*1 A.2d 269 Appellee, Pennsylvania, COMMONWEALTH v. STECKEL, Appellant. Frank MAP 2006. No. 92 Pennsylvania. Supreme Court Sept. 2006. ORDER PER CURIAM. 2006, the Motion to NOW, September, day this 18th
AND Pa.R.A.P.1972(a)(4) is Pursuant for Mootness Appeal Quash granted.
908A.2d WOMER, Appellee, Garth v. HILLIKER, M.D., Appellant. Jan K. Pennsylvania. Supreme Court of Argued Dec. 2005. Oct. Decided *4 Wishard, Mitchell, Mitchell, R. Darryl Esq., Gallagher, Weber, P.C., Wishard, Williamsport, Southard & for Dr. Jan Hilliker, M.D. Wolf, Hoffman, Esq.,
Robert B. Block Schorr Solis- Cohen, L.L.P., for Harrisburg, Pennsylvania amicus curiae Medical Society. Bonner, Bonner, R. Esq.,
John Casale & P.C. for Garth Womer. Harrison,
David C. curiae Esq., Philadelphia, amicus Trial Pennsylvania Lawyers Association. CAPPY, C.J., CASTILLE, NEWMAN,
BEFORE: SAYLOR, BAER, EAKIN and JJ.
OPINION Chief Justice CAPPY. 1042.3,
This concerns appeal requires (“COM”) that a certificate of merit be filed in any professional liability action which it is that a licensed alleged profession- al acceptable deviated from the standard of care. Presently, consider whether the correctly reversed (“Wom- the trial court’s denying Appellee order Garth Womer er”) relief from the judgment of non entered him due to his against failure to file a COM. For all of the follow, reasons that the order of the Superior Court is re- versed.
The relevant facts and are procedural history straightfor- 25, 2003, ward. On June Womer commenced a civil action (“Hilliker”) Plilliker, against Appellant Jan K. M.D. by filing a praecipe for issuance of a of summons. August writ On filed a complaint against Womer two-count Hilliker for and lack of negligence informed consent. his complaint, alleged that Hilliker is a practicing opthomologist engaged perform whose services were corrective on surgery eyes; performed Womer’s that Hilliker on surgery June 2001; risks, that Hilliker failed to warn Womer of the use the *5 the and treat the proper procedure, proper precautions, take and that as a result of Hilliker’s surgery’s complications; limitations, actions, suffers from visual permanent Womer him variety which have caused to sustain losses. Womer did not file a his nor did he file COM complaint COM with sixty days filing, required within of its as is under Pa.R.C.P. 1042.3(a). addition, In not file a motion to Womer did COM, extend the time for the of a as is allowed under filing 1042.3(d).1 Pa.R.C.P. No. 20, 2003, October Hilliker filed a for Praecipe Entry
On of Non for Judgment Pros Pursuant to Pa.R.C.P. No. 1042.6 failure to file a COM.2 On that same day, Prothonotary entered a in Hilliker’s favor. provides part:
1. Rule 1042.3 in relevant Rule 1042.3. Certificate of Merit (a) any upon allegation profession- action based an licensed standard, acceptable professional attorney al deviated from an for plaintiff, plaintiff represented, or the if shall file with complaint sixty days filing complaint, within or after the of the signed by attorney party certificate of merit (1) that ... appropriate professional supplied licensed has a written state- care, probability ment that there exists a reasonable that the skill or treatment, knowledge practice exercised or exhibited in the or work subject complaint, acceptable profession- that is the of the fell outside bringing al standards and that such conduct was a cause in about the harm.... (d) court, shown, upon good filing The cause shall extend the time for period sixty days. a certificate of merit for a not to exceed The filing motion to extend the time a certificate of merit must be filed filing plaintiff on or before the date that the The seeks to extend. period of a motion to extend tolls the time within which a upon certificate merit must be filed until the court rules motion. 1042.3(a)(1),(d). Pa.R.C.P. No. pertinent part: 2. Pa.R.C.P. No. 1042.6 states in Entry Judgment Rule 1042.6. of Non Pros for Failure to File Certification (a) defendant, prothonotaiy, praecipe on shall enter a pros against plaintiff for failure to file a certifi- required provided cate of merit within the time that there is no pending timely seeking filed motion to extend the time to file the certificate. Pa.R.C.P. No. 1042.6. 