J-A23025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWARD C. LECKEY                                  IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

RICHARD L. GOTTLIEB

                            Appellee                 No. 1580 WDA 2014


                     Appeal from the Order August 28, 2014
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): GD 12-22731


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                         FILED OCTOBER 20, 2015

        Edward C. Leckey appeals pro se1 from the trial court’s order granting

summary judgment2 in favor of Appellee, Richard L. Gottlieb, D.M.D. After

careful review, we affirm.

____________________________________________


1
    Leckey is a licensed Pennsylvania attorney.
2
  In Morningstar v. Hallett, 858 A.2d 125 (Pa. Super. 2004), our Court
stated:

        The standard of Pennsylvania Superior Court review of an order
        granting or denying a motion for summary judgment pursuant to
        [Pa.R.C.P.] 1035.2 is well established. In reviewing an order
        granting summary judgment, an appellate court must examine
        the record in the light most favorable to the non-moving party.
        We will reverse only if there has been an error of law or a clear
        abuse of discretion.

Id. at 128-29 (citations omitted).
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       On February 11, 2013, Leckey filed a breach of contract action against

Gottlieb in connection with dental treatment he received from Gottlieb

between December 2008 through April 2009. In December 2008, Gottlieb

offered Leckey a treatment plan which included restoration of multiple areas

of his upper arch. In his complaint, Leckey averred that he contracted with

Gottlieb to “fabricate and install implants3 throughout [Leckey’s] upper

mouth on posts already installed, except for three natural teeth in the upper

left of [Leckey’s] mouth and two other natural teeth at the far right and left-

hand corners of [Leckey’s] mouth, and also except for [Gottlieb] placing a

cap in a tooth in the middle of [Leckey’s] upper mouth.” Leckey Complaint,

2/11/13, at ¶ 1. Leckey also alleged that Gottlieb advised him that the cost

of the entire treatment plan would not exceed $10,000. Id. at ¶ 2. Due to

financial constraints, Leckey voluntarily discontinued the dental work after

only approximately 40% of the work, in his estimation, had been completed.

Id. at ¶ 4.     At that point, Leckey had been charged $5,055.00 for the work

that had been completed.

____________________________________________


3
  Leckey later admitted that he did not understand what an implant was at
the time he filed his complaint, and that, in fact, a different dentist first
placed the implants in his mouth and then Gottlieb actually attached crowns
to the implants’ abutments. Leckey Deposition, 5/8/14, at 36. Tooth root
implants are small posts made of titanium that are placed into the bone
socket of a missing tooth.          See http://www.webmd.com/oral-
health/guide/dental-implants. Once the implant has bonded to the
jawbone, an abutment is attached to the post to hold the new tooth. Id. A
replacement tooth, called a crown, is then attached to the abutment. Id.



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       Leckey alleges that at that time he ceased dental work there was a

gap between the first “implant,”4 near the upper-left hand corner of his

mouth, and his natural tooth. Leckey claims that food gets trapped in this

area every time that he eats, that this gap should not exist, and that “there

is no practicable solution to the foregoing problem arising from the gap . . .

which will continue to exist . . . and create a problem for [him] whenever he

eats.” Id. at ¶ 11-10.

       On March 1, 2013, Gottlieb filed preliminary objections to Leckey’s

complaint.     The trial court overruled Gottlieb’s preliminary objections and

ordered Gottlieb to file an answer within thirty days from the service of a

certificate of merit by Leckey. In response to the court’s order, Leckey filed

a certificate of merit stating:

       I, Edward C. Leckey, Plaintiff, based upon the information
       presently available to me, certify that expert testimony of an
       appropriate licensed professional is unnecessary for prosecution
       of the claim against this Defendant.

       Plaintiff hereby reserves the right to amend this Certificate after
       he has received a copy of Defendant’s answer to the Complaint
       in this case.

Plaintiff’s Certificate of Merit, 4/11/13.




____________________________________________


4
   Although we recognize that Leckey later admitted Gottlieb actually
attached crowns and not the implants in his mouth, see supra n.3, we will
employ the language he used in his pleadings to remain consistent
throughout this decision.



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      On June 6, 2014, Gottlieb filed a motion for summary judgment,

alleging that he is entitled to relief because: (1) Leckey’s claims sound in

medical professional negligence and his complaint was filed beyond the

statute of limitations; (2) expert testimony is required for Leckey to meet his

burden of proof; and (3) Leckey cannot establish a claim for breach of

contract. The trial court granted Gottlieb’s motion and dismissed Leckey’s

complaint with prejudice, concluding that expert testimony was required for

Leckey to meet his burden of proof, that by terminating treatment with

Gottlieb prematurely, Leckey eliminated the possibility that Gottlieb would

remedy the “gap” of which Leckey complains, and Leckey’s breach of

contract claim fails because he did not produce supporting evidence. Trial

Court Order, 8/28/14. This appeal follows.

      On appeal, Leckey presents the following issues for our consideration:

      (1)   Is resolution of the question whether crowns were properly
            installed in Appellant’s mouth when the installation left a
            gap between the nearest crown and the adjoining natural
            tooth such that food particles would accumulate when
            eating beyond the comprehension of nonprofessional
            persons?

      (2)   Did termination of Defendant’s services by Appellant
            because he was not financially able to continue when
            Defendant’s charges were in excess of his estimate
            eliminate the possibility that Defendant would be able to
            remedy the gap between the two crowns Defendant had
            already installed in Appellant’s mouth and Appellant’s
            natural tooth?

      Initially, we note that summary judgment is properly granted after the

close of the relevant pleadings “whenever there is no genuine issue of any


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material fact as to a necessary element of the cause of action or defense

which could be established by additional discovery or expert report” and the

moving party is entitled to judgment as a matter of law. Pa.R.C.P.

