J-A15006-21
2021 PA Super 209
TAMEKA GREEN : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THE TRUSTEE OF THE UNIVERSITY : OF PENNSTYVANIA D/B/A PENN : MEDICINE AND PENN PRESBYTERIAN : No. 2160 EDA 2020 MEDICAL CENTER, LEONARD E. : ROSENFELD & ASSOCIATES D/B/A : ROSENFELD AND MARON MEDICAL : ASSOCIATES, AND DR. LEONARD : ROSENFELD, D.O. : : : APPEAL OF: JARED A. JACOBSON, : ESQ. :
Appeal from the Order Entered September 25, 2020 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 170701368
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
OPINION BY BOWES, J.: FILED OCTOBER 19, 2021
Jared A. Jacobson, Esquire appeals from the September 25, 2020 order
imposing monetary and injunctive sanctions against him pursuant to Pa.R.C.P.
1042.9, for violation of the certificate of merit requirement in professional
liability actions set forth in Pa.R.C.P. 1042.3(a). After careful review, we
vacate the order and remand.
The following is a cautionary tale for attorneys who venture outside their
area of expertise into unfamiliar specialized areas of litigation without
educating themselves on the applicable rules and law. On July 14, 2017, J-A15006-21
Attorney Jacobson filed a complaint on behalf of Tameka Green sounding in
both medical malpractice and intentional torts. Ms. Green alleged that
Leonard Rosenfeld, D.O., an internist referred to her by employees or agents
of the Trustee of the University of Pennsylvania d/b/a Penn Medicine and Penn
Presbyterian Medical Center (“Penn Medicine”), hypnotized and sexually
assaulted her. Ms. Green’s claims against Dr. Rosenfeld and his professional
corporation (collectively “Dr. Rosenfeld”) sounded in medical negligence and
lack of informed consent (the “medical malpractice claims”), and battery and
intentional infliction of emotional distress (the “intentional tort claims”).
Negligence claims against Penn Medicine were based upon theories of
respondeat superior and ostensible agency.
Mr. Jacobson appended to the complaint one certificate of merit
certifying that an appropriately licensed professional had supplied a written
statement to him that there was “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.” Certificate
of Merit (quoting Pa.R.C.P. 1042.3(a)(1)). Dr. Rosenfeld and Penn Medicine
moved to strike the certificate of merit on the ground that Pa.R.C.P. 1042.3
requires that a separate certificate be filed as to each defendant.
Consequently, the trial court granted Mr. Jacobson leave to file the required
certificates of merit.
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Shortly after the close of the pleadings and discovery, Dr. Rosenfeld
filed a motion for summary judgment alleging that without expert standard of
care testimony, Ms. Green could not make out a prima facie medical
malpractice case. Penn Medicine also moved for summary judgment echoing
that the lack of expert testimony was fatal. Additionally, Penn Medicine
decried the lack of proof of ostensible agency and argued that there was no
recognized cause of action for negligent referral and no vicarious liability for
intentional torts committed by Dr. Rosenfeld as a matter of law.
On October 3, 2019, the trial court granted Penn Medicine’s motion for
summary judgment, dismissing all claims with prejudice, but denied Dr.
Rosenfeld’s motion after concluding that there were genuine issues of material
fact. At that time, the trial court outlined three options available to Ms. Green
and advised counsel for Ms. Green to choose whether she would proceed on
the medical malpractice claims, which required an expert report, or litigate
the battery claim, or pursue the intentional infliction of emotional distress
claim, neither of which required an expert report.1 See Order, 10/16/19, at
1. By correspondence dated November 18, 2019, Mr. Jacobson advised the
court that Ms. Green would pursue the medical malpractice claims, thus
abandoning the intentional tort claims. In response, the trial court ordered
____________________________________________
1 We cannot fathom, and it is unclear from the record, why the trial court required Ms. Green to choose between prosecuting her medical malpractice claims and her intentional tort claims.