22, 2003, a Motion to Open Judg- Womer filed On October Filing of a Certificate Nunc ment of Non Pros and Allow (“Motion”). Motion, relief sought In the Pro Tunc an expert report that he served judgment, alleging from *6 Hilliker 1042.3’s time before Pa.R.C.P. No. discovery on to Hilliker provided that the information he expired; limit that No. 1042.3 included all of the information due to required that his failure to file COM was requires; mistake; that he not notified of his counsel’s was oversight pros; that judgment Hilliker’s intent to secure Hilliker by granting prejudiced would not Motion; No. 1042.3 had been that the of Pa.R.C.P. purpose served; took promptly steps he that he a meritori- learning entry; possessed of its upon included case. of the exhibits attached to Motion ous One Dr. Hillard the curriculum vitae of an Keith S. optometrist, (“Hillard”), that Hillard authored. report (“Report”) and a on Report described Hillard’s consultation with Womer In the Report, Womer’s visual status. regarding June not a candidate for the opined good Hillard that Womer was used; that Hilliker that due particular surgical procedure size, exposed higher he was myopia pupil Womer’s others; following surgery, harm than are and that risk of promptly. a manageable complication Hilliker did not treat to the Motion a COM as to Another exhibit attached Hilliker dated 2003. October An- Matter included Hilliker’s response New Motion,3 alleged further that if relief from swer to the 1042.6 is secured under Pa.R.C.P. No. 3051(b)(2)’s 3051,4 No. then Rule re- by Pa.R.C.P. governed Matter, alleged In New Hilliker if Womer relied on a written COM, the COM would be insufficient statement from Hillard to file a optometrist "appropri- because an is not an under Pa.R.C.P. No. 1042.3 1041.2(b)(1) professional” ate licensed under Pa.R.C.P. No. who is 1042.3(a)(1) supply the statement that Pa.R.C.P. No. authorized requires concerning ophthalmologist, like Hillik- the treatment er, provides. questions us in this and our Given the before case them, we do not address this issue. resolution provides: 4. Pa.R.C.P. No. 3051 Judgment Non
Rule 3051. Relief from Pros quirement that he provide explanation reasonable for his inactivity was satisfied inasmuch as he was under the belief providing Report to Hilliker met the requirements alternative, Pa.R.C.P. No. 1042.3. In the Womer contended 237.1, that Pa.R.C.P. No. Pa.R.C.P. No. applies to the opening of such a judgment. Referring to Pa.R.Civ.P. 126,5 Womer also alleged that a trial court’s strict adher- ence to Rule 1042.3 his case would undermine this Court’s Rule, intent in adopting the which was to eliminate the filing of non-meritorious professional liability actions and that the entry pros, put which would him permanently out of court for a technical violation of Rule 1042.3, was too drastic a in light result of his substantial compliance.
The trial court denied Womer’s Motion. The trial court rejected first argument Womer’s that the discovery materials he served on Hilliker complied with the terms of Pa.R.C.P. *7 1042.3, No. concluding that such an argument contradicted the Next, plain language. rule’s the trial court determined that Womer was incorrect that his Motion should be evaluated No.237.1, under Pa.R.C.P. and held Womer’s entitlement to relief from judgment the of pros non was to be assessed under Pa.R.C.P. No. 3051. The trial court then considered whether Womer’s belief that his discovery responses satisfied (a) judgment Relief from pros sought by of non petition. shall be relief, grounds it, All judgment for whether to strike off the or to single petition. must be asserted in a (b) sought If opening the relief judgment, includes the of the the
petition allege showing shall facts (1) filed, petition timely the (2) explanation legitimate there is a reasonable or excuse for the inactivity delay, or and (3) there is a meritorious cause of action. Pa.R.C.P. No. 3051.
