J-A19037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARGUERITE DUTTON,                        :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                  Appellant               :
                                          :
            v.                            :
                                          :
HOSPITAL OF THE UNIVERSITY OF             :
PENNSYLVANIA,                             :           No. 2835 EDA 2016

                   Appeal from the Order August 23, 2016
            in the Court of Common Pleas of Philadelphia County,
                          Civil Division, No(s): 4412

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED SEPTEMBER 21, 2017

      Marguerite Dutton (“Dutton”), pro se, appeals from the Order

(hereinafter, “the dismissal Order”) granting the Motion to Dismiss filed by

the Hospital of the University of Pennsylvania (hereinafter, “the Hospital”),

and dismissing Dutton’s Complaint, with prejudice. Additionally, the Hospital

has filed an Application to Dismiss Dutton’s appeal for her failure to conform

with the briefing requirements of our Appellate Rules.         We affirm the

dismissal Order and deny the Hospital’s Application to Dismiss.1



1
   Though the Hospital is correct that Dutton’s pro se brief does not strictly
comply with our briefing requirements, we decline to dismiss the appeal.
See Branch Banking & Tr. v. Gesiorski, 904 A.2d 939, 942 (Pa. Super.
2006) (observing that “this Court is willing to liberally construe materials
filed by a pro se litigant[.]”) (citation omitted); see also Stout v. Universal
Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980) (stating that the
“extreme action of dismissal should be imposed by an appellate court
sparingly, and clearly would be inappropriate when there has been
substantial compliance with the rules and when the moving party has
suffered no prejudice.”).
J-A19037-17


     The trial court summarized the relevant procedural history of this

appeal as follows:

           Dutton [averred in her Complaint that] she received
     negligent treatment at [the Hospital,] during her hospitalization
     there in May 2013 and June 2013. To this end, on May 15,
     2015, [Dutton] filed, pro se, a Complaint sounding in medical
     malpractice against the Hospital … and Nikkish McCrea, M.D.
     [(“Dr. McCrea”)] (hereinafter referred to as the “May 2015
     case”).    See Dutton v. Hospital of the University of
     Pennsylvania, Philadelphia Court of Common Pleas, May Term
     2015 No. 1655. On June 16, 2015, counsel for the Hospital …
     and Dr. McCrea filed a Notice of Intent to Enter Judgment of Non
     Pros[,] pursuant to Pa.R.C.P. 1042.6[,] because no certificates of
     merit had been filed. On July 17, 2016, a Judgment of Non Pros
     was entered [against Dutton,] pursuant to Pa.R.C.P. 1042.3
     [(providing, generally, that in any action alleging professional
     negligence, the plaintiff must file a certificate of merit within
     sixty days),] because [Dutton] had not filed certificates of merit
     within the requisite time period. Fourteen days later, on July 30,
     2015, [Dutton] filed a Petition to Strike the Judgment of Non
     Pros. By Order dated August 21, 2015, … the Honorable John
     Younge [(“Judge Younge”)] denied the Petition to Strike
     Judgment of Non Pros.         [Dutton] then filed a Motion for
     Reconsideration, which Judge Younge denied by Order dated
     September 14, 2015 …. On October 9, 2015, [Dutton] filed an
     appeal to the Superior Court[. B]y [a] per curiam Order filed on
     January 20, 2016, the Superior Court quashed [Dutton’s] appeal
     as untimely. See Dutton v. Hospital of the University of
     Pennsylvania, et al., 3285 EDA 2015 (Pa. Super. 2016).
     [Dutton] did not seek further review of this matter.

           On February 29, 2016, [Dutton] commenced the instant
     action against [the Hospital] by filing a Complaint alleging
     malpractice related to her May-June 2013 admission to the
     Hospital …. [Dutton] filed an Affidavit of Service on April 7,
     2016[,] indicating [that] the Complaint had been served upon
     [the Hospital] by certified mail. On May 19, 2016, [Dutton]
     entered a default judgment against [the Hospital]. Five days
     later, on May 25, 2016, [the Hospital] filed a Petition to
     Strike/Open the Default Judgment. By Order dated June 16,
     2015, [the trial c]ourt granted [the Hospital’s] Petition and
     struck the default judgment.


