C.L. v. UPMC
Opinion
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
C.L., A MINOR, BY HIS PARENTS AND : IN THE SUPERIOR COURT OF GUARDIANS, DAWN LEWANDOWSKI : PENNSYLVANIA AND THOMAS LEWANDOWSKI; DAWN : LEWANDOWSKI, IN HER OWN RIGHT; : THOMAS LEWANDOWSKI, IN HIS OWN : RIGHT; BROOKE LEWANDOWSKI, IN : HER OWN RIGHT; P.L., A MINOR BY : HER PARENTS AND GUARDIANS, : DAWN LEWANDOWSKI AND THOMAS : No. 1359 WDA 2025 LEWANDOWSKI; K.H. AND J.H., BY : THEIR PARENTS AND GUARDIANS, : DAWN LEWANDOWSKI AND JOHN : HARTMAN; JOHN HARTMAN, IN HIS : OWN RIGHT; D.H. AND T.H., BY AND : THROUGH THEIR PARENT AND : NATURAL GUARDIAN, JOHN HARTMAN :
:
Appellants :
:
:
v. :
:
:
UPMC CHILDRENS HOSPITAL; UPMC : POLICE DEPARTMENT; ANDREW : SCHURMAN, INDIVIDUALLY AND AS : HEAD OF UPMC POLICE DEPARTMENT; : DIANE HUPP, INDIVIDUALLY AND AS : PRESIDENT OF UPMC CHIDRENS : HOSPITAL; JAMIE MOHR, : INDIVIDUALLY AND AS : ADMINISTRATOR ON DUTY FOR UPMC : CHILDRENS HOSPITAL; ANDREW : BUCHERT, MD, INDIVIDUALLY AND AS : MEDICAL DIRECTOR OF UPMC : CHILDRENS HOSPITAL :
Appeal from the Order Entered September 23, 2025 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 24-006444
BEFORE: BOWES, J., OLSON, J., and BENDER, P.J.E.
MEMORANDUM BY OLSON, J.: FILED: August, 24, 2026 Appellants1 appeal from the September 23, 2025 order entered in the Court of Common Pleas of Allegheny County that sustained preliminary objections filed by UPMC Children’s and dismissed Appellants’ amended
complaint with prejudice.2 After careful review, we affirm.3
____________________________________________
1 Our use of “Appellants” collectively includes C.L., a minor, by his parents and guardians Dawn Lewandowski and Thomas Lewandowski, Dawn Lewandowski, in her own right, Thomas Lewandowski, in his own right, Brooke Lewandowski, in her own right, P.L., a minor by her parents and guardians Dawn Lewandowski and Thomas Lewandowski, K.H. and J.H., by their parents and guardians Dawn Lewandowski and John Hartman, John Hartman, in his own right, and D.H. and T.H., by and through their parent and natural guardian John Hartman.
Our use of “UPMC Children’s” or “party-defendants” collectively includes UPMC Children’s Hospital, UPMC Police Department, Andrew Schurman, individually and as head of UPMC Police Department, Diane Hupp, individually and as President of UPMC Children’s Hospital, Jamie Mohr, individually and as administrator on duty for UPMC Children’s Hospital, and Andrew Buchert, M.D., individually and as medical director of UPMC Children’s Hospital.
2 To the extent that Appellants’ notice of appeal stated that they were appealing from the October 14, 2025 order that denied their motion for reconsideration, we note that an “order denying a motion for reconsideration is not a final order and, thus, not appealable.” Oliver v. Irvello, 165 A.3d 981, 983 n.1 (Pa. Super. 2017).
3 Rule 3.3 of the Rules of Professional Conduct governing a lawyer’s candor
towards a tribunal, such as this Court, states, inter alia, that “[a] lawyer shall not knowingly[] make a false statement of material fact or law to a tribunal[.]” Pa. Rules of Professional Conduct, Rule 3.3(a)(1).
Our review of Appellants’ brief prepared by James L. Welsh, III, (“Attorney Welsh”) reveals at least fifteen instances in which Attorney Welsh blatantly cited a case as providing a statement of law that, upon a review, was incapable of confirmation. See Appellants’ Brief at 26-27, 29, 35, 39-40, 43, 45. For
____________________________________________
example, Attorney Welsh “quotes” Merlini v. Gallitzin Water Auth., 980 A.2d 502, 507-508 (Pa. 2009) for the proposition that the certificate of merit requirement was “intended as ‘a shield against frivolous claims of professional liability’ but ‘never as a sword to strike down potentially meritorious claims sounding in ordinary negligence.’” Appellants’ Brief at 26. The words “shield” and “sword” do not appear in the Merlini decision. Our research shows that this quotation is attributable to a dissent authored by then-Justice, now Chief-Justice Todd in Ditch v. Waynesboro Hosp., 17 A.3d 310, (Pa. 2011) in which she states “[t]he certificate of merit requirement in [Pennsylvania Rule of Civil Procedure] 1042.3 was intended to be a shield against frivolous claims of professional liability against medical and other professionals alleging a deviation from acceptable professional standards, but never as a sword to strike down potentially meritorious claims sounding in ordinary negligence.” Ditch, 17 A.3d at 318-319 (Todd, J. dissenting). Turning the page of Attorney Welsh’s brief, we find another example in which Attorney Welsh purports to quote Grossman v. Barke, 868 A.2d 561, 568 (Pa. Super. 2005) for the statement – “The proper test for determining whether a certificate of merit is required asks ‘whether the actions complained of involve technical complexity or esoteric issues involving medical judgment beyond the realm of common knowledge and experience, or are matters of nonmedical, administrative, ministerial, or routine service, which a jury is competent to determine.’” Appellants’ Brief at 27. Again, our research reveals that this quotation is attributable to the dissent in Ditch, supra, in which Justice Todd states what she believes is “the proper approach in discerning whether a claim alleges a deviation from ‘acceptable professional standards’ in a health care setting[.]” Ditch, 17 A.3d at 318 (Todd, J. dissenting).
We further find that Attorney Welsh makes blanket statements that appear to include a case quotation but then fails to cite the case from which he is quoting. For example, on page 37 of Appellants’ brief, Attorney Welsh states, “Pennsylvania courts have held that ‘for collateral estoppel purposes, a final judgment includes any prior adjudication of an issue in another action that is sufficiently firm to be accorded conclusive effect.’” See Appellants’ Brief at 37. Attorney Welsh clearly appears to be quoting from a case, but then fails to cite the case. We find a similar example on the next page in which Attorney Welsh states, “Pennsylvania courts have recognized that collateral estoppel should not apply where ‘differences in the quality or extensiveness of the procedures’ exist between the two proceedings, or where ‘the party sought to be precluded did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.’” Again, Attorney Welsh fails to cite the case from which the quotation was taken. Instead, he cites pages
The record demonstrates that, on October 28, 2024, Appellants filed a complaint against UPMC Children’s that asserted claims for false report of child abuse, tortious interference with parental rights, medical kidnapping/false imprisonment, negligent and intentional infliction of emotional distress, negligence, malicious prosecution, fraudulent or negligent misrepresentation or concealment, civil conspiracy, corporate negligence, and defamation, libel and slander, as well as a request to remove or seal the allegations of child abuse and unfit parenting from public records. Appellants’ allegations stemmed from the treatment and care C.L. received while hospitalized at UPMC Children’s Hospital after suffering a self-inflicted gunshot wound on December 25, 2023, and the contention that UPMC Children’s falsely reported, inter alia, that Dawn Lewandowski (“Mother”) assaulted C.L.