5. Pa.R.C.P. No. 126 states: Rule 126. Application Liberal Construction and of Rules liberally The rules shall be just, speedy construed secure the and inexpensive every proceeding determination of action to which they applicable. are every stage The court any at such action or proceeding may disregard any procedure error or defect of does rights parties. not affect the substantial
Pa.R.C.P. No. 126. a reasonable provided explanation Rule requirements 1042.3’s 3051(b)(2) COM, file for failure to and under Rule his re- belief insufficient. In this concluded that Womer’s was discovery responses, court was the view that gard, trial record, neither for information substituted particularly explained why neglected a Rule 1042.3 nor Womer COM 1042.3(d) time under Pa.R.C.P. No. request extension Finally, the trial court deter- which to secure COM. within Pa.R.C.P. No. 126 should mined assertions that Womer’s 126’s in him since Rule inappropriate application excuse were the terms effectively nullify would present circumstances trial entered 1042.3. court Accordingly, of Pa.R.C.P. No. 3, 2003, denying December Womer’s Motion an order dated judgment pros be requesting opened, filed by he thereafter denied Motion Reconsideration 15, 2003.6 order dated December Court, In the timely appeal. Superior filed a Wom- argument governed er his that Pa.R.C.P. 237.1 abandoned from request judgment pros, his for relief his from the under entitlement relief argued the same in 3051. Womer made all assertions Pa.R.C.P. No. of Motion Court that he made support Superior his court, arguments the trial and added his his that the should by stating Court brief newly promulgat- because Pa.R.C.P. No. 1042.3was opened his and the of limitations had run on cause of action ed statute entered. as of date the Pa. In an opinion, applied unpublished Motion, and concluded that R.C.P. No. 3051 Womer’s 3051(b)(1) (3), by acting promptly Rule Womer satisfied *8 file, of and No. having a cause action Pa.R.C.P. 3051(b)(2), his lack explanation reasonable for by providing latter, As to the Pa.R.C.P. No. 1042.3. the compliance with on contention that he did not Superior Court focused Womer’s actually The trial determined because a was court also Womer, against question it would reach the as to whether entered not requested COM as Hilliker that Womer could have leave to file the resolution, there pro Motion nunc tunc. Due to our attached to the regard. decide in this is no issue for us to the Hilliker by giving he believed file a because COM 1043.2, No. substantially with Pa.R.C.P. complied he Report due to wholly “not unreasonable” belief and found Womer’s on The Court stated: Superior lack case law the issue. the a legiti- instant given the circumstances conclude [W]e Rule 1042.3 comply mate for the failure with excuse at the time includes the lack decisional law exists. This lawsuit; defendant plaintiff supplied the fact that of the i.e., requires, copy than Rule 1042.3 more information with he has such a instead of a certification that report of the is out court [plaintiff] appellant the fact that report; and if the non is affirmed. pros on his claim Rule allows for a generous period It is 1042.3 true provides of a and that the rule before the certificate sixty pursuant day period for unlimited extensions case, However, in the context of it was timely requests. litigant for a to have concluded that wholly not unreasonable of an report represented this substantial expert transmittal Rule 1042.3. compliance with 5.) Opinion at (Superior Court Memorandum though disagree also observed that even it did Court interpretation a literal opinion espousing the trial court’s 1042.3, court’s disagreed Pa.R.C.P. No. it with the trial result the Superior reasons. The reasons Court listed several equitable were: statute of principles; without discussion limitations; 1042.3; the recent of Rule promulgation regarding of decisions of sub- sparseness permissibility COM; stantial as a substitute for a compliance Accordingly, existence of Pa.R.C.P. No. 126. the trial court’s order and remanded the case reversed remand, court. On the trial court was obtain trial by stipulation of facts evidence or that Womer
proof supplied and, shown, to Hilliker if to enter an order Report objection vacating consider qualifications to Hillard’s under that Hilliker raised 1042.3(a)(1) supply No. 1042.1 to the statement Pa.R.C.P. n. 3. requires. supra See
266
Hilliker
Petition for
of Appeal.
filed a
Allowance
This
review,
granted
Court
limited to whether
erred in
sufficient
concluding
alleged
facts to
pros,
warrant the
opening
and directed
No.
parties to address whether Pa.R.C.P.
1042.3
be
should
Hilliker,
subject
equitable
deemed
Womer v.
exceptions.
(2005)
curiam).
582 Pa.
(per
A.2d
By way of
background,
begin
we
circumstances of
Pa.R.C.P. No.
No.
adoption.
1042.3’s
Pa.R.C.P.
1042.3 is one
in a series of
in a
“govern procedure
rules
civil action in
a professional liability
against
claim is asserted
a li-
1042.1(a).
professional.”
censed
Pa.R.C.P. No.
See Pa.R.C.P.
Nos.
We
rules in
adopted
1042.1-1042.8.
these
January
having
malpractice
determined
actions
being
were
Pennsylvania
commenced in the
more frequently.
courts
We
were concerned that this trend
to an
would lead
increase in
merit,
filing malpractice claims of questionable
sought
avoid the burdens that such claims impose upon
litigants
Therefore,
and the courts.
exercised our rule-
we
making
to devise an
authority
orderly procedure that would
to identify
malpractice
serve
and weed non-meritorious
claims
from the judicial
pa
efficiently
system
promptly.
See
art.V,
10(c);
§
§
The procedure
Pa.C.S.
const.
provided in the professional liability action rules centers on
the filing
hand,
of a
On the one
the presence
COM.
in the
record of a
signals
parties
COM
and the trial court that
plaintiff willing
is
to attest to
the basis
his malpractice
claim;
position
that he
to support
allegations
is
he has
action;
made in
professional liability
his
and that resources
will
if additional
pleading
discovery
wasted
take
1042.4,
place.
No.
See Pa.R.C.P.
