Friedman, S. v. Bryn Mawr Hospital

• Court: Superior Court of Pennsylvania
• Decided: December 27, 2017
• Docket: 2915 EDA 2016
• Status: Unpublished

Opinion

J-A14039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEVEN FRIEDMAN, M.D., IN THE SUPERIOR COURT INDIVIDUALLY AND AS EXECUTOR OF OF THE ESTATE OF GAIL FRIEDMAN, PENNSYLVANIA DECEASED,

Appellant

v.

BRYN MAWR HOSPITAL, ALLISON WILLIAMS, P.A., CHRISTOPHER X. DALY, M.D., GEORGE J. HART, M.D., GRAHAME C. GOULD, M.D., ANCY SKARIAH, D.O., ROSEMARY A. COOK, M.D., AND MAIN LINE HOSPITALS, INC.,

Appellees No. 2915 EDA 2016

Appeal from the Order Entered August 24, 2016 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 15-11939

BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 27, 2017

Steven Friedman, M.D., appeals from the order entered August 24,

2016, which declared that he was not an “attorney” for the purposes of

Pa.R.C.P. 1042.3 and directing him to file statements of reasonable probability

in compliance with that Rule. We quash.

This matter was commenced on July 6, 2015, when Appellant filed a

complaint raising various claims sounding in medical malpractice. Appellant

was required to file a certificate of merit pursuant to Pa.R.C.P. 1042.3. Such

a certificate is necessary to ensure “an orderly procedure that would serve to J-A14039-17

identify and weed out non-meritorious malpractice claims from the judicial

system efficiently and promptly.” Womer v. Hilliker, 908 A.2d 269, 275 (Pa.

2006). A certificate of merit achieves this purpose by requiring a plaintiff to

substantiate the underlying claims by providing what is, essentially, a prima

facie showing of the merits of the dispute. This initial showing may be

accomplished by, as is relevant here, the signature of plaintiff’s counsel

verifying “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[.]” Pa.R.C.P.

1042.3(a)(1). However, “[i]f a certificate of merit is not signed by an

attorney, the party signing the certificate of merit shall . . . attach to the

certificate of merit the written statement from an appropriate licensed

professional[.]” Pa.R.C.P. 1042.3(e).

The relevant procedural posture is as follows. Appellant, a licensed

attorney, electronically signed his initial certificates of merit, one for each

defendant, filed on August 14, 2015, but did not attach a written statement

from an appropriate licensed professional. Appellees filed various motions to

strike Appellant’s certificates of merit, conceding that Appellant was an

attorney, but arguing that his certifications did not conform to the dictates of

Pa.R.C.P. 1042.3 since he was proceeding pro se and he failed to attach the

necessary written statements of probable cause. These motions were granted

-2- J-A14039-17

by the trial court on December 1, 2015, but it permitted Appellant an

opportunity to cure the defects.

On December 20, 2015, Appellant filed a series of certificates of merit

signed by himself, Dr. Ira Mehlman, M.D., and Dr. Marshall Gottlieb, D.O.

Appellees again moved to strike these certifications, challenging Appellant’s

failure to comply with Rule 1042.3, and questioning the qualifications of the

doctors, specifically, that Dr. Mehlman had been retired for more than five

years, Dr. Gottlieb has passed away, and Appellant – who is also a medical

doctor – had his medical license suspended. On April 6, 2016, the court

granted the motion to strike, and provided Appellant an additional twenty days

to cure the defect.

On April 22, 2016, Appellant filed certificates of merit signed solely by

himself. He did not attach written documentation from an appropriate licensed

professional. Appellees renewed their objection to Appellant’s certificates of

merit, again filing motions to strike. On August 4, 2016, after a hearing on

Appellees’ motions to strike, the trial court entered an order deferring its

disposition until after an evidentiary hearing on the qualifications of Dr.

Mehlman, which was scheduled for August 18, 2016. On August 17, 2016,

Appellant sought reconsideration of this order, averring for the first time that

his April 22, 2016 certificates of merit were supported by statements of

-3- J-A14039-17

probable cause made by Dr. Dana Leifer.1 In addition, he maintained his belief

that his signature, as a licensed attorney, satisfied Rule 1042.3 and objected

to the court’s decision to request that Dr. Mehlman be offered for questioning.

In response, on August 22, 2016, the trial court granted Appellant’s motion

for reconsideration, directed Appellant to file Dr. Leifer’s written statements,

and expressly rejected his argument that his signature met the requirements

of Rule 1042.3. Appellant then filed a notice of appeal to this Court.

This matter is now ready for our review. Appellant raises two questions

for our consideration:

(1) Did the Montgomery County Court of Common Pleas, by error of law and/or abuse of discretion, essentially take away [Appellant’s] license as an attorney, and/or his right to be an-officer-of-the-Court, and/or to fully represent himself?

