Leisure, J., II v. Primecare, Inc.

J-S13012-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JUNIUS P. LEISURE, II IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
PRIMECARE, INC.
Appellee No. 1532 MDA 2021
Appeal from the Order Entered November 12, 2021
In the Court of Common Pleas of Lancaster County
Civil Division at No.: CI-18-02822
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: JULY 26, 2022
Appellant Junius P. Leisure pro se appeals from the November 12,
2021 order of the Court of Common Pleas of Lancaster County (“trial court”),
which denied his petition to strike or open judgment entered in favor of
Appellee Primecare, Inc. Upon review, we affirm.
The facts and procedural history of this case are undisputed. On
March 18, 2020, Appellant filed a self-styled “Professional Liability
Complaint” against Appellee and unidentified nurses in the Commonwealth
Court of Pennsylvania. Appellant alleged that Appellee was a private
healthcare provider that contracted to render medical services to inmates at
Lancaster Prison. While incarcerated at Lancaster County Prison between
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* Former Justice specially assigned to the Superior Court.
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January 1, 2016 and July 14, 2016, Appellant alleged that he received
medical care that deviated from acceptable professional standards.
Specifically, he alleged that, he suffered from a condition that caused
excessive and painful earwax buildup, and that, as a result, he requested an
earwax cleaning procedure. Appellant further alleged that he was seen by
medical staff at the prison. According to Appellant, the medical staff agreed
with him that his ears needed to be cleaned. Appellant alleged that there
were two nurses present and that one of them had never performed the
earwax cleaning procedure before that day. He further alleged that the
nurses had skipped the earwax loosening part of the procedure. Appellant
claimed that one of the nurses used a syringe to insert “scalding hot water”
into his ear. Appellant thus alleged that the nurses performed the cleaning
improperly and negligently. Consequently, he alleged that he suffered
significant hearing loss in his right ear. Based on these allegations,
Appellant sought monetary damages.
On March 29, 2018, the Commonwealth Court issued an order
transferring this action to the trial court. On April 20, 2018, the transferred
complaint was entered on the above-listed trial docket. Neither the
Commonwealth Court nor the trial court docket indicate whether Appellant
effectuated service of the complaint upon Appellee.1
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1 Given the disposition herein, we need not address this issue.
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On September 14, 2020, Appellant filed an amended complaint against
Appellee sounding in negligence. The amended complaint raised
substantially the same allegations as the initial complaint. 2 In fact,
Appellant’s amended complaint contained even more specific allegations
regarding the medical care he received that allegedly deviated from the
acceptable professional standards.
The audiologist had told me there existed a reasonable
probability that the care, skill or knowledge exercised or
exhibited in the treatment, practice or procedure (which is the
subject of my complaint) fell outside acceptable professional
standards, and that such conduct was a cause in the bringing
about the harm to the ear.
Amended Complaint, 9/14/20, at 5-6 (emphasis added).
On March 5, 2021, Appellee filed a notice of intent to enter judgment
of non pros for failure to file a certificate of merit. Appellee stated that,
pursuant to Pa.R.Civ.P. 1042.7, it intended to enter a judgment of non pros
against Appellant “after thirty (30) days of this notice if a certificate of merit
is not filed as required by Pa.R.Civ.P. 1042.3.”3 Notice of Intent, 3/5/21.
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2 Indeed, the amended complaint was a change in namely only from the
original complaint titled “Professional Liability Complaint.”
3 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
(Footnote Continued Next Page)
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On April 7, 2021, Appellee filed a praecipe for entry of judgment of non pros
for failure to file a certificate of merit pursuant to Rule 1042.7 and the
prothonotary entered judgment of non pros against Appellant.
On April 19, 2021, Appellant moved to dismiss Appellee’s praecipe for
entry of judgment of non pros, which the trial court properly construed as a
motion to strike or open judgment. Appellant claimed that his amended
complaint did not necessitate the filing of a certificate of merit. On
November 12, 2021, the trial court, inter alia, denied the motion and
affirmed the entry of judgment of non pros. In so doing, the court
observed:
[Appellant’s] amended complain alleges he went to the Lancaster
County Prison medical department where he was seen by two
nurses for medical treatment to remove a buildup of earwax.
[Appellant] alleges the procedure was incorrectly performed,
resulting in inner ear scabbing and hearing loss. [Appellant’s]
amended complaint sounds in medical negligence because it
alleges that a licensed professional provided medical treatment
that fell below accepted standards of medical practice, resulting
in his injury. Because his amended complaint is one for
professional liability, and because [Appellant] failed to file a
certificate of merit within 60 days of filing the amended
complaint, a judgment of non pros is appropriate.
(Footnote Continued) _______________________
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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Trial Court Order, 11/12/21 at 1 n.1 (record and legal citations omitted).
Appellant pro se timely appealed. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal,4 Appellant pro se presents a single issue for our review,
which we reproduce verbatim below.
I. Whether or not [Appellant’s] amended complaint for simple
negligence which was filed to replace the previous complaint of
professional liability should be the controlling complaint in this
matter.
Appellant’s Brief at 2 (unnecessary capitalizations omitted). In essence, he
contends that his amended complaint did not require a certificate of merit
under Rule 1042.3.5 Appellant points out that he raised a simple negligence
claim and not one sounding in professional liability. We disagree.
