J-S52002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 SERGEI KOVALEV                  :            IN THE SUPERIOR COURT OF
                                 :                 PENNSYLVANIA
                Appellant        :
                                 :
                                 :
           v.                    :
                                 :
                                 :
 IRINA STEPANSKY, DMD; JOHN DOE; :            No. 3220 EDA 2018
 HEALTH PARTNERS PLANS, INC.;    :
 WILLIAM S. GEORGE; AVESIS       :
 INCORPORATED; CHRIS SWANKER     :

               Appeal from the Order Entered October 15, 2018
            In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): November Term, 2017, No. 01676


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.:                          FILED NOVEMBER 08, 2019

      Sergei Kovalev appeals, pro se, from the order entered October 15,

2018, in the Court of Common Pleas of Philadelphia County, denying

reconsideration of the denial of his second attempt to file an amended

complaint. Kovalev’s first complaint was dismissed on April 11, 2018, in its

entirety and without prejudice, because it contained, in violation of Pa.R.C.P.

1028(a)(2), scandalous and impertinent material.        Also relevant to this

appeal, on April 10, 2018, the trial court determined that Kovalev’s complaint

sounded in professional negligence and so required a certificate of merit to

proceed. Kovalev was ordered to file said certificate of merit within 20 days.

He did not. After a thorough review of the submissions by the parties, relevant

law, and the certified record, we affirm.
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        The convoluted background of this matter is as follows. Kovalev claims

to have sought dental treatment from defendant, Dr. Irina Stepansky, DMD.

However, Kovalev asserts he was tortured and mutilated during the course of

unauthorized dental procedures performed by Dr. Stepansky and John Doe.

In his first complaint, Kovalev claimed: “Defendant Stepansky can hardly be

called a ‘dentistry doctor’ because she is nothing but a butcher enjoying

human body mutilations.” Complaint at ¶ 2.1 We note the original complaint

consisted of 270 paragraphs and 28 alleged causes of action, including Claim

12 – Sadistic Torture, and 20th Cause of Action – Human Body Mutilation.2 The

corporate entities sued allegedly took part in aiding and abetting Dr.

Stepansky in her machinations and were partners in her fraudulent activities.3

The claims against the corporate entities cannot survive if the claim against

Dr. Kovalev fails.

        Despite being informed that his complaint sounded in professional

negligence and therefore required a certificate of merit, Kovalev responded by

filing certificates claiming no certificate of merit was required. Kovalev sought

permission to file an amended complaint but was denied relief, apparently

____________________________________________


1 Such assertions are found throughout the original complaint and rightfully
form the basis of the dismissal of the complaint.

2   Kovalev titled these randomly as claims for relief or causes of action.

3William S. George is apparently the CEO of Health Partners Plans, Inc., and
Chris Swanker is apparently the CEO of Avesis Incorporated. Kovalev has
made no argument in his brief specifically regarding the dismissal of the claims
against the corporate entities and their CEOs.

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because he failed to attach a proposed amended complaint or some other

document indicating how his new complaint would correct the prior problems.

On August 27, 2018, he again sought leave to file an amended complaint.

This time he attached a proposed amended complaint to the motion.

However, it still contained scandalous material and there was still no certificate

of merit to support any of the allegations. Accordingly, on October 4, 2018

(docketed on October 8, 2018), the trial court denied, with prejudice,

Kovalev’s request to file an amended complaint. On October 10, 2018, he

filed a motion for reconsideration that was promptly denied on October 15,

2018. Kovalev filed a timely notice of appeal on November 1, 2018 and a

timely Pa.R.A.P. 1925(b) statement of errors complained of on appeal on

November 21, 2018.

      It merits mention Kovalev’s Rule 1925(b) statement contains seven

claims of error; his appellant’s brief lists eleven points of error, although some

of his numbered arguments just list facts without context. Five of the seven

Rule 1925(b) claims are also found in the appellant’s brief. We agree with the

trial court opinion that asserts all of Kovalev’s claims are a restatement of a

single claim the trial court abused its discretion in denying Kovalev’s request

to file an amended complaint, with the exception of the claim the trial judge

erred in failing to recuse herself.