(2) Did the Montgomery Court of Common Pleas, by error of law and/or abuse of discretion, repeatedly ignore black-letter law when evaluating who is qualified to submit a statement of reasonable probability in support of a certificate of merit, thus delaying and rendering the administration of justice excessively unpredictable?

Appellant’s brief at 5.

____________________________________________

1 Appellant attached certificates of merit signed by Dr. Leifer to his August 17, 2016 motion for reconsideration. However, as indicated infra, Appellant appealed to this Court prior to the trial court determining whether Dr. Leifer’s statements of probable cause satisfied Pa.R.C.P. 1042.3. Although Appellant has provided the trial court with certificates of merit purporting to establish his cause of action below, those certificates have been contested, and thus, the issues he raises on appeal are not moot since the trial court has not ruled on Dr. Leifer’s qualifications.

-4- J-A14039-17

On appeal, Appellant contends that, since he is a licensed attorney, the

requirements of Pa.R.C.P. 1042.3(e) are inapplicable, and he need not attach

the written statement of probable cause that he obtained from Dr. Leifer to

the certificates of merit which he signed on his own behalf in order to satisfy

the Rule. Further, he claims that, although the trial court’s August 24, 2016

order was not a final order, this Court has jurisdiction over his appeal pursuant

to the collateral order doctrine, which permits review of non-final orders in

limited circumstances. See Pa.R.A.P. 313. Before we reach the merits of

Appellant’s claimed errors, we must first determine whether we have

jurisdiction over this matter.

Pennsylvania Rule of Appellate Procedure 313 defines a collateral order

as “an order separable from and collateral to the main cause of action where

the right involved is too important to be denied review and the question

presented is such that if review is postponed until final judgment in the case,

the claim will be irreparably lost.” Pa.R.A.P. 313(b). An appeal from a

collateral order may be taken as of right. Pa.R.A.P. 313(a). If an interlocutory

order does not meet the definition of a collateral order under Rule 313, we

cannot exercise jurisdiction over the matter.2 Rae v. Pennsylvania Funeral

Directors Ass’n, 977 A.2d 1121, 1125 (Pa. 2009). However, our High Court

2 This appeal does not constitute a final order under Pa.R.A.P. 341 or an interlocutory order as of right under Pa.R.A.P. 311. Further, Appellant did not seek an interlocutory appeal by permission under Pa.R.A.P. 312, 1311, or 42 Pa.C.S. § 702(b). Thus, our only avenue to exercise jurisdiction over this appeal is governed by the collateral order doctrine.

-5- J-A14039-17

noted that the United States Supreme Court has warned against an over-

utilization of the collateral order doctrine so that collateral orders did not work

to undermine the final order rule. Id. at 1126 (citing Coopers & Lybrand v.

Livesay, 437 U.S. 463 (1978)). Hence, “the collateral order doctrine is to be

construed narrowly, and we require every one of its three prongs to be clearly

present before collateral appellate review is allowed.” Id. at 1126 (citation

omitted). We emphasize that an appeal must satisfy each prong of the

collateral order doctrine to invoke this Court’s jurisdiction.

With regard to the third prong of the doctrine, we observe that a claim

will be irreparably lost if it is not “fully remediable after final judgment.”

Commonwealth v. Blystone, 119 A.3d 306, 313 (Pa. 2015). Further,

[t]o satisfy this element, an issue must actually be lost if review is postponed. Orders that make a trial inconvenient for one party or introduce potential inefficiencies, including post-trial appeals of orders and subsequent retrials, are not considered as irreparably lost. An interest or issue must actually disappear to the processes of trial.

Commonwealth v. Sabula, 46 A.3d 1287, 1293 (Pa.Super. 2012). At this

stage of the litigation, Appellant must choose between complying with the trial

court’s order, and either hire an attorney or produce the necessary written

documentation, or continue along his chosen course of action. If Appellant

maintains his belief that his signature is sufficient to satisfy the dictates of

Pa.R.C.P. 1042.3, then this claim can be subject to an appeal from a final

order. It is from that order that this appeal properly lies.

-6- J-A14039-17

If Appellant remains unwavering in his conviction that his signature was

sufficient under Rule 1042.3, then, as the procedural posture indicates,

Appellees would move to strike Appellant’s certificate of merit. This motion

would likely be granted, provoking Appellees to file a notice of intent to enter

judgment of non pros under Pa.R.C.P. 1042.6, as they have already attempted

to do at an earlier stage of this proceeding. Presuming that the trial court

would grant such a motion, Appellant could then appeal from the entry of

judgment non pros, raising the same issue before us now. Alternatively,

Appellant could move to strike or open the entry of judgment non pros,

contending that the court erred in not considering his signature sufficient

under Rule 1042.3. If the court were to deny that motion, then again,

Appellant would have recourse to appeal raising this very same claim. See

Ditch v. Waynesboro Hosp., 17 A.3d 310 (Pa. 2011) (per curiam) (affirming

Superior Court order in case appealed from denial of party’s petition to open

and/or strike the judgment of non pros). As those appeals would be taken

from the entry of a final order, Appellant’s current protestations would not be

irreparably lost if review were postponed.

