           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Quinterio Smart,                             :
                     Appellant               :
                                             :   No. 631 C.D. 2017
              v.                             :
                                             :   Submitted: January 19, 2018
Commonwealth of Pennsylvania,                :
Department of Corrections;                   :
Donald O’Brien; Laurie Golubieski;           :
Joseph Mataloni; Kathi Taylor;               :
Theresa Delbalso; Kathy Brittain and         :
Correct Care Solutions, P.C.                 :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                 FILED: June 27, 2018


              Quinterio Smart (Appellant) appeals, pro se, from the March 30, 2017
order of the Court of Common Pleas of Luzerne County (trial court), which, inter alia,
dismissed Smart’s complaint against the Commonwealth of Pennsylvania, Department
of Corrections (Department); Laurie Golubieski; Kathi Taylor; Theresa Delbalso;
Kathy Brittain; and Joseph Mataloni,1 and entered a judgment of non pros in favor of
Donald O’Brien and Correct Care Solutions, P.C. (together, Correct Care Defendants).

       1
         Throughout this opinion, the Department, Laurie Golubieski, Kathi Taylor, Theresa
Delbalso, and Kathy Brittain will collectively be referred to as the “Commonwealth Defendants.”
Joseph Mataloni will be referred to separately as “Defendant Mataloni.”
                                 Facts and Procedural History
               Smart is an inmate currently incarcerated at the State Correctional
Institution (SCI)-Retreat. On August 25, 2016, he filed a complaint against the
Commonwealth Defendants, Defendant Mataloni, and the Correct Care Defendants.
(Original Record (O.R.) at Item No. 1.) The complaint alleged, inter alia, that Mr.
O’Brien disclosed the fact that Smart carried the HIV virus to other HIV-positive
inmates during a chicken pox quarantine at SCI-Retreat.2 (Complaint, at 2.) Smart
further asserted that, because of the purported disclosure, he was removed from
quarantine and eventually sent to Temple University for medical treatment, where he
was placed on medication and saw a psychiatrist due to burdensome stress, duress,
emotional distress, and retaliation.
               The complaint asserted six counts against the Commonwealth and Correct
Care Defendants, and Defendant Mataloni: (I) breach of doctor/patient confidentiality
and breach of implied contract; (II) medical negligence; (III) medical negligence
(threatened denial of medical care); (IV) retaliation, discrimination, and intimidation;
(V) reckless indifference to safety and security; and (VI) negligent infliction of
emotional distress.
               With the complaint, Smart attached certificates of merit certifying that
expert testimony was not needed to prosecute his claims. (O.R. at Item Nos. 3-10.) In


       2
         The complaint asserts that Smart was in the inmate waiting room with approximately 16
other inmates and two correctional officers. One of the correctional officers held a list with “HIV”
written on the top and the bottom of the page, but the correctional officer told Smart those letters were
crossed out. When Mr. O’Brien walked into the room to inform the inmates that they needed to be
quarantined, he was questioned about the reason for the quarantine. Smart alleges that, in response,
Mr. O’Brien “malicious[ly], deliberately and blatantly” stated, “[B]ecause all of you in this room are
[HIV] [p]ositive.” (Complaint, at ¶19.)


                                                   2
response, the Correct Care Defendants sent Smart a notice of intention to enter
judgment of non pros for failure to file a certificate of merit.
               On October 31, 2016, the Commonwealth Defendants and Defendant
Mataloni filed preliminary objections in the nature of demurrer and motions to strike
the complaint pursuant to Pa.R.C.P. No. 1028(a)(2)-(4). (O.R. at Item No. 29.) On
November 4, 2016, the Correct Care Defendants filed the motion to strike Appellant’s
certificates of merit and for entry of judgment of non pros (motion to strike), along
with an accompanying brief in support.3 (O.R. at Item Nos. 32, 34.) Smart filed a
response to the Commonwealth Defendants’ and Defendant Mataloni’s preliminary
objections and to the Correct Care Defendants’ motion to strike on November 28, 2016.
(O.R. at Item Nos. 40, 42.)
               On December 7, 2016, the trial court issued a rule to show cause, directing
Smart to show cause as to why the relief requested in the motion to strike should not
be granted and scheduling a hearing on February 6, 2017. (O.R. at Item No. 46.)
               Smart sent a letter dated December 12, 2016, to the trial court. (O.R. at
Item No. 54.) The letter acknowledged his receipt of the motion to strike. It further
stated:

               Also according to this [r]ule to [s]how cause[,] [a]rgument
               has been scheduled on this [m]otion for February 6, 2017[,]
               at 9:30 a.m. I am writing this letter because I am incarcerated
               and will be unable to appear for this hearing. Further I am
               fully lacking in the ability to perform an argument on this
               motion and that is why I have filed a [m]otion with this
               Honorable Court for [a]ppointment of [c]ounsel.

Id.

       3
          It appears that the Correct Care Defendants refiled the motion to strike and the accompanying
brief, along with a rule returnable, on December 7, 2016. (O.R. at Item Nos. 47-49.)


