J-A07007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KIMBERLY K. KING IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

CANON HILL VETERINARY CLINIC, INC. 

LEIGH A. MITCHELL, HILLSIDE STABLES, 

INC., AND GAYLENE WALKER, T/D/B/A 

HILLSIDE STABLES

Appellee No. 644 WDA 2015

Appeal from the Order March 24, 2015

In the Court of Common Pleas of Washington County

Civil Division at No(s): 2012-1863

BEFORE: BOWES, J., MUNDY, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED MAY 10, 2016

Appellant Kimberly K. King appeals from the order entered in the 

Washington County Court of Common Pleas, which granted summary 

judgment in favor of Appellees Canon Hill Veterinary Clinic, Inc. and Leah 

Mitchell1(collectively “Appellees”).2

____________________________________________

1

Leigh A. Mitchell is the name listed on the caption and on the cover of the 

appellate briefs, but the trial court and Appellee Mitchell note her name is 

actually Leah Mitchell.

2 Summary judgment was also granted in favor of Hillside Stables, Inc. and 

Gaylene Walker, t/d/b/a Hillside Stables (“other defendants”). Appellant is 

not appealing the order of summary judgment as it pertains to those parties.
J-A07007-16

- 2 -

The relevant facts and procedural history of this appeal are as follows. 

On April 5, 2010, Appellant was at Hillside Stables attending to her own 

horse when her friend’s horse, Ruby, exhibited signs of distress. Appellant 

helped walk and calm the horse until Dr. Mitchell arrived in response to 

Ruby’s owner’s request. Appellant led Ruby on a lead rope while Dr. Mitchell 

removed fecal matter from Ruby and gave her a sedative. At some point, 

after Appellant warned Dr. Mitchell the horse was “going down,” Ruby fell 

down and kicked Appellant in the face, causing injuries.

Appellant filed a complaint against Appellees and other defendants on 

May 23, 2012.3 On December 10, 2014, following completion of the 

pleadings, the court ordered Appellant to file an expert report relative to the 

claims against Appellees. Appellant did not file an expert report.

On February 17, 2015, Appellees filed a motion for summary 

judgment, which maintained Appellant could not carry her burden of proof 

because she failed to produce an expert report, as was required in 

professional negligence actions. Appellant filed a response, which averred 

her claim sounded in ordinary negligence. The court heard argument on the 

motion. 

____________________________________________

3 Appellant initiated the action by filing a writ of summons on March 29, 

2012. 
J-A07007-16

- 3 -

On March 24, 2015, the court granted Appellees’ summary judgment 

motion because Appellant’s failure to submit an expert report was fatal to 

her action. Appellant timely filed a notice of appeal on April 17, 2015. On 

May 6, 2015, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) 

statement, and she timely complied on May 22, 2015.

Appellant raises the following issues for our review:

1 WHETHER THE [TRIAL] COURT COMMITTED ERROR OF 

LAW OR AN ABUSE OF DISCRETION IN GRANTING 

SUMMARY JUDGMENT IN FAVOR OF [APPELLEES] IN ITS 

ORDER OF MARCH 23, 2015[?]

2 WHETHER [APPELLANT’S] COMPLAINT AGAINST 

[APPELLEES] ALLEGES ORDINARY NEGLIGENCE - THAT 

[APPELLEES] FAILED TO EXERCISE ORDINARY CARE TO 

NOT EXPOSE [APPELLANT] TO AN INCREASED RISK OF 

HARM[?]

3 WHETHER [APPELLANT’S] COMPLAINT AGAINST 

[APPELLEES] SOUNDS IN PROFESSIONAL NEGLIGENCE 

SUCH THAT SHE NEED[ED TO] SUBMIT AN EXPERT 

REPORT TO SUPPORT HER CLAIM[?]

Appellant’s Brief at 4.

In her combined issues, Appellant argues the court erred in granting 

summary judgment based on the fact that she did not have an expert 

report, because her claims against Appellees sound in ordinary, not 

professional, negligence. Appellant’s claims merit no relief.

Our standard of review for a court’s order granting a motion for 

summary judgment is as follows:

We view the record in the light most favorable to the 

nonmoving party, and all doubts as to the existence of a 
J-A07007-16

- 4 -

genuine issue of material fact must be resolved against the 

moving party. Only where there is no genuine issue as to 

any material fact and it is clear that the moving party is 

entitled to a judgment as a matter of law will summary 

judgment be entered. Our scope of review of a trial 

court’s order granting or denying summary judgment is 

plenary, and our standard of review is clear: the trial 

court’s order will be reversed only where it is established 

that the court committed an error of law or abused its 

discretion.