On December 23, 2024, UPMC Children’s filed preliminary objections to Appellants’ complaint on the grounds that Appellants failed to state the material facts upon which the claims were based, that certain plaintiffs lacked the capacity to bring suit on behalf of C.L. and Mother, and Appellants failed to state a claim upon which relief could be granted. On January 10, 2025, Appellants filed an amended complaint that asserted claims for false report of
____________________________________________
Free access — add to your briefcase to read the full text and ask questions with AI
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
C.L., A MINOR, BY HIS PARENTS AND : IN THE SUPERIOR COURT OF GUARDIANS, DAWN LEWANDOWSKI : PENNSYLVANIA AND THOMAS LEWANDOWSKI; DAWN : LEWANDOWSKI, IN HER OWN RIGHT; : THOMAS LEWANDOWSKI, IN HIS OWN : RIGHT; BROOKE LEWANDOWSKI, IN : HER OWN RIGHT; P.L., A MINOR BY : HER PARENTS AND GUARDIANS, : DAWN LEWANDOWSKI AND THOMAS : No. 1359 WDA 2025 LEWANDOWSKI; K.H. AND J.H., BY : THEIR PARENTS AND GUARDIANS, : DAWN LEWANDOWSKI AND JOHN : HARTMAN; JOHN HARTMAN, IN HIS : OWN RIGHT; D.H. AND T.H., BY AND : THROUGH THEIR PARENT AND : NATURAL GUARDIAN, JOHN HARTMAN :
:
Appellants :
:
:
v. :
:
:
UPMC CHILDRENS HOSPITAL; UPMC : POLICE DEPARTMENT; ANDREW : SCHURMAN, INDIVIDUALLY AND AS : HEAD OF UPMC POLICE DEPARTMENT; : DIANE HUPP, INDIVIDUALLY AND AS : PRESIDENT OF UPMC CHIDRENS : HOSPITAL; JAMIE MOHR, : INDIVIDUALLY AND AS : ADMINISTRATOR ON DUTY FOR UPMC : CHILDRENS HOSPITAL; ANDREW : BUCHERT, MD, INDIVIDUALLY AND AS : MEDICAL DIRECTOR OF UPMC : CHILDRENS HOSPITAL :
Appeal from the Order Entered September 23, 2025 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 24-006444
BEFORE: BOWES, J., OLSON, J., and BENDER, P.J.E.
MEMORANDUM BY OLSON, J.: FILED: August, 24, 2026 Appellants1 appeal from the September 23, 2025 order entered in the Court of Common Pleas of Allegheny County that sustained preliminary objections filed by UPMC Children’s and dismissed Appellants’ amended
complaint with prejudice.2 After careful review, we affirm.3
____________________________________________
1 Our use of “Appellants” collectively includes C.L., a minor, by his parents and guardians Dawn Lewandowski and Thomas Lewandowski, Dawn Lewandowski, in her own right, Thomas Lewandowski, in his own right, Brooke Lewandowski, in her own right, P.L., a minor by her parents and guardians Dawn Lewandowski and Thomas Lewandowski, K.H. and J.H., by their parents and guardians Dawn Lewandowski and John Hartman, John Hartman, in his own right, and D.H. and T.H., by and through their parent and natural guardian John Hartman.
Our use of “UPMC Children’s” or “party-defendants” collectively includes UPMC Children’s Hospital, UPMC Police Department, Andrew Schurman, individually and as head of UPMC Police Department, Diane Hupp, individually and as President of UPMC Children’s Hospital, Jamie Mohr, individually and as administrator on duty for UPMC Children’s Hospital, and Andrew Buchert, M.D., individually and as medical director of UPMC Children’s Hospital.
2 To the extent that Appellants’ notice of appeal stated that they were appealing from the October 14, 2025 order that denied their motion for reconsideration, we note that an “order denying a motion for reconsideration is not a final order and, thus, not appealable.” Oliver v. Irvello, 165 A.3d 981, 983 n.1 (Pa. Super. 2017).
3 Rule 3.3 of the Rules of Professional Conduct governing a lawyer’s candor
towards a tribunal, such as this Court, states, inter alia, that “[a] lawyer shall not knowingly[] make a false statement of material fact or law to a tribunal[.]” Pa. Rules of Professional Conduct, Rule 3.3(a)(1).
Our review of Appellants’ brief prepared by James L. Welsh, III, (“Attorney Welsh”) reveals at least fifteen instances in which Attorney Welsh blatantly cited a case as providing a statement of law that, upon a review, was incapable of confirmation. See Appellants’ Brief at 26-27, 29, 35, 39-40, 43, 45. For
____________________________________________
example, Attorney Welsh “quotes” Merlini v. Gallitzin Water Auth., 980 A.2d 502, 507-508 (Pa. 2009) for the proposition that the certificate of merit requirement was “intended as ‘a shield against frivolous claims of professional liability’ but ‘never as a sword to strike down potentially meritorious claims sounding in ordinary negligence.’” Appellants’ Brief at 26. The words “shield” and “sword” do not appear in the Merlini decision. Our research shows that this quotation is attributable to a dissent authored by then-Justice, now Chief-Justice Todd in Ditch v. Waynesboro Hosp., 17 A.3d 310, (Pa. 2011) in which she states “[t]he certificate of merit requirement in [Pennsylvania Rule of Civil Procedure] 1042.3 was intended to be a shield against frivolous claims of professional liability against medical and other professionals alleging a deviation from acceptable professional standards, but never as a sword to strike down potentially meritorious claims sounding in ordinary negligence.” Ditch, 17 A.3d at 318-319 (Todd, J. dissenting). Turning the page of Attorney Welsh’s brief, we find another example in which Attorney Welsh purports to quote Grossman v. Barke, 868 A.2d 561, 568 (Pa. Super. 2005) for the statement – “The proper test for determining whether a certificate of merit is required asks ‘whether the actions complained of involve technical complexity or esoteric issues involving medical judgment beyond the realm of common knowledge and experience, or are matters of nonmedical, administrative, ministerial, or routine service, which a jury is competent to determine.’” Appellants’ Brief at 27. Again, our research reveals that this quotation is attributable to the dissent in Ditch, supra, in which Justice Todd states what she believes is “the proper approach in discerning whether a claim alleges a deviation from ‘acceptable professional standards’ in a health care setting[.]” Ditch, 17 A.3d at 318 (Todd, J. dissenting).
We further find that Attorney Welsh makes blanket statements that appear to include a case quotation but then fails to cite the case from which he is quoting. For example, on page 37 of Appellants’ brief, Attorney Welsh states, “Pennsylvania courts have held that ‘for collateral estoppel purposes, a final judgment includes any prior adjudication of an issue in another action that is sufficiently firm to be accorded conclusive effect.’” See Appellants’ Brief at 37. Attorney Welsh clearly appears to be quoting from a case, but then fails to cite the case. We find a similar example on the next page in which Attorney Welsh states, “Pennsylvania courts have recognized that collateral estoppel should not apply where ‘differences in the quality or extensiveness of the procedures’ exist between the two proceedings, or where ‘the party sought to be precluded did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.’” Again, Attorney Welsh fails to cite the case from which the quotation was taken. Instead, he cites pages
The record demonstrates that, on October 28, 2024, Appellants filed a complaint against UPMC Children’s that asserted claims for false report of child abuse, tortious interference with parental rights, medical kidnapping/false imprisonment, negligent and intentional infliction of emotional distress, negligence, malicious prosecution, fraudulent or negligent misrepresentation or concealment, civil conspiracy, corporate negligence, and defamation, libel and slander, as well as a request to remove or seal the allegations of child abuse and unfit parenting from public records. Appellants’ allegations stemmed from the treatment and care C.L. received while hospitalized at UPMC Children’s Hospital after suffering a self-inflicted gunshot wound on December 25, 2023, and the contention that UPMC Children’s falsely reported, inter alia, that Dawn Lewandowski (“Mother”) assaulted C.L.
