need
not address whether there was a meritorious cause of action. See U.S. Bank
Nat'l Ass'n for Pennsylvania Hous. Fin. Agency v. Watters, 163 A.3d
1019, 1028 (Pa. Super. 2017) (“If a petition to open a default judgment fails
to fulfill any one prong of [the] test [to open judgment], then the petition
must be denied.”). Moreover, “[t]he order of a trial court may be affirmed on
appeal if it is correct on any legal ground or theory, regardless of the reason
or theory adopted by the trial court.” Alco Parking Corp. v. Pub. Parking
Auth. of Pittsburgh, 706 A.2d 343, 349 (Pa. Super. 1998) (citation omitted).
“Where a trial court has reached the correct result, its order will be sustained
if it can be sustained for any reason.” Id. However, we do note that if proper
certificates of merit had been filed, Appellant would have established a
meritorious cause of action under the third prong of the test regarding a
petition to open.
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always serve the interests of fairness and justice. Pomerantz v.
Goldstein, 387 A.2d 1280, 1281 (Pa. 1978). It is for this reason
that [our Supreme Court] adopted Rule 126, which provides in
pertinent part that “[t]he court at every stage of any such action
or proceeding may disregard any error or defect of procedure
which does not affect the substantial rights of the parties.”
Pa.R.C.P. 126. With this language, [our Supreme Court]
incorporated equitable considerations in the form of a doctrine of
substantial compliance into Rule 126, giving the trial courts the
latitude to overlook any “procedural defect” that does not
prejudice a party's rights. Sahutsky v. H.H. Knoebel Sons, 782
A.2d 996, 1001 (Pa. 2001) (quoting Kurtas v. Kurtas, 555 A.2d
804, 806 (Pa. 1989) (emphasis in original)); Pomerantz, 387
A.2d at 1281. Thus, while [courts] look for full compliance with
the terms of [the procedural] rules, [there is] a limited exception
under Rule 126 to those who commit a misstep when attempting
to do what any particular rule requires. Moreover, [] Rule 126 [is]
a rule of universal application, such that the trial court may
disregard any such procedural defect or error at every stage of
any action or proceeding to which the civil procedural rules apply.
See id. Therefore, as a general proposition, Rule 126 is available
in professional liability actions and may be applied to Pa.R.C.P.
1042.3, as long as its requirements, as [] articulated [], are met.
Womer, 908 A.2d at 276. The Womer Court rejected the argument that “the
doctrine of substantial compliance in Rule 126 not only excuses a party who
commits a procedural misstep in attempting to do that which a rule instructs,
but also excuses a party who does nothing that a rule requires, but whose
actions are consistent with the objectives he believes the rule serves.” Id. at
278. Instead, our Supreme Court determined:
The equitable doctrine [] incorporated into Rule 126 is one of
substantial compliance, not one of no compliance. [Our Supreme
Court] reiterate[d] what our case law has taught: Rule 126 is
available to a party who makes a substantial attempt to conform,
and not to a party who disregards the terms of a rule in their
entirety and determines for himself the steps he can take to satisfy
the procedure [] adopted to enhance the functioning of the trial
courts.
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Id. (emphasis in original). Here, as detailed at length above, Appellant made
no attempt to conform with Rule 1042(a)(1) despite clear, advance notice of
procedural defects. Before the trial court entered the judgments of non pros,
Appellant completely disregarded Rule 1042(a)(1) and adamantly maintained
that she had already taken the proper steps to satisfy the rule. Later,
Appellant admitted that she had not followed the proper steps under Rule
1042(a)(1). As our Supreme Court has made clear, Rule 126 only applies
when there is substantial compliance with the Rules of Civil Procedure. In this
case, there was simply no compliance with Rule 1042(a)(1).
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/10/2022
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