                                                  3
               On January 4, 2017, the Correct Care Defendants filed preliminary
objections in the nature of a demurrer to the complaint pursuant to Pa.R.C.P. No.
1028(a)(4). (O.R. at Item No. 55.) Smart filed his response in opposition to those
preliminary objections on January 23, 2017. (O.R. at Item No. 58.)
               On February 6, 2017, the trial court conducted a hearing to consider the
Correct Care Defendants’ motion to strike, after which the matter was taken under
advisement. Counsel for the Correct Care Defendants appeared at the hearing. (O.R.
at Item No. 60.)
               On March 30, 2017, the trial court issued its opinion and order, which
resolved the Commonwealth Defendants’ and Defendant Mataloni’s preliminary
objections and the Correct Care Defendants’ preliminary objections and motion to
strike.4 In relevant part, the order (1) sustained Commonwealth Defendants’ and
Defendant Mataloni’s preliminary objection in the nature of a demurrer for failure to
state a claim and dismissed the complaint as to those defendants; (2) sustained Correct
Care Defendants’ objection in the nature of a demurrer for failure to state a claim upon
which relief can be granted relating to Smart’s breach of contract claim contained in
Count I of the complaint; (3) denied Correct Care Defendants’ preliminary objection
in the nature of a demurrer as to Smart’s claim of breach of the physician/patient
privilege contained in Count I of the complaint; (4) sustained Correct Care Defendants’
preliminary objection to dismiss any alleged cause of action for negligent infliction of
emotional distress in Count VI of the complaint; and (5) granted Correct Care
Defendants’ motion to strike Smart’s certificates of merit and for entry of judgment of

       4
          In its opinion, the trial court represented that a hearing was held regarding the motion to
strike, but “[o]ral argument was declined on all of the other [ ] motions by all parties.” (Trial court’s
op. at 3.) Smart’s argument that the trial court erred in failing to hold a hearing to consider the
preliminary objections of the Commonwealth Defendants, Defendant Mataloni, and the Correct Care
Defendants is addressed supra.


                                                   4
non pros in their favor as to Smart’s breach of confidentiality claim contained in Count
I, medical negligence claim in Count II, and negligent infliction of emotional distress
claim contained in Count VI of the complaint.
               On May 3, 2017, the trial court issued an order setting a status conference
in this case.      The order expressly stated that “[Smart] shall make appropriate
arrangements to appear in person or contact the [trial] [c]ourt if a video conference is
requested.” (O.R. at Item No. 65.) On that same day, Smart filed a notice of appeal to
this Court.5 (O.R. at Item No. 66.)

       5
         On June 1, 2017, the trial court issued an order setting a status conference, to occur via video,
on June 15, 2017, for the purpose of addressing one remaining claim against the Correct Care
Defendants. (O.R. at Item No. 70.) Smart appeared by video at the June 15 status conference. (O.R.
at Item No. 72.) Counsel for Correct Care did not appear at the status conference and, via phone and
email communication with the Court, represented his belief that all claims against Mr. O’Brien and
the Correct Care Defendants had been dismissed or stricken. (O.R. at Item No. 77; Notes of
Testimony (N.T.), at 2-4.)

         At the June 15 status conference, the trial court addressed the Correct Care Defendants’ belief
that all claims against those defendants had been dismissed pursuant to the March 30, 2017 order.
(O.R. at Item No. 73; N.T., 6/15/17, at 2-4.) Subsequently, the trial court issued an order dated June
19, 2017, acknowledging that the June 15 status conference was scheduled to address one remaining
claim and stated that the “Correct Care Defendants indicated by email and telephone that they were
aware of said hearing, but would not attend due to their belief that the claims against the Correct Care
Defendants were dismissed in their entirety by the [ ] [o]rder dated March 30, 2017.” (O.R. at Item
No. 72.) The order does not direct any party to take any further action with respect to that remaining
claim referenced by the trial court. Id.
         As to whether there was a remaining issue, with respect to the motion to strike, the trial court
interpreted Count I as a breach of confidentiality claim. On the other hand, with respect to the Correct
Care Defendants’ preliminary objection with respect to Count I, the same claim was interpreted as a
breach of the doctor/patient relationship. Upon a thorough review of the record, it is clear that the
allegations asserted in Smart’s amended complaint regarding the breach of physician/patient privilege
claim and the breach of confidentiality claim are one in the same. In fact, Smart refers to the claim
as the “breach of doctor/patient confidentiality.” Thus, it appears that the trial court conflated the
terminology and, for purposes of this opinion, we will consider the two to be the same, analyzing both
Correct Care’s preliminary objection to Count I and the motion to strike Count I as a breach of the
physician/patient privilege claim. As such, we find that, other than the breach of the doctor/patient