On December 23, 2024, UPMC Children’s filed preliminary objections to Appellants’ complaint on the grounds that Appellants failed to state the material facts upon which the claims were based, that certain plaintiffs lacked the capacity to bring suit on behalf of C.L. and Mother, and Appellants failed to state a claim upon which relief could be granted. On January 10, 2025, Appellants filed an amended complaint that asserted claims for false report of
____________________________________________
809 – 816 of the reproduced record, which, upon review, contains a copy of the October 14, 2025 trial court order denying Appellants’ motion for reconsideration and a portion of Appellants’ notice of appeal. See Appellants’ Brief at 38; see also Appellants’ Reproduced Record at 809 – 816.
Attorney Welsh’s lack of candor with this Court is deeply troubling.
child abuse, medical kidnapping/false imprisonment, negligent and intentional infliction of emotional distress, negligence, abuse of process, fraudulent or negligent misrepresentation or concealment, corporate negligence, and defamation, libel and slander, as well as a request to remove or seal the allegations of child abuse and unfit parenting from public records. On January 30, 2025, UPMC Children’s filed preliminary objections to Appellants’ amended complaint raising the same objections as lodged in the prior preliminary objections. On February 28, 2025, the trial court convened argument on the preliminary objections and took the matter under advisement.
On March 5, 2025, Appellants filed a motion to amend the complaint a second time and to add causes of action. On March 17, 2025, UPMC Children’s filed a response in opposition to Appellants’ motion to file a second amended complaint. On April 2, 2025, the trial court found that Appellants’ request for leave to file a second amended complaint failed to conform to Pennsylvania Rule of Civil Procedure 1033, which governs requests to amend a pleading. Trial Court Order, 4/2/25, at ¶ 4; see also Pa.R.Civ.P. 1033(d) (stating that, a motion to amend a pleading shall include a clean copy of the proposed amended pleading, as well as a comparison copy of the proposed pleading identifying the changes). The trial court further found that, in their amended complaint, Appellants “alleg[ed] professional liability against all defendants in Counts I, II, IV, VI, XII, and XIII and only against [UPMC Children’s Hospital]
in Counts VII and X.”4 Trial Court Order, 4/2/25, at ¶ 6 (extraneous capitalization omitted). The trial court also noted that Appellants, in their amended certificate of merit filed on January 15, 2025, certified that, inter alia, “[a]n appropriate licensed professional has supplied a written statement [] that there is a basis to conclude that the care, skill[,] or knowledge exercised or exhibited by the defendant in the treatment, practice[,] or work that is the subject of the [amended] complaint, fell outside acceptable professional standards[.]” Id. at ¶ 7. The trial court directed Appellants “to serve only upon the [trial court] a copy of all written statements [Appellants] acquired from the appropriate licensed professionals.” Id. at ¶ 8 (emphasis in original).
On April 15, 2025, the trial court held that the written statement submitted by Appellants to the trial court on April 9, 2025, did “not comply with Pennsylvania Rule of Civil Procedure 1042.3[,]” which governs certificates of merit, as discussed infra. Trial Court Order, 4/15/25, at ¶ 4. The trial court scheduled a hearing for April 28, 2025, “to determine what, if any, [s]anctions are appropriate pursuant to Pennsylvania Rule of Civil Procedure 1042.9[,]” which permits the imposition of sanctions where a party improperly certifies that an appropriate licensed professional has supplied a written statement for purpose of a certificate of merit. Trial Court Order, 4/15/25, at ¶ 5; see also
Pa.R.Civ.P. 1042.9 (stating, “[a] court may impose appropriate sanctions,
____________________________________________
4 We note there is no “Count XI” identified in Appellants’ amended complaint.
including sanctions provided for in Rule 1023.4, if the court determines that an attorney violated Rule 1042.3(a)(1) and (2) by improperly certifying that an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill[,] or knowledge experienced 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”).
The trial court subsequently rescheduled the April 28, 2025 hearing for June 3, 2025, and directed Appellants to have present at the hearing the licensed processional that authorized the written statement to support the certificates of merit. Trial Court Order, 5/8/25, at ¶¶ 2-3. At the conclusion of the hearing on June 3, 2025, the trial court provided the parties an opportunity to submit post-hearing briefs. Trial Court Order, 6/3/25.
On September 23, 2025, the trial court found that, “[b]y virtue of a [judicial decision in effect] at the time of the [events that allegedly gave rise to Appellants’ causes of action, C.L.’s] parents did not have the right to make medical decisions for C.L.” Trial Court Order, 9/23/25, at ¶ 8. The trial court further found that “[Appellants’] counsel’s unrepentant pursuit of a nonviable claim, unprofessional behavior, as well as conduct regarding the certificates of merit which [the trial court] can only classify as being of questionable candor – to be reprehensible.” Id. at ¶ 9 (extraneous capitalization omitted). Thereupon, “pursuant to the doctrine of collateral estoppel and the incurable deficiencies in [Appellants’] certificates of merit[,]” the trial court sustained
UPMC Children’s preliminary objections and dismissed Appellants’ amended complaint with prejudice. Id. at ¶ 11 (extraneous capitalization omitted). On October 2, 2025, Appellants filed a motion for reconsideration of the order that dismissed their amended complaint with prejudice, which the trial court denied on October 14, 2025. This appeal followed.5 Appellants raise the following issues for our review:
1. Did the trial court err in requiring a certificate of merit for Appellants’ claims of intentional torts and ordinary negligence where Pennsylvania law requires certificates of merit only for professional liability claims alleging deviation from professional standards?
2. Did the trial court err in finding Appellants’ certificate of merit witness, if necessary, unqualified based solely on her lack of a professional license where Pennsylvania Rule of Evidence 702 permits expert qualification “by knowledge, skill, experience, training, or education” and does not require licensure?
3. Did the trial court err in applying collateral estoppel based on a temporary dependency adjudication where the issues in the dependency proceeding were not identical to the tort claims asserted in this action?
4. Did the trial court abuse its discretion in dismissing Appellants’
[amended] complaint with prejudice without affording Appellants one full opportunity to cure any alleged certificate of merit deficiency?
5. Did the trial court err in failing to disclose that its law clerk[]
previously worked for [] UPMC Children’s Hospital on dependency matters[,] the identical subject matter of this litigation?
____________________________________________
5 The trial court did not order Appellants to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). The trial court filed its Rule 1925(a) opinion on November 12, 2025.
Appellants’ Brief at 8-11 (extraneous capitalization and superfluous text omitted).6 In their first and second issues, Appellants assert that the trial court erred when it required Appellants to file a certificate of merit, and subsequently rejected their submission because the certificates of merit failed to comply with Rule 1042.3. Appellants’ Brief at 25-34. Relatedly, in their fourth issue, Appellants contend that the trial court abused its discretion in denying them an opportunity to file an amended certificate of merit. Id. at 39-42.
Whether a certificate of merit is required, and whether a certificate of merit complies with Rule 1042.3, involves an interpretation of our Rules of Civil Procedure and, as such, our standard of review is de novo. Bruno v. Erie Insur. Co., 106 A.3d 48, 73 (Pa. 2014) (stating, a question involving “the proper interpretation of the language of our rules of civil procedure[] is one of law, and, thus, our standard of review is de novo”).
Rule 1042.3 sets forth the requirements governing a certificate of merit, in pertinent part, as follows:
____________________________________________
6 We remind counsel that, pursuant to Pennsylvania Rule of Appellate Procedure 2116(a), the “statement of the questions involved must state concisely the issues to be resolved, expressed in the terms and circumstances of the case but without unnecessary detail.” Pa.R.A.P. 2116(a) (emphasis added). Persuasive statements, case citations, and factual allegations in support of the issue presented should be reserved for the argument section of the brief. See generally, Pa.R.A.P. 2119.
