IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Onofrio Louis Positano, :

Appellant :

:

v. : No. 93 C.D. 2016

: Submitted: June 24, 2016

John Wetzel, Secretary; :

John Kerestes, Superintendant; :

John Lisiak; Ruth Connor, :

Administrator; Bernadette Mason; :

Michael Vuksta; Marva Cerullo; :

Corizon Health Inc., a/k/a :

Prison Health Services Inc.; :

and Ruth Cohoon :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: August 10, 2016

Onofrio Louis Positano (Plaintiff), representing himself, appeals from 

an order of the Court of Common Pleas of Schuylkill County1(trial court) denying 

his petition for relief from a judgment of non pros in a medical malpractice case. 

Ultimately, the trial court determined Plaintiff failed to comply with Pennsylvania 

Rule of Civil Procedure No. 1042.3, which requires that an unrepresented plaintiff 

in a professional malpractice case file a certificate of merit, supported by a written 

statement from an appropriate licensed professional, stating the professional 

defendant’s conduct fell outside acceptable professional standards and contributed 

to the plaintiff’s harm. For the reasons that follow, we affirm.

 

1

The Honorable Jacqueline L. Russell presided.
2

I. Background

This case originated in the Court of Common Pleas of Luzerne 

County. In April 2013, Plaintiff, an inmate at the State Correctional Institution at 

Mahanoy (SCI-Mahanoy), filed a professional liability claim alleging he suffered 

from negligent and inappropriate medical care provided at SCI-Mahanoy. 

Essentially, Plaintiff claimed the medical staff at SCI-Mahanoy failed to properly 

diagnose and treat a dangerous cardiac condition, which resulted in the need for 

emergency quadruple bypass surgery. Plaintiff further averred that following 

surgery, the medical staff’s ongoing negligence caused his condition to worsen, 

which will result in the need for additional bypass surgeries.

Plaintiff named the following Defendants: John Wetzel, Secretary of 

the Department of Corrections; John Kerestes, Superintendent at SCI-Mahanoy;

Marva Cerullo, Corrections Health Care Administrator (at all relevant times); Ruth

(Connor) Cohoon, a part-time nurse at SCI-Mahanoy; Bernadette Mason, Unit 

Manager at SCI-Mahanoy (at all relevant times); and, Michael Vuksta, Deputy 

Superintendent at SCI-Mahanoy (at all relevant times) (collectively, 

Commonwealth Defendants). Plaintiff also named Dr. John Lisiak, his physician 

of record and an employee of Corizon Health, Inc. (Corizon), a/k/a Prison Health 

Services, as a Defendant. Plaintiff alleged Dr. Lisiak served as Medical Director at 

SCI- Mahanoy.

Because the events at issue in the complaint allegedly occurred at 

SCI-Mahanoy in Schuylkill County, the Luzerne County trial court transferred the 

case to Schuylkill County. In May 2013, prior to the transfer, the Luzerne County 
3

trial court entered a judgment of non pros in favor of Dr. Lisiak based on 

Plaintiff’s failure to file a certificate of merit, an essential requirement in 

professional liability claims. See Pa. R.C.P. No. 1042.3. Thereafter, On June 12, 

2013, Plaintiff filed a certificate of merit, wherein he indicated he did have a 

written statement from a licensed professional.

After the transfer, Plaintiff filed an amended complaint in June 2014, 

which added Corizon as a Defendant.2 Plaintiff claimed Corizon was responsible 

for Dr. Lisiak’s actions. Thereafter, Corizon filed notice of its intention to seek a 

judgment of non pros based on Plaintiff’s failure to file a certificate of merit and a 

written statement by a licensed professional as required by Pa. R.C.P. No. 1042.3. 

Although Plaintiff filed a certificate of merit, he failed to attach a supporting 

written statement by a licensed professional required for unrepresented plaintiffs. 

See Pa. R.C.P. No. 1042.3(e). In September 2014, the trial court entered judgment 

of non pros for Corizon based on Plaintiff’s failure to file the written statement.

