Vianello, M. v. Bey, H.

J-S53005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHAEL VIANELLO, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
HANIF BEY, POCONO MEDICAL CENTER
AMBULANCE DRIVER 1, DRIVER 2,
DISPATCHER, DOCTOR 1, DOCTOR 2,
DOCTOR 3, DOCTOR 4, SEVERAL
UNKNOWN PERSONS AND SEVERAL
JOHN AND/OR JANE DOES,
Appellee No. 487 EDA 2017
Appeal from the Order Entered September 30, 2016
In the Court of Common Pleas of Monroe County
Civil Division at No(s): 6372 Civil 2015
BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 11, 2017
Appellant, Michael Vianello, appeals from the trial court’s September
30, 2016 order denying his motion to open and/or strike the judgment of
non pros. We affirm.
The trial court summarized the factual background and procedural
history of this case as follows:
[Mr. Vianello] filed a Writ of Summons against Hanif Bey, Pocono
Medical Center (PMC), and various other unnamed individuals.
Counsel for Bey and PMC filed a Rule to file a Complaint. [Mr.
Vianello] filed a Complaint, naming the same parties as
[Appellees]. [Mr. Vianello] alleges PMC, and its employee, Bey,
failed to adequately treat [Mr. Vianello’s] medical condition,
failed to properly rehabilitate [Mr. Vianello] and to discharge him
to appropriate care. [Mr. Vianello] sought an injunction,
compensatory and punitive damages.
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On or about December 28, 2015, [Appellees] filed a Notice of
Intention to Enter Judgment of Non Pros on Professional Liability
Claim. The Notice had a date of December 24, 2015[,] and
contained [Mr. Vianello’s] mailing address. [Mr. Vianello] filed a
Motion to Strike and Objections to the Notice, which was denied
by an Order of the [c]ourt dated January 14, 2016. [Mr.
Vianello] then filed a Motion to Extend Time to File a Certificate
of Merit[,] which was granted by an Order of this [c]ourt dated
January 20, 2016. The time to file certificates of merit was
extended to March 12, 2016.
Meanwhile, [Appellees] had also filed Preliminary Objections to
[Mr. Vianello’s] Complaint for lack of specificity. By Order dated
February 5, 2016, this [c]ourt sustained the Preliminary
Objections and required [Mr. Vianello] to file an Amended
Complaint. [Mr. Vianello] filed an Amended Complaint on
February 25, 2016.
[Mr. Vianello] also filed a Motion to Compel Discovery in aid of
drafting his Complaint and/or identifying negligent acts. The
Motion to Compel was denied by Order of this [c]ourt dated
March 9, 2016. [Mr. Vianello] filed certificates of merit as to
Hanif Bey, PMC, and other unnamed [Appellees], which stated
an appropriate professional gave a written statement and/or the
allegations are based on allegations [that] other licensed
professionals [for whom Appellees are responsible deviated from
an acceptable professional standard] or expert testimony is
unnecessary. All of the certificates of merit were signed by [Mr.
Vianello]. It is noted [Mr. Vianello] is pro se and representing
himself in this matter.
On March 16, 2016, [Appellees] filed a Notice of Intention to
Enter Judgment of Non Pros for Failure to File Written Statement
From Appropriate Licensed Professional. [Mr. Vianello] filed a
Motion to Strike and Objections to the Notice which was denied
by an Order of this [c]ourt dated April 12, 2016. On April 18,
2016, [Appellees] filed a Praecipe to Enter Judgment Non Pros
on which the Prothonotary entered a judgment. We now
consider [Mr. Vianello’s] Amended Petition/Motion to Open Strike
and Vacate Judgment of Non Pros which he filed on April 29,
2016. He first filed a Petition/Motion to Open/Strike and Vacate
of [sic] April 25, 2016.1
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1This [c]ourt set a briefing schedule on the Petition/Motion
on April 26, 2016, but nothing further occurred as [Mr.
Vianello] filed a Notice of Appeal to the Superior Court.1
Trial Court Opinion (TCO), 9/30/2016, at 2-3.
