R. Garcia v. P. Howell

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Garcia, :

Appellant :

:

v. :

:

Patricia Howell, John Steinhart, : No. 800 C.D. 2018

and Correct Care Solutions : Submitted: February 15, 2019

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED: August 23, 2019

Robert Garcia (Garcia), pro se, appeals from the March 15, 2018 order

of the Court of Common Pleas of Schuylkill County (trial court) dismissing Garcia’s

complaint against Patricia Howell (Howell), John Steinhart (Steinhart) and Correct

Care Solutions (CCS) as frivolous. The trial court concluded that Garcia’s claims

lacked an “arguable basis either in law or fact” and denied Garcia’s petition to

proceed in forma pauperis pursuant to Pennsylvania Rule of Civil Procedure No.

240(j)(1). Upon review, we affirm.

Garcia is an inmate at the State Correctional Institution (SCI) Mahanoy.

Original Record (O.R.), Complaint at 1, ¶ 1. Garcia tested positive for the Hepatitis

C antibody during routine bloodwork. Id. at 2, ¶ 6. On August 12, 2017, Garcia

went to “sick call” to seek treatment for Hepatitis C. Id. at 2, ¶ 5. On February 22,

2018, Garcia filed a complaint with the Schuylkill County Court of Common Pleas,

asserting various claims stemming from the alleged failure to provide medical

treatment. Id. at 1 & 4-6, ¶¶ 16-31. Garcia noted that Hepatitis C is the leading

cause of cirrhosis of the liver and liver cancer, and that it can cause serious chronic

liver disease, liver fibrosis and death. Id. at 2, ¶ 8. Garcia contended that if a person

tests positive for the Hepatitis C antibody, the next step is to determine whether the

infection is “active,” which includes, but is not limited to, determining whether the

person has a “viral load.” Id. at 2, ¶ 9. Garcia asserted that despite his repeated

requests, he has not received a complete Hepatitis C workup and has not received

treatment for the disease or his symptoms, causing him pain, suffering, emotional

distress and liver damage. Id. at 2-3, ¶ 11.

Garcia’s complaint contains three counts. Count I against Howell is

titled “Misfeasance and Nonfeasance” and claims Howell, identified as being

employed as a registered nurse supervisor, is liable for having “a practice of failing

to take any corrective action as grievance officer when medical complaints [were]

brought to her attention by grievance.” Id. at 1, ¶ 2 & 4, ¶ 17. In Count II, Garcia

averred medical malpractice against Steinhart, the chief health care administrator,

and states Steinhart was negligent in failing to approve a complete Hepatitis C

workup when Garcia tested positive for the Hepatitis C antibody, as Steinhart had a

duty to determine whether Garcia had a “viral load.” Id. at 5, ¶ 23. In Count III,

Garcia averred that CCS, the current health care provider for all Department of

Corrections (DOC) facilities, had a policy, practice or custom of failing to provide

Hepatitis C workups and treatment when prisoners tested positive for the Hepatitis

C antibody, thereby exhibiting deliberate indifference to his (and all inmates)

constitutional rights, for which he is entitled to damages pursuant to 42 U.S.C. §

1983. Complaint at 6, ¶¶ 28 & 30.

The evaluation of Garcia’s complaint by the trial court arose as a result

of Garcia filing a petition to proceed in forma pauperis. O.R., Application for Leave

2

to Proceed in Forma Pauperis, 2/22/18 at 1. The trial court denied Garcia’s petition

to proceed in forma pauperis on March 15, 2018, finding Garcia’s causes of action

to be frivolous pursuant to Pennsylvania Rule of Civil Procedure No. 240(j). O.R.,

Trial Court Order, 3/15/18. The trial court observed that the claims made by Garcia

lacked “an arguable basis either in law or fact.” Id. (quoting Neitzke v. Williams,

490 U.S. 319 (1989)). Garcia requested and was granted leave to appeal in forma

pauperis. Trial Court Order, 6/5/18.

Pennsylvania Rule of Civil Procedure No. 240(j)(1) provides as

follows:

If, simultaneous with the commencement of an action or

proceeding or the taking of an appeal, a party has filed a

petition for leave to proceed in forma pauperis, the court

prior to acting upon the petition may dismiss the action,

proceeding or appeal if the allegation of poverty is untrue

or if it is satisfied that the action, proceeding or appeal is

frivolous.

Pa.R.C.P. No. 240(j)(1). “A frivolous action or proceeding has been defined as one

that ‘lacks an arguable basis either in law or in fact.’” Id. at Note (quoting Neitzke,

490 U.S. at 325). Under Rule 240(j), an action is frivolous “if, on its face, it does

not set forth a valid cause of action.” McGriff v. Vidovich, 699 A.2d 797, 799 (Pa.

