O'Hara v. Randall

879 A.2d 240
CourtSuperior Court of Pennsylvania
DecidedJune 30, 2005
StatusPublished
Cited by9 cases

This text of 879 A.2d 240 (O'Hara v. Randall) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Hara v. Randall, 879 A.2d 240 (Pa. Ct. App. 2005).

Opinion

OPINION BY

BOWES, J.:

¶ 1 Dr. Ronald Richterman, Dr. Edward Carey, Dr. Akram Zaiatimo, Dr. Minda Bermudez, Valley Open MRI & Diagnostic Center (“Valley MRI”), Burns, Rumbaugh, Carlisle & Rittenberg Urologic Associates (“Urologic Associates”), and Dr. Charles Burns, Jr. (collectively “Appellants”) challenge orders vacating judgments of non pros entered in this medical malpractice action for failure to file certificates of merit in accordance with Pa.R.C.P. 1042.3(a). Upon review, we vacate and remand with instructions.

¶ 2 The record establishes the following. On December 19, 2003, Beth O’Hara, Ap-pellee herein, filed a complaint against numerous physicians and health care providers alleging that they were negligent in diagnosing and treating cysts that caused her to suffer acute abdominal pain while she was pregnant with her daughter, who was born on August 26, 2000. Dr. Richt-erman filed preliminary objections on January 5, 2004, and Appellee filed an amended complaint on January 23, 2004, rendering the preliminary objections moot. Thereafter, on February 10, 2004, Dr. Carey filed preliminary objections to the amended complaint, and Appellee responded by filing a second amended complaint on February 17, 2004.

¶ 3 On February 18, 2004, Dr. Zaiatimo filed a praecipe for entry of judgment of non pros pursuant to Pa.R.C.P. 1042.6, which states that on praecipe of a defendant, the prothonotary “shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that there is no [242]*242pending timely filed motion seeking to extend the time to file the certificate.” Dr. Richterman then filed a praecipe for judgment of non pros on February 20, 2004, and Dr. Bermudez, Dr. Burns, Valley MRI, and Urologic Associates filed a prae-cipe for judgment of non pros on February 23, 2004. In accordance with Rule 1042.6, the prothonotary entered a judgment of non pros in favor of each defendant.1

¶4 On February 24, 2004, four days after the prothonotary entered a judgment of non pros in his favor, Dr. Richterman filed preliminary objections to Appellee’s second amended complaint. Similarly, Dr. Carey filed preliminary objections on March 1, 2004, and filed a praecipe for entry of judgment of non pros on March 8, 2004. In the interim, Appellee filed a motion to strike all judgments of non pros on the grounds that the defendants’ praecipes had been filed prematurely. Specifically, Appellee argued that she was not required to file certificates of merit until sixty days from the filing date of her second amended complaint. In leveling this claim, Appellee asserted, inter alia, that Dr. Richterman and Dr. Carey violated Pa.R.C.P. 1042.4 by filing preliminary objections to the initial complaint and the first amended complaint prior to the expiration of the original sixty-day period for filing certificates of merit. See Pa.R.C.P. 1042.3 (in any action premised on allegation of malpractice by licensed professional, attorney for plaintiff or pro se plaintiff shall file certificate of merit signed by attorney or party within sixty days after filing of complaint).

¶ 5 By order dated March 30, 2004, the trial court vacated the judgments of non pros entered in favor of Dr. Zalatimo, Dr. Richterman, Dr. Bermudez, Dr. Burns, Dr. Carey, Valley MRI, and Urologic Associates.2 The order also provided that Appel-lee had sixty days from her last amended complaint to file certificates of merit pursuant to Rule 1042.3. On April 5, 2004, Appellee filed a third amended complaint, which Dr. Richterman answered on April 12, 2004. Then, on May 5, 2004, Appellee’s counsel filed a petition to withdraw indicating that he was unable to obtain an expert report that would support her negligence claims against the defendants. Counsel subsequently filed a motion for extension of time in which to file certificates of merit in an effort “to protect Appellee’s interests while counsel withdrew [from] representation.” Appellee’s brief at 1.

¶ 6 Appellants filed motions for reconsideration seeking to reinstate the judgments of non pros, which the trial court denied. The court also declined to certify the case for appellate review pursuant to Pa.R.A.P. 1311(a). Thereafter, Dr. Richt-erman filed a petition for review with this Court pursuant to Pa.R.A.P. 1511, which was granted by per curiam order dated July 14, 2004; as a result, the trial court ruled that counsel’s motion to withdraw was premature and issued an order staying the proceedings pending our decision. [243]*243This appeal followed, wherein Appellants maintain that the trial court erred in vacating the judgments of non pros.

¶ 7 Our standard of review is settled:

A request to open a judgment of non pros is by way of grace and not of right and its grant or refusal is peculiarly a matter for the [trial] court’s discretion. We are loathe to reverse the exercise of the court’s equitable powers unless an abuse of discretion is clearly evident.

Kruis v. McKenna, 790 A.2d 322, 324 (Pa.Super.2001) (quoting MacKintosh-Hemphill International, Inc. v. Gulf & Western, Inc., 451 Pa.Super. 385, 679 A.2d 1275, 1278-79 (1996)).

¶ 8 Initially, we address Appellee’s contention that this appeal was improvidently granted. Appellee claims that no actual controversy exists because “[Appellants had and still have the ability to enter a judgment of non pros in the [c]ourt below for the failure to file a certificate of merit.” Appellee’s brief at 5. Consistent with this view, Appellee posits that Appellants are “seeking an advisory opinion ....” Id. We disagree.

¶ 9 Contrary to Appellee’s position, this case does present a justiciable controversy. Appellants claim that the judgments of non pros should have been affirmed because Appellee admittedly failed to file certificates of merit, as required by Pennsylvania Rules of Civil Procedure. Appel-lee, on the other hand, maintains that none of the Appellants was entitled to entry of a judgment of non pros. Thus, Appellants are asserting a present claim of right against Appellee, who is contesting that right. Moreover, Appellants’ arguments are premised on an existing factual record and not upon future circumstances that might not arise. Accordingly, we reject Appellee’s contention that this Court lacks authority to hear the appeal.

¶ 10 We now examine the controversy surrounding the trial court’s decision to vacate the judgments of non pros entered in accordance with Rule 1042.6. Appellee posits that the court acted appropriately under the circumstances because some of the defendant physicians filed preliminary objections before the initial sixty-day period for filing certificates of merit had expired, resulting in a violation of Rule 1042.4, which states:

Rule 1042.4. Responsive Pleading
A defendant against whom a professional liability claim is asserted shall file a responsive pleading within the time required by Rule 1026 or within twenty days after service of the certificate of merit on that defendant, whichever is later.

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Cite This Page — Counsel Stack

Bluebook (online)
879 A.2d 240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohara-v-randall-pasuperct-2005.