J-A21020-19
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`NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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`Appellants
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`v.
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`BRENTON D. BISHER, CARLA S.
`BISHER AND ESTATE OF CORY ALLEN
`BISHER
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`LEHIGH VALLEY HEALTH NETWORK,
`INC., LEHIGH VALLEY HOSPITAL,
`INC., LEHIGH VALLEY ANESTHESIA
`SERVICES, PC, LVPG PULMONARY
`AND CRITICAL CARE MEDICINE, DR.
`BRIAN CIVIC, DR. DOROTHEA
`WATSON, DR. JENNIFER STROW, DR.
`BONNIE PATEK, DR. FREDERIC
`STELZER, EASTERN PENNSYLVANIA
`GASTROENTEROLOGY AND LIVER
`SPECIALISTS, PC, AND NORMA D.
`WILSON, CRNA
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` IN THE SUPERIOR COURT OF
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` No. 2743 EDA 2018
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`Appeal from the Order Entered September 5, 2018
`In the Court of Common Pleas of Lehigh County Civil Division at No(s):
`2017-C-2434
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`BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.
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`DISSENTING MEMORANDUM BY BOWES, J.: FILED JUNE 30, 2020
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`I agree with the Majority that the Bishers’ actions of filing and litigating
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`a complaint, petitions, and motions in the trial court constituted the
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`unauthorized practice of law under this Court’s precedent.1 However, I do not
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`____________________________________________
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`1 The earlier cases addressing the unauthorized practice of law concerned non-
`parties who sought to represent another person or entity. See, e.g., Shortz
`v. Farrell, 193 A. 20, 24 (Pa. 1937) (providing corporation cannot litigate but
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`J-A21020-19
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`believe that the pro se or unverified nature of the complaint that initiated this
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`case rendered it a nullity such that there was no action over which the trial
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`court could exercise jurisdiction. In my view, the case law and the particular
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`circumstances of this case do not warrant quashal, but rather that we remand
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`to allow counsel to file the appropriate pleadings.
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`First, this Court has held that “a defective verification does not affect
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`the jurisdiction of the court.” George H. Althof, Inc. v. Spartan Inns of
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`Am., Inc., 441 A.2d 1236, 1238 n.3 (Pa.Super. 1982). “[A]t a bare minimum,
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`a court confronted by a defective verification should grant leave to amend[.]”
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`Reilly v. Ernst & Young, LLP, 929 A.2d 1193, 1201 (Pa.Super. 2007)
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`____________________________________________
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`through counsel); Kohlman v. Western Pennsylvania Hospital, 652 A.2d
`849 (Pa.Super. 1994) (holding non-lawyer attorney-in-fact not permitted to
`represent principal in litigating medical malpractice action). However, in
`survival and wrongful death actions like the one at issue here, the personal
`representative of the estate is the actual party-plaintiff. See Bouchon v.
`Citizen Care, Inc., 176 A.3d 244, 258 (Pa.Super. 2017). Therefore, such
`plaintiffs do not represent third parties by virtue of litigating without counsel,
`but rather represent
`themselves
`in
`their capacity as
`the estate
`representatives. While there has been some suggestion that this distinction
`might be relevant when the non-lawyer personal representative is the sole
`beneficiary of the estate, it has additionally been noted that “estates also
`normally involve third parties and the payment of estate taxes to the
`Commonwealth.” In re Estate of Rowley, 84 A.3d 337, 342 (Pa.Cmwlth.
`2013). Since we have no information regarding the solvency of Cory Bisher’s
`estate or other indication that the Bishers alone will be impacted by the
`outcome of this action, I do not disagree with the Majority’s conclusion that
`the Bishers, although the actual plaintiffs by virtue of being co-administrators
`of their son’s estate, may not proceed pro se in litigating their survival and
`wrongful death claims on behalf of the estate and themselves as the wrongful
`death beneficiaries, respectively.
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`(internal quotation marks omitted). Further, by failing to object in the trial
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`court to the lack of a proper verification, a party waives the issue on appeal.2
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`See Avery v. Cercone, 225 A.3d 873, 883 (Pa.Super. 2019).
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`Since a defective verification does not implicate jurisdiction, there is no
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`basis for this Court to address it sua sponte. See, e.g., Wiegand v.
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`Wiegand, 337 A.2d 256, 257–58 (Pa. 1975) (reversing Superior Court for
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`addressing non-jurisdictional not raised by the parties). Moreover, because
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`no party objected to the lack of a verification, the plaintiffs did not have the
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`opportunity to correct the omission. As its absence does not impact our ability
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`to review the issues raised in this appeal, quashal of this appeal based upon
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`lack of a verification to the complaint is unwarranted.
