Bourne v. Temple University Hospital

932 A.2d 114, 2007 Pa. Super. 231, 2007 Pa. Super. LEXIS 2208

• Court: Superior Court of Pennsylvania
• Decided: August 2, 2007
• Status: Published

Opinions

OPINION BY

McCaffery, J.:

¶ 1 Appellants, George and Caroline Bourne, appeal from the order that denied their petition to open and/or strike the judgment of non pros which had been entered against them. Specifically, Appellants argue that the trial court erred in its application of Pa.R.C.P. 1042.3, regarding the calculation of time within which a certificate of merit must be filed in a professional liability action. Upon review, we reverse and remand.

¶2 The relevant facts and procedural history of this matter are as follows. On September 15, 2005, Appellants filed a complaint against Appellees, Temple University Hospital, John Doe and Jane Doe, Gail O. Berman, M.D., and Temple Cardiology Associates. In their complaint, Appellants alleged that Mr. Bourne, who suffered from congestive heart failure, had been admitted to Temple University Hospital on or about April 25, 2003, with shortness of breath. Mr. Bourne was informed that a defibrillator which had previously been inserted into his chest needed to be repositioned. Thereafter, on or about May 7, 2003, Mr. Bourne underwent surgery in order to reposition the defibrillator. While recuperating in the hospital, Mr. Bourne developed severe bed sores, an ulcer in his rectum, internal hemorrhoids, and diverticula in his sigmoid colon. He also developed a sacral hematoma which progressed to a decubitus ulcer. His wounds became infected, for which medication was required. Appellants alleged that all aforementioned Appellees were negligent in permitting these injuries to occur.

¶ 3 Appellants did not file any certificates of merit with their complaint.² However, on November 2, 2005, they filed a motion seeking an extension of time within which to file a certificate of merit, pursuant to Pa.R.C.P. 1042.3(d). Temple University Hospital and Dr. Berman, jointly represented by counsel, filed a response to and brief in opposition to Appellants’ motion in which they argued that Appellants had not demonstrated the requisite good cause which would warrant an extension of time within which to file a certificate of merit. By order filed December 7, 2005, the trial court denied Appellants’ motion, and the next day, December 8, 2005, Temple University Hospital and Dr. Berman filed a praecipe for the entry of a judgment of non pros pursuant to Rule 1042.6(a). Later that same day, Appellants’ attorney filed certificates of merit indicating that an appropriate licensed professional had supplied a written statement that there was a basis to conclude that the Appellees’ care fell outside acceptable professional standards and that such conduct had caused Mr. Bourne’s harm.

¶ 4 On December 20, 2005, Appellants filed a petition to open and/or strike the judgment of non pros which had been entered in favor of Temple University Hospital and Dr. Berman. In their petition, Appellants averred that (1) they had secured the written opinion of a licensed nurse on November 11, 2005, and had sought the written opinion of a licensed physician to buttress the underlying action; (2) their filing of a motion to extend the time for filing the certificate of merit acted to stay the 60-day period for filing the certificate; and (3) they were justified in seeking an extension of time in that Temple University Hospital and Dr. Ber-man had failed to provide Appellants with all of the necessary medical records pertaining to the underlying action. Appellants concluded their petition by noting they had filed certificates of merit on December 8, 2005. By order filed February 6, 2006, the trial court denied Appellants’ petition to open and/or strike the judgment of non pros, and this appeal followed. By order entered March 3, 2006, the trial court directed Appellants to file a Pa. R.A.P.1925(b) statement. Appellants did so, and the trial court filed its Pa.R.A.P. 1925(a) opinion. On April 24, 2006, the trial court approved a stipulation withdrawing without prejudice the claims against John Doe, Jane Doe, and Temple Cardiology Associates, thereby rendering the trial court’s February 6, 2006 order final for purposes of appeal. See Pa. R.A.P. 341. Appellants now raise the following three issues for our review, which we have re-ordered for ease of disposition:

I. Should the trial court have stricken the entry of judgment of non pros under the Pennsylvania Rules of Civil Procedure and Pennsylvania case law?

