Monger, F. v. Encompass Health Rehab. Hospital
862 MDA 2021
| Pa. Super. Ct. | Feb 10, 2022Background
- Florence R. Monger sued multiple health-care providers and clinicians for negligence after her husband’s death (complaint filed 9/23/2019).
- On 11/8/2019 Monger filed certificates of merit that in form purported to cover both Pa.R.C.P. 1042.3(a)(1) (direct liability) and (a)(2) (vicarious liability), but the substantive language only repeated (a)(2), omitting the (a)(1) confirmatory wording.
- Defendants filed petitions for judgment of non pros between 11/27/2019 and 12/16/2019 attaching the defective certificates and alleging the absence of proper (a)(1) certificates; Monger denied the defects and did not request leave to amend.
- The trial court held argument 1/28/2020, entered judgments of non pros on 1/30/2020, and Monger filed petitions to open on 2/27/2020 claiming a clerical/scrivener error and seeking leave to file amended certificates nunc pro tunc.
- The trial court denied the petitions (6/8/2021), concluding Monger failed to reasonably explain or excuse her conduct after receiving timely notice of the defects and had not substantially complied with Rule 1042.3; the Superior Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court misapplied equitable considerations in Rules 126 and 3051 (and Sabo) when denying the petitions to open non pros | Monger: Rule 126’s substantial-compliance/equitable doctrine and precedent permit excusing an attorney’s oversight; Sabo and similar cases support opening | Defendants: Certificates were defective, Monger had explicit notice and still refused to correct; no equitable relief warranted | Affirmed denial — court found no reasonable explanation for delay after notice; Rule 126 not available because there was not substantial compliance |
| Whether Monger should have been allowed to file an amended certificate nunc pro tunc because the error was clerical/substantial compliance | Monger: The omission was a clerical retyping error; she promptly sought to open and would cure defect nunc pro tunc | Defendants: Monger had months’ notice before judgment and took no corrective steps; delay was unreasonable and prejudicial | Denied — the court treated counsel’s prolonged inaction and insistence that filings were correct as unreasonable, converting oversight into culpable neglect |
| Whether Monger showed a meritorious cause of action under Rule 1042.3(a)(1) | Monger: Complaint allegations plus counsel’s representation that an appropriate licensed professional provided the requisite written statement suffice at this stage | Defendants: No (a)(1) certificate was filed, so direct-liability claims lack the required expert support | Court did not reach merits because Monger failed the explanation prong; noted that if proper (a)(1) certificates had been timely filed, meritorious claims likely would exist |
Key Cases Cited
- Womer v. Hilliker, 908 A.2d 269 (Pa. 2006) (explains limits of Rule 126 and emphasizes that substantial compliance, not no compliance, is required to excuse procedural defects under Rule 1042.3)
- Jung v. St. Paul's Parish, 560 A.2d 1356 (Pa. 1989) (articulates three-prong test to open a judgment of non pros: timeliness, reasonable excuse, meritorious cause)
- Sabo v. Worrall, 959 A.2d 346 (Pa. Super. 2008) (excused failure to file certificate where paralegal error left a ready certificate unfiled)
- Florig v. Estate of O'Hara, 912 A.2d 318 (Pa. Super. 2006) (standard of review: abuse of discretion governs denials of petitions to open non pros)
- Almes v. Burket, 881 A.2d 861 (Pa. Super. 2005) (permitted opening where counsel missed certificate deadline due to serious personal circumstances)
- Estate of Aranda v. Amrick, 987 A.2d 727 (Pa. 2009) (ordered relief where an estate inadvertently failed to file one of several required certificates)