No. 1042.5.7
On
hand,
the other
the absence from the record of a
signals
COM
trial
parties and the
court that none of this is so and
1042.4,
against
7. Under
professional
Pa.R.C.P. No.
a defendant
whom a
liability
responsive pleading
action
is to file
is asserted
within the time
required
twenty days
under Pa.R.C.P. No. 1026 or within
after the COM
served,
1042.5, only
whichever is later. Under Pa.R.C.P. No.
limited
discovery is
without
leave of
allowed
court before
COM is filed.
action, except for
in the
transpire
should
nothing further
1042.6.
No.
See Pa.R.C.P.
termination.
the lawsuit’s
focus is on Pa.R.C.P.
our
appeal,
primary
In this
We
exceptions.
subject
equitable
it is
1042.3 and whether
*10
forth no
1042.3 itself sets
the Pa.R.C.P. No.
observe that
first
n.
otherwise,
supra
terms. See
to its
exceptions, equitable
focus,
did the lower courts
Therefore,
as
regard,
in this
we
No.126, and consider whether
on Pa.R.C.P.
parties,
any
Rule 126 to play
allowed
Court should have
Rule 1042.3 COM.8
failure to file a
in
Womers’
part
excusing
of
Procedure
that our Rules
Civil
It is self-evident
and efficient func
orderly
to the
administration
are essential
expect
litigants
Accordingly,
of the courts.
we
tioning
written,
as
are
and take
they
adhere to
rules
procedural
will
Garrett,
v.
flout them. See Wood
litigants
dim
who
view
(1946).
said,
631,
321,
46 A.2d
323
That
we have
353 Pa.
are not ends in
rules
always
procedural
understood
themselves,
of our rules does not
rigid application
and that the
justice. Pomerantz
the interests of fairness and
always serve
(1978).
Goldstein,
1280,
175,
1281
It is for
v.
Pa.
387 A.2d
479
126,
adopted
provides
this reason that
Rule
which
we
every stage
any
at
such
pertinent part
court
“[t]he
any error or defect of
proceeding may disregard
action or
rights
not affect the substantial
procedure which does
parties.”
language,
incorpo
Pa.R.C.P. No. 126. With this
we
in the form of a doctrine of
equitable
rated
considerations
126,
into Rule
the trial courts
compliance
giving
substantial
that does not
any “procedural
the latitude to overlook
defect”
Sons,
Sahutsky
v. H.H. Knoebel
prejudice
party’s rights.
(2001)
593,
996,
Kurtas v.
(quoting
566 Pa.
782 A.2d
1001
(1989)
Kurtas,
804,
(emphasis
521 Pa.
555 A.2d
Pomerantz,
Thus,
As of the substantial doctrine compliance that is reflected in Pa.R.C.P. No. two of our cases are Pomerantz, instructive. we determined that the error the 1038(d) defendant committed under former Pa.R.C.P. No. the sort of defect that could be under procedural overlooked trial, Rule 126. Following non-jury adverse decision in a the defendant filed “Defendant’s Motions for Trial” even New *11 1038(d) though Pa.R.C.P. No. stated that twenty days within after notice of the of the trial filing “excep court’s decision specific objection tions” that “set forth a and precisely without objections discussion” be filed to on rulings any were or to Pomerantz, during other matters that occurred trial. A.2d at 1280. The filed a plaintiffs motion to dismiss the 1038(d) motion, asserting defendant’s that former Rule did not trial, permit the of a motion for a but only new instead to permitted party file to the trial court’s deci exceptions sion. In the defendant countered that response, but for the pleading, title on his he the former complied with rule. The dismiss, trial court the granted plaintiffs’ motion to and the Superior Court affirmed the judgment.
We, however, Court, reversed the order of the Superior order, trial vacated the court’s and remanded the case to the trial court to consider the defendant’s motion as properly-filed exceptions and to enter a final disposition thereon. Id. at 1282. We that the pleading observed defendant’s filed in was fashion; a timely objections the it contained were set just forth as the rule required; had the been pleading titled, properly merits, it would been disposed have on the erroneous Id. at 1281. upon caption. rather than the decision, it our policy our we stated was reaching party errors when a had substantial- procedural overlook such prejudice the of a rule and no ly complied requirements with result, of our authority would and cited Rule as source errors that do not affect substantial disregard procedural rights. Id. at 1282. contrast,
By Sahutsky, plaintiffs’ determined that the any comply failure to take with the terms of Pa.R.C.P. steps No.3051 not the sort of default that Pa.R.C.P. No. 126 was meant to cover. In Sahutsky, plaintiffs neglected when action, pursue their the defendant filed a motion for a judg- granted ment of non The trial court the defendant’s pros. motion, of non entering pros dismissing plaintiffs’ complaint prejudice. plaintiffs did not file a petition open under pros Pa.R.C.P. rather, No. 3051. appeal but filed a direct from the judgment in the Superior Court. On the defendant appeal, argued that Rule 3051’s clear language required plaintiffs to file a court, petition to in the trial and that their failure to file such a petition appeal, operating was fatal to their as a waiver cases, they issues raised. Based on its prior rejected argument, reasoning defendant’s order, that the trial court’s included a judgment dismissal, directly could be considered final and appealable. Accordingly, Court reversed the trial court’s order, and remanded to the trial court for reconsideration of the judgment it entered.