      While Kovalev was granted the opportunity to amend his complaint

when the trial court dismissed his original complaint for containing scandalous




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and impertinent material, he was not entitled to the absolute right to file an

amended complaint.

      We begin by noting:

      Our standard of review of a trial court's order denying a plaintiff
      leave to amend its complaint . . . permits us to overturn the order
      only if the trial court erred as a matter of law or abused its
      discretion. See Glover v. SEPTA, 794 A.2d 410, 413 n. 4 (Pa.
      Cmwlth. 2002). The trial court enjoys “broad discretion” to grant
      or deny a petition to amend. See Horowitz v. Univ.
      Underwriters Ins. Co., 397 Pa.Super. 473, 580 A.2d 395, 398
      (1990). Amendment of pleadings is governed by Pa.R.C.P. 1033,
      which provides: “A party, either by filed consent of the adverse
      party or by leave of court, may at any time change the form of
      action, correct the name of a party or amend his pleading.”
      Although the trial court generally should exercise its discretion to
      permit amendment, see Pilotti v. Mobil Oil, 388 Pa. Super, 514,
      565 A.2d 1227, 1229 (1989); cf. Pa.R.C.P. 126 (encouraging
      liberal construal of the civil rules), where a party will be unable to
      state a claim on which relief could be granted, leave to amend
      should be denied. See Stouffer v. Commonwealth, Dep’t of
      Transp., 127 Pa.Cmwlth. 610, 562 A.2d 922, 923 (1989)
      [(overruled on other grounds)].

The Brickman Group, Ltd. v. CGU Ins. Co., 865 A.2d 927-27 (Pa. Super.

2004).

      Additionally,

      Leave to amend will be withheld where the initial pleadings reveal
      that the prima facie elements of the claim cannot be established
      and that the complaint's defects are so substantial that
      amendment is not likely to cure them.

Roach v. Port Authority of Allegheny County, 550 A.2d 1346, 1347-48

(Pa. Super. 1988) citing Feingold v. Hill, 521 A.2d 33, 39 (Pa. Super. 1987).

      Here, the trial court noted the proposed amended complaint, now

consisting of 360 paragraphs, was simply a restatement of the original, flawed

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complaint.    Moreover, even after the trial court ruled Kovalev needed a

certificate of merit to proceed, Kovalev ignored the trial court and filed

“certificates” that asserted no certificate of merit was required. Kovalev still

asserts no certificate of merit is required. The trial court, recognizing these

significant flaws, saw no purpose in allowing the amended complaint to be

filed, and dismissed the action. Our review of the record finds no abuse of

discretion or error of law in that ruling. Accordingly, Kovalev cannot prevail

in this endeavor.

      Although Kovalev did not specifically include a challenge to the order

requiring him to file a certificate of merit in his Rule 1925(b) statement, that

issue might be considered as encompassed in his general assertion that he

should have been allowed to file his amended complaint. Kovalev argues that

a certificate of merit is not required for the intentional, criminal actions he

charges Dr. Stepansky committed against him. Kovalev misinterprets the law.

Kovalev’s assertions are based on claims that Dr. Stepansky mistreated him

by performing services that went beyond those professional dental services

he requested.

