Kovalev, S. v. Jefferson Health - Northeast

• Court: Superior Court of Pennsylvania
• Decided: May 21, 2025
• Docket: 2974 EDA 2023
• Status: Unpublished

Opinion

J-A28033-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

SERGEI KOVALEV : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JEFFERSON HEALTH - NORTHEAST, : No. 2974 EDA 2023 JEFFERSON HEALTH - NORTHEAST : HEALTH, JEFFERSON FRANKFORD : HOSPITAL, RYAN TAYLOR AND JULIA : FINKEL :

Appeal from the Order Entered November 16, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 220800839

BEFORE: PANELLA, P.J.E., STABILE, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED MAY 21, 2025

Appellant Sergei Kovalev appeals pro se from trial court’s order granting

the motion filed by Appellees Jefferson Health - Northeast, Jefferson Health -

Northeast Health, Jefferson Frankford Hospital, Ryan Taylor, D.O., and Julia

Finkel, D.O. (collectively, “Appellees”), striking Appellant’s certificates of

merit,1 and entering a judgment of non pros in favor of Appellees. On appeal,

____________________________________________

1 See Pa.R.C.P. 1042.3(a) (requiring that in any action in which a plaintiff alleges that that a licensed professional deviated from an acceptable professional standard, the plaintiff must file a certificate of merit indicating that an appropriate licensed professional has supplied a written statement that there is a reasonable probability that the conduct at issue fell outside acceptable professional standards and was a cause in bringing about the plaintiff’s harm or indicating that expert testimony of an appropriate licensed professional is not necessary to prosecute the plaintiff’s claim). J-A28033-24

Appellant argues that the trial court erred by sustaining Appellees’ preliminary

objections to several counts of Appellant’s amended complaint, granting

Appellees’ motion to amend Appellant’s civil cover sheet, striking Appellant’s

certificates of merit, and entering a judgment of non pros. We affirm.

On August 5, 2022, Appellant initiated this action by filing a complaint

against Appellees. Appellant subsequently filed an amended complaint on

October 28, 2022. Therein, Appellant alleged that he suffered a fall on August

5, 2020, resulting in serious injuries to, among other things, his head, spine,

left shoulder, and both knees. See Am. Compl., 10/28/22, at 5-6, R.R. at

37a-38a.2 On the following day, he went to the emergency department of

Jefferson Frankford Hospital for treatment. See R.R. at 39a. Appellant

asserted that Appellees refused or failed to provide treatment for Appellant’s

injuries. Specifically, Appellant alleged that Dr. Finkel examined Appellant for

approximately five minutes and that Dr. Taylor only looked at Appellant for a

few seconds in the examination room. See id. at 41a-43a. Appellant claimed

that that Dr. Finkel and Dr. Taylor “failed to provide any appropriate medical

screening examination, referral to qualified specialists, treatment,

stabilization, [or] diagnosis” for Appellant’s injuries. Id. at 43a-44a.

Appellant further asserted that while X-rays were taken of one of his hands

2 We may cite to the parties’ reproduced record and supplemental reproduced

record for the parties’ convenience.

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and one of his legs, both Dr. Finkel and Dr. Taylor denied his request for an

MRI scan of his head to check for brain injuries. See id. at 43a-45a.

Appellant further alleged that Jefferson Health - Northeast, Jefferson

Health - Northeast Health, and Jefferson Frankford Hospital (collectively,

“Hospital Appellees”) failed to exercise reasonable care in the management of

the emergency department and in the hiring, supervision, and training of staff

at Jefferson Frankford Hospital. See id. at 41a-42a, 51a-53a, 72a, 74a.

Appellant pled a total of nineteen counts in his amended complaint: (I)

ordinary negligence; (II) medical malpractice (in the alternative to Count I) 3;

(III) gross negligence; (IV) negligence per se; (V) negligent infliction of

emotional distress; (VI) reckless endangerment; (VII) assault and battery

(intentional denial of medically necessary services); (VIII) violation of the

Unfair Trade Practices and Consumer Protection Law (UTPCPL); 4 (IX) civil

conspiracy (to deny medical services, to injure, and to defraud); (X) violation

of the Emergency Medical Treatment and Active Labor Act (EMTALA); 5 (XI)

violation of civil rights pursuant to 42 U.S.C. § 1983; (XII) 42 U.S.C. § 1983

violation of First Amendment rights pursuant to 42 U.S.C. § 1983; (XIII)

violation of right to equal protection pursuant to 42 U.S.C. § 1983; (XIV)

3 Only as to Dr. Taylor and Dr. Finkel.

4 73 P.S. §§ 201-1 to 201-10.

5 42 U.S.C. § 1395dd.

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failure to train, discipline, and supervise pursuant to 42 U.S.C. § 1983; 6 (XV)

discrimination in violation of 42 U.S.C. § 2000a(a) et seq.; (XVI) conspiracy

in violation of 42 U.S.C. § 1985; (XVII) breach of contract for health care;

(XVIII) fraud and fraudulent misrepresentation; and (XIX) breach of fiduciary

duty. See R.R. at 50a-127a. Appellant filed certificates of merit with respect

to each Appellee on November 10, 2022. See R.R. at 247a-51a. Therein,

Appellant certified that expert testimony from an appropriate licensed

professional was not necessary because Appellant was relying on the doctrine

of res ipsa loquitur and because Appellant was asserting claims of intentional

torts and fraud against Dr. Taylor and Dr. Finkel. See id.

On September 9, 2022, Appellees filed a motion to amend Appellant’s

civil cover sheet, arguing that although Appellant had designated this action

as “personal injury — other” when he filed his initial complaint and that, based

on the allegations in the complaint, this matter should be designated as a

medical professional liability action. See Appellees’ Mot. to Amend, 9/9/22,

at 2-4. On March 27, 2023,7 the Honorable Daniel J. Anders entered an order

granting Appellees’ motion to amend. See Trial Ct. Order, 3/27/23.

6 Only as to Hospital Appellees.

7 The trial court’s order is dated March 23, 2023, but was docketed and served

on the parties on March 27, 2023. See Pa.R.A.P. 108(a)(1) (providing that the date of entry of an order is the day the clerk of court mails or delivers copies of the order to the parties); see also Pa.R.C.P. 236.

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Appellees also filed preliminary objections to Appellant’s amended

complaint on November 17, 2022 seeking to strike multiple counts for legal

insufficiency (demurrer). See S.R.R. at 100b-251b. On December 22, 2022,8

the Honorable Michael Erdos entered an order sustaining Appellees’

preliminary objections in part and overruling Appellees’ preliminary objections

in part. Specifically, Judge Erdos ordered that the following counts were

stricken from Appellant’s amended complaint: (VI) reckless endangerment;

(VII) assault and battery; (VIII) violation of the UTPCPL; (X) violation of the

EMTALA; (XI) violation of civil rights; (XII) violation of civil rights; and (XIII)

violation of civil rights. See Trial Ct. Order, 12/21/22, at 1-2. Judge Erdos

also struck Appellant’s claim for negligence per se pursuant to the UTPCPL,

the EMTALA, 42 U.S.C. §§ 1983, 1985, 2000a(a), but allowed the Appellant’s

claim for negligence per se with respect to reckless endangerment to proceed.

See id. at 2. Lastly, Judge Erdos overruled Appellees’ other preliminary

objections. See id. at 1-2.

Appellees filed a motion to strike Appellant’s certificates of merit on

October 14, 2022. See S.R.R. at 1b-80b. On April 17, 2023,9 the Honorable

Linda Carpenter entered an order granting Appellees’ motion, striking

Appellant’s certificates of merit, and directing Appellant to file certificates of ____________________________________________

8 The trial court’s order is dated December 21, 2022, but was served on the

parties on December 22, 2022. See Pa.R.A.P. 108(b); Pa.R.C.P. 236(b).

9 The trial court’s order is dated April 11, 2023, but served on the parties on

April 17, 2023. See Pa.R.A.P. 108(b); Pa.R.C.P. 236(b).