This
the Superior
Court reversed
Court. We concluded
that the terms of
clearly
directed that a
*12
court,
petition
initially
to
be filed
with the trial
and that
plaintiffs’ failure to do so
as a
operated
any
waiver
concerning
claims
error
of non pros entered
by the trial court.
Turning Pa.R.C.P. file a action, Hilliker that since Womer did not argues stant defective, COM, trial court correctly one that even was party’s non-compli that this a situation of a determined therefore, No. 126 should not be ance and that Pa.R.C.P. Report gave that since the he considered. Womer counters a Hilliker forth the information that COM would have set purpose fulfilled No. 1043’s show provided and claim, a meritorious he demonstrated substantial that he had that the overlooked properly such compliance, No. given his failure to file a COM under Pa.R.C.P. equities presented.9 he view, one, is the correct since position
In our Hilliker’s 1042.3. no with Pa.R.C.P. No. steps comply Womer took that in clear and in its mandate unambiguous Rule 1042.3 is specific representation action a every professional liability in the official record in about the claim must filed plaintiffs of merit” at the time the a document called a “certificate thereafter. Pa.R.C.P. complaint sixty days is filed within 1042.3(a). 1042.8 that “the certifi- provides No. Pa.R.C.P. No. 1042.3(a) substantially cate Rule shall be required filing by ....,” sample and following displays in the form COM Moreover, Pa. requires. shows what Rule 1042.3 precisely 1042.3(d), filing granting allows for the R.C.P. a motion to extend the time for good cause shown of upon COM, that a only step plaintiff sets forth the one unable to is to take if he finds himself secure COM satisfying of not Rule consequences desires to avoid the 1042.3(a)’s fashion. timely Wom- filing requirement COM noted, Report we do not address whether set forth 9. As provided. supra have See information that a Rule 1042.3 COM would resolution, Likewise, position Womer’s given we take no as to n. 3. our purpose. Report fulfilled Pa.R.C.P. No. 1042.3’s contention that
271 er, however, Rather, of nothing did the sort. he served discovery Hilliker, materials on expert which included an view, report. In our this procedural was no misstep within meaning instead, 126. Pa.R.C.P.No. It was a wholesale failure to take any the actions that one of our rules requires, of the type we have heretofore refused to overlook under Rule 126. Sahutsky, See 782 at A.2d
In contending that even though he made no effort to
follow Pa.R.C.P. No. 1042.3’s requirements, Rule 126 can
apply
his circumstances because he fulfilled Rule 1042.3’s
purpose,
essentially
Womer is
arguing that
the doctrine of
substantial
compliance
Rule 126
only
a party
excuses
who commits a procedural
misstep
attempting to
do
instructs,
which a rule
but also
a party
excuses
who does
nothing that a rule requires, but whose
are
actions
consistent
objectives
he
the rule
believes
serves. This
simply
is
not so.
equitable
doctrine
incorporated
into Rule 126
is one of
compliance,
substantial
not one of no compliance.