1035.2(1).

       Leckey first claims that expert testimony of an appropriate licensed

professional was unnecessary to prosecute his claim against Gottlieb.

Specifically, he asserts that “a layperson can readily determine that no gap

would exist in [his] mouth if the cap or crown installed nearest to Plaintiff’s

natural tooth in the upper right-hand corner of his mouth had been properly

installed.” Plaintiff’s Brief, at 12.

       First, we note that by recognizing that a certificate of merit5 was

required in this case, Leckey essentially concedes that his claim sounds in


____________________________________________


5
   Pennsylvania Rule of Civil Procedure 1042.3 applies to professional liability
claims against licensed professionals where the action alleges that the
professional deviated from an acceptable professional standard. Pa.R.C.P.
1042.3(a). The rule contemplates that a certificate of merit will be filed
contemporaneously with or shortly after the filing of the complaint, and
provides a 60-day window after the filing of the complaint to accomplish the
filing of the certificate of merit. Id. The certificate shall state that either:
(1) the professional has supplied a written statement that there exists a
reasonable probability that the defendant’s work fell outside the acceptable
standards of professional standards that caused the harm to plaintiff; (2) the
claim that the defendant deviated from the acceptable standard is based
solely on allegations that other licensed professionals for whom the
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. Id. at (a)(1), (2), & (3).




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professional negligence, not breach of contract.6              See Pa.R.C.P. 1042.1-

1042.8    (provisions     pertaining    to     professional liability   actions).   The

substance of the allegations in Leckey’s complaint and other pleadings

clearly are characteristic of a professional negligence action. See Plaintiff’s

Complaint, at ¶ 9 (emphasis added) (Leckey avers that gap between his

natural tooth and implant constructed by Gottlieb “should not exist and

would not exist if the implant were placed as it should have been next to the

natural tooth.”); Plaintiff’s Response to Defendant’s Preliminary Objections,

3/21/13, at 3 (Leckey states “Plaintiff anticipated that Defendant’s services

would be performed with ‘the reasonable skill and diligence as is ordinarily

exercised in [the dental] profession[.]’”).

       Finally, and most telling about the basis of his action, is the following

exchange between defense counsel and Leckey at his deposition:

       Q:    So if I’m hearing you right today, you’re alleging that Dr.
       Gottlieb didn’t perform the work with respect to this particular
       area around tooth no. 13 or 14 –

       A: That’s correct.

       Q: -- competently?

____________________________________________


6
  In his deposition, Leckey claims that he and Gottlieb entered into an oral
contract to include the agreed-upon dental services at an estimated $10,000
in cost. Leckey Deposition, 5/8/14, at 68. However, the essence of this
claim is one of professional negligence, not breach of contract merely
because a dentist and his patient discussed a treatment plan. 40 P.S.
§1303.105 (“[i]n the absence of a special contract in writing, a health care
provider is neither a warrantor nor guarantor of a cure.”).



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J-A23025-15


      A: That’s correct.

                                     *       *       *

      Q: The damages that you’ve told me about today are the result
      of what you’ve referred to in some of your filings and maybe
      even your Complaint as incompetent treatment; correct?

      A: That’s correct.

                                         *       *       *

      Q: You’re alleging, if I’m understanding you, is that what, he
      placed that incompetently?

      A: Yes.

Leckey Deposition, 5/8/14, at 63-64, 69.

      Having    determined    that   Leckey’s        claim     is   one   of    professional

negligence, we must now determine whether expert testimony was required

in order prove his claim. After reviewing the record and relevant case law,

we find Leckey’s claim is not “so simple, and the lack of skill or want of care

so obvious as to be within the range of ordinary experience and

comprehension     of   even   non[-]professional             persons.”         Brannan    v.

Lankenau Hosp., 417 A.2d 196, 201 (Pa. 1980). While Leckey asserts that

his dental problem results from a simple “gap” between his teeth, the actual

dental work performed by Gottlieb that allegedly caused this gap involves a

complicated process. Specifically, the work required in order to prepare a

mouth for dental implants and the attachment of the replacement teeth is

not something that is in the general knowledge of fact finders.                   Thus, we

agree with the trial court that Leckey was required to produce a certificate of

merit to show that Gottlieb’s work failed to conform to a standard of care

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J-A23025-15



within his profession.      See Yee v. Roberts, (Pa. Super. 2005) (because

negligence of physician often encompasses matters not within ordinary

knowledge and experience of laypersons, medical malpractice plaintiff must

present expert testimony to establish applicable standard of care, deviation

from standard, causation and the extent of injury).7

       Because Leckey did not file his professional negligence action within

the time required by the statute of limitations, see 42 Pa.C.S. § 5524, the

court properly granted summary judgment in favor of Gottlieb.

       Order affirmed.8



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

____________________________________________


7
  Even though Leckey may have incorrectly believed that an expert was
unnecessary to prosecute his claim, it does not change that fact that he did
indeed file a certificate of merit under section 1042.3(a)(3) which satisfies
Pennsylvania’s certificate of merit requirement. However, in the event that
an attorney certifies under Rule 1042.3(a)(3) that an expert is unnecessary
for prosecution of the claim, the attorney is typically bound by the
certification and, subsequently, the trial court shall preclude the plaintiff
from presenting testimony by an expert on the questions of standard of care
and causation. Pa.R.C.P. 1042.3(a)(3) (Note).
8
  Having determined that the trial court’s order is properly affirmed based on
the statute of limitations, we need not reach Leckey’s second issue on
appeal.



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Date: 10/20/2015




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