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Ms. Green to present a proper expert report to opposing counsel and the court
by January 12, 2020, a deadline that was later extended.
Ms. Green subsequently produced the expert report of David L. Fink, a
psychiatrist. Dr. Fink opined, with a reasonable degree of medical certainty,
that Dr. Rosenfeld’s treatment fell below the standard of care when he decided
to use relaxation techniques, and further, when he failed to obtain Ms. Green’s
informed consent before utilizing the techniques. Nonetheless, on March 5,
2020, Dr. Rosenfeld filed a second motion for summary judgment alleging that
the standard of care opinion of a psychiatrist was inadmissible against a
specialist in internal medicine, and hence, Ms. Green could not, as a matter of
law, meet her evidentiary burden.
Instead of filing a response styled as a response in opposition to
summary judgment, Mr. Jacobson filed a motion for extraordinary relief in
which he alleged that Dr. Rosenfeld’s conduct was within the knowledge of a
layperson and no expert testimony was required. He also sought an extension
of time and the opportunity to retain an expert in internal medicine. The trial
court denied the motion and granted Dr. Rosenfeld’s motion for summary
judgment as “unopposed” on June 8, 2020. Ms. Green filed a motion for
reconsideration, which the trial court denied. No appeal was taken from the
order granting summary judgment. Hence, the underlying litigation was
concluded.
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On June 15, 2020, attorneys for Dr. Rosenfeld sent a request pursuant
to Pa.R.C.P. 1042.9 to Attorney Jacobson for the written statement from a
licensed professional upon which he relied in filing the certificate of merit
against Dr. Rosenfeld.2 Mr. Jacobson did not respond. Consequently, Dr.
Rosenfeld filed a motion for sanctions. See Pa.R.C.P. 1042.9(b) (providing in
pertinent part that a “court may impose appropriate sanctions . . . if the court
determines that an attorney violated Rule 1042.3(a)(1)” and that “such
conduct was a cause in bringing about the harm”). Attorney Jacobson did not
file a response to the motion for sanctions. Hence, the trial court treated the
motion as “unopposed,” granted it, and imposed all the sanctions requested
by Dr. Rosenfeld, inter alia, $84,459.29 in attorney fees and costs associated
with defending the lawsuit and injunctive relief. See Order, 9/25/20.
On October 19, 2020, Attorney Jacobson filed a motion for
reconsideration asking the trial court to vacate and reconsider its order
imposing sanctions. In that filing, Mr. Jacobson offered the following
explanation for his failure to file a timely response in opposition to the
sanctions motion. He averred that he was unaware that the motion for
sanctions had been filed until after it had been granted. He explained that his
former administrative assistant had devised a system that automatically
directed electronic notices of court filings to individual email folders for each
2 Penn Medicine did not request a copy of the statement relied upon nor pursue
sanctions against Mr. Jacobson.
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case. When his administrative assistant worked for him, she monitored all
emails and brought them to his attention. However, his assistant had left his
employ and Mr. Jacobson acknowledged that he had difficulty navigating the
system in the pandemic, along with a busy law practice and three children.
Consequently, he did not consistently review every email folder. As more than
thirty days had elapsed since the conclusion of Ms. Green’s case when the
motion for sanctions was filed, Mr. Jacobson did not review the email folder
for this case and, hence, was unaware of the motion for sanctions.
Attorney Jacobson also appended to the motion his proposed response
in opposition to the motion for sanctions. See Motion for Reconsideration,
10/19/20, at Exhibit F. He averred therein that any alleged violation of the
certificate of merit requirement was not willful on his part. Furthermore, while
he could not locate a written statement from the medical professional he
consulted, he offered an affidavit from that physician attesting that she had
orally advised him that Dr. Rosenfeld’s conduct fell outside the standard of
care for an internist. Moreover, since Mr. Jacobson also pled intentional tort
claims on Ms. Green’s behalf for which no certificate of merit was required, he
maintained that not all attorney fees and costs incurred by counsel for Dr.