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`Second, not all pro se filings that are deemed “legal nullities” are treated
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`as having no legal effect whatsoever. Specifically, we have held that an
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`improper pro se filing made to protect a right, rather than to pursue a legal
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`strategy, retains its legal effect. See, e.g., S.C.B. v. J.S.B., 218 A.3d 905,
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`____________________________________________
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`2 The Majority cites Atlantic Credit & Finance, Inc. v. Giuliana, 829 A.2d
`340, 344 (Pa.Super. 2003), for the proposition that a complaint is void ab
`initio if it is not properly verified. See Majority Memorandum at 14-15.
`However, in that case, we held that a preliminary objection challenging the
`verification was meritorious, and remanded the case for the trial court to
`dismiss the complaint without prejudice for the plaintiff to correct the
`defect by filing an amended complaint. See Atl. Credit & Fin., Inc.,
`supra at 345. Were the complaint void ab initio, there would have been
`nothing to amend. See McClean v. Djerassi, 84 A.3d 1067, 1071 (Pa.
`Super. 2013) (holding complaint filed against dead person was completely
`void and could not be amended).
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`911 n.4 (Pa.Super. 2019) (declining to treat the represented appellant’s notice
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`of appeal as a legal nullity); Commonwealth v. Williams, 151 A.3d 621,
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`624 (Pa.Super. 2016) (same).3 More importantly, in prior instances in which
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`the Pennsylvania appellate courts considered pro se appeals involving the
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`viability of actions brought pro se by non-lawyer personal representatives of
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`estates, we have not quashed such appeals for lack of jurisdiction. Nor have
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`we held that the pro se pleading that commenced the action was void ab initio.
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`Rather, we affirmed the trial court orders that dismissed the pending pleadings
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`only after having provided the personal representative the
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`opportunity to obtain counsel.
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`A Pennsylvania appellate court first addressed the issue in In re Estate
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`of Rowley, 84 A.3d 337 (Pa.Cmwlth. 2013). Therein, our sister Court
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`considered the pro se appeal of Miller, the non-lawyer administrator of
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`Rowley’s estate, from an order that dismissed his pro se petition to vacate a
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`judicial tax sale of property of the estate. The local tax bureau moved to
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`____________________________________________
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`3 As I noted above, the Bishers, as co-administrators of their son’s estate, are
`the proper parties to bring the instant survival and wrongful death actions.
`See Bouchon v. Citizen Care, Inc., 176 A.3d 244, 258 (Pa.Super. 2017).
`Therefore, this is not an instance where a complaint is wholly without effect
`for want of a competent legal party. Cf. McClean v. Djerassi, 84 A.3d 1067,
`1071 (Pa.Super. 2013) (“It is fundamental that an action at law requires a
`person or entity which has the right to bring the action, and a person or entity
`against which the action can be maintained. By its very terms, an action at
`law implies the existence of legal parties; they may be natural or artificial
`persons, but they must be entities which the law recognizes as competent. A
`dead man cannot be a party to an action, and any such attempted proceeding
`is completely void and of no effect.” (cleaned up)).
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`dismiss the petition, contending that Miller’s litigation of the petition amounted
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`to the unauthorized practice of law. Id. at 339. The trial court held that the
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`estate must be represented by an attorney, and thus entered an order
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`providing that the petition would be dismissed if Miller failed to retain counsel
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`within sixty days. Id. Miller filed a pro se appeal prior to the expiration of
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`the sixty-day window, challenging the ruling that he could not represent the
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`estate.
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`The Commonwealth Court, after determining that it had jurisdiction over
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`the collateral order, noted that whether a non-attorney could litigate on behalf
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`of an estate was an issue of first impression in Pennsylvania state court. The
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`Court examined our Supreme Court’s precedent concerning what constitutes
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`the practice of law and the policy reasons prohibiting non-lawyers from
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`engaging in it, and it also considered federal court decisions on the issue.
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`Ultimately, the Court held that Miller could not represent the estate, stating:
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`“Given the complex legal issues that may arise during the representation of
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`an estate, . . . prohibiting a non-attorney from representing an estate is
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`essential to protecting the interests of the public[.]” Id. at 342.
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`Of importance to the case sub judice, the Commonwealth Court did not
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`quash Miller’s pro se appeal as a nullity, or indicate that the pro se petition
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`pending in the trial court was void ab initio. Instead, it affirmed the order
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`providing that the pro se petition would be dismissed if Miller did not timely
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`obtain counsel, and remanded the case to the trial court for further
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`proceedings.
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`This Court had occasion to address the issue in Norman v. Temple
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`University Health System, 208 A.3d 1115 (Pa.Super. 2019). In that case,
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`Norman, the administrator of his mother’s estate, filed pro se a medical
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`malpractice complaint against various defendants. The action was litigated
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`for months with the parties filing “alternating preliminary objections and
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`amended complaints.” Id. at 1117. Citing Estate of Rowley, the trial court
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`ruled that no non-lawyer could represent the estate pro se, and stayed the
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`case for sixty days to allow the estate to retain an attorney.4 After Norman
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`failed to obtain counsel, the trial court granted the defendants’ motion to
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`dismiss the pro se complaint. Norman filed a pro se appeal to this Court,
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`challenging the trial court’s determination that he could not litigate the
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`personal injury action pro se as the estate administrator.