Cmwlth. 1997) (citing Keller v. Kinsley, 609 A.2d 567 (Pa. Super. 1992)). As we

review the trial court’s decision regarding Garcia’s complaint, we are mindful that a

pro se complaint should not be dismissed simply because it is not artfully drafted.

Hill v. Thorne, 635 A.2d 186, 189 (Pa. Super. 1993). Further, we are mindful that

our “[a]ppellate review of a decision dismissing an action pursuant to Pa.R.C.P. No.

240(j)(1) is limited to determining whether an appellant’s constitutional rights have

been violated and whether the trial court abused its discretion or committed an error

of law.” Jones v. Doe, 126 A.3d 406, 408 n.3 (Pa. Cmwlth. 2015).

3

While Count I of Garcia’s complaint, against Howell, is titled

“Misfeasance and Nonfeasance,”1 this Count, with the prior averments incorporated

therein, arguably states a cause of action for negligence.2 In addition to those facts

cited above relating to Garcia’s failure to receive a complete Hepatitis C workup

after he tested positive, and although not stated in sequential order, Garcia’s

complaint alleges:

2. Defendant, Patricia Howell, is an adult individual

and resident of the Commonwealth of Pennsylvania who

was at all times mentioned herein employed at the State

Correctional Institution Mahanoy . . . as Registered Nurse

Supervisor.

...

19. Defendant [] Howell [] is under a duty as

Grievance Officer to take any corrective action as

grievance officer when medical complaints are brought to

her attention by grievance.

...

1

Misfeasance and nonfeasance are common law offenses. Commonwealth v. Bellis, 494

A.2d 1072, 1073 (Pa. 1985). “[T]he common law offenses of misfeasance . . . and nonfeasance in

office occur when there is either the breach of a positive statutory duty or the performance by a

public official of a discretionary act with an improper or corrupt motive.” Id. (citation and internal

quotation marks omitted) (emphasis added).

2

The title of a claim is not necessarily determinative, as our courts have treated claims

based on the substance of the allegations. See, e.g., Zernhelt v. Lehigh Cty. Office of Children and

Youth Servs., 659 A.2d 89, 90 (Pa. Cmwlth. 1995) (treating a count titled “negligent infliction of

emotional distress” as a claim for intentional infliction of emotional distress); Maute v. Frank, 657

A.2d 985, 986 (Pa. Super. 1995) (stating that a mandamus claim will be treated as such despite

inappropriately titled); Commonwealth ex rel. Saltzburg v. Fulcomer, 555 A.2d 912, 914 (Pa.

Super. 1989) (action was treated as mandamus claim despite being titled as one involving habeas

corpus relief).

4

17. Defendant [] Howell [] had a practice of failing

to take any corrective action as grievance officer when

medical complaints are brought to her attention by

grievance.

...

14. The Defendants’ actions and inactions have

caused and continue to cause [Garcia] pain, suffering and

emotional distress.

...

WHEREFORE, Plaintiff, Robert Garcia,

respectfully requests this Court . . . invoke tort remedies

deemed reasonable and prudent for resolving this problem,

calculated to eliminate this problem and make sure they do

not return, along with costs of suit, exemplary damages to

the extent permitted by law, and such other relief as the

Court deems just and proper.

Complaint at 1-4, ¶¶ 2, 14, 17 & 19. While perhaps inartfully stated, Garcia has

arguably stated a claim alleging the elements of negligence (duty, breach, causation

and damages) against Howell.

However, even if a cause of action has been sufficiently stated against

Howell, whether that claim is for an intentional act or negligence, Count I could not

succeed if Howell is entitled to sovereign immunity. “[A]n employee of a

Commonwealth agency is immune from suit when the employee is acting within the

scope of his or her employment and the claim against the employee does not fit into

any category in which sovereign immunity has been waived.” Bronson v. Lechward,

624 A.2d 799, 801 (Pa. Cmwlth. 1993) (citing La Frankie v. Miklich, 618 A.2d 1145

(Pa. Cmwlth. 1992)). Immunity is not waived for intentional torts committed within

the scope of employment. La Frankie, 618 A.2d at 1149 (citing Yakowicz v.

5

McDermott, 548 A.2d 1330 (Pa. Cmwlth. 1988)). The test to determine if a

Commonwealth employee is protected from liability by sovereign immunity for a

negligent act is “to consider whether: “the Commonwealth employee was acting

within the scope of his or her employment”; “the alleged act which causes injury

was negligent and damages would be recoverable but for the availability of the

immunity defense”; and “the act fits within one of the nine exceptions[3] to sovereign

immunity.” La Frankie, 618 A.2d at 1149 (citing Yakowicz).