Rosenfeld were causally related to the certificate of merit. Mr. Jacobson
argued that the trial court should not have imposed fees incurred before the
intentional tort claims were abandoned. In addition, Mr. Jacobson argued that
Dr. Rosenfeld failed to establish that any increase in his insurance premiums
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was due solely to the filing of the malpractice claims, not to the filing of the
lawsuit itself, which included viable intentional tort claims. Absent such proof,
Mr. Jacobson maintained that the increased premium had no causal nexus to
the certificate of merit. Finally, Mr. Jacobson contended that the sanction
ordering him to contact various media outlets, advise them that his client’s
lawsuit lacked merit, and request that they remove articles about the lawsuit
from their websites was violative of his First Amendment right to free speech
and his duty of loyalty to his client.
Dr. Rosenfeld filed a response to the motion for reconsideration. He
maintained, inter alia, that since the medical malpractice claims were pursued
from the inception of the case, he was entitled to sanctions in the form of
attorney fees, costs, and expenses from the commencement of the litigation.
He also argued that the injunctive relief directing Mr. Jacobson and Ms. Green
“to notify all publications of the lack of merit of their claims and to request
these publications be removed,” was entirely appropriate.3 Order, 9/25/20.
When the trial court did not immediately rule on Mr. Jacobson’s motion
for reconsideration, Mr. Jacobson filed a notice of appeal on October 23, 2020,
3 Pa.R.A.P. 1042.9 authorizes sanctions against an attorney who violates Rule
1042.3(a)(1) and (2) by improperly filing a certificate of merit, but not the client.
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to preserve his appellate rights.4 Three days later, the trial court denied the
motion for reconsideration, stating that after reviewing the motion and the
response thereto, the motion was “moot” as the case was on appeal. Order,
10/26/20, at 1.
The trial court did not issue a Pa.R.A.P. 1925 order, but it filed an opinion
on December 7, 2020. Mr. Jacobson presents three issues for our review:
I. Whether the trial court erred in sanctioning Mr. Jacobson as a threshold matter where the record did not evince bad faith or otherwise support a finding that sanctions should issue?
II. Whether the extent of the trial court’s sanctions (which amounted to $84,459.29) were excessive, unconscionable, and unsupportable, and otherwise legally improper given the nature of the alleged offense, the underlying facts and the trajectory of Plaintiff’s case, and the limited (if any) connection between the sum of the sanctions awarded and the allegedly sanctionable conduct at issue?
III. Whether the portion of the trial court’s sanctions order which mandated that Mr. Jacobson contact “all websites/publications” to advise those outlets that the facts underlying his client’s case were “not meritorious” and that the media outlets must “rescind[]” or otherwise “take[] down” news stories covering the underlying case, violated Appellant’s First Amendment rights, his client’s right to due process, and public policy and required Mr. Jacobson to violate his ethical obligation under the Pennsylvania Supreme Court’s Rules of Professional Conduct?
Appellant’s brief at 4-5.
4 See Pa.R.A.P. 1701(b)(3), which provides that the filing of a timely motion for reconsideration does not toll the running of the thirty-day appeal period. However, if the motion is granted before the expiration of the thirty-day appeal period, any appeal that has been filed will be held in abeyance.
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Preliminarily, we must address Dr. Rosenfeld’s claim that Mr. Jacobson
waived all arguments regarding trial court error in granting sanctions pursuant
to Pa.R.C.P. 1042.9 when he failed to respond to the motion for sanctions. He
maintains that Mr. Jacobson had a duty to respond to the motion and cites
Meyer-Chatfield Corp. v. Bank Fin. Servs. Group, 143 A.3d 930, 939
(Pa.Super. 2016) for the proposition that Mr. Jacobson’s failure to respond
constituted a waiver of any arguments that could have been raised in
opposition to the motion. He argues further that since Mr. Jacobson raised
his arguments for the first time in a motion for reconsideration, he failed to
present the arguments to the trial court, and hence, they are not preserved
for appellate review under Pa.R.A.P. 302(a). See Appellee’s brief at 3 (citing
Stange v. Janssen Pharm., Inc., 179 A.3d 45, 63 (Pa.Super. 2018) et al).