In reviewing Mr. Vianello’s petition to open and/or strike the judgment
of non pros, the trial court, inter alia, rejected his argument that no
certificate of merit was necessary in this case under Pennsylvania Rule of
Civil Procedure 1042.3.2 Id. at 3. In doing so, it stated that Mr. Vianello’s
allegations in the complaint “sound in medical practice and not generally in
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1 To clarify, Mr. Vianello had previously filed a notice of appeal to this Court
from the April 18, 2016 judgment of non pros. Appellees then filed a motion
to quash, which we granted on the basis that “relief from a judgment of non
pros shall be sought by petition.” See Order Granting Application to Quash
Appeal, 7/28/2016, at 1 (single page) (citations omitted). Accordingly, Mr.
Vianello’s appeal was quashed and dismissed. Id. In a subsequent motion
for reconsideration filed by Mr. Vianello with this Court, we acknowledged
that “[a]lthough [Mr. Vianello] apparently filed a petition to open/strike the
judgment of non pros, he filed his notice of appeal before the trial court
could rule upon said petition.” See Order Denying Mr. Vianello’s Motion for
Reconsideration, 9/12/2016, at 1 (single page). In that order, we directed
the trial court to rule upon Mr. Vianello’s petition to open/strike the
judgment of non pros, upon return of the certified record. Id.
2 As our Supreme Court has described, Rule 1042.3 “is one in a series of
rules that govern procedure in a civil action in which a professional liability
claim is asserted against a licensed professional.” Womer v. Hiliker, 908
A.2d 269, 275 (Pa. 2006) (citation omitted). In short, “[t]he procedure we
provided in the professional liability action rules centers on the filing of a
[certificate of merit]. [T]he presence in the record of a [certificate of merit]
signals to the parties and the trial court that the plaintiff is willing to attest
to the basis of his malpractice claim; that he is in a position to support the
allegations he has made in his professional liability action; and that
resources will not be wasted if additional pleading and discovery take place.”
Id. (citations and footnote omitted). We discuss Rule 1042.3 further infra.
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tort only.” Id. Further, it determined that Mr. Vianello’s argument that Rule
1042.1 et seq. is unconstitutional lacks merit. Id. at 5. Accordingly, it
denied Mr. Vianello’s petition to open and/or strike the judgment of non
pros. Id. at 6.
Mr. Vianello filed a timely notice of appeal, and timely complied with
the trial court’s instruction to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. Presently, Mr. Vianello raises the following issues
for our review:
A. Whether the lower court erred in entering a judment non-
pros [sic] [?]
B. Whether the lower court erred in denying the motion to
reconsider and to vacate the order entering the non-pros
[sic] judgment[?]
C. Whether the lawsuit is a tort lawsuit?
D. Whether the lawsuit is a mal-practice [sic] lawsuit?
E. Whether the lower court order, in effect, constitutes an
impermissible, violation of the right to sue?
F. Whether the order entering a judement non-pros [sic] is
contrary to the facts[]?
G. Whether … [Mr. Vianello’s] constitutional rights, including
the right to sue, have been violated?
Mr. Vianello’s Brief at 1-2 (unnecessary capitalization omitted).3
Initially, we note that “[a]ppellate briefs and reproduced records must
materially conform to the requirements of the Pennsylvania Rules of
____________________________________________
3We note that Mr. Vianello has not numbered his brief correctly; he refers to
actual pages 1 and 2, as pages “150” and “250.”
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Appellate Procedure.” In re Ullman, 995 A.2d 1207, 1211 (Pa. Super.
2010) (citations omitted). Moreover, “it is an appellant’s duty to present
arguments that are sufficiently developed for our review. The brief must
support the claims with pertinent discussion, with references to the record
and with citations to legal authorities. Citations to authorities must
articulate the principles for which they are cited.” Commonwealth v.
Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (citations omitted). “This
Court will not act as counsel and will not develop arguments on behalf of an
appellant. [W]hen defects in a brief impede our ability to conduct
meaningful appellate review, we may dismiss the appeal entirely or find
certain issues to be waived.” Id. (citations omitted). Further, “[a]lthough
this Court is willing to liberally construe materials filed by a pro se litigant,
pro se status confers no special benefit upon the appellant. To the contrary,
any person choosing to represent himself in a legal proceeding must, to a
reasonable extent, assume that his lack of expertise and legal training will
be his undoing.” In re Ullman, 995 A.2d at 1211-12 (citations omitted).
