          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Elwood Small,                       :
                    Appellant       :
                                    :
             v.                     : No. 149 C.D. 2016
                                    : Submitted: July 1, 2016
Debra Trees, Rodger Mason,          :
James Petaccio, Joseph Visinky,     :
Annette Kowalewski, Richard Ellers, :
Jawad Salameh, Prison Health        :
Services, Inc. and Pennsylvania     :
Department of Corrections           :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                       FILED: July 27, 2016


             Elwood Small (Small) appeals pro se from two orders of the Court of
Common Pleas of Somerset County (trial court), one granting the motion for
summary judgment filed by Debra Trees (Trees), Joseph Visinky (Visinky),
Annette Kowalewski (Kowalewski) and the Pennsylvania Department of
Corrections (collectively, DOC Defendants), and the other granting the motions for
summary judgment filed by Rodger Mason (Mason) and James Petaccio
(Petaccio). Finding no error in the trial court’s decision, we affirm.
                                                 I.
               In July 2008, Small filed an eleven-count class action complaint, later
amended twice, in the trial court, naming as defendants the DOC Defendants,
Mason, Petaccio, Richard Ellers,1 Jawad Salameh and Prison Health Services, Inc.2
involving the treatment he received for a left shoulder injury that he sustained in
December 2004 when he slipped and fell while working in the kitchen at the State
Correctional Institution (SCI) at Retreat where he was incarcerated at the time. He
underwent surgery at Somerset Hospital and was transferred to SCI Houtzdale in
2005 where he was placed on “sick call” and was taken to physical therapy three
times a week.


               Small’s complaint alleges the following: that on July 6, 2006, Debra
Youkin (Youkin), a Correctional Health Care Administrator at SCI Houtzdale,
emailed Visinky, also a Correctional Health Care Administrator with the
Department of Corrections, and Trees, a transfer coordinator and employee of the
Department of Corrections, inquiring whether Small could be transferred to SCI
Laurel Highlands after surgery because Small needed extensive physical therapy.
Trees responded that SCI Laurel Highlands was full of therapy cases and that the
beds could be used more wisely. The next day, Youkin sent long-term care referral
forms to Trees and Kowalewski, a Correctional Health Care Administrator and


       1
          There is no further reference to Richard Ellers in the trial court’s opinion, in any of the
briefs provided to this Court or otherwise.

       2
         On May 23, 2011, Jawad Salameh, M.D. and Prison Health Services, Inc. were
dismissed from the matter.




                                                 2
employee of the Department of Corrections, indicating that Small required
rehabilitation and physical therapy.


             On July 25, 2006, Small was transferred to SCI Somerset to have
arthroscopic surgery performed on his left shoulder by Jonathan Kates, M.D. (Dr.
Kates). Dr. Kates observed that Small’s left shoulder had forward flexion to 120
degrees and abduction at 70 degrees, and ordered that his arm remain in a sling for
10 days and that he start pendulum exercises the next day and physical therapy for
passive range of motion as soon as possible.              SCI personnel issued Small
instructions depicting the requisite pendulum exercises and he was directed to
perform the exercises in his cell and to see the physical therapist the following
week. Visinky contacted Youkin who agreed to complete Small’s physical therapy
after being told that Small did not need intensive physical therapy.


             Following surgery, in August 2006, Small was transferred back to SCI
Houtzdale where he had a hearing on a misconduct charge for failing a random
drug test and was placed in the Restricted Housing Unit (RHU) for 90 days. Small
was then transferred to the RHU in SCI Laurel Highlands, where physical therapy
personnel would visit him in his cell.


             While in the RHU, Small was examined by Dr. Kates and examined
and treated by Mason, a physical therapist. Mason was a subcontractor with
Petaccio’s   company,     Petaccio       Rehabilitation    Services,   LLC   (Petaccio
Rehabilitation). Petaccio Rehabilitation, in turn, was a subcontractor with Prison




                                            3
Health Services, which contracted with the prison system to provide medical
services to inmates.3


                 After examining Small, Mason directed that he receive moist heat and
range of motion therapy once out of the RHU, and a moist heating pad was
provided to Small. In September 2006, Dr. Kates met with Small and opined that
his active range of motion did not show improvement from pre-operation and, thus,
ordered continued physical therapy. In September 2006, Mason visited Small and
opined that his shoulder would stiffen up if he did not receive physical therapy.
From September 2006 to September 2007, Small received physical therapy
treatments three times a week in the physical therapy department at SCI Laurel
Highlands. In May 2007, Mason examined Small and determined that his range of
motion could not be improved with further physical therapy.



