J-S52016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ONOFRIO POSITANO                           :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    GEISINGER, GEISINGER MEDICAL               :    No. 1419 MDA 2017
    CENTER, GEISINGER CARDIOLOGY               :
    DEPARTMENT, KIMBERLY SKELDING,             :
    M.D., AND KAHLON                           :
    TALWLNDARDEEP, M.D.                        :

                Appeal from the Order Entered August 14, 2017
    In the Court of Common Pleas of Montour County Civil Division at No(s):
                                 2016-00269


BEFORE:      BENDER, P.J.E., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED OCTOBER 26, 2018

       Onofrio Positano appeals from the order denying his Motion to Quash

and Strike the Ten Day Notice of Praecipe for the Entry of Judgment of Non

Pros filed by Geisinger, Geisinger Medical Center, Geisinger Cardiology

Department,      (collectively    “Geisinger”),    Kimberly   Skelding,   M.D.,   and

Talwlndardeep S. Kahlon, M.D.1 We affirm.

____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1 Talwlndardeep S. Kahlon, M.D. was no longer employed by Geisinger at the
time of the lawsuit. It does not appear he was served with the Complaint and
no counsel entered an appearance in the trial court on his behalf. The Praecipe
for Entry of Judgement Non Pros was filed on behalf of Geisinger and Skelding.
The judgment of non pros, however, was entered on behalf of all defendants
for failure to file a complaint. On appeal, counsel for Geisinger and Skelding
also entered an appearance for Kahlon.
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      On July 21, 2016, Positano filed a “Complaint of Medical Negligence and

Intentional Infliction of Emotional Distress, Pursuant to Pa.R.C.P. Rule 1042.1”

against Geisinger CMA and Geisinger Cardiology Department. The Complaint

alleged as follows. Positano underwent a cardio-cauterization procedure in

February 2016. Prior to the procedure, a cardiologist presented herself as the

primary surgeon who would perform the procedure and stated that a new

resident would assist her. Positano claimed the resident performed the

procedure until a problem arose. He further maintains that Geisinger released

him from the hospital, even though he should have been observed for a 24-

hour period. He experienced pain and discomfort and, following an ultrasound,

learned that he had a hematoma from the catheterization procedure, which

could take up to a year to heal. He continued to suffer extreme pain, which

prevented him from walking or bending his right leg. After a follow-up

appointment, he discovered that he had a damaged femoral nerve and would

require additional surgery. He also required therapy and treatment on an

ongoing basis after the surgery. On this factual basis, Positano alleged medical

negligence and intentional infliction of emotional distress, and sought an

injunction, compensatory damages, and punitive damages. Positano attached

to his Complaint a Certificate of Merit, which he signed, stating that expert

testimony by an appropriate licensed professional was unnecessary. The trial

court later granted a motion to add Kimberly A. Skelding, M.D. and

Talwlndardeep S. Kahlon, M.D. as defendants to the Complaint. Order, filed

Oct. 31, 2016.

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       Geisinger filed Preliminary Objections to the Complaint maintaining that

Positano cannot pursue a medical negligence claim without expert testimony

and, therefore, Positano was required to file a certificate of merit asserting a

licensed professional had supplied him with a written statement that a

reasonable probability exists that he was the victim of malpractice. Geisinger

further argued that Pennsylvania does not recognize a cause of action for

intentional infliction of emotional distress; the alleged facts do not support a

claim for punitive damages; and the Complaint failed to state a claim upon

which relief could be granted.

       On November 8, 2016, the trial court granted Geisinger’s Preliminary

Objection in the nature of a demurrer to the medical negligence claim, finding

that although Positano filed a Certificate of Merit, the Complaint, coupled with

the Certificate of Merit, failed to allege a cause of action because the

Certificate of Merit stated that expert testimony would be unnecessary to

prosecute the claim. Order, filed Nov. 8, 2016, at ¶ 1; Trial Ct. Op., filed Dec.

6, 2016, at ¶ 1 (“1925(a) Op.”).2 The trial court granted Positano 30 days to

file an amended complaint as to his medical negligence claim. Order, filed Nov.

8, 2016, at ¶ 1. The court also granted the demurrers to the intentional

infliction of emotional distress claim and to the claim for punitive damages.
____________________________________________


2 The November 8, 2016 Order stated that Positano failed to file a Certificate
of Merit. In the 1925(a) Op., the court clarified that Positano did file a
Certificate of Merit, but the Certificate alleged no expert testimony would be
necessary. Because the facts alleged in the Complaint required expert
testimony to support the claims, it found the Complaint failed to state a cause
of action.

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The court did not grant Positano leave to amend these claims. The court

denied as moot the preliminary objection which demurred generally to the

Complaint.

        Positano filed a Notice of Appeal. On March 29, 2017, this Court quashed

the appeal, reasoning that the order granted Positano leave to amend the

Complaint and, therefore, the order was not a final order. Order, No. 88 MDA

2017 (Pa.Super. Feb. 16, 2017).

