this case is controlled squarely by this court's prior decision and like in reading in the the two thousand and eleven case of lincoln reading and that decision demanding reversal of the district court decision below dismissing with prejudice my client's claims against police here the medical providers associated with wells i just a moment on the lake in reading case because the facts are virtually indistinguishable from those here there there was a claim to she sued her attorney for legal malpractise in federal district court and she filed a certificate of merit saying check in with third box saying i don't need an expert for this case and the district court looked at her complaint and looked at the certificate of merit and said actually underworld twelve  think you are going to need an ex parte for this type of tort claim and here you say you haven't stated clause of all claims and i'm going to grant a defendant's motion to dismiss underworld twelve the sex and this court reversed in like in reading that was the holding it said it's error for district court to engage in that sort of analysis as part of a world twelve motion to dismiss and quote it's that a filing under this rule the certificate of merit rule allows the case to proceed to discovery that's the language of lincoln writing leaving the consequence of lincoln time to factually develop the record to support their claims and that would be you know amply available and should be invoked if if that were to happen below by my client here basically nothing has happened in this case so far except for the filing of a complain i do think that is what happened below i think the district court misread the complaint i don't think the district court at all applied the liberal standing that this court decision and funtown and it's being court decisions say a liberal cross a pleading and entitled to a to your seem to be suggesting that there might be a need for additional discovery by your client if we send this back why and how does he get it given the focus of this case it seems to be an attempt to shift the focus away from the toss out the case because of the box that my client selected in the c o m the third box whether that decision under roll call the sex was proper and our submission is under lock and reading no that was or that was error that was legal error a district court is poor closed from looking at a c o m in conjunction with a complaint as part of will tell you did this is what happened here the district court said the district her gave thirty more days to file appropriate  that's that's what happened right that was one step and and at the end of thirty days nothing more was filed the defendants filed a legan reading and this comes from the erie doctrine ligon reading tells district courts when you're applying the state law rules in federal court the certificate amount rules you can't do so in a way that directly collides with the federal rules of civil procedure and will eight says in a of the sufficiency of the pleadings analysis and rule twelve six jumps or so it was just wrong for the district court you know respectfully to issue that order to my client saying i think in order to make your claims clause on your complaint you need to file this new certificate with the first or second box checked have been had the court also said that with without an expert which you said you're not going to provide by checking walkthrough you can establish your kids yes judge fisher and that is and i was trying to get to that would judge mckee that you know that might be potentially an alternative basis for this court to affirm to say ok so now that stripping out the medical negligence claims where you need an expert how do you stated this  seven one forty seven one sixty four one ninety two where this plane of says again and again i was in a state of shock when all of this happened so if i could just take them i know is a very difficult complaint to digest and when i first saw it myself i had some time houston looked in his right eye and started screaming oh my my client says he went into a state of shock he says that on eighty two on one forty seven and again on one ninety two and within moments he says that this doctor houston her directed him to an operating chair lasered as i and he walked outlined my client's brother was there there's an eyewitness that we haven't heard from but my client brother who's who is with us this sat through this her moment witnessed all of this and so my client would like to factually develop his case he would like to present his testimony in an affidavit he would like his brother to be able to present testimony he would like to stop or you know have to say something under oath we haven't heard from the stock or who knows maybe a deposition this doctor would say yes i you  up who knows we haven't heard from the doctor under oath and there's cause of all allegations here to battery battery elements of battery as i hardly need to educate this house are in unwanted touching and worded where in his  gross negligence so we would say that these claims also sound in gross negligence or negligence per se you know the standards of gross negligence are the type of negligence that an ordinary layperson can appreciate an ordinary laborer jury can appreciate  we if we use the term gross negligence in the brief and misused it it was to can they this negligence per se concept of the type of negligence that's not the medical negligence for which you need an expert for what testimony under pennsylvania law but the type of excessively obvious negligence that a lay jury could could understand and the facts of cases i'm sorry did she chose you know but the some of the facts of the pennsylvania state cases where court have affirmed findings of negligence per se are not so different from there you know you have examples where it is left in a patient's body where a dentist tool slips in and the patient gets hurt where you know this court in the mentality case in two thousand and