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merit as to each defendant that complied with the Pennsylvania Rules of Civil

Procedure. See Trial Ct. Order, 4/17/23. Appellant filed amended certificates

of merit as to each Appellee on April 21, 2023. See R.R. at 400a-05a. In

these amended certificates of merit, Appellant again certified that expert

testimony from an appropriate licensed professional was not necessary

because Appellant was relying on the doctrine of res ipsa loquitur against

Appellees and because Appellant was asserting claims of intentional torts

against Dr. Taylor and Dr. Finkel. See id.

On May 4, 2023, Appellees filed a motion to strike Appellant’s amended

certificates of merit as deficient and a notice of intention to enter judgment of

non pros for failure to file a written statement from an appropriate licensed

professional. See S.R.R. at 279b-303b. On November 16, 2023, 10 Judge

Carpenter entered an order and opinion granting Appellees’ motion, striking

Appellant’s amended certificates of merit with prejudice, and entering a

judgment of non pros against Appellant.

Appellant did not file a petition to strike or open the judgment of non

pros. Appellant filed four timely notices of appeal, which included the

November 16, 2023 order striking Appellant’s amended certificates of merit

and entering the judgment of non pros, the April 17, 2023 order striking

10 The trial court’s order is dated November 13, 2023, but was docketed on

November 14, 2023, and served on the parties on November 16, 2023. We have amended the caption accordingly See Pa.R.A.P. 108(b); Pa.R.C.P. 236(b).

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Appellant’s original certificates of merit, the March 27, 2023 order amending

Appellant’s civil cover sheet and directing Appellant to produce certificates of

merit, and the December 22, 2022 order sustaining in part, and overruling in

part, Appellees’ preliminary objections.

Appellant complied with Pa.R.A.P. 1925(b). Judge Erdos issued a Rule

1925(a) opinion addressing the order sustaining in part and overruling in part

Appellees’ preliminary objections. See Judge Erdos’ Op., 3/11/24, at 1-8.

Judge Anders issued a Rule 1925(a) opinion addressing the order amending

Appellant’s civil cover sheet and directing Appellant to produce certificates of

merit. See Judge Anders’ Op., 3/18/24, at 1-3. Judge Carpenter issued a

Rule 1925(a) opinion addressing the order striking Appellant’s certificates of

merit with prejudice and the judgment of non pros. See Judge Carpenter’s

Op., 3/15/24, at 1-7 (unpaginated).

This Court docketed Appellant’s appeals at 2974 EDA 2023, 3099 EDA

2023, 3098 EDA 2023, and 3082 EDA 2023, respectively. On April 8, 2024,

this Court sua sponte dismissed the appeals at 3099 EDA 2023, 3098 EDA

2023, and 3082 EDA 2023 as duplicative.

Appellant raises the following issues on appeal, which we restate as

follows:

1. The trial court erred by sustaining Appellees’ preliminary objections.

2. The trial court erred by designating this matter as a medical professional liability action.

3. The trial court erred by striking Appellant’s certificates of merit.

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Appellant’s Brief at 8-9.11

Preliminary Objections

First, Appellant argues that the trial court abused its discretion by

entering the December 22, 2022 order, which sustained in part and overruled

in part Appellees’ preliminary objections and struck the following counts from

Appellant’s amended complaint: (VI) reckless endangerment; (VII) assault

and battery; (VIII) violation of the UTPCPL; (X) violation of the EMTALA; (XI)

violation of civil rights; (XII) violation of civil rights; and (XIII) violation of

civil rights. Id. at 60-70.

This Court has explained:

We review an order sustaining preliminary objections seeking dismissal of an action de novo:

Our standard of review of an order of the trial court [ruling on] preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering ____________________________________________

11 We note that here, Appellant raised seven questions in his statement of questions presented, but he has divided the argument section of his brief into four sections, several with numerous subsections. The Pennsylvania Rules of Appellate Procedure require that the argument section of the brief “shall be divided into as many parts as there are questions to be argued.” Pa.R.A.P. 2119(a). Failure to do so may result in waiver. See Ramalingam v. Keller Williams Realty Grp., Inc., 121 A.3d 1034, 1042 (Pa. Super. 2015). While we do not condone Appellant’s failure to comply with the Rules of Appellate Procedure, we find that the defects in Appellant’s brief does not impede our ability to render meaningful appellate review; therefore, we decline to find waiver on this basis. Id.

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preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Fiedler v. Spencer, 231 A.3d 831, 835-36 (Pa. Super. 2020) (citations omitted). This Court will reverse the trial court’s decision regarding preliminary objections only where there has been an error of law or abuse of discretion.

Godlove v. Humes, 303 A.3d 477, 480-81 (Pa. Super. 2023).

Following our review of the record, the parties’ briefs, the relevant law,

and the trial court’s well-reasoned analysis, we affirm on the basis of Judge

Erdos’ opinion. See Judge Erdos’ Op., 3/11/24, at 1-8.12 Specifically, we

agree with Judge Erdos that the various statutes Appellant has cited in his

amended complaint do not provide a cause of action against medical

providers, cannot be used to assert a challenge to the quality of medical care,

or otherwise do not apply to Appellees. See Godlove, 303 A.3d at 480-81.

We also agree that Appellant has failed to state a claim for assault and battery

because Appellant has not alleged that Appellees committed any physical

12 We note that Judge Erdos’ opinion contains a relevant typographical error.

On page 7 of the opinion, the quote should read “EMTALA requires hospitals to provide medical screening and stabilizing treatment to individuals seeking emergency care in a nondiscriminatory manner.” See Judge Erdos’ Op., 3/11/24, at 7 (quoting Toretti v. Main Line Hosps. Inc., 580 F.3d 168, 173 (3d Cir. 2009)).

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contact against his person. Therefore, Appellant is not entitled to relief on

this claim.

Designating this Matter as a Medical Professional Liability Action

Next, Appellant argues that the trial court abused its discretion by

entering the March 27, 2023 order, which granted Appellees’ motion to amend

the civil cover sheet to designate this matter as a medical professional liability

action. Appellant’s Brief at 37-39.13 Appellant claims that his designation of

his civil action as “other personal injury” was correct because he pled nineteen

causes of action in his amended complaint, which included causes of action

for intentional torts and civil rights violations. Id. at 38-39. Appellant claims

that because a plaintiff is the master of his own complaint, Appellees, as the

defendants, cannot dictate how Appellant manages his case. Id. at 39 (citing

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); The Fair v. Kohler

Die & Specialty Co., 228 U.S. 22, 25 (1913)). Appellant further argues that

the trial court’s March 27, 2023 order violates Pa.R.C.P. 128 because

designating this matter a medical professional liability action is “contrary to ____________________________________________

13 We note that Appellant has cited his response in opposition to Appellees’

motion to amend civil cover sheet. See Appellant’s Brief at 38 (citing R.R. at 139-69a). To the extent that Appellant attempts to incorporate by reference the arguments he presented in his trial court filings, “our appellate rules do not allow incorporation by reference of arguments contained in briefs filed with other tribunals, or briefs attached as appendices, as a substitute for the proper presentation of arguments in the body of the appellate brief.” Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011). Our Supreme Court has held that when an appellant attempts to present issues by incorporating by reference another document into his brief, those issues are waived. Id. Therefore, we limit our analysis to arguments developed in Appellant’s appellate briefs.

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the entire substance of [Appellant’s] amended complaint.” Id. at 35 (some

formatting altered); see also id. at 50 (Appellant contends that his claims

cannot be “classified as a medical malpractice because the required second

prong (‘medical treatment’) was missing” (emphasis omitted)).

Lastly, Appellant argues that although Count II of his amended

complaint is captioned as “medical malpractice,” he only included it “to satisfy

[Appellees’] alter ego [sic][,]” and that he “intentionally created [Count II] to

satisfy [Appellees’] desire to dismiss something.” Id. at 44. Appellant further

contends that his amended complaint does not allege that Appellees engaged

in an unskilled performance of any medical procedure. Id. at 45-47.

To the extent that this Court must review the averments of Appellant’s

complaint to determine the theories of liability that he is asserting, that issue

presents a question of law. See Ditch v. Waynesboro Hosp., 917 A.2d 317,

321 (Pa. Super. 2007). Therefore, our standard of review is de novo and our

scope of review is plenary. See id.; see also Gray v. Buonopane, 53 A.3d

829, 834 (Pa. Super. 2012) (explaining that interpretation of the Pennsylvania

Rules of Civil Procedure presents a question of law, and this Court reviews

such questions de novo).

