253 A.3d 252
Pa. Super. Ct.2021Background
- Wishnefsky (an incarcerated plaintiff alleging a prison medical director denied a urology consult, worsening his urinary condition) filed a professional-liability complaint on December 16, 2016.
- Plaintiff filed a motion (April 24, 2017) asking the court to determine whether a Certificate of Merit (COM) was required under Pa.R.C.P. 1042.3; proceedings and prior non pros entries followed, including an earlier non pros vacated on appeal.
- After remand the trial court ordered plaintiff to file a COM within 60 days (order entered February 20, 2019); plaintiff did not file a COM.
- Defendant filed a praecipe for entry of judgment of non pros on June 13, 2019 and attached a certificate of service dated August 29, 2018, but the record contains no indication the required written Notice of Intent (Pa.R.C.P. 1042.6(a)) was filed with the court.
- Plaintiff petitioned to strike the June 2019 non pros; the trial court denied the petition after a March 12, 2020 hearing. The Superior Court vacated that denial and remanded because the defendant failed to comply with the rule requiring filing of the notice of intent, creating a facial defect preventing entry of the default judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the June 13, 2019 judgment of non pros was properly entered under Pa.R.C.P. 1042.6/1042.7 | Wishnefsky argued the non pros was improper because (a) a COM was not required (no doctor–patient relationship), and (b) procedural requirements for entry were not met | Salameh argued a COM was required and that he complied by serving a Notice of Intent and filing a praecipe for non pros | Vacated judgment of non pros: Superior Court held defendant failed to file the required Notice of Intent with the court (facial defect); trial court abused discretion in denying petition to strike |
| Whether a COM is substantively required for Wishnefsky’s claims | Wishnefsky argued no COM was necessary because defendant was not his treating physician / no patient–physician relationship | Salameh maintained the claim is medical malpractice requiring a COM | Superior Court did not resolve the substantive COM question on appeal; remanded for proceedings consistent with enforcing procedural rules (trial court previously found a COM was required) |
Key Cases Cited
- Yee v. Roberts, 878 A.2d 906 (Pa. Super. 2005) (standard of review for denial of petition to strike a judgment of non pros)
- Hoover v. Davila, 862 A.2d 591 (Pa. Super. 2004) (same)
- Varner v. Classic Communities Corp., 890 A.2d 1068 (Pa. Super. 2006) (motion to strike non pros challenges only facial defects)
- Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000) (abuse of discretion occurs if court misapplies law or fails to follow legal procedure)
- Hershey v. Segro, 381 A.2d 478 (Pa. Super. 1977) (motion to strike a judgment of non pros examines defects on the face of the record)
- Fountainville Historical Farm Ass’n v. Bucks County, 490 A.2d 845 (Pa. Super. 1985) (prothonotary lacks authority to enter default when a facial defect appears on the record)