J-S37013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RANDALL D. BUCHER                                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

PENN STATE MILTON S. HERSHEY
MEDICAL CENTER; D/B/A THE MILTON S.
HERSHEY MEDICAL CENTER; D/B/A
PENN STATE HERSHEY MEDICAL GROUP;
DR. NUMBER 1; DR. NUMBER 2; DR.
NUMBER 3; JOHN DOE #1; JOHN DOE
#2; JANE DOE #1

                            Appellees                No. 1978 MDA 2016


               Appeal from the Order Entered November 8, 2016
               In the Court of Common Pleas of Dauphin County
                    Civil Division at No: 2016-CV-00370-MM


BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 15, 2017

       Appellant, Randall D. Bucher, appeals pro se from the November 8,

2016 order entered in the Court of Common Pleas of Dauphin County,

denying his petition for relief from judgment of non pros.1           Appellant

contends the trial court abused its discretion by denying relief because he
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1
  We note at the outset that while “this Court is willing to construe liberally
materials filed by a pro se litigant, pro se status generally confers no special
benefit upon an appellant. Accordingly, a pro se litigant must comply with
the procedural rules set forth in the Pennsylvania Rules of the Court.”
Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003)
(citations omitted).
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substantially complied with the certificate of merit requirements of Pa.R.C.P.

1042.3 in his medical negligence action against Appellee, Hershey Medical

Center (“the Medical Center”).2 Following review, we affirm.

       Our review of the record reveals that Appellant received treatment at

the Medical Center from January 15 through 29, 2014.           On January 14,

2016, Appellant initiated an action against the Medical Center by writ of

summons and filed his complaint on April 13, 2016, alleging medical

negligence.

       As an action premised on a claim of professional negligence, Pa.R.C.P.

1042.3 required that Appellant file a certificate of merit within 60 days of the

date he filed his complaint, i.e., by June 12, 2016. On May 18, 2016, the

Medical Center filed a written notice of its intention to enter judgment of non

pros thirty days after the filing of the notice if Appellant did not file the

requisite certificate of merit as mandated by Rule 1042.3.

       On June 13, 2016, Appellant filed a motion for extension of time to file

a certificate of merit. The motion was rejected for failure to comply with the

Dauphin County rules of court. Appellant filed a compliant motion on June

17, five days beyond the deadline for filing a certificate of merit.     In his
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2
  The parties named as defendants in Appellant’s pro se complaint included
Penn State Milton S. Hershey Medical Center; d/b/a The Milton S. Hershey
Medical Center; d/b/a Penn State Hershey Medical Group; Dr. Number 1; Dr.
Number 2; Dr. Number 3; John Doe #1, John Doe #2; Jane Doe #1. For
sake of convenience, we shall refer to Appellees collectively as “the Medical
Center.”



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motion, Appellant represented that he had attempted to obtain a case

review. He also claimed the Medical Center redacted portions of his medical

records.    He asserted an extension was necessary to obtain all pertinent

documentation for review by the appropriate licensed medical professionals.3

       The Medical Center responded to Appellant’s motion, disputing

Appellant’s alleged efforts to obtain a case review, denying any manipulation

of Appellant’s records, and contending Appellant had ample time to obtain

his medical records.       The Medical Center noted that Appellant previously

signed authorizations for release of specific medical records on four

occasions in August and September of 2014.4            In response to those

authorizations, the Medical Center produced 663 pages of medical records

and one compact disc. See Appellant’s Reproduced Record at 64a-75a. It is

obvious Appellant knew how to obtain copies of his records and that he had

the records he requested for approximately 21 months before his certificate

of merit was due and before requesting an extension for providing a

certificate of merit.



____________________________________________


3
  On July 28, 2016, more than a month after filing his motion for extension,
Appellant requested complete, certified copies of his Medical Center records.
In response, the Medical Center produced 2,665 pages of medical records.
Medical Center Brief at 5; Medical Center Reproduced Record at 121a-22a.
4
  Appellant cited “continued medical care” as a reason for the record
requests. See Appellant’s Reproduced Record at 64a-75a.