        Positano elected to stand on his original Complaint. Consequently, on

May 26, 2017, Geisinger and Skelding sent to Positano a Ten Day Notice of

Praecipe for Entry of Judgment of Non Pros for Failure to File Complaint and,

on June 6, 2017, filed a Praecipe for Entry of Judgment of Non Pros. Positano

filed a Motion to Quash and Strike Defendant’s Ten Day Notice of Praecipe for

the Entry of Judgment of Non Pros for Failure to File Complaint.3 On June 6,

2017, the Prothonotary entered a Judgment of Non Pros. On June 15, 2017,

Positano filed a Petition for Relief of Judgment of Non Pros Pursuant to

Pa.R.C.P. Rule 237.3. On August 15, 2017, the trial court denied Positano’s

Motion to Quash and Strike Defendant’s Ten Day Notice of Praecipe for Entry

of Judgment of Non Pros, noting that Positano had not filed an amended

complaint.4

____________________________________________


3   This document was dated June 4, 2017, but docketed June 7, 2017.

4 The trial court did not address the Petition for Relief of Judgment. However,
in denying the Motion to Quash, the court treated it as a motion for relief from
judgment.

                                           -4-
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        Positano filed a timely Notice of Appeal. He raises the following issues

on appeal:

           1. Can the [trial] court[] dismiss     a medical negligence
           complaint at the pleading stages        for failure to file a
           certificate of merit under Rule         1042.3(a)(1), when
           [Positano] had filed a certificate     of merit under Rule
           1042.3(a)(3)?

           2. Can [Positano], due to the fact[] that this matter falls
           squarely under the [d]octrine of [r]es ipsa loquitur, proceed
           forward without expert testimony?

Positano’s Br. at 1.5 We will address Positano’s claims together.

        Although the appeal is from a denial of a motion to strike the ten-day

notice, we will treat the appeal as from an order denying a motion for relief

from judgment of non pros. The order was entered after entry of judgment

and after Positano filed the motion for relief, and the trial court treated it as a

motion for relief from judgment.

        Rule 237.3 provides that if a petition for relief from judgment of non

pros is filed within ten days after the entry of judgment of non pros, as it was

here, then “the court shall open the judgment if the proposed complaint states

a meritorious cause of action” Pa.R.C.P. 237.3(b)(1).

        For such an appeal, our standard of review is as follows:

           A request to open a judgment of non pros is by way of grace
           and not of right and its grant or refusal is peculiarly a matter
           for the [trial] court’s discretion. We are loathe to reverse the
           exercise of the court’s equitable powers unless an abuse of
           discretion is clearly evident. O'Hara v. Randall, 879 A.2d
           240, 243 (Pa.Super.2005) (citations omitted and brackets
____________________________________________


5   Positano’s brief is not paginated. This Court has supplied the page numbers.

                                           -5-
J-S52016-18


         in original). A trial court abuses its discretion if it “renders a
         judgment that is manifestly unreasonable, arbitrary or
         capricious; that fails to apply the law; or that is motivated
         by partiality, prejudice, bias or ill-will.” Thomas Jefferson
         University       v.    Wapner,      903      A.2d     565,    569
         (Pa.Super.2006) (citation omitted).

Gondek v. Bio-Medical Applications of Pa., Inc., 919 A.2d 283, 286

(Pa.Super. 2007).

      To determine whether the trial court erred in denying to open the

judgment, we must determine whether there is a meritorious cause of action,

and, therefore must determine whether the court properly sustained

Geisenger’s preliminary objections. We review a trial court’s grant or denial of

preliminary objections “to determine whether the trial court committed an

error of law.” Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa.Super. 2011)

(quoting Haun v. Cmty. Health Sys., Inc., 14 A.3d 120, 123 (Pa.Super.

2011)). In doing so, we “must apply the same standard as the trial court.” Id.

      A party is entitled to a grant of a preliminary objection in the nature of

a demurrer where the pleading is legally insufficient. Pa.R.Civ.P. 1028(a)(4).

We have stated:

         Preliminary objections in the nature of a demurrer test the
         legal sufficiency of the complaint. When considering
         preliminary objections, all material facts set forth in the
         challenged pleadings are admitted as true, as well as all
         inferences reasonably deducible therefrom. Preliminary
         objections which seek the dismissal of a cause of action
         should be sustained only in cases in which it is clear and free
         from doubt that the pleader will be unable to prove facts
         legally sufficient to establish the right to relief. If any doubt
         exists as to whether a demurrer should be sustained, it
         should be resolved in favor of overruling the preliminary
         objections.

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Feingold, 15 A.3d at 941 (quoting Haun, 14 A.3d at 123).

      Pennsylvania Rule of Civil Procedure 1042.3 provides that for actions

alleging a licensed professional deviated from an acceptable professional

standard, the plaintiff must file, within 60 days from the filing of the complaint,

a certificate of merit that:

            (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.

Pa.R.Civ.P. 1042.3(a). The official Note to the Rule states, “In the event that

the attorney certifies under subdivision (a)(3) that an expert is unnecessary

for prosecution of the claim, in the absence of exceptional circumstances the

attorney is 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.Civ.P. 1042.3, Note to (a)(3).