II. Did the trial court abuse its discretion in denying Appellants’ motion for an extension of time in which to file a certificate of merit?

III. Should the trial court have opened the entry of judgment of non pros under the Pennsylvania Rules of Civil Procedure and Pennsylvania case law?

(Appellants’ Brief at 4).³

¶ 5 In support of their first issue, Appellants argue that the trial court erred in failing to strike the judgment of non pros because Appellants had filed a timely motion to extend the period of time within which to file a certificate of merit, which filing tolled the running of the 60-day period provided in Rule 1042.3. We agree.

¶ 6 Our review is guided by the following legal precepts:

When 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 (3) there is a meritorious cause of action.

Varner v. Classic Communities Corp., 890 A.2d 1068, 1072 (Pa.Super.2006) (citation and quotations omitted).⁴ See Pa.R.C.P. 3051 (relating to relief from judgment of non pros).5 Once a judgment of non pros has been entered, the burden rests on the plaintiff to demonstrate that there is good cause for reactivating the case. See Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269 (2006).

¶ 7 The Pennsylvania Rules of Civil Procedure regarding the filing of certificates of merit in professional liability cases provide, in relevant part, the following:

Rule 1042.3 Certificates of Merit

(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....

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(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. The motion to extend the time for filing a certificate of merit must be filed on or before the filing date that the plaintiff seeks to extend. 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.

Pa.R.C.P. 1042.3(a), (d) (emphasis supplied; notes omitted).

¶ 8 To “toll” is defined in Black’s Law Dictionary as “to stop the running of; to abate.” Black’s Law Dictionary 1525 (8th ed. 2004). The effect of tolling a specified time period contained in a statute or rule is to stop the running of the time within which a specific action must be taken in order to be considered timely. See e.g., Fancsali v. University Health Center of Pittsburgh, 563 Pa. 439, 448-49, 761 A.2d 1159, 1163-64 (2000) (stating that the Minority Tolling Statute, 42 Pa.C.S.A. § 5533(b), suspends the commencement of the two-year limitation period for a minor’s personal injury claim until the minor turns eighteen years old.)

¶ 9 In the case sub judice, Rule 1042.3(d) effectively suspended the time •within which Appellants were required to file their certificate of merit from the date Appellants filed their motion to extend until after the trial court ruled thereon. Because the motion was filed on the 48th day after the filing of the complaint, the certificate of merit would have been due on the 12th day after the court denied that motion. In other words, the 60-day clock stopped ticking on day 48 and resumed when the court denied the motion to extend, thereby affording Appellants an additional 12 days within which to file the certificate. In fact, Appellants did file certificates of merit on the 49th day, i.e., December 8, 2005. We determine that this filing was timely, and thus, Appellees’ filing for entry of judgment on the day after the denial of Appellants’ motion to extend was premature, and should not have been granted.

¶ 10 Accordingly, for the foregoing reasons, we reverse the order of the trial court denying the petition to strike and/or open the judgment of non pros and remand for proceedings not inconsistent with this opinion.

¶ 11 Order reversed. Case remanded. Jurisdiction relinquished.

¶ 12 STEVENS, J., files Dissenting Opinion.

2 . Rule 1042.3(a) provides, generally, that, within 60 days of the filing of a complaint, a certificate of merit must be filed in any civil action which asserts a professional liability claim alleging that a licensed professional deviated from an acceptable standard of care.

3 . In light of our disposition of Appellants’ first issue, we do not reach the merits of the remaining two issues.

4 . We note that whether Appellants had a legitimate excuse for failing to file a timely certificate of merit relates to the second prong . enunciated supra. Regarding the first prong, there is no dispute that Appellants timely filed their petition to open and/or strike the judgment of non pros. Regarding the final prong, Appellants proffer that the certificate of merit they procured from a registered nurse creates a presumption that they have a meritorious cause of action. See Appellant’s Brief at 21-22.

5 . A plaintiff may seek relief under Pa.R.C.P. 3051 from a judgment of non pros entered pursuant to Pa.R.C.P. 1042.6. Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269 (2006); Ditch v. Waynesboro Hospital, 917 A.2d 317, 327 (Pa.Super.2007).