J-A03024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHARLES GALEANO & PATRICIA 

GALEANO

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

SUSQUEHANNA HEALTH SYSTEM AND 

WILLIAMSPORT REGIONAL MEDICAL 

CENTER

Appellees No. 1182 MDA 2016

Appeal from the Order Entered May 12, 2016

In the Court of Common Pleas of Lycoming County

Civil Division at No: 14-00629

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY STABILE, J.: FILED MAY 17, 2017

Charles Galeano (“Charles”) and Patricia Galeano (“Patricia”) 

(collectively “Appellants”) appeal from the May 12, 2016 order entered in 

the Court of Common Pleas of Lycoming County granting summary judgment 

in favor of Susquehanna Health System and Williamsport Regional Medical 

Center (“Appellees”). Appellants contend the trial court erred by classifying 

their premises liability claims against Appellees as professional negligence 

claims requiring medical expert testimony. Following careful review, we 

affirm in part, vacate in part, and remand.
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In Grossman v. Barke, 868 A.2d 561 (Pa. Super. 2005), this Court 

explained our standard and scope of review from the grant of summary 

judgment as follows:

Summary judgment properly is granted after the close of the 

relevant pleadings “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” and the moving party is entitled to judgment as a 

matter of law. Pa.R.C.P. 1035.2(1). The standard of our review 

of an order granting or denying a motion for summary judgment 

pursuant to Rule 1035.2 is well established. In reviewing an 

order granting summary judgment, an appellate court must 

examine the record in the light most favorable to the nonmoving party. We will reverse only if there has been an error of 

law or a clear abuse of discretion. Our scope of review is plenary 

with regard to questions of law. However, we are not bound by 

the trial court’s conclusions of law and, instead, we may reach 

our own inferences and conclusions. 

Id. at 566 (quotations and citations omitted). 

Examining the record in the light most favorable to Appellants—and in 

particular the pleadings and Charles’ deposition, we can summarize the 

underlying facts as follows. Charles was born on June 25, 1954, and was 57 

years old on March 20, 2012, the date he fell at the Williamsport Regional 

Medical Center, a facility that housed a physical therapy department. 

Charles had a medical history that included myriad conditions and 

procedures, including bariatric surgeries and the placement of stents after 

suffering heart attacks. Most recently, he had undergone amputation of his 

great right toe in December 2011. He had been off his feet the majority of 
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the time after his December 2011 surgery and was at the medical center’s 

physical therapy department for evaluation prior to his fall.

Charles acknowledged he was tired at the end of his evaluation. The 

therapist offered him a wheelchair to get to his car but he declined, 

indicating he just wanted to rest for a few minutes. When he left the 

department, he walked with a cane as he and Patricia headed toward the 

exit of the building, following the same path they took upon arrival. When 

he came upon an automated mat that opened double doors in the hallway, 

half of my shoe was on the metal [edge of the mat] and half of it 

was on the mat. . . . [W]hen my right foot . . . came down and 

hit the mat, the front of my shoe, it stuck. . . . [W]hen my foot 

stopped, I guess my weight carried me forward and I lost my 

balance and I threw my cane out, . . . and I spun around and 

then fell backwards.

Deposition of Charles Galeano, 7/24/15, at 142-144. As a result of the fall, 

Charles sustained injuries including a fractured left ankle.

Appellants initiated an action against Appellees and filed a complaint 

titled “Civil Action – Complaint (Premises Liability).” Complaint, 5/27/14, at 

1. After identifying the parties and alleging that both Appellees were health 

care providers, Appellants set forth factual allegations concerning the events 

of March 20, 2012, including references to Charles’ compromised physical 

condition. Id. at ¶¶ 1-25. Appellants then alleged:

26. [Appellees] were negligent and careless in:

(a) Failing to take steps to correct the hazardous 

conditions resulting from the utilization of flooring 
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materials with a significant disparity in skid 

resistance;

(b) Failing to conduct inspections of the flooring area in 

the corridor of the facility leading to the entrance;

(c) Failing to warn of the dangerous conditions of the 

flooring;

(d) Failing to recognize that [Charles] required 

assistance and support to safely exit the facility; and 

(e) Failing to properly facilitate the required wheelchair 

escort and/or assistance for [Charles] to safely exit 

the facility.

Id. at ¶ 26. In Count I of the complaint, Charles claimed he suffered 

injuries and damages “[a]s a direct result of the aforesaid negligence and 

carelessness of [Appellees].” Id. at ¶¶ 27-32. In Count II, Patricia asserted 

a consortium claim against Appellees. Id. at ¶¶ 33-36. Appellants then 

presented Count IV1in which they alleged the following claims titled 

“Corporate Liability” against Appellees:

43. [Appellees] were careless and negligent and failed in their 

duty to provide safety to [Charles] as follows:

(a) Failing to properly select, place, train and supervise 

personnel with respect to safety in their facilities; 

and 

(b) Failing to establish and implement proper protocols 

and to ensure the safety of patients in their facilities, 

including the use of wheelchairs and other 

transportation assistance.

