J-A25016-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH W. PILCHESKY 

Appellant

v.

MARYLOU RAINONE, D.O.; 

GEISINGER GENERAL SURGERY 

POTTSVILLE, A/K/A GEISINGER 

MEDICAL CENTER, GEISINGER 

HEALTH, GEISINGER HOSPITAL 

AND/OR GEISINGER MEDICAL 

GROUP

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 57 MDA 2019

Appeal from the Order Entered November 27, 2018

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

No(s): S-1857-17

BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 18, 2020

Joseph W. Pilchesky appeals from the order sustaining the Preliminary 

Objections of above-captioned Defendants and dismissing his medical 

malpractice case with prejudice. Pilchesky argues that the court erred in 

sustaining Defendants’ Preliminary Objections on the basis that Pilchesky 

failed to file a valid certificate of merit. We affirm.

Pilchesky, who has represented himself throughout this action, filed a 

Complaint against Dr. Marylou Rainone alleging that in February 2014, Dr. 

Rainone negligently performed a dual hernia repair surgery. The surgery

involved implanting mesh in Pilchesky’s groin area. Pilchesky claimed that in
J-A25016-19

- 2 -

December 2017, his 2014 hernia surgery failed, and he underwent a second, 

emergency surgery to his right groin area. This latter surgery was performed 

by a Dr. Hughes.

Dr. Rainone filed a notice of intention to enter a judgment of non pros

due to Pilchesky’s failure to file a certificate of merit. See Pa.R.C.P. 1042.3; 

1042.6. Pilchesky then filed a certificate of merit in which he stated that expert 

testimony was unnecessary to prosecute his claim. See Pa.R.C.P. 

1042.3(a)(3). The certificate of merit was not signed by an attorney, and was 

not accompanied by a written statement from a licensed professional. See 

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

Pilchesky thereafter filed an Amended Complaint, Second Amended 

Complaint, and Third Amended Complaint. In the Third Amended Complaint, 

Pilchesky repeated his claims of medical malpractice against Dr. Rainone. 

Pilchesky also put forth negligence claims against Geisinger General Surgery 

Pottsville, a.k.a. Geisinger Medical Center, Geisinger Health, Geisinger 

Hospital, and/or Geisinger Medical Group (“Geisinger”). Pilchesky alleged 

Geisinger was Dr. Rainone’s employer, and “acted by and through its agent, 

ostensible agent, servant, and/or employee, Marylou Rainone, D.O., in 

providing . . . medical services to Pilchesky,” and that Geisinger “is vicariously 
J-A25016-19

- 3 -

responsible for the actions of its agent, Marylou Rainone, D.O.” Third Amended 

Complaint at ¶ 59, 65, 67.

1

Defendants filed Preliminary Objections to the Third Amended 

Complaint. In pertinent part, Defendants demurred to the Third Amended 

Complaint because Pilchesky had failed to file a certificate of merit

accompanied by a statement by a licensed medical professional supporting his 

claim. Pilchesky filed an Answer to the Preliminary Objections, arguing a 

statement by a medical professional was unnecessary because he intended to 

introduce into evidence the medical reports of Dr. Rainone and Dr. Hughes,

and to call them as trial witnesses.

The trial court issued an order overruling Defendants’ objection

regarding Pilchesky’s failure to file a certificate of merit. The order stated

Defendants had failed to follow the procedure established by Pa.R.C.P. 

1042.3(e), which requires defendants to seek a non pros when a plaintiff does 

not file a certificate of merit accompanied by a written statement by an 

appropriate licensed professional. See Order, 7/20/18, at ¶ 1.

However, at a subsequent hearing on the remaining preliminary 

objections, the court questioned Pilchesky regarding his certificate of merit. 

Pilchesky “informed the [c]ourt that he had been attempting to get in contact 

with Dr. Hughes, the surgeon who performed the second emergency repair 

____________________________________________

1 Pilchesky also alleged Dr. Rainone was negligent for failing to perform preoperative testing that would have revealed heart blockages that could have 

been fatal during his first hernia surgery. The court sustained Defendants’ 

demurrer to this count, and Pilchesky has not appealed that ruling.
J-A25016-19

- 4 -

hernia surgery, but that the doctor was not responding.” Trial Court Opinion 

(“Tr. Ct. Op.”), filed 2/15/19, at 7; see also N.T., 9/5/18, at 3, 7-8. Pilchesky 

told the court that he “was not certain whether his case fell under any 

exception which would excuse the lack of a certificate of merit,” and “he did 

not know what exceptions might apply, and he did not have the current Rules 

of Civil Procedure.” Tr. Ct. Op. at 7; see also N.T. at 5.

The court informed Pilchesky that he would need to file a certificate of 

merit accompanied by a statement by a licensed professional in order to 

proceed with his medical malpractice action, and that the court would give 

him an addition 45 days to file one. Pilchesky responded that 45 days “was

enough time for him to do so,” and said, “That’s a fair amount of time.” Tr. 

