The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RENEE GAMMACHE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MICHELLE SHEN, M.D., JOSEPH : No. 776 MDA 2020
SERLETTI, M.D., AND PENN :
MEDICINE LANCASTER GENERAL :
HOSPITAL :
Appeal from the Order Entered April 20, 2020
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-19-03929
BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 09, 2021
In this medical malpractice matter, Renee Gammache (Appellant)
appeals from the order entered in the Lancaster County Court of Common
Pleas, which: (1) denied her petition to open the judgment of non pros entered
against her; and (2) entered judgment in favor of the defendants, Michelle
Shen, M.D., Joseph Serletti, M.D., and Penn Medicine Lancaster General
Hospital (collectively, Appellees).1 Appellant argues the trial court erred in
finding she filed an untimely petition to open without a reasonable
explanation. After careful review, we reverse.
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1 “Any appeal related to a judgment of non pros lies not from the judgment
itself, but from the denial of a petition to open or strike.” Madrid v. Alpine
Mt. Corp., 24 A.3d 380, 382 (Pa. Super. 2011).
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We glean the following factual allegations from Appellant’s filings. On
April 28, 2017, Appellant underwent a prophylactic bilateral mastectomy
performed by defendant Dr. Shen at defendant Lancaster General Hospital.
Appellant’s Proposed Complaint at 6 (Exh. C to Appellant’s Petition to Open
Judgment of Non Pros (Petition to Open), 8/20/19, at 3 (unpaginated).2 On
the same day, she also underwent bilateral reconstructive surgery of her
breasts, performed by defendant Dr. Serletti. Dr. Serletti subsequently
“performed revision surgeries on [Appellant’s] breast implants,” on September
14, 2017, and January 26, 2018. Appellant’s Proposed Complaint at 6. Due
to Appellees’ alleged negligence, “the mastectomies, breast implants and/or
revision surgeries were not effective,” and Appellant suffered pain,
disfigurement, and both economic and non-economic damages. Id. at 6-8.
Appellant commenced the instant action by filing a pro se writ of
summons on April 26, 2019. Appellees were served on May 17, 2019.
Sheriff’s Return of Service, 5/20/19. Represented by the same counsel, they
filed and served a joint “rule to file complaint” on May 22nd, which requested
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2 Appellant did not file a complaint in the trial court, but rather, as we discuss
infra, attached a proposed complaint as an exhibit to her petition open the
judgment of non pros.
Furthermore, we note Appellant’s pro se praecipe for writ of summons
identified — and thus the caption reflects — the defendant hospital as “Penn
Medicine Lancaster General Hospital.” Appellant’s proposed complaint
referred to the hospital simply as “Lancaster General Hospital.”
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a rule for Appellant “to file a Complaint within twenty (20) days . . . or suffer
a judgment of non pros.”3 Appellees’ Rule to File Complaint, 5/22/19.
Appellant did not file a complaint and, accordingly, on June 19th Appellees
filed a notice of intent to file a praecipe for entry of judgment pursuant to
Pa.R.C.P. 237.1.4 “Having no response from [Appellant] by the deadline of
July 1, 2019, the Prothonotary issued a Notice of Judgment of Non Pros on
July 2, 2019.” Trial Ct. Op. at 2.
Forty-nine days later, on August 20, 2019, Appellant filed a counseled
petition to open the judgment of non pros, along with a brief. The petition
averred:
13. During the pendency of the Non Pros grace period,
[Appellant] discovered that a Certificate of Merit had to be file[d]
with her Complaint. See Pa.R.C.P. 1042.3.
14. [Appellant] was unable to timely file a Complaint, as she
had neither the mean[s] nor the knowledge to have the matter
reviewed by a medical expert [in order to prepare a] Certificate of
Merit.
