J-A14026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 VICKIE NAGLE,                             :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant.             :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 ALLEGHENY GENERAL HOSPITAL                :   No. 1637 WDA 2018
 AND DR. ROBERT KEENAN, M.D.               :


               Appeal from the Order Entered, October 26, 2018,
              in the Court of Common Pleas of Allegheny County,
                    Civil Division at No(s): GD-18-007467.


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                             FILED JULY 12, 2019

      In 2003, the Supreme Court of Pennsylvania promulgated Pennsylvania

Rule of Civil Procedure 1042.3 (“Certificate of Merit”) to govern all professional

negligence cases. The Rule requires a plaintiff (or the plaintiff’s attorney) to

file a signed certification stating that “an appropriate licensed professional”

has looked at the plaintiff’s claim and believes there is a “reasonable

probability” that the professional conduct of the defendant(s) fell below

professional standards and caused the plaintiff’s harm. Pa.R.Civ.P. 1042.3.

In so doing, the Supreme Court exercised its constitutional “power to prescribe

general rules governing practice, procedure, and the conduct of all courts . . .

.” Pa. Const. Article V, § 10(c).

      The purpose of the Rule, as noted by one appellate court, is “to ensure

that professional negligence claims are meritorious . . . the certificate-of-merit
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requirement prevents needless waste of judicial time and resources, which

would otherwise be spent on non-meritorious claims.” Liggon-Redding v.

Estate of Sugarman, 659 F.3d 258, 262–63 (3d Cir. 2011).1 In other words,

a plaintiff must verify at the outset of the case that an expert supports his

theory of professional negligence.

       Essentially, Rule 1042.3 is a screening process; without it parties could

spend years in pre-trial proceedings only to learn that the plaintiff’s suit is

unwinnable due the absence of an expert witness. Thus, the Rule saves time,

effort, and money for all involved, because there is little point in pursuing a

malpractice action if, at the end of the day, there is no possibility that the

plaintiff can succeed.

       In the matter at bar, Vicki Nagle appeals pro se from the trial court’s

order dismissing her lawsuit and granting judgment in favor of Defendants

Allegheny General Hospital and Dr. Robert Keenan, M.D. (“the Hospital”), on

the grounds that Ms. Nagle did not file a sufficient certificate of merit. She

does not dispute this fact. Instead, Ms. Nagle claims the trial court erred in

dismissing her case, because, in her mind, her case is neither meritless not

frivolous.2 See Ms. Nagle’s Brief at 8.
____________________________________________


1 The Third Circuit ultimately held that Pa.R.Civ.P. 1042.3 is substantive state
law under Erie v. Tompkins, 304 U.S. 64 (1938).

2Ms. Nagle also claims there are “equitable exceptions” to the certificate-of-
merit requirement under 42 Pa.C.S.A. § 9545. See Ms. Nagle’s Brief at 8.
That statute, however, is the jurisdictional provision of the Pennsylvania Post-



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       While we do not question the sincerity of Ms. Nagle’s belief, her lay-

person’s view of alleged, professional negligence cannot substitute for the

opinion of an expert witness.           More importantly, it does not satisfy the

mandates of Pa.R.Civ.P 1042.3, which dictates that:

          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 [pro se plaintiff] 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 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.

Pa.R.Civ.P. 1042.3(a).

       When, as here, a pro se plaintiff signs the certificate of merit, she must

“attach to the certificate of merit the written statement from an appropriate,

licensed professional as required by subdivisions (a)(1) and (2).” Pa.R.Civ.P.


____________________________________________


Conviction Relief Act, which deals with individuals who are serving a criminal
sentence in a county jail or state penitentiary. Thus, Ms. Nagle’s reliance upon
42 Pa.C.S.A. § 9545 is clearly misplaced in this civil action.

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1042.3(e). Otherwise, defendants may seek judgment of non pros under Rule

1042.11. See id.

      Here, Ms. Nagle filed a certificate of merit.      However, the written

statement from a licensed profession that she attached to her certificate of

merit had no signature. See Ms. Nagel’s Addendum to Exhibit A of Complaint

at 1. Also, the written statement had several typographical errors, including

that the author misspelled Dr. Kaufman’s name – twice.            Compare id.

