Unauthorized Practice of Law; Dismissal of Pro Se Complaint
Estate of Bisher v. Lehigh Valley Health Network, 2020 WL 3542237 (Pa. Super. 2020) (unreported), allocatur granted March 31, 2021, appeal docket 22 MAP 2021
Upon transfer to Lehigh Valley Hospital, Cory Bisher was initially treated for pneumonia, but allegedly developed a gastrointestinal bleeding condition that ultimately led to his death. Brenton Bisher and Carla Bisher, Cory Bisher’s parents, filed pro se a complaint against Lehigh Valley Health Network, Inc., Lehigh Valley Hospital, Inc., Lehigh Valley Anesthesia Services, P.C., Lehigh Valley Physicians Group Pulmonary and Critical Care Medicine, Dr. Brian Civic, Dr. Dorothea Watson, Dr. Jennifer Strow, Dr. Bonnie Patek, and Norma D. Wilson, CRNA (collectively, the “Hospital” or “LVHN”), as well as Dr. Frederic Stelzer, and Eastern Pennsylvania Gastroenterology and Liver Specialists, P.C. (“Stelzer”). The complaint alleged, inter alia, medical malpractice stemming from the death of Cory Bisher. Carla Bisher and Brenton Bisher instituted their claims pro se in their individual capacities, as survivors, and allegedly as the personal representatives of the Estate.
Stelzer filed preliminary objections, as well as motions to strike the complaint for failure to comply with the Pennsylvania Rules of Civil Procedure. Both the Hospital and Stelzer subsequently filed notices of intent to enter a judgment of non pros for failure to file certificates of merit with the complaint pursuant to Pennsylvania Rule of Civil Procedure 1042.3, which provides in relevant part:
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
(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.
(b) (1) A separate certificate of merit shall be filed as to each licensed professional against whom a claim is asserted.
(2) If a complaint raises claims under both subdivisions (a)(1) and (a)(2) against the same defendant, the attorney for the plaintiff, or the plaintiff if not represented, shall file
(i) a separate certificate of merit as to each claim raised, or
(ii) a single certificate of merit stating that claims are raised under both subdivisions (a)(1) and (a)(2).
(e) If a certificate of merit is not signed by an attorney, the party signing the certificate of merit shall, in addition to the other requirements of this rule, attach to the certificate of merit the written statement from an appropriate licensed professional as required by subdivisions (a)(1) and (2). If the written statement is not attached to the certificate of merit, a defendant seeking to enter a judgment of non pros shall file a written notice of intent to enter a judgment of non pros for failure to file a written statement under Rule 1042.11.
Superior Court summarized the subsequent procedural history as follows:
The trial court denied Carla Bisher’s pro se motion to determine the necessity to file a certificate of merit and to strike the notices of intent to enter judgments of non pros for failure to file certificates of merit. Trial Court Order, 10/3/17. Carla Bisher then filed pro se a second motion to determine the necessity to file a certificate of merit and to request an additional 60 days to file the certificate of merit, if deemed necessary. The trial court denied Carla Bisher’s second motion to determine the necessity of the certificate of merit and granted an additional 60 days to file certificates of merit “with respect to all defendants against whom certificates of merit must be filed pursuant to Pennsylvania Rules of Civil Procedure[.]” Trial Court Order, 10/16/17, at 2 (extraneous capitalization omitted).
Before the expiration of the 60-day period, Carla Bisher filed pro se a third motion to determine the necessity to file certificates of merit and to request an additional 90 days to file the appropriate certificates of merit. Following a hearing on Carla Bisher’s motion, the trial court determined that certificates of merit were necessary “with respect to the professional medical service providers identified” in the complaint, denied Carla Bisher’s request for a 90-day extension, and instructed that any necessary certificates of merit be filed within 20 days. Trial Court Order, 2/2/18.
On February 22, 2018, Carla Bisher filed pro se a single certificate of merit intended to encompass and apply to all named defendants and attached a written statement from Dr. Marvin Ament. LVHN subsequently filed a motion to strike the certificate of merit, as well as preliminary objections in the form of a demurrer. The trial court struck the certificate of merit with prejudice as to Dr. Civic, Dr. Watson, Dr. Strow and CRNA Wilson because Dr. Ament was not board certified by the same or similar approved medical boards as the aforementioned defendants and, therefore, would not qualify as an expert witness at trial. Trial Court Order, 3/22/18, at 1-2, 2 n.i. The trial court struck the certificate of merit without prejudice as to all other defendants on the grounds “Dr. Ament does not identify the named [d]efendants to whom [the certificate of merit] relates [and] does not indicate that any specific [d]efendant breached the applicable standard of care about which Dr. Ament is qualified to opine.” Id. at 3 n.ii. Carla Bisher did not challenge or object to the trial court’s determinations.
