Gudalefsky, C. v. Nipple, J.

• Court: Superior Court of Pennsylvania
• Decided: June 16, 2015
• Docket: 1696 MDA 2014
• Status: Unpublished

Opinion

J-A14001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHERLENE GUDALEFSKY, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

DR. JOHN NIPPLE, PHYSICIAN WITH COMMUNITY GENERAL OSTEOPATHIC HOSPITAL,

Appellee No. 1696 MDA 2014

Appeal from the Order September 8, 2014 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2013-CV-10101-MM

BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 16, 2015

Cherlene Gudalefsky appeals pro se from the order entered September

8, 2014, denying her petition to open a judgment of non pros awarded in

favor of Dr. John Nipple (Appellee) in this medical malpractice case. We

affirm.

In November 2013, Appellant, proceeding pro se, initiated this action

by writ of summons against Appellee. Appellant filed a complaint in March

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* Retired Senior Judge assigned to the Superior Court. J-A14001-15

2014, alleging medical malpractice resulting in the death of her mother, Ms.

Shirley Homer.1

Appellant did not file a certificate of merit with her complaint.

Accordingly, Appellee filed a notice of his intention to enter a judgment of

non pros.

In April 2014, Appellant filed a document, entitled “Certificate of

Qualified Expert.” The document appears to be a summary report authored

by Dr. Terrance L. Baker, who suggests that Appellee breached the

applicable standard of care during the course of his treatment of Appellant’s

mother.

In May 2014, Appellee filed a praecipe for entry of judgment of non

pros on the ground that Appellant had not filed a proper certificate of merit.

Thereupon, the Dauphin County Prothonotary entered judgment in

Appellee’s favor.

1 Appellant’s complaint fails to conform to our rules of civil procedure in numerous ways. See generally Pa.R.C.P. 1017-1034. Further complicating our review, Appellant has committed similar errors in every filing in both the trial court and this Court. The courts of this Commonwealth are “generally inclined to construe pro se filings liberally.” Commonwealth v. Spuck, 86 A.3d 870, 874 (Pa. Super. 2014) (citing Means v. Housing Auth. of the City of Pittsburgh, 747 A.2d 1286, 1289 (Pa. Cmwlth. 2000)). Nevertheless, pro se litigants are not entitled to any particular advantage, see Warner v. Univ. of Pa. Health Sys., 874 A.2d 644, 648 (Pa. Super. 2005), and “any person choosing to represent [herself] in a legal proceeding must, to a reasonable extent, assume that [her] lack of expertise and legal training will be [her] undoing.” In re Ullman, 995 A.2d 1207, 1212 (Pa. Super. 2010).

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In June 2014, Appellant filed a motion, denied by the trial court for

failing to comply with local rules, and thereafter, an amended motion,

asserting that she had filed a suitable substitute for a certificate of merit and

requesting that the trial court reopen her case. In September 2014, the trial

court denied Appellant’s prayer for relief.2 Appellant timely appealed and

filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued a

responsive opinion.

Initially, we address Appellee’s contention that Appellant has failed to

preserve any challenge to the trial court’s order. In particular, Appellee

contends that Appellant’s Pa.R.A.P. 1925(b) statement does not identify

concisely an error of the trial court but rather presents a broad narrative of

her discontent. See Pa.R.A.P. 1925(b)(4)(ii) (“The [s]tatement shall

concisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues for the judge.”). In our

view, Appellant’s narrative was sufficient to put the trial court, and this

Court, on notice as to the issues she intended to raise on appeal. It does

not hinder appellate review. See Taylor v. Owens-Corning Fiberglas

2 The trial court interpreted Appellant’s amended motion as a petition to open judgment of non pros.

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Corp., 666 A.2d 681, 688 (Pa. Super. 1995). Thus, we decline to find

waiver.3

Following our review of Appellant’s Pa.R.A.P. 1925(b) statement,

appellate brief, and reply brief, it is apparent that Appellant contends the

trial court erred in denying her petition to open judgment of non pros. More

generally, Appellant also disputes the process by which judgment of non

pros was entered against her.

A petition to open judgment of non pros may be brought under

Pa.R.C.P. 3051. According to the rule, the petition must allege facts

showing that (1) the petition is timely filed, (2) there is a reasonable

explanation or excuse for the conduct that gave rise to the entry of

judgment, and (3) there is a meritorious, underlying cause of action. See

Pa.R.C.P. 3051(b).

We review a trial court’s decision under Rule 3051 for an abuse of

discretion. See Womer v. Hilliker, 908 A.2d 269, 279 (Pa. 2006). “This

means that the trial court's decision will be overturned only if [it] reflects

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such

lack of support as to be clearly erroneous.” Id.

3 Appellee also asserts Appellant’s failure to develop a coherent argument or support her contentions with relevant, legal authority. See Pa.R.A.P. 2119(a). Although we note again Appellant’s repeated failures to conform to our procedural rules, we decline to find waiver.

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We examine the court’s decision, mindful that Appellant’s complaint

sounds in medical malpractice. As her claim asserts professional liability,

Appellant was required to “file with the complaint or within sixty days after

the filing of the complaint, a certificate of merit” signed by her. Pa.R.C.P.

1042.3(a). A certificate must certify that the treatment complained of “fell

outside acceptable professional standards.” Pa.R.C.P. 1042.3(a)(1). The

form and content of a certificate is set forth in Rule 1042.10. See Pa.R.C.P.

1042.10 (“The certificate required by Rule 1042.3(a) shall be substantially in

the following form …”).