Pennsylvania Rule of Civil Procedure 205.5 provides, in relevant part, as

follows: “[a]t the commencement of any action, the party initiating the action

shall complete the cover sheet set forth in subdivision (e) and file it with the

prothonotary.” Pa.R.C.P. 205.5(a)(2).

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Our Supreme Court has rescinded Rule of Civil Procedure 128 and

replaced it with Rule of Judicial Administration 109 effective January 1, 2024.

See Pa.R.J.A. 109; Pa.R.C.P. 126(b). Rule of Judicial Administration 109

states:

Ascertaining the Supreme Court’s intention in the adoption or amendment of a rule may be guided by the following presumptions among others:

(a) The Supreme Court does not intend a result that is absurd, impossible of execution, or unreasonable;

(b) The Supreme Court intends a rule to be construed to secure the just, speedy, and inexpensive determination of every action or proceeding to which it is applicable;

(c) The Supreme Court intends the entire rule or chapter of rules to be effective and certain;

(d) The Supreme Court does not intend to violate the Constitution of the United States or of this Commonwealth[.]

Pa.R.J.A. 109(a)-(d).

Medical malpractice is defined 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. . . . [T]he basic elements of medical malpractice and ordinary negligence are the same, although medical malpractice has some distinguishing characteristics. Th[is] Court drew the distinction between ordinary negligence and medical malpractice as follows:

A medical malpractice claim is distinguished by two defining characteristics. First, medical malpractice can occur only within the course of a professional relationship. Second, claims of medical malpractice necessarily raise questions involving medical judgment. Claims of ordinary negligence, by contrast, raise issues that are within the common knowledge and experience of the [fact-finder]. Therefore,

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a court must ask two fundamental questions in determining whether a claim sounds in ordinary negligence or medical malpractice: (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 medical judgment beyond the realm of common knowledge and experience. If both these questions are answered in the affirmative, the action is subject to the procedural and substantive requirements that govern medical malpractice actions.

Therefore, where a complaint is predicated upon facts constituting medical treatment, that is, when it involves diagnosis, care and treatment by licensed professionals, the action must be characterized as a professional negligence action.

Ditch, 917 A.2d at 321-22 (citations omitted and some formatting altered).

Further, it is well-established that medical malpractice encompasses

claims that physicians failed to properly diagnose a patient’s condition. See,

e.g., Nicolaou v. Martin 195 A.3d 880, 882-85 (Pa. 2018) (the plaintiff

brought a medical malpractice action alleging that the defendants had failed

to properly diagnose and treat the plaintiff’s Lyme disease where the

defendants had misdiagnosed the plaintiff’s symptoms as the result of multiple

sclerosis); Zieber v. Bogert, 773 A.2d 758, 759-60 (Pa. 2001) (in a medical

malpractice action, the plaintiff alleged that the defendants failed to order a

C-T scan which would have revealed that the plaintiff had lymphoma in his

abdomen).

Our Supreme Court has held that “[a] cause of action for corporate

negligence arises from the policies, actions[,] or inaction of the institution

itself rather than the specific acts of individual hospital employees. Thus,

under this theory, a corporation is held directly liable, as opposed to

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vicariously liable, for its own negligent acts.” Welsh v. Bulger, 698 A.2d

581, 585 (Pa. 1997) (citations omitted and formatting altered); see also

Bisher v. Lehigh Valley Health Network, Inc., 265 A.3d 383, 415 n.18

(Pa. 2021) (noting that a claim that a hospital did not have proper protocols

in place “implicates the type of systemic negligence that is the hallmark of a

corporate negligence claim”). Additionally, “unless a hospital’s negligence is

obvious, a plaintiff must produce expert testimony to establish that the

hospital deviated from an accepted standard of care and that the deviation

was a substantial factor in causing the harm to the plaintiff.” Welsh, 698

A.2d at 585.

This Court has explained that

[we] 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.” Varner v. Classic Communities Corp., 890 A.2d 1068, 1074 (Pa. Super. 2006) (emphasis in original). “[I]t is the substance of the complaint rather than its form which controls whether the claim against a professionally licensed defendant sounds in . . . professional malpractice.” Id. . . . . To ascertain the plaintiff’s theory of liability, courts must examine the averments in the complaint.

Sabella v. Estate of Milides, 992 A.2d 180, 187 (Pa. Super. 2010) (some

citations omitted and some formatting altered); see also Ditch, 917 A.2d

321-22 (explaining that “[i]n order to determine what theory of liability [the

plaintiff] is asserting, this Court must examine the averments [the plaintiff]

makes in [the amended] complaint[,]” and concluding that, after viewing

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allegations of the amended complaint as a whole, the plaintiff raised a

professional liability claim (citations omitted)).

In his Rule 1925(a) opinion, Judge Anders explained:

Here, the trial court properly granted [Appellees’] motion to amend and found [Appellant’s] amended complaint raised medical malpractice negligence claims because (1) [Appellant’s] claims occurred within the course of his relationship with medical professionals, Dr. Ryan Taylor, D.O. and Dr. Julia Finkel, D.O. while in the emergency room and (2) the claims raise questions of medical judgment beyond the realm of common knowledge and experience such as whether [Appellant’s] injuries required MRI or a referral to a neurology or neurosurgery specialist. Thus, the court properly found [Appellant’s] amended complaint raised medical malpractice negligence claims.

Judge Anders’ Op., 3/18/24, at 2-3.

Based on our review of the record, we agree with Judge Anders’

conclusions and discern no error of law. See Ditch, 917 A.2d at 321; see

also Gray, 53 A.3d at 834.

As stated above, this Court reviews the allegations in Appellant’s

amended complaint as a whole to determine the theory of liability he has

raised and it is the substance of the complaint, not the form that controls our

determination. See Ditch, 917 A.2d at 321-22; See also Sabella, 992 A.2d

at 187. Here, Appellant alleged in his amended complaint that Dr. Finkel and

Dr. Taylor “failed to provide any appropriate medical screening examination,

referral to qualified specialists, treatment, stabilization, [or] diagnosis” for

Appellant’s injuries and denied Appellant’s request for an MRI scan of his head

to check for brain injuries. R.R. at 43a-45a. Appellant further asserted that

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“[n]ot a single educational manual ever provided that an emergency room

treatment and examination of severely injured patients with visible face and

head injuries, and with multiple injuries to other body parts can be

accomplished by spending 1-2 minutes on asking several basic questions

without examining anything.” Id. at 42a-43a. Appellant also alleged that

Hospital Appellees failed to exercise reasonable care in the management of

the emergency department and in the hiring, supervision, and training of their

staff. See id. at 41a-42a, 51a-53a, 72a, 74a. Lastly, Appellant contended

that “[e]ven a person without any form of education would realize that it is

not the correct treatment, examination, or diagnostic procedure that can be

used in any emergency department operating at present modern time.” Id.

at 43a (some formatting altered).

It is clear from the allegations in the amended complaint that Appellant’s

claims pertain to actions and omissions which occurred within the course of a

professional relationship, i.e., doctor and patient. See Ditch, 917 A.2d at

321-22. Further, although Appellant characterizes his claim as arising from

Appellees’ alleged failure to treat Appellant, such a claim sounds in medical

malpractice. See, e.g., Nicolaou, 195 A.3d at 882-85; Zieber, 773 A.2d at

759-60. Notwithstanding Appellant’s assertion that a layperson could

recognize that Appellees failed to utilize the correct diagnostic procedure and

provide him with the proper treatment, we agree with Judge Anders that

Appellant’s claim raises questions of medical judgment beyond the realm of

common knowledge and experience. See Ditch, 917 A.2d at 321-22; see

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also Sabella, 992 A.2d at 187. For these reasons, we conclude that the

allegations in Appellant’s complaint raise a claim of medical malpractice. See

Ditch, 917 A.2d at 321-22.

Lastly, Appellant’s reliance on Caterpillar and The Fair is misplaced.