On March 28, 2018, Dr. Civic, Dr. Watson, Dr. Strow, and CRNA Wilson filed a praecipe for entry of judgment of non pros pursuant to Rule 1042.12. Carla Bisher filed pro se five certificates of merit separately naming Frederic A. Stelzer, M.D., Eastern Pennsylvania Gastroenterology and Liver Specialists, P.C., Bonnie Patek, DO, Lehigh Valley Health Network, Inc., and Lehigh Valley Hospital, Inc.3 Stelzer subsequently filed a motion to strike the certificates of merit pertaining to Frederic A. Stelzer, M.D. and Eastern Pennsylvania Gastroenterology and Liver Specialists, P.C. In response, Carla Bisher filed pro se a praecipe to attach the curriculum vitae of Dr. Ament as an addendum to the five certificates of merit and later a praecipe to substitute and replace the statement of Dr. Ament attached to the five certificates of merit.
On June 11, 2018, the trial court sustained LVHN’s preliminary objections in the form of a demurrer and dismissed the complaint with prejudice against LVHN.Trial Court Order (LVHN), 6/11/18. In a separate order entered on June 11, 2018, the trial court granted Stelzer’s motion to strike the certificates of merit pertaining to Frederic A. Stelzer, M.D. and Eastern Pennsylvania Gastroenterology and Liver Specialists, P.C. with prejudice and sustained, in part, and overruled, in part, Stelzer’s preliminary objections. Trial Court Order (Stelzer), 6/11/18. The trial court granted leave to file an amended complaint against Stelzer within 20 days. Id. On June 12, 2018, Stelzer filed a praecipe for entry of judgment non pros for failure to file a certificate of merit.
Carla Bisher filed pro se a motion for reconsideration of both June 11, 2018 orders. Carla Bisher also filed pro se a motion to strike Stelzer’s praecipe for entry of judgment non pros, as well as a subsequent amended motion to strike Stelzer’s praecipe for entry of judgment non pros. On June 29, 2018, Brenton Bisher and Carla Bisher filed pro se an amended complaint against Dr. Frederic Stelzer and Eastern Pennsylvania Gastroenterology and Liver Specialists, P.C. raising claims of, inter alia, negligence – medical malpractice and a wrongful death action. Carla Bisher filed pro se a motion to amend the complaint on August 10, 2018.
Slip op. at 3-6 (footnotes omitted). The trial court denied Carla Bisher’s pro se motions and amended complaint with prejudice. The trial court’s striking of the amended complaint terminated the litigation against Steltzer, the only remaining defendants. The Bishers appealed to Superior Court.
Superior Court entered an order directing the Bishers to show cause why this appeal should not be quashed as untimely filed and directed Carla Bisher to notify the Court whether she is licensed to practice law in the Commonwealth of Pennsylvania. The Bishers filed a response arguing the appeal of the September 5, 2018 order was timely because the June 11, 2018 orders did not “‘dispose of all claims and all parties’ as required by Pa.R.A.P. 341(b)(1)” and the orders were ambiguous as to whether they were final appealable orders. Slip op. at 7. The response also stated Carla Bisher was not licensed to practice law in Pennsylvania. The Bishers contended that they acted pro se when they filed the complaint and that Carla Bisher was authorized to appear pro se on behalf of Brenton Bisher, in his absence, pursuant to a power of attorney and a short certificate authorizing her to appear pro se on behalf of the Estate.
Superior Court then prohibited Carla Bisher from filing any papers on behalf of Brenton Bisher or the Estate because neither a power of attorney nor a short certificate authorized Carla Bisher to practice law without a license in the Commonwealth of Pennsylvania. The court directed Carla Bisher to retain counsel on behalf of the Estate. The Bishers then filed pro se a response reiterating their prior argument that Carla Bisher’s pro se representation of Brenton Bisher and the Estate was permitted pursuant to a power of attorney and short certificate, respectively. Thereafter, Laura A. Walker, Esq., entered her appearance on behalf of the Bishers, as individuals, and as administrators of the Estate. Superior Court then discharged its rule to show cause order but advised that the merits panel may raise the issue of an untimely notice of appeal.
Superior Court found that the Bishers’ appeal was timely; however, Superior Court held that the trial court lacked jurisdiction to consider the entire matter because Carla Bisher, a non-attorney, acting on behalf of herself, Brenton Bisher and the Estate, initiated the action. In addressing the issue sua sponte, the court noted that because the “issue of whether a non-attorney’s actions constitute the unauthorized practice of law implicates a trial court’s jurisdiction over a particular matter … the issue cannot be waived and may be raised sua sponte by an appellate court.” Slip op. at 13. The court concluded:
The Estate must be represented by a licensed attorney, and any complaint failed on behalf of the Estate must be filed by a licensed attorney. Consequently, the complaint as it pertains to the Estate is a legal nullity, void ab initio, and the trial court was without jurisdiction to consider the matter as it relates to the Estate.