In March 2015, Defendants Wetzel, Kerestes, Cerullo, Cohoon, 

Mason and Vuksta notified Plaintiff of their intention to seek judgment of non pros 

on all medical professional liability claims alleged against them. Defendants 

alleged Plaintiff failed to file certificates of merit and an attached written statement 

by a licensed professional as required by Pa. R.C.P. No. 1042.3.

 

2

Plaintiff sued all Defendants in their individual capacities. See Certified Record (C.R.), 

Am. Compl., 6/25/14, at ¶¶2-8.
4

In response, Plaintiff filed certificates of merit with respect to each 

Defendant. With each certificate, Plaintiff also filed an April 7, 2014 letter 

purportedly written by Frank R. Lewis, M.D. (Dr. Lewis), which stated:

Dear Mr. Positano,

After review of your history, it is my opinion that the 

medical care and treatment you received was clearly 

below the standard medical practice of a licensed 

professional. I urge you to be re-examined and tested for 

possible underlying problems as soon as possible. 

 

Supplemental Reproduced Record (S.R.R.) at 61b, 63b, 65b, 67b, 69b, 71b.

Dr. Lisiak’s counsel questioned the authenticity of Dr. Lewis’s letter 

because it contained two different styles of type. The type in the body of the 

statement appeared similar to that in some of Plaintiff’s documents filed in the 

action. Upon investigation, Dr. Lisiak’s counsel determined Dr. Lewis did not 

write the letter. Thereafter, Commonwealth Defendants filed a motion to strike the 

written statement and certificates of merit, and to enter judgments of non pros on 

the medical professional liability claims against them.

In August 2015, the trial court held a hearing during which Dr. Lewis 

testified he did not write the body of the letter, which purported to state an expert

opinion regarding Plaintiff’s medical care. Rather, Dr. Lewis explained, he sent a 

different letter that did not include any opinion as to Plaintiff’s care. Dr. Lewis’s 

actual April 7, 2014 letter stated:

Dear Mr. Positano:
5

In response to your letter of April 2, the American Board 

of Thoracic Surgery is located at 633 No. Saint Clair St., 

Suite 2320, Chicago, IL, 60611. The Executive Director 

is Dr. William Baumgartner.

Tr. Ct. Order, 8/25/15 at 4, S.R.R. at 88b. Because Plaintiff’s written statement 

was not an accurate version of Dr. Lewis’s letter, which expressed no opinion as to 

Plaintiff’s care, the trial court granted Commonwealth Defendants’ motion to strike 

the certificates and written statement and entered judgment of non pros in their 

favor.

The trial court also addressed Plaintiff’s pending petition to open the 

May 2013 judgment of non pros in favor of Dr. Lisiak. In June 2013, Plaintiff 

filed a certificate of merit as to Dr. Lisiak, wherein Plaintiff stated he had a written 

statement from a medical professional concluding that Dr. Lisiak’s exhibited care, 

skill or knowledge fell outside professional standards. The trial court provided 

Plaintiff a final opportunity to file the written statement within 10 days. Tr. Ct. 

Order, 8/25/15; S.R.R. at 91b. However, Plaintiff never produced the written 

statement for the trial court. By order dated September 17, 2015, the trial court 

denied with prejudice Plaintiff’s request for relief from the judgment of non pros in 

favor of Dr. Lisiak. Id. at 3-4; S.R.R. at 94b-95b. Plaintiff appeals.3

 

3 Where a plaintiff challenges the dismissal of his case for non pros, we are limited to 

considering whether the trial court abused its discretion. Reaves v. Knauer, 979 A.2d 404 (Pa. 