Rule 1042.3. Certificate 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 that either
Note: The requirements of subdivision (a) apply to a claim for lack of informed consent.
(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
Note: It is not required that the “appropriate licensed professional” who supplies the necessary statement in support of a certificate of merit required by subdivision (a)(1) be the same person who will actually testify at trial.
It is required, however, that the “appropriate licensed professional” who supplies such a statement be an expert with sufficient education, training, knowledge[,] and experience to provide credible, competent testimony, or stated another way, the expert who supplies the statement must have qualifications such that the trial court would find them sufficient to allow that expert to testify at trial. For example, in a medical professional liability action against a physician, the expert who provides the statement in support of a certificate of merit should meet the qualifications set forth in Section 512 of the Medical Care Availability and Reduction of Error [] Act [(“MCARE”)], 40 P.S. § 1303.512.
(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
Note: A certificate of merit, based on the statement of an appropriate licensed professional required by subdivision (a)(1), must be filed as to the other licensed professionals for whom the defendant is responsible. The statement is not required to identify the specific licensed professionals
who deviated from an acceptable standard of care. The purpose of this subdivision is to ensure that a claim of vicarious liability made against a defendant is supported by a certificate of merit. Separate certificates of merit as to each licensed professional for whom a defendant is alleged to be responsible are not required. Only a single certificate of merit as to a claim under subdivision (a)(2) is required.
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
Note: In the event that the attorney certifies under subdivision (a)(3) that an expert is unnecessary for prosecution of the claim, in the absence of exceptional circumstances the attorney is bound by the certification and, subsequently, the trial court shall preclude the plaintiff from presenting testimony by an expert on the questions of standard of care and causation.
(b) (1) A separate certificate of merit shall be filed as to each licensed professional against whom a claim is asserted.
Note: This subdivision relates to licensed professionals named as defendants. It should not be interpreted to require certificates of merit under subdivision (a)(2) or otherwise as to non-defendant licensed professionals.
(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.Civ.P. 1042.3(a) and (b). The Rules of Civil Procedure, including Rule 1042.3, “govern a civil action in which a professional liability claim is asserted by or on behalf of a patient or client of a licensed professional against[,]” inter alia, a licensed professional or “a partnership, unincorporated association, corporation[,] or similar entity where the entity is responsible for a licensed
professional who deviated from an acceptable professional standard” and the “professional liability claim asserted against a licensed professional includes a claim for lack of informed consent.” Pa.R.Civ.P. 1042.1(a) and (b). A “licensed professional” is defined as “any person who is licensed pursuant to an Act of Assembly as[,]” inter alia, “a health care provider as defined by Section 503 of [MCARE,7]” or a nurse. Pa.R.Civ.P. 1042.1(c)(1)(i) and (vii).
This Court has refused to excuse a plaintiff from filing a certificate of merit merely because the plaintiff fails to expressly indicate in its complaint that it is asserting a professional liability claim, when, in substance, the plaintiff is actually asserting a professional liability claim. It is the substance of the complaint rather than its form which controls whether the claim against a professionally licensed defendant sounds in professional malpractice. Two questions are involved in determining whether a claim alleges ordinary negligence as opposed to professional negligence: (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 professional judgment beyond the realm of common knowledge and experience. To ascertain the plaintiff’s theory of liability, courts must examine the averments in the complaint.
____________________________________________
7 Section 503 of MCARE defines a “health care provider” as
[a] primary health care center, a personal care home licensed by the Department of Public Welfare pursuant to the act of June 13, 1967 (P.L. 31, No. 21), known as the Public Welfare Code, or a person, including a corporation, university[,] or other educational institution licensed or approved by the Commonwealth to provide health care or professional medical services as a physician, a certified nurse midwife, a podiatrist, hospital, nursing home, birth center, and an officer, employee or agent of any of them acting in the course and scope of employment.
40 P.S. § 1303.503 (footnotes omitted).
Sabella v. Est. of Milides, 992 A.2d 180, 187 (Pa. Super. 2010) (citations, quotation marks, ellipsis, and brackets omitted), appeal denied, 9 A.3d 631 (Pa. 2010). Whether a claim against a professionally licensed defendant sounds in ordinary negligence or professional liability raises a question of law for which our standard of review is de novo and our scope is plenary. Merlini, 934 A.2d at 105, aff’d, 980 A.2d 502 (Pa. 2009).
It is well-established that to assert a cause of action for professional liability against a licensed professional, the plaintiff must show the existence of a duty, that the licensed professional breached the duty, and the breach of that duty brought about damages. Merlini, 934 A.2d at 104. To establish a breach of duty within the context of a professional liability claim, a plaintiff must show that the licensed professional’s “conduct fell below the relevant standard of care appliable to the rendition of the professional services at issue.” Id.; see also Yee v. Roberts, 878 A.2d 906, 912 (Pa. Super. 2005) (defining medical malpractice or professional negligence within the context of medical services 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” (citation and original quotation marks omitted)), appeal denied, 901 A.2d 499 (Pa. 2006). “In most cases, such a determination requires expert testimony because the negligence of a [licensed] professional encompasses matters not within the ordinary knowledge and experience of laypersons.” Merlini, 934 A.2d at 104; see also Yee, 878 A.2d at 912 (stating, “because
the negligence of a [health care provider] encompasses matters not within the ordinary knowledge and experience of laypersons, a medical malpractice plaintiff must present expert testimony to establish the applicable standard of care, the deviation from that standard, causation[,] and the extent of the injury” (citation, and original brackets omitted)).8 A “jury of laypersons generally lacks the knowledge to determine the factual issues of medical causation; the degree of skill, knowledge, and experience required of the physician[, i.e., the scope and contours of the applicable legal duties owed by a licensed medical professional]; and the breach of the medical standard of care.” Grossman, 868 A.2d at 567 (citation and original quotation marks omitted) (stating, without the testimony of a medical expert, a “jury could have no basis other than conjecture, surmise[,] or speculation upon which to consider causation” (citation omitted)).
“[T]he difference between medical malpractice and [ordinary]
negligence is a subtle one[.]” Id. at 569 (citation and original brackets omitted). Claims of medical malpractice involve conduct that constitutes
“medical treatment, that is, when it involves diagnosis, care[,] and treatment
____________________________________________
8 “Expert testimony is not[] required to establish a breach of duty where the
matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of the ordinary experience and comprehension of even nonprofessional persons.” Grossman, 868 A.2d at 567 (citation and original quotation marks omitted), appeal denied, 889 A.2d 89 (Pa. 2005). “[E]xpert testimony as to causation [also is not required] where there is an obvious causal relationship between the injury complained of and the alleged negligent act.” Grossman, 868 A.2d at 567 (citation and original quotation marks omitted).
