J-A14039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEVEN FRIEDMAN, M.D., 

INDIVIDUALLY AND AS EXECUTOR 

OF THE ESTATE OF GAIL FRIEDMAN, 

DECEASED 

Appellant

v.

BRYN MAWR HOSPITAL, ALLISON 

WILLIAMS, PA, CHRISTOPHER X. 

DALY, MD, GEORGE J. HART, MD, 

GRAHAME C. GOULD, MD, ANCY 

SKARIAH, DO, ROSEMARY A. COOK, 

MD AND MAIN LINE HOSPITALS, 

INC.

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 IN THE SUPERIOR COURT

 OF PENNSYLVANIA

 No. 2915 EDA 2016

Appeal from the Order Entered August 24, 2016

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): 15-11939

BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.

DISSENTING MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 27, 2017

I respectfully dissent from the learned Majority’s conclusion that we lack 

jurisdiction over this matter and must quash the appeal. Rather, I conclude 

that this Court has jurisdiction pursuant to Pa.R.A.P. 313, the collateral-order 

doctrine. Thus, I would proceed to the merits of the appeal and find that the 

order declaring that Appellant is not an “attorney” for purposes of Pa.R.C.P. 

1042.3(a) and (e) should be reversed and the case remanded.
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As noted by the Majority, Appellant, Steven Friedman, M.D., filed a 

complaint on July 6, 2015, on behalf of himself, individually and as executor 

of the Estate of Gail Friedman,1 against Appellees, Bryn Mawr Hospital, Main 

Line Hospitals, Inc., Allison Williams, P.A. (“Williams”), Christopher X. Daly, 

M.D. (“Daly”), George J. Hart, M.D. (“Hart”), Grahame C. Gould, M.D. 

(“Gould”), Ancy Skariah, D.O., and Rosemary A. Cook, M.D.2 The complaint 

alleged negligence, negligent and intentional infliction of emotional distress, 

vicarious liability, willful and wanton misconduct, reckless endangerment, and 

loss of consortium. Complaint, 7/6/15, at 12–19. Eight amended complaints 

followed the filing of the initial complaint.

On August 7, 2015, Appellees filed a notice of intent to enter a judgment 

of non pros due to Appellant’s failure to file certificates of merit with 

attachments from licensed professionals pursuant to Pa.R.C.P. 1042(e). On 

August 14, 2015, Appellant filed certificates of merit for each defendant, which 

he, an attorney, signed electronically. As stated by the trial court, Appellant

“has steadfastly contended that he is not required to file certificates of merit 

with statements of reasonable probability pursuant to Pa.R.C.P. 1042.3(e).” 

Trial Court Opinion, 10/27/16, at 2. Rather, Appellant has consistently 

____________________________________________

1

 Gail Friedman, Appellant’s wife, passed away on October 31, 2014; her 

estate was dismissed by order dated June 20, 2016, leaving Appellant as the 

sole remaining plaintiff.

2

 Appellees Bryn Mawr Hospital, Main Line Hospitals, Inc., Dr. Skariah, and 

Dr. Cook (“Hospital Appellees”) jointly filed a brief herein.
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asserted to the trial court and maintains herein that he is entitled to file 

certificates of merit without the statements because he is an “attorney” as 

contemplated by Pa.R.C.P. 1042(a).

The Majority has aptly summarized the procedural history as it relates 

to this appeal. I note, however, the following additional commentary from the 

trial court on the procedural posture of the case:

At an August 18, 2016 hearing, [Appellant] disclosed that 

he has in his possession statements of reasonable probability from 

Dr. Dana Liefer, who [Appellant] contends is an “appropriate 

licensed professional” under Rule 1042.3(a)(1). However, he had 

heretofore refrained from filing the statements of reasonable 

probability because “the plaintiff in this case is represented by an 

attorney. The attorney submits a certificate of merit. That ends 

it.” N.T. 8/18/16, 7:8–10.

On August 24, 2016, this [c]ourt ordered [Appellant] to file 

the statements of reasonable probability of Dr. Liefer in order to 

satisfy Rule 1042.3. All parties were further directed to brief the 

issue of his qualifications under MCARE § 512, as Rule 1042.3(1) 

requires the appropriate licensed professional to be so qualified. 

In addition, this [c]ourt issued [a] declaratory judgment that 

[Appellant] is not an “attorney” for the purposes of this case 

because he is representing himself. The Estate of Gail Friedman 

is no longer a party to this case; as such, [Appellant] is not 

representing anybody but himself, thereby designating him as a 

pro se litigant.