In his complaint, Garcia claims that Howell acted in her capacity as

grievance officer. He did not, however, allege facts that would support a conclusion

that Howell acted outside the scope of her employment; nor, relative to his

negligence claim, did he assert any facts to support a determination that her actions

fit into any of the exceptions to sovereign immunity found in Section 8522(b) of the

Judicial Code, 42 Pa.C.S. § 8522(b). Therefore, as Garcia did not aver that Howell

was acting outside the scope of her duties when he was allegedly harmed, and did

not claim that Howell’s actions were within any exception to sovereign immunity,

we conclude that the trial court correctly determined that Count I was frivolous. See

Bronson, 624 A.2d at 801-02 (holding that where plaintiff did not aver that

Commonwealth employees acted outside scope of their duties and that

Commonwealth employees’ actions were within any exception to sovereign

immunity, trial court correctly determined that employees were immune from suit

and that suit was frivolous).

3

The nine exceptions to sovereign immunity relate to: vehicle liability; medical

professional liability; care, custody or control of personal property; Commonwealth real estate,

highways and sidewalks; potholes and other dangerous conditions; care, custody or control of

animals; liquor store sales; National Guard activities; and toxoids and vaccines. 42 Pa.C.S. §

8522(b).

6

Count II of Garcia’s complaint alleges medical malpractice against

Defendant Steinhart, contending that he was negligent in failing to approve a

complete Hepatitis C workup when Garcia tested positive for the Hepatitis C

antibody. Complaint at 5, ¶ 22. Pennsylvania Rule of Civil Procedure No. 1042.3(a)

requires that Garcia, with the complaint, or within 60 days of its filing, file a

certificate of merit that an:

(1) 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.C.P. No. 1042.3(a)(1)-(3).

Generally, where a plaintiff asserts that expert testimony is unnecessary

for prosecution of the claim, he is bound by such assertion and will thereafter be

precluded from presenting testimony on the issues of standard of care and causation.4

4

The Note to Pennsylvania Rule of Civil Procedure No. 1042.3(a)(3) provides as follows:

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.

7

See Pa.R.C.P. No. 1042.3(a)(3), Note. Here, Garcia claims that expert testimony of

an appropriate licensed professional is unnecessary for prosecution of his claim and

provided a certificate making this assertion. In medical malpractice cases, courts

require detailed expert testimony because a jury of

laypersons generally lacks the knowledge to determine the

factual issues of medical causation; the degree of skill,

knowledge, and experience required of the physician; and

the breach of the medical standard of care. In contrast,

plaintiffs in res ipsa loquitur[5] cases rely on the jury to fill

in the missing pieces of causation and negligence, inherent

in their cases, with the jury’s common experience.

Determining whether there was a breach of duty, however,

involves a two-step process: the court must first determine

the standard of care; it then must examine whether the

defendant’s conduct measured up to that standard. Not

only does the plaintiff have the burden of proving that the

defendant did not possess and employ the required skill

and knowledge, or did not exercise the care and judgment

of a reasonable professional, he or she must also prove that

the injury was caused by the failure to employ that

requisite skill and knowledge. We have previously

concluded that this must be accomplished with expert

Pa.R.C.P. No. 1042.3(a)(3), Note.

5

Res ipsa loquitur is applicable when:

(1) It may be inferred that harm suffered by the plaintiff is caused

by negligence of the defendant when

(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.

Restatement (Second) of Torts § 328D (Am. Law Inst. 1965).

8

medical testimony presented at trial by doctors testifying

as expert witnesses.

Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1149 (Pa. 2003).

Garcia is bound by his assertion that he believes expert testimony is not

necessary, and accordingly, the trial court will preclude Garcia from presenting

testimony by an expert on the questions of standard of care and causation. See

Pa.R.C.P. No. 1042.3(a)(3), Note. This Court has stated:

“[G]enerally[,] when the complexities of the human body are

involved expert testimony is required to aid the jury in

reaching conclusions as to the cause of pain or injury.”

[Wareham v. Jeffes, 534 A.2d 1314, 1321 (Pa. Cmwlth.

1989).] The only time expert testimony will not be required

for a medical malpractice claim is where the causal

connection between the defendants’ allegedly negligent act

and the harm suffered by the plaintiff is “generally a matter

of common knowledge,” rendering the jury “capable through

its every day experience and knowledge of comprehending

the facts presented and drawing conclusions based on those

facts.” Id. Generally, such negligence rises to the level of

gross incompetence.

McCool v. Dep’t of Corr., 984 A.2d 565, 571 (Pa. Cmwlth. 2009).

