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HomeMy WebLinkAbout2004-3065 Civil ANN WILSON, EXECUTRIX OF THE ESTATE OF HELEN E. KELLY, DECEASED, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, tld/b/a MANORCARE : HEALTH SERVICES - CARLISLE, HCR MANORCARE, AND MANORCARE, INC., DEFENDANTS 04-3065 CIVIL TERM IN RE: MOTION OF PLAINTIFF TO OPEN JUDGMENT OF NON PROS BEFORE BAYLEY, J. AND GUIDO, J. OPINION AND ORDER OF COURT Bayley, J., September 14, 2005:-- On July 1, 2004, plaintiff, Ann Wilson, Executrix of the Estate of Helen Kelly, who died on March 18, 2003, instituted a wrongful death and survival action alleging professional negligence against defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, tld/b/a Manorcare Health Services - Carlisle, HCR Manorcare, and Manorcare, Inc. On August 5, 2004, defendants filed preliminary objections to the complaint consisting of (1) a motion to strike for lack of specificity, (2) a demurrer to a claim for punitive damages, and (3) a demurrer to the claim on behalf of plaintiff's sons and daughters for emotional trauma and for pain and suffering. The preliminary objections were not listed for argument and no disposition was entered. Plaintiff filed an amended complaint on March 16, 2005. It averred therein that, "A Certificate of Merit is filed herewith." No Certificate of Merit was filed with the amended 04-3065 CIVIL TERM complaint. On March 17, 2005, counsel for defendants accepted service of the amended complaint and filed a Praecipe for Entry of Judgment of Non Pros. On March 22, 2005, plaintiff filed (1) a Motion to Remove the Non Pros, (2) an affidavit setting forth that a "Certificate of Merit was not attached to the Amended Complaint filed on March 16, 2005, due to pure clerical error, inadvertence or mistake," and (3) a Certificate of Merit setting forth: [t]he claim that this 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 and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals 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. On May 2, 2005, counsel for plaintiff showed counsel for defendants three Certificates of Merit. One was signed by Suzanne Frederick, MSN, RN, dated March 9, 2004, almost four months before the complaint was filed. The two others, one signed by William Barnhart, MD, dated January 10, 2005, and another signed by Lisa McElheny, RN, dated January 22, 2005, were executed more than six months after the complaint was filed and close to three months before the amended complaint was filed. The motion of plaintiff to remove the non pros was briefed and argued on August 24, 2005. Pa. Rule of Civil Procedure 1 042.3(a) provides: 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 -2- 04-3065 CIVIL TERM 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 (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. (Emphasis added.) Rule 1042.6(a), provides: The prothonotary, on praecipe of the defendant, shall 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. A petition to open a judgment of non pros is addressed to the equitable powers of the court. Walker v. Pugliese, 317 Pa. Super. 595 (1983). In Hoover v. Davila, 862 A.2d 591 (Pa. Super. 2004), the Superior Court of Pennsylvania stated that relief from a judgment of non pros taken for failure to file a Rule 1042.3 certificate of merit in a timely fashion is subject to the same guidelines as for opening of a judgment of non pros under Rule 3051. Rule 3051 (b), provides: If the relief sought includes the opening of the judgment, the petition shall allege facts showing that (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. In the case sub judice, the petition to remove the judgment of non pros was timely filed five days after the judgment, and a filed Certificate of Merit attests to the meritorious cause of action. The issue, therefore, is whether there is a reasonable -3- 04-3065 CIVIL TERM explanation or legitimate excuse for the failure to timely file the Certificate of Merit. In Hoover, a complaint was filed on February 12, 2003. It was reinstated on March 10, 2003, and again on April 10, 2003. On April 29, 2003, two defendants filed a praecipe for entry of a judgment of non pros because no certificate of merit had been filed nor had plaintiff obtained an extension to file a certificate. A judgment of non pros was entered. On May 28, 2003, plaintiff filed a motion to extend the time for filing a certificate of merit. Because a judgment of non pros was already entered in favor of two defendants, the trial court treated it as a motion for an extension with respect to the third defendant. Plaintiff subsequently filed a petition to open and strike the judgment of non pros against the other two defendants. That petition contained certificates of merit dated July 3, 2004, against all three defendants. The trial court denied that petition to open or strike the judgment of non pros and the motion for an extension of time to file a certificate of merit. On appeal, the Superior Court of Pennsylvania affirmed. Plaintiff argued that the non pros should have been stricken because the sixty day time period under Rule 1 042.3(a) ran from the date the complaint was last reinstated, not the date it was filed. The Court noted that while Rule 1 042.3(d) does not impose any restriction on the number of extension orders that a court may enter, the sixty day time period for the filing of a certificate of merit or for requesting an extension of time "clearly runs from the date of the filing of the original complaint. . ." In O'Hara v. Randall, 879 A.2d 240 (Pa. Super. 2005), the plaintiff filed a complaint against physicians and health care providers alleging negligence. Some of the doctors -4- 04-3065 CIVIL TERM filed preliminary objections. One of the doctors filed a praecipe for entry of judgment of non pros. After the prothonotary entered the judgment, the same doctor filed preliminary objections to plaintiff's second amended complaint. Judgments of non pros for all defendants were then entered. Plaintiff filed a motion to strike the judgments on the ground that they were entered prematurely. She maintained that she was not required to file certificates of merit until sixty days from the filing of her second amended complaint. The trial court, striking the judgments of non pros, held that plaintiff had sixty days from her last amended complaint to file a certificate of merit. The Superior Court of Pennsylvania reversed and ordered reinstatement of the judgments of non pros, stating: Assuming arguendo that Appellee had no choice but to file amended complaints in response to preliminary objections filed by Dr. Richterman and Dr. Carey, we are not persuaded by her argument that the sixty-day filing period started anew each time she filed an amended complaint. Rule 1042.3 states that the plaintiff must file a certificate of merit as to each licensed professional against whom a claim is asserted within sixty days of the filing of the complaint; the rule does not contain an exception for cases where an amended complaint is filed, and we will not create one. As this Court noted in [Hoover v. Davila, 862 A.2d 591 (Pa. Super. 