J-A20042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEPHANIE HESTER ALLEN                          IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellant

                     v.

JUAN L. POGGIO, M.D. AND DAVID E.
STEIN, M.D.

                          Appellee                    No. 271 EDA 2015


             Appeal from the Order Entered on December 22, 2014
             In the Court of Common Pleas of Philadelphia County
                Civil Division at No.: April Term, 2014 No. 1401


BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                            FILED AUGUST 14, 2015

      Stephanie Hester Allen appeals, pro se, the December 22, 2014 order

denying her petition to open judgment of non pros. We affirm.

      The trial court recited the procedural and factual history of this case as

follows.

      [Allen] commenced this medical negligence lawsuit following her
      hemorrhoid removal procedure claiming that it caused her to
      suffer from a foul odor emanating from the site of her surgery
      and fecal incontinence. [Allen] claims that Defendant Juan L.
      Poggio, M.D. negligently performed her surgery and Defendant
      David E. Stein, M.D. failed to provide adequate care after her
      surgery was completed.           When [Allen] failed to file a
      [certification of merit (“COM”)] as required, [the trial court]
      granted her a sixty-day extension. [Allen] submitted a COM
      consisting of a letter from Dr. Lily Arya, which stated in full:

           “Ms. Stephanie Hester[]Allen presented to my office as a
           new patient on 08/07/2014.      Ms. Hester[]Allen has a
           diagnosis of fecal incontinence.   Patient states onset
           occurred following removal of hemorrhoids in 2012.
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         Patient does currently have evidence of anal sphincter
         damage.”

      Absent from this COM was any statement that any of the doctors
      deviated from professional standards of care in their treatment,
      or that the doctor’s care caused [Allen’s] injuries.

      Defendant’s Poggio and Stein submitted a motion to strike the
      certificate claiming [Allen’s] COM failed to identify any deviations
      from the professional standard of care, or causation. For the
      first time in [Allen’s] Opposition to Defendant’s Motion to Strike
      the Certificate of Merit, [Allen] argued her COM only applied to
      Defendant Poggio, and that her claims against Defendant Stein
      sounded in fraud, not negligence. In reply, Defendants argued
      that [Allen’s] complaint never alleged that Defendant Stein had
      engaged in fraudulent activity. [Allen’s] complaint alleges solely
      medical negligence against Defendant Poggio and Stein.

      In response to these motions, the [trial court] struck [Allen’s]
      COM on November 4, 2014. Judgment of non pros was entered
      against [Allen] for failure to file a valid COM. On November 17,
      2014, [Allen] file a Petition to Strike Non Pros. In support of her
      Petition, [Allen] cited a number of procedural rules relating to
      the COM requirements, and incorrectly relied upon Rule 1042.8
      to support her contention that [the trial court] was required to
      grant her twenty days to cure the defects in her COM. [Allen]
      also asserted that a COM was not required for Defendant Stein
      “under the law of fraud.” On December 22, 2014, [the trial
      court] denied [Allen’s] Petition to Open Judgment of Non Pros.
      This appeal followed.

Trial Court Opinion (“T.C.O.”) at 1-3 (some capitalization modified; internal

citations omitted).

      By order dated January 28, 2015, the trial court directed that Allen file

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Unfortunately, Allen failed to file a concise statement.

      In order to preserve issues for appellate review, the issues must be

raised by the appellant in a concise statement of matters complained of on


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appeal, when ordered to do so by the trial court. Any issues not raised in

such statement are deemed waived, whether or not the lower court actually

addresses the issues in an opinion.      In re Estate of Daubert, 757 A.2d

962, 963 (Pa. Super. 2000). In Commonwealth v. Hill, 16 A.3d 484 (Pa.

2011), our Supreme Court summarized and reiterated the consequences of

failing to file a timely concise statement:

      Our jurisprudence is clear and well-settled, and firmly
      establishes that: Rule 1925(b) sets out a simple bright-line rule,
      which obligates an appellant to file and serve a Rule 1925(b)
      statement, when so ordered; any issues not raised in a Rule
      1925(b) statement will be deemed waived; the courts lack the
      authority to countenance deviations from the Rule’s terms; the
      Rule’s provisions are not subject to ad hoc exceptions or
      selective enforcement; appellants and their counsel are
      responsible for complying with the Rule’s requirements; Rule
      1925 violations may be raised by the appellate court sua sponte,
      and the Rule applies notwithstanding an appellee’s request not
      to enforce it; and, if Rule 1925 is not clear as to what is required
      of an appellant, on-the-record actions taken by the appellant
      aimed at compliance may satisfy the Rule. We yet again repeat
      the principle first stated in Commonwealth v. Lord, 719 A.2d
      306 (Pa. 1998), that must be applied here: “[I]n order to
      preserve their claims for appellate review, [a]ppellants must
      comply whenever the trial court orders them to file a Statement
      of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925.
      Any issues not raised in a Pa.R.A.P. 1925(b) statement will be
      deemed waived.” 719 A.2d at 309.

Id. at 494 (citation modified).

      Although Pennsylvania courts endeavor to be fair to pro se litigants in

light of the challenges that they face when conforming to practices with

which attorneys are far more familiar, pro se litigants nonetheless must




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comply substantially with our rules of procedure.    See Laird v. Bernard,

528 A.2d 1379, 1380 (Pa. Super. 1987).

     Although 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 1207, 1211-12 (Pa. Super. 2010) (some citations

omitted).

     Instantly, the trial court issued an order on January 28, 2015 directing

Allen to file a Rule 1925(b) statement within twenty-one days (i.e., on or

before February 18, 2015).    Nevertheless, Allen did not file a Rule 1925(b)

statement.    As a result, we are constrained to conclude that Allen has

waived all issues on appeal due to her failure to file a concise statement of

errors complained of on appeal. See Hill, 16 A.3d at 494.

     Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2015




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