by [a health care provider.]” Id.; see also Yee, 878 A.2d at 912. The hiring, training, and supervising of employees that assist in providing care to the health care provider’s patients “constitutes an integral part of providing medical services to [the] patients” and such conduct, i.e., the failure to hire, train, and supervise a competent assistant, may give rise to a claim for professional negligence. Yee, 878 A.2d at 912; see also Grossman, 868 A.2d at 570 In the case sub judice, the trial court held that Appellants asserted claims for professional liability against all defendants in Counts I, II, IV, VI, XII, and XIII and against UPMC Children’s Hospital in Counts VII and X of the amended complaint. Upon review, we concur with the trial court, and the record supports that averments contained in the aforementioned counts of Appellants’ amended complaint sound in claims for professional liability. Regardless of how Appellants identified the individual causes of action, i.e., false reporting of child abuse, medical kidnapping, or negligent misrepresentation, within the amended complaint, Appellants aver conduct involving the provision, or deprivation, of medical treatment by health care providers. In Count I, Appellants assert that the party-defendants were not immune to claims relating to child abuse and that “[m]edical professional liability for medical errors, unwarranted treatments, and incorrect diagnosis remain in place.” Amended Complaint, 1/10/25, at ¶ 159. Appellants further claim that the party-defendants engaged in bad faith conduct, including misrepresentation of injuries, false diagnoses, ignoring medical reports,
deleting medical records, and failing to properly document symptoms in medical records. Id. at ¶ 163. In Count II, Appellants assert that the party-defendants had “no valid consent” to treat C.L., that the party-defendants made false allegations of C.L.’s risk for suicide, that the diagnosis of suicidal ideations was improperly made by a nurse instead of a licensed psychologist or psychiatrist, and that the party-defendants “failed to properly hire, train, retrain, [and] supervise [the] employees[,]” which led to the alleged harms. Id. at ¶¶ 181, 183, 186. In Count IV, despite specifically stating that the claim did not set forth a cause of action for professional liability (id. at ¶ 207), Appellants contend that the health care providers breached their duties towards, inter alia, C.L., who was a patient, and that the providers failed to hire, train, and supervise their employees, and failed to implement health care policies and procedures to prevent breaches of applicable legal duties. Id. at ¶¶ 208-212. In Count VI, Appellants assert that the health care providers deliberately misdiagnosed C.L. and that the medical records contained false statements, misrepresented or omitted medical histories, and false diagnoses. Id.at ¶ 236. In Count VII, Appellants allege that UPMC Children’s Hospital breached its duty of care towards C.L. by failing to implement policies and procedures to prevent, inter alia, “[m]aking diagnoses and rendering medical opinions and continuing to maintain said diagnoses and medical opinions, without following [a] proper clinical evaluation procedure[.]” Id. at ¶ 252. In Count X and XII, Appellants allege that UPMC Children’s Hospital and its health care providers administered incorrect medications to
C.L. and failed to respond to his medical conditions. Id. at ¶¶ 282-283, 305-306. In Count XIII, Appellants allege, inter alia, that the health care providers “performed unnecessary, experimental[,] and potentially life threatening brain surgery” on C.L. Id. at ¶ 344. Each of these counts of the amended complaint include allegations concerning the medical treatment C.L. received, or did not receive, including whether that medical treatment was necessary or correct, as well as allegations of hiring, training, and supervising practices and procedures in the health care industry that go beyond the common understandings of a layperson. Therefore, Appellants were required to support their causes of action by providing a certificate of merit that complied with Rule 1042.3.
We further find that Appellants’ claims raised in Count III (intentional infliction of emotional distress) and Count V (abuse of process) are premised upon allegations of professional negligence or medical malpractice. In Count III, Appellants allege that emotional distress was inflicted when C.L. was, inter alia, “subjected to unnecessary medical procedures[,]” “sedated, drugged and restrained for hours and days at a time[,]” “given false diagnoses” in order to keep him at the hospital facility, and “subjected to negligent medical care[.]” Id. at ¶¶ 190, 193. Appellants also assert that the party-defendants failed to have adequate policies and procedures, or to implement those policies and procedures, in order to avoid a breach of the applicable legal duties owed to Appellants. Id. at ¶¶ 196-197. In Count V, Appellants assert that the party-defendants abused the process of reporting child abuse allegations
when they “made up the allegations of abuse” and relied on “unapproved medical opinions [and] records,” participated in the investigation of child abuse in bad faith and used the process to “hide their own negligence and malpractice,” and failed to properly hire, train, and supervise employees or properly implement policies and procedures to prevent harm. Id. at ¶¶ 220, 223, 225-226, 232-233. Because these allegations draw into question the applicable standard of care that the health care providers owed C.L., as its patient, we find that a certificate of merit was required to support Appellants’ causes of actions.
We now turn to an examination of whether, or not, Appellants’
certificates of merit complied with Rule 1042.3. As noted supra, while the individual who supplied the necessary statement to support the certificate of merit does not have to be the person who testifies at the trial, the individual is required be “an expert with sufficient education, training, knowledge[,] and experience to provide credible, competent testimony” and have “qualifications such that the trial court would find them sufficient to allow that expert to testify at trial.” Pa.R.Civ.P. 1042.3(a)(1) at Note. In other words, the standard to be applied in assessing whether an individual is qualified to provide a statement to support a certificate of merit is whether the individual would qualify as an expert if he or she were to testify at the time of trial.
It is well-established that
the standard for qualification of an expert witness is a liberal one.
The test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized
knowledge on the subject under investigation. If he [or she] does, he [or she] may testify and the weight to be given to such testimony is for the trier[-]of[-]fact to determine. It is also well[-]established that a witness may be qualified to render an expert opinion based on training and experience. Formal education on the subject matter of the testimony is not required[.
N]or is it necessary that an expert be a licensed medical practitioner to testify with respect to organic matters. It is not a necessary prerequisite that the expert be possessed of all of the knowledge in a given field, only that he [or she] possess more knowledge than is otherwise within the ordinary range of training, knowledge, intelligence[,] or experience.
Miller v. Brass Rail Tavern, Inc., 664 A.2d 525, 528 (Pa. 1995) (citations omitted); see also Pa.R.Evid. 702.9 Section 512 of MCARE, however, imposes additional requirements on an individual who has been put forward as a medical expert in a medical
____________________________________________
9 Pennsylvania Rule of Evidence 702, which deals with the admissibility of testimony by an expert witness, states
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized knowledge will help the trier[-]of[-]fact to understand the evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant field.
Pa.R.Evid. 702.
professional liability action against a health care provider. Section 512 of MCARE states as follows:
§ 1303.512. Expert qualifications
(a) General rule. - No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge[,] and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable.
(b) Medical testimony. - An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation[,] and the nature and extent of the injury, must meet the following qualifications:
(1) Possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia.
(2) Be engaged in or retired within the previous five years from active clinical practice or teaching.
Provided, however, the court may waive the requirements of this subsection for an expert on a matter other than the standard of care if the court determines that the expert is otherwise competent to testify about medical or scientific issues by virtue of education, training[,] or experience.
(c) Standard of care. - In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician’s standard of care also must meet the following qualifications:
(1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.
(2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsection (d) or (e).
(3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board, except as provided in subsection (e).
(d) Care outside specialty. - A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that:
(1) the expert is trained in the diagnosis or treatment of the condition, as applicable; and
(2) the defendant physician provided care for that condition and such care was not within the physician’s specialty or competence.
(e) Otherwise adequate training, experience and knowledge. - A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience[,] and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period.
40 P.S. § 1303.512.
On January 15, 2025, Appellants filed certificates of merit as to UPMC Children’s Hospital, Andrew Schurman, who was identified in the amended complaint as being the head of the UPMC Police Department for UPMC Children’s Hospital, the UPMC Police Department, Andrew Buchert, M.D., who was identified in the amended complaint as being the medical director of UPMC Children’s Hospital, Diane Hupp, who was identified in the amended complaint as being the president of UPMC Children’s Hospital, and Jamie Mohr, who was identified in the amended complaint as being the administrator on duty at UPMC Children’s Hospital. In each certificate of merit, counsel for Appellants certified that
An appropriate licensed 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 defendant in the treatment, practice[,] or work that is the subject of the [amended] complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about harm;
And
The claim that defendant deviated from an acceptable professional standard is based solely or in part on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed 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 subject of the [amended c]omplaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm.
Certificates of Merit, 1/15/25.
