J-S53005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL VIANELLO,                               IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

HANIF BEY, POCONO MEDICAL CENTER
AMBULANCE DRIVER 1, DRIVER 2,
DISPATCHER, DOCTOR 1, DOCTOR 2,
DOCTOR 3, DOCTOR 4, SEVERAL
UNKNOWN PERSONS AND SEVERAL
JOHN AND/OR JANE DOES,

                         Appellee                    No. 487 EDA 2017


             Appeal from the Order Entered September 30, 2016
              In the Court of Common Pleas of Monroe County
                   Civil Division at No(s): 6372 Civil 2015


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 11, 2017

      Appellant, Michael Vianello, appeals from the trial court’s September

30, 2016 order denying his motion to open and/or strike the judgment of

non pros. We affirm.

      The trial court summarized the factual background and procedural

history of this case as follows:
      [Mr. Vianello] filed a Writ of Summons against Hanif Bey, Pocono
      Medical Center (PMC), and various other unnamed individuals.
      Counsel for Bey and PMC filed a Rule to file a Complaint. [Mr.
      Vianello] filed a Complaint, naming the same parties as
      [Appellees]. [Mr. Vianello] alleges PMC, and its employee, Bey,
      failed to adequately treat [Mr. Vianello’s] medical condition,
      failed to properly rehabilitate [Mr. Vianello] and to discharge him
      to appropriate care.        [Mr. Vianello] sought an injunction,
      compensatory and punitive damages.
J-S53005-17


     On or about December 28, 2015, [Appellees] filed a Notice of
     Intention to Enter Judgment of Non Pros on Professional Liability
     Claim. The Notice had a date of December 24, 2015[,] and
     contained [Mr. Vianello’s] mailing address. [Mr. Vianello] filed a
     Motion to Strike and Objections to the Notice, which was denied
     by an Order of the [c]ourt dated January 14, 2016. [Mr.
     Vianello] then filed a Motion to Extend Time to File a Certificate
     of Merit[,] which was granted by an Order of this [c]ourt dated
     January 20, 2016. The time to file certificates of merit was
     extended to March 12, 2016.

     Meanwhile, [Appellees] had also filed Preliminary Objections to
     [Mr. Vianello’s] Complaint for lack of specificity. By Order dated
     February 5, 2016, this [c]ourt sustained the Preliminary
     Objections and required [Mr. Vianello] to file an Amended
     Complaint.     [Mr. Vianello] filed an Amended Complaint on
     February 25, 2016.

     [Mr. Vianello] also filed a Motion to Compel Discovery in aid of
     drafting his Complaint and/or identifying negligent acts. The
     Motion to Compel was denied by Order of this [c]ourt dated
     March 9, 2016. [Mr. Vianello] filed certificates of merit as to
     Hanif Bey, PMC, and other unnamed [Appellees], which stated
     an appropriate professional gave a written statement and/or the
     allegations are based on allegations [that] other licensed
     professionals [for whom Appellees are responsible deviated from
     an acceptable professional standard] or expert testimony is
     unnecessary. All of the certificates of merit were signed by [Mr.
     Vianello]. It is noted [Mr. Vianello] is pro se and representing
     himself in this matter.

     On March 16, 2016, [Appellees] filed a Notice of Intention to
     Enter Judgment of Non Pros for Failure to File Written Statement
     From Appropriate Licensed Professional. [Mr. Vianello] filed a
     Motion to Strike and Objections to the Notice which was denied
     by an Order of this [c]ourt dated April 12, 2016. On April 18,
     2016, [Appellees] filed a Praecipe to Enter Judgment Non Pros
     on which the Prothonotary entered a judgment.           We now
     consider [Mr. Vianello’s] Amended Petition/Motion to Open Strike
     and Vacate Judgment of Non Pros which he filed on April 29,
     2016. He first filed a Petition/Motion to Open/Strike and Vacate
     of [sic] April 25, 2016.1




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          1This [c]ourt set a briefing schedule on the Petition/Motion
          on April 26, 2016, but nothing further occurred as [Mr.
          Vianello] filed a Notice of Appeal to the Superior Court.1

Trial Court Opinion (TCO), 9/30/2016, at 2-3.