The requirement to file a certificate of merit is “clear and

unambiguous.” Womer, 908 A.2d at 278. Absent a proper certificate of

merit, following proper notice and upon the praecipe of a defendant, the

prothonotary is empowered to enter judgment of non pros against a plaintiff.

Id. at 272; see also Pa.R.C.P. 1042.6, 1042.7.

According to Appellant, the document she filed, i.e., the “Certificate of

Qualified Expert,” was a timely and suitable substitute for the requisite

certificate of merit. See, e.g., Appellant’s Brief at 3. We disagree.

In Womer, the plaintiff commenced a medical malpractice action but

failed to file a certificate of merit. Womer, 908 A.2d at 272. Judgment of

non pros was entered, but the plaintiff sought to open judgment, asserting

that he had timely served an expert report on the defendant and that the

report met the requirements of a certificate of merit. Id. at 272-73. The

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trial court denied relief, specifically rejecting the plaintiff’s assertion that the

expert report served on the defendant was a suitable substitute for a

certificate of merit. Id. at 274. This Court reversed, see id. at 274-75, but

the Pennsylvania Supreme Court reversed yet again, reinstating the trial

court order. Id. at 280. According to the Supreme Court, the expert report

did not constitute “substantial compliance” with Rule 1042.3 and concluded

as follows:

[T]he trial court acted well within its discretion in finding that Womer did not provide a reasonable excuse under Pa.R.C.P. No. 3051 for not filing a [certificate of merit]. Indeed, in light of the foregoing, we conclude that it would be manifestly unreasonable and therefore, an abuse of discretion … for a trial court to conclude that a plaintiff in Womer's circumstances, making the same arguments, presents a reasonable explanation or legitimate excuse for his failure to file a [certificate of merit.]

Id.

Here, the trial court found that Appellant did not file a certificate of

merit that conforms substantially to the sample provided in Rule 1042.10.

See Trial Court Opinion at 5 (unnumbered). Moreover, in her petition to

open, Appellant did not offer an excuse for this failure. Rather, Appellant

argued, as she does to this Court, that the document she filed was sufficient.

We conclude that Womer is directly on point and, therefore, discern no

abuse of the trial court’s discretion in denying Appellant’s petition to open

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judgment of non pros. See Womer, 908 A.2d at 280; Pa.R.C.P.

3051(b)(2).4

Appellant’s failure to file a proper certificate of merit is determinative.

Nevertheless, we also briefly address Appellant’s contention that her

underlying cause of action is meritorious. See generally, e.g., Appellant’s

Reply Brief at 2-3. Following our review, we must disagree with Appellant’s

position based upon our conclusion that Appellant lacks the capacity to bring

this action in its current form.

Appellant alleges medical malpractice resulting in the death of her

mother. Therefore, Appellant may be entitled to damages pursuant to the

Wrongful Death Act. See 42 Pa.C.S. § 8301(b) (providing that the children

of a deceased may recover damages caused by a wrongful act or ____________________________________________

4 Further, we observe that a pro se litigant incurs the following responsibility:

If a certificate of merit is not signed by an attorney, the party signing the certificate of merit shall, in addition to the other requirements of this rule, attach to the certificate of merit the written statement from an appropriate licensed professional as required by subdivisions (a)(1) and (2). If the written statement is not attached to the certificate of merit, a defendant seeking to enter a judgment of non pros shall file a written notice of intent to enter a judgment of non pros for failure to file a written statement under Rule 1042.11.

Pa.R.C.P. 1042.3(e). Thus, a pro se litigant pursuing a claim of medical malpractice must file both a certificate of merit and a supportive statement from an appropriate expert. Id. Here, Appellant filed a supportive statement but failed to file a certificate of merit. Therefore, Appellant did not comply with Rule 1042.3(e).

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negligence).5 However, “an action for wrongful death shall be brought only

by the personal representative of the decedent” or, if no action is brought

within six months after the death of the decedent, “by any person entitled

by law to recover damages in such action as trustee ad litem on behalf of all

persons entitled to share in the damages.” Pa.R.C.P. 2202(a) & (b).

Here, Appellant is not the personal representative of the decedent.

See Pa.R.C.P. 2201 (defining personal representative to be “the executor or

administrator of the estate of a decedent duly qualified by law to bring

actions within this Commonwealth”). Further, Appellant does not claim to

bring this action in a representative capacity nor has she been appointed a

trustee ad litem. Accordingly, we deem Appellant’s complaint defective.6

Finally, Appellant contests the process employed by Appellee in

securing judgment of non pros. See Appellant’s Brief at 3, 5 & 8. Having

reviewed the procedural history of this case, we discern no error: Appellant

did not file a certificate of merit as required. See Pa.R.C.P. 1042.3(a).

Therefore, Appellee notified Appellant of his intent to enter judgment of non

pros for failure to file a certificate of merit. See Pa.R.C.P. 1042.6(a). No ____________________________________________

5 Appellant acknowledges, “There is not an [e]state.” Appellant’s Reply Brief at 3. Therefore, the Survival Act does not apply here. See 42 Pa.C.S. § 8302. 6 The defect in Appellant’s complaint is not necessarily a fatal flaw. See Usner v. Duersmith, 31 A.2d 149, 150 (Pa. 1943) (permitting amendment of a complaint to conform to Rule 2202(b) after the statute of limitations had run).

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further notice to Appellant was required. See Pa.R.C.P. 1042.6(b). More

than thirty days thereafter, Appellee filed a praecipe with the Dauphin

County Prothonotary, requesting it enter judgment against Appellant. See

Pa.R.C.P. 1042.7(a). Thereupon, the Prothonotary promptly entered

judgment of non pros. Id.

Order affirmed.

Judge Strassburger files a concurring statement.

Jenkins concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/16/2015

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