Trial Court Opinion, 10/27/16, at 2–3. Appellant timely appealed the August 

24, 2016 order on September 2, 2016. Disposition of the motions to strike 

Appellant’s certificates of merit was stayed pending this appeal. Id. at 3.

On October 6, 2016, this Court issued a rule to show cause, directing 

Appellant to explain why the appeal should not be quashed as premature. 

Appellant filed a response on October 17, 2016. Hospital Appellees filed an 
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application to quash this appeal on November 9, 2016. On January 11, 2017, 

by per curiam order, a motions panel of this Court denied Hospital Appellees’ 

application to quash without prejudice, thereby allowing Hospital Appellees to 

raise the issue before the merits panel.

I repeat the issues Appellant raises on appeal:

(1) Did the Montgomery County Court of Common Pleas, by error 

of law and/or abuse of discretion, essentially take away appellantattorney’s license as an attorney, and/or his right to be an-officerof-the-Court, and/or to fully represent himself?

(2) Did the Montgomery County Court of Common Pleas, by error 

of law and/or abuse of discretion, repeatedly ignore black-letter 

law when evaluating who is qualified to submit a statement of 

reasonable probability in support of a certificate of merit, thus 

delaying and rendering the administration of justice excessively 

unpredictable?

Appellant’s Brief at 5.

As recognized by the Majority, we must initially address the question of 

our jurisdiction over this appeal. The Majority agrees with Hospital Appellees

that we should quash this appeal as interlocutory, contending it is not an 

appeal from a final order, an interlocutory order as of right or by permission, 

or a collateral order. Hospital Appellees’ Brief at 34–41. For the reasons that 

follow, I am compelled to disagree.

Under the Pennsylvania Rules of Appellate Procedure, a litigant may 

appeal “(1) a final order or an order certified as a final order (Pa.R.A.P. 341); 

(2) an interlocutory order as of right (Pa.R.A.P. 311); (3) an interlocutory 

order by permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a 
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collateral order (Pa.R.A.P. 313).” Veloric v. Doe, 123 A.3d 781, 784 (Pa. 

Super. 2015) (quoting Berkeyheiser v. A-Plus Investigations, Inc., 936 

A.2d 1117, 1123 (Pa. Super. 2007)). A final order is an order that “disposes 

of all claims and of all parties.”3 Pa.R.A.P. 341(b). Because the August 24, 

2016 order does not dispose of all claims, and the order has not been certified 

as a final order pursuant to Pa.R.A.P. 341(c), the instant appeal is not from a 

final order.

An interlocutory appeal as of right permits immediate appeals in limited, 

specified circumstances. Pa.R.A.P. 311 (permitting, e.g., appeal of “[a]n order 

refusing to open, vacate, or strike off a judgment”). An interlocutory appeal 

by permission is the result of express permission by the trial court. Pa.R.A.P. 

____________________________________________

3

 Pa.R.A.P. 341(b)(2) formerly permitted an appeal from an order “expressly 

defined as a final order by statute.” Veloric, 123 A.3d at 784. The 

Declaratory Judgments Act provides that declaratory judgments “shall have 

the force and effect of a final judgment or decree.” 42 Pa.C.S. § 7532. 

However, the Pennsylvania Supreme Court rescinded Pa.R.A.P. 341(b)(2), 

effective April 1 of 2015. Pa.R.A.P. 341 cmt. The note to Pa.R.A.P. 341 

explains:

One of the further effects of the rescission of subparagraph (b)(2) 

is to change the basis for appealability of orders that do not end 

the case but grant or deny a declaratory judgment. See 

Nationwide Mut. Ins. Co. v. Wickett, 763 A.2d 813, 818 (Pa. 

2000); Pa. Bankers Ass'n v. Pa. Dep't. of Banking, 948 A.2d 

790, 798 (Pa. 2008). The effect of the rescission is to eliminate 

waiver for failure to take an immediate appeal from such an order.

Id. As a result, the Declaratory Judgments Act no longer enables appeals 

from declaratory judgments that do not meet the finality requirement of 

Pa.R.A.P. 341 or qualify as appealable interlocutory or collateral orders.
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312. The circumstances of this appeal do not trigger an interlocutory appeal 

as of right, and the trial court has not approved an interlocutory appeal by 

permission.

