Baker v. Kindred Healthcare Inc.

83 Pa. D. & C.4th 225
CourtPennsylvania Court of Common Pleas, Beaver County
DecidedJune 13, 2007
Docketno. 12410-2006
StatusPublished

This text of 83 Pa. D. & C.4th 225 (Baker v. Kindred Healthcare Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Beaver County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Kindred Healthcare Inc., 83 Pa. D. & C.4th 225 (Pa. Super. Ct. 2007).

Opinion

KUNSELMAN, P.J.,

In this matter, plaintiff has filed a petition for rule to show cause why judgment of non pros should not be opened. For the following reasons, the petition will be granted and the judgment of non pros will be opened.

The basic facts and procedural history of this matter are as follows. Plaintiff filed a complaint on December 29,2006, alleging one count of negligence, one count of breach of fiduciary duty, one count of violation of the Unfair Trade Practices and Consumer Protection Law, one count of violation of the Neglect of Care-Dependant Person Statute, and one count of negligent misrepresentation. In her complaint, plaintiff alleges that Stella S. Radabaugh received improper care that allegedly resulted in her death while a patient at a nursing home facility. Plaintiff delivered certificates of merit to Federal Express in Philadelphia on February 26, 2007 for overnight service to the Beaver County Prothonotary’s office. The certificates of merit were received by the Beaver County Prothonotary’s office on February 27, 2007. The prothonotary returned the certificates of merit to counsel for the plaintiff because they had not been accompanied by a service fee of $1 per page. The defendants proceeded to enter judgments of non pros pursuant to Pa.R.C.P. 1042.6. Plaintiff filed the certificates electronically on March 1,2007, and then petitioned the court to open the judgment.

In support of her position that the judgment of non pros should be opened, plaintiff argues that the certifi[227]*227cates of merit are deemed to be filed when received by the proper officer of the court; that they substantially complied with Pa.R.C.P. 1042.3; that the prothonotary’s office violated Rules 205.1 and 205.2 of the Pennsylvania Rules of Civil Procedure by erroneously rejecting the certificates; and that Beaver County Local Rule 205.4 mandated that the prothonotary’s office upload the certificates into the electronic filing system.

In response, defendants note that in accordance with Pa.R.C.P. 1042.6, plaintiff’s failure to file a timely certificate of merit entitled them to seek judgments of non pros. Further, defendants assert that plaintiff has not set forth a reasonable or justifiable excuse for her delay in filing the certificates of merit pursuant to Pa.R.C.P. 3051(b). Specifically, defendants point out that when plaintiff mailed her certificates to the prothonotary’s office, she failed to include the appropriate filing fee in accordance with Local Rule 205.4(2) and Pa.R.C.P. 205.1. Also, defendants argue that plaintiff did not substantially comply with Pa.R.C.P. 1042.3.

Initially, we note that in accordance with Rule 1042.3, a certificate of merit must be filed within 60 days after the filing of the complaint in a professional liability action. Pa.R.C.P. 1042.3(a). Further, we note:

“Rule 3051. Relieffrom judgment of non pros.

“(a) 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.

“(b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that

[228]*228“(1) the petition is timely filed,

“(2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and

“(3) there is a meritorious cause of action.” Pa.R.C.P. 3051.

In Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269 (2006), our Supreme Court considered whether a plaintiff in a medical malpractice action was entitled to have a judgment of non pros opened after the plaintiff failed to timely file a certificate of merit. In Womer, the plaintiff did not file a certificate of merit within 60 days of the filing of the complaint, and did not file a motion to extend the time for the filing of a certificate. In his motion to open judgment of non pros, the plaintiff asserted that he had served the defendant with an expert report within 60 days of the filing of the complaint and therefore substantially complied with Rule 1042.3. The trial court denied the plaintiff’s motion; the Superior Court reversed, remanding the case back to the trial court. The Supreme Court reversed the Superior Court, concluding that the plaintiff failed to take any action to comply with Rule 1042.3(a) in a timely manner. 589 Pa. at 274, 908 A.2d at 280. The court stated:

“In our view, Hilliker’s position is the correct one, since Womer took no steps to comply with Pa.R.C.P. 1042.3. Rule 1042.3 is clear and unambiguous in its mandate that in every professional liability action a specific representation about the plaintiff’s claim must be filed in the official record in a document called a ‘certificate of merit’ at the time the complaint is filed or within 60 days thereafter. Pa.R.C.P. 1042.3(a). Pa.R.C.P. 1042.8 provides that ‘the certificate required for filing [229]*229by Rule 1042.3(a) shall be substantially in the following fonn .. .and displays a sample COM that shows precisely what Rule 1042.3 requires. Moreover, Pa.R.C.R 1042.3(d), which allows for the filing and granting upon good cause shown of a motion to extend the time for filing a COM, sets forth the one and only step that a plaintiff is to take if he finds himself unable to secure a COM and desires to avoid the consequences of not satisfying Rule 1042.3(a)’s COM filing requirement in a timely fashion. Womer, however, did nothing of the sort. Rather, he served discovery materials on Hilliker, which included an expert report. In our view, this was no procedural misstep within the meaning of Pa.R.C.P. 126. It was instead, a wholesale failure to take any of the actions that one of our rules requires, of the type that we have heretofore refused to overlook under Rule 126. See Sahutsky, 782 A.2d at 1001.”1 Womer, 589 Pa. at 271, 908 A.2d at 278.

The court further stated: “[tjherefore, we conclude that Womer did not substantially comply with Pa.R.C.P. 1042.3 for purposes of Pa.R.C.P. 126’s application, and hold that the Superior Court erred in including Pa.R.C.P. 126 as a factor in its analysis as to whether the trial court correctly denied Womer’s request that the judgment of non pros be opened.” Id. Moreover, the Supreme Court noted that pursuant to Pa.R.C.P. 3051, “a plaintiff has the opportunity to demonstrate that his failure to follow Pa.R.C.P. 1042.3 should be excused.” 589 Pa. at 272, 908 A.2d at 279. The court determined that the trial court was within its discretion to hold that the plaintiff had not [230]*230set forth a reasonable excuse in accordance with Pa.R.C.P. 3051 for not filing a certificate of merit. Id. at 278, 908 A.2d at 280.

However, the factual scenario of the case before this court is distinguishable from the facts presented in Womer. On November 6,2006, this court issued an order adopting a local rule to provide for the implementation of an electronic filing system. The relevant portions of Beaver County Local Rule 205.4 are as follows:

“(2) All legal papers must be filed electronically in accordance with the schedule hereinafter set forth. For all cases pending on the effective date for electronic filing for that category of cases, the filing party shall also provide the prothonotary with a hard copy of each legal paper filed electronically.

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Related

Womer v. Hilliker
908 A.2d 269 (Supreme Court of Pennsylvania, 2006)
Sahutsky v. H.H. Knoebel Sons
782 A.2d 996 (Supreme Court of Pennsylvania, 2001)
Griffin v. Central Sprinkler Corp.
823 A.2d 191 (Superior Court of Pennsylvania, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
83 Pa. D. & C.4th 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-kindred-healthcare-inc-pactcomplbeaver-2007.