Cmwlth. 2009). A reviewing court may reverse the trial court’s decision only if the order 

reflects an unreasonable result, partiality, prejudice, bias, animus or no rational support 

suggesting the court entered the order erroneously. Id.
6

II. Discussion

A. Non Pros in Medical Malpractice Actions

A prothonotary is required to enter a judgment of non pros in a 

medical malpractice action where the plaintiff fails to file a certificate of merit 

within the required time, provided: there is no pending motion for extension of 

time to file the certificate or for a determination that the certificate is not 

necessary; no certificate was filed; the defendant served the plaintiff with notice of 

intention to enter judgment of non pros; and, the praecipe is filed more than 30 

days after service of the notice of intention to enter judgment of non pros. Pa. 

R.C.P. No. 1042.7(a); Reaves v. Knauer, 979 A.2d 404 (Pa. Cmwlth. 2009). In 

addition, entry of judgment non pros is authorized where the trial court grants a 

motion to extend the time to file a certificate and the plaintiff fails to do so, or 

where the court denies a motion to extend the time to file. Pa. R.C.P. Nos. 1042.6; 

Reaves. 

B. Argument/Analysis

1. Point I: Adherence to Pa. R.C.P. No. 1042.7(a)

In his brief, Plaintiff states nine questions for review, the relevance of 

which are not immediately apparent.

4

 However, Plaintiff divided his argument into 

 

 

4

In his Statement of Questions, Plaintiff sets forth the following issues:

1. Should the district judge be allowed to perform the duties of 

judicial office with bias and prejudice?

2. Should the Court be allowed to abuse its discretion by denying 

the production of evidence imperative to support claims for the 

(Footnote continued on next page...)
7

 

(continued...)

suppression of evidence, by subpoena, prior to hearing on the 

same?

3. Should the Court be allowed to abuse its discretion by 

proceeding without continuance of hearings, when several motions 

were still pending before the Court, which, the Court states, ‘were 

received late due to delays of the Courts internal service process’?

4. Should the Court be allowed to abuse its discretion by denying 

presentation of evidence to validate the Plaintiff’s claims for 

evidence suppression?

5. Should the Court be allowed to abuse its discretion by violating 

Pa. R.C.P. [No.] 1042.8?

6. Should the Court be allowed to abuse its discretion by allowing 

a pro se litigant to proceed in court hearings without representation 

of counsel or any warnings of the risks of proceeding without 

proper knowledge of the Court’s hearing procedural rules?

7. Should the Court be allowed to violaate [sic] the Plaintiff’s 

Fourteenth Amendment Due Process and Equal Protection of Law 

Clause and ignor[e] Pa. R.C.P. [Nos.] 1042.1, 1042.3 and 4003.5?

8. Should the Court be allowed to abuse, manipulate and violate 

the Pa. R.C.P. Rules of Criminal [P]rocedures and Criminal 

Statutes of the Commonwealth of Pennsylvania’s Constitution and 

allow criminal actions to go unanswered, due to fact that the 

criminal offender is an officer of the Court?

9. Should the Court be allowed to abuse its discretion by granting 

judgment non pros even though the Court records show the proper 

notifications were never filed by the Defendants per Pa. R.C.P. 

[No.] 1042.7?

Appellant’s Br. at 5. 
8

four sections or “points.”

5

 In Point I, Plaintiff contends the trial court abused its 

discretion in denying his request to reopen the judgment of non pros entered in 

favor of Dr. Lisiak in May 2013 because the docket entries fail to show Dr. Lisiak 

filed the required notice of intention to enter judgment of non pros or notice of 

intention to file a praecipe for judgment non pros, which must be filed no less than 

30 days prior to the filing of the praecipe to enter judgment. See Pa. R.C.P. No. 

1042.7(a)(3),(4).

We disagree for several reasons. In October 2011, Plaintiff filed a 

similar medical malpractice claim against Defendants in the U.S. District Court for 

the Eastern District of Pennsylvania. In December 2011, Dr. Lisiak filed a notice 

of intention to seek a dismissal or judgment non pros based on Plaintiff’s failure to 

file a certificate of merit as required by Pa. R.C.P. No. 1042.7. See S.R.R. at 35b36b. In March 2013, after the case was transferred to the Middle District, the 

federal court declined to address Plaintiff’s state claims and dismissed the case 

based on Plaintiff’s failure to exhaust administrative remedies. See S.R.R. at 58b.