Therefore, like the Majority, I turn to whether Appellant’s appeal of the 

trial court’s declaratory judgment constitutes a collateral order pursuant to 

Pa.R.A.P. 313. The collateral-order doctrine permits appellate jurisdiction 

where: “an order is (1) separable from and collateral to the main cause of 

action, (2) implicates rights which are too important to be denied review, and 

(3) the appellant’s claim as to that order will be lost if postponed until final 

judgment.” Rae v. Pa. Funeral Directors Ass’n, 977 A.2d 1121, 1124 (Pa. 

2009) (citing Ben v. Schwartz, 729 A.2d 547 (Pa. 1998)). All “three prongs 

[must] be clearly present before collateral appellate review is allowed.” Rae, 

977 A.2d at 1126 (citing Melvin v. Doe, 836 A.2d 42, 47 (Pa. 2003)). 

An order is separable from the main cause of action if it is “entirely 

distinct from the underlying issue in the case” and “can be resolved without 

an analysis of the merits of the underlying dispute.” K.C. v. L.A., 128 A.3d 

774, 778 (Ps. 2015) (quoting Commonwealth v. Blystone, 119 A.3d 306, 

312 (Pa. 2015)); see, e.g., Yorty v. PJM Interconnection, L.L.C., 79 A.3d 

655, 662 (Pa. Super. 2013) (noting the elements of negligence and observing 

that immunity, the subject of the collateral order, “is factually distinct from 

the proof of any of these elements”). With regard to the second prong of the 

collateral-order doctrine, “[i]t is not sufficient that the issue be important to 
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the particular parties. Rather it must involve rights deeply rooted in public 

policy going beyond the particular litigation at hand.” Melvin, 836 A.2d at 47 

(quoting Geniviva v. Frisk, 725 A.2d 1209, 1213–1214 (Pa. 1999)). 

Collateral review is appropriate where “the interests that would go 

unprotected without immediate appeal are significant relative to the efficiency 

interests served by the final order rule.” K.C., 128 A.3d at 779 (citing 

Commonwealth v. Williams, 86 A.3d 771, 782 (Pa. 2014)). Finally, our

Supreme Court has interpreted “irreparable loss” within the context of the 

third prong as a loss that is not “fully remediable after final judgment.” 

Blystone, 119 A.3d at 313. This Court has similarly defined irreparable loss 

as follows:

To satisfy this element, an issue must actually be lost if review is 

postponed. Orders that make a trial inconvenient for one party or 

introduce potential inefficiencies, including post-trial appeals of 

orders and subsequent retrials, are not considered as irreparably 

lost. An interest or issue must actually disappear due to the 

processes of trial.

Commonwealth v. Sabula, 46 A.3d 1287, 1293 (Pa. 2012).

Here, Appellant asks us to resolve whether a licensed attorney acting 

pro se is an “attorney” within the meaning of Pa.R.C.P. 1042.3(e). Hospital 

Appellees maintain that the order does not satisfy the collater-order doctrine, 

and is thus not appealable at this point, because: (1) we must “reference” the 

medical malpractice claim to resolve the appeal, (2) a determination of the 

meaning of a rule of civil procedure does not outweigh the efficiency interest 
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of the final-order rule, and (3) the trial court’s declaratory judgment can be 

appealed at a later date. Hospital Appellees’ Brief at 38-41. I disagree.

While we may “reference” the medical-malpractice claim during this 

appeal, the interpretation of Pa.R.C.P. 1042.3 requires an analysis that is 

entirely distinct from the merits of Appellant’s medical-malpractice claim. 

Thus, as acknowledged by the Majority, the first prong of the collateral-order 

doctrine is met. 

The second prong requires that the rights involved be too important to 

be denied review. As previously noted, “it must involve rights deeply rooted 

in public policy going beyond the particular litigation at hand.” Melvin, 836 

A.2d at 47. Appellant argues that the trial court’s order implicates such rights 

in that “took away [his] license as an attorney, and/or his right . . . to fully 

represent himself.” Appellant’s Brief at 14. I cannot agree that Appellant is 

unable to represent himself; however, he is subject to requirements not 

imposed on attorneys who are not representing themselves.