       In reviewing Mr. Vianello’s petition to open and/or strike the judgment

of non pros, the trial court, inter alia, rejected his argument that no

certificate of merit was necessary in this case under Pennsylvania Rule of

Civil Procedure 1042.3.2 Id. at 3. In doing so, it stated that Mr. Vianello’s

allegations in the complaint “sound in medical practice and not generally in


____________________________________________


1 To clarify, Mr. Vianello had previously filed a notice of appeal to this Court
from the April 18, 2016 judgment of non pros. Appellees then filed a motion
to quash, which we granted on the basis that “relief from a judgment of non
pros shall be sought by petition.” See Order Granting Application to Quash
Appeal, 7/28/2016, at 1 (single page) (citations omitted). Accordingly, Mr.
Vianello’s appeal was quashed and dismissed. Id. In a subsequent motion
for reconsideration filed by Mr. Vianello with this Court, we acknowledged
that “[a]lthough [Mr. Vianello] apparently filed a petition to open/strike the
judgment of non pros, he filed his notice of appeal before the trial court
could rule upon said petition.” See Order Denying Mr. Vianello’s Motion for
Reconsideration, 9/12/2016, at 1 (single page). In that order, we directed
the trial court to rule upon Mr. Vianello’s petition to open/strike the
judgment of non pros, upon return of the certified record. Id.

2 As our Supreme Court has described, Rule 1042.3 “is one in a series of
rules that govern procedure in a civil action in which a professional liability
claim is asserted against a licensed professional.” Womer v. Hiliker, 908
A.2d 269, 275 (Pa. 2006) (citation omitted). In short, “[t]he procedure we
provided in the professional liability action rules centers on the filing of a
[certificate of merit]. [T]he presence in the record of a [certificate of merit]
signals to the parties and the trial court that the plaintiff is willing to attest
to the basis of his malpractice claim; that he is in a position to support the
allegations he has made in his professional liability action; and that
resources will not be wasted if additional pleading and discovery take place.”
Id. (citations and footnote omitted). We discuss Rule 1042.3 further infra.



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tort only.” Id. Further, it determined that Mr. Vianello’s argument that Rule

1042.1 et seq. is unconstitutional lacks merit.       Id. at 5.   Accordingly, it

denied Mr. Vianello’s petition to open and/or strike the judgment of non

pros. Id. at 6.

       Mr. Vianello filed a timely notice of appeal, and timely complied with

the trial court’s instruction to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. Presently, Mr. Vianello raises the following issues

for our review:
          A. Whether the lower court erred in entering a judment non-
             pros [sic] [?]

          B. Whether the lower court erred in denying the motion to
             reconsider and to vacate the order entering the non-pros
             [sic] judgment[?]

          C. Whether the lawsuit is a tort lawsuit?

          D. Whether the lawsuit is a mal-practice [sic] lawsuit?

          E. Whether the lower court order, in effect, constitutes an
             impermissible, violation of the right to sue?

          F. Whether the order entering a judement non-pros [sic] is
             contrary to the facts[]?

          G. Whether … [Mr. Vianello’s] constitutional rights, including
             the right to sue, have been violated?

Mr. Vianello’s Brief at 1-2 (unnecessary capitalization omitted).3

       Initially, we note that “[a]ppellate briefs and reproduced records must

materially conform to the requirements of the Pennsylvania Rules of
____________________________________________


3We note that Mr. Vianello has not numbered his brief correctly; he refers to
actual pages 1 and 2, as pages “150” and “250.”



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Appellate Procedure.”        In re Ullman, 995 A.2d 1207, 1211 (Pa. Super.

2010) (citations omitted).        Moreover, “it is an appellant’s duty to present

arguments that are sufficiently developed for our review.         The brief must

support the claims with pertinent discussion, with references to the record

and with citations to legal authorities.          Citations to authorities must

articulate the principles for which they are cited.”         Commonwealth v.

Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (citations omitted).             “This

Court will not act as counsel and will not develop arguments on behalf of an

appellant.     [W]hen defects in a brief impede our ability to conduct

meaningful appellate review, we may dismiss the appeal entirely or find

certain issues to be waived.” Id. (citations omitted). Further, “[a]lthough

this Court is willing to liberally construe materials filed by a pro se litigant,

pro se status confers no special benefit upon the appellant. To the contrary,

any person choosing to represent himself in a legal proceeding must, to a

reasonable extent, assume that his lack of expertise and legal training will

be his undoing.” In re Ullman, 995 A.2d at 1211-12 (citations omitted).