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J-A19037-17



              On May 26, 2016, [the Hospital] filed a Motion to Dismiss
        pursuant to [Pa.R.C.P.] 233.1,[2] arguing [that Dutton’s]
        Complaint should be dismissed because the claims therein were
        previously resolved in the May 2015 action. [Dutton] filed a
        Response in which she argued [that] she should be given a
        sixty-day extension in which to file a certificate of merit. By
        Order dated August 23, 2016, [the trial c]ourt granted [the
        Hospital’s] Motion to Dismiss and dismissed [Dutton’s]
        Complaint[,] with prejudice. [Dutton timely] filed this appeal on
        September 4, 2016.[3]

Trial Court Opinion, 12/22/16, at 1-2 (footnotes added; footnote in original

omitted).

        On appeal, Dutton presents the following issue for our review: “When

the [trial] court dismissed [Dutton’s] case, were [her] rights violated?” Brief

for Appellant at 1.




2
    Rule 233.1 provides, in relevant part, as follows:

      (a) Upon the commencement of any action filed by a pro se
      plaintiff in the court of common pleas, a defendant may file a
      motion to dismiss the action on the basis that

         (1) the pro se plaintiff is alleging the same or related claims
         which the pro se plaintiff raised in a prior action against the
         same or related defendants, and

         (2) these claims have already been resolved pursuant to a
         written settlement agreement or a court proceeding.

Pa.R.C.P. 233.1(a).
3
 Dutton also has filed a separate appeal of an Order dismissing her medical
malpractice action against Dr. McCrea, pursuant to Rule 233.1(a), which is
pending decision before a different panel of this Court at docket no. 555 EDA
2017.


                                    -3-
J-A19037-17


      We review a trial court’s grant of a motion to dismiss pursuant to Rule

233.1 under an abuse of discretion standard. See Coulter v. Ramsden, 94

A.3d 1080, 1086 (Pa. Super. 2014); see also Bolick v. Commonwealth,

69 A.3d 1267, 1270 (Pa. Super. 2013) (stating that “Rule 233.1 makes clear

that the power to bar frivolous litigation at the trial court level rests with the

trial court.”). “[T]he court abuses its discretion if, in resolving the issue for

decision, it misapplies the law or exercises its discretion in a manner lacking

reason [or] if it does not follow legal procedure.” Coulter, 94 A.3d at 1086

(citation omitted).

      In her one-paragraph Argument section, which lacks any citation to

legal authority or the record,4 Dutton argues that the trial court improperly

granted the Hospital’s Motion to Dismiss, where (1) it was “filed before the

default judgment[, i.e., which she had entered against the Hospital in May

2016,] was open[ed], [and] therefore cannot be ruled on”; and (2) “because

a default   judgment [had previously been] entered, therefore[,] the

certificate of merit was not required.” Brief for Appellant at 5.

      In its Opinion, the trial court determined that it had properly granted

the Hospital’s Motion to Dismiss, stating as follows:



4
  See Pa.R.A.P. 2119(a) (requiring that the argument portion of the brief
include a relevant discussion of points raised along with citation to pertinent
authorities); see also Jacobs v. Chatwani, 922 A.2d 950, 962-63 (Pa.
Super. 2007) (finding waiver where the appellant provided only a vague,
undeveloped argument in support of her claim and did not cite to the
record).


                                   -4-
J-A19037-17


     The facts of the case sub judice fall directly under the umbrella
     of Rule 233.1(a). Specifically, [Dutton] is proceeding pro se, the
     malpractice claims against [the Hospital] in the case at bar
     mirror the malpractice claims set forth in the May 2015 case,
     and the May 2015 case was resolved by the entry of judgment of
     non pros for failure to comply with Rule 1042.6. Of particular
     note in this case is the fact that the May 2015 case was
     dismissed for [Dutton’s] failure to file certificates of merit. In
     her June 15, 2016 Response to the Motion to Dismiss, [Dutton]
     requested an additional sixty days in which to file a certificate of
     merit. This [c]ourt ruled on the Motion to Dismiss on August 23,
     2016 – sixty[-]nine days after [Dutton’s] Response to the Motion
     to Dismiss – yet [Dutton] had still not filed a certificate of merit.
     In light of the foregoing, this [c]ourt properly granted [the
     Hospital’s] Motion to Dismiss.

Trial Court Opinion, 12/22/16, at 3. We agree with the trial court’s analysis

and determination, which is supported by the record.

     Accordingly, as we discern no abuse of the trial court’s discretion in

granting the Hospital’s Motion to dismiss, see Coulter, supra, and Dutton’s

above-mentioned claims do not entitle her to relief, we affirm the dismissal

Order.

     Order affirmed. Application to Dismiss denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/21/2017




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