The opinion of the court was delivered by: Pollak, J.
Plaintiff George Heard was an inmate from June 2008 to approximately May 2009 at various facilities in the Philadelphia Prison System. His complaint names sixteen defendants, including the City and County of Philadelphia; Prison Health Services, Inc., the provider of physical medical care in the Philadelphia Prison System; Dr. Bruce Herdman, Chief Medical Officer of the Philadelphia Prison System; Lou Giorla, Commissioner of the Philadelphia Prison System; and several other officials, including prison wardens, deputy wardens, correctional officers, and nurses. See Docket No. 1. Plaintiff alleges seven claims against the defendants stemming from unsanitary prison conditions and inadequate medical care. The claims include constitutional violations, violations of federal statutes, the intentional infliction of emotional distress, and state law negligence. Defendant Prison Health Services, Inc., now moves for partial summary judgment to dismiss count five of plaintiff's complaint, the state law negligence claim. See Docket No. 20. For the reasons that follow, the court will grant the motion.
In June 2008, plaintiff was arrested and entered the Philadelphia Prison System (PPS). During the course of approximately 11 months spent in PPS, plaintiff served time in four different facilities, all of which he claims were overcrowded and unsanitary, with "dirty, dust-filled air blowing 24 hours a day." All but approximately 20 days of plaintiff's confinement were spent at one facility, the PPS House of Corrections. For the purposes of the present motion, the most relevant facts are those that plaintiff alleges occurred while he was housed for one month in the Special Housing Unit of the House of Corrections.
On the night of July 16, 2008, plaintiff claims he had severe breathing problems and could not get out of bed. He and another inmate attempted to get the attention of two corrections officers for more than an hour, but plaintiff claims they refused to help. The next morning, plaintiff submitted a "sick call slip," in which he explained that his condition was urgent, but plaintiff was not called to the Medical Unit until sometime "later in the day." After listening to plaintiff explain his condition, defendant Nurse Jane Doe #1 told plaintiff that "he was having a panic attack due to prison" and sent him back to his cell without examining him. Back in his cell, plaintiff complained again to a corrections officer about not being able to breathe and was sent to the Medical Unit a second time. Nurse Jane Doe #2 examined plaintiff briefly, told him that he "had gas," gave him Pepto-Bismol, and sent him back to his cell. Plaintiff again complained about not being able to breathe and was sent to the Medical Unit a third time, where defendants Nurse Jane Doe #1 and Nurse Jane Doe #2 threatened to "write him up" if he returned again. Plaintiff claims he went back and forth between his cell and the Medical Unit three more times, until on his sixth visit to the Medical Unit, plaintiff saw a doctor who determined that he was in need of immediate emergency care at a hospital.
Plaintiff was taken by ambulance first to Nazareth Hospital, where he suffered a series of "mini-strokes." Plaintiff was then immediately transferred to Albert Einstein Hospital, where he underwent emergency lung surgery and had a portion of his lung removed. Plaintiff claims his diagnosis was a "bacterial staph infection and/or Methicillin-Resistant Staphylococcus Aureus" ("MRSA"). He remained hospitalized for a week before returning to jail. After his return to the PPS House of Corrections, plaintiff claims he was denied access to the Medical Unit and suffered in severe pain for his remaining time in prison, approximately nine more months.
Plaintiff asserts generally that unsanitary prison conditions, irresponsible prison policies, and intentional or negligent misconduct by several officials led to and exacerbated his condition. Among his seven specific claims, plaintiff brings a state law negligence claim-or, in this context, a medical malpractice claim-against various defendants, including a vicarious liability claim against Prison Health Services, Inc. ("PHS"). PHS was the contracted provider of physical medicine to inmates in the PPS for the relevant time period. PHS Answer, Docket No. 8 ¶ 4. Plaintiff alleges that PHS and its employees failed to comply with generally accepted medical standards of care in their medical treatment of him. In its present motion, PHS argues that the state law negligence claim should be dismissed because plaintiff failed to file a Certificate of Merit as is required by the Pennsylvania Rules of Civil Procedure in professional malpractice actions. See Docket No. 20.