On April 2, 2013, Plaintiff filed the instant malpractice suit in 

common pleas court in Luzerne County. On May 24, 2013, more than 30 days 

later, Dr. Lisiak filed a praecipe to enter judgment of non pros under Pa. R.C.P. 

No. 1042.7 based on Plaintiff’s failure to file a certificate of merit. S.R.R. at 30b32b. Dr. Lisiak attached the notice of intention filed in the federal case. S.R.R. at 

34b-35b. In his praecipe, Dr. Lisiak stated (with emphasis added):

 

5

See Appellant’s Br. at 8-11.
9

Plaintiff has failed to file the requisite Certificates of 

Merit. In support of his medical professional liability 

claims against Dr. Lisiak within sixty (60) days of the 

date on which such claims were commenced. In this 

regard, Plaintiff originally commenced these claims in 

Pennsylvania on October 26, 2011. On December 1, 

2011, as required under Pa. R.C.P. No. 1042.6, Dr. Lisiak 

served Plaintiff with a Notice of Intention to Seek 

Dismissal/Judgment of Non Pros on Professional 

Liability Claim for Plaintiff’s Failure to File a Certificate 

of Merit against Defendant John Lisiak, Jr., a true and 

correct copy of which is attached hereto as Exhibit ‘A’. 

Plaintiff did not thereafter timely file the requite [sic] 

Certificates of Merit within the next thirty (days) as 

required by said Notice of Intention. On March 14, 2013, 

Plaintiff[’s] federal lawsuit was dismissed. Plaintiff then 

filed the same medical professional liability claims 

against Dr. Lisiak, inter alios, in this Honorable Court on 

April 2, 2013. To date, however, Plaintiff has still not 

filed the requisite Certificates of Merit in support of his 

continuing medical professional liability claims against 

Dr. Lisiak .... 

 

S.R.R. at 30b-31b.

First, we view Dr. Lisiak’s December 2011 Notice of Intention 

sufficient for purposes of compliance with Rule 1042.7(a)(3) and (4) requirements 

that a notice of intention to enter a judgment of non pros be filed and served on the 

plaintiff at least 30 days before the filing of a praecipe to enter a judgment of non 

pros.

6

 The 60-day period for filing a certificate of merit or motion to extend the 

time for filing such a certificate runs from the date of filing the initial complaint, 

not a reinstated or amended complaint. O’Hara v. Randall, 879 A.2d 240 (Pa. 

 

6 Dr. Lisiak’s December 2011 notice of intention follows the form required by Pa. R.C.P. 

No. 1042.6(d). See S.R.R. at 35b. 
10

Super. 2005); Hoover v. Davila, 862 A.2d 591 (Pa. Super. 2004). Here, Dr. Lisiak 

complied with Pa. R.C.P. No. 1042.6(a) by demonstrating he previously provided 

Plaintiff notice of his intent to seek a judgment of non pros based on Plaintiff’s 

failure to file a certificate of merit.

Second, as noted above, in its August 25, 2015 order the trial court

afforded Plaintiff a final opportunity to file a copy of a written statement by a 

licensed professional he claimed to have in his possession at the time he filed a 

certificate of merit involving Dr. Lisiak. See S.R.R. at 90b. However, Plaintiff 

never produced the written statement. Tr. Ct., Slip. Op., 10/20/15, at 4; S.R.R. at 

95b. 

Third, Plaintiff’s June 2014 amended complaint added Dr. Lisiak’s 

employer, Corizon, as a defendant. On July 29, 2014, Corizon filed a notice of 

intention to enter judgment of non pros against Plaintiff. See Tr. Ct., Slip. Op., 

3/9/15, at 2-4; S.R.R. at 74b-76b. Although Plaintiff eventually filed a certificate 

of merit on August 5, 2014, he failed to attach a supporting written statement from

a licensed professional. On August 6, Corizon, pursuant to Pa. R.C.P. No. 