Here, Mr. Vianello’s brief does not comply with our rules of appellate
procedure.4 For instance, Rule of Appellate Procedure 2119(a) states that
“[t]he argument shall be divided into as many parts as there are questions
to be argued; and shall have at the head of each part--in distinctive type or
____________________________________________
4 Appellees identify a litany of violations committed by Mr. Vianello in their
brief. See Appellees’ Brief at 3 n.1.
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in type distinctively displayed--the particular point treated therein, followed
by such discussion and citation of authorities as are deemed pertinent.”
Pa.R.A.P. 2119(a). Mr. Vianello, however, fails to divide his argument
section in accordance with the issues he is raising, and the entire argument
section of his brief barely constitutes two pages. There is no citation therein
to relevant case law, and his arguments are extremely undeveloped. Given
these severe deficiencies, we deem all issues raised by Mr. Vianello on
appeal to be waived.
Nevertheless, even if we did not find Mr. Vianello’s issues waived on
appeal, we would conclude that they have no merit. We address Mr.
Vianello’s issues out of order for ease of disposition. From what we can
glean from his brief, in issues C and D supra, Mr. Vianello asserts that
certificates of merit and written statements under Rule 1042.3 are not
required because his lawsuit is a tort, and not a medical malpractice, case.
He states that “[t]he claims of this lawsui [sic] are not based upon medical
judgment. The claims of this lawsuit raise issues that are within the
common knowledge and experience of the fact-finder.” Mr. Vianello’s Brief
at 8. We would disagree.5
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5 “In order to determine what theory of liability [the appellant] is asserting,
this Court must examine the averments she makes in her complaint. Such a
review raises a question of law as to which our standard of review is de novo
and our scope of review is plenary.” Ditch v. Waynesboro Hosp., 917
A.2d 317, 321 (Pa. Super. 2007) (citations and internal quotation marks
omitted).
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This Court has previously explained:
Medical malpractice is defined as the “unwarranted departure
from generally accepted standards of medical practice resulting
in injury to a patient, including all liability-producing conduct
arising from the rendition of professional medical services.”
Toogood v. Owen J. Rogal, D.D.S., P.C., 573 Pa. 245, 824
A.2d 1140, 1145 (2003). “[T]o prevail in a medical malpractice
action, a plaintiff must ‘establish a duty owed by the physician to
the patient, a breach of that duty by the physician, that the
breach was the proximate cause of the harm suffered, and the
damages suffered were a direct result of the harm.’” Id.
(quoting Hightower–Warren v. Silk, 548 Pa. 459, 698 A.2d
52, 54 (1997)). Thus, the basic elements of medical malpractice
and ordinary negligence are the same, although medical
malpractice has some distinguishing characteristics. See
Grossman [v. Barke], 868 A.2d [561,] 566 [(Pa. Super.
2005)]. The Grossman Court drew the distinction between
ordinary negligence and medical malpractice as follows:
A medical malpractice claim is distinguished by two
defining characteristics. First, medical malpractice can
occur only within the course of a professional relationship.
Second, claims of medical malpractice necessarily raise
questions involving medical judgment. Claims of ordinary
negligence, by contrast, raise issues that are within the
common knowledge and experience of the fact-finder.
Therefore, a court must ask two fundamental questions in
determining whether a claim sounds in ordinary negligence
or medical malpractice: (1) whether the claim pertains to
an action that occurred within the course of a professional
relationship; and (2) whether the claim raises questions of
medical judgment beyond the realm of common knowledge
and experience. If both these questions are answered in
the affirmative, the action is subject to the procedural and
substantive requirements that govern medical malpractice
actions.
Id. at 570 (quoting Bryant v. Oakpointe Villa Nursing
Centre, 471 Mich. 411, 684 N.W.2d 864, 871 (2004)).
Therefore, “where a complaint is predicated upon facts
constituting medical treatment, that is, when it involves
diagnosis, care and treatment by licensed professionals, the
action must be characterized as a professional negligence
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action.” Yee v. Roberts, 878 A.2d 906, 912 (Pa. Super. 2005)
(internal citations and quotation marks omitted); cf. Estate of
Swift v. Northeastern Hosp. of Philadelphia, 456 Pa. Super.