In both of those cases, the Supreme Court of the United States explained that

a plaintiff may choose whether or not to include a claim under federal law in

his or her complaint and that, in the absence of diversity of citizenship, federal

courts may only exercise jurisdiction over a matter if the complaint presents

a federal question. See Caterpillar, 482 U.S. at 392; The Fair, 228 U.S. at

25. Neither case stands for the proposition that a court cannot treat a claim

for ordinary negligence and/or an intentional tort as a claim for medical

malpractice where the allegations of the complaint have all of hallmarks of

medical malpractice. See Ditch, 917 A.2d at 321-22 (explaining that it is the

substance, not the form of the complaint that controls).

For these reasons, we discern no error of law in Judge Anders’ order

designating this matter as a medical malpractice action. See Ditch, 917 A.2d

at 321; see also Gray, 53 A.3d at 834. Accordingly, Appellant is not entitled

to relief on this claim.14 ____________________________________________

14 We further note that Rule of Civil Procedure 1023.1 provides that the signature of an attorney or pro se party constitutes a certification that the signer, to the best of that person’s knowledge, information and belief, is not presenting a pleading, motion or other paper “for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation[.]” Pa.R.C.P. 1023.1(c)(1). A trial court may subject a party to (Footnote Continued Next Page)

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Striking Appellant’s Certificates of Merit

In his remaining claim, Appellant argues that the trial court abused its

discretion by entering the April 17, 2023 and November 16, 2023 orders,

which granted Appellees’ motions to strike his certificates of liability and

dismissed this action. Appellant’s Brief at 36-58.

Before addressing the merits of Appellant’s issues, we must determine

whether he has preserved them for appeal. This Court may raise the issue of

waiver sua sponte. See Tucker v. R.M. Tours, 939 A.2d 343, 346 (Pa.

Super. 2007). “The issue of waiver presents a question of law, and, as such,

our standard of review is de novo and our scope of review is plenary.” Trigg

v. Children’s Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 2020)

(citation omitted).

Rule of Civil Procedure 3051 provides that a party must seek relief from

a judgment of non pros by filing a petition to open or strike the judgment.

See Pa.R.C.P. 3051(a) (stating that “[r]elief from a judgment of non pros shall

be sought by petition” (some formatting altered)).

This Court has stated that “Rule 3051, however, mandates that the

plaintiff file a petition to open before appealing, even when the trial court held ____________________________________________

sanctions for violations of Rule 1023.1(c). See Pa.R.C.P. 1023.1(d). As stated above, Appellant asserts that he only included Count II of the amended complaint with the intention of it being dismissed as part of his litigation strategy. See Appellant’s Brief at 44. Although the trial court did not impose sanctions upon Appellant, we strongly condemn Appellant’s inclusion of a count in his amended complaint for the express purpose of being stricken upon a motion by Appellees because that causes unnecessary delay and/or needless increase in the cost of litigation.

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a hearing before entering judgment of non pros.” Cardona v. Buchanan,

230 A.3d 476, 478 (Pa. Super. 2020). Further, the Cardona Court explained

that because “petitions to open judgments of non pros are mandatory, any

appeal related to a judgment of non pros lies not from the judgment itself, but

from the denial of a petition to open or strike.” Id. at 479 (citations omitted

and formatting altered).

Our Supreme Court has held that the failure to file a petition to open a

judgment of non pros as required by Rule 3051 waives all claims related to

entry of the judgment of non pros. See Sahutsky v. H.H. Knoebel Sons,

782 A.2d 996, 1001 (Pa. 2001); see also id. at 1001 n.3 (noting that quashal

is not appropriate when a party appeals from a judgment of non pros without

filing a Rule 3051 petition to open and reiterating that “the proper

consequence of the failure to file a Rule 3051 petition is a waiver of the

substantive claims that would be raised”); Cardona, 230 A.3d at 480 (holding

that the plaintiff waived her sole issue on appeal because the plaintiff failed to

file a petition to open the judgment of non pros before filing a notice of

appeal).

Here, the trial court entered a judgment of non pros after granting

Appellees’ motion to strike Appellant’s amended certificates of merit.

Appellant did not file a petition to open the judgment of non pros prior to filing

his notices of appeal. Therefore, Appellant has waived his issues related to

the April 17, 2023 order striking his certificates of merit and the November

16, 2023 order striking Appellant’s amended certificates of merit and entering

- 19 - J-A28033-24

the judgment of non pros.15 See Sahutsky, 782 A.2d 1001 & n.3; Cardona,

230 A.3d at 480.

For these reasons, we conclude that Appellant is not entitled to relief

and accordingly, we affirm.16

Order affirmed. Jurisdiction relinquished.

Date: 5/21/2025

15 Even if Appellant’s issues were not waived, we would affirm on the basis of

Judge Carpenter’s Rule 1925(a) opinion. See Judge Carpenter’s Op., 3/15/24, at 4-7 (unpaginated).

16 The parties are directed to attach a copy of Judge Erdos’ opinion and Judge

Carpenter’s opinion in the event of further proceedings.

- 20 - 09:40 AM Circulated 04/30/2025 09.40

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

CIVIL TRIAL DIVISION

OPFLD-Kovalev Vs Jefferson Health - Northeast Etal

Sergei Sergei Kovalev 1111111111111111111111111111111 II III 22080083900143 22080083900143 Case ID: 220800839

V.

Jefferson Health Health -- Northeast, Jefferson Health-, Northeast Health, Jefferson Frankford Hospital, Ryan Ryan Taylor, and Julia Finkel No. 3082 EDA 2023

OPINION

ERDOS, J. March 11, 2024

appeal arises from a This appeal amedical malpractice case wherein Appellant Sergei Kovalev

alleges inadequate alleges inadequate medical care at Jefferson Frankford Hospital

Appellees) following Appellees) Hospital (along (along with the doctors,

area following aafall in the downtown area of Philadelphia. This opinion addresses':•; • add,k«see;i - t; Appellant's appeal of the Court's December 21, 2022 Order Sustaining in Part and Appellant's appeal a•d• Overruling x-ti , ' in in ' fl -1 1 i • De Part Appellees' Appellees' Preliminary Objections to the Amended Complaint. Complaint a.e + ',2 % cn co -. PROCEDURAL POSTURE , Appellant Appellant filed his Complaint Complaint pro pro se in August of 2022, alleging Appellees failed to give

him medical care when he went to the emergency room after aafall in August of 2020. He filed an

Amended Complaint Complaint on August August 28, 2022. Appellees Appellees filed Preliminary Objections to his

Amended Complaint Complaint on November 17, 2022. The Court ruled on the motion on December 21,

2022, sustaining 2022, sustaining nine objections objections and overruling eleven. On November 13, 2023, a a final

' COPIES SENT PURSUANT COPIES PURSUANTTO Pa.R.C.P. 236(b) TOP.RC9 D. KELLY 03/11/2024 236/5) D,KELLY ------------------ --- ---

disposition was disposition was entered against the the Appellant Appellant for for failure to to produce produce Certificates of Merit.

Appellant filed an appeal of this Court's order regarding Appellant regarding preliminary preliminary objections.

ISSUES

Appellant appeals the Court's order sustaining nine of Appellees' objections to his Appellant appeals

Amended Complaint, striking striking the following causes of action and types of relief requested:

Reckless Endangerment; Assault and Battery; Battery; UTPCPL; Request for Attorney Fees; Request for

Injunctive Injunctive Relief; Relief; Civil Rights, Rights, First First Amendment, and Discrimination Discrimination Claims under under 42 U.S.C. U.S.C. §$

1983; 1983; EMTALA; and Negligence EMTALA; and Negligence Per Se. Per Se.

DISCUSSION DISCUSSION

The Pennsylvania Pennsylvania Rules of Civil Procedure permit filing preliminary objections to aa

Complaint to strike impertinent Complaint impertinent matters and for failure failure of aapleading to conform to aarule of law.

Pa.R.Civ.P. Pa.R.Civ.P 1028(a)(2). 1028(a)02). Averments in acomplaint are impertinent where they are "irrelevant to in a

material issues made or tendered, and which, whether proven or not, or whether admitted or not,

can have no influence in leading leading to the result of aajudicial decree." South v. v. Murphy, 21 2l

Pa.D.&C.4th 183, 183, 186-87 186-87 (C.P. (C.P. Cumberland 1993) 1993) (citing 2Anderson, Pennsylvania Civil (citing 2

Practice Practice §$ 1017:103, at 480 1017:103, at 480 ((1976)). 1976)).