Lay persons do not have, within their common knowledge or

experience, the ability to assess whether Steinhart acted negligently by failing to

order a complete Hepatitis C workup for Garcia or whether the failure to provide

such a workup has caused his alleged damages. See Wareham, 534 A.2d at 1321.

Without expert testimony to establish the required standard of care and causation,

Garcia’s claim for medical negligence must fail. See McCool, 984 A.2d at 571

(holding that prison inmate’s allegations were insufficient to state a claim in his

action against prison medical facility doctor, brought under medical malpractice

9

exception to sovereign immunity, because his certificates of merit incorrectly stated

that expert testimony was not necessary to aid the jury in reaching conclusions as to

the cause of his pain or injury; the ailments in question were such that an ordinary

layperson would be incapable of deciding). Therefore, the trial court’s

determination that this claim was frivolous is affirmed.

Finally, we examine Count III of Garcia’s claim against the prison

medical provider, CCS. In his brief, Garcia asserts that Count III alleges a valid

cause of action against CCS as it was CCS’s policy, practice and/or custom to fail to

provide a Hepatitis C workup to a prisoner when the prisoner tested positive for the

Hepatitis C antibody. Garcia’s Brief at 10. Garcia contends that he has stated a

claim for corporate negligence. Garcia’s Reply Brief at 1-2.6 However, we find that

this claim lacks merit.

In Thompson v. Nason Hospital, 591 A.2d 703 (Pa. 1991), the Supreme

Court of Pennsylvania explained the concept of corporate negligence as follows:

Corporate negligence is a doctrine under which [a medical

facility] is liable if it fails to uphold the proper standard of

care owed the patient, which is to ensure the patient’s

safety and well-being while at the [medical facility]. This

theory of liability creates a nondelegable duty which the

[medical facility] owes directly to a patient.

Id. at 707. The Court recognized that a medical facility’s duties have been classified

into four general areas:

6

CCS submitted a motion to strike Garcia’s reply brief or, in the alternative, for leave to

file the sur reply brief, which CCS attached to its motion. Motion to Strike at 1. We grant in part

and deny in part CCS’s motion to strike and will consider both Garcia’s reply brief and CCS’s sur

reply brief.”

10

(1) a duty to use reasonable care in the maintenance of

safe and adequate facilities and equipment . . . ; (2) a duty

to select and retain only competent physicians . . . ; (3) a

duty to oversee all persons who practice medicine within

its walls as to patient care . . . ; and (4) a duty to formulate,

adopt and enforce adequate rules and policies to ensure

quality care for the patients.

Id. (internal citations omitted). The Court further found that “to be charged with

negligence, it is necessary to show that [the medical facility] had actual or

constructive knowledge of the defect or procedures which created the harm,” and

that “the [medical facilities] negligence must have been a substantial factor in

bringing about the harm to the injured party.” Id. at 708. Garcia fails to assert all

the necessary elements of a corporate negligence claim but, rather, claims that CCS’s

policies, practices and customs demonstrated a “deliberate indifference” to his

constitutional rights, thereby causing his damages. Complaint at 6, ¶¶ 28-31.

Accordingly, Garcia’s complaint does not put forth a claim of corporate negligence.

Specifically, Garcia claims that his constitutional rights were violated

by the policy of CCS to deny Hepatitis C positive prisoners complete Hepatitis C

workups, allowing those prisoners (and Garcia) to go untreated. Garcia requests

damages as a result of the alleged constitutional violations pursuant to 42 U.S.C. §

1983. Complaint at 6.

Section 6601 of the Pennsylvania Prison Litigation Reform Act

(PLRA) defines “prison conditions litigation” as “[a] civil proceeding arising in

whole or in part under Federal or State law with respect to the conditions of

confinement or the effects of actions by a government party on the life of an

individual confined in prison.” 42 Pa.C.S. § 6601. As this Court held in McCool, a

claim that challenges the quality of medical care at the prison, which Garcia does,

11

fits squarely within the definition of prison conditions litigation. McCool, 984 A.2d

at 569; see also Brown v. Dep’t of Corr., 58 A.3d 118 (Pa. Cmwlth. 2012) (holding

that an inmate’s Section 1983 civil rights claim alleging a denial of medical

treatment or inadequate treatment against a private entity that contracted with DOC

to provide medical services to inmates, involved “the conditions of confinement”

and therefore constituted “prison conditions litigation” under the PLRA, even if

private entity was not a “government party”).

Section 6602(e) of the PLRA provides, in part:

Dismissal of litigation.--Notwithstanding any filing fee

which has been paid, the court shall dismiss prison

conditions litigation at any time, including prior to service

on the defendant, if the court determines any of the

following:

(1) The allegation of indigency is untrue.