                                                    5
                                            Discussion
               On appeal,6 Smart asserts that the trial court erred in (1) finding that the
Commonwealth Defendants and Defendant Mataloni were protected by the doctrine of
sovereign immunity and that the medical and professional liability exception did not
apply; (2) dismissing the claims against the Commonwealth Defendants and Defendant
Mataloni, where such claims were based upon intentional and/or malicious conduct;
(3) dismissing Count VI (negligence and negligent infliction of emotional distress)
without providing Smart with an opportunity to amend the claim to cure any
deficiencies; (4) striking the certificates of merit as to Counts I (breach of
confidentiality), II (medical negligence), and VI (negligent infliction of emotional
distress), and entering a judgment of non pros in favor of the Correct Care Defendants,
where expert testimony was unnecessary and Smart could not afford to employ an
expert witness; (5) determining that Smart waived his right to appear for a hearing; (6)
ruling on the preliminary objections of the Commonwealth Defendants and Defendant
Mataloni without holding a hearing; and (7) ruling that Smart’s complaint was vague
without either holding a hearing or offering Smart the opportunity to amend the
complaint to cure any deficiencies.


privilege claim in Count I that was stricken by the trial court and is now subject to this appeal, no
remaining claim existed against the Correct Care Defendants after the trial court issued its March 30,
2017 order and the June 15 status conference was unnecessary.

       6
         When ruling upon preliminary objections, the Court is “required to accept as true the well-
pled averments set forth in the . . . complaint, and all inferences reasonably deducible therefrom.”
Pennsylvania State Lodge, Fraternal Order of Police v. Department of Conservation & Natural
Resources, 909 A.2d 413, 415 (Pa. Cmwlth. 2006), aff'd, 924 A.2d 1203 (Pa. 2007). Where a
preliminary objection presents a question of law, such as objections related to issues of sovereign
immunity and statutory interpretation, our standard of review is de novo and our scope of review is
plenary. Feldman v. Hoffman, 107 A.3d 821, 826 n.7 (Pa. Cmwlth. 2014); Bender v. Pennsylvania
Insurance Department, 893 A.2d 161, 162 (Pa. Cmwlth. 2006).



                                                  6
              Sovereign Immunity of the Commonwealth Defendants
             The Commonwealth Defendants and Defendant Mataloni lodged a
preliminary objection in the nature of a demurrer for the failure to state a claim upon
which relief can be granted, arguing that they are entitled to sovereign immunity under
Pennsylvania’s Sovereign Immunity Act, 42 Pa.C.S. §§8521-8528. In his appeal,
Smart asserts that the trial court erred in sustaining the Commonwealth Defendants’
and Defendant Mataloni’s preliminary objections on that basis. First, he alleges that
the conduct of the Commonwealth Defendants and Defendant Mataloni was outside
the scope of their employment, and that the “medical-professional liability” exception
to the doctrine of sovereign immunity applies.              He further argues that the
Commonwealth Defendants’ and Defendant Mataloni’s actions were intentionally
retaliatory in nature.
             The doctrine of sovereign immunity provides that:

             Pursuant to section 11 of Article [I] of the Constitution of
             Pennsylvania, . . . the Commonwealth, and its officials and
             employees acting within the scope of their duties, shall
             continue to enjoy sovereign immunity and official immunity
             and remain free from suit except as the General Assembly
             shall specifically waive the doctrine.

1 Pa.C.S. §2310; see also 42 Pa.C.S. §8521 (“Except as otherwise provided in this
subchapter, no provision of this title shall constitute a waiver of sovereign immunity
for the purpose of 1 Pa.C.S. §2310 (relating to sovereign immunity reaffirmed; specific
waiver) or otherwise.”). “Even if a cause of action has been made out against the
defendants, the complaint will still fail to state a claim if the defendants are entitled to
sovereign immunity.” Williams v. Syed, 782 A.2d 1090, 1095 (Pa. Cmwlth. 2001).



                                             7
               We have consistently held that sovereign immunity protects the
Commonwealth from suit in tort, and that such immunity extends to intentional torts
conducted by Commonwealth employees while acting within the scope of their
employment. Kull v. Guisse, 81 A.3d 148, 157 (Pa. Cmwlth. 2013). However, “[a]
party may proceed against a Commonwealth agency if it can establish that damages
would have been recoverable under common law (or a statute creating a cause of
action) had the injury been caused by a defendant not protected by sovereign
immunity,” and the alleged act falls within “one of the specifically enumerated
exceptions provided by the legislature.” LaChance v. Michael Baker Corp., 869 A.2d
1054, 1057 (Pa. Cmwlth. 2005) (citation omitted); 42 Pa.C.S. §8522(a)-(b).
               We must first determine whether the alleged act falls within one of the
nine enumerated exceptions to sovereign immunity provided for in section 8522(b) of
the Sovereign Immunity Act.              Because the legislature intended to shield the
government from liability through sovereign immunity, the court must “apply a rule of
strict construction in interpreting these exceptions.”                   Jones v. Southeastern
Pennsylvania Transportation Authority, 772 A.2d 435, 440 (Pa. 2001).
               Here, the relevant conduct arises from the alleged disclosure of Smart’s
status as an HIV-carrier by Mr. O’Brien, a Correct Care Defendant, and the subsequent
alleged retaliatory conduct of the Commonwealth Defendants and Defendant
Mataloni.7 Smart also contends that Defendant Mataloni openly disclosed his status as
an HIV-carrier, alleging that Defendant Mataloni

       7
          Smart’s complaint outlines numerous allegations of intentional and retaliatory conduct on
the part of the Commonwealth Defendants. He represents that, inter alia, he was threatened by certain
Commonwealth Defendants; the Department violated the policies with respect to treatment of his
grievance; he required treatment and medication because of the “cruel and deliberate action[s]” of the
Commonwealth Defendants; he had a mental breakdown because of verbal attacks; he was subjected
to “unwarranted punitive segregation” ; the Commonwealth Defendants placed his safety and security



                                                  8
               continued . . . to threaten [Smart] with refusal of medical care
               claiming that the [Commonwealth] is broke and therefore
               can not [sic] pay for [his] HIV antiviral medications and that
               everyone would have found out who has HIV anyway
               because [they] would all have to be loaded up on a bus and
               transferred to [SCI-Graterford] and got [sic] to Temple
               University since Temple would now be paying for all HIV
               medications.

