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HomeMy WebLinkAbout2005-1787 Civil MICHAEL S. VENCIL and : IN THE COURT OF COMMON PLEAS OF NANCY M. VENCIL, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : V.: : HOLY SPIRIT HOSPITAL, : NO. 2005 – 1787 CIVIL TERM Defendant : : PLAINTIFFS’ PETITION TO OPEN (VACATE) JUDGMENT OF NON PROS BEFORE GUIDO, J. OPINION AND ORDER Currently before us is the plaintiffs’ Petition to Open a Judgment of Non Pros. For the reasons hereinafter set forth, the petition must be denied. On February 7, 2007, plaintiffs filed a seven count complaint against the defendant. On February 23, 2007, the defendant filed preliminary objections. On April 10, 2007 the defendant obtained a judgment of non pros pursuant to Pa. Rule of Civil Procedure 1042.6. In accordance with that Rule, defendant’s counsel filed a praecipe which contained the following language: I, the undersigned, certify that the Plaintiffs named above have asserted a professional liability claim against the Defendant named above, who is a licensed professional, that no certificate of merit has been filed within the time required by Pa.R.C.P. 1042.3 and that there is no motion to extend the time for filing the 1 certificate pending before the court. On April 12, 2007 Plaintiffs filed a Motion to Open the Judgment of Non Pros pursuant to Pa. Rule of Civil Procedure 3051. In order to be entitled to relief under that Rule, the plaintiff must satisfy the following three requirements: 1 Praecipe for Entry of Non Pros Pursuant to Rule 1042.6. NO. 2005 – 1787 CIVIL TERM 1)The petition is timely filed; 2)There is a reasonable explanation or legitimate excuse for the inactivity or delay; and 3)There is a meritorious cause of action. See Pa.R.C.P. 3051(b)(1)-(3). See also Womer v. Hilliker, 908 A.2d 269 (Pa. 2006). We are satisfied that the first and third prongs of the above requirements have been met. The petition was filed only two days after the judgment of non pros was entered on the record. Furthermore, not only does the complaint allege viable causes of action, but a certificate of merit along with an appropriate expert report were attached to the petition. However, plaintiffs have not offered a reasonable explanation for their 2 failure to timely file a certificate of merit in accordance with Pa.R.C.P. 1042.3. Plaintiffs have offered several reasons for their failure to comply with Rule 1042.3.In the first instance, they contend that they did not believe a certificate of merit was necessary because they did not (and could not) designate this as a professional liability action as required by Rule 1042.2(a). They next argue that they were lulled into 2 Rule 1042.3 provides, in relevant part, as follows: Rule 1042.3. Certificate of Merit (a)In any action based upon an allegation that a licensed professional deviated . . . from an acceptable professional standard, the attorney for the plaintiff. shall file with the complaint or within sixty 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 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 . . . (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. . . . (d)The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days. The motion to extend the time for filing a certificate of merit must be filed on or before the filing date that the plaintiff seeks to extend. 2 NO. 2005 – 1787 CIVIL TERM a false sense of security because their failure to designate this as a professional liability 3 claim was not included in the defendant’s preliminary objections. Finally, they point out that they had an expert report in their file and would have filed it if defendant had given them notice of its intention to file the judgment of non pros. Unfortunately for plaintiffs, each of their proffered excuses has been rejected by our appellate courts. At the outset, we note that plaintiffs could have, and under the rules should have, designated this as a professional liability action. Rule 1042.1 specifically states that the rules governing professional liability actions apply to any “civil action in which a professional liability claim is asserted against a licensed professional.” Pa.R.C.P. 1042.1(a). Defendant is clearly a licensed professional under Rule 1042.1(b) (1). Count II of the complaint is for medical malpractice which is clearly a professional liability claim. Therefore, this case is subject to the rules of civil procedure governing 4 professional liability actions. Plaintiffs’ mistaken belief that a certificate of merit was not necessary is not a sufficient excuse. Varner v. Classic Communities, 890 A.2d 1068 (Pa.Super.2006). Likewise, the defendant’s failure to file preliminary objections pursuant to Pa.R.C.P. 1042.2 (b) does not justify plaintiff’s failure to timely file a certificate of merit. Id. See also, Yee v. Roberts, 878 A.2d 906 (Pa.Super 2005). Nor does the failure of defendant to give notice of its intention to enter a judgment of non pros excuse the timely filing of the certificate of merit. Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269 (Pa. 2006). Plaintiffs contend that even if we do not open the judgment in connection with the medical malpractice claim, they should be allowed to proceed on the other claims. 3 Rule 1042.2 (b) authorizes the defendant to preliminarily object to a complaint that improperly fails to designate the action as a professional liability claim. 4 Plaintiffs’ counsel conceded this issue at oral argument. 3 NO. 2005 – 1787 CIVIL TERM However, we are satisfied that all of their claims sound in medical malpractice. Medical malpractice is defined as the “unwarranted departure from generally accepted standards including all liability producing of medical practice resulting in injury to a patient, conduct arising from the rendition of professional medical services .” (emphasis added). Ditch v. Waynesboro Hospital, 917 A.2d 317 (Pa. Super 2007) quoting from Toogood v. Owen J. Rogal, D.D.S. P.C., 573 Pa. 245, 824 A.2d 1140, 1145 (2003). In the instant case all of the claims arise from the defendant’s failure to properly diagnose and treat the condition for which plaintiff presented herself to its emergency room. The gravamen of the complaint is that plaintiff was involuntarily and improperly committed to defendant’s mental health ward because of the negligent and/or intentional 5 acts of its employees. While the complaint contains 7 counts, they all arise out of the action of the defendant and its employees in providing health care services to the plaintiff. Based upon the above, we must deny plaintiffs petition to open the judgment of non pros. ORDER OF COURT ST AND NOW, this 31 day of MAY, 2007, Plaintiffs’ Petition to Open a Judgment of Non Pros is DENIED. By the Court, /s/ Edward E. Guido Edward E. Guido, J. 5 The one in medical malpractice, one in negligence, one for false imprisonment, two for intentional or negligent infliction of emotional distress and one for loss of companionship. 4 NO. 2005 – 1787 CIVIL TERM Diane G. Radcliff, Esquire Jacques G. Simon Esquire Aaron S. Jayman, Esquire :sld 5