Mr. Jacobson acknowledges that he did not respond to the motion for
sanctions because he “failed to follow best practices regarding electronic court
notices” and was unaware of its filing. Appellant’s brief at 12. However, Mr.
Jacobson contends that his proposed response to the motion for sanctions,
which was appended to his motion for reconsideration, adequately identified
the reasons why he objected to the sanctions to permit the trial court to
address those issues in its opinion. Thus, he maintains that the purpose of
requiring that issues first be presented to the trial court was fulfilled.
Moreover, he contends that his challenge to the injunctive relief implicates
inherent limitations on the trial court’s power that cannot be waived. Id. at
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19-20 (citing Dover v. Phila. Hous. Auth., 465 A.2d 644, 649 (Pa.Super.
1983). Finally, Mr. Jacobson reminds us that we may exercise our discretion
under Pa.R.A.P. 105(a) “to disregard the requirements or provisions of any of
these rules in a particular case on application of a party or on its own motion
and may order proceedings in accordance with its direction.” Appellant’s brief
at 18.
We note preliminarily that the trial court did not find Mr. Jacobson’s
arguments waived. In fact, the trial court expressly stated in its order denying
reconsideration that it had reviewed Mr. Jacobson’s motion and the response
thereto but denied it as “moot” because an appeal had been filed. The motion
was not moot, and denial on that basis was incorrect.5 Since the motion was
presented to the trial court while the court still retained jurisdiction to rescind
or modify its order, we find the arguments were raised in the trial court for
purposes of Pa.R.A.P. 302(a). See 42 Pa.C.S. § 5505 (trial court has
jurisdiction to modify or rescind a prior order for thirty days).
However, Dr. Rosenfeld cites numerous authorities for the proposition
that an issue cannot be raised for the first time in a motion for reconsideration.
5. In In re Gross, 382 A.2d 116, 119 (Pa. 1978), the Supreme Court explained
that the mootness doctrine requires that “an actual controversy . . . be extant at all stages of review, not merely at the time the complaint is filed.” (quoting G. Gunther, Constitutional Law 1578 (9th ed. 1975). Cases or issues present mootness problems when litigants who had standing to sue at the outset, and who may still have standing, no longer have any stake in the outcome due to intervening changes in the facts or law.
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In our view, however, this was not a motion for reconsideration. Typically, a
motion for reconsideration is filed by the losing party after litigating a motion
or petition in which the party asks the court to reconsider its arguments. In
that context, courts have repeatedly held that where a party proffers a new
argument that could have been raised before in its motion for reconsideration,
that argument will not be considered on appeal. In this instance, a motion for
sanctions was filed to commence an ancillary proceeding, Mr. Jacobson did
not file a response in opposition as he was unaware of the filing, and the court
granted the motion as unopposed, thus concluding the proceeding. The
motion for reconsideration was filed in an attempt to explain the default and
persuade the trial court to vacate the order and allow him to file a response.
The motion for reconsideration herein functioned much like a petition to open
a default judgment and application to file a response nunc pro tunc.
As we acknowledged in Hongwu Xu v. Lee, 229 A.3d 333, (Pa.Super.