three in an opinion by judge ambrose said you could have a negligence per se theory without an expert and so the claim that there hadn't had filed box three on the c o m and this court said in two thousand and three that that person could prevail on the m where in that instance there had been a fill facility that didn't give the inmate insulin for almost twenty one hours and experience negative consequences so it's wholly possible under pennsylvania law to sue a medical provider without an expert but you are limited to a battery theory or claim so that he could demonstrate to a fact finder that he can prevail on the merits without an expert and just one piece i wanted to highlight from the brief a little bit more because i think that's exactly analogous to what's going on here we cited at page twenty four it's actually a pennsylvania state case leckie case and it's a superior court decision from twenty fifteen it's leckie l e c k y and it's on twenty four of our brief that cases just helpful for what didn't happen here you had a and so there was a little bit more discovery there was a deposition then there were summary judgment proceedings and then the trial court said ok now that i look at the deposition and i look at what this trial with what this doctor said i think you really did need an expert for the sort of claims on a grand summary judgment to the defendant but that's what hasn't happened here my client has had no opportunity to actually develop what happened to him with testimony from his brother the medical records he's requested he's never even seen his own medical records i houston the employer in britain of vitreous associates and then a whole slew of other defendants who really were on the other claims that are really not at issue on the appeal which is why in the  basically make the same argument so what we've done is with the court's permission we've decided the we've divided the issues is i will address the legen reading certificate of merit issues and counsel for all will but will cover both of us and counsel for will side with the remaining three minutes will cover the alternative basis if that's ok with your honor's the first thing that i need to do is to correct myself in the brief i ask this court to overrule leg in writing i can't do that you know we can't you can't do that i'm sorry and i shouldn't have asked asked it that way and another part of the brief i say revisit but i'm not and i determined that this case is distinguishable probably a grabbing and they can do that by looking at the pennsylvania substantive law to see whether there's intervening authority that would change the liga reading decision and those cases that would be the kabul versus bell sports case it's six fifty one this is not sufficient so now i'm going to give you the extra thirty days we assert in our brief extra thirty days for what to submit the correct what was incorrect with the first for the first form the courts trying to assess the adequacy of marriage the court just kind of threw up its hands in frustration over all the things that when they're based upon as mistress of the where the court the trial court made an early assessment of the certificate of merit as compared to the complaint are you saying an early assessment as opposed to an assessment based on the memorandum dealing with these issues however if you look at the actual motion we don't say we don't ask the court to dismiss as failing to state a claim upon which relief is granted for the certificate merit issue our position is that's not the proper legal procedure you can it because failure to state a claim looks at the complaint nothing else right and that by the your is valid in pennsylvania now ok let me die prophetical let's say that i put in my complaint that i left the following facts patient a goes into the hospital in his booking form for me but the what the other thing is it's not any kind of this isn't a simple negligence case that will be self evident to the lay person why why why given the allegations as all we have here  to know someone happened and maybe shouldn't happen well your honor i think what you're doing is you're sort of sorry buying into the plaintiff's argument that's contained in their brief that medical malpractise professionals should not spontaneously decide family procedures and when you go in and put in a professional make an assessment and these assessments deal with medical judgment it's a medical negligence case it's not a negligence per se it's not  any trial court has the ability to look at the claims raised and assess them against the certificate of merit it is not a question of adding pleading requirement and it doesn't   we've already said in the league in reading this a certificate in the requirement because it's substantive is applicable in federal court we've said ok now you just said by five minutes ago that the district court dismissed this not for failure to state a claim but dismissed it essentially on your motion to dismiss is what happened you filed this isn't that a procedural step which is governed by our rules of civil procedure and if it is where is the provision that allows you to do this many dismissal outside the pleadings aren't you really asking for an early conversion of this question into a summary judgment motion that's a long question but  that you'll take you'll take it but i also understand your honor to take it even up another job you know you'll take it but my quandary is i understand your argument and i understand what the district court did here i also understand the confusion coming from the c o m requirement ok but i can't find i can't quite find this right to dismiss unless it comes under rule forty one and if it comes  rule forty one brings in a whole other set of procedures and factors that we have to look at so i'm just wondering if this maybe wasn't would have been better handled with the summary judgment know it was called a motion to dismiss ok and what it was based on was the pennsylvania substantive law