J-S43010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RENEE LYNN FAZEKAS                                IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                         Appellant

                    v.

TUAN-ANH L. UNG, M.D.

                         Appellee                   No. 1548 WDA 2017


            Appeal from the Judgment Entered October 31, 2017
            In the Court of Common Pleas of Washington County
                      Civil Division at No: 2012-3631


BEFORE: STABILE, DUBOW, and NICHOLS, JJ.

MEMORANDUM BY STABILE, J.:                     FILED NOVEMBER 30, 2018

      Nominal Appellant, Plaintiff Renee Lynn Fazekas, appeals the judgment

in favor of Appellee, Defendant Tuan-Anh L. Ung and the imposition of

sanctions on George Chada, Appellant’s former attorney, for $114,502.02

pursuant to Rule 1049.2 of the Pennsylvania Rules of Civil Procedure. We

affirm.

      The record reflects that Appellant delivered a child by Cesarean section

at Washington Hospital on June 4, 2010. Within a few days of delivery, she

experienced complications with her incision and went to the Monongahela

Valley Hospital emergency room where she was treated by Appellee Dr. Tuan-

Anh L. Ung.    Several days after visiting the Monongahela Valley ER, she

learned her incision was infected with clostridium difficile (“C-diff”). On May

30, 2012, Appellant filed a writ of summons naming Washington Hospital,
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Monongahela Valley Hospital, Dr. Ung, and two doctors who delivered her

baby as defendants. She filed a medical malpractice complaint on July 30,

2012 alleging the C-diff resulted from exposure at the Monongahela Valley ER.

       On August 30, 2012, Appellant’s original attorney filed a motion in which

he (1) sought permission to withdraw due to ill health; (2) stated that he had

been unable to obtain a certificate of merit (“COM”) pursuant to Pa.R.C.P. No.

1042.3;1 and (3) and requested an extension of time for Appellant to file a

certificate of merit. The trial court entered an order the same day permitting

Appellant’s attorney to withdraw and granting Appellant an additional thirty

days to file her COM. Appellant failed to meet the extended COM deadline,




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1   Rule 1042.3 provides in pertinent part:

              (a) In any action based upon an allegation that a licensed
       professional deviated from an acceptable professional standard,
       the attorney for the plaintiff, or the plaintiff if not represented,
       shall file with the complaint or within sixty days after the filing of
       the complaint, a certificate of merit signed by the attorney or party
       that either

             (1) an appropriate licensed professional has supplied a
       written statement that there exists a reasonable probability that
       the care, skill or knowledge exercised or exhibited in the
       treatment, practice or work that is the subject of the complaint,
       fell outside acceptable professional standards and that such
       conduct was a cause in bringing about the harm, or

Pa.R.C.P. No. 1042.3(a)(1).



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and on October 2, 2012, Appellee filed a notice of intent to enter a judgment

of non pros, pursuant to Pa.R.C.P. No. 1042.6.2

       On October 30, 2012, Chada entered his appearance for Appellant and

filed a COM as to Appellee.3 Chada subsequently withdrew his appearance

and on September 26, 2013, the law firm Phillips and Faldowski, P.C., entered

its appearance for Appellant in September of 2013. Prior to the Phillips firm’s

entry of appearance, on September 18, 2013, Attorney William D. Phillips

procured a written report from Dr. Leo Frangipane, and Phillips filed a new

COM based on Dr. Frangipane’s report after the Phillips firm’s entry of

appearance.

       The case proceeded through two unsuccessful mediations, after which

the trial court scheduled a jury trial for February of 2017. In November of

2016, the Phillips firm moved to withdraw its appearance on behalf of

Appellant, citing irreconcilable differences and eventual loss of contact with

Appellant. The trial court granted the motion and gave Appellant 40 days to

procure new counsel.        Appellant never procured new counsel and failed to

appear at any subsequent court proceedings. On January 12, 2017, Appellee

petitioned for a rule to show cause why a judgment of non pros should not be

entered against Appellant. Subsequently, on May 3, 2017, Appellee moved


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2 Rule 1042.6 permits a defendant to seek entry of judgment non pros where
the plaintiff fails to file a COM. Pa.R.C.P. No. 1042.6.

3   Appellant eventually stipulated to the dismissal of all other defendants.

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for Rule 1042.9 sanctions against Chada after Chada failed to produce

documentation to support his October 30, 2012 COM. Rule 1042.9 provides:

             (a) If a plaintiff has filed a certificate of merit as to a
      particular defendant and that defendant is dismissed from the
      case through voluntary dismissal, verdict or order of court, the
      plaintiff, within thirty days of the written request of that
      defendant, shall provide him or her with the written statement
      obtained from the licensed professional upon which the certificate
      of merit as to that defendant was based. If a plaintiff’s claims
      against other licensed professionals are still pending, the written
      statement shall be produced within thirty days of resolution of all
      claims against the other licensed professionals.

             (b) A court may impose appropriate sanctions, including
      sanctions provided for in Rule 1023.4, if the court determines that
      an attorney violated Rule 1042.3(a)(1) and (2) by improperly
      certifying that an appropriate licensed professional has supplied a
      written statement that there exists a reasonable probability that
      the care, skill or knowledge experienced or exhibited in the
      treatment, practice or work that is the subject of the complaint,
      fell outside acceptable professional standards and that such
      conduct was a cause in bringing about the harm.

Pa.R.C.P. No. 1042.9.

      The trial court permitted Chada time to search his own files and to take

a deposition of Attorney Phillips.   Chada was unable to locate any written

statement from a licensed professional supporting his October 30, 2012 COM.