____________________________________________

1 There is no Count III in the Complaint.
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Id. at ¶¶ 37-43.

On June 4, 2014, Appellees filed an answer to the complaint denying 

Appellants’ assertions of negligence and raising various affirmative defenses. 

Appellants filed their reply to new matter on June 27, 2014. 

The trial court issued a number of scheduling orders and granted 

requests for continuance, the last of which placed the case on the June 2016 

trial list. Application for Continuance and Order, 1/25/16, at 1-2. By 

separate order of the same date, deadlines for motions in limine and expert 

reports were established and a pre-trial conference was set for April 26. 

Order, 1/25/16, at 1. On April 25, 2016, Appellees filed their motion for 

summary judgment asserting, for the first time, that Appellants’ claims were 

medical negligence claims and that Appellants’ expert, a professional civil 

engineer, was not qualified to testify as to the applicable standard of care 

and medical causation. Alternatively, Appellees sought preclusion of the 

expert’s testimony. On the same day, Appellees filed, for the first time, a 

notice of intention to enter judgment of non pros for failure to file a 

certificate of merit pursuant to Pa.R.C.P. 1042.3.2

The trial court heard oral argument on May 9, 2016, and granted

summary judgment by order entered on May 12, 2016. The trial court 

concluded that Appellants’ claims sounded in professional negligence; that 

____________________________________________

2 See n. 4, infra.
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Appellants’ expert was not qualified to offer opinions relating to medical 

judgment or causation; and that Appellants could not prove their case 

without a medical expert. Trial Court Opinion, 5/12/16, at 2-4.

Appellants filed a motion for reconsideration of the May 12, 2016 

order. By order entered July 6, 2016, the trial court denied the 

reconsideration motion. This timely appeal followed. The trial court did not 

order the filing of a Rule 1925(b) statement of errors complained of on 

appeal but did file a Rule 1925(a) opinion on July 20, 2016. In that opinion, 

the trial court indicated that the reasons for its grant of summary judgment 

were set forth in its May 12, 2016 opinion. 

In this appeal, Appellants ask us to consider three issues:

1. Whether the Complaint of Appellants[] stated a premises 

liability cause of action against Appellees[], separate and 

apart from a claim of medical malpractice, based upon the 

hazard presented by an automatic door mat?

2. Whether premises liability expert, Joseph Graci, P.E., was 

qualified to testify that the automatic door mat which 

[Charles] encountered presented a hazard to persons with 

ambulatory impairments which caused his fall?

3. Whether the interests of justice required the [c]ourt to 

consider Appellees’ Summary Judgment Motion filed late 

when the issue presented could have and should have been 

raised earlier?

Appellants’ Brief at 4.

As reflected above, we view the record in the light most favorable to 

Appellants and will reverse only if there has been an error of law or clear 

abuse of discretion. Grossman, 868 A.2d at 566. However, we are not 
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bound by the trial court’s conclusions of law and may reach our own 

inferences and conclusions. Id. 

In their first two issues, Appellants argue that their complaint stated a 

premises liability claim, separate from a claim of medical negligence, and 

that Appellants’ engineering expert was qualified to testify that the mat 

presented a hazard to Charles and individuals similarly situated. Appellants 

contend that the trial court erred in its conclusion that Appellants raised 

medical negligence claims and that their expert was unqualified to testify. 

They contend the trial court’s grant of summary judgment on those grounds 

is unsupported by the allegations in the complaint and that the trial court’s 

reliance on this Court’s decision in Grossman is misplaced. 

In Grossman, the plaintiff’s decedent was injured when she fell from 

an examining table while her doctor was out of the room. Id. at 564. 

There, the doctor who knew of his patient’s history of diabetes and dizziness, 

left the room after directing the woman to get on the exam table. Id. The 

trial court determined the plaintiff presented a medical malpractice claim and 

granted summary judgment in favor of the physician for lack of expert 

testimony to support causation. Id. at 565. On appeal, the plaintiff argued 

the trial court erred in granting summary judgment because her expert’s 

testimony supported the plaintiff’s negligence claims and medical expert 

testimony was not required. Id. We explained: 
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Plaintiff argued to the trial court . . . that the case was one of 

ordinary negligence, not medical malpractice. The trial court, 

however, treated the case as a medical malpractice case. . . .