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3 Appellees’ answer to Appellant’s petition to open, as well as their brief on
appeal, mistakenly claim that their rule to file a complaint advised Appellant
“to file a [C]omplaint within 10 days.” Appellee’s Answer to Appellant’s
Petition to Open Judgment of Non Pros (Appellee’s Answer), 9/11/19, at 2
(unpaginated) (emphasis added); Appellees’ Brief at 3. Instead, the rule to
file complaint states the time period as “twenty (20) days.” Appellees’ Rule
to File Complaint.
4 See Pa.R.C.P. 237.1(a)(2)(i) (“No judgment of non pros for failure to file a
complaint . . . shall be entered by the prothonotary unless the praecipe for
entry includes a certification that a written notice of intention to file the
praecipe was mailed or delivered . . . after the failure to file a complaint and
at least ten days prior to the date of the filing of the praecipe to the party’s
attorney of record or to the party if unrepresented[.])”
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15. After receiving the Notice of Entry of Non-Pros,
[Appellant] retained the services of the undersigned [counsel].
16. [Counsel then] worked diligently to locate a qualified
physician expert . . . and obtain an opinion on liability.
17. [Appellant] has now secured the required opinion, from
a qualified cancer specialist and reconstructive surgeon . . . .
18. [Appellant] is now able to file her Complaint . . . along
with its required Certificates of Merit.
Appellant’s Petition to Open at 2-3. Appellant thus concluded she “alleged
facts showing that her Petition to Open Judgment of Non Pros is timely filed,
there is a reasonable explanation for her alleged inactivity and [she] has a
meritorious cause of action.” Id. at 3. Appellant attached to her petition to
open a proposed complaint and certificates of merit.
On September 11, 2019, in compliance with a rule by the trial court,
Appellees filed an answer to Appellant’s petition to open. Appellees averred
that the petition to open, filed 49 days after entry of judgment of non pros,
was untimely, and they pointed out that a certificate of merit is not required
to be filed concomitantly with a complaint. On October 29th, Appellees filed
a praecipe to list this matter for oral argument. This filing, however, “was not
forwarded to the [trial judge] for attention until March 11, 2020.”5 Trial Ct.
Op. at 2 n.1.
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5 The trial court further noted the trial court’s prothonotary “provided no
explanation for the delay.” Trial Ct. Op. at 2 n.1.
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Almost eight months after Appellant filed the petition to open, the trial
court heard oral argument on April 17, 2020 — via telephone, due to the
Covid-19 pandemic. No recording or transcription was made of this argument.
Trial Ct. Op. at 2 n.2; Appellant’s Brief at 11 n.1. Nevertheless, the parties
agree Appellant argued6 that around the time of Appellees’ notice of intent to
file praecipe for entry of judgment non pros, Appellant “was dealing with some
grave health crises[, including] ongoing treatment for the cancer, along
comorbidities of serious stomach and intestinal problems, [which] required
hospitalizations and numerous doctors’ visits.” Appellant’s Brief at 11, 19.
See Appellees’ Brief at 6 (“During oral argument, [Appellant’s] counsel raised
for the first time, that [Appellant’s] cancer and resulting treatment prevented
her from timely filing a complaint.”).
On April 20, 2020, the trial court issued the underlying order denying
Appellant’s petition to open the judgment of non pros, and entering judgment
in favor of Appellees. Appellant filed a timely notice of appeal and complied
with the court’s order to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.
Appellant presents three related issues for our review:
[1.] Whether, in addressing the issue of Appellant’s underlying
act of failing to timely file a complaint, the Honorable trial court
abused its discretion and/or erred as a matter of law by failing to
accept as reasonable Appellant’s explanations for this conduct that
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6 According to Appellant, only the trial court and attorneys participated in
argument. Appellant’s Brief at 11 n.1.
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led to the entry of non pros and for failing to determine whether
equitable considerations existed that would allow for the court to
excuse Appellant’s error?