I note that our Supreme Court and this Court have, at times, broadly 

interpreted the interests implicated by an issue raised on collateral appeal in 

order to protect important interests. For example, the High Court has found 

interests “deeply rooted in public policy” to include freedom of speech rights 

in Melvin, 836 a.2d at 47; the “fair and impartial administration of justice” in 

divorce proceedings in Fried v. Fried, 501 A.2d 211, 214 (Pa. 1984); and the 

United States Congress’s interest in controlling the long-term costs and 
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liabilities of aviation manufacturers, Pridgen v. Parker Hannifin Corp., 905 

A.2d 422, 433 (Pa. 2006). This Court has likewise found the second prong 

satisfied where an order implicates: the integrity of the judicial system, 

Sabula, 46 A.3d 1287, 1292 (Pa. super. 2012); the availability of medical

care “through a comprehensive and high-quality health care system,” 

Osborne v. Lewis, 59 A.3d 1109, 111 n.3 (Pa. Super. 2012); and a statute’s 

purpose of “protecting and promoting marital harmony,” CAP Glass, Inc. v. 

Coffman, 130 A.3d 783, 790 (Pa. Super. 2016).

In particular, orders in cases involving “counsel,” the right to have 

counsel, and the right to have counsel present have all been reviewed as 

collateral orders recently, and “the apparent growth in the number of these 

cases suggests an increased willingness to permit collateral order review in 

this area.” Bruce P. Merenstein, “Pennsylvania’s Appellate Courts Strike Out 

on their Own Collateral Order Path, “October 2016 PA Bar Quarterly, Vol. 57, 

No. 4, at 183, 191. Furthermore, this Court has held that “any matter 

implicating and potentially infringing upon a litigant’s right to counsel is 

undeniably too important to be denied review.” Shearer v. Hafer, 135 A.3d 

637, 642 (Pa. Super. 2016), appeal granted, 157 A.3d 477 (Pa. 2016). In my 

view, an attorney’s right to self-representation similarly implicates and 

infringes upon the right to counsel, impacts the scope of an attorney’s license,

and is too important to be denied review. Thus, because the instant issue 
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involves “rights deeply rooted in public policy,” Appellant’s claim satisfies the 

second prong of the collateral-order doctrine. Melvin, 836 A.2d at 47. 

The final requirement for collateral review, and the one upon which the 

Majority bases its decision, is that the claim will be lost if postponed until final 

judgment. Rae, 977 A.2d at 1124. Unlike the Majority, I conclude that the 

issue of whether a licensed attorney proceeding pro se is an attorney within 

the meaning contemplated by Rule 1042.3(e) will be irreparably lost if 

collateral review is denied. Appellant is faced with the decision of either 

incurring the costs of compliance with Rule 1042.3(e) or allowing the suit to 

be dismissed. Assuming that Appellant continues pursuing this suit by either 

hiring an attorney or filing a statement of reasonable probability, the issue of 

whether licensed attorneys representing themselves are pro se litigants would 

be moot by the time of appeal. The instant issue of the interpretation of 

Pa.R.C.P. 1042.3(e)—and its important public policy implications—would 

“disappear due to the processes of trial” in the event that collateral review is 

denied. Sabula, 46 A.3d at 1293. As stated by the Shearer Court, win or 

lose, the right would be “irreparably lost.” Shearer, 135 A.3d at 642. As a 

result, I conclude that this Court has jurisdiction of this matter by virtue of 

the collateral-order doctrine. Therefore, I would proceed to the merits of the 

appeal. 
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The issue Appellant raises is whether a licensed attorney representing 

himself constitutes an “attorney” for purposes of Pa.R.C.P. 1042.3. This is a 

matter of first impression.

Pa.R.C.P. 1042.3(a) and (e) provide as follows:

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. . . . 

* * *

(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 [of reasonable probability] 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.

Pa.R.C.P. 1042.3 (a) and (e).

The explanatory comment to Pa.R.C.P. 1042.3 states: 

These proposed amendments also add a procedure for when the 

certificate of merit is not signed by an attorney. New subdivision 

(e) of Rule 1042.3 would require the attachment of the written 

statement from an appropriate licensed professional to the 

certificate of merit.

* * *

The Committee is proposing this amendment for several reasons. 

First, only an attorney is subject to disciplinary proceedings 

for abusing the rules of civil procedure governing 
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certificates of merit. Second, it is not unusual for an 

unrepresented plaintiff to file a certificate of merit without having 

received a written statement from a licensed professional 

supporting his or her claim. Third, the rules governing the 

certificates of merit already make a distinction between an

attorney and an unrepresented plaintiff filing a certificate of merit.