I. RECKLESS ENDANGERMENT

Count VI of Appellant's Appellant's Amended Complaint Complaint is titled Reckless "Reckless Endangerment Endangerment -- Civil

Claim." Appellant Appellant claims that a a violation of aacriminal statute can be brought as aacivil tort. tort

Reckless Reckless Endangerment Endangerment is defined in in the the criminal code as follows: "A person follows: "A person commits aa

misdemeanor misdemeanor of the the second degree if he recklessly engages in conduct which which places places or may may place

another person another in danger person in danger of of death death or or serious serious bodily bodily injury." injury." 18 18 Pa.C.S.A. Pa.C.S.A. §$ 2705. Contrary to 2705. Contrary to

Appellant's assertion, Appellant's assertion, reckless endangerment endangerment is not a arecognized civil action. civil cause of action

22 II. ASSAULT AND BATTERY

Count VII of Appellant's Amended Complaint is titled "Assault and Battery Battery -- Civil

Claims for Intentional Denial of Medically Medically Necessary Services." Appellant's Amended

Complaint alleges alleges that Appellees' Appellees' denial of medical services worsened his injuries and thus

constitutes assault and battery.

"Assault is an intentional attempt by Assault by force to do an injury injury to the person person of another, and a a

battery battery is committed whenever the violence menaced in an assault is actually done, though in

ever so small small aadegree, degree, upon upon the person." person." Renk Renk v. v. City of Pittsburgh, Pittsburgh, 641 641 A.2d A.2d 289, 293 293 (Pa. (Pa.

1994) 1994) (citing (citing Cohen v. v, Lit Brothers, 70 A.2d 419, 421 (Pa. (Pa. 1950)). Appellant did not allege any

attempt of force or threat of physical contact. In fact, his complaint posits the opposite, namely, attempt

Appellees withheld contact in the form of treatment. While such conduct or lack of conduct that Appellees

may warrant other causes of action, assault and battery are not amongst them.

III. UTPCPL

Appellant's Amended Complaint raises a Count VIII of Appellant's a cause of action under the

Pennsylvania Pennsylvania Unfair Trade Practices and Consumer Protection Law Law (UTPCPL). (UTPCPL). The UTPCPL

does not, not, and was was not intended to, apply to providers of medical services. services. Walter Walter v. v, Magee-

Womens Womens Hosp. Hosp. of UPMC UPMCHealth Sys., 876 A.2d 400, 407 Health Sys,, 407 (Pa. (Pa. Super. 2005), affd, 906 A.2d

1194 1194 (2006); Gatten v. (2006); Gatten v, Merzi, Merz$, 579 A.2d 976 (Pa. A.2d 974, 976 (Pa. Super. 1990). 1990). Even Even if it did, the the false

advertisement alleged by Appellant—that Appellant--that Jefferson Hospital's website claims it "provides

leading-edge care"—is an opinion leading-edge care"is opinion that cannot be objectively proven true or false.

IV. ATTORNEY FEES

Appellant asks Appellant asks for attorney fees in for attorney in his ad damnum clauses and and prayer prayer for for relief relief section.

Because Because Appellant Appellant was was pro se, and because pro se, because it "well-settled that a it is well-settled apro pro se se litigant litigant cannot recover

3 attorney[ attorney[]] fees fees for for the the work work expended expended in in litigating litigating his his or or her own case," her own case," the Court sustained the Court sustained the the

preliminary objection. McFalls preliminary objection. McFalls v. Municipality of v, Municipality of Norristown, Norristown, 280 280 A.3d A.3d 345 345 (Pa.Cmwlth. 2022) (Pa.Cmwhth. 2022)

(citing Westmoreland (citing Cnty. v. Westmoreland Cnty, • Allegheny Cnty., 723 A.2d 1084, Allegheny Cnty,, 1084,1086-87 1086-87 (Pa. Cmwlth. 1999)). (Pa. CmwIth.

V. INJUNCTIVE RELIEF

Appellant asks for injunctive Appellant injunctive relief in his ad damnum clauses and prayer for relief

section. In order to receive injunctive "aparry injunctive relief, "a party must establish that his right to relief is clear,

that that an injunction injunction is necessary to avoid an injury is necessary injury that that cannot be compensated by by damages, and damages, and

that greater injury that greater injury will will result result from refusing refusing rather rather than granting granting the the relief requested." Harding Harding v. v

Stickman, 823 A.2d A.24 1110, 1111 1111 (Pa. Cmwlth. 2003). (Pa. Cmwht.

Appellant states that without injunctive Appellant "all Defendants will continue their reckless injunctive relief, all

and unlawful activities" and and"Plaintiff Plaintiff and other members of the public will remain at

unreasonable and serious unreasonable and safety and serious safety and health health risks." risks." Amend, Amend. CompL. Compl. Kovaley Kovalev y, v. Jefferson Jefferson Health —

Northeast, et al., Northeast, August Term 2022 No. al., August N. 839, at 77. However, the conduct Appellant accuses

Appellees of has already Appellees already been completed. He been completed. long left the He has long the hospital, hospital, and and any damages he may may

Appellees' actions or inaction can be recovered through his negligence cause have suffered from Appellees'

action. In addition, injunctive of action. injunctive relief relief "is not available to eliminate aaremote possible future

injury injury or invasion of rights." Buellv. rights." Buehl Beard, 54 A.3d 412, 420 y, Beard, 420 (Pa. Cmwlth. 2012) (Pa. Cmwith. (citing Jamal 2012) (citing

v. Dept. of y. Dept. of Corrections, Corrections, 549 549 A.2d 1369, 1371 (Pa. Cmwlth. 1988)). (Pa. CmwIth 1988))

VI. CIVIL RIGHTS AND DISCRIMINATION CLAIMS UNDER 42 U.S.C. $§1983

In Counts XI, XI, XIII, and XIV, Appellant's Appellant's Amended Complaint Complaint alleges violations of his

rights under 42 U.S.C. civil rights U.8.C. §$ 1983. Section 1983 reads: "Every person who, under color of any

statute, ordinance, regulation, statute, ordinance, regulation, custom, or usage, State [ ... usage, of any State ], subjects, or causes to be [...],

subjected, subjected, any any citizen of the the United United States or other person within the jurisdiction jurisdiction thereof thereof to the the

4 4 deprivation of deprivation of any any rights, rights, privileges, or immunities privileges, or secured by immunities secured the Constitution by the Constitution and and laws, laws, shall shall be be

liable to the liable to the party party injured injured in an action in an action at law, suit in law, suit equity, or in equity, or other other proper proceeding for proper proceeding for

redress[...]." 42 42 U.S.C. U.S.C. §$ 1983. 1983.

bring a To bring a1983 action, action, two essential elements are required: 1) the conduct complained of required: I)

was committed by by aaperson acting under color of state law, and 2) the conduct deprived aaperson person acting person

of rights, of rights, privileges, privileges, or or immunities immunities secured secured by the Constitution by the Constitution and and laws of the laws of the United States. United States

Palmer v. Palmer v. Bartosh, 959 959 A.2d A.2d 508, 508, 514 514 (Pa. Cmwlth. 2008). (Pa. CmwIth. 2008). Furthermore Furthermore the "plaintiff pursuing the plaintiff pursuing a a cause of action under Section 1983 must plead plead the facts that give give rise to the claimed deprivation

of civil liberties and specifically specifically avoid vague vague and conclusory allegations." Id.

Although Although Jefferson Hospital Hospital is aaprivate private nonprofit, it is true that private entities may

sometimes be acting acting under under color of state law for the the purposes of $§ 1983. purposes of 1983, The test test is is whether whether there there

is aasufficiently sufficiently "close nexus" between the State and the private private entity, such that the private

entity may entity may be fairly fairly treated as as the State State itself. Hennessy v. itself. Hennessy v. Santiago, 708 A.2d 1269, 1276 1276 (Pa. (Pa.

Super. Ct. Super. Ct. 1998); 1998); Jackson Jackson v. v. Metro. Metro, Edison Co., 419 Edison Co, 419 U.S. 345, 351 U.$. 345, 351 ((1974). 1974). In addition, the In addition, State the State

must be responsible specific conduct complained of. Kach v. responsible for the specific • Hose, F.3d 626, 648 Hos, 589 F,3d 648 (3d (3d

Cir. 2009) Cir. 2009).

