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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

CAROL ANN SIMMONS,                        :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                        Appellant         :
                                          :
                   v.                     :
                                          :         No. 1523 WDA 2017
ALL ABOUT SMILES & ASSOCIATES             :
(DR. DAVID ZIPNOCK, DDS)                  :


                 Appeal from the Order, September 18, 2017,
               in the Court of Common Pleas of Beaver County
                       Civil Division at No. 10851-2017


BEFORE: STABILE, J., MUSMANNO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED MAY 21, 2018

      Carol Ann Simmons appeals pro se the order of the Court of Common

Pleas of Beaver County that granted the motion of All About Smiles and

Associates (Dr. David Zipnock, DDS) (“appellee”) to dismiss for failure to file

a certificate of merit and to dismiss all of appellant’s claims against appellee.

After careful review, we affirm.

      The factual and procedural history as recounted by the trial court is as

follows:

            This case began at the District Magistrate.
            [Appellant] filed an action against [appellee],
            following a root canal procedure. The Magisterial
            District Judge entered a decision in favor of
            [appellee] on June 6, 2017.

            [Appellant] filed an appeal to the decision on
            June 29, 2017 with the Court of Common Pleas.
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           [Appellee] filed a rule to file a Complaint on July 6,
           2017 and [appellant] filed her Complaint a few days
           later on July 10, 2017.

           On July 31, 2017, [appellee] filed preliminary
           objections to the Complaint, alleging, among other
           things, that the Complaint failed to conform to the
           Rules of Civil Procedure. On August 28, 2017, a
           notice was sent to the parties scheduling argument
           on the preliminary objections for September 27,
           2017.

           Before argument could be held on the preliminary
           objections, [appellee] filed a motion to strike the
           certificate of merit that [appellant] had filed. Notice
           of presentation was given to [appellant] under Local
           Rule 208.3(a), that the motion to strike would be
           presented at 9:00 a.m. on August 8, 2017. The
           certificate of service indicates that it was sent on
           July 31, 2017.[1]        On August 8, 2017, only
           [appellee’s] counsel appeared in motions court for
           the presentation of the motion to strike.

           The [trial c]ourt granted the motion to strike and
           gave [appellant] 30 days to file a proper certificate
           of merit.    Although the Rules of Civil Procedure
           (Pa.R.C.P. 1042.8) only require 20 days, the [trial]
           court gave her an extra 10 days to file the proper
           certificate. The certificate [appellant] originally filed
           only indicated what a second dentist did to treat her
           condition.    It did not state that [appellee] was
           negligent or breached a duty of care owed to
           [appellant]. Thus, it did not satisfy the requirement
           that the malpractice case has merit, as required by
           Rule 1042.3. This Rule requires a party to check one
           of the three boxes on a certificate of merit form.
           She checked none of them, but instead, merely
           signed and dated the bottom of the form and
           attached a summary of her new dentist’s work to the
           form.


1Beaver County Local Rules require a three-business-day notice in writing.
Beaver County R.C.P. LR 208.3(a)(3).


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          Since she failed to appear in motions court on
          August 8, 2017, the [trial c]ourt took extra measures
          in order to aid [appellant], so she could correct her
          mistake; the [trial c]ourt specifically stated in its
          order “the certificate provided states what the
          follow-up dentist did for [appellant]. It does not
          state what the previous dentist did wrong or
          negligent.” To comply with Rule 1042.3, [appellant]
          needed a statement from a licensed professional that
          there was “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.” Rule 1042.3(a)(1).

          Pursuant to the Court Order dated August 8, 2017, a
          proper certificate of merit should have been filed by
          September 7, 2017.          On September 11, 2017,
          [appellee] again gave notice to [appellant], that he
          was filing another motion with the [trial c]ourt. This
          time it was a motion to dismiss the case for failure to
          file a certificate of merit. The notice indicated that
          the Motion would be presented on September 18,
          2017.

          On September 18, 2017, [appellant] did not appear
          in motions court, and the motion to dismiss the
          lawsuit was presented as an uncontested motion.
          The [trial c]ourt granted the motion.

          [Appellant] filed this appeal to the Superior Court on
          October 13, 2017.

          Upon reading the notice of appeal, the [trial c]ourt
          learned for the first time, that [appellant] had
          requested additional time to file her certificate of
          merit. [Appellant] apparently filed a motion with the
          Prothonotary’s office requesting additional time. She
          never gave notice [to] [appellee], or presented the
          motion for additional time in motions court. No court
          order was ever signed granting her request. She
          claims in her appeal that her request was never
          addressed but ignored. The [trial c]ourt did not


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            address it, because she failed to present it in open
            court as required by Local Rule 208.3(a). She failed
            to follow proper court procedures and local rules for
            the presentation of her motion. The Prothonotary’s
            office is merely a filing office. Any motion requiring
            court action must be presented in court. The [trial
            c]ourt hears civil motions on Mondays, Tuesdays and
            Thursdays at 9:00 a.m. and hears emergency
            motions as needed. No motion requesting additional
            time was ever presented.

Trial court opinion, 11/27/17 at 1-3.

      The trial court did not order appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).                       On

November    27,   2017,     the   trial   court   filed   an   opinion   pursuant   to

Pa.R.A.P. 1925(a).

      Appellant raises the following issues for this court’s review:          “1. Did

the Magistrate Judge err in dismissing [appellant’s] subpoenaed witness and

dismissing her case?      2. Did the trial court err in dismissing [a]ppellant’s

case without affording [a]ppellant an opportunity to defend [appellee’s]

motion to dismiss?” (Appellant’s brief at 3-4.)

      A review of appellant’s brief reveals that she has not addressed either

issue raised in the statement of questions involved in the argument section

of her brief. See Pa.R.A.P. 2119(a) (“The 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 in type distinctively displayed--the

particular point treated therein, followed by such discussion and citation of




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authorities as are deemed pertinent.”).    Appellant’s argument is only five

sentences and consists of the following:

            [Appellee] did not do other definitive tests such as
            CT or MRI scan of the mouth, jaw, cheek, face, head,
            etc. to determine why [appellant] was experiencing
            physical as well as apparent facial deformity.

            It was the duty of the attending dentist to provide
            adequate care of [appellant]. [Appellee] breached
            responsibility of his profession by not providing
            orders for the heretofore mentioned tests (CT scans
            or MRI). All [appellee] did was to order routine
            x-rays, a non-definitive diagnosis.         Therefore,
            [appellee’s] insufficient care of [appellant] was the
            causation of her medical issues for over a year and
            six months.

Appellant’s brief at 9.

      This argument is not capable of meaningful appellate review. Because

appellant failed to develop or even mention these issues in the argument

section of her brief, these issues are waived.     See Commonwealth v.

Jones, 815 A.2d 598, 604 n.3 (Pa. 2002) (where an appellant failed to

address an issue raised in the statement of questions involved in the body of

the brief, the claim was waived). See also Commonwealth v. Jackson,

431 A.2d 944, 945 n.1 (Pa. 1981) (issue listed in the brief’s statement of

questions involved was waived when it was not addressed in the argument

section of the brief).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 5/21/2018




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