2020) (non-precedential decision), default judgments are not favored at law
or in equity. Hence, we liberally apply equitable principles that favor allowing
parties to defend causes of action on the merits in deciding whether to open
a default judgment. A default judgment will be opened “if the moving party
has (1) promptly filed a petition to open the default judgment, (2) provided a
reasonable excuse or explanation for failing to file a responsive pleading, and
(3) pleaded a meritorious defense to the allegations contained in the
complaint.” Digital Communs. Warehouse, Inc. v. Allen Invs., LLC, 223
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A.3d 278, 285 (Pa.Super. 2019) (quoting Myers v. Wells Fargo Bank, N.A.,
986 A.2d 171, 175-76 (Pa.Super. 2009)).
The test for permitting nunc pro tunc relief has similar elements. Nunc
pro tunc relief may be granted when a litigant demonstrates that late filing
was due to non-negligent circumstances on counsel’s part, the document was
filed shortly after the date it was due, and the other party was not prejudiced
by the delay. See Vietri ex rel. Vietri v. Delaware Valley High School,
63 A.3d 1281, 1284 (Pa.Super. 2013). Nunc pro tunc relief has been granted
to allow the late filing of a variety of pleadings and legal documents. See e.g.
Commonwealth v. Parrish, 224 A.3d 682, 692 (Pa. 2020) (noting that in a
civil case, “[u]pon application of the appellant and for good cause shown, an
appellate court may remand . . . for the filing nunc pro tunc of a [Rule
1925(b)] Statement”); Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001)
(holding appeal nunc pro tunc permitted where late filing of notice of appeal
was due to non-negligent circumstances related to appellant or counsel, notice
was filed shortly after expiration date, and there was no prejudice to
appellee); Eathorne v. State Ethics Comm'n, 960 A.2d 206, 211
(Pa.Cmwlth. 2008) (permitting untimely filing of answer nunc pro tunc).
As we find the motion for reconsideration in this case to be analogous
to a petition to open a default judgment or an application for nunc pro tunc
relief, we will treat it as such, rather than as a motion for reconsideration. It
is the nature of the relief requested, not the styling of a motion, that controls.
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See e.g. City of Philadelphia v. Albert's Rest., Inc., 176 A.3d 367, 374
(Pa.Cmwlth. 2017) (holding motion for reconsideration can be treated as a
post-trial motion where the relief requested is of the type contemplated in
Pa.R.C.P. 227.1); accord Bennett v. Rose, 183 A.3d 498, 502 (Pa.Cmwlth.
2018) (holding landlord’s motion for reconsideration functioned as a post-trial
motion because it requested relief consistent therewith and reasoning that
courts should be flexible). Thus, we find the arguments made therein and in
the appended response in opposition preserved for appellate review.6
We turn now to the merits. We review a trial court’s ruling on a motion
for sanctions for an abuse of discretion. See Dean v. Dean, 98 A.3d 637,
644 (Pa.Super. 2014) (stating trial court has “significant discretion” in
6 Mr. Jacobson filed the motion seeking relief just days after learning that the
motion for sanctions had been filed and granted. He proffered a response in opposition to the motion for sanctions containing defenses to the motion. We see no discernible prejudice to Dr. Rosenfeld. As to whether Mr. Jacobson’s lapse was “non-negligent,” we note the following.
Mr. Jacobson provided a detailed explanation for his inadvertent failure to file a timely response in opposition to the sanctions motion. The motion for sanctions was filed at the height of a pandemic when attorneys and their support staffs worked remotely and communicated with the court and opposing counsel electronically. We appreciate that there may have been an inundation of emails, and that consequently, new systems were devised to manage them. The loss of staff, especially the administrative assistant familiar with the new system, would be a hardship to a small law practice. In these unique and difficult circumstances, Mr. Jacobson’s failure to timely respond was more akin to counsel’s oversight rather than negligence. See Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979) (finding appeal papers placed in folder of secretary’s desk who became ill and left work was non- negligent failure to file timely appeal).
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determining whether to impose sanctions pursuant to Pa.R.C.P. 1023.1).
