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Sabo v. Worrall

September 22, 2008


Appeal from the Order June 12, 2007, In the Court of Common Pleas of Allegheny County, Civil Division at No. GD 06-5888.

The opinion of the court was delivered by: Popovich, J.


Petition for Reargument Filed October 6, 2008

Petition for Reargument Denied November 26, 2008

¶ 1 Appellant Sharon Sabo, individually and as personal representative of the Estate of Helen P. Altieri, deceased, appeals the judgment of non pros entered in favor of Appellees V. Thomas Worrall III, M.D., Three Rivers Orthopedic Associates -- UPMC, UPMC St. Margaret, Siri M.B. DeSilva, M.D., and Michael Trombley, M.D., claiming that her counsel's omission in filing certificates of merit ("COM") being inadvertent, the trial court abused its discretion in not opening the judgment of non pros. We reverse.

¶ 2 The relevant facts and procedural history of this case are not in dispute. On the 16th day of June, 2006, Appellant filed a complaint seeking damages for the wrongful death of Helen P. Altieri attributable to Appellees' medical malpractice. On August 17, 2006, Appellees filed a praecipe for the entry of a judgment of non pros when Appellant failed to file a COM pursuant to Pa.R.C.P. 1042.6.*fn1 The next day, Appellant received notice that a judgment of non pros had been entered pursuant to Pa.R.C.P. 1042.3.*fn2 On September 12, 2006, a petition to open the judgment of non pros was filed claiming that Appellant's expert (Dr. Gary J. Sprouse) had completed a report dated February 27, 2006, which stated that the care provided by Appellees fell below the standard of medical care owed to Ms. Altieri and caused her harm.*fn3 The trial court noted that Dr. Sprouse's deposition supported Appellant's medical malpractice claim.

¶ 3 In the petition to open and the affidavit of Appellant's counsel,*fn4 it was averred that within several days of filing the complaint a COM was prepared and placed in counsel's file. After counsel reviewed the COM for each Appellee, he believed they were filed with the prothonotary by his paralegal, but this assumption proved erroneous with his receipt of the entry of the non pros judgments. Appellant perfected an appeal from the trial court's denial of the petition seeking to open the judgment of non pros claiming that counsel's failure to assure that his paralegal filed the COM was excusable as a mere clerical oversight, especially given counsel's possession of his expert's report of medical malpractice by Appellees prior to filing the COM pursuant to Rule 1042.3.

¶ 4 More particularly, Appellant claims that the trial court's reliance upon Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269 (2006), was misplaced in that here, counsel incorrectly assumed that the COM was filed after the expert's report had been secured, whereas in Womer, the plaintiff's counsel had mistakenly believed that he had complied with Rule 1042.3 by serving the defendant with a copy of his expert's report. The Pennsylvania Supreme Court took the position that the mistake alleged by counsel was not a reasonable explanation allowing for the opening of the judgment of non pros.

¶ 5 Herein, the trial court's previous practice was to allow a judgment of non pros to be opened when the plaintiff obtained a written statement from a licensed professional that there existed a reasonable probability that the care provided fell outside acceptable professional standards and that such conduct was a cause in bringing about harm, provided such statement was secured prior to the date a judgment of non pros could be entered for failure to file a COM. This practice was consistent with Harris v. Neuburger, 877 A.2d 1275 (Pa. Super. 2005) (delivery of an expert report to the defendants' counsel by the plaintiff's attorney satisfied Rule 1042.3), but Neuburger was disapproved of by Womer. Id., at 271 n.10, 908 A.2d 278-79 n.10. Thus, the trial court did not embrace Appellant's expansive reading of Womer to sanction the omission in this case as excusable conduct even though it was the result of a clerical oversight.

¶ 6 In Womer, the plaintiff took no steps to file a COM in accordance with Rule 1042.3. Upon praecipe of the defendant, the trial court entered a judgment of non pros pursuant to Rule 1042.6 for failing to file the COM. The plaintiff immediately filed a motion to open the judgment based upon the fact that he had served an expert report on the defendant prior to Rule 1042.3's time limit having expired, that this information included everything Rule 1042.3 required, that the defendant was not prejudiced, and that counsel's oversight or mistake caused the omission. The Pennsylvania Supreme Court disagreed and denied the petition to open the judgment of non pros, and in the course of doing so stated, as herein relevant:

In this appeal, our primary focus is on Pa.R.C.P. No. 1042.3 and whether it is subject to equitable exceptions. We first observe that the Pa.R.C.P. No. 1042.3 itself sets forth no exceptions, equitable or otherwise, to its terms. [.] Therefore, in this regard, we focus, as did the lower courts and the parties, on Pa.R.C.P. No. 126, and consider whether the Superior Court should have allowed Rule 126 to play any part in excusing Womer's failure to file a Rule 1042.3 COM.

It is self-evident that our Rules of Civil Procedure are essential to the orderly administration and efficient functioning of the court. Accordingly, we expect that litigants will adhere to procedural rules as they are written, and take a dim view of litigants who flout them. See Wood v. Garrett, 353 Pa. 631, 46 A.2d 321, 323 (1946). That said, we have always understood that procedural rules are not ends in themselves, and that the rigid application of our rules does not always serve the interests of fairness and justice. Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280, 1281 (1978). It is for this reason that we adopted Rule 126, which provides in pertinent part that "[t]he 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." Pa.R.C.P. No. 126. With this language, we incorporated equitable considerations in the form of a doctrine of substantial compliance into Rule 126, giving the trial courts the latitude to overlook any "procedural defect" that does not prejudice a party's rights. Sahutsky v. H.H. Knoebel Sons, 566 Pa. 593, 782 A.2d 996, 1001 (2001) (quoting Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804, 806 (1989)); Pomerantz, 387 A.2d at 1281. Thus, while we look for full compliance with the terms of our rules, we provide a limited exception under Rule 126 to those who commit a misstep when attempting to do what any particular rule requires. Moreover, we made Rule 126 a rule of universal application, such that the trial court may disregard any such procedural defect or error at every stage of any action or proceeding to which the civil procedural rules apply. See id. Therefore, as a general proposition, Rule 126 is available in professional liability actions and may be applied to Pa.R.C.P. No. 1042.3, as long as its requirements, as we have articulated them, are met.

Turning to Pa.R.C.P. No. 126's application to the instant action, Hilliker argues that since Womer did not file a COM, even one that was defective, the trial court correctly determined that this was a situation of a party's non-compliance and that therefore, Pa.R.C.P. No. 126 should not be considered. Womer counters that since the Report he gave to Hilliker set forth the information that a COM would have provided and fulfilled Pa.R.C.P. No. 1043's purpose to show that he had a meritorious claim, he demonstrated substantial compliance, such that the Superior Court properly overlooked his failure to file a COM under Pa.R.C.P. No. 126, given the equities he presented.

In our view, Hilliker's position is the correct one, since Womer took no steps to comply with Pa.R.C.P. No. 1042.3. Rule 1042.3 is clear and unambiguous in its mandate that in every professional liability action a specific representation about the plaintiff's claim must be filed in the official record in a document called a "certificate of merit" ...

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