(2) The prison conditions litigation is frivolous or

malicious or fails to state a claim upon which relief may

be granted or the defendant is entitled to assert a valid

affirmative defense, including immunity, which, if

asserted, would preclude the relief.

42 Pa.C.S. § 6602(e).

Garcia’s claim challenges the policy of the prison medical provider,

asserting that the entity providing medical treatment has shown “deliberate

indifference”7 in its policy of failing to provide Hepatitis workups to those who test

positive for Hepatitis C, violating his constitutional rights and causing his Hepatitis

7

“The phrase ‘deliberate indifference’ is the legal standard by which courts adjudicate

cases concerning alleged unconstitutional conditions of confinement brought under the Eighth

Amendment to the United States Constitution.” Jochen v. Horn, 727 A.2d 645, 649 (Pa. Cmwlth.

1999) (citing Farmer v. Brennan, 511 U.S. 825 (1994)).

12

C to go untreated. Garcia’s Complaint at 6, ¶¶ 27-31. This Court has held

previously:

The prohibition against cruel and unusual punishment is

broad enough to proscribe “deliberate indifference to

serious medical needs of prisoners [that] constitutes the

‘unnecessary and wanton infliction of pain.” [Estelle v.

Gamble, 429 U.S. 97, 104 (1976).] Accordingly,

“deliberate indifference to a prisoner’s serious illness or

injury states a cause of action under [42 U.S.C. §] 1983.”

Id. at 105[.]

Arocho v. County of Lehigh, 922 A.2d 1010, 1015 (Pa. Cmwlth. 2007).

In order to establish deliberate indifference for purposes of a

constitutional claim, an inmate “must, at a minimum, allege that DOC knew of and

disregarded an excessive risk to their health or safety.” Jochen v. Horn, 727 A.2d

645, 649 (Pa. Cmwlth. 1999) (citing Farmer v. Brennan, 511 U.S. 825 (1994)).

In order to state a cognizable claim, a prisoner must allege

acts or omissions sufficiently harmful to evidence

deliberate indifference to serious medical needs. It is only

such indifference that can offend “evolving standards of

decency” in violation of the Eighth Amendment.

Estelle, 429 U.S. at 106; see also id. at 106 n.14 (noting that “mere allegations of

malpractice do not state a claim” of deliberate indifference to serious medical needs

under the Eighth Amendment of the United States Constitution).

Here, Garcia fails to allege facts that could lead to a conclusion that

CCS knew of and disregarded an excessive risk to Garcia’s health and safety. See

Jochen, 727 A.2d at 649 (granting a demurrer to inmates’ petition for review, where

the petition “lack[ed] any allegations that DOC was aware of facts from which it

could infer a substantial risk of serious harm to [inmates] or that DOC actually drew

13

such an inference and disregarded the same”); see also Clites v. Wetzel (Pa. Cmwlth.,

No. 55 C.D. 2016, filed July 28, 2016), slip op. at 2 & 11 8 (quoting Lindsay v.

Dunleavy, 177 F. Supp. 2d 398, 402 (E.D. Pa. 2001) (affirming the trial court’s

dismissal as frivolous under Pennsylvania Rule of Civil Procedure No. 240(j)(1) of

inmate’s claim that various DOC employees exhibited deliberate indifference by

failing to provide treatment following his Hepatitis C diagnosis, noting that “a

disagreement between the doctor and the plaintiff as to the medical diagnosis and

treatment does not constitute deliberate indifference”). As it is evident that Count

III of Garcia’s complaint against CCS fails on its face to set forth a valid cause of

action, we affirm the trial court’s dismissal of Count III.

For the foregoing reasons, the trial court order is affirmed.9

__________________________________

CHRISTINE FIZZANO CANNON, Judge

This Court’s unreported memorandum opinions may be cited for persuasive value.

8

Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code § 69.414(a).

9

Because of our disposition, we need not address appellees’ additional arguments with

respect to the various counts.

14

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Garcia, :

Appellant :

:

v. :

:

Patricia Howell, John Steinhart, : No. 800 C.D. 2018

and Correct Care Solutions :

ORDER

AND NOW, this 23rd day of August, 2019, the Motion of Appellee,

Correct Care Solutions, LLC (CCS), to Strike Appellant’s Reply Brief, or in the

Alternative, for Leave to File the Attached Sur Reply (Motion) is GRANTED in part

and DENIED in part. The Motion is granted to the extent CCS seeks leave to file

the sur reply brief attached to the Motion, and denied to the extent CCS seeks to

strike Robert Garcia’s reply brief.

