Bisher v. Lehigh Valley Health Network, Inc.
| Decision Date | 22 December 2021 |
| Docket Number | No. 22 MAP 2021,22 MAP 2021 |
| Citation | 265 A.3d 383 |
| Parties | Brenton D. BISHER and Carla S. Bisher, Individually and as Administrators of the Estate of Cory Allen Bisher, Deceased, Appellants v. LEHIGH VALLEY HEALTH NETWORK, INC., Lehigh Valley Hospital, Inc., Lehigh Valley Anesthesia Services, PC, LVPG Pulmonary and Critical Care Medicine, Dr. Brian Civic, Dr. Dorothea Watson, Dr. Jennifer Strow, Dr. Bonnie Patek, Dr. Frederic Stelzer, Eastern Pennsylvania Gastroenterology and Liver Specialists, PC, and Norma D. Wilson, CRNA, Appellees |
| Court | Pennsylvania Supreme Court |
Raymond Michael Bily, Esq., Law Offices of Raymond M. Bily, Jr., P.C., for Amicus Curiae The Pennsylvania Association For Justice
H. Leon Aussprung III, Esq., Law Office of Leon Aussprung MD, LLC, for Appellant Bisher, Brenton D., Carla S. and Estate of Cory Allen
Michael James Blum, Esq., Kimberly Gobla Krupka, Esq., Howard Sadler Stevens, Esq., Gross McGinley LLP, for Appellee Lehigh Valley Health Network, Inc., et al.
Adam LeRoy Fenstermaker, Esq., John R. Hill, Esq., Mark Thomas Perry, Esq., The Perry Law Firm LLC, for Appellee Dr. Frederic Stelzer and Eastern Pennsylvania Gastroenterology and Liver Specialists, PC
Following the death of their twenty-five-year-old son Cory Bisher ("Cory"), Brenton D. Bisher ("Brenton") and Carla S. Bisher ("Carla")1 filed suit, without representation by counsel, against eleven defendants comprising both named individuals and corporate entities alleging their medical malpractice resulting in Cory's death. Each parent brought their own wrongful death claims,2 and Carla filed a survival action3 on behalf of Cory's estate ("Estate"). Following protracted proceedings, the trial court struck the amended complaint with prejudice because of defects in the Certificates of Merit mandated by Rule of Civil Procedure 1042.3 in professional liability suits against licensed professionals. On appeal, the Superior Court sua sponte determined that the Bishers committed two errors that jointly deprived the trial court of subject-matter jurisdiction over all claims: Carla's unauthorized practice of law and the lack of verification of the complaint. The panel concluded that it too lacked jurisdiction and quashed the appeal.
We find that neither the unauthorized practice of law in the trial court nor the lack of verification identified by the Superior Court implicated subject-matter jurisdiction and thus could not be raised sua sponte. We also disagree with the panel's alternative holding that the trial court properly struck the amended complaint because of the defects in the Certificates of Merit. Because the unauthorized practice of law issue will be ripe for further litigation on remand, we conclude that pleadings unlawfully filed by non-attorneys are not void ab initio. Instead, after notice to the offending party and opportunity to cure, the pleadings are voidable in the discretion of the court in which the unauthorized practice of law took place. We therefore remand for further proceedings consistent with this opinion.
Factual and procedural history
The basic facts are undisputed. Cory was admitted to Good Samaritan Hospital in Lebanon, Pennsylvania on October 12, 2015 and diagnosed with Community Acquired Pneumonia
. Three days later, Cory was transferred to Lehigh Valley Hospital for intubation and treatment because he had "Russell Silver Syndrome, a form of primordial dwarfism," which apparently required the use of pediatric equipment unavailable at Good Samaritan. Tragically, Cory died at Lehigh Valley Hospital on November 22, 2015.
On August 3, 2017, the plaintiffs, unrepresented by counsel, filed suit initially alleging a total of fifteen causes of action against eleven defendants. The complaint alleged that as early as October 27, 2015, Cory showed signs of gastrointestinal bleeding
that the defendants failed to recognize and/or ignored, which led to his death. The defendants, suffice to say, dispute this version of events. We note at this juncture that the defendants were collectively represented by two different law firms. Defendants Lehigh Valley Health Network, Lehigh Valley Hospital, Lehigh Valley Anesthesia Services, LVPG Pulmonary and Critical Care Medicine, Norma Wilson, CRNA, and doctors Brian Civic, Dorothea Watson, Jennifer Strow, and Bonnie Patek were represented by Gross McGinley. For ease of reference, we refer to these defendants collectively as "Lehigh Valley." Defendants Frederic Stelzer, M.D., and Eastern Pennsylvania Gastroenterology and Liver Specialists, were represented by the Perry Law Firm.4 We refer to this group as "Eastern Gastro."