A. Certificate of Merit Rule
Pennsylvania Rule of Civil Procedure 1042.3 requires a certificate of merit (COM) to be filed "[i]n any action based upon an allegation that a licensed professional deviated from an acceptable professional standard." Pa. R. Civ. P. 1042.3(a).*fn2 The COM must be signed by the plaintiff's attorney and filed within sixty days after the filing of the complaint.*fn3 Id. In a claim that sets out a vicarious liability theory, additional certificates must also be filed as to each licensed professional for whom the defendant (here, PHS) is alleged to be vicariously liable. Pa. R. Civ. P. 1042.3(a)(2) note; Stroud v. Abington Mem'l Hosp., 546 F. Supp. 2d 238, 248 (E.D. Pa. 2008). In Pennsylvania courts, if a plaintiff has failed to submit a certificate within the sixty-day time frame, the defendant can direct the prothonotary to enter a judgment of non pros. Pa. R. Civ. P. 1042.6. The plaintiff may then seek relief from the judgment of non pros, requesting that it either be struck or opened. See Pa. R. Civ. P. 3051.
In federal district courts, the COM rule "is substantive state law that must be applied." Booker v. United States, 366 F. App'x 425, 426 (3d Cir. 2010); see also Stroud, 546 F. Supp. 2d at 248 (noting that "[f]ederal courts in Pennsylvania have uniformly held that the [COM] requirement is a substantive rule of law that applies in professional liability actions proceeding in federal court"); Scaramuzza v. Sciolla, 345 F. Supp. 2d 508, 510 (E.D. Pa. 2004) (applying "Pennsylvania certificate of merit rule . . . as controlling substantive law").
Thus, failure to submit a COM is a "possible ground for dismissal by the district court when properly presented to the court in a motion to dismiss" under Rule 12(b)(6). McElwee Group, LLC v. Mun. Auth. of Elverson, 476 F. Supp. 2d 472, 475 (E.D. Pa. 2007). Mirroring the entry of judgment non pros in Pennsylvania courts, federal courts will dismiss without prejudiceactions where a COM has not been filed. See Booker, 366 F. App'x at 426; see also Stroud, 546 F. Supp. 2d at 249 (a "judgment of non pros, if entered, effectively constitutes a dismissal of the cause without prejudice"); Scaramuzza, 345 F. Supp. 2d at 511 (holding that the court can "dismiss plaintiff's complaint without prejudice for failure to file a certificate of merit").
Although full compliance with Rule 1042.3 is expected, the Pennsylvania Supreme Court has held that the rule is subject to certain equitable considerations to aid the substantially compliant litigant who has a "reasonable explanation or legitimate excuse" for noncompliance. Womer v. Hilliker, 908 A.2d 269, 280 (Pa. 2006). While equitable exceptions may apply to a plaintiff who commits a misstep in attempting to comply with the rule, such exceptions are not available to a plaintiff who fails entirely to even attempt to file a COM. Id. at 276-278. Thus, since Womer, state and federal courts have applied equitable considerations "in situations where the plaintiff has attempted but failed to meet the technical requirements of Rule 1042.3." Booker, 366 F. App'x at 428.
B. Effect of Certificate of Merit Rule on Plaintiff's Claim In his complaint filed on July 13, 2010, plaintiff makes a state law negligence claim, stating that several defendants, including PHS, failed to comply with accepted medical standards of care in their medical treatment of him. More than a year later, however, he has yet to submit a COM as required by Pennsylvania Rule of Civil Procedure 1042.3.*fn4 Moreover, it appears that plaintiff has made no attempt and taken no action to comply with the rule, and therefore equitable considerations do not apply. See Booker, 366 F. App'x at 428 (explaining that Womer bars equitable ...