The March 15, 2018 order of the Court of Common Pleas of Schuylkill

County is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Garcia, :

Appellant :

: No. 800 C.D. 2018

v. :

:

Patricia Howell, John Steinhart, : Submitted: February 15, 2019

and Correct Care Solutions :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY JUDGE McCULLOUGH FILED: August 23, 2019

I respectfully dissent from the decision of the thoughtful Majority to

the extent that it affirms, sua sponte and on an alternative basis, the order of the

Court of Common Pleas of Schuylkill County (trial court), which pre-screened the

pro se complaint of Robert Garcia (Garcia) under Pennsylvania Rule of Civil

Procedure (Civil Rule) No. 240(j)(1) and, as part of a request to proceed in forma

pauperis (IFP), dismissed Count II, a professional negligence claim, prior to and

without the formal involvement of any defendant(s) in the proceedings. In its

opinion, the trial court concluded that Garcia’s claim was “frivolous” and provided

one sentence in support of its conclusion: “The filings of [Garcia] appear to be

complaints about prison conditions, and as such invoke matters solely within the

jurisdiction of the prison authorities.” (Trial court op. at 1) (incorporating 3/15/18

Order, at 1 n.1).

Upon my review, I believe that, in sua sponte affirming the trial court

on a different rationale, the Majority misconstrues the Pennsylvania Rules of Civil

Procedure (Pa.R.C.P.), see Pa.R.C.P. Nos. 1042.1-1042.12, and, in the process,

fails to afford Garcia his vested and entitled rights under those rules while applying

them in a manner that treats unrepresented plaintiffs and indigent unrepresented

plaintiffs unequally, thereby creating grave and serious questions about the

constitutionality of such a practice under the Fourteenth Amendment.1

In Count II, Garcia asserted a professional liability negligence claim

against John Steinhart (Steinhart), the chief health care administrator at the State

Correctional Institution at Mahanoy. Garcia averred that Steinhart breached the

standard of care in failing to order and/or approve quantitative and diagnostic

testing to assess Garcia’s baseline “viral load” and liver functionality following his

positive antigen test results for (and confirmation that he is infected with) the

Hepatitis C virus. Garcia alleged that because he has not received the necessary

testing or any kind of medical treatment for Hepatitis C, he has developed

symptoms, including pain, and has sustained liver damage.

Pursuant to Civil Rule No. 240(j)(1), a court of common pleas, prior

to ruling on an IFP request, may dismiss an action where the court is satisfied that

the action is “frivolous.” Pa.R.C.P. No. 240(j)(1); see Pelzer v. Wrestle, 49 A.3d

926, 928 n.1 (Pa. Cmwlth. 2012). A frivolous action has been defined as one that

“lacks an arguable basis either in law or in fact,” Pa.R.C.P. No. 240(j)(1), Note

1

U.S. Const. amend. XIV. Section 1 of the Fourteenth Amendment states, in pertinent

part, “nor shall any State . . . deny to any person within its jurisdiction the equal protection of the

laws.” Id., §1.

PAM-2

(citation omitted), and a complaint will be deemed frivolous if, on its face, it does

not set forth a claim upon which relief can be granted. Jones v. Doe, 126 A.3d

406, 408 (Pa. Cmwlth. 2015). In reviewing the dismissal of a complaint under

Civil Rule No. 240(j)(1), we are mindful that a pro se complaint should not be

dismissed simply because it is not artfully drafted. Bell v. Mayview State Hospital,

853 A.2d 1058, 1060 (Pa. Super. 2004).

Accepting the allegations in the complaint as true, as this Court must,

see Meier v. Maleski, 648 A.2d 595, 600 (Pa. Cmwlth. 1994), Garcia has pled a

prima facie cause of action for medical malpractice on a substantive level, and his

claim falls within the exception to sovereign immunity in section 8522(b)(2) of the

Judicial Code, 42 Pa.C.S. §8522(b)(2).2 No one, not even the Majority or the trial

court, disputes (or has disputed) these conclusions and, in his appellate brief,

Steinhart merely claims that Garcia did not plead his claim with sufficient

specificity. However, “[a]lthough [Garcia’s] allegations admittedly lack some

detail for our fact-pleading jurisdiction, he has nevertheless pled a plausible claim

of malpractice that has an arguable basis in both fact and law.” Whitehead v.

Commonwealth (Pa. Cmwlth., No. 1075 C.D. 2014, filed January 21, 2015)

(unreported),3 slip op. at 5. Indeed, “[w]here the elements to a cause of action are

2

This statutory provision states that liability may be imposed “on the Commonwealth

and the defense of sovereign immunity shall not be raised for damages caused by . . . [a]cts of

health care employees of Commonwealth agency medical facilities or institutions or by a

Commonwealth party who is a doctor, dentist, nurse or related health care personnel.” 42

Pa.C.S. §8522(b)(2) (Medical-professional liability).