Kozel v. Kozel, 97 A.3d 767, 772 (Pa.Super.2014) (quoting Daley v. A.W. 

Chesterton, Inc., 37 A.3d 1175, 1179 (Pa.2012)).

The Pennsylvania Rules of Civil Procedure provide, in relevant part:

Rule 1035.2. Motion

After the relevant pleadings are closed, but within such 

time as not to unreasonably delay trial, any party may 

move for summary judgment in whole or in part as a 

matter of law

(1) whenever there is no genuine issue of any material 

fact as to a necessary element of the cause of action or 

defense which could be established by additional 

discovery or expert report, or

(2) if, after the completion of discovery relevant to the 

motion, including the production of expert reports, an 

adverse party who will bear the burden of proof at trial 

has failed to produce evidence of facts essential to the 

cause of action or defense which in a jury trial would 

require the issues to be submitted to a jury.

Pa.R.C.P. No. 1035.2.

Further, we observe:

The record for purposes of deciding a motion for summary 

judgment includes the pleadings, depositions, answers to 

interrogatories, admissions, and affidavits, Pa.R.C.P. 

1035.1(1), (2), but oral testimony alone, of the moving 

party or his witnesses, i.e., affidavits or depositions, even 

if uncontradicted, is generally insufficient to establish the 
J-A07007-16

- 5 -

absence of a genuine issue of material fact, see [Karoly 

v. Mancuso, 65 A.3d 301, 308–09 (Pa.2013)], 1035.2 

note (citing Penn Center House, Inc. v. Hoffman, 553 

A.2d 900 ([Pa.]1989); Borough of Nanty–Glo[, 

supra.]). Moreover, “[t]he questions of whether there are 

material facts in issue and whether the moving party is 

entitled to summary judgment are matters of law.” 

Alderwoods (Pennsylvania), Inc. v. Duquesne Light 

Co., 106 A.3d 27, 34 n. 5 ([Pa.]2014) (citations omitted). 

Bailets v. Pennsylvania Tpk. Comm'n, 123 A.3d 300, 304 (Pa.2015).

Under Pennsylvania law:

To prevail in any negligence action, the plaintiff must 

establish the following elements: the defendant owed [the 

plaintiff] a duty; the defendant breached the duty; the 

plaintiff suffered actual harm; and a causal relationship 

existed between the breach of duty and the harm. In a 

professional malpractice action, the determination of 

whether there was a breach of duty requires the plaintiff to 

additionally show that the defendant's conduct fell below 

the relevant standard of care applicable to the rendition of 

the professional services at issue. In most cases, such a 

determination requires expert testimony because the 

negligence of a professional encompasses matters not 

within the ordinary knowledge and experience of 

laypersons.

* * *

[W]e discern that there are two questions involved in 

determining whether a claim alleges ordinary as opposed 

to professional negligence: (1) whether the claim pertains 

to an action that occurred within the course of a 

professional relationship; and (2) whether the claim raises 

questions of professional judgment beyond the realm of 

common knowledge and experience.

French v. Commonwealth Associates, Inc., 980 A.2d 623, 630-31 

(Pa.Super.2009) (citation omitted).
J-A07007-16

- 6 -

This Court has most often discussed the distinction 

between ordinary and professional negligence in the 

context of medical malpractice cases. 

* * *

In order to determine what theory of liability [a plaintiff] is 

asserting, this Court must examine the averments she 

makes in her complaint. 

Merlini ex rel. Merlini v. Gallitzin Water Auth., 934 A.2d 100, 104-05 

(Pa.Super.2007) aff'd, 980 A.2d 502 (Pa.2009) (internal citations omitted).

One of the most distinguishing features of a medical 

malpractice suit is, in most cases, the need for expert 

testimony, which may be necessary to elucidate complex 

medical issues to a jury of laypersons. In other words, 

because the negligence of a physician encompasses 

matters not within the ordinary knowledge and experience 

of laypersons, a medical malpractice plaintiff must present 

expert testimony to establish the applicable standard of 

care, the deviation from that standard, causation and the 

extent of the injury.

Yee v. Roberts, 878 A.2d 906, 912 (Pa.Super.2005) (internal quotations 

and citation omitted). 

As to a cause of action based on the negligence of a 

veterinarian in the performance of his/her professional 

duties or services, we note at the outset that malpractice 

claims have traditionally arisen in the context of services 

provided by the legal and medical professions. Similar to 

the practice of law or medicine, the vocation of veterinary 

medicine involves specialized education, knowledge, and 

skills. We conclude, therefore, that professional negligence 

concepts also extend to veterinary medicine.