       Here, Mr. Vianello’s brief does not comply with our rules of appellate

procedure.4     For instance, Rule of Appellate Procedure 2119(a) states that

“[t]he argument shall be divided into as many parts as there are questions

to be argued; and shall have at the head of each part--in distinctive type or

____________________________________________


4 Appellees identify a litany of violations committed by Mr. Vianello in their
brief. See Appellees’ Brief at 3 n.1.



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in type distinctively displayed--the particular point treated therein, followed

by such discussion and citation of authorities as are deemed pertinent.”

Pa.R.A.P. 2119(a).        Mr. Vianello, however, fails to divide his argument

section in accordance with the issues he is raising, and the entire argument

section of his brief barely constitutes two pages. There is no citation therein

to relevant case law, and his arguments are extremely undeveloped. Given

these severe deficiencies, we deem all issues raised by Mr. Vianello on

appeal to be waived.

       Nevertheless, even if we did not find Mr. Vianello’s issues waived on

appeal, we would conclude that they have no merit.           We address Mr.

Vianello’s issues out of order for ease of disposition.   From what we can

glean from his brief, in issues C and D supra, Mr. Vianello asserts that

certificates of merit and written statements under Rule 1042.3 are not

required because his lawsuit is a tort, and not a medical malpractice, case.

He states that “[t]he claims of this lawsui [sic] are not based upon medical

judgment.      The claims of this lawsuit raise issues that are within the

common knowledge and experience of the fact-finder.” Mr. Vianello’s Brief

at 8. We would disagree.5
____________________________________________


5 “In order to determine what theory of liability [the appellant] is asserting,
this Court must examine the averments she makes in her complaint. Such a
review raises a question of law as to which our standard of review is de novo
and our scope of review is plenary.” Ditch v. Waynesboro Hosp., 917
A.2d 317, 321 (Pa. Super. 2007) (citations and internal quotation marks
omitted).



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     This Court has previously explained:
     Medical malpractice is defined as the “unwarranted departure
     from generally accepted standards of medical practice resulting
     in injury to a patient, including all liability-producing conduct
     arising from the rendition of professional medical services.”
     Toogood v. Owen J. Rogal, D.D.S., P.C., 573 Pa. 245, 824
     A.2d 1140, 1145 (2003). “[T]o prevail in a medical malpractice
     action, a plaintiff must ‘establish a duty owed by the physician to
     the patient, a breach of that duty by the physician, that the
     breach was the proximate cause of the harm suffered, and the
     damages suffered were a direct result of the harm.’”            Id.
     (quoting Hightower–Warren v. Silk, 548 Pa. 459, 698 A.2d
     52, 54 (1997)). Thus, the basic elements of medical malpractice
     and ordinary negligence are the same, although medical
     malpractice has some distinguishing characteristics.           See
     Grossman [v. Barke], 868 A.2d [561,] 566 [(Pa. Super.
     2005)]. The Grossman Court drew the distinction between
     ordinary negligence and medical malpractice as follows:

        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.

     Id. at 570 (quoting Bryant v. Oakpointe Villa Nursing
     Centre, 471 Mich. 411, 684 N.W.2d 864, 871 (2004)).
     Therefore, “where a complaint is predicated upon facts
     constituting medical treatment, that is, when it involves
     diagnosis, care and treatment by licensed professionals, the
     action must be characterized as a professional negligence


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      action.” Yee v. Roberts, 878 A.2d 906, 912 (Pa. Super. 2005)
      (internal citations and quotation marks omitted); cf. Estate of
      Swift v. Northeastern Hosp. of Philadelphia, 456 Pa. Super.
      330, 690 A.2d 719, 723 (1997) (concluding complaint alleging
      bodily injury as a result of a slip and fall in hospital set forth
      claim of premises liability and not hospital malpractice). Our
      Court has further found that the hiring, training, supervising,
      and monitoring of employees who assist with the care and
      treatment of a health care professional’s patients is considered
      an integral part of providing professional services. See Yee,
      878 A.2d at 912-13; American Rehab. and Physical Therapy,
      Inc. v. American Motorists Ins. Co., 829 A.2d 1173, 1177-78
      (Pa. Super. 2003), rev'd on other grounds, 578 Pa. 154, 849
      A.2d 1202 (2004).

