IN THE COMMONWEALTH COURT OF PENNSYLVANIA Carl Whitehead, : Appellant : : No. 1075 C.D. 2014 v. : : Submitted: November 14, 2014 Commonwealth of Pennsylvania : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: January 21, 2015 Carl Whitehead (Whitehead) appeals, pro se, from the June 24, 2013 order of the Court of Common Pleas of Somerset County (trial court), granting the preliminary objections of the Commonwealth of Pennsylvania and dismissing his complaint with prejudice. We reverse and remand for further proceedings. In February 2013, Whitehead, an inmate at the State Correctional Institution at Somerset (SCI-Somerset), filed a complaint sounding in dental malpractice, listing the Commonwealth of Pennsylvania (Commonwealth) as a party defendant in the caption. 1 In this complaint, Whitehead alleged that between April 2007 and April 2009, a John Doe dentist, acting as an agent or employee of the 1 As the Commonwealth concedes in its brief, although the Department of Corrections was not named in the caption of the complaint, the body of complaint sufficiently identifies the Department of Corrections as the intended defendant. (Commonwealth s brief at 4, n.1).
Department of Corrections, extracted his tooth and left bone fragments in his gums. Whitehead averred that he experienced and complained of pain but the John Doe dentist explained that this was usual; Whitehead continued to experience pain and other dentists from the Department of Corrections assured him that this was normal. According to Whitehead, he was later transferred to Green Rock Correctional Center in Pittsylvania County, Virginia, and a dental professional performed oral surgery and removed bone fragments from his gums where the John Doe dentist extracted his tooth. Whitehead alleged that the Department of Corrections, by and through its agent and/or employee, the John Doe dentist, was negligent in failing to exercise reasonable care in performing the tooth extraction and leaving bone fragments in his gums. Whitehead further averred that the John Doe dentist acted negligently as a matter of law and was negligent due to other acts/omissions that may become evident during discovery or trial. (Complaint, 1-10.) Along with his complaint, Whitehead filed an application to proceed in forma pauperis (IFP). In ruling on this application, the trial court, by order and memorandum dated February 15, 2013, determined that Whitehead lacked sufficient resources to pursue his claim. However, the trial court denied Whitehead IFP status because it concluded that his complaint was frivolous under Pa.R.C.P. No. 240(j)(1). 2 Particularly, the trial court found that Whitehead s complaint was deficient for failing to name the dentist or allege the relationship between the dentist and the Commonwealth; for failing to properly aver the standard of care, breach of the 2 This rule states: If, simultaneous with the commencement of an action or proceeding or the taking of an appeal, a party has filed a petition for leave to proceed in forma pauperis, the court prior to acting upon the petition may dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that the action, proceeding or appeal is frivolous. Pa.R.C.P. No. 240(j)(1). 2
standard, and causation; and for failing to plead with specificity the alleged negligent acts of the John Doe dentist. In addition, the trial court noted that Whitehead must file a Certificate of Merit (COM) to support his claim of dental malpractice. Having found that Whitehead failed to set forth an appropriate cause of action for malpractice, the trial court dismissed his complaint and denied his request to proceed IFP. The trial court, nevertheless, permitted Whitehead to amend his complaint within 30 days, concluding that the deficiencies could be cured and that the factual pattern may well assert a cause of action if properly pled.... (Trial court op. at 1-2.) On February 25, 2013, the office of the Attorney General, unaware of the trial court s February 15, 2013 rulings, 3 entered its appearance and filed preliminary objections to Whitehead s original complaint in the nature of a demurrer. (Trial court op. at 3; Commonwealth s brief at 5.) On March 19, 2013, Whitehead filed a motion for a 60-day extension to file an amended complaint and a COM. Due to the trial court having received this motion, the trial court rescheduled argument on the Commonwealth s preliminary objections from April 29, 2013 to June 24, 2013. Thereafter, Whitehead filed another motion for a 60-day extension to file an amended complaint and a COM on June 19, 2013. Although the trial court received Whitehead s motions prior to the June 24, 2013 argument date, it did not rule on any of Whitehead s motions, noting that they were not filed with a scheduling praecipe as required by an unspecified local rule of court. (Trial court op. at 3-4.) 3 The Commonwealth asserts in its brief that its delayed appearance in the case stems from Whitehead s failure to properly file and serve his complaint. (Commonwealth s brief at 5.) The trial court notes the service discrepancy in its opinion, (Trial court op. at 3), but the discrepancy has no bearing on our analysis. 3