Ct. Op. at 8; N.T. at 7. Pilchesky reminded the court that it had previously 

been of the opinion “that the preliminary objections was the wrong procedure 

to attack the lack of a Certificate of Merit,” and that Defendants should file a 

praecipe for a judgment of non pros, after which Pilchesky “would respond 

accordingly.” N.T. at 7. The court responded that because he was present at 

the hearing on the preliminary objections, Pilchesky was aware of the issue, 

and the court was giving Pilchesky extra time to file a new certificate of merit. 

Id. Pilchesky responded, “I will do my best.” Id. The court also advised 

Pilchesky to hire legal representation. Id. at 8-9.

The court memorialized its decision by issuing a written order on 

September 7, 2018, directing Pilchesky to file a certificate of merit by October 

22, 2018, 45 days later. The order stated, “In the event [Pilchesky] is unable 
J-A25016-19

- 5 -

to comply with this requirement, the court may at that time grant Defendants’ 

preliminary objection [and dismiss] the case with prejudice.” Order, 9/7/18, 

at 1. The order also stated that the court had “advised the parties that [it] 

would treat the preliminary objection regarding the Certificate of Merit to 

comply with [Rule Pa.R.C.P. 1042.3].” Id. at 1 n.1.

Pilchesky did not file a new certificate of merit. More than a month after 

the October 22 deadline had passed, the court entered an order sustaining 

Defendants’ demurrer to Pilchesky’s Third Amended Complaint and dismissing 

the case with prejudice. 

Pilchesky appealed, and raises the following issues:

1. Did the trial court abuse its discretion in dismissing the Third 

Amended Complaint against [Dr. Rainone, a] licensed professional 

defendant, a doctor, for [Pilchesky’s] failure to file a Certificate of 

Merit?

2 Did the trial court err at law in dismissing the Third Amended 

Complaint against [Geisinger], a non-licensed professional 

defendant, a medical business, for the want of [Pilchesky] filing a 

Certificate of Merit?

3. Did [Rainone/Geisinger] waive their argument that Pilchesky 

failed to file a Certificate of Merit?

Pilchesky’s Br. at 4.2

____________________________________________

2 Pilchesky’s brief is not organized into sections corresponding to his questions 

presented, in contravention of Pa.R.A.P. 2119(a). We do not believe this failing 

has hindered our ability to consider Pilchesky’s arguments, and we therefore 

do not find waiver. However, to the extent we have misunderstood or failed 

to consider any argument, Pilchesky has waived it by failing to comply with 

Rule 2119(a). 
J-A25016-19

- 6 -

I. Certificate of Merit

Pilchesky argues the court erred in requiring him to file a certificate of 

merit accompanied by a written statement by a medical professional. 

Pilchesky argues he could prove his claims without providing his own expert,

by cross-examining Dr. Rainone, admitting Dr. Hughes’ medical report into 

evidence, and securing Dr. Hughes’ testimony through a subpoena. Pilchesky’s 

Br. at 13-15. In the alternative, Pilchesky argues expert testimony is not 

required to prove his case, because his hernia operation was not so 

complicated that laypersons would not understand the negligent aspects of a 

mesh hernia surgery gone wrong. Id. at 14, 20. Pilchesky also posits that his 

allegations satisfy the elements of res ipsa loquitur. Id. at 20-22. Pilchesky 

tangentially argues he substantially complied with the Rules by filing a 

certificate of merit stating his belief that no expert testimony was necessary. 

Id. at 18.

Interpretation of the Rules of Civil Procedure involves a question of law. 

We thus employ a de novo standard of review. Bruno v. Erie Ins. Co., 106 

A.3d 48, 73 (Pa. 2014).

Rule 1042.3 of the Rules of Civil Procedure requires that “[i]n any action 

based upon an allegation that a licensed professional deviated from an 

acceptable professional standard,” the plaintiff or plaintiff’s attorney must file 

a certificate of merit within 60 days of filing the complaint. Pa.R.C.P. 

1042.3(a). The certificate of merit must state one of three things: (1) an 

appropriate licensed professional has supplied a written statement that the 
J-A25016-19

- 7 -

conduct described in the complaint fell outside acceptable professional

standards and caused the plaintiff’s harm; (2) the claim against the defendant 

is based solely on allegations that other licensed professionals for whom this 

defendant is responsible deviated from an acceptable professional standard;

or (3) the expert testimony of a licensed professional is unnecessary for the 

prosecution of the claim. Id. at (a)(1)-(3).

However, if the certificate of merit is not signed by an attorney, the 

plaintiff must attach a written statement from an appropriate licensed 

professional supporting the claim. Id. at (e). Thus, reading subsections (a)(2) 

and (e) together, the certificate of merit must include a statement from a 

licensed professional unless an attorney certifies that expert testimony is 

unnecessary; the Rule does not allow a pro se party to certify that expert 

testimony is unnecessary. Pa.R.C.P. 1042.3(a)(2) & (e). As an attorney did 

not sign Pilchesky’s certificate of merit, the court did not err in requiring 

Pilchesky to file a new certificate of merit accompanied by a written statement 

by a licensed medical professional. Pilchesky’s arguments that he could 

prosecute his claim without expert testimony are beside the point. 