1042.12, filed a praecipe for entry of judgment non pros based on Plaintiff’s failure 

to file the required written statement. Id. at 3-4; S.R.R. at 75b-76b. On August 12, 

Plaintiff filed a motion to quash or strike Corizon’s notice of intention on the 

ground that a written statement from an appropriate licensed professional must be 

obtained through proper discovery. Plaintiff also asserted he is exempt from 

initial disclosure under Fed. R. Civ. P. 26(b)(iv) (action brought without an 

attorney exempt from initial disclosure of names and address of persons with 
11

discoverable information). On September 9, 2014, the trial court denied Plaintiff’s 

motion to strike. Id. at 4; S.R.R. at 76b. On September 11, 2014, the trial court 

entered a judgment of non pros in favor of Corizon. Id. at 11, S.R.R. at 83b.

 

Our review of the record indicates Plaintiff received notices of Dr. 

Lisiak’s and Corizon’s intent to enter a judgment of non pros based on Plaintiff’s 

failure to file a certificate of merit and a supporting written statement from an 

appropriate licensed professional. An unrepresented plaintiff must file a certificate 

of merit and supporting written statement. Pa. R.C.P. No. 1042.3(e). Failure to do 

so entitles the defendant to seek a judgment of non pros. Id. Because Rule 

1042.3(e) specifically addresses unrepresented plaintiffs, a party’s noncompliance 

cannot be excused based on a lack of knowledge of the rules. Hoover. Therefore,

we reject Plaintiff’s contention that the trial court should not have entered 

judgment in favor of Dr. Lisiak and Corizon.

2. Point I (continued): Defendants’ Motion to Strike; Discovery

Also in Point I, Plaintiff essentially contends the trial court erred in 

granting Commonwealth Defendants’ motion to strike his certificates of merit 

because they illegally contacted Dr. Lewis to see if he authored the written 

statement. Plaintiff argues Commonwealth Defendants’ conduct constituted 

criminal activity including tampering with a witness, intimidating a witness, and 

conspiracy.

Plaintiff further argues Dr. Lewis’s opinions were shielded from 

discovery of his medical expert’s opinions under disclosure exemptions in Pa. 
12

R.C.P. No. 4003.3 (scope of discovery; trial preparation material generally) and Pa. 

R.C.P. No. 4003.5 (discovery of expert testimony; trial preparation material). 

Plaintiff asserts Defendants never motioned the trial court for such discovery, 

requested discovery from Plaintiff, or even attempted to secure this discovery by 

means of interrogatories.

Plaintiff’s claims lack merit. As discussed above, an unrepresented 

plaintiff bringing a professional medical liability action must file a certificate of 

merit and supporting written statement or be subject to a judgment of non pros. 

Pa. R.C.P. No. 1042.3(e). Failure to comply with Rule 1042.3 is fatal to a 

plaintiff’s claim in professional liability action. Womer v. Hilliker, 908 A.2d 269 

(Pa. 2006). Although Pa. R.C.P. No 1267provides some flexibility in the 

application of the procedural rules, it does not excuse noncompliance. Womer. In 

short, a party’s “wholesale failure” to comply with the requirements of Rule 

1042.3 cannot be overlooked. Womer, 908 A.2d at 271.

Plaintiff’s argument that Defendants needed to engage in formal 

discovery also fails. A plaintiff must comply with the requirements of Rule 1042.3 

regardless of discovery. Womer. Indeed, the purpose of Rule 1042.3 is to weedout non-meritorious claims prior to the discovery stage. Id. Moreover, Dr. Lewis 

testified before the trial court that he is not an expert witness for Plaintiff. Tr. Ct. 

Order, 8/25/15, at 4; S.R.R. at 88b.