Ditch, 917 A.2d at 321-22 (original brackets omitted).

      Here, in his amended complaint, Mr. Vianello alleges, inter alia, that

“[Appellees] had a duty to assist [him] to get into … a nursing-home,

rehabilitation,   or   personal-care   facility.   They   breached   that   duty”;

“[Appellees] knew or should have known that [he] needed physical therapy

and exercise”; “[Appellees’] failures [sic] to return [Mr. Vianello] to his

previous ability to walk without assistance was a failur [sic] to provide the

required standard of care”; ”Discharging and/or removing [Mr. Vianello]

from [PMC] was a breach of the standard of care”; and “[Appellees] failed to

make arrangements for [Mr. Vianello] to receive outpatient dialysis

subsequent to discharge from [PMC].” See Amended Complaint, 2/25/2016,

at ¶¶ 14, 18, 25, 31, 32. Based on these allegations, we would determine

that Mr. Vianello raises a medical malpractice claim against Appellees, as his

“claim pertains to an action that occurred within the course of a professional

relationship[,]” and his “claim raises questions of medical judgment beyond



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the realm of common knowledge and experience.” Ditch, 917 A.2d at 322.

Accordingly, we would conclude that the trial court properly regarded this

case as a medical malpractice suit.

       Next, in issues A, B, and F supra, Mr. Vianello alleges that the trial

court improperly entered a judgment of non pros.       He claims that “it was

incorrect for the Prothonotary to enter a judgment [of] non[]pros under

Pa.R.C.P. 1042.12[6] and said judgment [of] non[]pros should be and must

be opened, vacated, and stricken.” Mr. Vianello’s Brief at 8.7

____________________________________________


6 Rule 1042.12 sets forth, among other things, that the prothonotary, on
praecipe of the defendant, shall enter a judgment of non pros against a
plaintiff for failure to file a written statement from an appropriate licensed
professional under Rule 1042.3(e). See Pa.R.C.P. 1042.12.

7 At the outset, we note that “[a]ny appeal related to a judgment of non
pros lies not from the judgment itself, but from the denial of a petition to
open or strike.” Madrid v. Alpine Mountain Corp., 24 A.3d 380, 382 (Pa.
Super. 2011) (citations omitted). Further,
       [w]hen reviewing the denial of a petition to strike and/or open a
       judgment of non pros, we will reverse the trial court only if we
       find a manifest abuse of discretion. It is well-established that a
       motion to strike off a judgment of non pros challenges only
       defects appearing on the face of the record and that such a
       motion may not be granted if the record is self-sustaining.
       Additionally, the rule governing relief from judgment of non pros
       indicates in pertinent part:
          (b) If the relief sought includes the opening of the
          judgment, the petition shall allege facts showing that

              (1) the petition is timely filed,

              (2) there is a reasonable explanation or legitimate
              excuse for the inactivity or delay, and
(Footnote Continued Next Page)


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      We view this argument as challenging the requirements of Rule

1042.3. Rule 1042.3 states the following:
      (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

          (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.
                                               …
      (e) 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
(Footnote Continued) _______________________

             (3) there is a meritorious cause of action.

      Pa.R.C.P. 3051(b).
Varner v. Classic Communities Corp., 890 A.2d 1068, 1072 (Pa. Super.
2006) (some internal citations and quotation marks omitted).




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       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(a), (e) (accompanying notes omitted).