The practice of veterinary medicine is extensively 

regulated in Pennsylvania under the Veterinary Medicine 

Practice Act, 63 P.S. § 485.1 et seq. “Veterinary medicine” 

is defined as the “branch of medicine which deals with the 

diagnosis, prognosis, treatment, administration, 

prescription, operation or manipulation or application of 
J-A07007-16

- 7 -

any apparatus or appliance for any disease, pain, 

deformity, defect, injury, wound or physical condition of 

any animal or for the prevention of or the testing for the 

presence of any disease.” 63 P.S. § 485.3(9).

* * *

To state a cause of action based upon the negligent acts or 

omissions of a veterinarian in the performance of 

professional duties or services, the plaintiff must plead (1) 

the employment of the veterinarian or other basis for the 

duty; (2) the veterinarian’s failure to exercise the 

appropriate standard of care; and (3) that the 

veterinarian’s departure from that standard was the 

proximate cause of the animal’s injury or death. A plaintiff 

must specifically allege that the veterinarian was negligent 

in the performance of his professional services. 

Price v. Brown, 680 A.2d 1149, 1152-53 (Pa.1996).

Appellant concedes that this would be a professional negligence claim 

if the horse’s owner asserted liability against the veterinarian for injuries 

suffered by the horse, but claims that, because she is a third party who did 

not have a direct relationship with the doctor, her action is for ordinary 

negligence.

To determine whether Appellant is asserting professional or ordinary 

negligence, we need only look to her complaint. See Merlini ex rel. 

Merlini, supra.

In her complaint, Appellant alleges:

23. The injuries and damages to Plaintiff King are the 

direct and proximate result of the joint and several

negligence, carelessness and recklessness of the 

Defendants in the following respects:

(i) As to Defendants Canon Hill Veterinary Clinic, Inc., and 

Leigh A. Mitchell, agent, servant and/or employee of 

Defendant Canon Hill Veterinary Clinic, Inc.:
J-A07007-16

- 8 -

(a) In failing to blindfold the horse Ruby to reduce fear;

(b) In failing to hobble the horse to prevent it from 

kicking;

(c) In failing to properly restrain the horse;

(d) In failing to administer the appropriate sedative 

and/or the appropriate amount of sedative;

(e) In failing to wait until the sedative had fully taken 

effect before beginning the procedure;

(f) In failing to seek additional assistance when the 

horse became agitated;

(g) In failing to stop and reassess situation before 

continuing.

Complaint, filed May 23, 2012 at 4.

These allegations demonstrate that Appellant’s action is for 

professional negligence, because they relate directly to Dr. Mitchell’s 

improper treatment of Ruby while she was working on the horse as a 

veterinarian. Thus, it is an action that occurred while Dr. Mitchell was 

engaged in a professional relationship with Ruby, the first hallmark of a 

professional negligence case. See French, supra. Next, the claim raises 

questions of professional judgment beyond the realm of common knowledge 

and experience, the second test for a professional negligence claim. For 

example, a layperson would not likely know how much sedative to give a 

horse, how the horse would react to a sedative, or how long it would take 

the sedative to work. 

Because this is a professional negligence case, Appellant was required 

to submit an expert report that demonstrated that Dr. Mitchell breached the 
J-A07007-16

- 9 -

relevant standard of care. See Yee, supra. Because Appellant failed to 

submit an expert report, the trial court properly granted summary judgment 

in favor of Appellees.

Appellant’s citations to cases in which professionals are not acting in 

their capacity as professionals and can therefore be held liable for ordinary 

negligence are irrelevant. The doctor was clearly acting as a veterinarian 

and treating a horse when Appellant was injured, and Appellant claims her 

injuries were caused because the doctor was negligent in her veterinary care 

of the horse.

In granting Appellees’ summary judgment motion, the trial court 

reasoned:

Because these allegations involve care and treatment by 

Mitchell, a licensed veterinarian, and [Appellant] does not 

claim that Mitchell was otherwise negligent in another 

respect unrelated to the care and treatment of Ruby, we 

conclude that her complaint sounds in professional 

negligence. As a consequence, [Appellant’s] failure to 

submit an expert report to establish the applicable 

standard of care - and deviation from that standard - is 

fatal to her action.

Trial Court Opinion (granting summary judgment motion), filed March 18, 

2015, at 4. 

The trial court did not err as a matter of law or abuse its discretion in 

granting Appellees’ summary judgment motion. 

Order affirmed.
J-A07007-16

- 10 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/10/2016