[2.] Whether the Honorable trial court abused its discretion or
erred as a matter of law when it decided that Appellant failed to
timely file her petition to open non pros, when appellant, after
finally [receiving] the notice of the entry of the non pros
judgment, swiftly obtained counsel and when her counsel was
then not dilatory in their effort to have the matter reviewed to
determine whether Appellant had a meritorious claim, before
taken [sic] on the expense of the litigation and filing the petition
to open the non pros judgment?
[3.] Whether the Honorable trial court abused its discretion or
erred as a matter of law in its decision not to address Appellant’s
equity argument that Appellant should not be denied her day in
court, when the very essence of an appeal from a denial of a
petition to open judgment of non pros is one that speaks to the
conscience of the court and where it would be an [sic]
unequivocally unjust not to permit Appellant to litigate her
meritorious claim?
Appellant’s Brief at 7-8.
We address together Appellant’s three issues, as they all address
whether the trial court erred in denying her petition to open the judgment of
non pros. First, Appellant avers that in finding her “explanations” were not a
reasonable excuse for not filing a complaint, the court failed to consider
equitable factors. Appellant’s Brief at 15. A pro se litigant may be given
“leeway,” and here, Appellant was unfamiliar “with the complexities of a
professional negligence claim.” Id. at 17, 19. Appellant asserts: “[A]fter
being informed by . . . one of her treating physicians that” she may have an
actionable claim against Appellees, “and after also being told that she had
little time left . . . to file something,” she filed a pro se writ of summons on
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April 26, 2019. Id. at 10. Additionally, around the time she received
Appellees’ notice of intent to file praecipe for entry of judgment of non pros
and notice of the entry of judgment of non pros itself, Appellant “was dealing
with . . . grave health crises[,]” including cancer treatment and “serious
stomach and intestinal problems, [which] required hospitalizations and
numerous doctors’ visits.” Id. at 19. Appellant maintains her delay was not
due to “any dilatory tactics.” Id. at 21. She sought “legal counsel as soon as
possible after receiving the Entry of Non Pros notice and [her attorney]
became involved in her case but this was not until . . . more than three weeks
had passed since the Judgment of Non Pros [was] entered.” Id. at 19-20, 27.
Appellant contends the court should have found “her efforts constituted a
sufficient attempt to comply with the rules.” Id. at 22. Appellant alleges
Appellees would suffer no prejudice if judgment of non pros were opened, as
less than three months passed between their first notice of Appellant’s claims
and Appellant’s petition to open, and “in the grand scope of a lengthy [medical
negligence] litigation . . . this amount of time . . . is in no way significant
to . . . Appellees’ ability to develop their defense.” Id. at 20, 23, 27. After
careful review, we determine Appellant is entitled to relief.
A trial court’s ruling on a petition to open a judgment of non pros “is
reviewed on appeal for an abuse of discretion. This means that the trial court’s
decision will be overturned only if reflects manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly
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erroneous.” Womer v. Hilliker, 908 A.2d 269, 279 (Pa. 2006) (citations
omitted).
“Relief from a judgment of non pros shall be sought by petition.”
Pa.R.C.P. 3051(a). If such a petition is filed within ten days of the entry of
judgment of non pros and “states a meritorious cause of action,” “the court
shall open the judgment.” Pa.R.C.P. 237.3(b)(1). However, the comment to
Rule 237.3 provides, if a petition is filed more than ten days after judgment,
the petition is subject to the analysis set forth in Schultz v. Erie Insurance
Exchange, 477 A.2d 471 (Pa. 1984):
A petition to open a judgment is addressed to the equitable
powers of the court and is a matter of judicial discretion. The
court will only exercise this discretion when (1) the petition has
been promptly filed; (2) a meritorious defense can be shown; and
(3) the failure to appear can be excused.
See Schultz, 477 A.2d at 472; see also Pa.R.C.P. 237.3(b)(1), comment.
