Case Information
*1 J-A28033-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
SERGEI KOVALEV : IN THE SUPERIOR COURT OF
: PENNSYLVANIA Appellant :
:
:
v. :
:
: JEFFERSON HEALTH - NORTHEAST, : No. 2974 EDA 2023 JEFFERSON HEALTH - NORTHEAST :
HEALTH, JEFFERSON FRANKFORD :
HOSPITAL, RYAN TAYLOR AND JULIA :
FINKEL :
Appeal from the Order Entered November 16, 2023
In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 220800839
BEFORE: PANELLA, P.J.E., STABILE, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED MAY 21, 2025
Appellant Sergei Kovalev appeals pro se from trial court’s order granting the motion filed by Appellees Jefferson Health - Northeast, Jefferson Health - Northeast Health, Jefferson Frankford Hospital, Ryan Taylor, D.O., and Julia Finkel, D.O. (collectively, “Appellees”), striking Appellant’s certificates of merit, and entering a judgment of non pros in favor of Appellees. On appeal, Pa.R.C.P. 1042.3(a) (requiring that in any action in which a plaintiff alleges that that a licensed professional deviated from an acceptable professional standard, the plaintiff must file a certificate of merit indicating that an appropriate licensed professional has supplied a written statement that there is a reasonable probability that the conduct at issue fell outside acceptable professional standards and was a cause in bringing about the plaintiff’s harm or indicating that expert testimony of an appropriate licensed professional is not necessary to prosecute the plaintiff’s claim).
Appellant argues that the trial court erred by sustaining Appellees’ preliminary objections to several counts of Appellant’s amended complaint, granting Appellees’ motion to amend Appellant’s civil cover sheet, striking Appellant’s certificates of merit, and entering a judgment of non pros . We affirm.
On August 5, 2022, Appellant initiated this action by filing a complaint against Appellees. Appellant subsequently filed an amended complaint on October 28, 2022. Therein, Appellant alleged that he suffered a fall on August 5, 2020, resulting in serious injuries to, among other things, his head, spine, left shoulder, and both knees. See Am. Compl., 10/28/22, at 5-6, R.R. at 37a-38a. On the following day, he went to the emergency department of Jefferson Frankford Hospital for treatment. R.R. at 39a. Appellant asserted that Appellees refused or failed to provide treatment for Appellant’s injuries. Specifically, Appellant alleged that Dr. Finkel examined Appellant for approximately five minutes and that Dr. Taylor only looked at Appellant for a few seconds in the examination room. See id. at 41a-43a. Appellant claimed that that Dr. Finkel and Dr. Taylor “failed to provide any appropriate medical screening examination, referral to qualified specialists, treatment, stabilization, [or] diagnosis” for Appellant’s injuries. Id. at 43a-44a. Appellant further asserted that while X-rays were taken of one of his hands We may cite to the parties’ reproduced record and supplemental reproduced record for the parties’ convenience.
and one of his legs, both Dr. Finkel and Dr. Taylor denied his request for an MRI scan of his head to check for brain injuries. See id. at 43a-45a.
Appellant further alleged that Jefferson Health - Northeast, Jefferson Health - Northeast Health, and Jefferson Frankford Hospital (collectively, “Hospital Appellees”) failed to exercise reasonable care in the management of the emergency department and in the hiring, supervision, and training of staff at Jefferson Frankford Hospital. See id. at 41a-42a, 51a-53a, 72a, 74a.
Appellant pled a total of nineteen counts in his amended complaint: (I) ordinary negligence; (II) medical malpractice (in the alternative to Count I) 3 ; (III) gross negligence; (IV) negligence per se ; (V) negligent infliction of emotional distress; (VI) reckless endangerment; (VII) assault and battery (intentional denial of medically necessary services); (VIII) violation of the Unfair Trade Practices and Consumer Protection Law (UTPCPL); 4 (IX) civil conspiracy (to deny medical services, to injure, and to defraud); (X) violation of the Emergency Medical Treatment and Active Labor Act (EMTALA); 5 (XI) violation of civil rights pursuant to 42 U.S.C. § 1983; (XII) 42 U.S.C. § 1983 violation of First Amendment rights pursuant to 42 U.S.C. § 1983; (XIII) violation of right to equal protection pursuant to 42 U.S.C. § 1983; (XIV) 3 Only as to Dr. Taylor and Dr. Finkel. 73 P.S. §§ 201-1 to 201-10. 42 U.S.C. § 1395dd.