(Complaint, at ¶29.) Smart represented that “[i]nmates in the neighboring cell[,] which
is less than two feet away[,] heard everything that was said to [Smart] by [ ] Defendant
[Mataloni].” (Id. at ¶30.)
               Smart argues that the “medical-professional liability” exception to
sovereign immunity should apply. 42 Pa.C.S. §8522(b)(2). This exception provides
that “[a]cts of health care employees of Commonwealth agency medical facilities or
institutions or by a Commonwealth party who is a doctor, dentist, nurse or related
health care personnel” may result in the imposition of liability on the Commonwealth.
Id.
               Because the complaint alleges that Defendant Mataloni, an alleged
healthcare employee of the Department, improperly disclosed Smart’s HIV status, we
must consider the applicability of sovereign immunity—and the medical-professional
liability exception—as to Defendant Mataloni separately from its applicability to the
other Commonwealth Defendants. First, neither Defendant Brittain nor Defendant
Delbalso is a “doctor, dentist, nurse or related health care personnel” and cannot, by
definition, be subject to this exception. 42 Pa.C.S. §8522(b)(2).



in jeopardy; and he “has been forced and obligated to suffer severe and ongoing mental distress,
emotional distress, mental anguish, embarrassment and humiliation and will continue to suffer the
same for an indefinite time in the future to his great detriment and loss.” (Complaint, at ¶¶29-192.)


                                                 9
               Next, with respect to the Department and Defendants Golubieski and
Taylor, both of whom are nurses, we must conclude that the medical-professional
liability exception is inapplicable because those Defendants did not engage in the at-
issue conduct—namely, the disclosure of Smart’s status as an HIV-carrier. Rather, it
was Mr. O’Brien, a Correct Care Defendant (not a Commonwealth Defendant), and
Defendant Mataloni, the healthcare coordinator at SCI-Retreat, that allegedly made the
improper disclosure.8 Because the exception is to be narrowly construed, we decline
to extend waiver of sovereign immunity to an act performed by a third party. The
express language of section 8522(b)(2) itself provides that the exception applies to
“[act]s of health care employees” of the Commonwealth. Here, neither Defendant
Golubieski nor Defendant Taylor are alleged to have engaged in the “act” of disclosing
Smart’s personal medical information. Furthermore, Smart does not allege that the
actions of either Mr. O’Brien or Defendant Mataloni should be imputed upon
Defendants Golubieski and Taylor. As such, we conclude that the trial court did not
err in determining that the medical-professional liability exception to sovereign




       8
         We also note that the trial court properly disposed of Smart’s breach of implied contract
claim, wherein he attempted to assert that Mr. O’Brien breached an implied contract between the
Department and Correct Care. It is undisputed that it was Mr. O’Brien, an employee of Correct Care,
who allegedly made the improper disclosure. Correct Care is the contracted healthcare provider of
SCI-Retreat. However, in his complaint, Smart did not identify a contract existing between the
Department and Correct Care, and he did not allege that he is a third-party beneficiary of any such
contract. To support its analysis, the trial court cited Battle v. Prison Health Services, Inc., (Pa.
Super., No. 1864 WDA 2013, Feb. 24, 2015), which included a discussion of our Supreme Court’s
decision in Spires v. Hanover Fire Insurance Co., 70 A.2d 828 (Pa. 1950).

        Importantly, both Mr. O’Brien and Correct Care were named as defendants in the underlying
proceeding, and the trial court did not strike the breach of doctor/patient confidentiality claim with
respect to the Correct Care Defendants.



                                                 10
immunity did not apply to the Department, Defendant Golubieski, Defendant Taylor,
Defendant Delbalso, and Defendant Brittain.9
              Our analysis is different with respect to Defendant Mataloni. As the
health care administrator of SCI-Retreat, it can be argued that he is a “health care
professional” falling under the medical-professional liability exception. Furthermore,
Smart contends that Defendant Mataloni intentionally disclosed his status as an HIV-
carrier. Accepting this allegation as true, which we are required to do when ruling on
preliminary objections, we must conclude that the trial court erred in failing to consider
whether Defendant Mataloni fell under the medical-professional liability exception of
section 8522(b) and, accordingly, waived protection under the doctrine of sovereign
immunity. We will remand this issue to the trial court for consideration.
              Having remanded the matter with respect to Defendant Mataloni on the
matter of the disclosure of Smart’s private patient information, the Court will now
consider Smart’s remaining arguments with respect to sovereign immunity as applied
to the Commonwealth Defendants’ alleged retaliatory acts. Smart contends that the
Commonwealth Defendants should not be granted sovereign immunity because their
alleged retaliatory conduct fell outside of their scope of employment. We find this
argument to be without merit. Conduct of an employee is within the scope of
employment if it is the kind and nature the employee is employed to perform, occurs
substantially within the authorized time and space limitations, and is actuated at least
in part to serve the employer. Flagg v. International Union, Security, Police, Fire
Professionals of America, Local 506, 146 A.3d 300, 309 (Pa. Cmwlth. 2016). Smart’s