With respect to the first prong — whether a petition is “promptly filed” —
this Court has “held that unexplained delays of 37, 41, and 47 days render a
petition to open untimely.” Madrid, 24 A.3d at 383 (collecting cases). A
“failure to file a timely or rule-compliant petition to open operates as a waiver
of any right to address issues concerning the underlying judgment of non
pros.” Id. at 382. “Where a party fails to provide a reasonable excuse for
the delay in prosecution of the underlying claim, a petition to open is properly
denied.” Id. at 384. An alleged “ignorance of procedural rules does not justify
or provide a reasonable explanation for failure to comply.” Id. at 383.
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Additionally, we note the trial court referred to Pa.R.C.P. 1042.3, which
provides the following:
(a) 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 with the complaint or within sixty days after the filing
of the complaint, a certificate of merit . . . .
* * *
(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. . . .
See Pa.R.C.P. 1042.3(a) (emphasis added).
We further note this Court has stated:
Years ago, the appellate courts, if not the trial courts, of this
Commonwealth were fairly loathe to put a litigant out of court for
missing a filing deadline due to lawyer oversight. The following
passage reflected the prevailing point-of-view, “while, generally
speaking, a litigant is bound by the actions or inactions of his
counsel, there is authority for the proposition that when a plaintiff
places his case in the hands of reputable counsel he will not be
turned out of court if the delay complained of was almost entirely
on account of neglect or oversight of his counsel.” Manson v.
First Nat’l Bank, . . . 77 A.2d 399 (Pa. 1951). Thus, in Moyer
v. Americana Mobile Homes, Inc., . . . 368 A.2d 802 (Pa.
Super. 1976), this Court seemingly adhered to the above
philosophy and excused the failure to file a timely answer to a
complaint when the delay was caused, in part, by the misplacing
of the file in an attorney’s office.
Almes v. Burket, 881 A.2d 861, 864-65 (Pa. Super. 2005).
The purpose of the rules in authorizing the entry of default
judgments is to prevent a dilatory defendant from impeding the
plaintiff in establishing his claim. The rules are not primarily
intended to provide the plaintiff with a means of gaining a
judgment without the difficulties which arise from litigation.
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Almes, 881 A.2d at 865, quoting Moyer, 368 A.2d at 804-05.
In the case sub judice, the trial court considered, but rejected, the
arguments advanced by Appellant. It provided the following reasoning: as
Appellant was initially proceeding pro se, she was “entitled to liberal
construction of [her] filings.” Trial Ct. Op. at 7, citing Branch Banking &
Trust v. Gesiorski, 904 A.2d 939, 942 (Pa. Super. 2006) (“While this [C]ourt
is willing to liberally construe materials filed by a pro se litigant, [she] is not
entitled to any particular advantage because she lacks legal training. As our
[S]upreme [C]ourt has explained, any layperson choosing to represent
[herself] in a legal proceeding must, to some reasonable extent, assume the
risk that [her] lack of expertise and legal training will prove [her] undoing.”)
(citation omitted). However, Appellant’s lack of familiarity of the law was not
“a wholesale excuse” for her failings: “A layperson can recognize that filing a
medical negligence claim will require specialized knowledge of both legal and
medical procedures,” and Appellant “should have anticipated that legal
representation would be prudent if not required to protect her claims.” Trial
Ct. Op. at 7. The trial court emphasized Appellant should have recognized
she required legal representation when she filed the writ of summons or when
she received Appellees’ rule to file a complaint. Id. However, Appellant
waited until she received the notice of judgment of non pros before seeking
counsel. Id.
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The trial court also considered that Appellant’s petition to open was filed
49 days after the entry of judgment non pros. Trial Ct. Op. at 5. Where
Appellant did not raise any claim of improper notice, “the record shows [she]
received adequate and timely notice of all filings leading up to and including
the Notification of Judgment of Non Pros.” Id. at 5 & n.4. The court rejected
the claim of Appellant’s counsel’s that they required 49 days’ “time ‘to locate
a qualified physician expert, to obtain records and . . . obtain an opinion on
liability’ in order to prepare a certificate of merit to accompany the Complaint.”