failure to train, discipline, and supervise pursuant to 42 U.S.C. § 1983; 6 (XV) discrimination in violation of 42 U.S.C. § 2000a(a) et seq. ; (XVI) conspiracy in violation of 42 U.S.C. § 1985; (XVII) breach of contract for health care; (XVIII) fraud and fraudulent misrepresentation; and (XIX) breach of fiduciary duty. See R.R. at 50a-127a. Appellant filed certificates of merit with respect to each Appellee on November 10, 2022. See R.R. at 247a-51a. Therein, Appellant certified that expert testimony from an appropriate licensed professional was not necessary because Appellant was relying on the doctrine of res ipsa loquitur and because Appellant was asserting claims of intentional torts and fraud against Dr. Taylor and Dr. Finkel. See id.
On September 9, 2022, Appellees filed a motion to amend Appellant’s civil cover sheet, arguing that although Appellant had designated this action as “personal injury — other” when he filed his initial complaint and that, based on the allegations in the complaint, this matter should be designated as a medical professional liability action. See Appellees’ Mot. to Amend, 9/9/22, at 2-4. On March 27, 2023, 7 the Honorable Daniel J. Anders entered an order granting Appellees’ motion to amend. See Trial Ct. Order, 3/27/23. Only as to Hospital Appellees. The trial court’s order is dated March 23, 2023, but was docketed and served on the parties on March 27, 2023. Pa.R.A.P. 108(a)(1) (providing that the date of entry of an order is the day the clerk of court mails or delivers copies of the order to the parties); see also Pa.R.C.P. 236.
Appellees also filed preliminary objections to Appellant’s amended complaint on November 17, 2022 seeking to strike multiple counts for legal insufficiency (demurrer). See S.R.R. at 100b-251b. On December 22, 2022, 8 the Honorable Michael Erdos entered an order sustaining Appellees’ preliminary objections in part and overruling Appellees’ preliminary objections in part. Specifically, Judge Erdos ordered that the following counts were stricken from Appellant’s amended complaint: (VI) reckless endangerment; (VII) assault and battery; (VIII) violation of the UTPCPL; (X) violation of the EMTALA; (XI) violation of civil rights; (XII) violation of civil rights; and (XIII) violation of civil rights. See Trial Ct. Order, 12/21/22, at 1-2. Judge Erdos also struck Appellant’s claim for negligence per se pursuant to the UTPCPL, the EMTALA, 42 U.S.C. §§ 1983, 1985, 2000a(a), but allowed the Appellant’s claim for negligence per se with respect to reckless endangerment to proceed. See id. at 2. Lastly, Judge Erdos overruled Appellees’ other preliminary objections. See id. at 1-2.
Appellees filed a motion to strike Appellant’s certificates of merit on October 14, 2022. See S.R.R. at 1b-80b. On April 17, 2023, 9 the Honorable Linda Carpenter entered an order granting Appellees’ motion, striking Appellant’s certificates of merit, and directing Appellant to file certificates of The trial court’s order is dated December 21, 2022, but was served on the parties on December 22, 2022. See Pa.R.A.P. 108(b); Pa.R.C.P. 236(b). The trial court’s order is dated April 11, 2023, but served on the parties on April 17, 2023. Pa.R.A.P. 108(b); Pa.R.C.P. 236(b).
merit as to each defendant that complied with the Pennsylvania Rules of Civil Procedure. See Trial Ct. Order, 4/17/23. Appellant filed amended certificates of merit as to each Appellee on April 21, 2023. See R.R. at 400a-05a. In these amended certificates of merit, Appellant again certified that expert testimony from an appropriate licensed professional was not necessary because Appellant was relying on the doctrine of res ipsa loquitur against Appellees and because Appellant was asserting claims of intentional torts against Dr. Taylor and Dr. Finkel. See id.
