J. A14013/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL GERA (DECEASED),               :     IN THE SUPERIOR COURT OF
DOROTHY GERA, MICHAEL G. GERA          :           PENNSYLVANIA
AND JOHN M. GERA,                      :
                                       :
                       Appellants      :
                                       :
                  v.                   :
                                       :
MARYLOU RAINONE, D.O.,                 :         No. 1951 MDA 2013
ROBERT DECOLLI, JR., D.O., AND         :
SCHUYLKILL MEDICAL CENTER              :


            Appeal from the Judgment Entered October 2, 2013,
             in the Court of Common Pleas of Schuylkill County
                      Civil Division at No. S-641-2013



MICHAEL GERA, DECEASED,          :           IN THE SUPERIOR COURT OF
DOROTHY GERA, MICHAEL G. GERA,   :                 PENNSYLVANIA
AND JOHN M. GERA                 :
                                 :
                v.               :
                                 :
MARYLOU RAINONE, D.O.,           :
ROBERT DECOLLI, JR., D.O.,       :
SCHUYLKILL MEDICAL CENTER        :
                                 :
APPEAL OF: DOROTHY GERA,         :
MICHAEL G. GERA AND JOHN M. GERA ::              No. 2163 MDA 2013
                                 :
                    Appellants   :


             Appeal from the Order Entered November 1, 2013,
             in the Court of Common Pleas of Schuylkill County
                       Civil Division at No. S-641-13


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ.



* Retired Senior Judge assigned to the Superior Court.
J. A14013/14



MEMORANDUM BY FORD ELLIOTT, P.J.E.:          FILED NOVEMBER 06, 2014

     Dorothy Gera, Michael G. Gera, and John M. Gera (collectively,

“appellants”), pro se, initiated this medical malpractice action by filing a

praecipe for writ of summons on April 5, 2013.     Subsequently, on May 7,

2013, a rule was entered to file a complaint within 20 days or suffer a

judgment of non pros. Appellants filed their complaint on May 10, 2013,

bringing numerous claims including for medical malpractice, negligence,

infliction of emotional distress, and loss of consortium.   Appellants alleged

that the 79-year-old decedent, Michael Gera, presented to Schuylkill Medical

Center (“SMC”) on April 6, 2011, for an exploratory laparotomy with right

hemicolectomy for a cecal mass.      According to the medical records, he

tolerated the procedure well and his wounds were intact; however, by April 9

he was complaining of nausea and had a low grade temperature. A CT scan

of the abdomen revealed a large amount of peritoneal fluid and the decedent

was brought to the operating room on April 10, 2011, where he underwent

an exploratory laparotomy. Post-operatively, the decedent was kept on the

ventilator. On April 16, 2011, there was a “code blue” and the decedent was

unresponsive and non-verbal.      He was transferred to Geisinger Medical

Center on May 9, 2011, with diagnoses including sepsis and acute

respiratory failure. The decedent died on July 1, 2011. Appellants alleged

that defendants-appellees failed to properly diagnosis and treat the

decedent’s post-operative condition which led to his death.


                                    -2-
J. A14013/14


     On June 11, 2013, appellees filed notice of intention to enter judgment

of non pros for failing to file a Certificate of Merit (“COM”) as required by

Pa.R.C.P. 1042.3 for professional liability claims.      On July 9, 2013,

appellants filed a COM for each defendant, certifying that expert testimony

of an appropriate licensed professional was unnecessary for prosecution of

the claim. See Pa.R.C.P. 1042.3(a)(3). Thereafter, appellees filed motions

to strike and for entry of judgment of non pros.           Appellants filed a

response, again claiming that expert testimony was unnecessary where the

defendants’ conduct was so grossly negligent that it was within the common

knowledge of laypersons.

     On August 26, 2013, the trial court granted appellees’ motions in part,

and denied them in part.     The trial court found that appellants failed to

comply with Pa.R.C.P. 1042.3(e),1 which the trial court interpreted as

prohibiting a pro se litigant from filing a COM stating that expert testimony

is not required in their case under Rule 1042.3(a)(3). According to the trial


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

Pa.R.C.P. 1042.3(e).


                                    -3-
J. A14013/14


court, only an attorney can file a COM pursuant to Rule 1042.3(a)(3).

(Order, 8/26/13 at 4.)2 However, the trial court denied appellees’ requests

for    judgments   of   non   pros   because    they      failed   to   comply   with

Pa.R.C.P. 1042.11, requiring written notice of intent to enter a judgment of

non pros for failure to file a written statement. (Id. at 6.)

