Womer v. Hilliker, 25 MAP 2005.

• Citation: 908 A.2d 269
• Decision Date: 17 October 2006
• Docket Number: No. 25 MAP 2005.,25 MAP 2005.
• Parties: Garth WOMER, Appellee, v. Jan K. HILLIKER, M.D., Appellant.
• Court: United States State Supreme Court of Pennsylvania

908 A.2d 269 Garth WOMER, Appellee,
v.
Jan K. HILLIKER, M.D., Appellant. No. 25 MAP 2005. Supreme Court of Pennsylvania. Argued December 5, 2005. Decided October 17, 2006.

[908 A.2d 271]

Darryl R. Wishard, Esq., Mitchell, Mitchell, Gallagher, Weber, Southard & Wishard, P.C., Williamsport, for Dr. Jan Hilliker, M.D.

Robert B. Hoffman, Esq., Wolf, Block Schorr and Solis-Cohen, L.L.P., Harrisburg, for amicus curiae Pennsylvania Medical Society.

John R. Bonner, Esq., Casale & Bonner, P.C. for Garth Womer.

David C. Harrison, Esq., Philadelphia, for amicus curiae Pennsylvania Trial Lawyers Association.

BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

[908 A.2d 272]

OPINION

Chief Justice CAPPY.

This appeal concerns Pa.R.C.P. No. 1042.3, which requires that a certificate of merit ("COM") be filed in any professional liability action in which it is alleged that a licensed professional deviated from the acceptable standard of care. Presently, we consider whether the Superior Court correctly reversed the trial court's order denying Appellee Garth Womer ("Womer") relief from the judgment of non pros that was entered against him due to his failure to file a COM. For all of the reasons that follow, the order of the Superior Court is reversed.

The relevant facts and procedural history are straightforward. On June 25, 2003, Womer commenced a civil action against Appellant Jan K. Hilliker, M.D. ("Hilliker") by filing a praecipe for issuance of a writ of summons. On August 18, 2003, Womer filed a two-count complaint against Hilliker for negligence and lack of informed consent. In his complaint, Womer alleged that Hilliker is a practicing opthomologist whose services were engaged to perform corrective surgery on Womer's eyes; that Hilliker performed the surgery on June 7, 2001; that Hilliker failed to warn Womer of the risks, use the proper procedure, take the proper precautions, and treat the surgery's complications; and that as a result of Hilliker's actions, Womer suffers from permanent visual limitations, which have caused him to sustain a variety of losses. Womer did not file a COM with his complaint nor did he file a COM within sixty days of its filing, as is required under Pa.R.C.P. No. 1042.3(a). In addition, Womer did not file a motion to extend the time for the filing of a COM, as is allowed under Pa.R.C.P. No. 1042.3(d).¹

On October 20, 2003, Hilliker filed a Praecipe for Entry of Judgment of Non Pros Pursuant to Pa.R.C.P. No. 1042.6 for failure to file a COM.² On that same day, the Prothonotary entered a judgment of non pros in Hilliker's favor.

On October 22, 2003, Womer filed a Motion to Open Judgment of Non Pros and Allow the Filing of a Certificate Nunc Pro Tunc ("Motion"). In the Motion,

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Womer sought relief from the judgment, alleging that he served an expert report on Hilliker in discovery before Pa.R.C.P. No. 1042.3's time limit expired; that the information he provided to Hilliker included all of the information that Pa.R.C.P. No. 1042.3 requires; that his failure to file the required COM was due to his counsel's oversight or mistake; that he was not notified of Hilliker's intent to secure the judgment of non pros; that Hilliker would not be prejudiced by the granting of the Motion; that the purpose of Pa.R.C.P. No. 1042.3 had been served; that he promptly took steps to open the judgment upon learning of its entry; and that he possessed a meritorious case. One of the exhibits attached to the Motion included the curriculum vitae of an optometrist, Dr. Keith S. Hillard ("Hillard"), and a report ("Report") that Hillard authored. The Report described Hillard's consultation with Womer on June 5, 2002 regarding Womer's visual status. In the Report, Hillard opined that Womer was not a good candidate for the particular surgical procedure that Hilliker used; that due to Womer's myopia and pupil size, he was exposed to a higher risk of harm than are others; and that following the surgery, Hilliker did not treat a manageable complication promptly. Another exhibit attached to the Motion was a COM as to Hilliker dated October 21, 2003.