Furthermore, Pilchesky may not rely on expert reports to satisfy the 

certificate of merit requirement or to claim substantial compliance with the 

Rule. See Womer v. Hilliker, 908 A.2d 269, 278 n.10 (Pa. 2006). Nor do we 

consider Pilchesky’s assertions that he will rely on the trial testimony of Dr. 

Rainone or Dr. Hughes to be substantial compliance. The Rule does not allow 

a pro se plaintiff simply to identify an expert; it requires a written statement 
J-A25016-19

- 8 -

by that expert supporting the plaintiff’s claim. See Womer, 908 A.2d at 275–

76. In addition, Pilchesky cannot force Drs. Rainone and Hughes to testify as 

medical experts against their will. See Boucher v. Pa. Hosp., 831 A.2d 623, 

632 (Pa.Super. 2003). The court did not err in requiring Pilchesky to file a 

certificate of merit accompanied by a written statement by an appropriate 

licensed professional.

II. Vicarious Liability

Pilchesky next argues the court erred in dismissing his claims against 

Geisinger because he did not file a valid certificate of merit. Pilchesky’s Br. at 

23-24. Pilchesky argues that the Rules do not require him to file a certificate 

of merit in relation to his claims against Geisinger, because he is not asserting 

a professional liability claim against Geisinger, but rather a vicarious liability 

claim. Id.

A plaintiff whose claim against a defendant “is based solely on 

allegations that other licensed professionals for whom this defendant is 

responsible deviated from an acceptable professional standard” may file a 

certificate of merit stating that such is the case. Pa.R.C.P. 1042.3(a)(2). 

However, the plaintiff must also file a certificate of merit as to the other 

licensed professional for whom the defendant is allegedly responsible. Id.,

Note.

Pilchesky’s Third Amended Complaint alleged that Geisinger was 

vicariously responsible for Dr. Rainone’s negligence as a licensed professional. 

Pilchesky was therefore required to file a certificate of merit stating that his 
J-A25016-19

- 9 -

claim against Geisinger was based on allegations that a licensed professional 

for whom Geisinger was responsible (i.e., Dr. Rainone) deviated from an 

acceptable professional standard, as well as a valid certificate of merit as to 

Dr. Rainone. As Pilchesky did not comply with these requirements, no relief is 

due.

III. Waiver

Pilchesky argues Defendants waived their objection to his failure to file 

a valid certificate of merit, because Defendants never sought judgment non 

pros. Pilchesky’s Br. at 15-16, 25.

3 Pilchesky offers no authority to support 

this proposition, and we have found none. Insofar as Pilchesky maintains he 

is due relief because the court sustained Defendants’ demurrer, rather than 

requiring Defendants to seek judgment non pros, we conclude no relief is due

for two reasons.

First, Pilchesky did not preserve this issue below. When Defendants filed

Preliminary Objections raising the lack of a valid certificate of merit, Pilchesky 

did not raise it either by filing Preliminary Objections to the Preliminary 

Objections, or in his Response to Defendants’ Preliminary Objections. Rather, 

Pilchesky’s Response only addressed the requirement that he supply a written 

statement by a medical professional. Although Pilchesky briefly raised the 

____________________________________________

3 Pilchesky argues for the first time on appeal that the court violated the 

doctrine of res judicata by first dismissing Defendants’ preliminary objections 

because they failed to seek a non pros, and later ruling in Defendants’ favor 

on this issue on subsequent Preliminary Objections. Pilchesky’s Br. at 25-26.

As Pilchesky did not argue res judicata to the trial court, and presents no 

supporting authority in his brief, he has waived this issue.
J-A25016-19

- 10 -

question at the hearing on the Preliminary Objections, he ultimately 

acquiesced to the court’s requiring a certificate of merit. See Commonwealth 

v. Hewlett, 189 A.3d 1004, 1010 (Pa.Super. 2018) (holding acquiescence in 

ruling waived challenge to it on appeal). When the court stated that it would 

give him additional time to file a certificate of merit, Pilchesky made no 

argument that the court could not require him to do so unless Defendants 

sought a judgment of non pros. Instead, Pilchesky agreed to file a new 

certificate of merit before the deadline set by the court. An appellant may not 

raise new legal theories on appeal, and we consider the issue waived.

Andrews v. Cross Atl. Capital Partners, Inc., 158 A.3d 123, 130 

(Pa.Super. 2017) (en banc).

Second, and equally important, Pilchesky fails to argue how he was 

prejudiced by the court’s decision to dismiss his case on Preliminary 

Objections, rather than require Defendants to seek a non pros. Pilchesky does 

not argue that had the court required Defendants to seek judgment non pros, 

he would have complied with the certificate of merit requirement in the 

interim, or sought more time in which to comply. Nor does Pilchesky argue 

that if the court had entered a judgment of non pros, he would have 

successfully sought to open judgment. We therefore consider any procedural 

error in ruling on the issue on preliminary objections to be at most harmless 

error. We therefore affirm the order of the trial court granting Defendants’ 

Preliminary Objections and dismissing this action with prejudice.

Order affirmed.
J-A25016-19

- 11 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/18/2020