      Medical malpractice is “defined as the unwarranted departure from

generally accepted standards of medical practice resulting in injury to a

patient, including all liability-producing conduct arising from the rendition of

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professional medical services.” Grossman v. Barke, 868 A.2d 561, 566

(Pa.Super. 2005) (quotation marks and citations omitted). To establish a

medical malpractice claim, a plaintiff must establish: a “duty owed by the

physician to the patient, a breach of that duty by the physician, that the

breach was the proximate cause of the harm suffered, and the damages

suffered were a direct result of the harm.” Id. (quoting Toogood v. Rogal,

824 A.2d 1140, 1145 (Pa. 2003) (op. announcing judgment of court)).

Further:

           One of the most distinguishing features of a medical
           malpractice suit is, in most cases, the need for expert
           testimony, which may be necessary to elucidate complex
           medical issues to a jury of laypersons. In other words,
           because the negligence of a physician encompasses matters
           not within the ordinary knowledge and experience of
           laypersons, a medical malpractice plaintiff must present
           expert testimony to establish the applicable standard of
           care, the deviation from that standard, causation and the
           extent of the injury.

Grossman, 868 A.2d at 566 (citation, quotation marks, and brackets

omitted). A “narrow exception” to the expert testimony requirement exists “in

instances of obvious negligence, i.e., circumstances in which the medical and

factual issues presented are such that a lay juror could recognize negligence

just as well as any expert.” Fessenden v. Robert Packer Hosp., 97 A.3d

1225, 1230 (Pa.Super. 2014) (quoting Jones v. Harrisburg Polyclinic

Hosp., 437 A.2d 1134, 1137 (Pa. 1981)). In cases fitting this narrow

exception, the doctrine of res ipsa loquitur “allows a fact-finder to infer from




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the circumstances surrounding the injury that the harm suffered was caused

by the negligence of the defendant.” Id.6 The doctrine applies where:

          (a) the event is of a kind which ordinarily does not occur in
          the absence of negligence;

          (b) other responsible causes, including the conduct of the
          plaintiff and third persons, are sufficiently eliminated by the
          evidence; and

          (c) the indicated negligence is within the scope of the
          defendant's duty to the plaintiff.

Id. (quoting Restatement (Second) of Torts § 328D(1) (1965)).

       Here, the trial court determined that Positano would not be able to

establish his claims of professional negligence without expert testimony. This

was not error. We agree with the trial court that “reading the Complaint in the

light most favorable to the Plaintiff,” an expert opinion is required to make “a

determination as to the proper standard of care to employ in the conduct of a

cardiac catheterization, or as to the proper use . . . of a resident physician in

training in the conduct of a cardiac catheterization as was alleged in the unique

facts of the present case.” Order, filed Nov. 8, 2016 at ¶ 1. We further agree

that the Certificate of Merit that Positano filed was inadequate, as it stated

expert testimony was unnecessary for prosecution of the claim. 1925(a) Op.


____________________________________________


6 The Pennsylvania Supreme Court has held that res ipsa loquitur can apply
to medical malpractice cases, noting that “when common knowledge or
medical evidence can be established that the event would not ordinarily occur
without negligence, there is no basis for refusing to draw an inference of
negligence in accord with res ipsa loquitur.” Quinby v. Plumsteadville
Family Practice, Inc., 907 A.2d 1061, 1072 (Pa. 2006) (quoting Jones, 437
A.2d at 1137).

                                           -9-
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at ¶ 1. Without the support of expert testimony, the complaint’s allegations

were insufficient to state a cause of action. Id.

      Contrary to Positano’s assertion, the doctrine of res ipsa loquitur does

not apply, as it is not clear that “the event is of a kind which ordinarily does

not occur in the absence of negligence.” See Fessenden, 97 A.3d at 1230.

The procedure and alleged injuries are not within the common fund of

knowledge such that a jury could determine whether the doctors deviated

from a standard of care and whether that deviation caused injury without

expert testimony.

      Further, to the extent Liggon-Redding v. Estate of Sugarman, 659

F.3d 258, 265 (3d Cir. 2011), relied on by Positano, suggests that a case

cannot be dismissed on preliminary objection where a plaintiff filed a

certificate of merit under Rule 1042.3(a)(3), we find it not applicable here.

First, it is a federal case, and we are not bound by it. Schiavone v. Aveta,

41 A.3d 861, 870 n.4 (Pa.Super. 2012). Further, here, the court found that,

contrary to his assertion, Positano could not establish his claims without

expert testimony and, therefore, the Complaint, coupled with the Certificate

of Merit filed, failed to state a claim. As discussed above, this was not error.

Also, as noted by the Comment to Rule 1042.3, Positano was bound by his

certification that no expert testimony was necessary absent “exceptional

circumstances.” Positano has not alleged any exceptional circumstances and,

in fact, continues to maintain expert testimony is unnecessary.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/26/2018




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