However, “[i]n performing an abuse of discretion review, when a trial court’s
application of the underlying law is called into question . . . it heightens [the]
standard of review [to] de novo, and [the] scope of review is plenary as to the
underlying question of law.” Sommers v. UPMC, 185 A.3d 1065, 1071
(Pa.Super. 2018) (internal quotations marks omitted). “An abuse of discretion
occurs when a trial court, in reaching its conclusions, overrides or misapplies
the law, or exercises judgment which is manifestly unreasonable, or the result
of partiality, prejudice, or ill will.” Vietri, supra, at 1284.
At issue herein was whether Mr. Jacobson should be sanctioned for his
alleged failure to comply with the certificate of merit requirement in a
professional liability negligence action outlined in Pa.R.C.P. 1042.3(a)(1), (2),
and (3):
(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
(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable professional standard is based solely
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on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard,
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
Pa.R.C.P. 1042.3(a) (1-3). Mr. Jacobson certified pursuant to subsection
(a)(1) that an appropriate medical professional had supplied a written
statement to him that there was a reasonable probability that Dr. Rosenfeld’s
conduct fell outside acceptable standards and caused harm to Ms. Green. By
choosing this option, Attorney Jacobson was implicitly acknowledging that
expert testimony was required to make out a prima facie case.7
When a plaintiff has filed a certificate of merit as to a defendant and
that defendant is subsequently dismissed from the case, the defendant may
request in writing that the plaintiff provide him within thirty days with a copy
of the written statement upon which he based the certificate of merit.
Pa.R.C.P. 1042.9(a). If the request is not satisfied,
(b) A court may impose appropriate sanctions, 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 ____________________________________________
7 Arguably, Mr. Jacobson could have filed a certificate of merit pursuant to subsection (a)(3), certifying that expert testimony from a licensed professional was unnecessary for prosecution of a medical malpractice case allegedly involving non-consensual sexual conduct by a physician upon a patient.
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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. 1042.9(b). Hence, prior to imposing sanctions, Rule 1042.9(b)
requires the trial court to determine whether there has been a violation, and
if so, whether the improper certification “was a cause in bringing about the
harm.” If so, the court may impose “appropriate sanctions,” such as the
sanctions delineated in Rule 1023.4, which apply when attorneys sign
documents certifying that the documents are not being presented for an
improper purpose such as harassment, delay, or to increase litigation costs or
raise claims or defenses that they warrant are proper under existing law, when
in fact, they are baseless filings.
The conduct deemed sanctionable under Rule 1023.4, an attorney
signing or certifying a document either falsely or for an improper purpose, is
analogous to the conduct prohibited by the certificate of merit rules. As there
is a dearth of authority governing sanctions under Rule 1042.9, we find helpful
the Supreme Court’s direction to look to the sanctions specified in Rule 1023.4
in fashioning sanctions under Rule 1042.9.
The Comment to Rule 1023.1 acknowledges that the trial court has
“significant discretion” in determining what sanctions should be imposed for a
violation, but “the sanctions should not be more severe than reasonably
necessary to deter repetition of the conduct.” Pa.R.C.P. 1023.1 Comment.
Rule 1023.4 permits a court to award attorney fees and expenses incurred in
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presenting the motion for sanctions and, in the proper situation where
deterrence is warranted, to order payment of “some or all of the reasonable
attorney’s fees and other expenses incurred as a direct result of the violation.”
Pa.R.C.P. 1023.4(a)(2)(iii). See Comment (“Any such award to the movant,
however, should not exceed the expenses and attorney’s fees for the services
directly and unavoidably caused by the violation of the certification
requirement.”). Finally, Rule 1023.4 permits trial courts to impose sanctions
of a “nonmonetary nature” when appropriate. Pa.R.C.P. 1023.4(a)(2)(i). For
instance, the court may direct that “offensive litigation documents, or portions
thereof, be stricken as a sanction for rules’ violations, where appropriate.”
Pa.R.C.P. 1023.4(a)(2).