On June 24, 2013, the trial court entered an order sustaining the Commonwealth s preliminary objections and dismissing the complaint with prejudice. In doing so, the trial court recited most of the reasons in its previous order denying IFP status and determined that Whitehead failed to file an amended complaint; the complaint did not name a defendant other than the Commonwealth; Whitehead did not indicate an exception to sovereign immunity; and Whitehead failed to file a COM within 60 days of filing his complaint. (Trial court op. at 4-5). On appeal to this Court, 4 Whitehead argues that the trial court erred in utilizing Pa.R.C.P. No. 240(j)(1) to dismiss his original complaint as frivolous and grant him leave to amend the complaint. Whitehead asserts that his original complaint did not meet the level of frivolous. Pursuant to Pa.R.C.P. No. 240(j)(1), a trial court can dismiss a complaint filed with a petition to proceed IFP if the trial court determines that the complaint is frivolous. Id. A frivolous action has been defined as one that lacks an arguable basis either in law or in fact. Pa.R.C.P. No. 240(j)(1), Note (citation omitted). An action is frivolous under Pa.R.C.P. No. 240(j)(1), if, on its face, it does not set forth a valid cause of action. Keller v. Kinsley, 609 A.2d 567, 568 (Pa. Super. 1992). As we review Whitehead s complaint under Pa.R.C.P. No. 240(j)(1), we are mindful that a 4 In reviewing preliminary objections, we are required to accept as true all well-pled averments set forth in the pleadings and all inferences reasonably deducible therefrom. Pennsylvania Builders Association v. Department of Labor & Industry, 4 A.3d 215, 220 (Pa. Cmwlth. 2010). In order to sustain preliminary objections, it must appear with certainty that the law will not permit a different result; where any doubt exists as to whether the preliminary objections should be sustained, the doubt must be resolved in favor of overruling the preliminary objections. Id. 4
pro se complaint should not be dismissed simply because it is not artfully drafted. Bell v. Mayview State Hospital, 853 A.2d 1058, 1060 (Pa. Super. 2004). 5 In order to establish a prima facie cause of action for medical malpractice, a plaintiff must demonstrate that (1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were the direct result of that harm. Masgai v. Franklin, 787 A.2d 982, 985 (Pa. Super. 2001). Here, an examination of the averments in Whitehead s complaint reveals that the complaint does not meet the standard of frivolity. Whitehead specifically averred that the dentist, acting as an agent and/or employee of the Department of Corrections, extracted a tooth and left bone fragments in his gums that were later removed by another dentist. Whitehead also alleged the standard of care; the manner by which the dentist breached the standard; and the casual relationship between the breach and the harm is evident. Although Whitehead s allegations admittedly lack some detail for our fact-pleading jurisdiction, he has nevertheless pled a plausible claim of malpractice that has an arguable basis in both fact and law. Indeed, the trial court concluded as much in its February 15, 2013 order and memorandum by granting Whitehead leave to amend and finding that he could cure the minor pleading deficiencies in his complaint to state a valid cause of action. See Williams v. Syed, 782 A.2d 1090, 1095 n.6 (Pa. Cmwlth. 2001) (addressing dismissal under Rule 240(j)(1): Where the elements to a cause of action are adequately set forth, a pro se 5 Appellate review of a decision dismissing an action pursuant to Pa.R.C.P. No. 240(j)(1) is limited to a determination of whether an appellant s constitutional rights have been violated and whether the trial court abused its discretion or committed an error of law. McGriff v. Vidovich, 699 A. 2d 797, 798 n.2 (Pa. Cmwlth. 1997). 5
complaint will not be dismissed just because it is not artfully drafted. ); cf. Ocasio v. Prison Health Services, 979 A.2d 352, 356-57 (Pa. Super. 2009) (concluding that complaint was frivolous under Pa.R.C.P. No. 240(j)(1) because it could not be amended to correct pleading errors and state a claim). Moreover, dental malpractice is specifically enumerated as an exception to sovereign immunity in section 8522(b)(2) of the Judicial Code, 42 Pa.C.S. 8522(b)(2), 6 and in Pennsylvania a plaintiff may name a John Doe defendant in a complaint and later amend the complaint when the plaintiff discovers the identity of the John Doe. See Commonwealth v. Laventure, 894 A.2d 109, 117 n. 9 (Pa. 2006) (acknowledging the present state of Pennsylvania jurisprudence [to allow the substitution of] a named party for a fictitious party, such as John Doe ). Therefore, we conclude the trial court abused its discretion in dismissing Whitehead s amended complaint on grounds of frivolity, and we will reverse and remand to the trial court to reinstate Whitehead s original complaint and to issue a new decision on his application to proceed IFP. 7 6 This statutory provision states as follows: 42 Pa.C.S. 8522(b)(2). (b) Act which may impose liability. The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised for damages caused by... (2) Medical-professional liability. Acts of health care employees of Commonwealth agency medical facilities or institutions or by a Commonwealth party who is a doctor, dentist, nurse or related health care personnel. 7 Because the trial court erred in dismissing Whitehead s original complaint as frivolous, Whitehead was not obligated to file an amended complaint. 6
