Kovalev, S. v. Shipkin, P.
CourtSuperior Court of Pennsylvania
Date FiledNovember 3, 2026
Docket3238 EDA 2025
JudgeFord Elliott
StatusUnpublished
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Full Opinion
J-S29036-26
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
SERGEI KOVALEV : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PAUL M. SHIPKIN : No. 3238 EDA 2025
Appeal from the Order Entered December 9, 2025
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 251100865
BEFORE: LAZARUS, P.J., MURRAY, J., and FORD ELLIOTT, P.J.E. *
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 3, 2026
Sergei Kovalev appeals pro se from the order,1 entered in the Court of
Common Pleas of Philadelphia County, dismissing his multi-count complaint
as frivolous pursuant to Pennsylvania Rule of Civil Procedure 240(j)(1). On
appeal, Kovalev argues that the trial court improperly dismissed all causes of
action set forth in his complaint. Upon review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 Kovalev purports to appeal from the order entered on December 5, 2026.
See Notice of Appeal, 12/11/25. Nevertheless, the court’s order was entered
on the docket pursuant to Pennsylvania Rule of Civil Procedure 236 on
December 9, 2026. See Pa.R.Civ.P. 236(b); Pa.R.A.P. 108(b); see also
Frazier v. City of Phila., 735 A.2d 113, 115 (Pa. 1999) (stating that “an
order is not appealable until it is entered on the docket with the required
notation that appropriate notice has been given”). We have amended the
caption accordingly.
J-S29036-26
On August 5, 2020, Kovalev was the victim in a trip and fall accident,
which resulted in litigation in the Court of Common Pleas of Philadelphia
County against the City of Philadelphia, the Pennsylvania Department of
Transportation, Callahan Ward 12th Street LLC, Marcus W. Toconita, and
Antonio R. Cutrufello. See Kovalev v. Callahan Ward 12th Street, LLC,
2026 WL 2495853, at *1 (Pa. Super., filed Aug. 25, 2026) (2529 EDA 2025)
(unpublished memorandum) (describing the trip and fall action in the trial
court). The case proceeded to jury trial and the trial court granted a motion
for directed verdict in favor of the City based on its immunity under the Tort
Claims Act. See id. Kovalev and the remaining defendants, Callahan Ward
12th Street LLC, Toconita, and Cutrufello, then entered into a global
settlement agreement. See id. Kovalev later appealed from an order granting
the defendants’ motion to enforce the settlement agreement, and upon review
we transferred the matter to the Commonwealth Court. See id. at *1-2.
The present action arises from deposition testimony provided by Paul M.
Shipkin, M.D., in his capacity as an expert witness in the prior trip and fall
action. See Complaint, 11/6/25, at ¶ 13. Specifically, Kovalev alleges that
“[Dr.] Shipkin made and verbally communicated numerous defamatory,
false[,] and fraudulent statements in reference to [Kovalev], his treatments[,]
and his health conditions.”2 Id. at ¶ 13. Moreover, Kovalev asserts that Dr.
____________________________________________
2 Kovalev does not specifically identify in the complaint, or in his brief on
appeal, which statements are the subject of his complaint.
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Shipkin was fully aware that his statements would be “used, transmitted[,]
and directed to numerous other people during a trial,” “used in court
proceedings[,] and he was [testifying] under oath and under penalty of
perjury.” Id. at ¶¶ 14-15.
Central to Kovalev’s claims, on November 7, 2024, during the jury trial
in the trip and fall action, a recording of Dr. Shipkin’s deposition testimony
was played for the jury. See id. at ¶ 16. Kovalev alleges that Dr. Shipkin’s
expert deposition testimony caused him to suffer “financial injuries, enormous
humiliation, psychological trauma, and other related harms, injuries, and
losses.” Id. at ¶ 17. These harms allegedly caused Kovalev to “reluctantly
accept defendants’ low and insufficient settlement offer that was not adequate
even to compensate [him] for all injuries, harms, and losses, and for which
even to this time, [he] still did not receive the settlement funds from the
defendants in [the trip and fall] case.” Id. at ¶ 18.
In his complaint, Kovalev purports to assert nine 3 separate causes of
action against Dr. Shipkin: (1) defamation, defamation per se, and defamation
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3 Although Kovalev groups multiple causes of action under one heading, we
recognize that defamation, defamation per se, and defamation by implication,
each carry separate burdens of proof. See Agriss v. Roadway Exp., Inc.,
483 A.2d 456, 461 (Pa. Super. 1994) (defamation); Walker v. Grand Cent.
Sanitation, Inc., 634 A.2d 237, 245-47 (Pa. Super. 1993) (defamation per
se); Menkowitz v. Peerless Publications, Inc., 211 A.3d 797, 800-01 (Pa.