On May 4, 2023, Appellees filed a motion to strike Appellant’s amended certificates of merit as deficient and a notice of intention to enter judgment of non pros for failure to file a written statement from an appropriate licensed professional. See S.R.R. at 279b-303b. On November 16, 2023, Judge Carpenter entered an order and opinion granting Appellees’ motion, striking Appellant’s amended certificates of merit with prejudice, and entering a judgment of non pros against Appellant.
Appellant did not file a petition to strike or open the judgment of non pros . Appellant filed four timely notices of appeal, which included the November 16, 2023 order striking Appellant’s amended certificates of merit and entering the judgment of non pros , the April 17, 2023 order striking The trial court’s order is dated November 13, 2023, but was docketed on November 14, 2023, and served on the parties on November 16, 2023. We have amended the caption accordingly Pa.R.A.P. 108(b); Pa.R.C.P. 236(b).
Appellant’s original certificates of merit, the March 27, 2023 order amending Appellant’s civil cover sheet and directing Appellant to produce certificates of merit, and the December 22, 2022 order sustaining in part, and overruling in part, Appellees’ preliminary objections.
Appellant complied with Pa.R.A.P. 1925(b). Judge Erdos issued a Rule 1925(a) opinion addressing the order sustaining in part and overruling in part Appellees’ preliminary objections. See Judge Erdos’ Op., 3/11/24, at 1-8. Judge Anders issued a Rule 1925(a) opinion addressing the order amending Appellant’s civil cover sheet and directing Appellant to produce certificates of merit. See Judge Anders’ Op., 3/18/24, at 1-3. Judge Carpenter issued a Rule 1925(a) opinion addressing the order striking Appellant’s certificates of merit with prejudice and the judgment of non pros . Judge Carpenter’s Op., 3/15/24, at 1-7 (unpaginated).
This Court docketed Appellant’s appeals at 2974 EDA 2023, 3099 EDA 2023, 3098 EDA 2023, and 3082 EDA 2023, respectively. On April 8, 2024, this Court sua sponte dismissed the appeals at 3099 EDA 2023, 3098 EDA 2023, and 3082 EDA 2023 as duplicative.
Appellant raises the following issues on appeal, which we restate as follows:
1. The trial court erred by sustaining Appellees’ preliminary objections.
2. The trial court erred by designating this matter as a medical professional liability action.
3. The trial court erred by striking Appellant’s certificates of merit.
Appellant’s Brief at 8-9.
Preliminary Objections
First, Appellant argues that the trial court abused its discretion by entering the December 22, 2022 order, which sustained in part and overruled in part Appellees’ preliminary objections and struck the following counts from Appellant’s amended complaint: (VI) reckless endangerment; (VII) assault and battery; (VIII) violation of the UTPCPL; (X) violation of the EMTALA; (XI) violation of civil rights; (XII) violation of civil rights; and (XIII) violation of civil rights. Id. at 60-70.
This Court has explained:
We review an order sustaining preliminary objections seeking dismissal of an action de novo :
Our standard of review of an order of the trial court [ruling on] preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering We note that here, Appellant raised seven questions in his statement of questions presented, but he has divided the argument section of his brief into four sections, several with numerous subsections. The Pennsylvania Rules of Appellate Procedure require that the argument section of the brief “shall be divided into as many parts as there are questions to be argued.” Pa.R.A.P. 2119(a). Failure to do so may result in waiver. Ramalingam v. Keller Williams Realty Grp., Inc. , 121 A.3d 1034, 1042 (Pa. Super. 2015). While we do not condone Appellant’s failure to comply with the Rules of Appellate Procedure, we find that the defects in Appellant’s brief does not impede our ability to render meaningful appellate review; therefore, we decline to find waiver on this basis. Id.
preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.
Fiedler v. Spencer , 231 A.3d 831, 835-36 (Pa. Super. 2020) (citations omitted). This Court will reverse the trial court’s decision regarding preliminary objections only where there has been an error of law or abuse of discretion.
Godlove v. Humes , 303 A.3d 477, 480-81 (Pa. Super. 2023).