        Subsequently, appellees filed notices of intent to enter judgment of

non pros within 30 days for failure to file a written statement from an

appropriate    licensed   professional    pursuant   to     Rule    1042.11.      On

September 25, 2013, appellants filed a response to the trial court’s

August 26, 2013 order striking their COM. Appellants reiterated their claim

that expert testimony was unnecessary and disagreed with the trial court’s

interpretation of Rule 1042.3(e) that a pro se plaintiff cannot file a COM

under Rule 1042.3(a)(3).

        On October 1-2, 2013, appellees filed praecipes for entry of judgment

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

licensed professional pursuant to Pa.R.C.P. 1042.12.               The prothonotary

entered judgments of non pros against appellants and in favor of each

defendant/appellee on October 1 and 2, 2013. Instead of filing a petition to

open and/or strike off the judgments of non pros, appellants filed a notice

of appeal on October 31, 2013, which was docketed by this court at

No. 1951 MDA 2013.        By order filed November 1, 2013, in view of the


2
    The pages of the order are unnumbered; pagination is by our own count.


                                         -4-
J. A14013/14


judgments of non pros entered by the prothonotary, the trial court

denied/dismissed all outstanding motions as moot and discharged the

defendants.

      On November 13, 2013, while the appeal at No. 1951 MDA 2013 was

pending, appellants filed with the trial court a “petition pursuant to

Pa.R.C.P. 3051 for relief from judgment of non pros.” Appellants’ petition

was denied on November 20, 2013, without comment.              On December 2,

2013, this court issued a rule to show cause why the appeal at No. 1951

MDA 2013 should not be quashed as premature.            We noted that a direct

appeal does not lie from entry of a judgment of non pros; an appellant

must first seek relief in the trial court, and failure to do so results in waiver.

Gera, et al. v. Rainone, et al., No. 1951 MDA 2013, per curiam order

(Pa.Super. filed December 2, 2013), citing Pa.R.C.P. 3051; Womer v.

Hilliker, 908 A.2d 269 (Pa. 2006); Madrid v. Alpine Mountain Corp., 24

A.3d 380, 381-382 (Pa.Super. 2011), appeal denied, 40 A.3d 1237 (Pa.

2012).

      Appellants did not respond to the show cause order; however, on

December 3, 2013, appellants filed another appeal at No. 2163 MDA 2013,

appealing the November 1, 2013 order discharging appellees and denying

and dismissing all of their outstanding motions as moot. Appellants’ appeal

notice also referenced the trial court’s November 20, 2013 order denying

their Rule 3051 petition. The trial court filed a Pa.R.A.P. 1925(a) opinion on



                                      -5-
J. A14013/14


December 20, 2013, directing this court to its August 26, 2013 order. On

December 26, 2013, this court discharged the show cause order and

referred the matter to the merits panel. The appeals at No. 1951 MDA 2013

and No. 2163 MDA 2013 were consolidated sua sponte.

           The Pennsylvania Rules of Civil Procedure set forth
           provisions which apply specifically to professional
           liability actions and require a certificate of merit as a
           prerequisite to the action. See Pa.R.C.P. 1042.1-
           1042.8. Rule 1042.3, pertaining to the certificate of
           merit, states in relevant part:

           (a)   In any action based upon an allegation
                 that a licensed professional deviated
                 from       an     acceptable    professional
                 standard, the attorney for the plaintiff
                 . . . 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

                 (2)   the claim that the defendant
                       deviated from an acceptable
                       professional    standard    is
                       based solely on allegations
                       that      other      licensed


                                     -6-
J. A14013/14


                       professionals for whom this
                       defendant     is  responsible
                       deviated from an acceptable
                       professional standard, or

                 (3)   expert   testimony     of   an
                       appropriate           licensed
                       professional is unnecessary
                       for prosecution of the claim.

          ....

                 [1]   (d) The court, upon good
                           cause shown, shall
                           extend the time for
                           filing a certificate of
                           merit for a period not
                           to exceed sixty days.
                           The motion to extend
                           the time for filing a
                           certificate  of    merit
                           must be filed on or
                           before the filing date
                           that the plaintiff seeks
                           to extend. The filing
                           of a motion to extend
                           tolls the time period
                           within      which      a
                           certificate  of    merit
                           must be filed until the
                           court rules upon the
                           motion.

