Friedman, S. v. Bryn Mawr Hospital
2915 EDA 2016
| Pa. Super. Ct. | Dec 27, 2017Background
- Steven Friedman, a licensed attorney, sued medical providers alleging malpractice and related claims; he initially filed certificates of merit signed electronically by himself.
- Defendants sought judgment non pros for failure to attach written statements of reasonable probability under Pa.R.C.P. 1042.3(e); Friedman contended that because he is an attorney he need not attach the statements.
- The trial court declared Friedman a pro se litigant (because he represented himself and was the only plaintiff) and ordered the statements of reasonable probability to be filed, concluding Rule 1042.3(e) applied.
- Friedman appealed the trial court’s declaratory ruling; the majority quashed the appeal as interlocutory, but Judge Shogan dissented, invoking the collateral-order doctrine to reach the merits.
- On the merits in the dissent, Judge Shogan concluded Rule 1042.3’s purpose and its explanatory comment show a licensed attorney proceeding pro se remains an “attorney” for Rule 1042.3 and therefore need not attach a written statement of reasonable probability to the certificate of merit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court of appeals has jurisdiction to hear appeal of trial court’s declaratory order | Friedman: collateral-order doctrine applies because right to counsel/self‑representation is too important and would be lost if postponed | Defendants: order is interlocutory and not collateral; appeal premature | Dissent: collateral-order doctrine satisfied; appellate jurisdiction exists (would reach merits) |
| Whether a licensed attorney representing himself is an “attorney” under Pa.R.C.P. 1042.3(a)/(e) | Friedman: as a licensed attorney he remains subject to disciplinary rules and thus qualifies as an "attorney" under Rule 1042.3; no statement of reasonable probability required | Defendants: pro se status triggers Rule 1042.3(e); trial court may require statements; Womer supports strict enforcement | Dissent: Rule 1042.3 and its explanatory comment show attorney status depends on licensure, not retention of counsel; plaintiff-attorneys are "attorneys" for Rule 1042.3, so no attachment required |
| Whether the trial court may, in its discretion, require written statements even when certificate is signed by an attorney | Gould: trial court has discretion to require statements as sanction or case‑management | Friedman: Rule 1042.3(e) is unambiguous; no discretion to impose additional attachment requirement on attorneys | Dissent: rejects discretionary power argument; Rule 1042.3(e) sets a clear condition precedent and does not authorize such discretionary imposition |
| Whether the qualification of the expert (Dr. Leifer) should be addressed if Friedman is deemed an attorney | Defendants: Dr. Leifer does not meet MCARE §512 qualifications; certificate deficient | Friedman: if deemed an attorney, challenge to expert qualifications is unnecessary to resolve Rule 1042.3 question | Dissent: if Friedman is an attorney, no need to reach defendants’ challenge to Dr. Leifer’s qualifications; remand after reversing trial court |
Key Cases Cited
- Rae v. Pa. Funeral Directors Ass'n, 977 A.2d 1121 (Pa. 2009) (sets three‑prong collateral‑order test)
- Melvin v. Doe, 836 A.2d 42 (Pa. 2003) (importance prong requires rights rooted in public policy)
- Womer v. Hilliker, 908 A.2d 269 (Pa. 2006) (certificate‑of‑merit enforcement purpose and substantial‑compliance analysis)
- Commonwealth v. Blystone, 119 A.3d 306 (Pa. 2015) (collateral orders separability principles)
- K.C. v. L.A., 128 A.3d 774 (Pa. 2015) (order separability from merits can permit collateral review)
- Commonwealth v. Sabula, 46 A.3d 1287 (Pa. 2012) (defines irreparable‑loss requirement for collateral review)
- Veloric v. Doe, 123 A.3d 781 (Pa. Super. 2015) (appellate pathways and finality discussion)
- Shearer v. Hafer, 135 A.3d 637 (Pa. Super. 2016) (orders implicating right to counsel may warrant collateral review)