Following our review of the record, the parties’ briefs, the relevant law, and the trial court’s well-reasoned analysis, we affirm on the basis of Judge Erdos’ opinion. See Judge Erdos’ Op., 3/11/24, at 1-8. Specifically, we agree with Judge Erdos that the various statutes Appellant has cited in his amended complaint do not provide a cause of action against medical providers, cannot be used to assert a challenge to the quality of medical care, or otherwise do not apply to Appellees. See Godlove , 303 A.3d at 480-81. We also agree that Appellant has failed to state a claim for assault and battery because Appellant has not alleged that Appellees committed any physical We note that Judge Erdos’ opinion contains a relevant typographical error. On page 7 of the opinion, the quote should read “EMTALA requires hospitals to provide medical screening and stabilizing treatment to individuals seeking emergency care in a nondiscriminatory manner.” Judge Erdos’ Op., 3/11/24, at 7 (quoting Toretti v. Main Line Hosps. Inc. , 580 F.3d 168, 173 (3d Cir. 2009)).
contact against his person. Therefore, Appellant is not entitled to relief on this claim.
Designating this Matter as a Medical Professional Liability Action Next, Appellant argues that the trial court abused its discretion by entering the March 27, 2023 order, which granted Appellees’ motion to amend the civil cover sheet to designate this matter as a medical professional liability action. Appellant’s Brief at 37-39. Appellant claims that his designation of his civil action as “other personal injury” was correct because he pled nineteen causes of action in his amended complaint, which included causes of action for intentional torts and civil rights violations. Id. at 38-39. Appellant claims that because a plaintiff is the master of his own complaint, Appellees, as the defendants, cannot dictate how Appellant manages his case. Id. at 39 (citing Caterpillar, Inc. v. Williams , 482 U.S. 386, 392 (1987); The Fair v. Kohler Die & Specialty Co. , 228 U.S. 22, 25 (1913)). Appellant further argues that the trial court’s March 27, 2023 order violates Pa.R.C.P. 128 because designating this matter a medical professional liability action is “contrary to We note that Appellant has cited his response in opposition to Appellees’ motion to amend civil cover sheet. Appellant’s Brief at 38 (citing R.R. at 139-69a). To the extent that Appellant attempts to incorporate by reference the arguments he presented in his trial court filings, “our appellate rules do not allow incorporation by reference of arguments contained in briefs filed with other tribunals, or briefs attached as appendices, as a substitute for the proper presentation of arguments in the body of the appellate brief.” Commonwealth v. Briggs , 12 A.3d 291, 343 (Pa. 2011). Our Supreme Court has held that when an appellant attempts to present issues by incorporating by reference another document into his brief, those issues are waived. Id. Therefore, we limit our analysis to arguments developed in Appellant’s appellate briefs.
the entire substance of [Appellant’s] amended complaint.” Id. at 35 (some formatting altered); see also id. at 50 (Appellant contends that his claims cannot be “classified as a medical malpractice because the required second prong (‘medical treatment’) was missing” (emphasis omitted)).
Lastly, Appellant argues that although Count II of his amended complaint is captioned as “medical malpractice,” he only included it “to satisfy [Appellees’] alter ego [sic][,]” and that he “intentionally created [Count II] to satisfy [Appellees’] desire to dismiss something.” Id. at 44. Appellant further contends that his amended complaint does not allege that Appellees engaged in an unskilled performance of any medical procedure. Id. at 45-47.
To the extent that this Court must review the averments of Appellant’s complaint to determine the theories of liability that he is asserting, that issue presents a question of law. Ditch v. Waynesboro Hosp. , 917 A.2d 317, 321 (Pa. Super. 2007). Therefore, our standard of review is de novo and our scope of review is plenary. See id. ; see also Gray v. Buonopane , 53 A.3d 829, 834 (Pa. Super. 2012) (explaining that interpretation of the Pennsylvania Rules of Civil Procedure presents a question of law, and this Court reviews such questions de novo ).
Pennsylvania Rule of Civil Procedure 205.5 provides, in relevant part, as follows: “[a]t the commencement of any action, the party initiating the action shall complete the cover sheet set forth in subdivision (e) and file it with the prothonotary.” Pa.R.C.P. 205.5(a)(2).