3

Whitehead is an unreported panel decision, which, under our Internal Operating

Procedures, may be cited for its persuasive value. Section 414(a) of the Commonwealth Court's

Internal Operating Procedures, 210 Pa. Code §69.414(a).

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adequately set forth, a pro se complaint will not be dismissed just because it is not

artfully drafted.” Williams v. Syed, 782 A.2d 1090, 1095 n.6 (Pa. Cmwlth. 2001)

(addressing dismissal under Civil Rule No. 240(j)(1)).

Because these are the only issues that were raised and discussed by

Garcia and Steinhart in their appellate briefs, and the opinion of the trial court

concluded in the most cursory fashion that Garcia’s claims were “frivolous”

without any pertinent or justifiable reasoning, the above analysis should end this

matter and the case should be remanded to the trial court for further proceedings

with respect to Count II.

The Majority, however, decides to dispose of the case sua sponte, on

alternative grounds, concluding that Count II lacked an “arguable basis either in

law or fact” because Garcia filed the wrong certificate of merit (COM) in support

of his claim. Slip op. at 6-9. According to the Majority, because Garcia filed a

COM stating that expert testimony was unnecessary to prosecute Count II (Non-

Expert COM), and the nature of the claim necessitated that Garcia file a COM

attesting that an expert determined that it is reasonably probable that Steinhart

breached the standard of care (Expert COM), Garcia is forever “bound by [his]

assertion and will [] be precluded from presenting testimony on the issues of

standard of care and causation.” Slip op. at 7 (citing Pa.R.C.P. No. 1042.3(a)(3)

and accompanying Note).

In my view, the Majority misreads and errs in its application of the

Civil Rules relating to a Non-Expert COM and an Expert COM. Although I agree

with the Majority that Garcia needs to file an Expert COM, albeit because Garcia is

unrepresented in this matter, the Majority overlooks the pertinent Civil Rules.4 In

4

Pa.R.C.P. No. 1042.3(a)(1) states that,

(Footnote continued on next page…)

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(continued…)

In any action based upon an allegation that a licensed professional

deviated from an acceptable professional standard, the attorney for

the plaintiff, or the plaintiff if not represented, shall file [a COM]

signed by the attorney or party that . . . 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[.]

Pa.R.C.P. No. 1042.3(e) provides,

If a [COM] is not signed by an attorney, the party signing the

[COM] shall, in addition to the other requirements of this rule,

attach to the [COM] the written statement from an appropriate

licensed professional as required by subdivisions (a)(1) . . . . If

the written statement [i.e., an Expert COM] is not attached . . .

a defendant seeking to enter a judgment of non pros shall file a

written notice of intent to enter a judgment of non pros for

failure to file a written statement under Rule 1042.11.

(Emphasis added).

“A defendant seeking to enter a judgment of non pros under Rule 1042.12 shall file a

notice of intent to enter a judgment of non pros for failure to file a written statement from an

appropriate licensed professional with the certificate of merit.” Pa.R.C.P. No. 1042.11(a).

Most importantly, for present purposes, Pa.R.C.P. No. 1042.12, titled “Entry of Judgment

of Non Pros for Failure to File a Written Statement from an Appropriate Licensed Professional,”

and the accompanying Official Note, state as follows:

(a) The prothonotary, on praecipe of the defendant, shall enter a

judgment of non pros against the plaintiff for failure to file a

written statement under Rule 1042.3(e) provided that

(1) no written statement has been filed [i.e., an Expert COM],

(Footnote continued on next page…)

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short, these Civil Rules provide that the only way a defendant can enter judgment

against a plaintiff for filing a Non-Expert COM, instead of filing an Expert COM,

is if the defendant provides the appropriate notice and affords the plaintiff the

requisite time in which to cure the deficiency and file an Expert COM.

Specifically, a defendant must file a 10-day notice of intent to enter judgment, wait

30 days (including the 10-day notice time), and then, and only then, can the

defendant file a praecipe directing the prothonotary to enter judgment against the

plaintiff on the professional negligence claim. See Pa.R.C.P. No. 1042.11(a);

Pa.R.C.P. No. 1042.12(a)(3). However, if the plaintiff files an Expert COM in this

30-day window, the defendant cannot file a praecipe to enter judgment and the

claim cannot be dismissed. See Pa.R.C.P. No. 1042.12(a)(1) and Official Note.

(continued…)

(2) the defendant has attached to the praecipe a certificate of

service of the notice of intention to enter the judgment of non pros,

and

(3) the praecipe is filed no less than thirty days after the date of

the filing of the notice of intention to enter judgment of non pros.

* * *

Official Note

The prothonotary may not enter judgment if the written statement

[i.e., an Expert COM] has been filed prior to the filing of the

praecipe . . . .