       9
         Because we concluded that no exception to sovereign immunity applies with respect to the
Commonwealth Defendants, it is not necessary for us to address Smart’s argument that damages
would have been recoverable under common law if the Commonwealth Defendants were not
protected by sovereign immunity.


                                               11
complaint is devoid of any factual allegations to suggest that any of the Commonwealth
Defendants engaged in conduct while “off duty” or outside their obligations as
employees of SCI-Retreat. Instead, the complaint suggests that any purported actions
occurred while serving in their respective roles as Commonwealth employees.10
               Finally, as discussed below, Smart alleges that the doctrine of sovereign
immunity does not apply because the Commonwealth Defendants engaged in
intentional and malicious conduct against him. With respect to this claim, the trial
court interpreted Smart’s claim regarding his medical treatment as a constitutional
challenge, and we agree with its analysis.
               Article I, section 13 of the Pennsylvania Constitution protects an inmate
from cruel and unusual punishment. Pa. Const. art. I, §13. However, Smart failed to
plead any valid cause of action for violation of Article I, section 13 of the Pennsylvania
Constitution.
               In Hoffman v. Makhoul (Pa. Cmwlth., No. 1674 C.D. 2017, filed May 5,
2017) (unreported), we explained:

               Article I, Section 13 of the Pennsylvania Constitution
               provides no greater or different protection to prisoners than
               the Eighth Amendment to the United States Constitution, and
               any claim under Article I, Section 13 concerning prisoner
               medical treatment or safety requires the same showing of
               deliberate indifference as under the Eighth Amendment.
               Because [p]laintiff alleged only a disagreement with the
               adequacy of treatment that is insufficient to state a claim of
               an Eighth Amendment violation, his allegations equally

       10
           If Smart wished to assert a First Amendment retaliation claim against any or all of the
Commonwealth Defendants, the complaint needed to assert sufficient facts to show that (1) he
engaged in constitutionally protected conduct; (2) the retaliation against that conduct resulted in
adverse action; (3) the constitutionally protected conduct was a substantial or motivating factor for
the retaliation; and (4) the retaliatory action did not further a legitimate penological goal. Yount v.
Department of Corrections, 966 A.2d 1115, 1120-21 (Pa. 2009).


                                                 12
             failed to state a claim for violation of Article I, Section 13 of
             the Pennsylvania Constitution.

Hoffman, slip op. at 3 (internal citations omitted); see also Jochen v. Horn, 727 A.2d
645, 649 (Pa. Cmwlth. 1999) (“The guarantee against cruel and unusual punishment
contained in the Pennsylvania Constitution provides no greater protections than that
afforded under the Eighth Amendment to the United States Constitution.”).
             This rationale is supported by the Third Circuit’s decision in Spruill v.
Gillis, 372 F.3d 218 (3d Cir. 2004):

             We have on several occasions discussed the conditions under
             which deprivation of medical treatment violates a prisoner's
             Eighth Amendment right not to be subjected to cruel and
             unusual punishment. “Only ‘unnecessary and wanton
             infliction of pain’ or ‘deliberate indifference to the serious
             medical needs' of prisoners are sufficiently egregious to rise
             to the level of a constitutional violation.” Allegations of
             medical malpractice are not sufficient to establish a
             Constitutional violation. “[M]ere disagreement as to the
             proper medical treatment” is also insufficient.

372 F.3d at 235 (internal citations omitted).
             Smart alleges, inter alia, that (1) Mr. O’Brien disclosed his HIV-positive
status to other inmates; (2) after commencing the grievance process, Defendant
Mataloni threatened and intimidated him in an attempt to have him withdraw the
grievance, and openly discussed his HIV-positive status in the presence of other
inmates; and (3) the Commonwealth Defendants attempted to cover up the disclosure
of Mr. O’Brien. However, Smart failed to allege that the Commonwealth Defendants
knew of and disregarded an excessive risk to his health or safety. See Jochen, 727 A.2d
at 649 (“In order to establish that [the Department] was deliberately indifferent to [an



                                            13
inmate’s] health and safety, [the inmate] must, at a minimum, allege that [the
Department] knew of and disregarded an excessive risk to [his] health or safety.”).