We reiterate what our case
has taught:
law
Rule 126 is
available to a party who makes a substantial
attempt
conform, and not to a party
disregards
who
the terms of a rule
in their entirety and determines for himself the steps he can
take to
satisfy
procedure that
adopted
we have
to enhance
functioning
the trial courts. See Sahutsky,
This does not who, that a plaintiff like Womer, fails to file a Rule 1042.3 COM against whom disapprove any 10. We decision to the extent that it holds that a plaintiff substantially complied with by providing Pa.R.C.P. No. 1042.3 expert report to a defendant or may that Pa.R.C.P. No. 126 See, applied in e.g., such Neuburger, circumstances. Harris v. 877 A.2d (Pa.Super.2005). entered, no avenue 1042.6 has Rule No.3051, his action. Under by which save grant relief from allows trial court has the demonstrate opportunity such pros, plaintiff *14 excused. Pa.R.C.P. No. 1042.3 should be his failure to follow an Pa.R.C.P. No. 3051 is appeal In that the nature of under grace of and not of Pa.R.C.P. right, and is a matter equitable, then, another which No. yet by 3051 is means Pa.R.C.P. No. Mazer v. equitable is considerations. See subject 1042.3 (1962). Co., 169, 63, 407 180 A.2d 65 Sargent Electric Pa. has been that a point, At this observe that it held we may judgment pros opened not be Pa.R.C.P. No. 1042.6 Davila, v. Pa. D. & No. 3051. See Hoover 64 under Pa.R.C.P. (Lawrence 2003), 862 County on other grounds, 449 C.4th aff'd of 1042.6 language A.2d 591 Rules (Pa.Super.Ct.2004). addition, 3051, however, holding. not this In support do Comments, Explanatory the rules’ Notes and respective construction, Pa. show See consult in rule otherwise. we 127(e) (“A note or explanatory No. to a rule R.C.P. may construing is but be in part comment not rule used rule.”). that 1042.6 states the The Note Pa.R.C.P. No. follows of apply judgment that “Rule 237.1 does not specifically 1042.6 this rule.” Pa.R.C.P. No. pros non entered under (Note). the not also that Pa. Significantly, Note does state Further, inapplicable. Explanatory No. 3051 is the R.C.P. appli No. clarifies that the rule’s Pa.R.C.P. 3051 Comment universal, stating is that rule a uniform adopts cation “[t]he in in will all cases which procedure apply [and] relief from is whether has pros sought, judgment non of by following as or the court right been entered by praecipe of Comment) (1991 No. hearing.” Explanatory Pa.R.C.P. 3051 added). Therefore, that a No. hold Pa.R.C.P. (emphasis we 3051 pros subject to Pa.R.C.P. No. 1042.6 decision, Hoover, like that any petition, disapprove the contrary. holds to merits of the Court’s decision Superior
As to the refusing that the trial court erred under entered in Hilliker’s favor Pa.R.C.P. applies 3051,11 of review begin with standard that a ruling It trial matter. is well-settled such a on appeal 3051 is under Pa.R.C.P. No. reviewed court makes Co., Harleysville Ins. Sklar v. for an abuse discretion. (1991). that the trial This means Pa. 587 A.2d if only reflects manifest will be overturned court’s decision unreasonableness, bias, ill-will, or or partiality, prejudice, v. Grady erroneous. See support clearly such as to lack (2003). Inc., 1038, 1046 Pa. 839 A.2d Frito-Lay case, instant Court determined No. 1042.3 recent given relatively adoption law, the trial court abused resulting lack of decisional excuse rejecting as reasonable the Womer its discretion a COM—his No. 3051 for gave under Pa.R.C.P. he substantially he did not need do so since belief that Hilliker the by giving Pa.R.C.P. No. 1042.3 complied with Presently, Report. argues *15 honestly because his belief was held and the upheld should be trial it. Hilliker that it is the court equities demand counters it not abuse its discretion in upheld that should be because did No. application its Pa.R.C.P. 3051. too, that Hilliker is correct. The fact
Here we conclude Womer’s upon legitimize Court relied adopted Pa.R.C.P. 1042.3 was not until position—that The that demon- principle of 2003—is irrelevant. January determination, the correctness of the trial court’s strates is, a doctrine of substantial that Pa.R.C.P. No. reflects non-compliance, not excuse a see compliance party’s does 9-12, or when his supra was not new novel Womer filed pp. Further, in 2003. this complaint August principle fully was time, our for available in case law Womer consult at as course, 1042.3, was, which sets forth Pa.R.C.P. No. its requirements unambiguously clearly. Accordingly, we concluding have no hesitation in that the trial court acted well disputed prongs It is not satisfied one three present hinges upon requirements. No. 305 Pa.RX.P. 1’s case prong explana second or not there a reasonable rule's —whether legitimate tion default Pa.R.C.P. excuse Womer's under 1042.3. 3051; supra See n. 4. Pa.R.C.P. its in finding within discretion that Womer did not provide reasonable excuse under No. 3051 for not Indeed, COM. light foregoing, we conclude that it therefore, would be manifestly unreasonable and an abuse of discretion, see 839 A.2d Grady, at for a trial court to conclude that a plaintiff circumstances, Womer’s making the arguments, same presents reasonable explanation or legiti- mate excuse for his failure to Therefore, file a COM.12 hold Court erred in reversing the trial court’s order denying Womer’s Motion. reasons,
For all of these the order of the Superior Court is Further, reversed. this matter is remanded to the Superior Court to remand it to the trial court with instructions to reinstate the order denying Womer’s Motion.
Justice NEWMAN and Justice join SAYLOR and EAKIN in this opinion.
Former Justice NIGRO did not participate consideration or decision of this matter.
Justice BAER files a dissenting opinion in which Justice joins. CASTILLE BAER,
Justice dissenting. I that in believe the circumstances of this case plaintiff, Womer, Garth substantially complied certificate of (COM) merit requirement, and that the Superior prop- erly held that the trial court abused its by discretion refusing judgment of non pros entered for the defendant Thus, Jan Hilliker. I respectfully dissent.