 

7 Rule 126 provides: “The rules shall be liberally construed to secure the just, speedy and 

inexpensive determination of every action or proceeding to which they are applicable. The court 

at every stage of any such action or proceeding may disregard any error or defect of procedure 

which does not affect the substantial rights of the parties.” Pa. R.C.P. No. 126. 
13

With respect to the alleged crimes committed by Defendants in 

contacting Dr. Lewis, we note the crimes of intimidation of or tampering with a 

witness involve conduct intended to compel or force a witness to withhold 

testimony regarding the commission of a crime from a law enforcement officer, 

prosecuting official or a judge. Commonwealth v. Doughty, 126 A.3d 951 (Pa. 

2015). Obviously, Defendants engaged in no such conduct. To the contrary, after 

learning that Dr. Lewis did not author the written statement at issue, Defendants 

properly challenged the certificates of merit in a motion to strike. At a hearing on 

the motion, Dr. Lewis credibly testified he did not author the written statement

attached to Plaintiff’s certificates of merit. See Tr. Ct. Slip Op., 8/25/15, at 3-4; 

S.R.R. at 87b-88b. Therefore, we reject Plaintiff’s contention that Defendants

acted improperly by checking the authenticity of the written statement attached to 

Plaintiff’s certificates of merit.

 

3. Point II: Equal Protection Claim

Plaintiff also contends the requirement in Pa. R.C.P. No. 1042.3(e), 

that an unrepresented litigant must attach a supporting written statement to the 

certificates of merit, violated Plaintiff’s civil rights under the Fourteenth 

Amendment’s Equal Protection Clause by classing him because he was an 

unrepresented litigant. We disagree.

Other than claiming the trial court violated his civil rights by 

“classing” him because he was unrepresented by counsel, Plaintiff does not further 

develop his equal protection argument. It is a well-settled principle of appellate 

jurisprudence that undeveloped claims are waived and unreviewable on appeal. 
14

Commonwealth v. Clayton, 816 A.2d 217 (Pa. 2002). Here, Plaintiff does not 

present any argument or attempt to explain how the supporting written statement 

requirement in Rule 1042.3(e) for unrepresented plaintiffs interferes with the

exercise of either a fundamental or important right for purposes of equal protection 

analysis. See James v. Se. Pa. Transp. Auth., 477 A.2d 1302 (Pa. 1984) 

(fundamental or important rights require a higher standard of review in equal 

protection analysis).

Nonetheless, we recognize a litigant does not have a right to counsel 

in a civil matter. Harris v. Pa. Dep’t of Corr., 714 A.2d 492 (Pa. Cmwlth. 1988). 

Because there is no fundamental or important right to counsel in civil matters, 

unrepresented plaintiffs in civil cases do not constitute a class entitled to either a 

strict scrutiny or heightened standard of review in an equal protection analysis. 

James.

Therefore, we need only determine whether the requirement in Rule 

1042.3(e) bears a rational relationship to a legitimate state purpose. Frontiero v. 

Richardson, 411 U.S. 677 (1973). In general, the purpose of Rule 1042.3 is to 

weed non-meritorious professional liability claims out of the courts efficiently and 

promptly. Womer. A certificate of merit shows that a plaintiff is in a position to 

support the allegations made in his complaint. Id. Thus, resources will not be 

wasted if additional pleadings and discovery take place. Id. Conversely, the 

absence of a certificate of merit signals that such is not the case. Id. Given the 

foregoing, we hold the requirement of a certificate of merit bears a rational 

relationship to legitimate state purposes, the furtherance of judicial economy and 
15

the protection of litigants from economic and time demands arising from frivolous 

claims.

Similarly, the requirement in Rule 1042.3(e), that an unrepresented 

plaintiff attach a supporting written statement from a licensed professional to his 

certificate of merit, serves the legitimate purpose of removing non-meritorious 

claims by uncounseled litigants. Although Rule 1042.3(a) requires that an attorney 

need only sign a certificate of merit, attorneys, unlike unrepresented litigants, are 

subject to disciplinary proceedings for filing frivolous lawsuits. See Coulter v. 