Phillips testified that, when he took over the case, he vaguely recalled seeing

a report in support of Chada’s COM:

             Q.    Could you please describe for the Court what you
      recall from that underlying report that supported the certificate of
      merit?

            A.   There was a letter that I saw that had about maybe a
      three-sentence, four-sentence paragraph from a physician



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      someplace in Pittsburgh who I believe was a surgeon whose name
      I cannot remember, but it was either Indian or Southeast Asian.

           And this person wrote in this letter, as I remember, I believe
      he said that he currently treated [Appellant] and that he was
      aware of the problems with her, I guess her surgical wound
      opened after a C-section, and she got septic, as I recall.

            This may not be in exact sequence, but this is what I read,
      that he was familiar with the records from Mon Valley Hospital and
      [Appellant’s] ob-gyn, and that in his view the treatment she
      received at Mon Valley Hospital emergency room, and I don’t
      remember what date it was, was beneath the standard of care,
      along with that of her subsequent treatment by her ob-gyn and
      caused her injury.

            Q.    As you interpreted that, that was the underlying
      opinion that supported the claim against [Appellee]?

            A.    As far as I could see, yes.

            Q.    In your opinion was that certificate of merit sufficient
      to support the claim against [Appellee]?

                                      […]

            Q.    You can answer the question.

            A.    I believe it was.

N.T. Deposition, 7/18/17, at 7-8.

      On further questioning, Phillips stated that the document supporting

Chada’s October 30, 2012 COM “didn’t meet what I would like, okay, but that

doesn’t mean it didn’t meet the standard. That’s all I can tell you.” Id. at 16.

Phillips could not recall many details of the letter, including the date, whether

it was signed, the experience or education of the physician who wrote it, or

the status of the physician’s license. Id. at 17-20. Phillips never attempted




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to contact the physician. Id. at 20. Phillips was unable to locate a copy of

the letter. Id. at 21.

       Explaining his decision to procure another written statement, Phillips

stated:

              The best way I could tell you is this in my judgment was
       enough to initiate this case by somebody else, but it wasn’t
       enough for me to proceed with it without getting this exhibit, this
       letter from Dr. Frangipane. That’s the only way I can express
       that. You couldn’t take the case to the jury with that. In terms
       of if you got to a pretrial conference, you’d need more. And that’s
       why I got more.

             But in my view of this, there’s a bit of a difference between
       using a report to issue a writ and filing it in a pretrial statement.

Id. at 23.

       Chada was never able to locate the short statement that potentially

supported Chada’s COM. Thus, Chada failed to comply with Rule 1042.9 and

the trial court sanctioned him as set forth above. On October 31, 2017, the

trial court entered judgment in favor of Appellee and against Chada for the

aforementioned amount of sanctions.4

       On appeal, Appellant does not challenge the award of sanctions on its

merits, nor does Appellant challenge the amount. The only assertion of error

is that the trial court lacked jurisdiction to order sanctions because Appellee


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4  The trial court entered its sanctions order on September 21, 2017. This
appeal was filed on October 20, 2017, prior to entry of judgment. We will
treat the appeal as arising from the October 31, 2017 judgment, which
incorporated the judgment non pros in favor of Appellee as well as the trial
court’s September 21, 2017 sanctions order.

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failed to join Phillips, an indispensable party. In the argument section of the

brief, spanning roughly two full pages, Appellant claims Phillips should have

been joined as an indispensable party to the sanction proceeding because

Phillips is liable for having lost the written statement supporting Chada’s COM,

and because Chada now has the right to pursue a negligence cause of action

against Phillips. See Appellant’s Brief at 7.

      “Under Pennsylvania law, the failure to join an indispensable party

implicates the trial court’s subject matter jurisdiction. Orman v. Mortg. I.T.,

118 A.3d 403, 406 (Pa. Super. 2015) (citing Pa.R.C.P. No. 1032). “Whether

a court has subject matter jurisdiction presents a question of law, making our

standard of review de novo and the scope of our review plenary. Id.

              [A] party is indispensable when his or her rights are so
      connected with the claims of the litigants that no decree can be
      made without impairing those rights. If no redress is sought
      against a party, and its rights would not be prejudiced by any
      decision in the case, it is not indispensable with respect to the
      litigation. We have consistently held that a trial court must weigh
      the following considerations in determining if a party is
      indispensable to a particular litigation.

            1. Do absent parties have a right or an interest related to
      the claim?

            2. If so, what is the nature of that right or interest?

            3. Is that right or interest essential to the merits of the
      issue?

            4. Can justice be afforded without violating the due process
      rights of absent parties?

Id. at 406–07 (internal citations and quotation marks omitted).



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      Application of the foregoing legal principles is very straightforward.

Assuming without deciding that indispensable party analysis applies to a

sanctions proceeding (Chada is not a party to this action and Appellant’s brief

does not explain how Phillips could have been joined), Phillips was not

indispensable because Appellee sought no redress against him. Phillips was

able to produce Dr. Frangipane’s detailed written statement in support of the

COM he filed, and therefore Appellee sought no sanctions against Phillips.

Phillips had no discernable right or interest related to Appellee’s motion for

sanctions against Chada, let alone an essential one. Likewise, the award of

sanctions against Chada had no discernible effect on any of Phillips’ due

process rights.

      Concerning Chada’s contention that he has a negligence cause of action

against Phillips (we express no opinion on the legal viability of that assertion),

we observe that Rule 1042.9 charges the attorney who filed the COM to

produce supporting documentation. Phillips’ temporary possession of a letter

supporting Chada’s COM did not relieve Chada of his obligation comply with

Rule 1049.2.

      Because Appellant’s sole argument lacks merit, we affirm the judgment.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2018




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