On April 2, 2025, the trial court directed Appellants to submit to the trial court a copy of all written statements from the “appropriate licensed professional” that formed the basis of the certificates of merit. Trial Court Order, 4/2/25, at ¶ 8. Appellants complied and, on April 15, 2025, the trial court, upon review of the written statement, concluded that the certificates of merit did not comport with Rule 1042.3. Trial Court Order, 4/15/25, at ¶ 4. The trial court explained that
[t]he report produced to [the trial] court was authorized by Joanne Witkowski Smith [(“Ms. Smith”)] who is employed by the Allegheny County Department of Human Services, Children[,]
Youth and Families (“CYF”). While admirably experienced in the fields of child welfare and social services, Ms. Smith holds no professional license of any kind in the Commonwealth of Pennsylvania. [The trial] court can fathom no situation where Ms.
Smith’s credentials qualify her to opine on the actions of a police department, the administration of a hospital, the medical
judgment of physicians, nurses, [or] the president of a hospital.
While Ms. Smith may interact with these individuals and those similarly situated in her work, it does not render her qualified to opine on their judgment or professional decisions.
Trial Court Order, 9/23/25, at ¶ 3 (extraneous capitalization omitted). We agree.
Appellants relied upon the single report authored by Ms. Smith to support their certificates of merit against a hospital, a physician, several hospital administrators, and the head of the hospital’s police department. Certificates of Merit, 1/15/25; see also N.T., 6/3/25, at 8. As such, Appellants were required to qualify Ms. Smith under Rule 702 and Section 512 of MCARE to support its certificates of merit and comply with Rule 1042.3. See Miller, 664 A.2d at 528; see also Pa.R.Evid. 702; 40 P.S. § 1303.512; Pa.R.Civ.P. 1042.3; N.T., 6/3/25, at 11.
Ms. Smith testified that she was currently employed with the Allegheny County CYF, Department of Human Services. N.T., 6/3/25, at 12. She described herself as being a “child law professional for more than 25 years” with a degree in criminal justice. Id. at 13. Ms. Smith is a certified child welfare professional. Id. Ms. Smith described her duties as follows:
So we are trained [CYF] child welfare workers, and we review medical records, we meet with the child, we interview a child, we interview the alleged perpetrator, we interview and review all records[ and] collateral information. We work in collaboration with law enforcement[ and] medical professionals, and we must make a decision, a determination if there, in fact, is enough evidence that [child] abuse occurred. [CYF] is also responsible for the safety of a child.
...
[We] receive referrals or allegations of [child] abuse, and it is our legal obligation to investigate.
Id. at 14. On cross-examination, the following dialogue occurred regarding Ms. Smith’s credentials:
[Counsel for UPMC Children’s:] You are not a licensed professional, correct?
[Ms. Smith:] I am not a licensed social worker. My degree is criminal justice and all other certifications.
[Counsel for UPMC Children’s:] I’ll ask it again. You are not a licensed professional, correct?
[Ms. Smith:] Correct.
[Counsel for UPMC Children’s:] And to be specific, as defined by Pennsylvania statute, are you a person licensed or
approved by the Commonwealth as a physician?
[Ms. Smith:] No.
[Counsel for UPMC Children’s:] As a certified nurse mid wife?
[Ms. Smith:] No.
[Counsel for UPMC Children’s:] And as set forth in the Pennsylvania Rules of Civil Procedure, are you a licensed nurse?
[Ms. Smith:] No.
[Counsel for UPMC Children’s:] Are you a licensed psychologist?
[Ms. Smith:] No.
[Counsel for UPMC Children’s:] Are you a licensed psychiatrist?
[Ms. Smith:] No.
[Counsel for UPMC Children’s:] Are you even a licensed social worker?
[Ms. Smith:] No.
...
[Counsel for UPMC Children’s:] [Y]ou obtained no licenses or even certifications in health care, correct?
[Ms. Smith:] Actually, years ago in another state I was a certified nurse’s assistant.
[Counsel for UPMC Children’s:] When?
[Ms. Smith:] That was back in the[19]80s.
[Counsel for UPMC Children’s:] And in what state?
[Ms. Smith:] Minnesota.
[Counsel for UPMC Children’s:] [D]o you maintain that certificate?
[Ms. Smith:] No, I don’t.
[Counsel for UPMC Children’s:] How long did you have that certificate?
[Ms. Smith:] Maybe a year.
[Counsel for UPMC Children’s:] So when was the last time you’ve had a license or a certification as a certified nursing assistant?
[Ms. Smith:] 40 years ago.
...
[Counsel for UPMC Children’s:] Your college degree is from the University of Phoenix; is that correct?
[Ms. Smith:] Yes, that’s correct.
[Counsel for UPMC Children’s:] Was that [online]?
[Ms. Smith:] No. It was in person. It was a mixture of both, and it is in criminal justice.
[Counsel for UPMC Children’s:] Not health care or anything related to health care, correct?
[Ms. Smith:] No.
[Counsel for UPMC Children’s:] You do not work in a hospital?
[Ms. Smith:] No.
[Counsel for UPMC Children’s:] In fact, you’ve never been employed by a hospital?
[Ms. Smith:] No.
Id. at 120-122.
As the trial court noted, Ms. Smith is admirably experienced in her profession as an investigator of child abuse allegations and her work is crucial in maintaining the safety of children. Ms. Smith, however, possesses no pertinent licenses, certifications, or expertise in the fields that would permit her to offer expert testimony as to the necessary standard of care to be maintained by a hospital, or its physicians, nurses, administrators, or police department in the medical treatment and care of a patient, such as C.L. Therefore, we concur with the trial court, and the record supports, that the certificates of merit submitted by Appellants failed to satisfy the requirements of Rule 1042.3. As such, we discern no abuse of discretion or error of law in
the trial court’s order that dismissed the aforementioned counts from Appellants’ amended complaint with prejudice.
Appellants further contend that, upon ruling that the certificates of merit failed to comply with Rule 1042.3 and after dismissing Appellants’ amended complaint with prejudice, the trial court erred in denying Appellants an opportunity to cure any alleged deficiency in the certificates of merit. Appellants’ Brief at 39-42. Appellants assert that “due process requires affording the party an opportunity to cure [the deficiency in the certificate of merit] before imposing the ultimate sanction of dismissal [of the amended complaint] with prejudice.” Id. at 40. Appellants argue that they
[s]ought to file a second amended complaint adding three treating physicians [] as defendants under professional liability theories based on lack of informed consent. Appellants obtained a certificate of merit from a board-certified neurosurgeon who opined that the treating physicians violated the standard of care by failing to properly obtain informed consent, by allowing administrative interference with medical decision-making, and by performing exploratory, non-emergent surgeries for a condition []
that diagnostic tests had ruled out.
Id. at 40-41. Appellants assert that a certificate of merit based upon the statement obtained from the neurosurgeon to support their proposed claims against three additional treating physicians satisfied Rule 1042.3 Id. at 42.
Litigants who are required to file a certificate of merit to support a claim for professional liability must fully comply with the requirements of Rule 1042.3. Womer v. Hilliker, 908 A.2d 269, 276 (Pa. 2006) (stating, Rule 1042.3, “itself[,] sets forth no exceptions, equitable or otherwise, to its
terms”). 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 sixty days thereafter.” Womer, 908 A.2d at 278; see also Pa.R.Civ.P. 1042.3. Rule 1042.3 is also clear and unambiguous in that the person who supplies the statement to support the certificate of merit must “be an expert with sufficient education, training, knowledge[,] and experience to provide credible, competent testimony[.]” Pa.R.Civ.P. 1042.3(a)(1) at Note.
