J-A18035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LARRY RUNK, II,                           :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                  Appellant               :
                                          :
            v.                            :
                                          :
JOHN L. PENNOCK, M.D., CAPITAL            :
AREA CARDIOVASCULAR SURGICAL              :
INSTITUTE, PC,                            :
                                          :
                                          :
                  Appellees               :           No. 1950 MDA 2014

            Appeal from the Order entered on October 16, 2014
             in the Court of Common Pleas of Dauphin County,
                      Civil Division, No. 2011 CV 2531

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 30, 2015

      Larry Runk, II (“Runk”), pro se, appeals the Order granting summary

judgment in favor of John L. Pennock, M.D., and Capital Area Cardiovascular

Surgical Institute, PC (collectively “Dr. Pennock”).1 We affirm.

      In 2005, Dr. Pennock performed heart surgery on Runk, which

included the placement of a medical device. In 2011, Runk filed a Complaint

against Dr. Pennock, alleging professional negligence related to the surgery.

In support of his professional negligence claim, Runk submitted the expert



1
 On appeal, Runk has attempted to add parties to the caption of this case,
namely Keith Dougherty (“Dougherty”), Harrisburg Hospital and Joseph
Buckley, Esquire (“Attorney Buckley”). Because these parties were never
added as parties to the case when it was pending in the trial court, we do
not regard them as parties in the case on appeal. See Pa.R.A.P. 908
(Parties on Appeal).
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report of Thomas J. Berger, M.D. (“Dr. Berger”), who opined that Dr.

Pennock had breached the applicable standard of medical care when

performing surgery on Runk.       Runk did not produce any further expert

reports by the court-ordered deadline. Prior to trial, Runk filed a Motion in

Limine regarding Dr. Berger’s competency to testify at trial.      Following a

hearing, the trial court determined that Dr. Berger was not competent to

render standard of care testimony at trial, as he had not been engaged in

active clinical practice or teaching within the prior five years, as required by

40 P.S. § 1303.512.2 While the case was pending, Runk’s counsel, Attorney

Buckley, sought to withdraw from representation. Prior to the trial court’s

ruling on Attorney Buckley’s Petition to Withdraw, Runk filed numerous pro

se filings.3   After the trial court granted Attorney Buckley’s Petition to

Withdraw, Runk elected to proceed pro se.              Thereafter, Dougherty

unilaterally filed numerous pro se motions and other filings, which the trial

court disregarded on the basis that Dougherty was neither a party to the




2
 Pursuant to section 1303.512, an expert testifying on the standard of care
must (1) possess an unrestricted physician’s license to practice medicine in
any state or the District of Columbia; and (2) be engaged in or retired within
the previous five years from active clinical practice or teaching. See 40 P.S.
§ 1303.512(b)(1), (2).
3
  We cannot consider on appeal the pro se filings made by Runk when he
was still represented by Attorney Buckley, as there is no right to hybrid
representation.



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action nor a licensed attorney.4

        Ultimately, Dr. Pennock filed a Motion for Summary Judgment on the

basis that Runk was unable to establish a prima facie claim of professional

negligence because Runk’s sole expert witness was precluded from offering

standard of care testimony. Dr. Pennock subsequently withdrew his Motion

and filed an Amended Motion for Summary Judgment, which was served on

Runk.    Runk failed to respond to the Amended Motion, or file any brief in

opposition thereto.5      Accordingly, the trial court treated Dr. Pennock’s

Amended Motion for Summary Judgment as uncontested, and on October

16, 2014, entered an Order granting the Amended Motion. Runk, acting pro

se, filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b)

Concise Statement.

        On appeal, Runk raises the following issues for our review:

        1. Did the [trial court] commit an error in law when indicating
           active within 5 years could not include acting as a [p]laintiff’s
           [e]xpert utilizing the clinical diagnosis method as identified in
           Black’s Law?



4
  The trial court determined that because Dougherty never sought leave of
court to intervene in the action by filing a petition to intervene, as required
by Pa.R.C.P. 2328, he was not a party to the action. See Trial Court
Opinion, 1/23/15, at 1 n.1 (unnumbered). The trial court also determined
that, because Dougherty was not a licensed attorney under 42 Pa.C.S.A.
§ 2524, he was prohibited from acting as Runk’s attorney. See Trial Court
Opinion, 1/23/15, at 1 n.2 (unnumbered).
5
 However, Dougherty continued to unilaterally file numerous motions, none
of which constituted a response to Dr. Pennock’s Amended Motion for
Summary Judgment.



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      2. Did the [trial c]ourt commit an error in law by implying active
         clinical [(]as [d]efense [c]ounsel described clinical[)] is
         [m]andatory when [] full[-] time teaching is sufficient [(]with
         no active clinical being required[)]?

      3. Did the [trial court] abuse [its] discretion by indicating a
         [d]octor same [sic] board certified [(]utilizing the clinical
         diagnosis method[)] currently engaged in forensic medicine
         with a currently unrestricted medical license in one of the 50
         states or D[.]C[.] was not qualified to provide standard of
         care testimony?

      4. Did the [trial c]ourt commit an error in law by treating a
         dispositive (summary judgment) motion as if a claim
         processing motion?