Pa.R.C.P. No. 1042.12(a)(1)-(3) and Official Note (emphasis added).

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Consequently, the plaintiff, here Garcia, is entitled to notice and 30 days to file an

Expert COM prior to a judgment being entered on his claim.5

As noted, Steinhart did not participate in these proceedings at the trial

court level and, thus, the required notice and praecipes under the Civil Rules were

not filed. Moreover, the trial court did not issue any type of notice or provide

Garcia with any time in which to correct his deficient COM by filing a proper

COM, ostensibly because the trial court did not dismiss Count II pursuant to the

Civil Rules for medical malpractice cases. Regardless, because the Majority has

taken it upon itself to proceed in such a manner, I believe that a faithful and fair

application of the Civil Rules compels the conclusion that the Majority has acted

prematurely and erred in failing to provide Garcia, an allegedly indigent plaintiff,

with the amount of time that the Civil Rules prescribe and allot to all plaintiffs in

5

If the rules quoted in the previous footnote leave any doubt for interpretation, the

explanatory comment to Pa.R.C.P. No. 1042.12 should clear any ambiguity or confusion, which

explains, in pertinent part, as follows:

These proposed amendments also add a procedure for when the

[COM] is not signed by an attorney. New subdivision (e) of Rule

1042.3 would require the attachment of the written statement from

an appropriate licensed professional to the [COM]. Failure to

attach the written statement [i.e., an Expert COM] will allow the

defendant seeking to enter a judgment of non pros to file a written

notice of intent to enter judgment of non pros. New Rule 1042.11

provides the requirements for filing the 10-day notice, and new

Rule 1042.12 provides the requirements for filing the praecipe for

entry of judgment of non pros. Suggested forms for both the 10-

day notice and praecipe are provided.

Pa.R.C.P. No. 1042.12, Explanatory Comment. As noted above, the formal entry of judgment

can occur only when “the praecipe is filed no less than thirty days after the date of the filing of

the notice of intention to enter judgment of non pros,” Pa.R.C.P. No. 1042.12(a)(3), and “[t]he

prothonotary may not enter judgment if the written statement has been filed prior to the filing of

the praecipe.” Pa.R.C.P. No. 1042.12, Official Note.

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order to fix the particular error that Garcia committed in this case with respect to

his COM. In other words, the Majority cannot dismiss Count II sua sponte and on

an alternative ground based upon the conclusion that the claim lacks any basis in

law or fact when, as a matter of law and fact, Garcia is entitled to notice and 30

days to file an Expert COM.

Nonetheless, the Majority cites the Official Note to Pa.R.C.P. No.

1042.3(a)(3) as authority for its actions. In pertinent part, the Official Note states

that in the event a Non-Expert COM is filed, “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.C.P. No. 1042.3(a)(3), Official

Note. However, when the Civil Rules for professional negligence claims are

viewed and read in their entirety, I believe that the Majority’s reliance on the

Official Note to Rule 1042.3 is clearly misplaced. To the contrary, I consider the

Official Note to mean that its preclusion rule applies only if a plaintiff files a Non-

Expert COM, the defendant does not challenge the Non-Expert COM, the court

accepts it, and the case goes beyond the discovery stage. In fact, the Official Note

says so in its own words by stating that the plaintiff will be barred, not from filing

a curative Expert COM, but “from presenting testimony by an expert.”

Pa.R.C.P. No. 1042.3(a)(3), Official Note (emphasis added). As should be evident,

the Official Note to Civil Rule No. 1042.3(a)(3) is inapplicable in this case and

cannot serve as a basis to dismiss Count II. Properly understood, Civil Rule No.

1042.3(a)(3) is designed to ensure fairness and to preclude a plaintiff from filing a

Non-Expert COM and then subsequently contradicting it with expert testimony,

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whether it be in an affidavit and/or deposition in opposition to a motion for

summary judgment or live testimony at trial.

Given the circumstances of this case, before dismissing Count II as

frivolous and as part of an IFP determination, I believe we need to follow, or

perhaps more appropriately, “mimick” the procedure previously noted for a

defendant to enter a judgment of non pros against a plaintiff. Therefore, I would

conclude that the Majority is obligated to remand the matter to the trial court in

order for the trial court to afford Garcia with proper notice and at least 30 days to

file an Expert COM, just like any other non-indigent, unrepresented plaintiff would

have received. See Pa.R.C.P. No. 1042.12(a)(1)-(3) and Official Note and

Explanatory Comment. Ultimately, I believe this approach will ensure equal

protection in application of the Civil Rules for professional negligence claims, in

the context where Garcia is indigent and seeking IFP status.

Hence, I respectfully dissent.

________________________________

PATRICIA A. McCULLOUGH, Judge

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