       3
           Petaccio describes the relationship amongst the parties in a footnote in his brief:

                 James Petaccio, a licensed physical therapist, owned a limited
                 liability company, Petaccio Rehabilitation Services, LLC
                 (“Petaccio Rehabilitation”).      Petaccio Rehabilitation was a
                 subcontractor with Prison Health Services (“PHS”), which in turn
                 was a contractor with the prison system to provide medical
                 services to inmates. Petaccio Rehabilitation hired other therapists
                 on a contract basis to provide physical therapy services. Roger
                 [sic] Mason, a licensed physical therapist, had a contract with
                 Phoenix Rehabilitation Services, LLC (“Phoenix”). Phoenix in
                 turn had a contract with Petaccio Rehabilitation. Therefore, Mason
                 was a subcontractor with Petaccio Rehabilitation and not an
                 employee of Petaccio Rehabilitation or James Petaccio.

(James Petaccio’s Brief at 12, no. 3.)




                                                   4
               Small alleges in his complaint that subcontractor Mason was negligent
by failing to ensure that Small was being given his prescribed therapy when he was
in the RHU. He also alleges that contractor Petaccio is liable for the alleged
breach of duty by Mason under the doctrine of respondeat superior because Mason
was hired as an independent contractor by Petaccio, who was a subcontractor hired
by Prison Health Services, Inc. to provide physical therapy to inmates housed at
SCI Laurel Highlands. He contends that the DOC Defendants were negligent
because they were responsible for his medical care, making them liable for the
negligent care provided by Petaccio and Mason.4

       4
          The medical-professional liability exception to sovereign immunity waives immunity
for a Commonwealth party for “[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.” 42 Pa.C.S. §8522(b)(2).

       The exception has two distinct waivers of immunity. The first part of the exception
imposes liability for health care employees of a Commonwealth agency medical facility. A
Commonwealth agency is defined as any executive agency or independent agency. 42 Pa.C.S.
§102. That definition is a broad one and includes all Commonwealth-operated medical facilities,
operated either directly or indirectly.

        The second waiver is for a Commonwealth party who is a doctor, dentist, nurse or related
health care personnel. A “Commonwealth party” is defined as “[a] Commonwealth agency and
any employee thereof….” 42 Pa.C.S. §8501. At first glance, it appears that these waivers are the
same – aren’t doctors included in the first part of the exception waiving immunity for “health
care” employees of a Commonwealth agency? The answer is not always. As in the private
sector, not all health care professionals are on the payroll of the institution where they treat
patients, but have a variety of relationships with the institution that do not fall within the
employer-employee category.

        Illustrative of a non-employment relationship held to fall within the exception is that set
forth in Walls v. Hazleton State General Hospital, 629 A.2d 232 (Pa.Cmwlth.1993), where an
action was brought by a patient alleging that he received negligent medical care from a doctor
employed by a medical group retained as an independent contractor to provide orthopedic
medical services to a state hospital. While the doctor was not an “employee” under the first part
of the exception because he was not an employee of a Commonwealth agency, he was an
(Footnote continued on next page…)

                                                5
               The defendants filed various motions and objections and, in response,
Small filed motions seeking a determination as to the necessity of filing a
certificate of merit, and motions for extension of time for filing a certificate of
merit as required by Pennsylvania Rule of Civil Procedure No. 1042.3(a)5 to bring

(continued…)

employee of a Commonwealth party as that term is defined. Unlike the traditional definition
where an employee is someone on the payroll, an employee of a Commonwealth party is defined
as “[a]ny person who is acting or has acted on behalf of the government unit whether on a
temporary or permanent basis….” 42 Pa.C.S. §8501. Because the doctor that caused the patient’s
injuries was acting on behalf of the government, he fell within the exception. Because the
physician was within the ambit of the exception, the limitation on damages applicable to
Commonwealth parties limited the liability of the medical group that provided the orthopedic
care.