Our Supreme Court has rescinded Rule of Civil Procedure 128 and replaced it with Rule of Judicial Administration 109 effective January 1, 2024. Pa.R.J.A. 109; Pa.R.C.P. 126(b). Rule of Judicial Administration 109 states:
Ascertaining the Supreme Court’s intention in the adoption or amendment of a rule may be guided by the following presumptions among others:
(a) The Supreme Court does not intend a result that is absurd, impossible of execution, or unreasonable; (b) The Supreme Court intends a rule to be construed to secure the just, speedy, and inexpensive determination of every action or proceeding to which it is applicable; (c) The Supreme Court intends the entire rule or chapter of rules to be effective and certain;
(d) The Supreme Court does not intend to violate the Constitution of the United States or of this Commonwealth[.] Pa.R.J.A. 109(a)-(d).
This Court has explained:
Medical malpractice is defined as the unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient, including all liability-producing conduct arising from the rendition of professional medical services. . . . [T]he basic elements of medical malpractice and ordinary negligence are the same, although medical malpractice has some distinguishing characteristics. Th[is] Court drew the distinction between ordinary negligence and medical malpractice as follows: A medical malpractice claim is distinguished by two defining characteristics. First, medical malpractice can occur only within the course of a professional relationship. Second, claims of medical malpractice necessarily raise questions involving medical judgment. Claims of ordinary negligence, by contrast, raise issues that are within the common knowledge and experience of the [fact-finder]. Therefore, *13 a court must ask two fundamental questions in determining whether a claim sounds in ordinary negligence or medical malpractice: (1) whether the claim pertains to an action that occurred within the course of a professional relationship; and (2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience. If both these questions are answered in the affirmative, the action is subject to the procedural and substantive requirements that govern medical malpractice actions.
Therefore, where a complaint is predicated upon facts constituting medical treatment, that is, when it involves diagnosis, care and treatment by licensed professionals, the action must be characterized as a professional negligence action.
Ditch , 917 A.2d at 321-22 (citations omitted and some formatting altered).
Further, it is well-established that medical malpractice encompasses claims that physicians failed to properly diagnose a patient’s condition. See, e.g. , Nicolaou v. Martin 195 A.3d 880, 882-85 (Pa. 2018) (the plaintiff brought a medical malpractice action alleging that the defendants had failed to properly diagnose and treat the plaintiff’s Lyme disease where the defendants had misdiagnosed the plaintiff’s symptoms as the result of multiple sclerosis); Zieber v. Bogert , 773 A.2d 758, 759-60 (Pa. 2001) (in a medical malpractice action, the plaintiff alleged that the defendants failed to order a C-T scan which would have revealed that the plaintiff had lymphoma in his abdomen).
Our Supreme Court has held that “[a] cause of action for corporate negligence arises from the policies, actions[,] or inaction of the institution itself rather than the specific acts of individual hospital employees. Thus, under this theory, a corporation is held directly liable, as opposed to *14 vicariously liable, for its own negligent acts.” Welsh v. Bulger , 698 A.2d 581, 585 (Pa. 1997) (citations omitted and formatting altered); see also Bisher v. Lehigh Valley Health Network, Inc. , 265 A.3d 383, 415 n.18 (Pa. 2021) (noting that a claim that a hospital did not have proper protocols in place “implicates the type of systemic negligence that is the hallmark of a corporate negligence claim”). Additionally, “unless a hospital’s negligence is obvious, a plaintiff must produce expert testimony to establish that the hospital deviated from an accepted standard of care and that the deviation was a substantial factor in causing the harm to the plaintiff.” Welsh , 698 A.2d at 585.
This Court has explained that
[we] refused to excuse a plaintiff from filing a certificate of merit merely because the plaintiff “fails to expressly indicate in its complaint that it is asserting a professional liability claim, . . . when, in substance, the plaintiff is actually asserting a professional liability claim.” Varner v. Classic Communities Corp. , 890 A.2d 1068, 1074 (Pa. Super. 2006) (emphasis in original). “[I]t is the substance of the complaint rather than its form which controls whether the claim against a professionally licensed defendant sounds in . . . professional malpractice.” Id. . . . . To ascertain the plaintiff’s theory of liability, courts must examine the averments in the complaint.