      5. Can Dauphin County Local rule invalidate due process due?

      6. Is the [trial c]ourt required to compel mediation 40 P.S.
         § 1303.714(g) when[,] as here[,] legal malpractice has
         invalidated [Dr. Pennock’s] MCARE [i]nsurance [(]damaging
         the case for both [Runk] and [Dr. Pennock] alike[)] (as a
         remedy for the defense’s bad faith) so as to preserve what
         reputation [Dr. Pennock] and his hospital are entitled to
         under Birth Center?

      7. Can [the trial court] invalidate Article I Sec[tion] 10 of the
         United States Constitution [(]for Windsor Notification
         Purposes[),] requiring parties to be of the nobility to appear
         in court and[/]or[] be of the nobility or[,] at minimum[,] be
         represented by a member of the nobility to be a lawful
         assignee in a legal malpractice claim? And did the [trial]
         [c]ourt [a]ct without [j]urisdiction in [g]ranting [s]ummary
         [j]udgment? …

      8. When[,] as here[,] the [trial c]ourt converts a [m]edical
         [m]alpractice case into a legal malpractice case [(]unwittingly
         by [its] 2/4/14 Order[),] does it create a right of the plaintiff
         to amend under Rule 708?

Brief for Appellant at 12-14 (quotation marks omitted, issues renumbered

for ease of reference).



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J-A18035-15


      Our review of Runk’s pro se Concise Statement discloses that the

issues raised therein are largely unintelligible and, as noted by the trial

court, “without any factual basis or citation to the evidence in the record, []

do not pertain to the instant appeal[, and include ]citations to legal authority

that are not applicable to [Dr. Pennock’s] Amended Motion for Summary

Judgment or [the trial] court’s grant thereof.”        See Trial Court Opinion,

1/23/15, at 2 (unnumbered).6

      Runk’s pro se brief on appeal suffers from the same deficiencies. Runk

has failed to support his claims with citations to legitimate filings (i.e., filings

made by Attorney Buckley or by Runk after the trial court granted Attorney

Buckley’s Petition to Withdraw), evidence in the record, or relevant legal

authority. See Pa.R.A.P. 2119(b), (c). Moreover, several of the issues (6-8)

raised by Runk on appeal do not pertain to issues properly raised in the trial




6
 The Concise Statement raises, inter alia, sweeping allegations of judicial
conspiracy, as well as legal malpractice and conspiracy by both Attorney
Buckley and Dr. Pennock’s defense counsel.



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J-A18035-15


court.7 Accordingly, Runk has failed to preserve them for our review. See

Pa.R.A.P. 302(a).

     In his remaining issues, Runk essentially argues that the trial court

erred by (1) determining that Dr. Berger had not been engaged in active

clinical practice or teaching for a period of five years and, thus, was

precluded by 40 P.S. § 1303.512(b) from offering standard of care

testimony; and (2) granting Dr. Pennock’s Amended Motion for Summary

Judgment, following its determination that the Amended Motion was

uncontested.

            Under our standard of review of an order granting or
     denying a motion for summary judgment, we view the record in
     the light most favorable to the non-moving party, and all doubts
     as to the existence of a genuine issue of material fact must be
     resolved against the moving party.       Summary judgment is
     properly entered only where there is no genuine issue as to any
     material fact and it is clear that the moving party is entitled to
     judgment as a matter of law.

Barnett v. SKF USA, Inc., 38 A.3d 770, 776 n.6 (Pa. 2012). Additionally,

when a motion for summary judgment has been filed, “the adverse party

may not rest upon the mere allegations or denials of the pleadings but must

7
  For example, Runk requests that this Court (1) add Dougherty as a party to
the action; (2) amend the Complaint to add Harrisburg Hospital as a party;
(3) amend the Complaint to add an averment that Dr. Pennock was
intoxicated when he performed surgery on Runk; (4) order the parties to
engage in mediation “as a remedy [for d]efense [c]ounsel’s “bad faith;” and
(5) determine that all attorneys in the case committed legal malpractice, and
are liable to Runk for damages. Brief for Appellant at 37-38. However, each
of these claims is premised on Runk’s assertion that Attorney Buckley and
defense counsel committed legal malpractice. See id. Because no claim of
legal malpractice was ever presented to the trial court, we cannot address
such claims on appeal. See Pa.R.A.P. 302(a).


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J-A18035-15


file a response within thirty days after service of the motion.”       Pa.R.C.P.

1035.3(a). Summary judgment may be entered against a party who does

not respond. Pa.R.C.P. 1035.3(d).

      Our review of the record in the light most favorable to Runk discloses

that Dr. Berger retired from active clinical practice and teaching in 1998,

approximately sixteen years prior to his anticipated trial testimony in this

case, and that his sole source of income since 1998 has been expert

consulting. See Dr. Pennock’s Response to Rule Concerning Runk’s Motion

in Limine, Exhibits C and D. Accordingly, the trial court properly concluded

that Dr. Berger was precluded by 40 P.S. § 1303.512(b) from offering

standard of care testimony because he had not been engaged in or retired

within the previous five years from active clinical practice or teaching.

      Additionally, by failing to properly respond to the Amended Motion for

Summary Judgment, Runk failed to raise any genuine issue as to any

material fact, thereby entitling Dr. Pennock to judgment as a matter of law

pursuant to Pa.R.C.P. 1035.3(d).        Accordingly, the trial court properly

entered summary judgment in favor of Dr. Pennock.

      Order affirmed.




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J-A18035-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/30/2015




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