Finally, even if Appellant were to comply with the court’s order, and this

matter were to proceed to trial, this claim may still garner appellate review

under one of two well-established exceptions to the mootness doctrine.

Appellate review of an otherwise moot claim is subject to the court’s discretion

when “the issue presented is one of great public importance or is one that is

capable of repetition yet evading review.” Association of Pennsylvania

-7- J-A14039-17

State College and University Faculties v. Pennsylvania Labor Relations

Bd., 8 A.3d 300, 305 (Pa. 2010) (citation omitted). Although the decision to

review such a claim is discretionary, it does appear that Appellant’s claim

raises an issue that is “capable of repetition yet evad[es] review.” Id. That

is to say, we are not convinced that our denial of review at this juncture

necessarily entails that the claim would evade review altogether.

Our learned Dissent contends that this appeal satisfies the collateral

order doctrine, relying, in part, on Shearer v. Hafer, 135 A.3d 637, 642

(Pa.Super. 2016), appeal granted, 157 A.3d 477 (Pa. 2016),3 for the

proposition that this matter implicates Appellant’s right to counsel, which, it

claims, “is undeniably too important to be denied review.” Dissenting

Memorandum, at 10 (citing Shearer, supra). Even assuming that the Dissent

is correct in this regard, an appeal must satisfy each prong of the collateral

order doctrine, regardless of the import of the rights affected. Rae, supra.

Thus, assuming, arguendo, that we concur with the Dissent that this matter

involves an important right, our agreement in this regard does not forestall

the conclusion that this matter fails to satisfy the collateral order doctrine.

Moreover, Shearer is readily distinguishable from the case sub judice.

First, the plaintiffs in Shearer argued that they had a right to the presence of

counsel during the entirety of an independent neuropsychological

3 The High Court granted review of this Court’s holdings on the merits of the Shearer’s claims. Thus, our application of the collateral doctrine rule therein, is not under review.

-8- J-A14039-17

examination, which according to the neuropsychologist therein, breached

certain ethical standards governing the practice. The trial court disagreed

with the plaintiffs, ruling that their attorney could only be present for a portion

of the examination. The plaintiffs appealed that interlocutory order, and

argued that collateral order doctrine supported this Court’s jurisdiction. This

Court determined that the plaintiffs appeal was a collateral order, in part,

because the right to counsel “is undeniably too important to be denied review.”

Shearer, supra at 642.

Here, in contrast, there is no dispute that Appellant will be represented

by counsel at all times, since he himself is an attorney. This dispute centers

upon whether the rules of procedure apply to him, as a self-represented pro

se litigant, differently than other pro se litigants. Unlike Shearer, which

directly implicated the right to counsel, this matter involves the extent and

interpretation of a procedural rule as it applies to an attorney. As such, the

import of the interest at play herein is not as firmly established as that at issue

in Shearer.

Second, in Shearer, this Court determined that the plaintiffs’ claim

would be irreparably lost because, once trial began, their ability to have

counsel present during a pre-trial independent neuropsychological

examination would necessarily be lost. Shearer, supra at 642. Simply, one

cannot take back an independent examination after it has been completed.

Here, as noted above, if Appellant maintains his “steadfast” belief that Rule

-9- J-A14039-17

1042.3 is inapplicable, Trial Court Opinion, 10/27/16, at 2, he will have the

opportunity to appeal that issue from a final order.

Respectfully, the learned Dissent does not consider the outcome of this

matter if Appellant were to maintain his current argument, but rather,

determines that this issue will be “irreparably lost” only in the context of

Appellant’s presumed decision to hire counsel or litigate Dr. Leifer’s certificates

of merit. Dissenting Memorandum, at 10-11. Indeed, the Dissent

acknowledges that Appellant must decide whether to comply with Rule 1042.3

or allow the suit to be dismissed, but does not follow that line of reasoning to

its logical conclusion, i.e., that Appellant can appeal this exact issue from the

final order dismissing his suit. We reiterate that the collateral order doctrine

is to be construed narrowly so it does not consume the final order rule, Rae,

supra, and it is not intended to salvage a litigant’s suit or make that suit

economically efficient. Sabula, supra. Accordingly, we are not persuaded

by the Dissent’s contention that this matter would be “irreparably lost” if not

considered now.

In summary, we do not find that Appellant’s claimed errors would be

irreparably lost if collateral review was denied. Accordingly, this appeal does

not constitute a collateral order pursuant to Pa.R.A.P. 313, and we lack

jurisdiction to consider the merits of Appellant’s issues at this stage of the

case.

Appeal quashed.

P.J.E. Bender joins the memorandum.

- 10 - J-A14039-17

Judge Shogan files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/27/2017

- 11 -