      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 professional medical services.” Toogood v.
      Owen J. Rogel, D.D.S., P.C., 573 Pa. 245, 824 A.2d 1140, 1145
      (2003). “[T]o prevail in a medical malpractice action, 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 Hightower-


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     Warren v. Silk, 548 Pa. 459, 698 A.2d 52, 54 (1997)). Thus, the
     basic elements of medical malpractice and ordinary negligence are
     the same, although medical malpractice has some distinguishing
     characteristics. See Grossman [v. Barke], 868 A.2d [561] at
     566 [(Pa. Super. 2005)]. The Grossman Court drew the
     distinction between ordinary negligence and medical malpractice
     as follows:

         A medical malpractice claim is distinguished by two
         defining characteristics. First, medical malpractice can
         occur only within the course of a professional relationship.
         Second, claims of medical malpractice necessarily raise
         questions involving medical judgment. Claims of ordinary
         negligence, by contrast, raise issues that are within the
         common knowledge and experience of the [fact-finder].
         Therefore, a court must ask two fundamental questions in
         determining whether a claim sounds in ordinary negligence
         or medical malpractice: (1) whether the claim pertains to
         an action that occurred within the course of a professional
         relationship; and (2) whether the claim raises questions of
         medical judgment beyond the realm of common knowledge
         and experience. If both these questions are answered in
         the affirmative, the action is subject to the procedural and
         substantive requirements that govern medical malpractice
         actions.


     Id. at 570 (quoting Byrant v. Oakpointe Villa Nursing Centre,
     471 Mich. 411, 684 N.W.2d 864, 871 (2004)). Therefore, “where
     a complaint is predicated upon facts constituting medical
     treatment, that is, when it involves diagnosis, care and treatment
     by licensed professionals, the action must be characterized as a
     professional negligence action.” Yee v. Roberts, 878 A.2d 906,
     912 (Pa. Super. 2005).

Ditch v. Waynsboro Hospital, 917 A.2d 317, 312-22 (Pa. Super. 2007).

     Kovalev’s complaint details allegations, including, but not limited to,

improper dental cleaning (¶ 48), removal of portions of teeth (¶ 55), and not




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finishing dental work (¶ 60).4        Although Kovalev’s complaint contains many

bizarre allegations, the underlying claim involves questions of medical

judgment. Accordingly, the trial court correctly required Kovalev to file the

proper certificate. His refusal to do so has contributed to the failure of his

complaint.

       It is apparent from our review of the certified record that the trial court

correctly determined Kovalev would not be able to file a competent complaint,

as well as refusing to supply the required certificate of merit. Therefore, there

was no abuse of discretion in denying his request to file an amended

complaint.

       In addition to this issue, Kovalev also complains the trial judge, the

Honorable Shelly Robins-New, erred in failing to recuse herself. The standard

of review for the denial of a motion to recuse is well settled:

       [Our Supreme Court] presumes judges of this Commonwealth are
       “honorable, fair and competent,” and, when confronted with a
       recusal demand, have the ability to determine whether they can
       rule impartially and without prejudice. Commonwealth v.
       White, 557 Pa. 408, 734 A.2d 374, 384 (1999). The party who
       asserts a trial judge must be disqualified bears the burden of
       producing evidence establishing bias, prejudice, or unfairness
       necessitating recusal, and the “decision by a judge against whom
       a plea of prejudice is made will not be disturbed except for an
       abuse of discretion.” [Commonwealth v.] Darush, [459 A.2d
       727] at 731 [(Pa. 1983)].


____________________________________________


4 Interestingly, Kovalev claims not remembering much of this treatment
because he supposed Dr. Stepansky injected him with some unknown form of
hypnotic and/or sedative drug that caused temporary loss of consciousness
and/or short-term memory loss (¶¶ 58, 59, 63, and several more).

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Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004).

       Here, Kovalev has provided no evidence of prejudice, bias or unfairness;

he has simply noted that the trial judge has ruled against him.         Adverse

rulings, especially legally correct adverse rulings, are not evidence regarding

an inability of a jurist to provide a fair and impartial trial.   Kovalev is not

entitled to relief on this issue.5

       Health Partners Plans, Inc.’s and William S. George’s Application to

Strike Kovalev’s Reply Briefs is denied.

       Order affirmed. Application to Strike Reply Briefs denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/8/19




____________________________________________


5 Kovalev has claimed a prior judge assigned to his case also erred in failing
to recuse herself. Kovalev has provided no support for this claim in his brief.
Accordingly, this claim is waived.

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