ROGAN et al v. COUNTY OF LAWRENCE, PENNSYLVANIA et al

Filing 33

MEMORANDUM ORDER. It is hereby ORDERED that 16 Second Motion for Judgment on the Pleadings is DENIED WITHOUT PREJUDICE to Plaintiffs' right to explain the reasons for the delay in filing their COM at a hearing to be held before the Chief Magis trate Judge at a date and time to be set hereafter. It is further ORDERED that 29 Report and Recommendation is ADOPTED as the opinion of this Court. And it is further ORDERED that this case is referred back to the Chief Magistrate Judge for all further proceedings not inconsistent with this Order. Signed by Judge Mark R. Hornak on 8/23/13. (bdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARCIE A. ROGAN and JAMES N.
RAISLEY, Co-Administrators ofthe
Estate ofKathleen Ann Rogan,
Deceased,
Plaintiff,

v.
COUNTY OF LAWRENCE,
PENNSYLVANIA, BRIAN COVERT,
Warden ofthe Lawrence County
Correctional Facility, JOHN DOE #1,
Lawrence County Correctional Facility
Employee, PRIME CARE MEDICAL,
INC., JOHN DOE #2, Physician
Employee, JOHN DOE #3, Medical
Specialist Employee ofPrime Care
Medical Inc.,
Defendants.

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Civil Action No. 12 - 1375
District Judge Mark R. Hornak
Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM ORDER

This case is before the Court on the Report and Recommendation issued by Chief
Magistrate Judge Lenihan filed on August 1, 2013. (ECF No. 29.) The Chief Magistrate Judge
recommended that the Second Motion for Judgment on the Pleadings (ECF No. 16) filed by John
Doe #2, John Doe #3 and PrimeCare Medical (Hthe Medical Defendants") be denied without
prejudice to Plaintiffs' right to explain the reasons for the delay in filing their Certificate of Merit
("COM"). She also recommended that the Court deny the Medical Defendants' Motion and that
Plaintiffs be afforded the opportunity to file an amended COM should Plaintiffs demonstrate a
reasonable explanation or legitimate excuse for their delay. If, however, Plaintiffs cannot make

this showing, then she recommended that the Medical Defendants' Motion be granted to the
extent it seeks dismissal of Plaintiffs' professional liability claims.
The parties were served with the Report and Recommendation and advised that they had
until August 19, 2013, to file written objections.

The Medical Defendants filed timely

Objections on August 5, 2013, objecting to the procedural aspects of the proposed ruling.
Specifically, they argue that the Court should grant the Medical Defendants' Motion but allow
Plaintiffs only a specific period of time in which to provide an explanation for their delay in
filing the COM. Upon review, the Objections do not undermine the Recommendation of the
Chief Magistrate Judge. However, the Court will order that oral argument be held on the issue of
whether Plaintiffs have demonstrated the requisite showing necessary to excuse their delay in
filing the COM. This is to take place before the Chief Magistrate Judge at a date and time to be
set by the Chief Magistrate Judge after the issuance of this Order.
The Chief Magistrate Judge shall enter such orders as she determines to be just and
proper, requiring written submissions as to such matters in advance of such proceedings.
Therefore, after de novo review of the pleadings and documents in the case, together with the
Report and Recommendation, and the Objections thereto, the following Order is entered.

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AND NOW, thisd.3 day of August, 2013,
IT IS HEREBY ORDERED that the Second Motion for Judgment on the Pleadings

(ECF No. 16) is DENIED without prejudice to Plaintiffs' right to explain the reasons for the
delay in filing their COM at a hearing to be held before the Chief Magistrate Judge at a date and
time to be set hereafter.

If Plaintiffs are able to demonstrate a reasonable and sufficient

explanation or legitimate excuse for their delay in filing, then the Second Motion for Judgment
on the Pleadings will be denied and Plaintiffs will be allowed to file an amended COM that
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complies with the Pennsylvania Rules of Civil Procedure. If, however, they are not, then the
Second Motion for Judgment on the Pleadings will be granted and Plaintiffs' professional
liability claims will be dismissed with prejudice.
IT IS FURTHER ORDERED that the Report and Recommendation dated August 1,
2013 (ECF No. 29) is ADOPTED as the opinion of this Court.
AND IT IS FURTHER ORDERED that this case is referred back to the Chief
Magistrate Judge for all further pretrial proceedings not inconsistent with this Order.

By the Court:

ark R. Hornak
United States District Judge

cc: Counsel of Record

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