Slip op. at 13. Superior Court likewise held that the trial court lacked jurisdiction over the matter as it relates to the Bishers as individuals, reasoning that:
Here, a review of the record demonstrates that both Brenton Bisher and Carla Bisher signed the complaint as pro se individuals. Although both Brenton Bisher and Carla Bisher were permitted to sign the complaint as pro se individuals, each representing themselves in this matter, a review of the complaint demonstrates it does not contain the necessary and essential verification statement signed by both of the pro se individuals. Therefore, the complaint, absent the necessary verification statement, was nothing more than a narration of events and a legal nullity, void ab initio, as to the pro se individuals, Brenton Bisher and Carla Bisher. Consequently, the trial court was without jurisdiction over the matter as it pertained to Brenton Bisher and Carla Bisher, as individuals.
Slip op. at 16. The court went on to explain that, even if Superior Court had jurisdiction to consider the merits of the appeal, it would find that certificates of merit failed to comply with the requirements of Rule 1042.3, explaining that:
Here, a review of the record demonstrates that the trial court adequately and comprehensively explained its rationale for striking Carla Bisher’s certificates of merit with prejudice. We would adopt that portion of the trial court’s opinion as our own and incorporate it herein. See Trial Court Opinion, 11/9/18, at 8-18. Specifically, the trial court found that Dr. Ament’s third amended statement “merely summarizes ‘that [LVHN and Stelzer] breached the appropriate standard of care, and that this breach was a cause in bringing about the harm to Cory Bisher.’ ” Id. at 16. The trial court concluded, and we concur, “[t]his statement fails to identify the specific defendant who breached the appropriate standard of care, and that said breach of care led to Bisher’s death.” Id. at 17. Absent specificity, Dr. Ament’s third amended statement failed to meet the requirements of Rule 1042.3. Id. In sum, the trial court concluded,
the record reflects that [Carla Bisher] undertook the challenging task of litigating a complex medical malpractice matter on her own without any assistance from counsel. The [trial] court granted [her] a significant amount of leeway. The [trial] court fully and fairly considered her numerous requests to be excused from the certificate of merit requirement. The [trial] court also evaluated the certificate of merit that she provided in a light that was favorable to her, but concluded that despite Dr. Ament’s qualifications, the certificate he provided did not satisfy the criteria set forth in Rule 1042.3 or [Section 512 of] the MCARE Act.
Id. at 18 (extraneous capitalization omitted).
Slip op. at 22-23.
Judge Bowes dissented, opining that:
I agree with the Majority that the Bishers’ actions of filing and litigating a complaint, petitions, and motions in the trial court constituted the unauthorized practice of law under this Court’s precedent. However, I do not believe that the pro se or unverified nature of the complaint that initiated this case rendered it a nullity such that there was no action over which the trial court could exercise jurisdiction. In my view, the case law and the particular circumstances of this case do not warrant quashal, but rather that we remand to allow counsel to file the appropriate pleadings.
Dissent slip op. at 1-2 (footnote omitted). First, Judge Bowes noted that a defective verification does not implicate jurisdiction, and therefore there was no basis for the majority to address it sua sponte. Next, Judge Bowes explained:
…in prior instances in which the Pennsylvania appellate courts considered pro se appeals involving the viability of actions brought pro se by non-lawyer personal representatives of estates, we have not quashed such appeals for lack of jurisdiction. Nor have we held that the pro se pleading that commenced the action was void ab initio. Rather, we affirmed the trial court orders that dismissed the pending pleadings only after having provided the personal representative the opportunity to obtain counsel.
Dissent slip op. at 4. Thus, Judge Bowes concluded:
As such, I would not quash this appeal. Instead, based upon the case law discussed above, I would hold that the trial court did not have jurisdiction to entertain the merits of the pending action, and, thus, all of its orders concerning the merits of the Bishers’ claims are void. I would remand the case for counsel to file an amended complaint within sixty days. If none is filed, I would instruct that the trial court may dismiss the complaint with prejudice. If counsel files an amended complaint, the case should proceed ordinarily therefrom.
Dissent slip op. at 8.
The Pennsylvania Supreme Court granted allocatur as to the following issues:
(1) Did the Superior Court err in quashing Petitioners’ appeal based upon the Superior Court’s finding that it lacked jurisdiction to hear the appeal as it relates to the Estate of Cory Allen Bisher because the Estate’s Complaint was void ab initio, where the trial court permitted a non-attorney to represent the Estate until the statute of limitations had expired?
(2) Did the Superior Court err in quashing Petitioners’ appeal based upon the Superior Court’s holding that it lacked jurisdiction to hear the appeal as it relates to pro se litigants Carla Bisher and Brenton Bisher because of an improper verification, an issue raised sua sponte by the Superior Court?
(3) Did the Superior Court err in ruling that the Certificates of Merit at issue in the instant case were deficient where the Certificates of Merit met the legal requirements of Pa.R.C.P. 1042.3 and the MCARE Act?
For more information, contact Kevin McKeon or Dennis Whitaker.
For more information, contact Kevin McKeon or Dennis Whitaker.