Appellant Appellant asserts in his Amended Complaint Complaint that such a a nexus exists because Appellees

receive state state and and federal federal tax exemptions, state tax exemptions, state and and federal funds, funds, are exhaustively regulated are exhaustively regulated by by

the state, state, and they they are "expressed "expressed through the public interest." Amend. Comp], Compl. at 318. Appellant

cites to cites to Simkins v. Moses Simkins v. H. Cone Mem'l Moses IH. Mem'! Hosp. Hosp, as the landmark case finding finding private private hospitals hospitals to

be state actors for the the purpose of §$ 1983 actions when they receive government funding and are purpose of

subject regulation. 323 F.2d subject to extensive regulation. 959 (4th .2d 959 (4th Cir. 1963). However, the Fourth Circuit

overturned overturned their holding twenty their holding twenty years later in Modaber years later Modaber v. Culpeper Mem'1 y. Culpeper Mem'l Hosp., Hosp. Inc., 674 F.2d Inc,, 674 F.2d

55 i

1023 1023 (4th (4th Cir. Cir. 1982). 1982). Furthermore, Furthermore, the Third Circuit the Third Circuit has has found found that that regulations regulations and and funding do funding do

not not automatically automatically transform transform a a private actor to private actor to aastate actor. Sec, state actor. See, gag., e,g., Hodge Hodge v. v. Paoli Paoli Mem'l Mem'l

Hosp., losp,, 576 F.2d 563, 564 (3d 563, 564 Cir. 1978) (3d Cir 1978) (the (the receipt receipt of Hill-Burton Hi!-Burton construction funding,

Medicare and Medicaid funds, and the existence of a a tax exemption, exemption, as well as state licensing

requirements for requirements nonprofit hospitals, for nonprofit hospitals, do not not constitute state action under §$ 1983) action under 1983).

Appellant Appellant was admitted to the Emergency Emergency Room, and alleges his treatment was

inadequate. He does not link any inadequate. any state regulation regulation or funding funding to his specific treatment or alleged

discrimination. Thus, discrimination. Thus, there there was was insufficient evidence that insufficient evidence that Appellees Appellees were were acting acting under color of under color of

state law.

VII. FIRST AMENDMENT

Count XII Count XII of Appellant's Complaint raises a Appellant's Amended Complaint acause of action against against Appellees

under under the Civil Rights Rights Act, Act, alleging alleging that his his First First Amendment Amendment right to freedom freedom of expression was was

impinged. impinged. He He alleges alleges that he he had the "expectation of the the "expectation the ability ability to talk talk about about preferential preferential method

of treatment and diagnosis," diagnosis," and that as a a result of Appellees violating his civil rights he

"suffered injuries "suffered for his injuries for his protected speech." Amend. protected speech." Compl. at Amend. Compl, at 344-45. 344 45

As addressed above, As addressed above, 42 42 L.S.C. U.S.C. §$ 1983 1983 applies applies to abuses of power abuses of power by state and by state and local local

officials or officials or other other persons persons acting under color acting under color of state law. of state law. Appellees are not Appellees are state actors, not state actors, nor does nor does

Appellant allege any Appellant allege any facts suggesting suggesting they were ever acting on behalf of the state or local

government during government during his his stay. stay. Moreover, even if Moreover, even if Appellees Appellees were were somehow acting under somehow acting color of under color of

state law, state law, Appellant's Appellant's freedom freedom of of expression expression was not violated. was not Appellant claims violated. Appellant claims in his Amended in his Amended

Complaint that Complaint that he asked for he asked for an an MRI of his MRI of his head. head. Amend. Compl. at 55. While Amend. Compl. While he he alleges alleges

Appellees ignored Appellees ignored his request, request, ignoring ignoring speech is not the same as restricting speech. VIII. EMTALA

Count X Count of Appellant's X of Appellant's Amended Complaint alleges Amended Complaint alleges that that Appellees Appellees violated violated the the

Emergency Medical Emergency Treatment and Medical Treatment Labor Aet and Labor Act (EMTALA) (EMTALA) by by inflicting additional injuries inflicting additional on injuries on

him. "EMTALA requires requires hospitals hospitals to provide provide medical screening and stabilizing treatment to

individuals seeking seeking medical care in a a nondiscriminatory Torretti v. nondiscriminatory manner." Tonetti v. Main Line Hosps., I1osps.,

Inc., Inc,, 580 F.3d 168, 173 (3d 168, 173 (3d Cir. 2009); 2009); 42 U.S.C. U..C. §$ 1395dd. 1395dd. However, EMTALA EMTALA "is "is not a a

malpractice statute" malpractice statute" and and "cannot "cannot be be used to challenge the to challenge quality of the quality of medical medical care." Nartey v. Nartey.Y-

Franciscan Franciscan Health Hosp., 2 2 FAth F.41h 1020, 1025 1025 (7th (7th Cir. 2021).

Appellant's Complaint indicates that he was admitted into the Emergency Appellant's Amended Complaint

Department, Department, and that Appellees Appellees conducted x-rays on one hand and leg. leg. Amend. Comp], Compl. at 49--52, 49-52,

59. Whether Appellees enough tests to properly diagnose Appellant, and whether they Appellees conducted enough

properly properly treated his injuries, injuries, are matters relevant to Appellant's malpractice claim, but not to an

EMTALA claim.

IX. NEGLIGENCE PER SE

Appellant's Amended Complaint raises aacause of action against Appellees Count IV of Appellant's

under under negligence negligence per per se for for the the following following statutes statutes and and regulations: 73 73 P. S. $§ 201-1, et P.S. et seq.

(UTPCPL), 42 (UTPCPL), 42 U.S. U.S. Code Code §$ 1395dd 1395dd (EMTALA), (EMTALA), 42 42 U.S.C. U.S.C. §$ 1983, 1983, 42 42 U.S.C. U.S.C. §$ 2000a(a), et seq. 2000a(a), et

(Discrimination in Public Accommodations), (Discrimination U.8.C. §$ 1985 Accommodations), 42 U.S.C. 1985 (Conspiracy to Interfere with

Civil Rights), Rights), and 18 Pa. C.S. $§ 2705 2705 (Reckless (Reckless Endangerment). The Court struck all negligence

per se claims per claims except except as it pertains to it pertains to Reckless Reckless Endangerment. Endangerment.

In order to prove In order prove a aclaim based on negligence negligence per per se, the following four requirements

must be met: must met

77 (1) The (I) purpose of The purpose of the statute must the statute must be, be, at least in at least part, to in part, to protect the interest protect the interest of of a group of a group of

individuals, as opposed individuals, as opposed to the public to the generally; public generally;

(2) The statute or regulation (2) clearly apply regulation must clearly apply to the conduct of the the defendant;

(3) The (3) The defendant defendant must must violate violate the the statute or regulation; statute or regulation;

(4) The violation of the statute or regulation (4) regulation must be the proximate proximate cause of the plaintiff plaintiff'ss

injuries. injuries

Ramalingam Ramalingam v. v. Keller Keller Williams Williams Realty Grp., Inc., Realty Grp., Inc,, 121 A.3d 1034, 121 A.3d 1034, 1042-43 1042-43 (Pa. Super. 2015) (Pa. Super. 2015).

As discussed above, the UTPCPL does not apply to providers of medical services. Since

the statute does not apply to Appellees, they could not have violated it. Nor could they have

violated the EMTALA. Likewise, Appellees are not state actors, so 42 U.$.C. U.S.C. §$ 1983 does not

apply. 42 apply. 42 U.S.C. U.S.C. §$ 2000a(a), 2000a(a), et et seq. and 42 seq. and 42 U.S.C. U.S.C. §$ 1985 are both 1985 are both statutes statutes that involve that involve

intentional acts and thus cannot form the foundation for negligence negligence per se.

CONCLUSION CONCLUSION

foregoing reasons, For the foregoing Superior Court to reasons, the Court asks the Superior to affirm affirm its its order sustaining

in part Appellees' in part Appellees' Preliminary Objections. Preliminary Objections.

BY COURT: BY THE COURT:

MICHAEL ERDOS, J.