As later identified by the Superior Court, an immediate complication with the originating complaint is that Carla and Brenton, who are not licensed attorneys, are permitted only to represent themselves when pursuing their respective wrongful death actions. "Wrongful death damages are established for the purpose of compensating the spouse, children, or parents of a deceased for pecuniary loss they have sustained as a result of the death of the decedent." Kiser v. Schulte , 538 Pa. 219, 648 A.2d 1, 4 (1994) (citations omitted). Survival actions which are brought on behalf of the decedent's estate, however, must be filed through an attorney. Conceptually, the estate itself is the plaintiff and, for largely the same reasons that corporate entities must be represented by a lawyer, an attorney must represent the estate. Further complicating matters, Carla exclusively signed virtually all of Brenton's documents, and therefore acted as an attorney for all three plaintiffs. However, the defendants did not object and the trial court did not raise these issues.
Instead, the defendants raised numerous preliminary objections regarding the plaintiffs’ failures to comply with the Rules of Civil Procedure. Pertinent to this appeal, the bulk of the litigation centered on plaintiffs’ attempts to comply with a requirement peculiar to professional negligence actions.
Certificate of Merit litigation
The Rules of Civil Procedure dictate that a Certificate of Merit ("COM") must accompany "any action based upon an allegation that a licensed professional deviated from an acceptable professional standard[.]" Pa.R.C.P. 1042.3(a). The COM "signals to the parties and the trial court that the plaintiff is willing to attest to the basis of his malpractice claim; that he is in a position to support the allegations he has made ... and that resources will not be wasted if additional pleading and discovery take place." Womer v. Hilliker , 589 Pa. 256, 908 A.2d 269, 275 (2006). That attestation includes a representation that a qualified expert has supplied a written statement. COMs are subject to timing, procedural, and substantive requirements.5
COM timing litigation
We begin with the timing. The COM must be attached to the complaint or filed within sixty days after the filing of the complaint. Id . The rule permits the court to extend the time as follows:
(d) 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.
Pa.R.C.P. 1042.3(d). The Note to this Rule states that a court may extend the time as many times as it wishes, provided that the plaintiff files a timely motion each time and shows cause. Id . at Note.
As the complaint did not include a COM, on September 5, 2017, Lehigh Valley filed a Notice of Intent to Enter Judgment of Non Pros. See Pa.R.C.P. 1042.6, 1042.7.6 Plaintiffs filed an emergency motion requesting a continuance due to a family emergency. Motion, 9/19/2017. Lehigh Valley objected, arguing that "[t]he only acceptable response would be either the filing of a [COM]" or a motion to extend the time for filing a COM. Brief, 9/28/2017, at 2. They noted that the emergency motion did not indicate that plaintiffs Id .
Before the court could rule on the emergency motion and the objections, the Bishers filed a joint motion to (1) strike the notice of intent to enter judgment of non pros and (2) have the trial court determine whether a COM was necessary. See Pa.R.C.P. 1042.6(c) (). In the accompanying brief, the Bishers requested that the court "waive the [COM] requirement." Brief, 10/5/2017, at 4. The Bishers argued that obtaining a COM was financially burdensome and their "inability to obtain and/or pay for it would impede their right of access to courts[.]" Id . at 6. Additionally, the Bishers argued that their complaint was not a " ‘frivolous claim’ that should be weeded from the court docket," as it was supported by twenty-six exhibits and further argued that a COM was not necessary as their negligence theory was in the nature of res ipsa loquitur.
That same day, the trial court entered an order denying that motion. In an explanatory footnote, the trial judge acknowledged the difficulties facing pro se litigants and observed that the court could "excuse certain procedural defects," but could not waive the COM requirement. Meanwhile, correctly anticipating that their motion to excuse the COM would be...
To continue reading
Request your trial
- Gen. Motors Corp. v. Commonwealth
-
McLinko v. Commonwealth
...the matter, and as such, would have required the sua sponte application of the bar and dismissal. See Bisher v. Lehigh Valley Health Network, Inc., ––– Pa. ––––, 265 A.3d 383, 399 (2021) (explaining that subject matter jurisdiction may be raised at any time, even by a court sua sponte if ne......
-
Alexander & Baldwin, LLC v. Armitage
...party – the purported representative – it may punish those who were purported to be represented. See Bisher v. Lehigh Valley Health Network, Inc., ––– Pa. ––––, 265 A.3d 383, 409 (2021) (noting that an inadvertent violation by a corporate officer could prejudice thousands of stockholders). ......
-
Scott v. Pa. Bd. of Probation & Parole
...delineations must be policed by the courts on their own initiative even at the highest level." Bisher v. Lehigh Valley Health Network, Inc. , ––– Pa. ––––, 265 A.3d 383, 400 (2021) (quoting Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ). To the ......