The comment to Rule 1023.1 provides a list of factors that a court may
consider in determining whether sanctions are appropriate: “whether the
improper conduct was willful or negligent; whether it was part of a pattern of
activity or an isolated event; whether it infected the entire pleading or only
one particular count or defense; whether the person has engaged in similar
conduct in related litigation; whether it was intended to injure; what effect it
had on the litigation process in time or expense; whether the responsible
person is trained in the law; what amount is needed to deter that person from
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repetition in the same case; and what amount is needed to deter similar
activity by other litigants.”8
In this case, after Mr. Jacobson failed to produce the written statement
from an appropriate medical professional upon which he purportedly relied in
filing his certificate of merit, Dr. Rosenfeld filed a motion for sanctions
pursuant to Pa.R.C.P. 1042.9. He requested that the court impose monetary
sanctions consisting of (1) all attorney fees and costs incurred throughout the
litigation, an amount in excess of $80,000; (2) attorney fees and costs
associated with the motion for sanctions; and (3) the increase in premium for
Dr. Rosenfield’s professional liability insurance due to the lawsuit. In addition,
Dr. Rosenfeld asked the trial court to order Mr. Jacobson to advise the media
that the lawsuit lacked merit and request the various outlets to remove articles
about the lawsuit.
The court granted the motion and imposed all the sanctions requested.
In support of its order, the trial court offered the following: “The Unopposed
Motion filed by the Rosenfeld Defendants is detailed, itemized and fully
documents the harm caused by the conduct of attorney Jared A. Jacobson.”
8 In City of Philadelphia v. Fraternal Order of Police Lodge No. 5 (Breary), 985 A.2d 1259, 1270 (Pa. 2009), our Supreme Court approved four factors that trial courts should consider when deciding whether to impose a sanction such as dismissal of the action for non-compliance with discovery and other pre-trial procedural rules: (1) the number, nature, and severity of the violations; (2) the defaulting party’s willfulness or bad faith; (3) prejudice to the opposing party; and (4) the ability to cure the prejudice.
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Trial Court Opinion, 12/7/20, at 3. Thus, while the trial court reviewed the
motion and its attachments, there is no indication that it considered the factors
outlined in the comment to Rule 1023.1 or contemplated whether the
sanctions requested were causally related to the improper certificate of merit.
Admittedly, Mr. Jacobson did not file a response to the Rule 1042.9
motion for sanctions.9 However, such a motion is not a pleading and the
failure to file a response does not render the facts asserted therein admitted.
See Pa.R.C.P. 1029(b) (only averments in a pleading to which a responsive
pleading is required are admitted when not denied specifically or by necessary
implication).
In this instance, the trial court was charged with determining whether
sanctions were warranted and, if so, imposing appropriate sanctions for the
harm caused by the improper certificate of merit. The fact that the motion
was “unopposed” did not relieve the trial court of its judicial duty to exercise
its discretion, make the necessary findings, and explain its rationale for the
decision. See e.g. Carmen Enters. v. Murpenter, LLC, 185 A.3d 380, 391
(Pa.Super. 2018) (fact that counsel acquiesced in an opponent’s request for
attorney fees was not dispositive of what the court could decide was fair and
reasonable and did not relieve the court of its “judicial duty to decide the
9 Where local rules require that a response be filed by any party opposing a
motion governed by Pa.R.C.P. 208.3(b), the purpose of the response requirement is to indicate that opposition. See Pa.R.C.P. 208.3 Comment.
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reasonableness and fairness of the fee request”). Here, the trial court treated
the allegations in the motion for sanctions as facts deemed admitted and found
them legally sufficient to support the sanctions requested. There is no
indication that the trial court conducted any analysis of what harm was caused
by Mr. Jacobson’s conduct or whether or what sanctions were appropriate. In
short, the trial court failed to exercise its discretion under Rule 1042.9, which
is itself an abuse of discretion. See Pittman v. Pa. Bd. of Prob. & Parole,
159 A.3d 466, 478 (Pa. 2017) (holding that Board’s failure to exercise
statutory discretion is itself an abuse of discretion).