(misspelling the doctor’s name as “Dr. Mathew Kaufman, M.D.”) with id. at 4

(spelling his name as “Matthew R. Kaufman, MD” on a fax’s coversheet that

the doctor signed).

         The Hospital attempted to comply with Pa.R.Civ.P. 1042.7, regarding

the entry of a judgment of non pros for failure to file a proper certificate of

merit.    It moved the trial court to strike Ms. Nagle’s certificate of merit.

Despite the oddities in Ms. Nagle’s written statement, on August 21, 2018, the

trial court granted her leeway to supplement the deficient record.     The court

entered an order giving her three weeks to produce a certificate of merit that

comported with Rule 1042.3.

      Ms. Nagel did not secure a new certificate. The Hospital then filed the

praecipe under Rule 1042.7 to have the court clerks enter a judgment of non

pros against Ms. Nagel. However, the court clerks refused to enter a judgment

of non pros, because Ms. Nagle filed a “Certificate of Medical Records Affidavit”

twelve days later.




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       Next, the Hospital moved to dismiss Ms. Nagle’s case, because the clerks

would not enter judgment without a court order. Finding that Ms. Nagle had

not complied with its order to obtain a certificate of merit, the trial court

granted the motion to dismiss. Given the strange proceedings below and in

the interest of judicial economy, this Court views the trial court’s October 26,

2018 Order as an order denying a petition to open a judgment of non pros.3

       When reviewing a trial court’s refusal to open “a judgment of non pros

pursuant to Pa.R.Civ.P. 1042.6, our Court may reverse the decision of the trial

court only if we find that the trial court abused its discretion . . . .” Shon v.

Karason, 920 A.2d 1285, 1287 (Pa. Super. 2007). When applying an abuse-


____________________________________________


3 Pennsylvania Rule of Civil Procedure 3051 provides “Relief from a judgment
of non pros shall be sought by petition.” Pa.R.Civ.P. 3051. As the Supreme
Court of Pennsylvania held in Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996
(Pa. 2001), an appellant must petition the trial court to open a judgment of
non pros in order to preserve her issues for appeal. The Sahutsky Court
stated, “A Rule 3051 petition to open serves the same function as a post-trial
motion. Both filings exist to afford the court of common pleas an opportunity
to correct alleged errors before an appeal is pursued.” Sahutsky at 1000. If
an appellant does not file a Rule 3051 petition, all appellate issues are waived.
See id.

       Here, however, the Department of Court Records of Allegheny County
refused the Hospital’s request to enter a judgment of non pros. The clerks
thereby made it impossible for Ms. Nagle to comply with Rule 3051. Moreover,
the Hospital brought the issue of whether non pros was appropriate before the
trial judge via a motion to dismiss, so the trial judge had “an opportunity to
correct alleged errors before an appeal [was] pursued.” Id. Thus, we decline
to find waiver under Sahutsky. A breakdown in the court system placed both
parties in a procedural quagmire. However, the trial court ultimately ruled on
Ms. Nagle’s failure to file a certificate of merit. Therefore, it would have been
superfluous and redundant for Ms. Nagle to file a Rule 3051 petition under the
unique circumstances of this case.

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of-discretion standard of review, this Court affords the trial court’s decision

deference. An abuse of discretion only “occurs if the trial court renders a

judgment that is manifestly unreasonable, arbitrary, or capricious; that fails

to apply the law; or that is motivated by partiality, prejudice, bias, or ill will.”

Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 984 (Pa. Super.

2005). In other words, a reasonable judgment by the trial court does not rise

to the level of an abuse of discretion, even if this Court disagrees with that

judgment.