Pa.R.C.P.
requires
1042.3
that a
in
plaintiff
a medical mal-
practice action
a
file COM
the complaint
or
sixty
within
days thereafter attesting that “an appropriate licensed profes-
sional
supplied
has
a written statement
that there exists a
reasonable probability that the
service
[medical
described]
the complaint fell
acceptable
outside
professional standards
disapprove
any
12. We
decision to the extent that it sets forth such a
See, e.g.,
Neuburger,
conclusion.
Harris v.
disagree complaint malpractice case. Womer filed medical of this 2003. Pursuant August Hilliker on against 17, 2003, to file either a 1042.3, until Friday, he had October this time for an extension of time. Within request or COM 8, 2003, forward- during discovery, Womer on October period, the manner which detailing an expert report ed to Hilliker acceptable that Hilliker failed to adhere alleged in harm to resulting Womer.1 medical standards professional ophthalmologist whereas the licensed asserts that he is a Hilliker expert report optometrist, and therefore of Womer’s is an author true, may may not be may legally While this report insufficient. *17 Womer, counsel, acting through obviously believed that pro- viding Hilliker the expert report only with not met the intent of spirit requirement Pa.R.C.P. 1042.3 and its that a COM filed, but by exceeded intent and spirit furnishing just a certificate that an expert report could be but produced, the report itself. As noted the Superior opinion, Court’s the recent of promulgation provided Pa.R.C.P. 1042.3 scant guidance regarding the of the applicability doctrine of substan- tial compliance requirement, making COM these as- sumptions all the more reasonable. Under these circum- stances, I find Womer’s belief that he essentially had complied requirement by forwarding COM the actual expert report sixty days Hilliker within of filing complaint actions, reasonable explanation legitimate excuse for his open sufficient to of judgment pros non under Pa.R.C.P. 3051.
The of the timing leading events to this litigation provides justification further The equitable intervention. COM was 17, Friday, due to be filed on Monday, October On 20, 2003, the next day, October business Hilliker filed for and entry judgment obtained an of non pros pursuant 1042.6,notwithstanding that he had expert Womer’s report his office. The next day, immediately upon receiving notice of the judgment pros, Womer filed a motion to open accord with Pa.R.C.P. attaching his Accordingly, COM his motion. this is not a case where Rather, a party disregarded requirements. the rule’s not only did Womer substantially comply with COM requirement, but within hours of on notice that being put mistakenly he did rule, not meet all the technical requirements of the he moved rectify that mistake and supplied the technically missing COM.
The trial court refused to open judgment, rejecting assertion of a reasonable explanation legitimate Womer’s question report’s validity simply today. of the not before us majority opinion sufficiency dissent are this limited to the petition pros. opened, Womer's If it had certainly validity expert the trial court could have addressed report part pre-trial proceedings. as if the may only excuse. We disturb a v. trial court has committed abuse discretion. Sklar Co., (1991). 526 Pa. 587 A.2d Harleysville Ins. reaching discretion occurs “in a conclusion An abuse of where *18 misapplied, judgment law is overridden or or the exercised Parish, v. 522 manifestly Jung unreasonable.” St. Paul’s (1989). 167, 1356, 1358 I agree Pa. 560 A.2d with its Court that this is such a case. The trial court abused reasonable by rejecting explanation discretion Womer’s a legitimate filing excuse for not COM with the court within sixty days. promptly filed a COM the first upon indication that he had not complied require- COM satisfaction, ment to the court’s to expert report provided claim, Hilliker revealed a meritorious a Womer had reasonable for noncompliance excuse with Pa.R.C.P. 1042.3. Therefore, conscience, logic, as well as a polestar equity, a that the compel finding properly held that Pa.R.C.P. 1042.3 should be in liberally construed order to just secure the determination of potentially this meritorious action, 126, see and that the trial court abused its discretion in refusing open judgment. Indeed,
Case law also
this
supports
outcome.
the courts of
this
historically
Commonwealth have
been loathe to
a
put
out
litigant
of court on a potential meritorious claim for
a
missing
filing
lawyer
“While,
deadline due to
oversight.
generally speaking,
litigant
is bound by the actions or
counsel,
inactions of his
there is
for the
authority
proposition
that when a plaintiff places his case in the
of reputable
hands
counsel he
not be
will
turned out of court
if the delay
complained of
almost entirely
was
on account of
neglect
Bank,
oversight
his counsel.” Manson v. First Nat’l
366
(1951).
Pa.
Similarly,
found
timely filing complaint,
him
health
from
prevented
in denying plaintiffs
its discretion
that the trial court abused
Borough
v.
Thorn
pros.
to strike
motion
(1966).