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`This Court did not quash the pro se appeal or hold that Norman’s pro se
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`complaint was void ab initio. Rather, we extensively discussed Estate of
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`Rowley, approved the trial court’s reliance on it, and adopted Estate of
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`Rowley’s prohibition on an estate representative’s litigation before an
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`____________________________________________
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`4 The order alternatively allowed the administrator to prove that he was the
`only beneficiary of the estate. However, the defendants noted that one of the
`amended complaints established that the administrator was not the only
`beneficiary. See Norman v. Temple University Health System, 208 A.3d
`1115, 1117-18 (Pa.Super. 2019).
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`administrative agency as equally applicable to an administrator’s pro se efforts
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`in a trial court. Norman, supra at 1121. Therefore, again citing Estate of
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`Rowley, we affirmed the trial court’s order that dismissed the pro se
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`complaint after Norman declined to comply with the trial court’s order
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`to obtain counsel.
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`In my view, Estate of Rowley and Norman suggest that, while a court
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`lacks jurisdiction to determine the merits of any issues in an action
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`commenced by a non-lawyer on behalf of an estate, the pleading that initiated
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`the action is not itself void ab initio. Instead, these cases indicate that an
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`action commenced through the unauthorized practice of law is merely
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`voidable. See also Kohlman v. Western Pennsylvania Hospital, 652 A.2d
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`849 (Pa.Super. 1994) (affirming, in medical malpractice action initiated by
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`non-lawyer attorney-in-fact for plaintiff, the denial of petition to strike
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`judgment of non pros litigated by the attorney-in-fact, but remanding for
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`refiling of petition by counsel or the plaintiff pro se).5
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`____________________________________________
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`5 I acknowledge that in David R. Nicholson, Builder, LLC v. Jablonski, 163
`A.3d 1048, 1056 (Pa.Super. 2017), this Court held that the trial court lacked
`jurisdiction to consider a pro se complaint, and the subsequent counselled
`complaint did not cure the jurisdictional defect. However, Jablonski involved
`a layperson non-party’s filing of a complaint on behalf of an LLC, not an estate
`representative filing a pro se complaint. This Court’s decision in Norman,
`which adopted Estate of Rowley and implicitly approved of the notion that
`subsequent actions of counsel may validate a pro se complaint filed by an
`estate representative, post-dates Jablonski. Accordingly, I deem Norman,
`not Jablonski, as the controlling authority on this point.
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` Furthermore, Norman and Estate of Rowley are consistent with the
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`notion that before a voidable claim is nullified based upon the unauthorized
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`practice of law, the pro se litigant should be advised of the problem and
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`afforded the opportunity to obtain counsel. The Bishers were not so advised
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`until the case was pending in this Court.
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`Accordingly, I would not quash this appeal.6 Instead, based upon the
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`case law discussed above, I would hold that the trial court did not have
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`jurisdiction to entertain the merits of the pending action, and, thus, all of its
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`orders concerning the merits of the Bishers’ claims are void. I would remand
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`the case for counsel to file an amended complaint within sixty days. If none
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`is filed, I would instruct that the trial court may dismiss the complaint with
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`prejudice. If counsel files an amended complaint, the case should proceed
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`ordinarily therefrom.7
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`____________________________________________
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`6 The Majority properly concludes that this is a timely appeal from a final
`order. See Majority Memorandum at 9-11. As such, neither untimeliness nor
`lack of finality provides an alternate basis to support the Majority’s disposition
`of quashal. See Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996, 1001 n.3
`(Pa. 2001) (holding quashal was not warranted where the appeal was timely
`filed from an appealable order).
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` The Majority suggests that my proposed disposition of this appeal would
`“reward Carla Bisher for the unauthorized practice of law” and “serve a great
`prejudice to” the defendants. Majority Memorandum at 14 n.10. First, I
`reiterate that the reason a non-lawyer estate representative, although the
`proper party-plaintiff, is not permitted to proceed pro se is because her actions
`impact not only herself, but also the creditors and other beneficiaries of the
`estate. See note 1, supra. My disposition is not designed to reward Ms.
`Bisher, but to correct the prejudice that those others have suffered by her
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`Therefore, I respectfully dissent.
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`____________________________________________
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`unauthorized actions. Second, the Majority’s bald assertion of prejudice to
`the defendants is unsupported by the record. Further, it is the failure of their
`attorneys to raise the impropriety of the Bishers’ unauthorized practice of law
`that has allowed the time and effort expended to be wasted. Cf. In re Estate
`of Rowley, 84 A.3d 337 (Pa.Cmwlth. 2013) (opposing party alerted the court
`to issue by moving to dismiss pro se petition of estate representative).
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