DATE: DATE: March March 11, 11, 2024 2024

8 8 09:40 AM Circulated 04/30/2025 09.40

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENSYLVANIA CIVIL TRIAL DIVISION

SERGEI KOVALEV SUPERIOR COURT Plaintiff-Appellant 2974 EDA 2023 3099 EDA EDA 2023 V.

-. r COURT OF OF COMMON PLEAVS PLEAS} '"% e JEFFERSON HEALTH HEALTH-- — CASE NO. 220800839._, 220800839 -r c.

·-·--- NORTHEAST et al. d � ·n a � Lr:"* DefendantAppellee Defendant-Appellee Cil e '- -, G 0

OPINION OPINION • 44 - e

c 4.• .n e 0 3¢ c

C) c 460 M 0

CARPENTER, J. J. MARCH 15, 2024 32

Plaintiff Sergei Kovalev appeals this Court's April 11, 2023 and November 13, 2023

granting Defendants' Motion to Orders granting to Strike Plaintiffs Certificate of Merit. For the reasons Plaintiffs

that follow, follow, this this Court Court respectfully respectfully requests requests that the the Superior Court Court affirm this this Court's Court's decision decision

in in 2974 EDA 2023 2023 (November (November 13, 2023 Order) and quash the appeal in 3099 EDA 2023 2023 (April (April

11, 2,023 Order) as untimely. 1, 2023 untimely.

PROCEDURAL PROCEDURAL HISTORY HISTORY August 5, On August 5, 2022, Plaintiff Sergei Kovalev commenced the instant action against

Defendants Jefferson Health -- — Northeast, Jefferson Health Health -- Northeast System, Jefferson

Frankford Hospital, Hospital, Ryan Taylor, DO, and Julia Finkel, DO asserting an extensive list of claims

stemming stemming from his treatment at Jefferson Frankford Hospital. Hospital. On October 28, 2022, in in response

to preliminary objections, Plaintiff filed an Amended Complaint. Complaint. On November 17, 2022,

O PFLD -Kovalev Vs Jefferson Health - Northeast Eta,

bllallldl00839001 4 2208 •d• 8 Defendants filed Preliminary Preliminary Objections, which were sustained in in part and overruled in part by

the Hon. the Hon. Michael Erdos on December 21, 2022. 2022.'1

The instant two appeals appeals (and the appeal of the Hon. Hon. Daniel Anders' March 23, 2023

Order) arise from the remaining remaining portions of the record wherein the parties were in dispute over

whether the matter required Certificates of Merit to be filed and whether the subsequently filed

complied with Certificates complied with the various provisions of Pa.R.C.P. various provisions Pa.R.C.P. 1042. 1042

On September On September 7, 7, 2022, Defendants filed aaNotice of Intent to to Enter Judgment of Non

Pros for Failure to File a a Certificate of Merit, pursuant pursuant to Pa.R.C.P. 1042.6. 1042.6, Relatedly, on

September 9, 2022, Defendants filed aaMotion to Amend the civil cover sheet to reflect that the

matter was a a medical professional professional liability claim and to require Plaintiff to produce Certificates

of Merit. Plaintiff filed his opposition opposition thereto on September 29, 2022. 2022. On March 23, 2023,

Judge Judge Anders entered an Order granting Defendants' Motion and ordering Plaintiff to produce

the requisite requisite Certificate of Merit against against each defendant. On On December 4, 2023, Plaintiff filed an

untimely untimely appeal appeal of this Order, which is pending at 3098 EDA 2023.

On October 4, 2024, Plaintiff filed Certificates of Merit for each Defendant asserting that

expert testimony of an appropriate licensed professional was unnecessary for prosecution of the

claims. On October 14, 2022, Defendants Defendants filed aaMotion to to Strike Plaintiff PlaintiffssCertificates of

Merit. Plaintiff filed his opposition thereto on November 3, 2022, Defendants filed their reply on

November 11, 2022, and Plaintiff filed his surreply on November 22, 2022. On November 10, I0,

202:, 2022, Plaintiff filed new Certificates of Merit for each Defendant, again asserting that expert

'The disposition of the 'Te the Preliminary has not Preliminary Objections has been the subject of any not been appeal to any appeal date. to date On March 23, 2023, Judge Anders Ou 2 Anders entered an Order granting granting Defendants' Defendants' Motion to to Amend the civil cover sheet cover sheet to reflect reflect that that the matter was was aamedical medical professional claim and further ordering professional liability claim ordering Plaintiff to Plaintiff to produce produce the the requisite Certificate Certificate of Merit against each defendant. defendant. This appeal is pending at at 3098 3098 EDA EDA 2023. 2023. -------------

testimony of an appropriate licensed professional was unnecessary for prosecution of the claims.

On November 10, 2022, this Court scheduled aastatus hearing for January 26, 2023.

On January 26, 2023, this Court conducted aahearing and held the Motion to Strike under

advisement to to permit permit Plaintiff to supplement the record regarding the Certificates of Merit. On

March 31, 2023, Defendants filed aasupplemental memorandum in support of the Motion to

Strike. Plaintiff made no further supplement. On April 11, 2023, this Court entered an Order

granting the Motion to Strike Plaintiff's Certificates of Merit and granting and further directing Plaintiff to

produce, within ten ((10) 10) days, a aCertificate of Merit for each Defendant in accordance with the

Pennsylvania Rules of Civil Procedure. Procedure. On April 24, 2023, Plaintiff filed aaMotion for

Reconsideration of this Court's April 11, 1H, 2023 Order, which this Court denied on May 25, 2023.

On April 21, 2023, Plaintiff filed Certificates of Merit for each Defendant, again asserting

that expert testimony of an appropriate licensed professional was was unnecessary for prosecution of

the claims. On May 4, 2023, Defendants filed aaMotion to to Strike Plaintiff Plaintiffss Certificates of Merit. Merit

Plaintiff filed his opposition thereto on May 25, 2023, Defendants filed their reply on June 7,

2023, and Plaintiff filed his sunreply surreply on June 14, 2023. 2023. On November 13, 2023, this Court issued

an Order, with Opinion, granting the Motion to to Strike with prejudice and entering final judgment

in favor of Defendants and against Plaintiff.

Relatedly, on May 4, 2023, Defendants filed a a Notice of Intent to Enter Judgment of Non

Pros for Failure to File a aCertificate of Merit, pursuant to to Pa.R.C.P. 1042.6. 1042.6. Plaintiff filed a a

Motion to Strike the Notice of Intent, Intent. Defendants filed their opposition thereto on June 7, 2023,

and Plaintiff filed his reply on June 14, 2023. On July 25, 2023, this Court denied Plaintiff's

to Strike the Notice of Intent. Motion to On November November 16, 2023, Plaintiff timely filed aaNotice of Plaintiff timely of Appeal Appeal to to the the Superior Superior Court

from this from Court's November this Court's November 13, 2023 Order. Order

On December 2, 2023, Plaintiff untimely filed aaNotice of Appeal Appeal to to the Superior Court

from from this Court's April this Court's April 11, 11, 2023 2023 Order. Order.°3

On December 7, 2023, Plaintiff was served an Order directing him to file aaconcise

statement of the matters complained complained of on appeal appeal pursuant pursuant to Pa.R.A.P Pa.R.A.P. 1925(b). On December

19, 2023, Plaintiff 19,2023, Plaintiff filed two statements of matters complained complained of on appeal appeal asserting that:

1. [This] I. [This] court erred and abused its discretion by classifying intentional torts as medical by classifying medical malpractice. malpractice.

2. 2. [This] [This] court erred and abused its discretion by by refusing recognize the fact that refusing to recognize Plaintiff timely, correctly and appropriately timely, correctly appropriately filed three times certificates of merit.

3. 3. [This] [This] court erred and/or abused its discretion by erroneously striking Plaintiff Plaintiff'ss correct and appropriate appropriate certificates of merit.

4. [This] 4. [This] court erred and/or abused its its discretion discretion by by failing failing to apply apply the correct law law to its its decisions. decisions.