A.2d
The dimin
420 Pa.
Clearfield,
death,
by his eventual
attorney,
health of the
followed
ished
judg
to set aside a
sufficient
considerations
equitable
were
delay
reasonably explained
ment of non
case should not be
Id.
this
complaint.
(“Appellants
the diminished health of
in court because of
day
denied their
this case
way
knowing
had no
their counsel. Appellants
not made to
and should
being diligently prosecuted
attorney”).
of their
suffer because of the health
v.
Moyer
Americana
principle,
In accordance with this
*19
(1976),
Homes, Inc.,
441,
A.2d 802
244
368
Pa.Super.
Mobile
timely
file a
answer
the failure to
the
Court excused
Superior
in
the
delay
part by
caused
to a
where the
complaint
attorney’s
the file in the
office:
misplacing of
judgment
to
a default
power
open
It is
settled that the
well
of counsel is
oversight
of mistake or
entered as a result
filed
petition
promptly
the
is
exercised where
frequently
the
is
Alex-
delay
presented.
a
excuse for
reasonable
Co.,
99, 346
Pa.Super.
237
Jesray
ander v.
Constmction
(1975).
in
the
authorizing
of the rules
purpose
A.2d 566
a
defen-
dilatory
is to
judgments
prevent
of default
entry
claim.
establishing
the
in
his
impeding
plaintiff
dant from
the
provide
plaintiff
intended to
primarily
The rules are not
the
judgment
of
without
difficulties
gaming
a means
Hertz,
v.
443
Kraynick
supra[,
from litigation.
which arise
(1971)
Distributors,
];
105,
v. Triad
Pa.
277 A.2d
Slott
(1974). Therefore,
Inc.,
Id. at
See also Nardulli
John
804-05.
(1979)
Pa.Super.
(reversing
entry
In this general addition to case law granting equitable relief where justification counsel has failed to action, with take some there is ample also law the Pennsylvania abhorring practice of entering snap judgment response a such mistake. Co., Queen Co., See Inc., Elec. Inc. v. City Supply Soltis Elec. 280 (“[W]e (1980) 354, 174, snap that Pa. A.2d note
491 421 177-78 the strongly by taken without notice are disfavored judgments Hertz, 105, 144, courts”); 277 A.2d 147 v. 443 Pa. Kraynick (1971) viewing totality the of the equities the (considering the justice opening hold that demanded circumstances to the of the morning entered at 8:39 on judgment default Mellon, 364, 623, Pa. A.2d Fox v. 438 264 twenty-first day); (“No (1970) ‘snap’ judgments, probably is happy 627 one one”); v. Ins. including the who takes Grone Northern lawyer (1957) 169, York, 452 (upholding New 388 Pa. 130 A.2d Co. of being bore the of striking judgments stigma the of that Auth., 428 Borough v. Sewer “snap”); Duryea Assocs. Reilly (1993) 460, 621, snap Pa.Super. (noting 631 A.2d disfavored); Safeguard are entered without notice judgments Inc., 512, Assocs., 258 Pa.Super. v. Energy Inv. Co. Service (1978) judgments taken (“Snap 393 A.2d without courts”). are the strongly by notice disfavored all cases. typifies 560 A.2d of these Jung, Pa. There, Rule to File days filing Praecipe after exactly Defendant for and Complaint plaintiff, praeciped upon next immediately pros. day, obtained taking judgment, plaintiff notice of of upon receiving delay by caused filed a petition open asserting court confusion and mistake. The trial secretary’s counsel’s This and the Court affirmed. petition, denied reversed, open judgment finding request is to the conscience the court directed equities entry required balancing supportive Id. at then opening thereof. 1358. We of a reviewing petition court denial opined “[a] are by present must ascertain whether there default the case posture considerations in the factual any equitable against require grant plaintiff that it to a whom which ‘day his opportunity been entered an have judgment has cause the merits. In so upon court’ and to have the decided at it acts a court of Id. doing, as conscience.” case similar to the case before Jung, remarkably us, excuse for unintentional dila- petitioner’s this Court found *21 justifiable, opened snap judgment. Not- tory conduct clear and the trend foregoing precedent all of the withstanding against on the merits and in favor trials literally decades Court, today, giant takes judgments, of default this snap day to his court is plaintiff entitled step Sadly, backward. attorney a conscientious being opportunity, denied understandable, reasonable, and, importantly, who made mistake, out of finds his client court. wholly non-prejudicial as the many I Court below well as believe principles referenced herein have followed properly courts judgments judg- modern default jurisprudence opening inconsistently these many To decide with pros. ments cases, decision herein is to including Court’s days past return to the where counsel unfortunate avoiding facing merits judgments impunity, snatched In to me that this Court case. it is inconceivable take such action. would joins dissenting opinion. this
Justice CASTILLE