             Negligence and Negligent Infliction of Emotional Distress
             Smart next argues that the trial court erred in dismissing his claim for
negligence and the negligent infliction of emotional distress (Count VI). In support of
this argument, Smart asserts that he suffered emotional distress after Mr. O’Brien
disclosed his HIV-positive status to other inmates, and had to be placed on medication.
(Complaint, at ¶176.) Specifically, Smart asserts that he was subjected to “mental
torture, threats, [and] mental and emotional distress” which caused his “mental stability
code” to be decreased from an “A” to a “C.” (Complaint, at ¶182.)
             The trial court dismissed Smart’s claim for the negligent infliction of
emotional distress for failure to state a claim. In Doe v. Philadelphia Community
Health Alternatives AIDS Task Force, 745 A.2d 25 (Pa. Super. 2000), the Pennsylvania
Superior Court explained:

             In Pennsylvania, the cause of action for negligent infliction
             of emotional distress has been limited by court decisions. In
             order to recover, the [p]laintiff must prove one of four
             elements: (1) that the [d]efendant had a contractual or
             fiduciary duty toward him; (2) that [p]laintiff suffered a
             physical impact; (3) that [p]laintiff was in a “zone of danger”
             and at risk of an immediate physical injury; or (4) that
             [p]laintiff had a contemporaneous perception of tortious
             injury to a close relative. In all cases, a [p]laintiff who
             alleges negligent infliction of emotional distress must suffer
             immediate and substantial physical harm.

745 A.2d at 27-28.




                                           14
             While Smart asserted that, because of Mr. O’Brien’s disclosure and the
subsequent retaliatory conduct of the Commonwealth Defendants, he suffered stress,
needed to be prescribed medications, and suffered a mental breakdown, he failed to
allege any physical impairments or injuries due to the disclosure. Accordingly, the trial
court did not err in finding that Smart failed to state a claim for the negligent infliction
of emotional distress because his complaint did not include any allegations of
“immediate and substantial physical harm.”
             We must acknowledge Smart’s argument that he was not given an
opportunity to amend his complaint to successfully raise a claim for the negligent
infliction of emotional distress. Rule 1033(a) of the Pennsylvania Rules of Civil
Procedure governs the amendment of a complaint, providing that “[a] party, either by
filed consent of the adverse party or by leave of court, may at any time change the form
of action, add a person as a party, correct the name of a party, or otherwise amend the
pleading.” Pa.R.C.P. No. 1033(a). Our Supreme Court has held that a court is not
required to sua sponte order or require a party to amend his pleading. Werner v.
Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996). In this case, the record reveals that Smart
did not request leave to amend his complaint. Therefore, we cannot find that the trial
court erred in dismissing Smart’s claim without affording him the opportunity to amend
his complaint.


                                  Certificates of Merit
             Smart next asserts that the trial court erred in striking his certificates of
merit, which were filed with respect to Counts I (breach of doctor/patient
confidentiality), II (medical negligence), and VI (negligent infliction of mental and
emotional distress) of the complaint, and in entering a judgment of non pros in favor



                                            15
of the Correct Care Defendants. Smart alleges that expert testimony is not required
with respect to those counts because a standard of care was not at issue. Alternatively,
he contends that even if expert testimony was needed, he could not afford to employ
expert witnesses in his case. In response, the Correct Care Defendants argue that Smart
waived his right to raise this issue on appeal because he did not file a petition to open
the judgment with the trial court. We must agree.
                 Rule 3051 of the Pennsylvania Rules of Civil Procedure provides that
“relief from a judgment of non pros shall be sought by petition.” Pa.R.C.P. No. 3051.
The promulgation of Rule 3051 superseded the prior rule, established by relevant case
law, that allowed a party to seek review of a judgment of non pros by either petitioning
the trial court to open the judgment, or seeking appellate review of the judgment.11
Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996, 989 (Pa. 2001) (hereinafter, Knoebel).
                 It is well-settled under Pennsylvania law that issues not raised before the
lower court through post-trial motions are waived on appeal to a higher court. Knoebel,
782 A.2d at 1000. “A Rule 3051 petition to open serves the same function as a post-
trial motion. Both filings exist to afford the [trial court] an opportunity to correct
alleged errors before an appeal is pursued.” Id. Because Rule 3051 “mandates the
filing of the petition in the trial court,” we must conclude that Smart’s failure to file a
petition to open the judgment of non pros with the trial court precludes him from raising
any issue related to the judgment of non pros on appeal to this Court.12


        11
             Rule 3051 of the Pennsylvania Rules of Civil Procedure became effective on January 1,
1992.

        12
           The Supreme Court, in its Knoebel decision, also noted that it will not excuse non-
compliance with Rule 3051 when the parties made no attempt to conform with the rule. Knoebel, 782
A.2d at 1001. The same holds true in the case before this Court, as Smart made no attempt to comply
with the requirements of Rule 3051.


                                                 16
             Even if we were to determine that Smart did not waive this issue on appeal,
we find that expert testimony would be required in this case. Under Rule 1042.3(a) of
the Pennsylvania Rules of Civil Procedure:

             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.