330, 690 A.2d 719, 723 (1997) (concluding complaint alleging
bodily injury as a result of a slip and fall in hospital set forth
claim of premises liability and not hospital malpractice). Our
Court has further found that the hiring, training, supervising,
and monitoring of employees who assist with the care and
treatment of a health care professional’s patients is considered
an integral part of providing professional services. See Yee,
878 A.2d at 912-13; American Rehab. and Physical Therapy,
Inc. v. American Motorists Ins. Co., 829 A.2d 1173, 1177-78
(Pa. Super. 2003), rev'd on other grounds, 578 Pa. 154, 849
A.2d 1202 (2004).
Ditch, 917 A.2d at 321-22 (original brackets omitted).
Here, in his amended complaint, Mr. Vianello alleges, inter alia, that
“[Appellees] had a duty to assist [him] to get into … a nursing-home,
rehabilitation, or personal-care facility. They breached that duty”;
“[Appellees] knew or should have known that [he] needed physical therapy
and exercise”; “[Appellees’] failures [sic] to return [Mr. Vianello] to his
previous ability to walk without assistance was a failur [sic] to provide the
required standard of care”; ”Discharging and/or removing [Mr. Vianello]
from [PMC] was a breach of the standard of care”; and “[Appellees] failed to
make arrangements for [Mr. Vianello] to receive outpatient dialysis
subsequent to discharge from [PMC].” See Amended Complaint, 2/25/2016,
at ¶¶ 14, 18, 25, 31, 32. Based on these allegations, we would determine
that Mr. Vianello raises a medical malpractice claim against Appellees, as his
“claim pertains to an action that occurred within the course of a professional
relationship[,]” and his “claim raises questions of medical judgment beyond
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the realm of common knowledge and experience.” Ditch, 917 A.2d at 322.
Accordingly, we would conclude that the trial court properly regarded this
case as a medical malpractice suit.
Next, in issues A, B, and F supra, Mr. Vianello alleges that the trial
court improperly entered a judgment of non pros. He claims that “it was
incorrect for the Prothonotary to enter a judgment [of] non[]pros under
Pa.R.C.P. 1042.12[6] and said judgment [of] non[]pros should be and must
be opened, vacated, and stricken.” Mr. Vianello’s Brief at 8.7
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6 Rule 1042.12 sets forth, among other things, that the prothonotary, on
praecipe of the defendant, shall enter a judgment of non pros against a
plaintiff for failure to file a written statement from an appropriate licensed
professional under Rule 1042.3(e). See Pa.R.C.P. 1042.12.
7 At the outset, we note that “[a]ny appeal related to a judgment of non
pros lies not from the judgment itself, but from the denial of a petition to
open or strike.” Madrid v. Alpine Mountain Corp., 24 A.3d 380, 382 (Pa.
Super. 2011) (citations omitted). Further,
[w]hen reviewing the denial of a petition to strike and/or open a
judgment of non pros, we will reverse the trial court only if we
find a manifest abuse of discretion. It is well-established that a
motion to strike off a 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.
Additionally, the rule governing relief from judgment of non pros
indicates in pertinent part:
(b) If the relief sought includes the opening of the
judgment, the petition shall allege facts showing that
(1) the petition is timely filed,
(2) there is a reasonable explanation or legitimate
excuse for the inactivity or delay, and
(Footnote Continued Next Page)
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We view this argument as challenging the requirements of Rule
1042.3. Rule 1042.3 states the following:
(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.
…
(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
(Footnote Continued) _______________________
(3) there is a meritorious cause of action.
Pa.R.C.P. 3051(b).
Varner v. Classic Communities Corp., 890 A.2d 1068, 1072 (Pa. Super.
2006) (some internal citations and quotation marks omitted).
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notice of intent to enter a judgment of non pros for failure to file
a written statement under Rule 1042.11.
Pa.R.C.P. 1042.3(a), (e) (accompanying notes omitted).