          Pa.R.C.P. 1042.3(a), (d) (notes omitted). This rule
          applies to professional liability claims against
          licensed professionals, including ‘a health care
          provider as defined by Section 503 of the Medical
          Care Availability and Reduction of Error (MCARE)
          Act[.]’     Pa.R.C.P. 1042.1(b)(1)(i).     ‘The rule
          contemplates that a certificate of merit will be filed
          contemporaneously with or shortly after the filing of
          the complaint, and provides a 60-day window after
          the filing of the complaint to accomplish the filing of
          the certificate of merit.’ Varner v. Classic Cmtys.


                                   -7-
J. A14013/14


             Corp., 890 A.2d 1068, 1073 (Pa.Super.2006)
             (citation, internal quotation marks, and brackets
             omitted). If the rule applies and the plaintiff fails to
             provide the certificate of merit, the prothonotary
             may, on praecipe of the defendant, enter a judgment
             of non pros against the plaintiff. See Pa.R.C.P.
             1042.6.

Ditch v. Waynesboro Hospital, 917 A.2d 317, 320-321 (Pa.Super. 2007).

       In Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996 (Pa. 2001), as in

this case, the trial court granted the defendant’s motion for judgment of

non pros and dismissed the plaintiffs’ complaint with prejudice; however,

instead of filing a motion to open the judgment of non pros, the plaintiffs

filed a notice of appeal.        Id. at 997.      Our supreme court held that

Pa.R.C.P. 3051, governing relief from judgments of non pros, requires a

party to file a petition to open the non pros with the trial court rather than

seek appellate review.     Because the plaintiffs failed to file the petition to

open    as   required,   their   claims    were   deemed   waived    pursuant    to

Pa.R.A.P. 302. Id. at 1001.

       Similarly, in Krell v. Silver, 817 A.2d 1097 (Pa.Super. 2003), appeal

denied, 830 A.2d 976 (Pa. 2003), the trial court granted the defendant’s

motion for judgment of non pros. Instead of a petition to open, the plaintiff

filed a “motion for reconsideration” and an accompanying brief. Id. at 1099.

The motion was denied, and the plaintiff filed an appeal.           Id.   Following

Sahutsky, this court found that the plaintiff’s failure to file a petition to

open or strike the judgment of non pros waived all claims on appeal. Id. at



                                          -8-
J. A14013/14


1101.     We also declined to consider the motion for reconsideration as the

“functional equivalent” of a petition to open or strike, concluding that the

motion did not substantially comply with Rule 3051. Id.

         Instantly, appellants did not file a petition to open or strike the

judgments of non pros as required by Rule 3051. Although Sahutsky and

Krell did not involve a failure to comply with the COM requirements of

Rule 1042.3, the comment to Rule 3051 indicates it applies to all judgments

of non pros. Sahutsky, 782 A.2d at 999. The Sahutsky court found that

“there is nothing in Rule 3051 or its Comment to suggest that any

differentiation between the various types of non pros orders is appropriate.”

Id. at 1000. Accordingly, Sahutsky controls.

         Instead of filing the requisite Rule 3051 petition, appellants filed an

appeal directly from judgment of non pros. The failure to file a Rule 3051

petition with the trial court in the first instance operates as a waiver of any

claims of error concerning the judgment of non pros entered by the trial

court.    Sahutsky.    Therefore, all the issues raised in appellants’ brief are

waived. While we recognize the fact that appellants are pro se and that this

case sadly involves the loss of a loved one, it is well established that pro se

status confers no special benefit and “a pro se litigant must comply with the

procedural rules set forth in the Pennsylvania Rules of the Court.”

Commonwealth v. Lyons, 833 A.2d 245, 251-252 (Pa.Super. 2003),

appeal denied, 879 A.2d 782 (Pa. 2005) (citation omitted). Appellants are



                                       -9-
J. A14013/14


charged with knowing the Rules of Civil Procedure the same as a

represented plaintiff.

        We acknowledge that, subsequent to their October 31, 2013 appeal,

appellants filed a petition to open pursuant to Rule 3051 on November 13,

2013.    While not binding on this court, we find the case of Dockery v.

Borough of East Stroudsburg, 24 A.3d 485 (Pa.Cmwlth. 2011), appeal

denied, 46 A.3d 718 (Pa. 2012), to be illuminating.         In that case, the

Borough filed a motion for judgment of non pros for failure to prosecute,

which was granted and the plaintiffs’ complaint was dismissed. The plaintiffs

filed an appeal to this court, followed by a petition to open or strike the

judgment of non pros with the trial court. The trial court declined to rule on

the petition due to the pending appeal.          Subsequently, the plaintiffs

voluntarily discontinued their appeal. Id. at 486.