“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.
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4 An appeal from the denial of a petition to strike a default judgment
“presents us with a question of law; consequently, our standard of review is
de novo and our scope of review is plenary.” U.S. Bank Nat’l Ass’n for
Pennsylvania Hous. Fin. Agency v. Watters, 163 A.3d 1019, 1028 n.9
(Pa. Super. 2017).
5 We observe that Appellant does not challenge the contents of Appellee’s
notice of intent filed pursuant to Rule 1042.6. He merely argues that,
because he raised a tort claim, he was not required to file a certificate of
merit.
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Waynesboro Hosp., 917 A.2d 317, 321 (Pa. Super. 2007) (citations and
internal quotation marks omitted). As this Court has 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. To
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. Thus, the basic elements of medical
malpractice and ordinary negligence are the same, although
medical malpractice has some distinguishing characteristics.
[T]he distinction between ordinary negligence and medical
malpractice [is] 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.
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 action.
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.
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Ditch, 917 A.2d at 321-22 (citations, quotation marks and brackets
omitted).
Instantly, Appellant’s amended complaint raised a cause of action for
negligence, which was premised upon an alleged failure by the nursing staff
at the Lancaster County Jail to properly remove a buildup of earwax.
Appellant alleged that he was examined by a nurse who agreed that an
earwax buildup was causing him to suffer hearing problems. Thereafter,
Appellant alleged that two unidentified nurses gathered the necessary tools
and equipment for the cleaning procedure. Appellant, however, claimed that
the nurses did not perform the procedure properly when water that was too
hot was used to irrigate his ear. Thus, the plain allegations contained in the
amended complaint reveal that Appellant had a medical condition—earwax
buildup—which required a medical procedure to treat, but that the licensed
professionals who performed the procedure did not meet the applicable
standard of care. Accordingly, the trial court did not abuse its discretion in
construing Appellant’s amended complaint as raising a professional liability
claim.
Rule 1042.3 of the Pennsylvania Rules of Civil Procedure, relating to
certificates of merit, provides:
(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
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(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).
(c)(1) A defendant who files a counterclaim asserting a claim for
professional liability shall file a certificate of merit as required by
this rule.
(2) A defendant or an additional defendant who has joined a
licensed professional as an additional defendant or asserted a
cross-claim against a licensed professional need not file a
certificate of merit unless the joinder or cross-claim is based on
acts of negligence that are unrelated to the acts of negligence
that are the basis for the claim against the joining or cross-
claiming party.
(d) The court, upon good cause shown, shall extend the time for
filing a certificate of merit for a period not to exceed sixty days.
A motion to extend the time for filing a certificate of merit must
be filed by the thirtieth day after the filing of a notice of intention
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to enter judgment of non pros on a professional liability claim
under Rule 1042.6(a) or on or before the expiration of the
extended time where a court has granted a motion to extend the
time to file a certificate of merit, whichever is greater. The filing
of a motion to extend tolls the time period within which a
certificate of merit must be filed until the court rules upon the
motion.
(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.
Pa.R.Civ.P. 1042.3 (emphasis added). Rule 1042.6 provides in pertinent
part:
(a) Except as provided by subdivision (b), a defendant seeking
to enter a judgment of non pros under Rule 1042.7(a) shall file a
written notice of intention to file the praecipe and serve it on the
party’s attorney of record or on the party if unrepresented, no
sooner than the thirty-first day after the filing of the complaint.
(b) A judgment of non pros may be entered as provided by Rule
1042.7(a) without notice if
(1) the court has granted a motion to extend the time to file the
certificate and the plaintiff has failed to file it within the
extended time, or
(2) the court has denied the motion to extend the time.
(c) Upon the filing of a notice under subdivision (a) of this rule, a
plaintiff may file a motion seeking a determination by the court
as to the necessity of filing a certificate of merit. The filing of the
motion tolls the time period within which a certificate of merit
must be filed until the court rules upon the motion. If it is
determined that a certificate of merit is required, the plaintiff
must file the certificate within twenty days of entry of the court
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order on the docket or the original time period, whichever is
later.
Pa.R.Civ.P. 1042.6(a)-(c). Finally, Rule 1042.7 provides in relevant part:
(a) The prothonotary, on praecipe of the defendant, shall enter a
judgment of non pros against the plaintiff for failure to file a
certificate of merit within the required time provided that
(1) there is no pending motion for determination that the filing
of a certificate is not required or no pending timely filed motion
seeking to extend the time to file the certificate,
(2) no certificate of merit has been filed.
Pa.R.Civ.P. 1042.7(a).
Here, as discussed earlier, Appellant’s negligence claim—raised in the
amended complaint—was a claim for professional liability. As a result, he
was required to file a certificate of merit. Moreover, despite Appellee’s filing
of a notice of intent to seek a judgment of non pros, Appellant failed to file
the required certificate of merit under Rule 1042.3.6 Thus, we cannot
conclude that the trial court abused its discretion in denying Appellant’s
petition to strike or open the judgment of non pros.
Order affirmed.
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6 Tellingly, the only excuse Appellant advances for his failure to file a
certificate of merit is that his amended complaint did not raise a professional
liability claim.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/26/2022
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