In the case sub judice, Mr. Vianello claims that no written statement
from an appropriate licensed professional is required because he had
previously designated in his certificates of merit that, as set forth in Rule
1042.3(a)(3) supra, “expert testimony of an appropriate licensed
professional is unnecessary for prosecution of the claim against this
defendant.” Mr. Vianello’s Brief at 7. Yet, our review of the record shows
that when he filed his certificates of merit, Mr. Vianello simultaneously
stated that, as reflected in Rule 1042.3(a)(1), “an appropriate professional
has supplied a written statement to the undersigned that there is a basis to
conclude that the care, skill or knowledge exercised or exhibited by this
defendant 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[.]” See, e.g., Certificate of
Merit as to Hanif Bey, 3/9/2016, at 1 (single page). 8 Based on this
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8Mr. Vianello also stated in the certificates of merit that, as laid out in Rule
1042.3(a)(2),
the claim that this 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 and an
appropriate professional has supplied a written statement to the
undersigned that there is a basis to conclude that the care, skill,
or knowledge exercised or exhibited by the other licensed
professionals in the treatment, practice or work that is the
(Footnote Continued Next Page)
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indication — and because he advances a medical malpractice claim, as
discussed above — Mr. Vianello was required to attach, under Rule
1042.3(e), a written statement from an appropriate licensed professional to
his certificates of merit. See Pa.R.C.P. 1042.3(e). Accordingly, we would
agree with the trial court that a written statement was required, and a
judgment of non pros could be entered because Mr. Vianello did not supply
it.9
Finally, in issues E and G supra, Mr. Vianello claims that his
constitutional “right to sue” has been violated. See Mr. Vianello’s Brief at 2.
He argues that “Pa.R.C.P. 1042.1 et[] seq[.] sets up a mine-field that
discourages and blocks openness of the courts[,]” and unfairly “requires pro
se litigants to file a statement, but not represented litigants to file such a
statement.” Id. at 8. Further, he insists that “[a]llowing a non[]pros
judgment to be taken for failure to file a certificate of merit impermissilibly
(Footnote Continued) _______________________
subject of the complaint, fell outside acceptable professional
standards and that such conduct was a cause in bringing about
the harm[.]
See, e.g., Certificate of Merit as to Hanif Bey, 3/9/2016, at 1 (single page).
9 Appellees also observe that Mr. Vianello “has not provided any explanation,
reasonable or otherwise, for his failure to file a proper certificate of merit
and written statement. As a result, the trial court did not abuse its
discretion in denying [Mr. Vianello’s] motion to open the judgment of non
pros.” Appellees’ Brief at 16. See also Varner, 890 A.2d at 1072
(explaining that a petition to open a judgment of non pros must allege, inter
alia, “a reasonable explanation or legitimate excuse for the inactivity or
delay”).
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[sic] short-circuits th[e] peaceful, non-violent, and orderly resolution of
disputes[,]” and “lawuits [sic] without merit should be dismissed … only …
through regular pleadings such as preliminary objections and only after a
determination by a trial court of lack of merit.” See Mr. Vianello’s Reply
Brief at 2. Mr. Vianello avers that “[t]he insurance companies have
managed to obtain special rules to short-circuit regualr [sic] order to their
benefit. That cannot be permited [sic]. Thus the taking of a judgment [of]
non pros for failure to file a certificate of merit should and must be held
unconstitutional[.]” Id.
In response, the trial court explained that it “see[s] no evidence that
suggests the rule is unconstitutional. The rule ensures that malpractice
claims with merit are backed up by medical testimony in prosecution of
cases.” TCO at 5. Indeed, our Supreme Court has explained that it adopted
Rule 1042.1 et seq. because it was “concerned that this trend [of more
malpractice actions being commenced] would lead to an increase in the filing
of malpractice claims of questionable merit, and sought to avoid the burdens
that such claims impose upon litigants and the courts.” Womer, 908 A.2d
at 266. As a result, it “exercised [its] rule-making authority to devise an
orderly procedure that would serve to identify and weed [out] non-
meritorious malpractice claims from the judicial system efficiently and
promptly.” Id. (citations omitted). With respect to Rule 1042.3(e)’s
requirement that a written statement from an appropriate licensed
professional be attached to a certificate of merit not signed by an attorney,
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we point out that “only an attorney is subject to disciplinary proceedings for
abusing the rules of civil procedure governing certificates of merit.” See
Pa.R.C.P. 1042.12 cmt. Thus, given the vague and meager arguments made
by Mr. Vianello, we would agree with the trial court that Rule 1042.1 et seq.
does not violate his constitutional rights. Based on the foregoing, we affirm
the trial court’s order denying Mr. Vianello’s motion to open and/or strike the
judgment of non pros.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2017
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