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        Following argument, the trial court issued an order denying Appellant’s

motion. The court stated, in relevant part:

        This [c]ourt finds [Appellant] has failed to make a showing of
        good [cause] why the extension should be granted, as required
        by Pa.R.C.P. 1042.3(d). The care and treatment at issue took
        place in January 2014. Consequently, [Appellant] had nearly
        two-and-a-half years to gather medical records, obtain a case
        review, and produce a Certificate of Merit. He has not done so
        to date, and has not demonstrated he has taken any steps to do
        so in the near future.

        Further, we disagree with [Appellant’s] contention that [the
        Medical Center] manipulated his medical records or redacted any
        part of them. Absent evidence, his assertion that [the Medical
        Center] has purposefully withheld his medical records cannot
        serve as the basis for granting his motion for extension.
        Accordingly, the motion is denied.

Trial Court Order, 9/23/16, at 1-2.

        On October 5, 2016, judgment of non pros was entered against

Appellant pursuant to Pa.R.C.P. 1042.6, in response to the Medical Center’s

praecipe.    On October 17, 2016, Appellant filed a petition for relief from

judgment of non pros pursuant to Pa.R.C.P. 3051.              By order entered

November 8, 2016, the trial court denied Appellant’s petition.      This timely

appeal followed. Both Appellant and the trial court complied with Pa.R.A.P.

1925.

        Appellant asks us to consider six issues in this appeal:

        1. Whether or not the trial court properly applied the equitable
           considerations found in Pennsylvania Rules of Civil Procedure
           126 and 3051, which address petitions to open and/or strike




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          a judgment of non pros, as recognized by this Court in Sabo
          v. Worrall, 959 A.2d 347 (Pa. Super. 2008)[?][5]

       2. Whether or not the trial court abused its discretion in failing
          to open the judgment of non pros for [the Medical Center],
          where [Appellant] offered a reasonable explanation for his
          failure to file a timely certificate of merit? Also in
          consideration of pro se [Appellant’s] infirmity[?][6]

       3. Whether or not the trial court abused its discretion in failing
          to open the judgment of non pros for [the Medical Center],
          where [Appellant’s] failure to file [a] timely Certificate of
          Merit     was    because     of    [the    Medical    Center’s]
          concealment/redaction’s (sic)/ denied viewing access of all
          certified medical records, and where [the Medical Center] was
          on notice of [Appellant’s] intention to proceed in legal action
          against [it]?

       4. Whether or not the trial court abused its discretion in failing
          to open the judgment of non pros for [the Medical Center]
          where [Appellant] substantially complied with the Certificate
          of Merit rule and [the Medical Center] suffered no prejudice?

       5. Whether or not the trial court abused its discretion in failing
          to open the judgment of non pros for [the Medical Center]
          where [Appellant] substantially complied with the Certificate
          of Merit rule[?]

       6. Whether or not fairness requires the opening of the judgment
          of non pros for [the Medical Center?]
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5
  In Sabo, certificates of merit were prepared. However, they inadvertently
were not filed due to an error or oversight on the part of counsel’s paralegal.
This Court held that such inadvertent mistake by counsel, via his paralegal,
provided a reasonable explanation or excuse for the delay in filing the
certificates. Sabo does not provide any support to Appellant’s “equitable
considerations” argument.
6
 It is not clear what Appellant means by his “pro se infirmity.” However, as
noted above, his pro se status does not confer any special benefit on him
and does not excuse his failure to comply with our procedural rules. See
n. 1, supra.



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Appellant’s Brief at 1 (unnumbered).

       Although Appellant has presented six issues for our consideration,

each of those issues challenges the trial court’s denial of Appellant’s petition

to open the judgment of non pros. “When 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.” Varner v. Classic

Communities Corp., 890 A.2d 1068, 1072 (Pa. Super. 2006) (citing Yee v.

Roberts, 878 A.2d 906, 910 (Pa. Super. 2005), appeal denied, 901 A.2d

499 (Pa. 2006)); Hoover v. Davila, 862 A.2d 591, 593 (Pa. Super. 2004).