Pa.R.C.P. 1042.12 cmt. (emphasis added).

The trial court concluded that an unrepresented attorney is pro se, and 

therefore subject to the statement-of-reasonable-probability requirement of 

Pa.R.C.P. 1042.3(e). Trial Court Opinion, 10/27/16, at 4. In reaching this 

determination, the trial court relied on Black’s Law Dictionary, which defines

pro se as “for oneself; on one’s own behalf; without a lawyer.” Id. The trial 

court then “employ[ed] a simple syllogism” to support its interpretation of 

Pa.R.C.P. 1042(e): “[Appellant] is the only plaintiff; [Appellant] has not 

retained outside counsel; therefore, [Appellant] is acting ‘for oneself’ and is 

clearly a pro se litigant.” Trial Court Opinion, 10/27/16, at 4.

Appellant asserts that the trial court’s interpretation of Pa.R.C.P. 1042.3 

leads to “absurd” results, and he contends that the trial court’s conclusion 

effectively deprives him of his status as an attorney. Appellant’s Brief at 16–

17. Furthermore, Appellant avers that by ignoring the plain meaning of 

Pa.R.C.P. 1042.3, the trial court has delayed the administration of justice. Id.

at 18–20. 

Appellees mimic the trial court’s truncated reasoning and reliance on 

Black’s Law Dictionary’s definition of pro se. Hospital Appellees’ Brief at 19; 

Hart’s Brief at 6; Daly and Williams’s Brief at 6. Appellees suggest that the 
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trial court’s interpretation of Pa.R.C.P. 1042.3(e) is consistent with the plain 

language of Pa.R.C.P. 1042.3 and the intention of our Supreme Court in 

enacting this procedural rule. Hospital Appellees’ Brief at 20. In support, all 

Appellees cite the explanatory comment to Pa.R.C.P. 1042.3 and Womer v. 

Hilliker, 908 A.2d 269 (Pa. 2006). Hospital Appellees’ Brief at 21–22; Hart’s

Brief at 7–10; Daly and Williams’s Brief at 7–10; Gould’s Brief at 12–13. 

Appellee Dr. Gould argues in the alternative that the trial court retains 

the discretion to require a plaintiff to attach statements of reasonable 

probability even where the certificate of merit is signed by an attorney. 

Gould’s Brief at 16–18. Dr. Gould maintains that the statute does not prohibit 

a trial court from requiring statements of reasonable probability at its 

discretion and that the trial court did not abuse that discretion here. Id.

Hospital Appellees further attack the sufficiency and validity of the 

certificates of merit that Appellant eventually produced. They assert that 

Dr. Dana Leifer, their author, does not meet the qualifications set forth in

Section 512 of the MCARE Act, 40 P.S. § 1303.512 (a)–(e), and therefore is 

not qualified to be considered an “appropriate licensed professional” for 

purposes of a certificate of merit. Hospital Appellees’ Brief at 26.

I would conclude that the trial court’s interpretation of Pa.R.C.P. 1042.3 

lacks meaningful and cogent support for the following reasons. First, the 

purpose of the statements-of-reasonable-probability requirement, as noted in 

the explanatory comment, supports the conclusion that Appellant is an 
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“attorney” pursuant to Pa.R.C.P. 1042.3(e). Appellant’s decision to represent 

himself does not deprive him of his licensed statutory status. My

interpretation of the Pennsylvania Rules of Civil Procedure is guided by 

Pa.R.C.P. 127, which provides that “[t]he object of all interpretation and 

construction of rules is to ascertain and effectuate the intention of the 

Supreme Court.” Pa.R.C.P. 127(a). Because Pa.R.C.P. 1042.3(e) does not 

explicitly state the Supreme Court’s intent as to the Rule’s application to 

plaintiff-attorneys, I would look to the explanatory comment quoted supra. 

Pa.R.C.P. 1042.12 cmt.

The explanatory comment explains that Pa.R.C.P. 1042.3 creates a 

distinction between represented and unrepresented parties because “only an 

attorney is subject to disciplinary proceedings for abusing the rules of civil 

procedure governing certificates of merit.” Pa.R.C.P. 1042.12 cmt. As 

Appellant emphasizes, he is a licensed attorney and therefore subject to the 

disciplinary rules with which the explanatory comment is concerned. 