DISCUSSION DISCUSSION Initially, Initially, this Court notes that the substance of Plaintiffs first issue raised on appeal Plaintiffs appeal — - that the that the Court Court erred by classifying erred by classifying intentional intentional torts torts as as medical medical malpractice — is the malpractice --is the crux crux of of the the

appeal of Judge appeal Judge Anders' Order (3098 Anders' Order 2023); however, (3098 EDA 2023); however, to to the extent extent that that it it relates to to this

striking Plaintiff's Court's Orders striking Plaintiff's Certificates of Merit, this Court relies on its November 13, 13,

Opinion docketed with the November 13, 2023 Order, as the Opinion 2023 Opinion Opinion addresses the factual

averments of the Complaint Complaint and why why such certificates are required required pursuant pursuant to Pa.R.C.P Pa.R.C.P 1042.3. 1042.3

Additionally, on December 4, 2023, Plaintiff Additionally, 3 filed aaNotice Plaintiff untimely filed Notice of Appeal Appeal to to the Court the Superior Court from Judge Anders' from Judge Anders' March March 23, 23, 2023 2023 Order. Order. Pursuant to Pa. R.C.P. R.C.P, 1042.3, aaPlaintiff must file a a Certificate of Merit to proceed proceed with

a a claim of professional professional liability against against a professional. Our Supreme Court discussed a licensed professional.

the purpose purpose behind behind and and need adoption of such Rule in Womer v. need for the adoption Hilliker4,specifically v». Hilliker,

stating:

We adopted these We adopted these rules rules in January of in January of 2003, 2003, having having determined thatthat malpractice malpractice actions were being being commenced in the Pennsylvania Pennsylvania courts more frequently. frequently, We were concerned that this trend would lead to an increase in the filingfiling of malpractice claims of malpractice claims of questionable questionable merit, merit, and and sought sought to to avoid avoid the the burdens burdens that that such claims impose impose upon upon litigants litigants and the courts. courts. Therefore, we exercised our rule-making authority rule-making authority to devise an to devise an orderly orderly procedure procedure that that would serve to would serve to identify identify and weed non-meritorious and weed non-meritorious malpractice malpractice claims claims from from the the judicial judicial system system efficiently efficiently and and promptly. promptly.'5

Accordingly, Accordingly, the Court set forth the language Subsection (a) language of the Rule in Subsection (a) as follows:

(a) In any (a) any action based upon an allegation allegation that aalicensed professional professional deviated from an acceptable acceptable professional professional standard, the attorney for for the the plaintiff, plaintiff, or the plaintiff plaintiff if not represented, shall file with the complaint or within sixty days after the filing filing of the complaint, complaint, a acertificate of merit signed signed by by the attorney attorney or party party that that either either (1) an (I) appropriate licensed an appropriate licensed professional professional has has supplied supplied a a written statement written statement that there exists aareasonable probability that the care, skill or knowledge exercised or exercised exhibited in or exhibited in the the treatment, treatment, practice practice or or work work that that is the subject is the subject of of the the complaint, fell complaint, fell outside outside acceptable professional professional standards and and that that such conduct was was a cause in a cause in bringing bringing about about the the harm, or harm, or (2) the claim that the defendant deviated from an acceptable (2) acceptable professional professional standard is based solely allegations that other licensed professionals solely on allegations professionals for whom this defendant is responsible responsible deviated from an acceptable professional professional standard, or (3) expert testimony () expert appropriate licensed professional testimony of an appropriate professional is unnecessary unnecessary for for prosecution prosecution of of the claim. 6 the claim.°

While subsection subsection (a)(3) (a)6) permits permits the filing filing of a a Certificate of Merit, under signature signature of the

plaintiff plaintiff or or plaintiffs counsel, plaintiffs counsel, that that avers avers that "expert testimony testimony of an an appropriate appropriate licensed

professional is professional is unnecessary for prosecution prosecution of the claim" the claims in the instant matter do not

fall fall within within the the parameters parameters of that subsection, subsection, as discussed below. below.

908 A.2d 269 '908 4 269 (Pa. (Pa. 2006). Id. at 'IL 5 275. at275. 6Pa.R.C.P 1042.3(a). Pa.RC.P 1042.3(a) Here, Plaintiff avers that his claims sound in intentional tort rather than professional

negligence and, as such, the instant claims will not require a ashowing that a a licensed professional

deviated from an acceptable professional standard and, thus, not require expert testimony, testimony. This

Court disagrees. In this Commonwealth, medical malpractice has long been characterized as the

"unwarranted departure from generally accepted standards of medical practice resulting in injury unwarranted

to aapatient, including all liability-producing conduct arising from the rendition of professional

services."' Our Superior Court has identified the two defining characteristics of aa medical services."

medical malpractice claim as, first, that "medical malpractice can occur only within the course of

aaprofessional relationship" and, second, that "claims of medical malpractice necessarily raise

questions questions involving medical judgment." judgment."& While the elements of professional negligence parallel

those; those of ordinary negligence, our jurisprudence requires that a in a a plaintiff in a medical malpractice

action action "establish aaduty owed by the physician to the patient, a a breach of that duty by the

physician, that the breach was the proximate cause of the harm suffered, and the damages

suffered were a adirect result of the harm." harm. "9 The Supreme Court has clarified that "[blecause "[b]ecause the

negligence of a a physician encompasses matters not within the ordinary knowledge and

experience of laypersons a amedical malpractice plaintiff must present expert testimony" to

establish such elements. establish such elements."10

Plaintiff's Plaintiff's instant claims arise out of the medical treatment he received after aafall on

August 5, 2020. On August 6, 2020 he presented to Defendants for medical treatment through

the emergency room. Apparently, Plaintiff believed he had injured his head and requested

'Toogood v. Twogood Owen J. v. Owen Rogal, D.D.S., A. Rogal, P.C., 824 D.D.S, P.C, 824 A.2d A.2d 1140, 1140, 1145 1145 (Pa. (Pa. 2003). 2003) Ditch v. pitch 8 Waynesboro Hosp., v. Waynesboro 917 A.2d Hosp,917 317, 322 A.244 317, 322 (2007) (2007) (citing Grossman v. (citing Grossman v. Barke, 868 A.2d Barke, 868 A.2d 561, 561, 570 570 (Pa.Super. 2005). (Pa.Super. 2005) 9 Toogood v. 'Togoodd' v. Owen J. Rogal, D.D.S., DDS, P. C,824 P.C., 824 A.2d A.2d 1140, 1140, 1145 1145 (Pa. (PA. 2003). 2003). 10 Toogood v. Toogood • Owen J. Rogal, D.D.S., P. Rogal, D.DS, C, 824 A.2d 1140, P.C., 1140, 1145 1145 (Pa. (Pa. 2003). 2003) imaging of his head; however, the treaters are alleged imaging alleged to have only performed orthopedic studies studies.

The averments in Plaintiff's pleadings pleadings are premised on Defendants' refusal to provide the

requested medical care with numerous claims that the personnel were improperly trained

students and didn't properly document the treatment in the emergency room.

Because the gravamen gravamen of Plaintiffs legal claims rest on his factual averments that

Defendants should have provided provided him certain treatment, or been better trained, such claims sound

entirely in professional entirely negligence --— not intentional tort -— and demand that Plaintiff establish the professional negligence

requisite elements of aaprofessional negligence action at trial. As such, it was incumbent upon

Plaintiff to file proper Certificates of Merit from from a a licensed professional to satisfy Pa.R.C.P Pa.R.C.P.

1042.3(a). Despite the ample opportunity provided by this Court to Plaintiff Plaint to to file the appropriate

certificate(s), Plaintiff continued to file deficient certificates certificates (not signed by a alicensed professional)

asserting that this matter was one in which res ipsa asserting ipsa loquitor applied or that his claims were

premised on intentional infliction of emotional distress or other theories, not medical malpractice.

Accordingly, Plaintiff failed to comply with the mandates of Rule 1042.3 and this Court

necessarily granted Defendants' Motion to necessarily granted to Strike the Certificates of Merit.

CONCLUSION CONCLUSION For the reasons set forth in this Opinion, the Superior Court should affirm this Court's

grant of the Motion to Strike Plaintiff's grant Plaintiff sCertificate of Merit in 2023 (November in 2974 EDA 2023 (November 13,

2023 Order) and quash the appeal in 3099 EDA 2023 2023 (April (April 11, 2023 Order) as untimely.

BY T