Although the basic elements of both ordinary negligence and 

medical malpractice are the same, medical malpractice has 

distinguishing characteristics. Medical malpractice is further 

defined as the “unwarranted departure from generally accepted 

standards of medical practice resulting in injury to a patient, 

including all liability-producing conduct arising from the rendition 

of professional medical services.” Toogood[ v. Owen J. Rogal, 

D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003).] The underlying 

elements of negligence in a medical malpractice claim, mirroring 

those of a basic negligence claim, see Estate of Swift [by 

Swift v. Northeastern Hosp., 456 Pa. Super. 330, 690 A.2d 

719, 722 (1997)], are more specifically described as a “duty 

owed by the physician to the patient, a breach of that duty by 

the physician, that the breach was the proximate cause of the 

harm suffered, and the damages suffered were a direct result of 

the harm.” Toogood, 824 A.2d at 1145 (quoting HightowerWarren v. Silk, 548 Pa. 459, 698 A.2d 52, 54 (1997)).

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, “[b]ecause 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.” Id.

Grossman, 868 A.2d at 566-67.

Before addressing the need for expert testimony, this Court in 

Grossman first considered whether the case should be characterized as one 

of ordinary negligence or medical malpractice. In absence of guidance from 

our Supreme Court outlining factors to be weighed when determining 

whether a complaint sounds in ordinary negligence or medical malpractice, 

the Court indicated that the averments of the complaint would determine the 
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theory asserted. Id. at 568. The Court looked to case law from New York 

and Michigan, two jurisdictions that have addressed the ordinary negligence 

vs. medical malpractice issue, and noted that “[i]n describing the difference 

between the two types of claims, certain New York state courts, for example, 

have indicated that conduct is considered to be malpractice when it 

constitutes medical treatment, that is, when it involves diagnosis, care and 

treatment by licensed medical professionals.” Id. at 569 (internal 

quotations, brackets and ellipses omitted). 

Although our Supreme Court has not considered the “ordinary 

negligence vs. medical malpractice” issue, the issue was addressed at length 

in a dissenting opinion authored by Justice Todd in Ditch v. Waynesboro 

Hospital, 17 A.3d 310 (Pa. 2011) (Todd, J. dissenting). In Ditch, the 

majority issued a per curiam order affirming this Court’s ruling, which in turn 

affirmed the trial court’s order entering judgment of non pros for failure to 

file a certificate of merit in a case involving claims on behalf of a stroke 

victim who fell out of her hospital bed and later died. Id. at 311-12. The 

appellant unsuccessfully argued that her complaint asserted ordinary 

negligence rather than medical negligence against a hospital. Id. at 312-13. 

In her dissent, Justice Todd expressed her belief that the appellant’s 

claims were garden-variety negligence claims, not medical negligence claims 

requiring a certificate of merit. Justice Todd noted that by affirming this 

Court’s ruling in a per curiam order, “the Court declines to confront and 
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resolve a significant issue of statewide importance that has not been 

addressed by our Court[, i.e.,] the question of how to define the distinction 

between ordinary negligence and professional negligence in the health care 

setting.” Id. at 310 (Todd, J., dissenting). Justice Todd embarked on a 

review of cases from our Court that have produced inconsistent results, as 

well as a review of cases from a multitude of our sister states, concluding 

that: 

[T]he proper approach in discerning whether a claim alleges a 

deviation from “an acceptable professional standard” in the 

health care setting—i.e., whether a cause of action sounds in 

ordinary negligence or professional negligence—should include 

an analysis of whether the actions complained of involve 

technical complexity or esoteric issues involving medical 

judgment beyond the realm of common knowledge and 

experience, or are matters of nonmedical, administrative, 

ministerial, or routine service, which a jury is competent to 

determine.

Id. at 318.3 

____________________________________________

3

Justice Todd surveyed nearly two dozen cases, two of which are cases from 

our Court, that we include here for illustrative purposes, noting:

Our Court has not spoken to this important issue in the discrete 

area of health care, generally, or within the ambit of hospital 

injuries in particular. Our lower courts, however, have 

addressed the issue in the medical context, but have come to 

differing results. Compare . . . Swift v. Northeastern Hosp. 

of Philadelphia, 456 Pa. Super. 330, 690 A.2d 719 (1997) 

(determining plaintiff’s claim that she slipped and fell on water 

on floor in emergency room restroom raised claim of premises 

liability and not malpractice) with . . . Grossman v. Barke, 868 

A.2d 561 (Pa. Super. 2005) (plaintiff, who suffered injuries due 

to fall, after physician directed her to get on examination table, 

(Footnote Continued Next Page)
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Although our Supreme Court has not addressed the “ordinary vs. 

professional negligence” issue in the context of health care providers, it has 

addressed similar situations in the context of whether a Pa.R.C.P. 1042.3 

certificate of merit is required.4 For instance, in Merlini ex rel. Merlini v. 

(Footnote Continued) _______________________

then left the room, asserted liability based upon defendant’s 

professional knowledge, as a physician, and intended to proceed 

on medical malpractice theory of negligence).

