J-S85028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 BRUCE L. WISHNEFSKY                     :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
               v.                        :
                                         :
                                         :
 JAWAD A. SALAMEH M.D.                   :   No. 983 WDA 2017

                      Appeal from the Order June 16, 2017
               In the Court of Common Pleas of Somerset County
                     Civil Division at No(s): 654 Civil 2016


BEFORE: BOWES, J., PANELLA, J., and STABILE, J.

MEMORANDUM BY PANELLA, J.                             FILED JUNE 20, 2018

      Bruce Wishnefsky appeals pro se from the order sustaining Jawad A.

Salameh’s preliminary objections to his medical malpractice complaint.

Wishnefsky, currently serving a 45 to 90 year sentence of imprisonment for

sexually abusing two children, asserts that Dr. Salameh, in his role as a

medical director of the prison where Wishnefsky resides, improperly refused

to approve Wishnefsky’s request to consult with a urologist. Wishnefsky claims

this breach of duty has caused him depression and a worsening of his urinary

functioning.

      Wishnefsky entered default judgment against Dr. Salameh after the

doctor failed to file a timely answer. Upon receiving notice of the default

judgment, Dr. Salameh moved to open the default judgment. At the same
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time, Dr. Salameh filed preliminary objections to Wishnefsky’s complaint,

arguing that the claims in the complaint had already been litigated.

      The court opened the judgment, and received argument from the parties

on various cross-petitions filed by them. Ultimately, the court concluded res

judicata applied and sustained the preliminary objections. We conclude the

record was insufficient to establish res judicata at the preliminary objection

phase. We therefore vacate in part, affirm in part, and remand for further

proceedings.

      Wishnefsky first argues the court should have struck Dr. Salameh’s

petition to open the judgment, as the petition did not conform with the Rules

of Civil Procedure. While we agree with Wishnefsky that Dr. Salameh’s petition

is unusual in its form, we conclude that it fulfills the basic necessities

envisioned by the rules.

      Dr. Salameh’s petition takes the form of a short, one paragraph

statement of its desired relief that incorporates the assertions and arguments

contained in attached documents. The first attached document is Dr.

Salameh’s brief in support of his petition. Also attached is an affidavit signed

by Dr. Salameh asserting the factual grounds he believed justified opening the

default judgment.

      While this format is not ideal, in that it does not provide explicit

paragraphing to allow the responding party to file a direct answer denying

specific paragraphs in the petition, we find Wishnefsky was not prejudiced by


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this procedure.1 The court did not find that Wishnefsky had admitted any

relevant facts through a failure to properly deny the allegations in Dr.

Salameh’s petition. Rather, the court found the facts of record supported Dr.

Salameh’s petition, and granted relief.

       Next, Wishnefsky contends the court erred in concluding Dr. Salameh’s

petition established grounds for opening the default judgment. Wishnefsky

focuses on an ambiguity regarding the date Dr. Salameh forwarded the

complaint to his attorney. We agree with the trial court’s conclusion that this

ambiguity is ultimately irrelevant.

       “A petition to open judgment is an appeal to the equitable powers of the

court. See PNC Bank v. Kerr, 802 A.2d 634, 638 (Pa. Super. 2002) (citation

omitted). As such, it is committed to the sound discretion of the hearing court

and will not be disturbed absent a manifest abuse of discretion. A “petition to

open rests within the discretion of the trial court, and may be granted if the

petitioner (1) acts promptly, (2) alleges a meritorious defense, and (3) can

produce sufficient evidence to require submission of the case to a jury.” PNC

Bank, N.A. v. Bluestream Technology, Inc., 14 A.3d 831, 836 (Pa.Super.

2010) (citation omitted).




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1 Similarly, we conclude Wishnefsky has failed to establish he suffered
prejudice from Dr. Salameh’s failure to attach a blank Rule to Show Cause to
his petition, or the court’s failure to issue a Rule returnable upon Wishnefsky.

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      Wishnefsky’s argument centers on the second prong of the test:

whether Dr. Salameh has provided an acceptable excuse for his failure to file

a timely responsive pleading to the complaint. “[W]hether an excuse is

legitimate is not easily answered and depends upon the specific circumstances

of the case.” Kelly v. Siuma, 34 A.3d 86, 93 (Pa. Super. 2011) (brackets in

original); (citations and internal quotation marks omitted). “[W]here the

failure to answer was due to an oversight, an unintentional omission to act,

or a mistake of the rights and duties of the appellant, the default judgment

may be opened.” Flynn v. America West Airlines, 742 A.2d 695, 699 (Pa.

Super. 1999) (citations omitted).

      In his affidavit, Dr. Salameh asserted he was served with Wishnefsky’s

complaint on January 13, 2017. He “thereafter” provided a copy of the

complaint to the Department of Corrections and his employer, who contracts

with the Department. He did not receive any notice of Wishnefsky’s intent to

enter a default judgment, but received the notice, sent by the court, indicating

that Wishnefsky entered default judgment in late February 2017. Docket

entries reveal the notice of entry of the default judgment was mailed to Dr.

Salameh on February 24, 2017. He filed his petition to open the default

judgment on March 22, 2017.