Pa.R.C.P. No. 1042.3(a).
             While merely filing suit against a professional does not require a
certificate of merit, a suit against a professional for violation of a professional standard
does. Ferencz v. Medlock, 905 F. Supp. 2d 656, 673 (W.D. Pa. 2012). Pennsylvania
courts have declined to apply Rule 1042.3 to claims sounding in ordinary negligence
or intentional torts. See, e.g., Merlini v. Gallitzin Water Authority, 934 A.2d 100, 107




                                            17
(Pa. Super. 2007) (finding that a certificate of merit was not required because plaintiff’s
claims involved ordinary, rather than professional, negligence).
             In this case, Smart alleges that the Correct Care Defendants were negligent
with respect to Mr. O’Brien’s disclosure of his HIV status. Smart incorrectly argues
that such a determination does not involve a standard of care; rather, his claim amounts
to a medical malpractice action. Smart asserts that Mr. O’Brien negligently disclosed
his status as an HIV-carrier. It is clear that the alleged disclosure occurred within a
professional relationship, as Mr. O’Brien was acting in his role as a physician’s
assistant employed by Correct Care at the time the statement was made. We also find
that Smart’s allegations involve a medical judgment not within the scope of knowledge
of a layperson. That is, a layperson would not be able to determine when O’Brien
deviated from an acceptable professional standard when he made the disclosure. Thus,
because Smart’s claim is in the nature of a medical malpractice claim, expert testimony
was, in fact, required in his case, and proper certificates of merit needed to be filed.


                              Waiver of Right to Appear
             Smart also argues that the trial court erred in concluding that he waived
his right to appear for argument when he neither signed a waiver, nor received
instructions to arrange for his appearance at the hearing. Smart acknowledges that he
received notice of the February 6, 2017 hearing to consider the Correct Care
Defendants’ motion to strike the certificates of merit and for judgment of non pros.
(Appellant’s brief, at 8.) He also represents that he sent a letter to the trial court,
explaining that, due to his incarceration, he could not appear at the hearing without a
court order. Id.




                                            18
             The trial court addressed Smart’s letter and non-appearance at the
February 6 hearing on two separate occasions. First, on the record at the February 6
hearing, the trial court explained;

             [Smart] wrote a letter indicating he would not be able to be
             here but did not request to be here. There was no request
             made to be here, nor was he looking to make arrangements
             to be here. Therefore, we were—the hearing was to proceed
             regardless of [Smart’s] attendance. And we did speak to our
             court administration and I did verify that he is incarcerated.
             He did not make a request for it to be done on video or in any
             other manner; therefore, we would proceed with this
             argument for today’s purposes.

(O.R. at Item No. 73; N.T., 2/6/17, at 3.) Next, at the June 15 2017 status conference,
Smart, who appeared via video, discussed the issue regarding his inability to appear at
the February 6, 2017 hearing with the trial court:

             THE COURT: I will note that the Court Administrator
             received the documentation with regard to this. It was sent
             directly to Court Administration. At that time Court
             Administration indicated that they [sic] do not do transports
             or schedule videos and that, ultimately, that any
             arrangements to be transferred here is upon the responsibility
             of the [p]laintiff in a civil filing. And that if you wanted to
             come, you would have to make the necessary arrangements
             through Court Orders and payment of transfer costs—
             transport costs.
                    That information was sent and provided to us, because
             this was listed on a regular miscellaneous list, along with
             your correspondence. And it was forwarded to—Court
             Administration thereafter provided that information to the
             Court as to any and all scheduling with regard to this matter.
                    So, ultimately, although there was no oral argument
             requested in this matter, the Court did, in fact, take oral
             argument. And that there is no appointment of counsel in


                                           19
civil matters. Civil matters there is no right to counsel.
Criminal matters you have a right to counsel, but in civil
matters there is no authority for the Court—and that was
assigned to motions court. There was no authority of the
Court at that juncture to appoint counsel to represent you.
And, therefore, any and all need [sic] to appear for the
hearing has to be done by a [p]laintiff.
       And I understand that you are incarcerated, sir. The
issue has come up previously on numerous occasions. I
scheduled this hearing for a scheduling conference today,
and it was scheduled by the Court. Obviously, we scheduled
it so that we could determine where we’re at with the
remaining parties. That was the purpose. And I was able to
arrange for the video conference since it was being
specifically scheduled by me in this matter.
       That is what occurred as of February 6th. When it was
assigned to motions court, that was the first inquiry as to
what the status would be for a [p]laintiff who is incarcerated.
They said the [p]laintiff needs to make those
accommodations in one form or another to be present.

MR. SMART: Your Honor, I never had any type of notice
to set up the format of via video conference. I knew nothing
about video conference until Your Honor just last month
instructed the Prothonotary to give such an order to me to
appear at this hearing.

THE COURT: Well, no, it didn’t go to the Prothonotary.
The letter you sent on December 15th references that you
were aware that the hearing was scheduled for February 6th
and that you would be unable to attend. And that’s the letter
that the Luzerne County Court Administration provided with
regard to those matters.

MR. SMART: But unable to attend—and I would like to
put—for the record, Your Honor, I would like to participate
in my case—after everything that I’ve been through, I would
like to participate in my case every step of the way as best I
can.



                              20
             THE COURT: So if you’re filing—if you’re filing a motion
             or an order for a motion, then it’s—you have to file a motion
             in order to request that you be available by video and that
             those accommodations be taken care of.
                    If you want to come in person, then you have to file a
             motion, and then because you’re a [p]laintiff, then you would
             have to, again, take care of all the arrangements once there’s
             a Court Order to be transported to appear in person. For trial,
             obviously, that’s a requirement that you’re here for trial.

