Opinion
Civil Action No. 19-1385
03-26-2020
COREY BRACEY, Plaintiff, v. COREY VALENCIA, Correctional Officer I, MCLAREN MEDICAL LABORATORY, M.D. DENNIS W. SPENCER, Laboratory Director, WARD MEDICAL LABORATORY, M.D. WILLIAM G. FINN, Laboratory Director, GARCIA CLINICAL LABORATORY, and M.D. LORENZ P. KIELHORN, Laboratory Director, Defendants.
Re: ECF No. 26 ORDER OF COURT
Defendants William Finn, M.D. and Ward Medical Laboratory have filed a "Praecipe for Entry of Non Pros Pursuant to Pa. R.C.P. 1042.7." ECF No. 26. Rules 1042.6 and 1042.7 of the Pennsylvania Rules of Civil Procedure allow a defendant to a professional negligence claim to have the claim dismissed if the plaintiff fails to file a Certificate of Merit. "In federal courts applying Pennsylvania law, because there is no procedural mechanism of Judgment of Non Pros, the 'failure to submit the certificate is a possible ground for dismissal by the district court, when properly presented to the court in a motion to dismiss.'" Stanich by & through Stanich v. Pickens, No. 18-CV-120E, 2019 WL 1330937, at *2 (W.D. Pa. Mar. 25,2019) (quoting Turner v. Wetzel, 2018 WL 7253304, at *4-5 (M.D. Pa. Dec. 28, 2018), report and recommendation adopted, 2019 WL 480484 (M.D. Pa. Feb. 7, 2019) citing Bresnahan v. Schenker, 498 F. Supp. 2d 758, 762 (E.D. Pa. 2007) and Keel-Johnson v. Amsbaugh, 2009 WL 648970, at *3 & n.2 (M.D. Pa. Mar. 10, 2009) (emphasis added).
Accordingly, this 26th day of March 2020, IT IS HEREBY ORDERED that the Clerk strike the Praecipe for Entry of Non Pros Pursuant to Pa. R.C.P. 1042.7 filed on behalf of Defendants William Finn, M.D. and Ward Medical Laboratory. Defendants may seek the requested relief pursuant to the Rule 12 of the Federal Rules of Civil Procedure.
BY THE COURT:
/s/ Maureen P . Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE cc: All counsel of record via CM/ECF
Corey Bracey
GS 4754
SCI Phoenix
1200 Mokychic Road
Collegeville, Pa 19426