      The court found Dr. Salameh’s prompt filing of the motion to open,

coupled with his allegation that he did not receive any notice of Wishnefsky’s

intent to take a default judgment under Pa.R.C.P. 237.1(a)(2), was sufficient


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to establish that Dr. Salameh’s failure to respond to the complaint was

unintentional. These findings have support in the record, and neither relies

upon the specific date Dr. Salameh forwarded the complaint to his employer.

As such, we cannot conclude the court abused its discretion in concluding Dr.

Salameh had a reasonable explanation for his failure to respond.

      In his third issue, Wishnefsky contends the court erred in sustaining the

preliminary objections while his motion to strike a judgment of non pros was

pending. Dr. Salameh concedes that the court mistakenly entered a judgment

of non pros while the preliminary objections were pending. See Appellee’s

Brief, at 7 n.2 (“Defendant concedes that the Non Pros otherwise entered on

June 8 was premature.”) Therefore, upon remand, the court is to vacate the

non pros.

      In his pivotal fourth issue, Wishnefsky argues the court erred in

addressing the issue of res judicata at the preliminary objection stage of the

proceeding. Generally, res judicata is considered an affirmative defense, and

therefore must be raised in a responsive pleading under the header “New

Matter.” See Pa.R.C.P. 1030(a). Where, however, the complaint itself sets

forth the essential facts and issues litigated in the prior suit the issue should

be decided by preliminary objection. See Del Turco v. Peoples Home

Savings Association, 478 A.2d 456, 461 (Pa. Super. 1984).

      The court, in sustaining the preliminary objections, noted that it

compared the present complaint with the “[c]omplaint in [Wishnefsky’s] 2015


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[f]ederal action,” and found “there’s no difference to the facts or allegations

raised[.]” N.T., Argument, 6/15/17, at 8. The federal complaint was not

attached to Wishnefsky’s complaint;2 it is attached as an exhibit to Dr.

Salameh’s preliminary objections.

       Dr. Salameh argues the court was permitted to take judicial notice of

documents filed in other courts, citing to precedent from the Commonwealth

Court.3 However, Dr. Salameh concedes this Court has held that judicial notice

of records of another case is not appropriate at the preliminary objection

stage. See Appellee’s Brief, at 22 (citing 220 Partnership v. Philadelphia

Electric Co., 650 A.2d 1094, 1096 (Pa. Super. 1994)).

       We need not resolve this tension here. Even assuming the court was

permitted to take judicial notice of documents filed in the federal case and

attached to Dr. Salameh’s preliminary objections, we conclude that

Wishnefsky’s federal case involved a different theory of liability.

       A review of the federal complaint attached to Dr. Salameh’s preliminary

objection reveals that many of the operative facts are shared with the current

complaint. Importantly, however, it also reveals Wishnefsky raised five


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2 Nor do we find the federal complaint at issue referenced in Wishnefsky’s
complaint. There are references to a previous federal complaint, filed in 2008.

3“This Court is not bound by decisions of the Commonwealth Court. However,
such decisions provide persuasive authority, and we may turn to our
colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa. Super. 2010) (citation
omitted).

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claims: deliberate indifference, retaliation, two counts of Americans with

Disabilities Act violations, and a due process violation. Deliberate indifference

is the only claim that bears any legal resemblance to Wishnefsky’s current

medical malpractice claim.

      In a report and recommendation attached to Dr. Salameh’s preliminary

objections,   Federal   Magistrate   Judge   Lisa   Pupo   Lenihan    addressed

Wishnefsky’s claim as follows:

      However, Plaintiff does allege that as a result of Dr. Salameh’s
      refusal to approve a consult with an urologist, he has suffered
      from depression as well as deterioration of his urinary functioning.
      The Supreme Court is unequivocal that an inadvertent failure to
      provide adequate medical care does not constitute “an
      unnecessary and wanton infliction of pain,” and that in order to
      sate a cognizable claim of deliberate indifference, “a prisoner must
      allege acts or omissions sufficiently harmful to evidence deliberate
      indifference to serious medical needs.” Mere allegations of
      malpractice or disagreement as to proper medical treatment of a
      prisoner do not support a claim of an Eighth Amendment violation.

Wishnefsky v. Salameh, M.D., No. 3:15-cv-00148 (W.D. Pa. November 18,

2016) (Magistrate’s Report and Recommendation) (citations omitted);

(emphasis supplied). The court adopted this report by order dated December

16, 2016, which is also attached to Dr. Salameh’s preliminary objections.

      Thus, it is clear that Wishnefsky’s state law medical malpractice claim is

based upon facts that are at the base of his federal deliberate indifference

claim. However, these claims are legally distinct from each other, and involve

different standards of proof regarding Dr. Salameh’s mental state when he

refused to refer Wishnefsky for a urological consult.


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       It may be the case that Wishnefsky had the opportunity to present his

state law medical malpractice claim in federal court alongside his deliberate

indifference claim. If so, res judicata may still apply. However, this is not clear

from the record before us.4 We are therefore constrained to vacate and

remand for further proceedings.

       Order affirmed in part and vacated in part. Case remanded for further

proceedings consistent with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2018




____________________________________________


4 Wishnefsky claims the federal court refused to exercise supplementary
jurisdiction over his state law claims. The record before us provides no basis
upon which to assess this claim.

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