Sabella v. Estate of Milides , 992 A.2d 180, 187 (Pa. Super. 2010) (some citations omitted and some formatting altered); see also Ditch , 917 A.2d 321-22 (explaining that “[i]n order to determine what theory of liability [the plaintiff] is asserting, this Court must examine the averments [the plaintiff] makes in [the amended] complaint[,]” and concluding that, after viewing *15 allegations of the amended complaint as a whole, the plaintiff raised a professional liability claim (citations omitted)).
In his Rule 1925(a) opinion, Judge Anders explained: Here, the trial court properly granted [Appellees’] motion to amend and found [Appellant’s] amended complaint raised medical malpractice negligence claims because (1) [Appellant’s] claims occurred within the course of his relationship with medical professionals, Dr. Ryan Taylor, D.O. and Dr. Julia Finkel, D.O. while in the emergency room and (2) the claims raise questions of medical judgment beyond the realm of common knowledge and experience such as whether [Appellant’s] injuries required MRI or a referral to a neurology or neurosurgery specialist. Thus, the court properly found [Appellant’s] amended complaint raised medical malpractice negligence claims.
Judge Anders’ Op., 3/18/24, at 2-3.
Based on our review of the record, we agree with Judge Anders’ conclusions and discern no error of law. See Ditch , 917 A.2d at 321; see also Gray , 53 A.3d at 834.
As stated above, this Court reviews the allegations in Appellant’s amended complaint as a whole to determine the theory of liability he has raised and it is the substance of the complaint, not the form that controls our determination. See Ditch , 917 A.2d at 321-22; See also Sabella , 992 A.2d at 187. Here, Appellant alleged in his amended complaint that Dr. Finkel and Dr. Taylor “failed to provide any appropriate medical screening examination, referral to qualified specialists, treatment, stabilization, [or] diagnosis” for Appellant’s injuries and denied Appellant’s request for an MRI scan of his head to check for brain injuries. R.R. at 43a-45a. Appellant further asserted that *16 “[n]ot a single educational manual ever provided that an emergency room treatment and examination of severely injured patients with visible face and head injuries, and with multiple injuries to other body parts can be accomplished by spending 1-2 minutes on asking several basic questions without examining anything.” Id. at 42a-43a. Appellant also alleged that Hospital Appellees failed to exercise reasonable care in the management of the emergency department and in the hiring, supervision, and training of their staff. See id. at 41a-42a, 51a-53a, 72a, 74a. Lastly, Appellant contended that “[e]ven a person without any form of education would realize that it is not the correct treatment, examination, or diagnostic procedure that can be used in any emergency department operating at present modern time.” Id. at 43a (some formatting altered).
It is clear from the allegations in the amended complaint that Appellant’s claims pertain to actions and omissions which occurred within the course of a professional relationship, i.e. , doctor and patient. See Ditch , 917 A.2d at 321-22. Further, although Appellant characterizes his claim as arising from Appellees’ alleged failure to treat Appellant, such a claim sounds in medical malpractice. See, e.g. , Nicolaou , 195 A.3d at 882-85; Zieber , 773 A.2d at 759-60. Notwithstanding Appellant’s assertion that a layperson could recognize that Appellees failed to utilize the correct diagnostic procedure and provide him with the proper treatment, we agree with Judge Anders that Appellant’s claim raises questions of medical judgment beyond the realm of common knowledge and experience. See Ditch , 917 A.2d at 321-22; see *17 also Sabella , 992 A.2d at 187. For these reasons, we conclude that the allegations in Appellant’s complaint raise a claim of medical malpractice. See Ditch , 917 A.2d at 321-22.
Lastly, Appellant’s reliance on Caterpillar and The Fair is misplaced. In both of those cases, the Supreme Court of the United States explained that a plaintiff may choose whether or not to include a claim under federal law in his or her complaint and that, in the absence of diversity of citizenship, federal courts may only exercise jurisdiction over a matter if the complaint presents a federal question. See Caterpillar , 482 U.S. at 392; The Fair , 228 U.S. at 25. Neither case stands for the proposition that a court cannot treat a claim for ordinary negligence and/or an intentional tort as a claim for medical malpractice where the allegations of the complaint have all of hallmarks of medical malpractice. Ditch , 917 A.2d at 321-22 (explaining that it is the substance, not the form of the complaint that controls).
