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Home My WebLink About2007-623 Civil THOMAS FLYNN, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : OF CUMBERLAND COUNTY, PENNSYLVANIA : V. : : RICHARD BOAL, M.D., and : ORTHOPEDIC INSTITUTE : OF PENNSYLVANIA : DEFENDANT : NO. 07-0623 CIVIL ORDER OF COURT AND NOW , this 14th day of May, 2007, the Plaintiff’s Motion to Open and/or GRANTED Strike the Judgment of Non Pros of February 21, 2007 is . The Vicarious Liability claim against the Orthopedic Institute of Pennsylvania is re-instituted. By the Court, M. L. Ebert, Jr., J. Jonathan A. Lang, Esquire Powell Law Group Attorneys for Plaintiff Craig A. Stone, Esquire Marshall, Dennehey, Warner Coleman & Goggin Attorneys for Defendants bas . THOMAS FLYNN, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : OF CUMBERLAND COUNTY, PENNSYLVANIA : V. : : RICHARD BOAL, M.D., and : ORTHOPEDIC INSTITUTE : OF PENNSYLVANIA : DEFENDANT : NO. 07-0623 CIVIL IN RE: MOTION OF PLAINTIFF TO STRIKE OR OPEN A JUDGMENT OF NON PROS BEFORE OLER, J. AND EBERT, J. OPINION AND ORDER OF COURT Ebert, J., May 14, 2007 – On November 22, 2006, the Plaintiff, Thomas Flynn, filed a complaint against the Defendants, Richard Boal, M.D. and Orthopedic Institute of Pennsylvania in Luzerne County. By order of the Luzerne County Court venue for the case was transferred to Cumberland County Court of Common Pleas on January 12, 2007. On February 21, 2007, Defendant, Orthopedic Institute of Pennsylvania, filed a praecipe for entry of Judgment of Non Pros pursuant to Rule 1042.6. It argues that the Plaintiff did not file a certificate of merit as to Orthopedic Institute of Pennsylvania which it maintains was required under Rule 1042.3 (a). Judgment of Non Pros was entered by the Prothonotary on February 21, 2007. On March 1, 2007 the Plaintiff filed a Petition to Strike or Open the Judgment. The Petition was argued, on April 4, 2007 and is now ready for decision. Pa. Rule of Civil Procedure 1042.3 provides: In any action based upon an allegation that a (a) licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff , or the plaintiff if not shall file with the complaint or within sixty represented, days after the filing of the complaint, a certificate of merit signed by the attorney or party that either (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability 2 . 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….(Emphasis added). Rule 1042.6 provides: The prothonotary, on praecipe of the defendant, shall (a) enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that there is no pending timely filed motion seeking to extend the time to file the certificate. (Emphasis added). In support of his motion to strike the judgment of non pros, Plaintiff maintains that he did file a certificate of merit as to Defendant, Dr. Richard Boal, M.D. but that his only claim against Orthopedic Institute of Pennsylvania is one of vicarious liability which does not require a separate certificate of merit. In examining the Plaintiff’s complaint, the Court notes that in paragraph 3 of the complaint the Plaintiff did include a somewhat inartful pleading which maintains that “Plaintiff is asserting professional liability claims against the Defendant Orthopedic Institute of Pennsylvania.” These words aside, the only counts of the complaint dealing with Orthopedic Institute of Pennsylvania are counts III and IV. Count III specifically states that it is based on vicarious liability. Upon careful reading of count IV of the complaint, a request for punitive damages, this Court finds that the pleading states a claim based on vicarious liability. The complaint in paragraph 42 specifically notes that “the conduct of the defendants herein, by and through their employees, subcontractors, workmen, agents and/or servants, either jointly, severally and/or separately constituted a wanton and reckless disregard for the safety and well being of plaintiff…” Paragraphs 43 through 49 of count IV go on to specifically refer only to the knowledge and/or actions of 3 . Dr. Richard Boal, whom Plaintiff identified as an “agent, workman, servant and/or employee of Orthopedic Institute of Pennsylvania.” No fair reading of the Plaintiff’s complaint raises any allegations which sound in corporate negligence against Orthopedic Institute of Pennsylvania. While Rule 1042.1 (b) (i) defines “licensed professional” to include a health care provider as defined by Section 503 of the Medical Care Availability in Reduction of Error (MCARE) Act, 40 Pa.C.S.A. Section 1303.503, this Court is bound by the holding of the Pennsylvania Superior Court in Sutherland v. Monongahela Valley Hospital, 856 A.2d 55 (Pa. Super. 2004), which stated: We note that the policy considerations underlying the Pennsylvania Supreme Court’s creation of the theory of corporate liability for hospitals are not present in the situation of a physician’s office. In Thompson, the Supreme Court recognized that “[t]he corporate hospital of today has assumed the role of a comprehensive health center with responsibility for arranging and coordinating the total health care of it patients.” Id. at 706. The same cannot be said for a physician’s practice group. Accordingly, we decline [an] invitation to extend the negligence principles contemplated by Thompson to the case sub judice. There is no question that the Plaintiff’s complaint sounds in vicarious liability not corporate negligence. Orthopedic Institute of Pennsylvania is the physicians practice group of which Dr. Richard Boal is a member. The doctrine of vicarious liability states that the tortious conduct of the agent is imputed to the principal. Nowhere in the pleadings is any independent tortious conduct alleged against Defendant Orthopedic Institute of Pennsylvania. Indeed, in Count III, Plaintiff clearly states in the heading that the claim is based on vicarious liability. In the Count IV request for punitive damages, the Plaintiff again asserts vicarious liability in that in each specific allegation in Paragraphs 43 through 49, only the Defendant, Dr. Richard Boal is named. , The moving defendant cites Judge Nealon’s opinion in White v. Behlke 69 Pa. D th & C 4 353 (Lackawanna Co. 2004), in support of its position. But the case is not analogous to the case at bar. In White, the Defendant, Community Center Health Care 4 . Systems was a hospital and therefore, under the holding of Sutherland v. Monongahela Valley Hospital, was subject to a corporate liability claim. Thus the Court ruled that a certificate of merit was required to support such claim. The Court specifically noted however, that this would not be the case if the action was based upon vicarious liability predicated upon the negligence of an actual or ostensible agent. Thus, the physician practice group, Orthopedic Institute of Pennsylvania is not a comprehensive health center and therefore corporate negligence principles do not apply. In the present case, Plaintiff has a claim against Orthopedic Institute of Pennsylvania based on vicarious liability as pled in the complaint. He is precluded by Sutherland v. Monongahela Valley Hospital from pursuing a corporate negligence claim against that entity. As such, no certificate of merit was required to support the vicarious liability claim. The plaintiff’s Motion to Open and/or Strike and/or Preclude Judgment of Non Pros is granted. CONCLUSION Based on the above Plaintiff’s Motion to Open and/or Strike the Judgment of Non Pros of February 21, 2007 is granted and the vicarious liability claim against the Orthopedic Institute of Pennsylvania is re-instituted. ORDER OF COURT AND NOW , this 14th day of May, 2007, the Plaintiff’s Motion to Open and/or GRANTED Strike the Judgment of Non Pros of February 21, 2007 is . The Vicarious Liability claim against the Orthopedic Institute of Pennsylvania is re-instituted. By the Court, M. L. Ebert, Jr., J. 5 . Jonathan A. Lang, Esquire Powell Law Group Attorneys for Plaintiff Craig A. Stone, Esquire Marshall, Dennehey, Warner Coleman & Goggin Attorneys for Defendants 6