A petition to open a judgment of non pros must allege that the petition is

timely filed, that there is a reasonable explanation or legitimate excuse for

the conduct giving rise to the entry of judgment of non pros, and that there

is a meritorious cause of action. Pa.R.C.P. 3051(b).

      In his petition, Appellant alleged that his petition was timely filed and

that he has a meritorious cause of action.       Appellant’s Petition for Relief,

10/17/16, at ¶¶ 3-4.      Assuming for purposes of our review that those

assertions are sufficient under Rule 3051(b), we shall examine the petition

to ascertain whether the trial court abused its discretion by finding Appellant

did not provide a reasonable explanation or legitimate excuse for failing to

file a certificate of merit, the conduct that led to entry of non pros.

      Appellant contends his failure to file a certificate of merit resulted from

the Medical Center’s withholding of medical documents and repeated refusals

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to permit Appellant to view and compile a list of necessary documents. Id.

at ¶¶ 9-15.     He asserts that various records were missing and were

deliberately withheld from the trial judge by the Medical Center.      Id. at

¶¶ 15-16; 19-20.    He claims he will proceed with a case review and file

certificates of merit after the Medical Center provides certified, unaltered

copies of his medical records. Id. at ¶¶ 17-18. He maintains that he has

been in contact with “multiple case review companies and is fully prepared

to move forward with a proper case review upon receipt of complete and

accurate medical records.” Id. at ¶ 18.

      Despite Appellant’s assertions to the contrary, it is clear he obtained

certain medical records in August and September 2014 pursuant to

authorizations he signed. As noted above, it is obvious Appellant knew how

to ask for and obtain copies of his records from the Medical Center and that

he obtained more than 660 pages of those records in 2014.        He does not

explain his failure to seek a review based on the records he did obtain, nor

did he request additional medical records—to supplement those obtained

with authorizations—before the certificate of merit deadline. It was not until

July 28, 2016, six weeks after the deadline, that he requested his complete

medical records.    In response, on August 1, 2016, the Medical Center




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provided 2,665 pages of records.7 Even so, as of the September 21, 2016

hearing on Appellant’s petition for an extension, Appellant was still talking

about seeking a review.          He does not suggest that a review had been

initiated as of that time or that he had even engaged the services of a

reviewer. Instead, he simply indicates he planned to seek a review through

an entity he identified as “JDMD” once he had the necessary medical

records.

        Appellant suggests that he substantially complied with Rule 1042.3.

He further suggests that any inadvertent failure to file a timely certificate of

merit    is   excusable    under    Pa.R.C.P.    126,   which   provides   for   liberal

construction of procedural rules and permits a court to disregard procedural

errors or defects that do not affect the substantial rights of the parties.

However, as the Medical Center correctly observes, Rule 126 “requires a

substantial attempt to conform and is not available to one who ‘disregards

the terms of a rule in their entirety and determines for himself the steps he

can take to satisfy the procedure.’” Appellees’ Brief at 16 (quoting Womer

v. Hilliker, 908 A.2d 269, 278 (Pa. 2006) (additional citations omitted)).

____________________________________________


7
  At the September 21, 2016 hearing, counsel for the Medical Center stated
that the Medical Center also provided Appellant a complete set of his medical
records on August 31, 2016 as a courtesy and that Appellant signed for
those records on September 6, 2016. The Medical Center produced the
records despite the lack of any formal or even informal discovery request by
Appellant. Therefore, it appears Appellant received two complete sets of his
medical records in 2016 in addition to the records he obtained in 2014.



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There is simply nothing in the record to support a finding that Appellant

substantially complied with Rule 1042.3 or took steps that would implicate

Rule 126.

      We find no abuse of discretion—and certainly no manifest abuse of

discretion—on the part of the trial court for concluding Appellant failed to

offer a reasonable explanation or legitimate excuse for failing to comply with

Pa.R.C.P. 1042.3. Therefore, we shall not disturb the trial court’s order

denying relief from judgment of non pros.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2017




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