Id. at 316 (additional citations omitted).

4 Pa.R.C.P. 1042.3. Certificate of Merit provides, in pertinent part:

(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.
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Gallitzin Water Authority, 980 A.2d 502 (Pa. 2009), the trial court 

entered a judgment of non pros against Merlini in her action against a water 

authority, engineers, and contractors who constructed a water line on her 

property without a right-of-way, easement, or permission. Our Court 

reversed, finding that Merlini’s complaint alleged ordinary negligence rather 

than a professional liability claim and, therefore, no Rule 1042.3 certificate 

of merit was necessary. Id. at 504. “[W]hether there was a breach of that 

duty did not require professional judgment, but only an understanding of the 

location of Merlini's property and of any applicable right-of-way or 

easements intersecting the installed water line.” Merlini ex rel. Merlini v. 

Gallitzin Water Authority, 934 A.2d 100, 106 (Pa. Super. 2007). 

Our Supreme Court affirmed, agreeing with this Court’s determination 

that Merlini’s complaint sounded in ordinary negligence and noting: 

As the Superior Court found, appellant’s actions occurred while it 

performed professional services; however, the issue Merlini 

raised was not one of professional judgment beyond the scope of 

common knowledge and experience. Merlini asserted a claim of 

basic negligent trespass—this is not a breach of a duty owed by 

a professional, but a breach of a duty owed by any third party 

entering upon the property of another. As the Superior Court 

acknowledged, expert testimony may be required to clarify the 

property rights as established through state, county, and 

municipal records; however, once that factual issue is clarified, 

whether appellant trespassed will not require further expert 

elucidation. 

Merlini, 980 A.2d at 507-08.

Our review of Appellants’ complaint reveals that, with the exception of 

the corporate liability claims in Count IV, Appellants’ claims are garden-
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variety negligence claims asserting a claim for premises liability against 

Appellees relating to an automated door mat in the hallway of Appellees’ 

medical facility. As Appellants correctly indicate, Charles’ fall occurred as he 

was making his way toward the building’s exit, not in the course of 

treatment or any professional relationship with Appellees. Appellants’ Brief 

at 17. “The professional relationship between [Charles] and [his physical 

therapist] occurred within the course of the physical therapy evaluation 

which had been completed.” Id. “Whether the automatic door mat 

presented a hazard was a premises liability question which was addressed by 

a premises liability expert in support of the premises liability claims made in 

the premises liability Complaint.” Id. at 17-18. As such, we believe this 

case is more akin to Swift, where the plaintiff slipped and fell in the 

emergency room restroom, than Grossman, where the plaintiff fell from an 

exam table and was injured in the course of treatment. 

We conclude the trial court erred in its conclusion that Appellants’ 

claims were grounded in medical malpractice and required medical expert 

testimony to establish causation. Whether Appellees owed a duty to 

Charles, a business invitee, and whether Appellees breached that duty 

causing harm resulting in damages to Appellants, are not questions beyond 

the realm of common knowledge and experience that a jury is competent to 

determine. We conclude the trial court erred in determining that Appellants’ 

premises liability claims were medical negligence claims requiring medical 
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expert testimony. Therefore, we vacate the trial court’s grant of summary 

judgment in part and remand for further proceedings on Appellants’ 

premises liability action. To the extent Appellants’ expert can offer expert 

testimony regarding the automated mat and any risks inherent in its 

composition or operation, his testimony should be permitted. However, that 

does not give carte blanche to Appellants’ engineering expert to offer 

opinions on medical causation, a subject area beyond the scope of his 

expertise. We agree with Appellees’ assertion that Appellants’ engineering 

expert “is not qualified to offer an expert opinion on the standard of care 

applicable to a licensed health care provider or whether any breach of such a 

standard caused harm to a patient.” Appellees’ Brief at 34 (citing 40 P.S. 

§ 1303.512(b) (relating to expert qualifications) (emphasis in original)). 

We further conclude that the claims raised in Count IV of Appellants’ 

complaint are claims of corporate liability requiring a certificate of merit and 

expert testimony unless the medical provider’s negligence is obvious. See, 

e.g., Rostock v. Anzalone, 904 A.2d 943, 945 (Pa. Super. 2006) (citing 

Grossman, 868 A.2d at 567). Therefore, we affirm the grant of summary 

judgment with respect to County IV of Appellants’ complaint only. 

In light of our disposition of Appellants’ first two issues, no discussion 

of the third issue, relating to timeliness of Appellees’ motion, is necessary.

Order affirmed with respect to Appellants’ corporate liability claims 

(Count IV). Order vacated with respect to the remaining premises liability 
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claims alleged in Appellants’ complaint. Case remanded for further 

proceedings consistent with this Memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/2017