Id. at 5. The court pointed out Pa.R.C.P. 1042.3 does not require a certificate
of merit to be filed simultaneously with a complaint, but instead, a party may
file a certificate of merit within 60 days of a complaint and may petition for
yet additional time. Trial Ct. Op. at 6, citing Pa.R.C.P. 1042.3(a), (d). The
trial court thus concluded Appellant’s “reliance on this perceived need for more
time is both erroneous and unreasonable.” Trial Ct. Op. at 6.
After careful review of the record, the parties’ trial court filings, the trial
court opinion, and the briefs on appeal, we determine the trial court abused
its discretion in denying Appellant’s petition open the judgment of non pros.
Although this Court has found “unexplained delays of 37, 41, and 47 days
render a petition to open untimely,” the trial court did not find Appellant failed
to present an explanation. See Madrid, 24 A.3d at 383 (emphasis added).
Instead, the court rejected the explanation advanced by Appellant — that she
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was initially proceeding pro se and lacked the expertise to file the required
legal documents.
The trial court’s opinion does not address — nor does it refute —
Appellant’s claim that, around the time she received Appellees’ notice of intent
to file a praecipe for entry of judgment of non pros, she was hospitalized and
suffering health issues, which delayed her attempts to secure counsel. We
note Appellees claim this discrete argument is waived because Appellant did
not raise it in her petition to open, and instead presented it for the first time
at oral argument. Appellees’ Brief at 13, citing Pa.R.A.P. 302(a) (“Issues not
raised in the trial court are waived and cannot be raised for the first time on
appeal.”). We decline to find waiver, as Appellant did present this issue for
the trial court’s consideration.
We also note the trial court and Appellees properly point out that,
contrary to Appellant’s claim, she was not required to file a certificate of merit
simultaneously with her complaint. See Pa.R.C.P. 1042.3(a). Appellant does
not dispute nor address this point in her brief. Nevertheless, we consider the
discussion in Almes, that courts may be “loathe to put a litigant out of court
for missing a deadline due to lawyer oversight.” See Almes, 881 A.2d at 864.
We further observe the trial court did not consider the following. Where
Appellant’s proposed complaint avers she underwent surgery on April 28,
2017, September 14, 2017, and January 26, 2018, her April 26, 2019, writ of
summons was filed well within the two-year statute of limitations for a medical
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malpractice action. See 42 Pa.C.S. § 5524(2) (action to recover damages for
injuries to the person caused by the wrongful act or neglect or negligence of
another must be commenced within two years). Appellees were served with
the writ of summons on May 17, 2020, and 46 days later, judgment of non
pros was entered on July 2nd. As Appellant points out, by the time she filed
her August 20th petition to open, only three months and three days had
passed since Appellees first learned of her claim. See Appellant’s Brief at 20.
The parties agree that no discovery has been conducted, nor any further
litigation undertaken than what we have summarized above. Indeed, at the
time of Appellant’s petition to open filing, the statute of limitations still had
not run on her claims.
After considering all of the foregoing, we conclude the trial court abused
its discretion in finding Appellant’s petition to open was not promptly filed and
that her delay was not “reasonably explained or excused.” See Schultz, 477
A.2d at 472. Appellees have not alleged any prejudice they will suffer by
Appellants’ failure, under the particular circumstances presented in this
matter, to file a complaint by June 11, 2019 (the date set by the terms of their
rule to file complaint). We determine, again under the particular facts
presented, that Appellant should not be put out of court on the basis of the
record presented.7 Moreover, we note that the delay in responding was
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7 We emphasize we offer no opinion on the merits of Appellant’s cause of
action.
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occasioned by Appellant’s medical condition and not to gain any tactical
advantage.
Accordingly, we reverse the order of the trial court denying Appellant’s
petition to open the judgment of non pros.
Order reversed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/09/2021
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