Appellant’s Brief at 18. It is noteworthy that Appellees also cite the 

explanatory comment, but they fail to elaborate or explain its significance to 

their position that Appellant is not an “attorney” within the meaning of 

Pa.R.C.P. 1042.3(e). Hospital Appellees’ Brief at 22; Hart’s Brief at 5; Daly 

and Williams’s Brief at 5. Lacking relevant argument to the contrary, I would

find that the purpose of the statement-of-reasonable-probability requirement 
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compels the conclusion that a plaintiff attorney is not required to attach a 

statement of reasonable probability to a certificate of merit.

Second, I disagree with the trial court’s stated justification for its 

interpretation of Pa.R.C.P. 1042.3(e). In determining that Appellant was 

required to attach statements of reasonable probability, the trial court based 

its interpretation of Pa.R.C.P. 1042.3 on the definition of pro se in Black’s Law 

Dictionary. Trial Court Opinion, 10/27/16, at 4. To reiterate, the trial court, 

as support for its position, cited the definition of pro se as “[f]or oneself; on 

one’s own behalf; without a lawyer.” Id. Relying heavily on the “for oneself” 

clause of the definition, the trial court completely disregarded the “without a 

lawyer” clause, as well as the assumptions made by Pennsylvania statutes and 

courts with respect to pro se litigants.

Pro se litigants are presumed to have no legal training or experience. 

See Commonwealth v. Spuck, 86 A.3d 870, 874 (Pa. Super. 2014) 

(“Pennsylvania courts endeavor to be fair to pro se litigants in light of the 

challenges they face conforming to practices with which attorneys are far more 

familiar[.]”); see also Pa.R.C.P. 205.5(c) (“The prothonotary shall assist a 

party appearing pro se in the completion of the form.”). Additionally, the 

Pennsylvania Rules of Civil Procedure expect a pro se plaintiff to be 

unencumbered by the rules of discipline. See Pa.R.C.P. 233.1 cmt. (“While 

attorneys are subject to the rules of disciplinary procedure, no analogous rule 

exists to curb this type of abuse when done by a pro se party”). Thus, 
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construed in light of the general understanding of pro se within this 

Commonwealth, the “without a lawyer” clause of Black’s Law Dictionary is 

better understood to mean that the litigant is without the benefit of an 

attorney’s knowledge and training. Outside the narrow confines of “for 

oneself,” a plaintiff attorney does not fit within the commonly understood 

definition of pro se.

Third, I would find the trial court’s conclusion to be inconsistent with the 

court’s treatment of Appellant throughout the course of this litigation and 

inappropriate in light of the general rule against hybrid representation. Prior 

to the trial court’s conclusion that Appellant was a pro se litigant subject to 

the statement-of-reasonable-probability requirement, Appellant was not 

treated as a pro se party. As Appellant observes in his appellate brief, he did 

not file the Montgomery County Form for Entry of Appearance as a SelfRepresented Party, and he has been referred to as “Esquire” multiple times 

during this case. Appellant’s Brief at 7–11, 16–17; see, e.g., Order, 

11/30/15, at 1, and Order, 12/17/15, at 1. Additionally, Appellant was 

permitted to file suit as executor of the Estate of Gail Friedman 

notwithstanding that Pennsylvania law prohibits non-attorneys from 

representing an estate pro se. See 42 Pa.C.S. § 2521 (“Persons admitted to 

the bar of the courts of this Commonwealth and to practice law pursuant to 

general rules shall thereby hold the office of attorney at law.”); Pa.B.A.R. 201 

(“The following may practice law generally within this Commonwealth: (1) 
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Persons admitted to the bar pursuant to these rules[ and] (2) Persons 

heretofore admitted to practice before any court of record of this 

Commonwealth pursuant to former Supreme Court Rules 8 and 9. . . .”); 

Pa.B.A.R. 204 (defining the term “practice law,” as used in Pa.B.A.R. 201, to 

include “[r]epresentation of one or more clients in the private practice of 

law”); see also In re Estate of Rowley, 84 A.3d 337, 340–342 (Pa. Cmwlth. 

2013) (“[P]rohibiting a non-attorney from representing an estate is essential 

to protecting the interests of the public”) (citing Harkness v. 

Unemployment Compensation Board of Review, 920 A.2d 162, 167 (Pa. 

2007)).4

Additionally, as a general matter, Pennsylvania courts do not permit 

hybrid representation. Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. 