      In her brief, Ms. Nagle did not recognize that our standard of review is

abuse of discretion (See Ms. Nagle’s Brief at 5) – much less argue or explain

how the trial court abused its discretion here. Also, we do not perceive any

abuse of discretion from our review of the record, especially in light of the fact

that the trial court granted Ms. Nagle three additional weeks to comply with

Rule 1042.3. The trial court’s indulgence strikes us as eminently reasonable,

given that Ms. Nagle’s first written statement was highly suspect. Thus, the

trial court did not abuse its discretion by granting the Hospital’s motion to

dismiss under these circumstances.

      Ms. Nagle did not comply with Rule 1042.3, so the trial court acted

appropriately, when it found she violated it and dismissed her case for failure

to file a certificate of merit. Hence, the trial court did not misapply the law.

Lastly, there is nothing in the record hinting at any prejudice, partiality, bias,

or ill will on the part of the trial court.




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      We therefore dismiss Ms. Nagle’s first issue as affording her no appellate

relief, because the trial court did not abuse its discretion.

      Next, Ms. Nagle raises several constitutional challenges to Rule 1042.3.

See id. at 8-9. Specifically, she asks:

            1.   Were her constitutional rights violated?

            2.   Does the certificate of merit violate her Pennsylvania
                 and United States constitutional rights to access to the
                 courts?

            3.   Does the certificate-of-merit requirement constitute
                 an unconstitutional monetary barrier to access to the
                 courts?

Id. at 6.

      As the trial court observed in its 1925(a) Opinion and as the Hospital

asserts on appeal, Ms. Nagle raised none of these constitutional claims in the

trial court. See Trial Court Opinion, 11/30/18, at 3; Hospital’s Brief at 21-24.

We agree.

      This Court may not “decide the case on constitutional grounds unless

[the appellant] has first raised [the constitutional challenge] in the trial court.”

Commonwealth v. Duncan, 421 A.2d 257, 259 n. 3 (Pa. Super. 1980).

Because we may not decide constitutional questions on appeal if the trial court

did not rule upon them below, an appellant must demonstrate where in the

record she brought the constitutional issues to the trial court’s attention

before filing her appeal.       “Where under applicable law an issue is not

reviewable on appeal unless raised or preserved below, the statement of the

case shall also specify . . . the places in the record where the matter appears


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(e.g. ruling or exception thereto, etc.) as will show that the question was

timely and properly raised below so as to preserve the question on appeal.”

Pennsylvania Rule of Appellate Procedure 2117(c)(4).

      In this case, Ms. Nagle has identified no place in the record where she

raised – and thereby preserved – her constitutional arguments for our review.

Her constitutional claims do not appear in the record until Ms. Nagel first raised

them in her 1925(b) statement. Indeed, this Court has held:

         A party cannot rectify the failure to preserve an issue by
         proffering it in response to a Rule 1925(b) order. A Rule
         1925(b) statement of matters complained of on appeal is
         not a vehicle in which issues not previously asserted may be
         raised for the first time.

Hinkal v. Pardoe, 133 A.3d 738, 746 (Pa. Super. 2016) (en banc) (citations

and quotation marks omitted). As such, the Pennsylvania Rule of Appellate

Procedure 1925(b) statement is too late to raise an issue with the trial court.

      Once a party files a proper notice of appeal, the proceeding halts in the

trial court, and jurisdiction transfers to the appellate court. When that occurs,

“the trial court . . . may no longer proceed further in the matter.” Pennsylvania

Rule of Appellate Procedure 1701(a). Thus, when Ms. Nagle filed her notice

of appeal, she elevated her case from the trial court to this Court. At that

point, the trial court lost jurisdiction to rule upon the constitutional challenges

that she asserted for the first time in her 1925(b) statement.

      Instead of bringing constitutional issues to the trial court’s attention for

the first time in her 1925(b) statement, Ms. Nagle needed to raise them in a



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response to the Hospital’s motion to dismiss, and she should have filed that

response with the Department of Court Records of Allegheny County. She did

not. Thus, the Hospital and the trial court are correct; Ms. Nagle has not

preserved any of her constitutional issues for our review.

      We must dismiss all of Ms. Nagle’s constitutional issues as waived.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/2019




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