that a plaintive independently thought for what i what my point that i made that i thought maybe you overlook i'm not sure that when you dismiss or don't dismiss a case in a diversity case isn't procedural i know the c o m is substantive but when the district court procedure ok now what you did you didn't ask for that no but that's an that's in fact what the court did ok because of the extra thirty days and with a good day and that's exactly what that's what that's exactly what the court told the plaintiffs this is what you need in order to be able to support your your case point it was given thirty days didn't add anything to the record and so the court said your case is basically you can't zero they would they needed he told the plaintiff that the district court told the plaintiffs that he needed certificates of merit with supporting signed statements because he was pro se he had to have the actual statements which is part of pennsylvania law  and i suspect though i knew they would argue on the rules to all the it's at all parties must be given reasonable opportunity to present all material relevant to the motion and and that would have been th thirty days you're saying that's the thirty day that's the thirty days he had already had plenty of time it wasn't until i think it was in october that the district court had made that ruling and gave him it back and i think that the case was started in early june if i recall correctly so have plenty of time to get the et to get the expert i would like to if i could i don't know if i'm out of time very quickly ok would simply like to point out to this court that if the position is that yes there can be batteries there can be negligence claims that and even they don't require experts that's why you have to have the third box but the trial courts in trying to get rid of cases early on that don't have merit has the ability to compare the complaint to the certificate of mere i would also suggest to this court that if you look at all of the cases cited by the plaintiffs brief and are brief and the reply brief all claim this case is saying that oh you've got a way to summary judgment there's no published case and in pennsylvania law that says you cannot do this at an early stage and if you look at mccool and even if you look at the pritchard dissent you'll see the judges in pennsylvania want to get rid of the cases if they haven't been properly the district court's order and as we as you've already heard discussed it's our position that the judge essentially converted the motion into a motion for summary judgment by giving the plaintiffs time in which to present expert evidence you said essentially you didn't do it explicitly but i think when you look nor invoking trail but when you look at what he did i think we can sort of been further and we can ask you to affirm on any basis appearing on record to take a look at this and say yes that was correct i think you can do that because if it did if the court does decide to remain the case we will most likely we can or you of course for any reason that supported by the record yes but isn't there something very important he needed to present an expert evidence based upon the allegations made in the complaint within thirty days and so it's submit that the judge did give the plate at some time to respond and if the plaintiff's precluded from an expert at this case goes back to lonely have upon plaintiffs counsel's mission the battery claim which you can have like areas liability battery claim against a hospital institution and then potentially the negligence per se but i would submit under pennsylvania law this case doesn't fall under the typical negligence per se judge mikey you are asking about that typically pennsylvania cases that talk about language or say talk about cases in which study determination can be made as to whether or not the nature of the claim and with the nature of the injury is the type that ought to require expert test i do agree  twelve six dismissal as her attorney night saying that that the district court's decision was proper on that basis but in the event that this court does not think that was a proper basis then we presented the really mischaracterizing pennsylvania law they basically have one case which they say that the mccool case that supports their idea that under pennsylvania law courts can do this early analysis where they compare at the missal of claims at any point it's a peculiar case there are all these things going on there's one paragraph where the commonwealth court opines on the validity of throwing out the complaint and says and also a certificate of merit was you know filed with the third box checked and we think you probably would need an expert but that case is a very thin reed to lean on first and foremost because it really is all about the peculiar requirement allowances under the p l r a to move for dismissal early on every other case goes our way including a case that post dates mccool the two thousand and thirteen prichard case with a cite for the dissent the majority in that case superior court case says all these things about the form of proof and whether you actually need an expert quote are not an appropriate consideration at the time actions on something as superior court said you don't grant preliminary objections under pennsylvania state procedure because of the box that the plaintiff checked in the certificate that's just not how it happens in state court the case progresses there's something to develop the factual record to support their claims and that's what should have happened here and just the second point i would make you know for the study of determination as one of your honor said about you know whether the claims really could support a battery or negligence per se theory with some factual development and then the second point i would just make about this alternative of furman's because the court sensually did a rule twelve this matter will be taken under advisement and we will ask the clerk to