       5
          Rule No. 1042.3 of our civil procedural rules governing professional liability claims
provides that a certificate of merit must be filed with, or within 60 days after, the filing of a
complaint in any action asserting a professional liability claim “based upon an allegation that a
licensed professional deviated from an acceptable professional standard.” Pa.R.C.P. No.
1042.3(a); see generally Womer v. Hilliker, 908 A.2d 269, 275-76 (Pa. 2006) (discussing the
policies behind rules of civil procedure governing professional liability claims). The certificate
must aver:

               (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.

(Footnote continued on next page…)

                                                6
a medical malpractice claim. In 2009, Small issued certificates of merit for Mason,
Prison Health Services, Salameh, Petaccio, Visinky, Kowalewski, and Trees. The
certificates of merit stated that an appropriate licensed professional supplied a
written statement that there exists a reasonable probability that the care, skill or
knowledge exercised or exhibited fell outside of the acceptable standard of care
and proximately caused Small’s injury.                    When requested by the trial court to
deliver the professional opinions, Small failed to do so.6


                 Petaccio then filed a motion for in camera review regarding the
sufficiency of Small’s certificates of merit. After hearing argument, the trial court
granted Petaccio’s motion for in camera review and ordered Small to supply all
professional opinions for all defendants indicating support for a malpractice claim.
Small appealed to the Superior Court of Pennsylvania, and the appeal was quashed.


(continued…)

Pa.R.C.P. No. 1042.3(a).

       6
           In its opinion, the trial court states in a footnote that:

                 The DOC Defendants have introduced a number of expert
                 opinions, ostensibly issued to them by [Small], as exhibits attached
                 to the Motion of Summary Judgment at issue. [Small] did not
                 issue us these opinions. We ordered [Small] [to] supply us all
                 professional opinions for all Defendants indicating support of the
                 professional malpractice claim on June 2, 2009. [Small] did not do
                 so. Instead, [Small] sent us a letter on August 6, 2010. This letter
                 indicated the opinions were enclosed, however, there were no such
                 opinions in the letter.

(Trial Court’s Opinion at 16, no. 15.)




                                                      7
In June 2010, Mason filed a petition to dismiss and in August 2010, Small sent the
trial court a letter stating that he was enclosing an expert opinion to support his
certificate of merit for defendants Salameh and Prison Health Services, Inc.;
however, no such certificate of merit was enclosed.


             The discovery period lasted from 2008 to 2015. During this period, in
2013, Mason and Petaccio filed motions for summary judgment. In January 2015,
the trial court granted Mason and Petaccio’s motions for summary judgment and
dismissed the claims against them. In February 2015, the DOC Defendants filed
their motion for summary judgment, to which were attached the expert affidavits
that Small had not previously provided to the trial court from Alan Kushner, an
unlicensed chiropractor; Stephen B. Scher, M.D.; Charolette Basenfelder, R.N.;
and Janika Jordan, a physical therapist.


             The trial court granted the motions and dismissed Small’s claims
against the DOC Defendants, finding that Small’s allegations of negligence and not
professional negligence were insufficient to avoid summary judgment. The trial
court also found that respondeat superior liability was appropriate for the DOC
itself, but that the claim would be insufficient to proceed if there was no claim
against the other DOC Defendants. Moreover, the trial court found that Small
failed to present sufficient evidence to prove that the DOC Defendants’ acts or
omissions increased the risk of harm to a person in Small’s position, as well as the
elements of “duty of care” and “extent of injury.”




                                           8
             The trial court also determined that Janika Jordan and Charolette
Basenfelder’s affidavits were insufficient because Jordan’s affidavit failed to
address the DOC Defendants’ actions and inactions and Basenfelder’s affidavit
failed to render an opinion on causation or any opinion regarding Trees.            It
explained that “even if these [a]ffidavits did not fail on their face, they are also
woefully deficient along with the rest of the [a]ffidavits provided.” (Trial Court’s
Opinion at 17.) The trial court also noted that:

             At [Small’s] Deposition on August 17, 2012, [Small]
             admitted: (1) he only has expert [a]ffidavits, as opposed
             to Expert Reports; (2) [Small] exclusively showed these
             “experts” select parts of his medical records; (3) Each
             [a]ffidavit was typed and drafted by [Small]; (4) When
             the [a]ffidavits were returned to him by [Small’s] brother,
             someone had filled in the blanks on the [a]ffidavits and
             there were signatures on the signature lines; (5) The only
             thing that [Small] knows concerning the [a]ffidavits is
             that he gave some materials to his brother and in return
             he got filled in [a]ffidavits; (6) [Small] has not checked
             out any of the “experts” credentials; and (7) the
             [a]ffidavit of Stephen Scher, M.D. was only offered
             against Dr. Solomon [sic], Mr. Scher was an inmate at
             the prison, and he has since passed away.… Finally,
             [Small] further admitted to us that these were the same
             Expert Reports submitted in his federal case where the
             United States District Court for the Western District of
             Pennsylvania dismissed his claims for insufficient expert
             evidence and the United States Court of Appeals for the
             Third Circuit upheld the decision on appeal.


(Id. at 17-18) (citations omitted). The trial court concluded that because Small
suffered an injury to his shoulder requiring surgery, “this is a case where there is a




                                          9
possibility that the alleged harm (loss of [range of motion]) could have occurred
even in the absence of negligence.” (Id. at 15.) This appeal followed.7


                                                II.
                                                A.
                At the outset, Small argues that this Court lacks jurisdiction to hear
this appeal pursuant to Section 742 of the Judicial Code, 42 Pa.C.S. §742.8 We
disagree. This Court has exclusive jurisdiction, under Section 762(a)(1) of the
Judicial Code, 42 Pa.C.S. §762(a)(1), over appeals from final orders of the courts
of common pleas against the Commonwealth, including any officer thereof acting
in his official capacity. Small has brought suit against the DOC as well as several
of its officers; as such, we have jurisdiction over this appeal.




       7
         Our review of a trial court order granting summary judgment is limited to determining
whether the trial court abused its discretion or committed an error of law. Manley v. Fitzgerald,
997 A.2d 1235, 1238 n.2 (Pa. Cmwlth. 2010). Summary judgment may only be granted when,
after examining the record in the light most favorable to the non-moving party, the record clearly
demonstrates that there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Id.

       8
           40 Pa.C.S. §742 provides:

                The Superior Court shall have exclusive appellate jurisdiction of
                all appeals from final orders of the courts of common pleas,
                regardless of the nature of the controversy or the amount involved,
                except such classes of appeals as are by any provision of this
                chapter within the exclusive jurisdiction of the Supreme Court or
                the Commonwealth Court.



                                                10
                                          B.
             As to the merits, Small argues that the trial court erred in granting
Mason and Petaccio’s as well as the DOC Defendants’ motions for summary
judgment because, among other reasons, his certificates of merit did not satisfy the
requirements of Pa.R.C.P. No. 1042.3(a). Pursuant to Pa.R.C.P. No. 1042.3(a),
before a case for medical professional negligence can continue, a certificate of
merit has to be filed with the trial court within 60 days. In this case, while a
certificate of merit was filed, it did not satisfy that requirement for the reasons set
forth in the portions of the trial court opinion that we previously quoted. Because
Small has not satisfied Pa.R.C.P. No. 1042.3(a), for that reason alone, the trial
court properly granted the motion for summary judgment.


             As to the remaining issues, after reviewing the record, the parties’
briefs and applicable law, these issues were raised before the trial court and were
ably resolved in the thorough and well-reasoned opinion of the Honorable David
C. Klementik of the Court of Common Pleas of Somerset County. We affirm
based on that opinion.



                                        ____________________________
                                        DAN PELLEGRINI, Senior Judge


Judge Cosgrove did not participate in the decision in this case.




                                          11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Elwood Small,                       :
                    Appellant       :
                                    :
             v.                     : No. 149 C.D. 2016
                                    :
Debra Trees, Rodger Mason,          :
James Petaccio, Joseph Visinky,     :
Annette Kowalewski, Richard Ellers, :
Jawad Salameh, Prison Health        :
Services, Inc. and Pennsylvania     :
Department of Corrections           :




                                 ORDER


           AND NOW, this 27th day of July, 2016, the orders of the Court of
Common Pleas of Somerset County at No. 640 CIVIL 2008 are affirmed.



                                    ____________________________
                                    DAN PELLEGRINI, Senior Judge