For these reasons, we discern no error of law in Judge Anders’ order designating this matter as a medical malpractice action. See Ditch , 917 A.2d at 321; see also Gray , 53 A.3d at 834. Accordingly, Appellant is not entitled to relief on this claim. We further note that Rule of Civil Procedure 1023.1 provides that the
signature of an attorney or pro se party constitutes a certification that the signer, to the best of that person’s knowledge, information and belief, is not presenting a pleading, motion or other paper “for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation[.]” Pa.R.C.P. 1023.1(c)(1). A trial court may subject a party to (Footnote Continued Next Page)
Striking Appellant’s Certificates of Merit
In his remaining claim, Appellant argues that the trial court abused its discretion by entering the April 17, 2023 and November 16, 2023 orders, which granted Appellees’ motions to strike his certificates of liability and dismissed this action. Appellant’s Brief at 36-58.
Before addressing the merits of Appellant’s issues, we must determine whether he has preserved them for appeal. This Court may raise the issue of waiver sua sponte . See Tucker v. R.M. Tours , 939 A.2d 343, 346 (Pa. Super. 2007). “The issue of waiver presents a question of law, and, as such, our standard of review is de novo and our scope of review is plenary.” Trigg v. Children’s Hosp. of Pittsburgh of UPMC , 229 A.3d 260, 269 (Pa. 2020) (citation omitted).
Rule of Civil Procedure 3051 provides that a party must seek relief from a judgment of non pros by filing a petition to open or strike the judgment. See Pa.R.C.P. 3051(a) (stating that “[r]elief from a judgment of non pros shall be sought by petition” (some formatting altered)).
This Court has stated that “Rule 3051, however, mandates that the plaintiff file a petition to open before appealing, even when the trial court held sanctions for violations of Rule 1023.1(c). See Pa.R.C.P. 1023.1(d). As stated above, Appellant asserts that he only included Count II of the amended complaint with the intention of it being dismissed as part of his litigation strategy. Appellant’s Brief at 44. Although the trial court did not impose sanctions upon Appellant, we strongly condemn Appellant’s inclusion of a count in his amended complaint for the express purpose of being stricken upon a motion by Appellees because that causes unnecessary delay and/or needless increase in the cost of litigation.
a hearing before entering judgment of non pros .” Cardona v. Buchanan , 230 A.3d 476, 478 (Pa. Super. 2020). Further, the Cardona Court explained that because “petitions to open judgments of non pros are mandatory, any appeal related to a judgment of non pros lies not from the judgment itself, but from the denial of a petition to open or strike.” Id. at 479 (citations omitted and formatting altered).
Our Supreme Court has held that the failure to file a petition to open a judgment of non pros as required by Rule 3051 waives all claims related to entry of the judgment of non pros . See Sahutsky v. H.H. Knoebel Sons , 782 A.2d 996, 1001 (Pa. 2001); see also id. at 1001 n.3 (noting that quashal is not appropriate when a party appeals from a judgment of non pros without filing a Rule 3051 petition to open and reiterating that “the proper consequence of the failure to file a Rule 3051 petition is a waiver of the substantive claims that would be raised”); Cardona , 230 A.3d at 480 (holding that the plaintiff waived her sole issue on appeal because the plaintiff failed to file a petition to open the judgment of non pros before filing a notice of appeal).
Here, the trial court entered a judgment of non pros after granting Appellees’ motion to strike Appellant’s amended certificates of merit. Appellant did not file a petition to open the judgment of non pros prior to filing his notices of appeal. Therefore, Appellant has waived his issues related to the April 17, 2023 order striking his certificates of merit and the November 16, 2023 order striking Appellant’s amended certificates of merit and entering *20 the judgment of non pros . 15 See Sahutsky , 782 A.2d 1001 & n.3; Cardona , 230 A.3d at 480.
For these reasons, we conclude that Appellant is not entitled to relief and accordingly, we affirm. 16
Order affirmed. Jurisdiction relinquished.
Date: 5/21/2025
Even if Appellant’s issues were not waived, we would affirm on the basis of
Judge Carpenter’s Rule 1925(a) opinion. Judge Carpenter’s Op., 3/15/24, at 4-7 (unpaginated). The parties are directed to attach a copy of Judge Erdos’ opinion and Judge
Carpenter’s opinion in the event of further proceedings.