Next, Whitehead argues that the trial court abused its discretion in dismissing his complaint for failing to file a COM within 60 days of his original complaint. Whitehead contends that his motions to extend the time for filing a COM toll the time period to file a COM until the trial court rules on the motions. Pursuant to Pa.R.C.P. No. 1042.3(a), a plaintiff asserting that a licensed professional, including a dentist, breached the standard of care shall file a COM with the complaint or within 60 days after filing the complaint. Pa.R.C.P. No. 1042.3(a). See Pa.R.C.P. No. 1042.1(c)(11)(v) (listing a dentist as a licensed professional ). Among other things, a COM must state that: (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or (2) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. Id. 8 8 Pa.R.C.P. No. 1042.3(a) provides: Rule 1042.3. Certificate of Merit (a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or (Footnote continued on next page ) 7
If a plaintiff fails to file a COM, the defendant may file a notice of intention to enter a judgment of non pros, and, if the plaintiff fails to take appropriate action within 30 days, the defendant may praecipe the prothonotary for entry of a judgment of non pros. Pa.R.C.P. No. 1042.6; Pa.R.C.P. No. 1042.7. 9 (continued ) (2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. 9 Pa.R.C.P. No. 1042.6 provides: Apart from a Rule 1042.6. Notice of Intent to Enter Judgment of Non Pros for Failure to File Certificate of Merit. Motion to Determine Necessity to File Certificate. Form of Notice (a) Except as provided by subdivision (b), a defendant seeking to enter a judgment of non pros under Rule 1042.7(a) shall file a written notice of intention to file the praecipe and serve it on the party's attorney of record or on the party if unrepresented, no sooner than the thirty-first day after the filing of the complaint. (b) A judgment of non pros may be entered as provided by Rule 1042.7(a) without notice if (1) the court has granted a motion to extend the time to file the certificate and the plaintiff has failed to file it within the extended time, or (2) the court has denied the motion to extend the time. (c) Upon the filing of a notice under subdivision (a) of this rule, a plaintiff may file a motion seeking a determination by the court as to the necessity of filing a certificate of merit. The filing of the motion (Footnote continued on next page ) 8
defendant s remedy of receiving a judgment of non pros 30 days after filing a notice of intention, there is no mechanism prescribed by our Rules of Civil Procedure that would permit a complaint to be dismissed or judgment entered against a plaintiff for failing to file a COM. Further, a plaintiff has 13 days after the defendant files a notice of intention to file a motion to extend the time for filing a COM. Pa.R.C.P. No. (continued ) tolls the time period within which a certificate of merit must be filed until the court rules upon the motion. If it is determined that a certificate of merit is required, the plaintiff must file the certificate within twenty days of entry of the court order on the docket or the original time period, whichever is later. Pa.R.C.P. No. 1042.7 provides: Rule 1042.7. Entry of Judgment of Non Pros for Failure to File Certification. Form of Praecipe (a) The prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that (1) there is no pending motion for determination that the filing of a certificate is not required or no pending timely filed motion seeking to extend the time to file the certificate, (2) no certificate of merit has been filed, (3) except as provided by Rule 1042.6(b), the defendant has attached to the praecipe a certificate of service of the notice of intention to enter the judgment of non pros, and (4) except as provided by Rule 1042.6(b), the praecipe is filed no less than thirty days after the date of the filing of the notice of intention to enter the judgment of non pros. 9
1042.3(d). If the plaintiff files an extension motion, [t]he Court, upon good cause shown, shall extend the time for filing a [COM] for a period not to exceed [60] days. Pa.R.C.P. No. 1042.3(d). Notably, [t]he filing of a motion to extend tolls the time period within which a [COM] must be filed until the court rules on the motion. Id. 10 A party seeking an extension to file a COM must act with reasonable diligence to see that the motion is promptly presented to the court if required by local practice. Id., Note. Here, on March 19, 2013, and June 19, 2013, Whitehead filed motions for a 60-day extension to file a COM and an amended complaint. Although the trial court received both of these motions, apparently within a few days or a week after they were filed, the trial court did not rule on either of them, noting that Whitehead failed to properly present the motions with a scheduling praecipe in accordance with a local rule. However, pursuant to Somerset County Local Rule 208.3(a)(A)(1) and (B)(2)(b), a motion to permit amendment of a pleading may be filed in motions court without a scheduling praecipe. 