Ramsden, 94 A.3d 1080 (Pa. Super. 2014) (citing Pa. R.C.P. No. 233.1, relating to 

motions to dismiss frivolous litigation by pro se plaintiffs). Further, although 

Plaintiff has a right to self-representation, his lack of counsel does not excuse him 

from compliance with the relevant rules of procedural and substantive law. Jones 

v. Rudenstein, 585 A.2d 520 (Pa. Super. 1991). Consequently, Rule 1042.3(e)’s 

requirement that Plaintiff attach a written statement to his certificate of merit does 

not violate Plaintiff’s equal protection rights. James.

4. Points III and IV: Bias, Motion to Suppress

In his final two arguments, Plaintiff contends the trial court’s denial of 

his motion to suppress, failure to assist him during the proceedings, and denial of 

his request for continuance of a hearing shows unacceptable bias and prejudice on 

the part of the trial court.

We disagree. As discussed above, Defendants committed no crimes 

by inquiring as to whether Dr. Lewis actually authored the written statement 
16

Plaintiff attached to his certificates of merit. Thereafter, Defendants properly 

challenged the certificates of merit in a motion to strike. At an evidentiary hearing 

in June 2015, Dr. Lewis testified he did not author the written statement Plaintiff 

attached to his certificates of merit. Dr. Lewis further testified he is not an expert 

witness for Plaintiff.

Although Plaintiff attempted to “suppress” the evidentiary hearing, 

the trial court explained it denied Plaintiff’s motion for suppression of evidence 

and petition for suppression of evidence hearing because Plaintiff failed to present 

any relevant evidence in support of his motion and petition. Tr. Ct. Order, 8/25/15 

at 2; S.R.R. at 86b. Adverse rulings do not alone establish bias. Commonwealth v. 

Birdsong, 24 A.3d 319 (Pa. 2011).

Plaintiff further asserts the trial court’s denial of his motion for 

continuance of the hearing showed bias because he filed a motion to compel Dr. 

Lewis and Jessica Schreader to produce documents, which remained pending 

before the court at the time of the hearing. However, as the trial court explained in 

an order denying Plaintiff’s motion to compel, a subpoena to a third party not 

named in the action can only be served after disposition of all objections to the 

subpoena. However, Plaintiff failed to request the court to rule on the objections in 

a timely manner. Tr. Ct. Order, 8/25/15 at 1; S.R.R. at 85b. The trial court also 

determined sufficient materials were produced by Dr. Lewis and Ms. Schreader. 

Id. Again, adverse rulings do not alone establish bias. Birdsong.
17

Finally, due process does not require the appointment of counsel to an 

inmate in a civil action. Harris. In addition, a trial judge is under no duty to 

provide personal instruction on courtroom procedure to an unrepresented party. 

Fraisar v. Gillis, 892 A.2d 74 (Pa. Cmwlth. 2006). In sum, a judge need not take 

over the legal chores for an unrepresented party that would normally be handled by 

trained counsel. Id. Therefore, the trial court did not demonstrate bias or abuse its 

discretion by failing to appoint “stand-by” counsel or warn Plaintiff of various 

procedural requirements. Id. 

For the above reasons, we see no error in the trial court’s denial of 

Plaintiff’s petition for relief from the court’s judgment of non pros. Accordingly, 

we affirm.

 

ROBERT SIMPSON, Judge

Judge Wojcik did not participate in the decision in this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Onofrio Louis Positano, :

Appellant :

:

v. : No. 93 C.D. 2016

:

John Wetzel, Secretary; :

John Kerestes, Superintendant; :

John Lisiak; Ruth Connor, :

Administrator; Bernadette Mason; :

Michael Vuksta; Marva Cerullo; :

Corizon Health Inc., a/k/a :

Prison Health Services Inc.; :

and Ruth Cohoon :

O R D E R

AND NOW, this 10th day of August, 2016, for the reasons stated in 

the foregoing opinion, the order of the Court of Common Pleas of Schuylkill 

County is AFFIRMED.

 

ROBERT SIMPSON, Judge