        The plaintiffs then filed a second petition to open or strike the

judgment of non pros, which was denied. They filed a second appeal to this

court, which transferred the matter to Commonwealth Court. Id. First, the

Commonwealth Court found that the trial court properly declined to consider

the plaintiffs’ first petition, filed while the appeal was pending.   Id., citing

Pa.R.A.P. 1701(a) (after an appeal is filed, the trial court may no longer

proceed further in the matter); Sahutsky, 782 A.2d at 1001 n.3 (a

judgment of non pros is not interlocutory and is a final, appealable order

because it fully disposes of the case). Second, once judgment of non pros



                                    - 10 -
J. A14013/14


had been entered, the case in the trial court was terminated, and even

though they discontinued their appeal, the plaintiffs could not revive it by

filing a second petition to open or strike.           Id. at 487, citing Sahutsky,

supra      (additional   citation   omitted).      Therefore,   the   Dockery   court

determined that because the plaintiffs failed to file a petition to open or

strike the judgment prior to filing the appeal, they waived all claims of error.

Id.

      Thus, in the matter sub judice, the trial court should not have

considered appellants’ November 13, 2013 petition to open, filed after an

appeal was taken from the October 1-2, 2013 judgments of non pros.

Appellants’ failure to file a petition to open or strike the judgments of

non pros before filing an appeal results in waiver of all substantive claims.

Sahutsky, supra; Dockery, supra.                  Furthermore, even if we were to

consider the November 13, 2013 petition, it is woefully inadequate.               As

stated in Krell, supra, three factors must be established in order to have a

judgment of non pros opened: First, the petition is promptly filed; second,

there is a reasonable explanation for the delay that preceded the entry of

judgment of non pros; and third, there are facts supporting a meritorious

cause of action. Krell, 817 A.2d at 1101, citing Stephens v. Messick, 799

A.2d 793 (Pa.Super. 2002). Appellants failed to address any of these three

factors.




                                         - 11 -
J. A14013/14


        Finally, we note in passing that, clearly, this is a medical malpractice

claim    requiring   a   written   statement    from    an      appropriate    licensed

professional stating that the case has merit. Appellants’ argument that their

claims sound in ordinary negligence is easily dismissed.

              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, 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.

Varner v. Classic Communities Corp., 890 A.2d 1068, 1074 (Pa.Super.

2006), quoting Grossman v. Barke, 868 A.2d 561, 570 (Pa.Super. 2005),

appeal denied, 889 A.2d 89 (Pa. 2005), in turn quoting Bryant v.

Oakpointe Villa Nursing Ctr., 471 Mich. 411, 684 N.W.2d 864, 871 (2004)

(citations and internal quotation marks omitted).

        Obviously, appellants’ claim that appellees acted negligently with

respect to performance of the laparotomy and in dealing with the decedent’s

post-surgical    complications     would   require     expert    medical      testimony


                                       - 12 -
J. A14013/14


regarding the decedent’s condition and care. Such issues are not within the

common knowledge and experience of a layperson. Cf. Merlini v. Gallitzin

Water Authority, 934 A.2d 100 (Pa.Super. 2007), affirmed, 980 A.2d 502

(Pa. 2009) (the plaintiff was not required to file a COM against a defendant

engineer where the plaintiff was essentially alleging a negligent trespass

onto her property during the placement of a waterline); Smith v. Friends

Hospital, 928 A.2d 1072 (Pa.Super. 2007) (plaintiff not required to file a

COM where she alleged she sustained injuries during her hospitalization

when she was sexually assaulted, physically assaulted, and beaten by

hospital employees; nothing in her complaint was predicated on substandard

medical treatment or deviation from an acceptable professional standard,

and her cause of action was based solely upon her allegations that she was

assaulted and beaten).    As such, we need not address the trial court’s

conclusion that Rule 1042.3(e) requires pro se plaintiffs to attach a written

statement to the COM and that only an attorney can file a COM without

attaching a written statement.

     Appeals dismissed.

     Olson, J. joins this Memorandum.

     Strassburger, J. files a Dissenting Statement.




                                   - 13 -
J. A14013/14




Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 11/6/2014




                       - 14 -