2004)], the term "filing" refers to the "initial commencement of an action," i.e., the date on which the initial complaint was delivered to court personnel. Therefore, consistent with Hoover, we hold that the filing of an amended complaint does not afford the plaintiff an additional sixty days in which to file a certificate of merit. (Emphasis added.) In Harris v. Neuburger, 877 A.2d 1275 (Pa. Super. 2005), the Superior Court, referring to Rule 1042.3, stated that "clearly, the underlying purpose of this rule is to prevent the filing of baseless medical professional liability claims." The Court affirmed the opening of a judgment of non pros, concluding that there was substantial -5- 04-3065 CIVIL TERM compliance where defense counsel had provided certificates of merit to defendant before the complaint was filed, but failed to file those certificates within sixty days of the filing of that complaint. The Court stated that "since [plaintiff] has satisfied the purpose of Rule 1024.3, he should not be barred from his day in court because he mistakenly, but reasonably believed he had met his obligations [under the rule]." In Almes v. Burket, 2005 W. L. 1869863 (2005 Pa. Super. 289 (August 9, 2005)), a complaint was filed on October 23, 2003, alleging professional negligence. The sixtieth day for filing a certificate of merit was December 22,2003. On December 18, 2003, a certificate of merit was mailed to plaintiff's counsel. On the same day, counsel learned that his mother-in-law was gravely ill. She died on December 22. Counsel reopened his office on December 26 and found the certificate of merit and a praecipe by defendant dated December 22, 2003, for a judgment of non pros that was entered on December 26. On December 31, a petition for relief from the judgment was filed. It was denied but reversed by the Superior Court on an abuse of discretion standard. The Court noted that generally errors of counsel which indicate an oversight rather than a deliberate decision not to defend, have been held to constitute sufficient legal justification to open a default judgment. It concluded that "we are not prepared to assert that an attorney who forgets that the certificate was due or who fails to take the above mentioned actions when faced with a family crisis like the one presented here is so derelict in his obligations that the oversight should not be excused." In the case sub judice, notwithstanding the filing of the amended complaint, -6- 04-3065 CIVIL TERM since the original complaint was filed on July 1, 2004, the sixtieth day to file a Certificate of Merit under to Rule 1 042.3(a) was August 30, 2004.1 Hoover and O'Hara, supra. 1 No motion for an extension under Rule 1 042.3(d) was ever filed. -7- 04-3065 CIVIL TERM Defense counsel filed a praecipe for a judgment of non pros six and a half months later on March 17. On March 22, plaintiff's counsel, seemingly oblivious that the last day to file a Certificate of Merit had been August 30, filed an affidavit that the "Certificate of Merit was not attached to the Amended Complaint filed on March 16, 2005, due to pure clerical error, inadvertence or mistake." (Emphasis added.) That was over seven and a half months late. That is hardly the type of conduct that was excused in Almes, supra. Notwithstanding, plaintiff's counsel was in possession of a Certificate of Merit dated March 9,2004, months before the complaint was filed on July 1,2004. These facts are more closely akin to those in Harris, supra, than in Hoover, supra. While counsel in Harris, missed the filing date but obtained Certificates of Merit prior to the filing of the complaint and provided them to defendant, in the present case, the underlying purpose of Rule 1042.3 has been met because counsel obtained a Certificate of Merit before the filing of the original complaint even though it was not shown to defendants. Pa. Rule of Civil Procedure 126 provides Liberal Construction and Application of Rules The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. (Emphasis added. ) -8- 04-3065 CIVIL TERM The substantial rights of the parties have not been affected.2 Exercising equity, Walker, supra, we will not deny plaintiff her day in court because of counsel's oversight. ORDER OF COURT AND NOW, this day of September, 2005, the motion of plaintiff to open a judgment of non pros, IS GRANTED. By the Court, Edgar B. Bayley, J. Lisa M. B. Woodburn, Esquire Joseph M. Melillo, Esquire For Plaintiff Edwin AD. Schwartz, Esquire F or Defendants :sal 2 Although aware of the oversight, defense counsel conveniently waited until March 17, 2005, to file a praecipe for a judgment of non pros which could have been filed as early as September 1, 2004. March 17, 2005 was the last day of the two year period of statute of limitations. 42 Pa.C.S. S 5524(2). There is dicta in Moore v. Luchsinger, 862 A2d 631 (Pa. Super. 2004), that following the entry of a judgment for non pros, plaintiff can refile because a non pros is not res judicata and therefore, is not a bar to commencing another action based upon the same cause of action within the applicable statute of limitations. -9- ANN WILSON, EXECUTRIX OF THE ESTATE OF HELEN E. KELLY, DECEASED, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, tld/b/a MANORCARE : HEALTH SERVICES - CARLISLE, HCR MANORCARE, AND MANORCARE, INC., DEFENDANTS 04-3065 CIVIL TERM IN RE: MOTION OF PLAINTIFF TO OPEN JUDGMENT OF NON PROS BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT AND NOW, this day of September, 2005, the motion of plaintiff to open a judgment of non pros, IS GRANTED. By the Court, Edgar B. Bayley, J. Lisa M. B. Woodburn, Esquire Joseph M. Melillo, Esquire For Plaintiff Edwin AD. Schwartz, Esquire F or Defendants :sal