Our Supreme Court, in Womer, supra, noted that, while courts “look for full compliance with the terms of our [Rules of Civil Procedure,]” Pennsylvania Rule of Civil Procedure 126 provides a limited exception “to those who commit a misstep when attempting to do what any particular rule requires.” Womer, 908 A.2d at 276; see also Pa.R.Civ.P. 126 (stating, “The rules shall be liberally applied 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 procedure which does not affect the substantive rights of the parties.”). Rule 126 is viewed as a “rule of universal application, such that the trial court may disregard any such procedural defect or error at any stage of any action or proceeding to which the civil procedure rules apply[,]” including actions for professional liability. Womer, 908 A.2d at 276. Rule 126, however, “was not meant to excuse non-compliance with our rules when
a party had made no attempt to conform.” Id. at 277. In other words, “[t]he equitable doctrine [] incorporated into Rule 126 is one of substantial compliance, not one of no compliance.” Id. at 278 (emphasis in original).
As discussed supra, Ms. Smith, although experienced in her field of child abuse and social work, was not qualified by way of education, training, knowledge, and experience to provide credible and competent testimony as to the standard of care owed by a hospital, as well as its physicians, administrators, and law enforcement department, in the provision of medical care and treatment to patients. As Ms. Smith acknowledged, she works in collaboration with law enforcement and medical professionals in her role of investigating child abuse allegations. N.T., 6/3/25, at 14. She does not, however, hold any specialized license or certification as a physician, nurse, hospital administrator, or law enforcement officer that would allow her to opine as to the appropriate and necessary standard of care called for within each of the disciplines relevant to the medical care and treatment of C.L. Each of these fields of specialty, i.e., physician, hospital administrator, or law enforcement, required counsel for Appellants to put forth a certificate of merit based upon a statement proffered by an expert who possessed specialized training, education, knowledge, and experience in that field. As the trial court noted, and the record supports, Ms. Smith does not satisfy the requirements of Rule 1042.3. Given counsel’s knowledge of Ms. Smith’s background, education, and qualifications and the unambiguous requirements of Rule 1042.3 regarding the type of person qualified to provide a statement in
support of a certificate of merit, Appellants’ counsel, as the trial court noted, was “woefully” non-compliant with Rule 1042.3. N.T., 6/3/25, at 166. Simply put, counsel put forth the statement of an individual who was incapable of meeting the requirements of Rule 1042.3 across all lines of the specialized disciplines pertinent to the claims presented in this case. As such, we discern no error of law or abuse of discretion in the trial court’s denial of Appellants’ request to cure the deficiencies of the certificates of merit.10 Appellants next claim that the trial court erred in applying the doctrine of collateral estoppel on the ground that the issue resolved by the prior dependency proceeding was not identical to the tort claims asserted by Appellants against the party-defendants. Appellants’ Brief at 34-39.
It is well-established that collateral estoppel is a “doctrine of issue preclusion which forecloses re-litigation in a later action, of an issue of fact or law which was actually litigated and which was necessary to the original judgment.” Matternas v. Stehman, 642 A.2d 1120, 1125 (Pa. Super. 1994)
____________________________________________
10 Appellants assert that, in an effort to cure the deficiencies in the certificates
of merit, they “sought to file a second amended complaint adding three treating physicians [] as defendants under professional liability theories[.]” Appellants’ Brief at 40 (extraneous capitalization omitted). Appellants further aver that in support of joining these additional defendants and additional causes of action, they “obtained a certificate of merit from a board-certified neurosurgeon[.]” Id. Counsel fails to recognize that a certificate of merit from a neurosurgeon, while it may support the proposed additional claims against the proposed additional defendants, does not satisfy the requirements of Rule 1042.3 as to the existing defendants and existing causes of action. In short, Appellants’ proposed cure does nothing to fill the current void in claim certification.
(citations omitted); see also In re Coatesville Area Sch. Dist., 244 A.3d 373, 381 (Pa. 2021) (explaining that, collateral estoppel “bars re-litigation of an issue that was decided in a prior action, although it does not require that the claim as such be the same”).
Collateral estoppel applies if (1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case;
(4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment.
Matternas, 642 A.2d at 1125 (citations omitted). “Collateral estoppel does not require identity of causes of action or parties.” Id. “[C]ollateral estoppel will bar only those issues that actually were litigated in the prior proceeding.” Id. “An issue is actually litigated when it is properly raised, submitted for determination, and then actually determined. For collateral estoppel purposes, a final judgment includes any prior adjudication of an issue in another action that is sufficiently firm to be accorded conclusive effect.” In re R.H.M., 303 A.3d 146, 151 (Pa. Super. 2023) (citation omitted). A dependency adjudication and disposition order is a final, appealable order. Interest of M.G., 331 A.3d 703, 713 (Pa. Super. 2025), appeal denied, 339 A.3d 353 (Pa. 2025), cert. denied, 146 S.Ct. 2158 (2026). The application of the doctrine of collateral estoppel is a question of law for which our standard of review is de novo. R.H.M., 303 A.3d at 151.
Appellants assert that “[t]he dependency court’s adjudication did not decide – nor did it have jurisdiction to decide – the tort claims asserted in Appellants’ amended complaint.” Appellants’ Brief at 35 (extraneous capitalization omitted). The dependency proceeding, according to Appellants, “addressed only whether C.L. was dependent under the Juvenile Act at a specific moment of time.” Id. Appellants argue that the “issues [in the dependency proceeding and raised in the amended complaint] are not identical.” Id. at 36. According to Appellants,
The dependency court never addressed whether [the party-defendants] filed false abuse reports, whether they committed fraud in obtaining informed consent, whether they falsely imprisoned C.L. and whether they falsely arrested [Mother], whether they defamed [C.L.’s] family, or whether they committed any of the thirteen counts of tortious conduct alleged in the amended complaint. The dependency court’s sole inquiry was whether proper parental care existed at a specific time, a protective, child-focused determination entirely separate from the question of whether [the party-defendants] committed intentional torts and negligence[.]
Id. at 36-37 (extraneous capitalization omitted).
Section 6303 of the Child Protective Services Law (“CPSL”) defines “child abuse” as, inter alia, “intentionally, knowingly[,] or recklessly[ c]ausing bodily injury to a child through any recent act or failure to act[.]” 23 Pa.C.S.A. § 6303(b.1)(1). Section 6311 of the CPSL mandates that, inter alia, “[a] person licensed or certified to practice in any health-related field under the jurisdiction of the [Pennsylvania] Department of State” or “[a]n employee of a health care facility or provider licensed by the [Pennsylvania] Department
of Health, who is engaged in the admission, examination, care[,] or treatment of individuals” is required to make a report of suspected child abuse. 23 Pa.C.S.A. § 6311(a). A court may find a child to be dependent if “there is a lack of proper parental care or control [] based upon evidence of conduct by the parent, guardian[,] or other custodian that places the health, safety[,] or welfare of the child at risk[.]” 42 Pa.C.S.A. § 6302. The party petitioning for an adjudication of dependency based upon child abuse must “demonstrate the existence of child abuse by the clear and convincing evidence standard.” In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015), citing 42 Pa.C.S.A. § 6341(c) (stating that, clear and convincing evidence is required to establish the dependency of a child). If a child is adjudicated dependent, the trial court may appoint a legal custodian who then has, inter alia, “the right to determine the nature of the care and treatment of the child, including ordinary medical care[.]” 42 Pa.C.S.A. § 6357.
In the case sub judice, Appellants do not dispute that, on August 30, 2024, C.L. was adjudicated a dependent and legal custody of the child was transferred to CYS. Appellants also do not dispute that they were parties to or stood in privity to the parties in the dependency action or that they had a full and fair opportunity to litigate the dependency matter. Rather, Appellants maintain throughout their amended complaint that the allegations which gave rise to the adjudication of dependency were “unfounded,” fabricated by the party-defendants, “patently false,” and simply did not occur and were used by the party-defendants as retaliation against Mother and to mask their own
negligence or malpractice. In other words, Appellants contend that the dependency adjudication was wrongly decided and they are attempting, through their amended complaint, to relitigate the dependency matter. The August 30, 2024 dependency order was a final adjudication of dependency and disposition of the matter. Under these circumstances, the final determination of issues in the dependency adjudication ended the time to challenge or object to the reliability and credibility of those findings.