____________________________________________

4

 Decisions of the Commonwealth Court, while not binding on this Court, 

nevertheless may serve as persuasive authority. Joseph v. Glunt, 96 A.3d 

365, 371 (Pa. Super. 2014) (citing Petow v. Warehime, 996 A.2d 1083, 

1088 n.1 (Pa. Super. 2010)). In the absence of binding precedent to the 

contrary, I am persuaded by the reasoning of the Commonwealth Court in 

Rowley, 84 A.3d 337.

My reliance on Rowley is reinforced by federal decisions reaching the 

identical conclusion. See Leary v. UPMC Shadyside, 2014 WL 4198039, at 

*1–2 (W.D.Pa. Aug. 22, 2014) (“Pennsylvania substantive law . . . [is] plain 

that an estate must be represented in court litigation by a lawyer”); Williams 

v. USP–Lewisburg, 2009 WL 4921316, at *2 (M.D.Pa. Dec. 11, 2009) (“To 

permit an unlicensed lay administrator to appear pro se would be to permit 

the unauthorized practice of law”), aff’d 377 Fed. Appx. 255, 256 (3d. Cir. 

2010). Decisions of lower federal courts likewise have persuasive effect on 

this Court. Gongloff Contracting, L.L.C. v. L. Robert Kimball & 

Associates, Architects and Engineers, Inc., 119 A.3d 1070, 1078 n.6 (Pa. 

Super. 2015) (citing In re Stevenson, 40 A.3d 1212, 1222 (Pa. 2012)).
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Super. 2016). Although the typical factual circumstances of hybrid 

representation, e.g., a represented party bypassing counsel and filing directly 

with the court, are not present here, the substantive prohibition of hybrid 

representation holds that a litigant cannot be both pro se and represented by 

counsel. Given the stated purpose of Pa.R.C.P. 1042.3(e), in conjunction with 

the meaning of pro se in Pennsylvania, I conceive of no viable reason why 

Appellant should be subject to the statement-of-reasonable-probability 

requirement, but not the other requirements of pro se litigants. 

Additionally, I would reject Appellees’ reliance on Womer, 908 A.2d 

269, in support of the trial court’s interpretation of Pa.R.C.P. 1042.3. Hospital 

Appellees’ Brief at 21; Hart’s Brief at 7–10; Daly and Williams’s Brief at 7–10; 

Gould’s Brief at 12–13. In Womer, our Supreme Court held that a complete 

failure to file a certificate of merit with the trial court did not constitute 

“substantial compliance” with Pa.R.C.P. 1042.3 and affirmed the trial court’s 

denial of a motion to open entry of judgment non pros. Womer, 908 A.2d at 

279–280. In reaching this decision, the High Court discussed the purpose of 

the certificate-of-merit requirement, observing that certificates of merit 

“identify and weed non-meritorious malpractice claims from the judicial 

system efficiently and promptly.” Id. at 275. Here, Appellant has filed a 

certificate of merit with the trial court. Appellees’ repeated reference to the 

purpose of the certificate-of-merit requirement, as stated in Womer, is not 

relevant to the interpretation of Pa.R.C.P. 1042.3. I do not question the 
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wisdom of Pa.R.C.P. 1042.3, but rather, its applicability to a plaintiff attorney 

who may be disciplined for filing frivolous professional liability actions. 

Finally, in response to Appellee Dr. Gould’s argument that the 

statement-of-reasonable-probability requirement is within the trial court’s 

discretion, Gould’s Brief at 16–21, I note the plain language of Pa.R.C.P. 

1042.3(e). Because Pa.R.C.P. 1042.3(e) states the condition precedent for a 

statement of reasonable probability in unambiguous terms, I would reject 

Appellee Gould’s assertion that Pa.R.C.P. 1042.3(e) vests the trial court with 

the discretion to require an attached statement of reasonable probability 

where the certificate of merit is signed by an attorney. Pa.R.C.P. 1042.3(e). 

Moreover, I observe that Appellee Gould cites no apposite precedent to 

support his claim that the trial court may require a statement of reasonable 

probability as a means of sanctioning a party who is not otherwise required to 

file one.

Therefore, I would hold that this Court has jurisdiction of this matter by 

virtue of the collateral-order doctrine. Moreover, regarding the merits, I would 

conclude that a plaintiff who is a licensed attorney is an “attorney” for 

purposes of Pa.R.C.P. 1042.3. Further, I would determine that such 

disposition necessarily precludes the need to address Appellees’ attack on 

Dr. Liefer’s qualifications. Thus, I would reverse the common pleas court’s

order and remand.