             MR. SMART: Your Honor, I didn’t know the rules that I
             would have to schedule a hearing by video conference or
             being brought down until Your Honor just instructed me last
             month. That’s when I first heard about it, and that’s why I’m
             kind of stunned that I had missed my last hearing.

             THE COURT: Well, it’s the [p]laintiff’s responsibility, sir,
             to be here. If a [p]laintiff asks the Court for a hearing, then
             the [p]laintiff has to be here. . . . Ultimately, the—you were
             aware of the hearing date and you were—and your letter
             clearly shows you were made aware of the date and time.
             Therefore, the responsibility is on the [p]laintiff.

(O.R. at Item No. 77; N.T., 6/15/17, at 6-10.)
             The trial court acknowledged that Smart sent a letter to the court
administration, notifying it of his inability to appear at the February 6, 2017 hearing.
However, Smart’s letter did not expressly request assistance from the court in
appearing by video at the hearing. Furthermore, as the trial court explained to him on
June 15, 2017, the burden to arrange to appear at a civil hearing appears to be held by
Smart, the plaintiff in this case.
             Nonetheless, pursuant to our Supreme Court’s decision in Knoebel, it is
irrelevant whether it was Smart or the trial court who had the obligation to set up a
video conference. As explained above, under Knoebel, the “failure to file a Rule 3051



                                           21
petition operates as a waiver of any claims of error concerning the judgment of non
pros entered by the [trial court].” 782 A.2d at 1000.
             Therefore, because Smart did not raise the issue of his failure to appear at
the February 6, 2017 hearing in a petition for relief from the judgment of non pros, he
is precluded from raising that issue in this appeal.




        Failure to Conduct a Hearing to Consider Preliminary Objections
             Finally, we briefly address Smart’s argument that the trial court erred in
ruling upon the Commonwealth Defendants’ preliminary objections without first
conducting a hearing. We do not agree with his argument.
             In Chester Upland School District v. Yesavage, we explained:

             It is clear that with respect to those preliminary objections
             which may be determined from the facts of record, no
             response by the opposing party is required or permitted. The
             right to plead over and file a responsive pleading to
             preliminary objections exists only where the preliminary
             objections aver facts and where the preliminary objections
             have been duly endorsed with a notice to plead.

653 A.2d 1319, 1325 (Pa. Cmwlth. 1993).
             Here, the preliminary objections filed by the Commonwealth Defendants
asserted no facts outside the record and created no factual discrepancies. Thus, the trial
court was not required to conduct a hearing to take new evidence before issuing its
determination regarding the preliminary objections.


                                      Conclusion

                                           22
             Based upon the foregoing analyses, we conclude that the trial court did
not err in sustaining the Commonwealth Defendants’ preliminary objections and
dismissing Smart’s complaint with respect to those Defendants, as the Commonwealth
Defendants are immune from liability in this matter pursuant to Pennsylvania’s
Sovereign Immunity Act.       However, we conclude that the trial court did err in
sustaining Defendant Mataloni’s preliminary objections without considering whether
Defendant Mataloni, in light of his conduct, waived sovereign immunity under the
medical-professional liability exception.
             We also hold that the trial court did not err in issuing its determination
without conducting a hearing. With respect to the Correct Care Defendants, we find
that the trial court did not err in striking Counts I, II, and VI, based upon the judgment
of non pros. We also find that the trial court properly found that Smart waived his right
to appear at that hearing based upon his admission that he received notice of the hearing
date and his subsequent failure to appear.
             As such, the trial court’s March 30, 2017 order is vacated in part, and
affirmed in part. The order is vacated to the extent that it sustains Defendant Mataloni’s
preliminary objections and dismisses Smart’s complaint with respect to him. The order
is affirmed in all other respects. With respect to Defendant Mataloni’s preliminary
objections, the matter is remanded to the trial court to issue a new order and opinion,
addressing whether Defendant Mataloni waived sovereign immunity in light of the
medical-professional liability exception, consistent with this opinion.




                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge



                                             23
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Quinterio Smart,                             :
                    Appellant                :
                                             :    No. 631 C.D. 2017
             v.                              :
                                             :
Commonwealth of Pennsylvania,                :
Department of Corrections;                   :
Donald O’Brien; Laurie Golubieski;           :
Joseph Mataloni; Kathi Taylor;               :
Theresa Delbalso; Kathy Brittain and         :
Correct Care Solutions, P.C.                 :


                                        ORDER


             AND NOW, this 27th day of June, 2018, the March 30, 2017 order of
the Court of Common Pleas of Luzerne County (trial court) is hereby affirmed in
part and vacated and remanded in part. The order is vacated to the extent that it
sustains the preliminary objections filed by Defendant Joseph Mataloni and the
matter is remanded to the trial court for the issuance of new opinion and order for
the sole purpose of addressing whether Defendant Mataloni waived sovereign
immunity in light of the medical-professional liability exception. In all other
respects, the trial court’s order is affirmed.
             Jurisdiction is relinquished.



                                                 ________________________________
                                                 PATRICIA A. McCULLOUGH, Judge
