UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD HARTMAN, :

:

Plaintiff : No. 4:CV-04-0209

:

vs. : (Case Transferred 01/28/04)

:

LOW SECURITY CORRECTIONAL : (Judge Muir)

INSTITUTION ALLENWOOD, et al.,:

:

Defendants :

ORDER

May 27, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On June 29, 2003, Plaintiff Richard Hartman initiated this

action in the United States District Court for the Southern

District of New York by filing a complaint containing 7 counts

against numerous entities and individuals. The events upon which

the case is based, including medical treatment provided to

Hartman, occurred in Pennsylvania. The matter was transferred to

this court and assigned to us on January 28, 2004. 

The claims in count 2 of Hartman’s complaint are based on

the allegedly negligent medical treatment provided to Hartman by

Defendants Dr. Dennis R. Smith and Evangelical Community

Hospital. Pennsylvania law requires a Plaintiff asserting a

professional negligence claim to file, within 60 days after

filing the complaint, “a certificate of merit signed by the

attorney or party” which establishes certain prerequisites to

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proceed with a medical negligence claim. See Pa.R.Civ.P. 1042.3. 

Hartman failed to comply with that requirement.

Three pending motions have been filed in this case as a

result of Hartman’s failure to file a certificate of merit in

accordance with Pennsylvania Rule of Civil Procedure 1042.3. On

February 28, 2005, Defendant Dr. Dennis R. Smith, M.D., filed a

“Praecipe For Entry of a Judgment Non Pros Pursuant to Pa.R.C.P.

1042.6” with respect to the claims against him. On March 1,

2005, we issued an order in which we construed that praecipe as a

motion to dismiss Hartman’s claims against Dr. Smith, and we

established a briefing schedule on the motion. A brief in

support of that motion was timely filed on March 15, 2005. 

A motion practically identical to that filed by Dr. Smith

was filed on March 8, 2005, by Defendant Evangelical Community

Hospital. The hospital filed a brief in support of its motion on

March 18, 2005.

The local rules of this court required Hartman, who is

represented by counsel, to file a brief in opposition to Dr.

Smith’s motion by April 4, 2005, and a brief in opposition to

Evangelical Community Hospital’s motion by April 6, 2005. See

M.D. Local Rule 7.6. After no brief was filed in opposition to

either motion to dismiss, on April 19, 2005, we issued an order

requiring Hartman, within 14 days after the date of the order, to

file such briefs within 14 days after the date of the order. The

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order expressly stated that “Hartman’s failure to comply with

this paragraph may result in the court granting the motions to

dismiss.” (Order of April 19, 2005, p. 3) The background of that

order stated the following:

The processing of this case has been substantially delayed

by Hartman’s counsel’s failure to comply with the

Pennsylvania Rules of Civil Procedure and the local rules of

this court. All counsel are reminded of their obligation to

learn and comply with those rules.

(Id., p. 2)

On April 26, 2005, Hartman filed a “Cross Motion of

Plaintiff to File Late Certificates of Merit.” Hartman

apparently filed that motion in lieu of the briefs required by

our order of April 19, 2005, because to this date he has not

filed a brief in opposition to either pending motion to dismiss.

We further note that Hartman failed to file a brief in support of

his so-called “Cross Motion.” 

If Hartman’s counsel’s failure to comply with out order of

April 19, 2005, or to file a brief in support of his “Cross

Motion” had made it more difficult to rule on the pending

motions, we would have issued a rule to show cause why sanctions

should not be imposed for violating the order. Because the

issues are relatively straightforward, and the documents filed by

the defendants are so thorough, we will not pursue the imposition

of sanctions at this time.

On May 3, 2005, Dr. Smith filed a brief in opposition to

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Hartman’s motion. On May 6, 2005, Evangelical Community Hospital

filed its brief opposing Hartman’s motion. On May 10, 2005,

Hartman filed a brief in reply to Dr. Smith’s brief. The time

allowed for Hartman to file a brief in reply to Evangelical

Community Hospital’s brief expired on May 23, 2005. To this date

no such reply brief has been filed and all three motions relating

to Hartman’s failure to file a timely certificate of merit in

accordance with Pennsylvania Rule of Civil Procedure 1042.3 are

ripe for disposition.

The parties have implicitly presumed in their briefs that

Pennsylvania Rule of Civil Procedure 1042.3 applied in this case

when Hartman filed it in the United States District Court for the

Southern District of New York. We researched the issue so that

we could confidently rely upon such a conclusion. Courts have

uniformly held that where the alleged acts underlying a

negligence claim occurred in Pennsylvania the substantive law of

Pennsylvania applies in diversity actions filed in a federal

court. See Gittes v. GMIS, No. 95 Civ. 2296, 1995 WL 505567

(S.D.N.Y. Aug. 25, 1995), 1999 WL 500144 (July 15, 1999)(Jones,

J.)(applying Pennsylvania law in legal malpractice action); Hardy

v. Kreider, 1996 WL 583176, *8 (E.D.Pa. Oct. 10, 1996)(Dubois,

J.)(“The medical malpractice claim alleged by plaintiff will be

addressed under Pennsylvania law. No choice of law question is

raised because all of the medical treatment in question took

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place in Pennsylvania and the law of no other state is implicated

by the facts of this case.”); Bonerb v. The Richard J. Caron

Foundation, 1995 WL 818657, *2 (W.D.N.Y. July 28, 1995)(in ruling

on a motion to transfer a negligence action filed in a New York

federal court, court observed that “Pennsylvania law will govern

the substantive issues in the case regardless of venue.”)