       In the case sub judice, Mr. Vianello claims that no written statement

from an appropriate licensed professional is required because he had

previously designated in his certificates of merit that, as set forth in Rule

1042.3(a)(3)      supra,    “expert     testimony   of   an   appropriate   licensed

professional is unnecessary for prosecution of the claim against this

defendant.” Mr. Vianello’s Brief at 7. Yet, our review of the record shows

that when he filed his certificates of merit, Mr. Vianello simultaneously

stated that, as reflected in Rule 1042.3(a)(1), “an appropriate professional

has supplied a written statement to the undersigned that there is a basis to

conclude that the care, skill or knowledge exercised or exhibited by this

defendant 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[.]” See, e.g., Certificate of

Merit as to Hanif Bey, 3/9/2016, at 1 (single page). 8              Based on this
____________________________________________


8Mr. Vianello also stated in the certificates of merit that, as laid out in Rule
1042.3(a)(2),
       the claim that this 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 and an
       appropriate professional has supplied a written statement to the
       undersigned that there is a basis to conclude that the care, skill,
       or knowledge exercised or exhibited by the other licensed
       professionals in the treatment, practice or work that is the
(Footnote Continued Next Page)


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indication — and because he advances a medical malpractice claim, as

discussed above — Mr. Vianello was required to attach, under Rule

1042.3(e), a written statement from an appropriate licensed professional to

his certificates of merit.    See Pa.R.C.P. 1042.3(e). Accordingly, we would

agree with the trial court that a written statement was required, and a

judgment of non pros could be entered because Mr. Vianello did not supply

it.9

       Finally, in issues E and G supra, Mr. Vianello claims that his

constitutional “right to sue” has been violated. See Mr. Vianello’s Brief at 2.

He argues that “Pa.R.C.P. 1042.1 et[] seq[.] sets up a mine-field that

discourages and blocks openness of the courts[,]” and unfairly “requires pro

se litigants to file a statement, but not represented litigants to file such a

statement.”     Id. at 8.      Further, he insists that “[a]llowing a non[]pros

judgment to be taken for failure to file a certificate of merit impermissilibly

(Footnote Continued) _______________________

       subject of the complaint, fell outside acceptable professional
       standards and that such conduct was a cause in bringing about
       the harm[.]
See, e.g., Certificate of Merit as to Hanif Bey, 3/9/2016, at 1 (single page).

9 Appellees also observe that Mr. Vianello “has not provided any explanation,
reasonable or otherwise, for his failure to file a proper certificate of merit
and written statement. As a result, the trial court did not abuse its
discretion in denying [Mr. Vianello’s] motion to open the judgment of non
pros.” Appellees’ Brief at 16.       See also Varner, 890 A.2d at 1072
(explaining that a petition to open a judgment of non pros must allege, inter
alia, “a reasonable explanation or legitimate excuse for the inactivity or
delay”).



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[sic] short-circuits th[e] peaceful, non-violent, and orderly resolution of

disputes[,]” and “lawuits [sic] without merit should be dismissed … only …

through regular pleadings such as preliminary objections and only after a

determination by a trial court of lack of merit.”     See Mr. Vianello’s Reply

Brief at 2.    Mr. Vianello avers that “[t]he insurance companies have

managed to obtain special rules to short-circuit regualr [sic] order to their

benefit. That cannot be permited [sic]. Thus the taking of a judgment [of]

non pros for failure to file a certificate of merit should and must be held

unconstitutional[.]” Id.

     In response, the trial court explained that it “see[s] no evidence that

suggests the rule is unconstitutional.     The rule ensures that malpractice

claims with merit are backed up by medical testimony in prosecution of

cases.” TCO at 5. Indeed, our Supreme Court has explained that it adopted

Rule 1042.1 et seq. because it was “concerned that this trend [of more

malpractice actions being commenced] would lead to an increase in the filing

of malpractice claims of questionable merit, and sought to avoid the burdens

that such claims impose upon litigants and the courts.”      Womer, 908 A.2d

at 266.   As a result, it “exercised [its] rule-making authority to devise an

orderly procedure that would serve to identify and weed [out] non-

meritorious malpractice claims from the judicial system efficiently and

promptly.”    Id. (citations omitted).    With respect to Rule 1042.3(e)’s

requirement   that   a   written   statement   from   an   appropriate   licensed

professional be attached to a certificate of merit not signed by an attorney,

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we point out that “only an attorney is subject to disciplinary proceedings for

abusing the rules of civil procedure governing certificates of merit.”    See

Pa.R.C.P. 1042.12 cmt. Thus, given the vague and meager arguments made

by Mr. Vianello, we would agree with the trial court that Rule 1042.1 et seq.

does not violate his constitutional rights. Based on the foregoing, we affirm

the trial court’s order denying Mr. Vianello’s motion to open and/or strike the

judgment of non pros.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2017




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