Counts VIII and IX of Appellants’ amended complaint are based upon allegations that contest the validity of the dependency adjudication order. See Amended Complaint, 1/10/25, at ¶¶ 268-279 (asserting that, the accusations of child abuse (which led to the filing of the dependency petition) were false and unsupported by the evidence). As such, we concur with the trial court, and the record supports, that the doctrine of collateral estoppel bars Appellants from attempting to relitigate the issue of C.L.’s dependency and the findings which gave rise to the dependency order. Therefore, we discern no abuse of discretion or error of law in the trial court’s order that dismissed the aforementioned counts from Appellants’ amended complaint with prejudice.
Finally, Appellants allege that the trial court failed to disclose that its law clerk previously worked as a certified legal intern during law school on dependency matters at UPMC Children’s Hospital, which, according to Appellants, were identical to the pending litigation. Appellants’ Brief at 42-47. Appellants contend that as result of the failure to disclose this information
regarding the trial court’s law clerk, they were deprived of their due process right to an impartial tribunal. Id.
Rule 2.11 of the Code of Judicial Conduct states that “[a] judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned[.]” Pa. Code of Judicial Conduct, Rule 2.11(A). Circumstances under which a judge shall disqualify himself or herself from the proceedings arise when the “judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceedings.” Pa. Code of Judicial Conduct, Rule 2.11(A)(1). To ensure that a judge is made aware of a potential conflict of interest, Rule 1.12 of the Code of Judicial Conduct requires a law clerk for the judge to notify the judge that he or she is negotiating “for employment with a party or lawyer involved in a matter in which the [law] clerk is participating personally and substantially[.]” Pa. Code of Judicial Conduct, Rule 1.12(b).
“The underlying purpose of the Code of Judicial Conduct is to preserve both the integrity and independence of the judiciary.” Commonwealth v. Druce, 848 A.2d 104, 109 (Pa. 2004) (citation, original quotation marks, and brackets omitted). While “the Code of Judicial Conduct does not have the force of substantive law[,] the code is intended to impose standards of conduct upon the judiciary to be referred by a judge in his [or her] self-assessment of whether he [or she] should volunteer to recuse from a matter pending before him [or her].” Id. (citation, original quotation marks, and original brackets omitted; emphasis in original); see also Irish Holdings LLC v. EQT
Prod. Co., 330 A.3d 445, 466 (Pa. Super. 2025) (stating, a “judge’s obligation not to hear or decide matters in which disqualification is required applied regardless of whether a motion to disqualify [was] filed”). This Court, however, “is without jurisdiction to enforce the mandate that a jurist disqualify himself [or herself] sua sponte.” Irish Holdings, 330 A.3d at 466 (reiterating that, “an appellant may not rely on the Judicial Code to support recusal because enforcement of the Code is beyond this Court’s jurisdiction”).
Appellate courts, however, have jurisdiction to review an order denying a motion for recusal. Irish Holdings, 330 A.3d at 464. As our Supreme Court outlined in Druce, supra,
If a party questions the impartiality of a judge, the proper recourse is a motion for recusal, requesting that the judge make an independent, self-analysis of the ability to be impartial. If content with that inner examination, the judge must then decide whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This assessment is a personal and unreviewable decision that only the jurist can make. Once the decision is made, it is final [and the case must proceed].
Druce, 848 A.2d at 108 (citations, quotation marks, and ellipsis omitted). Appellate courts presume “judges of this Commonwealth are honorable, fair and competent, and, when confronted with a recusal demand, have the ability to determine whether they can rule impartially and without prejudice.” Id. (citation and quotation marks omitted).
“The party who asserts a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness
necessitating recusal, and the decision by a judge against whom a plea of prejudice is made will not be disturbed except for an abuse of discretion.” Id., citing, Commonwealth v. Darush, 459 A.2d 727, 731 (Pa. 1983); see also In re Cumberland Cnty. Dist. Att’y’s Off., 330 A.3d 471, 480 (Pa. Super. 2025). “An abuse of discretion is not merely an error of judgment, but occurs only where the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill[-]will, as shown by the evidence or the record.” Lomas v. Kravitz, 170 A.3d 380, 389 (Pa. 2017) (citation omitted).
“The propriety of [a judge’s decision to grant or deny a motion for recusal] is grounded in abuse of discretion and is preserved as any other assignment of error, should the objecting party find it necessary to appeal following the conclusion of the [case].” Reilly by Reilly v. Southeastern PA Transp. Auth., 489 A.2d 1291, 1300 (Pa. 1985), aff’d, 489 A.2d 1291 (Pa. 1985). Once the case has concluded, for example, by the entry of a verdict or judgment or, as in the case sub judice, the dismissal of the amended complaint with prejudice, “a party is deemed to have waived his [or her] right to have a judge disqualified, and if he [or she] has waived that issue, he [or she] cannot be heard to complain following an unfavorable result.” Reilly, 489 A.2d at 1300 citing Commonwealth v. Corbin, 291 A.2d 307 (Pa. 1972); see also Lomas, 170 A.3d at 390 (stating, “a party must seek recusal of a jurist at the earliest possible moment, i.e., when the party knows of the facts that form the basis for a motion to recuse. If the party fails to present a
motion to recuse at that time, then the party’s recusal issue is time-barred and waived.”).
In their motion for reconsideration, Appellants asserted that “[o]n the evening of September 23, 2025, [Appellants] uncovered information that should have been disclosed to [Appellants.]”11 Motion for Reconsideration, 10/2/25, at ¶ 43. Appellants asserted that a professional networking platform profile for the trial court’s law clerk revealed that the law clerk performed work as a certified legal intern at UMPC Children’s Hospital while he was in law school.12 Id. at ¶ 45 and Exhibit 4. Appellants stated that, if this information were known by Appellants, they “would never have consented to [the trial court’s involvement] during discovery.” Id. at ¶ 44.
A review of the law clerk’s professional networking platform profile reveals that the law clerk served as a certified legal intern from September 2022, to May 2023. During that time period, the law clerk “counseled” families
____________________________________________
11 For purpose of our disposition, we accept as true Appellants factual allegation that they learned of the information only after the trial court entered its order, on September 23, 2025, that sustained UPMC Children’s preliminary objections and dismissed Appellants’ amended complaint with prejudice. As such, Appellants properly preserved the claim that the trial court erred in denying their request for recusal by raising the request at the first opportunity, after learning of the information, in a motion for reconsideration.
12 The professional networking platform profile for the law clerk stated that,
as a certified legal intern during his law school education, he “[c]ounseled families at [UPMC Children’s Hospital,] through a medical legal partnership, regarding the process for seeking legal guardianship when a disabled child reaches the age of majority and their child’s right to a free and appropriate public education[.]” Motion for Reconsideration, 10/2/25, at Exhibit 4.
on the specific issue of “the process for seeking legal guardianship when a disabled child reaches the age of majority and [in seeking] their child’s right to a free and appropriate public education.” C.L. was not a patient at UPMC Children’s Hospital until December 25, 2023, more than six months after the law clerk ended his service as a certified legal intern. Appellants failed to establish how the trial court would have possessed any “personal knowledge of facts that are in dispute in the proceedings” when the allegations which gave rise to Appellants’ causes of action occurred after the law clerk ended his internship duties. Moreover, the law clerk’s internship offers no basis to infer judicial bias or prejudice. As such, we discern no abuse of discretion in the trial court’s order denying Appellants motion for reconsideration, which set forth allegations in support of recusal.
Order affirmed.
DATE: 08/24/2026
C.L. v. UPMC (C.L. v. UPMC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.