The fundamental issue common to all three pending motions

requires us to determine the action to be taken in response to a

plaintiff’s failure to comply with Pennsylvania Rule of Civil

Procedure 1042.3. Our consideration begins with the text of that

rule, which is as follows:

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) A separate certificate of merit shall be filed as to

each licensed professional against whom a claim is asserted. 

...

(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. The motion to extend the time for filing a

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certificate of merit must be filed on or before the filing

date that the plaintiff seeks to extend. 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. No. 1042.3.

The undisputed facts of record establish that Hartman failed

to file either a certificate of merit or a motion to extend the

time for filing such a certificate within the time allowed by the

rule. 

As a threshold matter we summarily hold that Hartman is not

entitled to file his certificates of merit late because his

motion to extend the deadline to file those certificates was

itself filed beyond the time allowed by Rule 1043.2(d). We will

deny his motion to file late certificates of merit. 

The moving Defendants contend that Hartman’s failure to

comply timely with Rule 1042.3 justifies the dismissal of

Hartman’s claims against them. Hartman argues that his failure

to comply with Rule 1042.3 should be excused because he has since

filed the required certificates of merit (one as to each

Defendant) and no party has been prejudiced by the untimely

filing of the certificates.

Two federal courts have considered the manner in which Rule

1042.3 applies to professional negligence actions brought in a

federal court pursuant to diversity jurisdiction. See Velazquez

v. UPMC Bedford Memorial Hospital, 328 F. Supp. 2d 549, rev’d in

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part on reconsideration, 338 F. Supp. 2d 609 (W.D. Pa.

2004)(Gibson, J.); Scaramuzza v. Sciolla, 345 F. Supp. 2d 508

(E.D. Pa. 2004)(Baylson, J.). Both of those courts concluded

that Rule 1042.3 should be applied in a diversity action as a

“controlling, substantive state law.” Velazquez, 338 F. Supp. 2d

at 613; Scaramuzza, 345 F. Supp. 2d at 510. In addition, both

courts held that a party’s failure to comply with Rule 1042.3

warranted dismissal of the claims at issue. Velazquez, 338 F.

Supp. 2d at 613; Scaramuzza, 345 F. Supp. 2d at 511 (observing

that “this court could dismiss plaintiff’s complaint without

prejudice for failure to file a certificate of merit, ....”).

However, despite arriving at those common conclusions, the

two courts reached different ultimate holdings. The contrast in

the two courts’ holdings stems from the fact that the court in

Scaramuzza proceeded to consider the additional issue of whether,

if the situation had arisen in state court, the plaintiff would

be entitled to obtain relief from the judgment of non pros

entered as a result of the failure to comply with Rule 1042.3. 

The court specifically stated the following:

If the Court were to consider whether plaintiff would be

entitled to relief from a judgment of non pros entered

pursuant to Pennsylvania Rule of Civil procedure 1042.6 –

though not obligated to make such a determination in

considering a motion to dismiss – the Court is satisfied

that under Pennsylvania law the Court would grant relief. 

Although this Court could dismiss plaintiff’s complaint

without prejudice for failure to file a certificate of

merit, dismissal without prejudice with leave to amend is

unnecessary and would only require paper shuffling and undue

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delay.

Scaramuzza, 345 F. Supp. 2d at 511-512. In the course of holding

that the plaintiff there would be entitled to relief from entry

of the judgment of non pros, the court in Scaramuzza relied upon

its observation that “the defendants have not shown they have

been prejudiced by the delay” in complying with Rule 1042.3. Id.

at 511.

For the following reasons, we are of the view that we should

not follow the practice espoused by the court in Scaramuzza in

ruling on the Defendants’ motions to dismiss Hartman’s claims

against them. As a factual matter, there are significant

differences between Hartman’s case and Scaramuzza. 

In our case the ramifications of Hartman’s failure to comply

with Rule 1042.3 could extend far beyond the mere “shuffling and

undue delay” considered by the court in Scaramuzza. As noted by

the Defendants, if Hartman’s claims are dismissed for the failure

to comply with Rule 1042.3 then Hartman may be barred by the

statute of limitations from pursuing those claims. The

potentially severe consequences at issue here dissuade us from

extending our analysis beyond the dismissal of Hartman’s claims,

which is the only conclusion we need reach to dispose of the

pending motions.

There is an additional reason for us to eschew reliance upon

Scaramuzza. As noted above, that court’s ultimate holding was

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based in part upon its observation that no defendant had been

prejudiced by the untimely compliance with Rule 1042.3. The only

reported Pennsylvania court decisions of which we are aware have

held that such prejudice is immaterial when considering whether a

plaintiff’s claims should be dismissed for the failure to comply

with Rule 1042.3. See Parkway Corp. v. Edelstein, 861 A.2d 264,

269 (Pa. Super. 2004); Helfrick v. UPMC Shady Side Hospital, 65

Pa. D. & C. 4th 420, 424-425 (Allegheny Co. 2003).

We will grant the moving Defendants’ motions to dismiss

Hartman’s claims against them. Because the sole reason to

dismiss those claims at this time is Hartman’s failure to comply

with Rule 1042.3, the claims will be dismissed without prejudice.

NOW, THEREFORE, IT IS ORDERED THAT:

1. Hartman’s motion to file late certificates of merit

(Document 57) is denied.

2. Defendant Dr. Smith’s motion (Document 49) to dismiss

Hartman’s claims against him is granted.

3. Defendant Evangelical Community Hospital’s motion

(Document 52) is granted.

4. Hartman’s claims against Dr. Smith and Evangelical

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Community Hospital are dismissed without prejudice.

s/Malcolm Muir 

MUIR, U.S. District Judge

MM:ga

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