For these reasons, we vacate the order and remand for the trial court to
determine whether Mr. Jacobson failed to comply with Pa.R.C.P. 1042.3.10 In
arriving at that decision, the court should consider the various factors set forth
in the comment to Rule 1023.1. If the court should find that Mr. Jacobson
violated Rule 1042.3, it must then decide whether that conduct was a cause
in bringing about the harms alleged and what sanctions are appropriate. The
trial court may hold a hearing or take such other action as it deems necessary
to make its determination.
10 Under the doctrine of substantial compliance, the trial court may “overlook any procedural defect that does not prejudice a party’s rights.” Womer v. Hilliker, 908 A.2d 269, 276 (Pa. 2006). In Womer, the plaintiff did not file a certificate of merit in a medical malpractice case. The High Court found that the fact that plaintiff provided the defendant with an expert report in discovery did not constitute substantial compliance with the certificate of merit requirement because he completely failed to attempt to comply with Pa.R.C.P. 1042.3.
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Based on our review of the record, we offer the following observations.
While the motion for sanctions was an exhaustive list of Attorney Jacobson’s
missteps in the litigation of this case, it is not clear from the motion that his
failure to obtain and provide a written statement from a licensed medical
provider for purposes of the certificate of merit was the cause of all the harm
and damages Dr. Rosenfeld asserted. We note that the same facts that
formed the basis of the medical negligence claims also supported the
intentional tort claims of battery and intentional infliction of emotional
distress. No certificate of merit was required for the latter claims. Since there
could be no nexus between those intentional tort claims and the certificate of
merit, the trial court should determine whether all attorney fees incurred from
the inception of the lawsuit were causally related to the failure to obtain a
written statement from a properly licensed medical professional. Specifically,
the trial court should consider whether Dr. Rosenfeld has a colorable claim to
the attorney fees and costs incurred prior to the abandonment of the
intentional tort claims on or about November 18, 2019, as arguably those fees
would have been incurred regardless of the medical malpractice claims.11 A
similar analysis should be undertaken to determine whether it was the filing
11 Arguably, Mr. Jacobson could have filed a certificate of merit to the effect
that no expert opinion was required to establish that hypnotizing a patient and sexually molesting her was a violation of the standard of care for an internist.
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of the lawsuit generally, or the medical malpractice claims specifically, that
triggered an increase in Dr. Rosenfeld’s insurance premium.
Furthermore, the trial court should articulate how an improperly
supported certificate of merit was causally related to the media’s reporting of
the lawsuit. The articles relied upon by the trial court in granting the injunctive
relief requested consisted largely of factual allegations quoted from the
publicly available complaint. Dr. Rosenfeld’s motion for sanctions and
attached documentation fails to distinguish between attorney fees and
damage to reputation flowing from media coverage of an allegedly
unsupported medical malpractice case and viable intentional tort claims. Even
assuming the trial court finds some causal connection between an improper
certificate of merit and the press coverage the case received, the trial court
should consider whether the injunctive relief sought by Dr. Rosenfeld is legally
permissible and appropriate.
Finally, the fact that the medical negligence, informed consent, battery,
and intentional infliction of emotional distress claims survived one motion for
summary judgment would suggest that they were not meritless. Summary
judgment was granted only after Mr. Jacobson abandoned the intentional tort
claims in favor of exclusively pursuing the medical negligence claims but failed
to obtain an expert report from a properly licensed professional.
For the foregoing reasons, we vacate the order and remand for the trial
court to determine whether Mr. Jacobson’s conduct warrants sanctions, and if
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so, what harm was causally related to Mr. Jacobson’s failure to possess a
written statement from an appropriately licensed medical professional for
purposes of the certificate of merit, and impose appropriate sanctions and the
reasoning for its decision.
Order vacated. Case remanded for further proceedings consistent with
this Opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/19/2021
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