11 Because Whitehead s motions sought permission to amend his complaint as well as extend the time to file a COM (an integral part of a 10 Pa.R.C.P. No. 1042.3(d) states: The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days. A motion to extend the time for filing a certificate of merit must be filed by the thirtieth day after the filing of a notice of intention to enter judgment of non pros on a professional liability claim under Rule 1042.6(a) or on or before the expiration of the extended time where a court has granted a motion to extend the time to file a certificate of merit, whichever is greater. The filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the court rules upon the motion. 11 Local Rule 208.3(A)(1) and (B)(2)(b) state that a motion will be scheduled, argued, and decided at motions court, specifically where the relief requested is [t]o permit the amendment of a pleading. Contrariwise, a motion will be scheduled, argued, and decided by filing a scheduling praecipe when the motion is not one of those listed for motions court. 10
complaint), his motions did not necessarily require a scheduling praecipe and could have been adjudicated through motions court. This fact, coupled with the fact that the trial court possessed the motions in a timely fashion (especially the first one), demonstrates that Whitehead substantially complied with the local rule, and, more importantly, acted with reasonable diligence in presenting his motions to the trial court. See Pa.R.C.P. No. 1042.3(d), Note. Consequently, the time in which Whitehead was obligated to file a COM was tolled and continues to be tolled because the trial court never ruled on his motions for an extension. Pa.R.C.P. No. 1042.3(d) ( The filing of a motion to extend tolls the time period within which a [COM] must be filed until the court rules on the motion. ). Moreover, even if Whitehead did not present the motions to the trial court in a reasonably prompt manner, the trial court lacked the legal authority to dismiss his complaint for failing to file a COM. Where, as here, a plaintiff has not previously been granted an extension to file a COM, a plaintiff has until 13 days after the defendant files a notice of intention to file a motion for an extension. In this case, however, the Commonwealth never filed a notice of intention. As a result, Whitehead was not yet obligated to file a COM, and he can still file a timely motion for an extension. See Pa.R.C.P. No. 1042.3(d) (stating that a motion to extend time is filed timely if it is filed by the 13th day after the defendant filed notice of intention to enter a judgment of non pros); Pa.R.C.P. No. 1042.7 (stating that a judgment of non pros may be entered provided that the defendant has filed a notice of intention, waited 30 days, and there is no pending motion seeking to extend the time to file a COM). Therefore, we conclude that the trial court erred in dismissing Whitehead s 11
complaint for failing to file a timely COM. 12 Accordingly, we will reverse and remand to the trial court to either rule on Whitehead s motion(s) for a 60-day extension to file a COM or permit Whitehead to file another motion for a 60-day extension if changed circumstances have arisen. For the above-stated reasons, we conclude that the trial court committed reversible error. On remand, the trial court shall reinstate Whitehead s original complaint, issue a new decision on his application to proceed IFP, and rule on his motion(s) for a 60-day extension to file a COM or allow Whitehead to file another motion for a 60-day extension. Accordingly, we reverse the trial court s order and remand for further proceedings consistent with this memorandum opinion. PATRICIA A. McCULLOUGH, Judge 12 In a passing reference, the trial court stated that, on its face, Whitehead s complaint would be barred by the two year statute of limitations (SOL) for malpractice claims. (Trial court op. at 2.) We disagree. Although Whitehead filed his complaint approximately four years after the alleged event occurred, he averred that he received repeated assurances from dentists at the Department of Corrections that his pain was normal and would subside. Typically, such assurances will toll the running of the SOL. See Bohus v. Beloff, 950 F.2d 919, 924, 926-28 (3d Cir. 1991) (applying Pennsylvania law) (concluding that [b]ecause [the doctor] repeatedly assured [the patient] that her pain was part of the normal healing process and would eventually subside, the SOL was tolled until the patient saw another doctor who suggested that [the first doctor] had done something wrong ). Consequently, at this stage of the proceedings, it is not clear and free from doubt that Whitehead s claim is barred by the SOL. 12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Carl Whitehead, : Appellant : : No. 1075 C.D. 2014 v. : : Commonwealth of Pennsylvania : ORDER AND NOW, this 21 st day of January, 2015, the June 24, 2013 order of the Court of Common Pleas of Somerset County is reversed and the case is remanded to the trial court for further proceedings consistent with this memorandum opinion. Jurisdiction relinquished. PATRICIA A. McCULLOUGH, Judge