In response to the New Matter included in Hilliker's Answer to the Motion,³ Womer further alleged that if relief from a judgment of non pros secured under Pa. R.C.P. No. 1042.6 is governed by Pa. R.C.P. No. 3051,⁴ then Rule 3051(b)(2)'s requirement that he provide a reasonable explanation for his inactivity was satisfied inasmuch as he was under the belief that providing the Report to Hilliker met the requirements of Pa.R.C.P. No. 1042.3. In the alternative, Womer contended that Pa. R.C.P. No. 237.1, and not Pa.R.C.P. No. 3051, applies to the opening of such a judgment. Referring to Pa.R.Civ.P. No. 126,⁵ Womer also alleged that a trial court's strict adherence to Rule 1042.3 in his case would undermine this Court's intent in adopting the Rule, which was to eliminate the filing of non-meritorious professional liability actions and that the entry

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of a judgment of non pros, which would put him permanently out of court for a technical violation of Rule 1042.3, was too drastic a result in light of his substantial compliance.

The trial court denied Womer's Motion. The trial court first rejected Womer's argument that the discovery materials he served on Hilliker complied with the terms of Pa.R.C.P. No. 1042.3, concluding that such an argument contradicted the rule's plain language. Next, the trial court determined that Womer was incorrect that his Motion should be evaluated under Pa. R.C.P. No.237.1, and held that Womer's entitlement to relief from the judgment of non pros 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 Rule 1042.3's requirements provided a reasonable explanation under Rule 3051(b)(2) for his failure to file a COM, and concluded that Womer's belief was insufficient. In this regard, the trial court was of the view that discovery responses, particularly information not of record, neither substituted for a Rule 1042.3 COM nor explained why Womer neglected to request an extension of time under Pa.R.C.P. No. 1042.3(d) within which to secure a COM. Finally, the trial court determined that Womer's assertions that Pa.R.C.P. No. 126 should excuse him were inappropriate since Rule 126's application in the present circumstances would effectively nullify the terms of Pa. R.C.P. No. 1042.3. Accordingly, the trial court entered an order dated December 3, 2003, denying Womer's Motion requesting that the judgment of non pros be opened, and denied the Motion for Reconsideration he filed thereafter by order dated December 15, 2003.⁶

Womer filed a timely appeal. In the Superior Court, Womer abandoned his argument that Pa.R.C.P. No. 237.1 governed his request for relief from the judgment of non pros, and argued his entitlement to relief from the judgment under Pa.R.C.P. No. 3051. Womer made all the same assertions in support of his Motion in the Superior Court that he made in the trial court, and added to his arguments in his Superior Court brief by stating that the judgment of non pros should be opened because Pa.R.C.P. No. 1042.3 was newly promulgated and the statute of limitations had run on his cause of action as of the date the judgment was entered.

In an unpublished opinion, the Superior Court applied Pa.R.C.P. No. 3051 to Womer's Motion, and concluded that Womer satisfied Rule 3051(b)(1) and (3), by acting promptly and having a cause of action to file, and Pa.R.C.P. No. 3051(b)(2), by providing a reasonable explanation for his lack of compliance with Pa.R.C.P. No. 1042.3. As to the latter, the Superior Court focused on Womer's contention that he did not file a COM because he believed that by giving Hilliker the Report he substantially complied with Pa.R.C.P. No. 1043.2, and found Womer's belief "not wholly unreasonable" due to the lack of case law on the issue. The Superior Court stated:

[W]e conclude that given the instant circumstances a legitimate excuse for the failure to comply with Rule 1042.3 exists. This includes the lack of decisional law at the time of the lawsuit; the fact that plaintiff supplied defendant with more information than Rule 1042.3 requires, i.e., a copy of the report instead of a certification that he has such a

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report; and the fact that [plaintiff] appellant is out of court on his claim if the non pros is affirmed.

It is true that Rule 1042.3 allows for a generous period before the filing of a certificate and that the rule provides for unlimited extensions of the sixty day period pursuant to timely requests. However, in the context of the case, it was not wholly unreasonable for a litigant to have concluded that this transmittal of an expert report represented substantial compliance with Rule 1042.3.

(Superior Court Memorandum Opinion at 5.) The Superior Court also observed that even though it did not disagree with the trial court's opinion espousing a literal interpretation of Pa.R.C.P. No. 1042.3, it disagreed with the trial court's result for several reasons. The reasons the Superior Court listed without discussion were: equitable principles; the statute of limitations; the recent promulgation of Rule 1042.3; the sparseness of decisions regarding the permissibility of substantial compliance as a substitute for a COM; and the existence of Pa.R.C.P. No. 126. Accordingly, the Superior Court reversed the trial court's order and remanded the case to the trial court. On remand, the trial court was to obtain proof of facts by evidence or stipulation that Womer supplied the Report to Hilliker and, if shown, to enter an order vacating the judgment of non pros and consider the objection that Hilliker raised to Hillard's qualifications under Pa.R.C.P. No. 1042.1 to supply the statement Pa. R.C.P. No. 1042.3(a)(1) requires. See supra n. 3.

Hilliker filed a Petition for Allowance of Appeal....