Sabo v. Worrall

959 A.2d 347, 2008 Pa. Super. 223, 2008 Pa. Super. LEXIS 2638
Superior Court of Pennsylvania·Decided September 22, 2008·Published·Cited by 8 cases

Opinion

OPINION BY

POPOVICH, J.:

¶ 1 Appellant Sharon Sabo, individually and as personal representative of the Estate of Helen P. Altieri, deceased, appeals the judgment of non pros entered in favor of Appellees V. Thomas Worrall III, M.D., Three Rivers Orthopedic Associates— UPMC, UPMC St. Margaret, Siri M.B. DeSilva, M.D., and Michael Trombley, M.D., claiming that her counsel’s omission in filing certificates of merit (“COM”) being inadvertent, the trial court abused its discretion in not opening the judgment of non pros. We reverse.

¶ 2 The relevant facts and procedural history of this case are not in dispute. On the 16th day of June, 2006, Appellant filed a complaint seeking damages for the wrongful death of Helen P. Altieri attributable to Appellees’ medical malpractice. On August 17, 2006, Appellees filed a prae-cipe for the entry of a judgment of non pros when Appellant failed to file a COM pursuant to Pa.R.C.P. 1042.6.1 The next day, Appellant received notice that a judgment of non pros had been entered pursuant to Pa.R.C.P. 1042.3.2 On September 12, 2006, a petition to open the judgment of non pros was filed claiming that Appellant’s expert (Dr. Gary J. Sprouse) had completed a report dated February 27, 2006, which stated that the care provided by Appellees fell below the standard of medical care owed to Ms. Altieri and caused her harm.3 The trial court noted that Dr. Sprouse’s deposition supported Appellant’s medical malpractice claim.

¶ 3 In the petition to open and the affidavit of Appellant’s counsel,4 it was [349] averred that within several days of filing the complaint a COM was prepared and placed in counsel’s file. After counsel reviewed the COM for each Appellee, he believed they were filed with the prothono-tary by his paralegal, but this assumption proved erroneous with his receipt of the entry of the non pros judgments. Appellant perfected an appeal from the trial court’s denial of the petition seeking to open the judgment of non pros claiming that counsel’s failure to assure that his paralegal filed the COM was excusable as a mere clerical oversight, especially given counsel’s possession of his expert’s report of medical malpractice by Appellees prior to filing the COM pursuant to Rule 1042.3.

¶4 More particularly, Appellant claims that the trial court’s reliance upon Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269 (2006), was misplaced in that here, counsel incorrectly assumed that the COM was filed after the expert’s report had been secured, whereas in Womer, the plaintiffs counsel had mistakenly believed that he had complied with Rule 1042.3 by serving the defendant with a copy of his expert’s report. The Pennsylvania Supreme Court took the position that the mistake alleged by counsel was not a reasonable explanation allowing for the opening of the judgment of non pros.

¶ 5 Herein, the trial court’s previous practice was to allow a judgment of non pros to be opened when the plaintiff obtained a written statement from a licensed professional that there existed a reasonable probability that the care provided fell outside acceptable professional standards and that such conduct was a cause in bringing about harm, provided such statement was secured prior to the date a judgment of non pros could be entered for failure to file a COM. This practice was consistent with Harris v. Neuburger, 877 A.2d 1275 (Pa.Super.2005) (delivery of an expert report to the defendants’ counsel by the plaintiffs attorney satisfied Rule 1042.3), but Neuburger was disapproved of by Womer. Id., at 271 n. 10, 908 A.2d at 278-79 n. 10. Thus, the trial court did not embrace Appellant’s expansive reading of Womer to sanction the omission in this case as excusable conduct even though it was the result of a clerical oversight.

¶ 6 In Womer, the plaintiff took no steps to file a COM in accordance with Rule 1042.3. Upon praecipe of the defendant, the trial court entered a judgment of non [350] pros pursuant to Rule 1042.6 for failing to file the COM. The plaintiff immediately filed a motion to open the judgment based upon the fact that he had served an expert report on the defendant prior to Rule 1042.3’s time limit having expired, that this information included everything Rule 1042.3required, that the defendant was not prejudiced, and that counsel’s oversight or mistake caused the omission. The Pennsylvania Supreme Court disagreed and denied the petition to open the judgment of non pros, and in the course of doing so stated, as herein relevant:

In this appeal, our primary focus is on Pa.R.C.P. No. 1042.3 and whether it is subject to equitable exceptions. We first observe that the Pa.R.C.P. No. 1042.3itself sets forth no exceptions, equitable or otherwise, to its terms. [...] Therefore, in this regard, we focus, as did the lower courts and the parties, on Pa.R.C.P. No. 126, and consider whether the Superior Court should have allowed Rule 126 to play any part in excusing Womer’s failure to file a Rule 1042.3COM.

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Sabo v. Worrall, 959 A.2d 347, 2008 Pa. Super. 223, 2008 Pa. Super. LEXIS 2638 (Pa. Ct. App. 2008).

959 A.2d 347 (Sabo v. Worrall) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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