2019) (defamation by implication). Nevertheless, we liberally construe that
pro se filing to include each cause of action in addressing this appeal. See
Elliot-Greenleaf, P.C. v. Rothstein, 255 A.3d 539, 542 (Pa. Super. 2021)
(stating that “While this court is willing to liberally construe materials filed by
(Footnote Continued Next Page)
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by implication; (2) fraud and fraudulent misrepresentation; (3) abuse of
process; (4) negligence per se – violations of laws and regulations; (5)
ordinary negligence; (6) negligence – infliction of psychological and other
injuries; (7) negligence – infliction of financial losses; (8) negligent infliction
of emotional distress; and (9) injunctive relief to prevent Dr. Shipkin from
providing expert testimony in future cases. See Complaint, 11/6/25. Kovalev
also sought declaratory relief in his prayer for relief. See id. at ¶ 1. On
November 6, 2025, Kovalev filed a “Petition for Leave to Proceed In Forma
Pauperis” (“IFP Petition”).4 See IFP Petition, 11/6/25. Doctor Shipkin filed
preliminary objections on December 3, 2025, arguing that Kovalev’s complaint
should be dismissed with prejudice. See Preliminary Objections, 12/3/25, at
¶ 15. On December 5, 2025, the trial court dismissed Kovalev’s complaint
pursuant to Rule 240(j)(1). See Order, 12/5/25. Kovalev’s timely appeal
followed. See Notice of Appeal, 12/11/25.
On appeal, Kovalev raises the following issues for our review:
I. Did the trial court err or abuse its discretion by deciding
that [Kovalev’s] complaint failed to state a claim upon
which relief can be granted?
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a pro se litigant, we note that appellant is not entitled to any particular
advantage because [he] lacks legal training.” (citation and quotation marks
omitted)).
4 Under Rule 240(b), “[a] party who is without financial resources to pay the
costs of litigation is entitled to proceed in forma pauperis.” Pa.R.Civ.P. 240(b).
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II. Did the trial court err or abuse its discretion by deciding
that [an] expert’s fraud, deception, and abuse of legal
process are covered by judicial privilege in Pennsylvania?
III. Did the trial court err or abuse its discretion by dismissing
the entire legal action at the time when the trial court did
not dispose [of Kovalev’s] claims for injunction and
declaratory relief?
IV. Did the trial court err or abuse its discretion by not
providing [Kovalev] an opportunity to amend his complaint,
if the trial court believed that [Kovalev’s] complaint had
pleading defects?
V. Did the trial court err or abuse its discretion by denying
[Kovalev] the right to access court and by preventing
[Kovalev] from litigating his legitimate grievances?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
Our standard of review from an order dismissing an appeal as frivolous
pursuant to Rule 240(j)(1) is “limited to a determination of whether the
plaintiff’s constitutional rights have been violated and whether the trial court
abused its discretion or committed an error of law.” Ocasio v. Prison Health
Services, 979 A.2d 352, 354 (Pa. Super. 2009). Rule 240(j)(1) provides that
“[i]f, simultaneous with the commencement of an action or proceeding or the
taking of an appeal, a party has filed a petition for leave to proceed in forma
pauperis, the court prior to acting upon the petition may dismiss the action,
proceeding or appeal if the allegation of poverty is untrue or if it is satisfied
that the action, proceeding or appeal is frivolous.” Pa.R.Civ.P. 240(j)(1).
The note to subpart (j)(1) explains that “[a] frivolous action or
proceeding has been defined as one that ‘lacks an arguable basis either in law
or in fact.’” Id. at Note (quoting Neitzke v. Williams, 490 U.S. 319, 325
(1989)). “Under Rule 240(j), an action is frivolous ‘if, on its face, it does not
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set forth a valid cause of action.’” Bell v. Mayview State Hosp., 853 A.2d
1058, 1060 (Pa. Super. 2004) (quoting McGriff v. Vidovich, 699 A.2d 797,
799 (Pa. Commw. 1997)). Moreover, as we review Kovalev’s complaint, we
are mindful that a pro se complaint should not be dismissed simply because it
is not artfully drafted. See Hill v. Thorne, 635 A.2d 186, 189 (Pa. Super.
1993).
For ease of disposition, we address Kovalev’s first, second, and third
issues raised on appeal together. Kovalev’s overarching argument is that the
“court abused its discretion by erroneously deciding that [Kovalev’s] legal
action was allegedly frivolous, only because[,] according to the trial court,
[Dr.] Shipkin was acting under judicial privilege. Contrary, [Dr.] Shipkin was
not covered by judicial privilege, at least not for all causes of action[] asserted
against him.” Appellant’s Brief at 18 (emphasis omitted); see also Appellant’s
Reply Brief at 4 (stating that “The substance of this appeal is whether
the trial court erred or abused its discretion by deciding that [Dr.
Shipkin’s] fraud, fraudulent conduct, fraudulent misrepresentation,
falsifications, abuse of process, negligence, defamation, and
injunctive relief are covered by judicial privilege.” (emphasis in
original)).
Furthermore, Kovalev argues, without citing to authority, that “[frauds],
swindles, fabrications, and intentional defamation, all made without any
legitimate reason are definitely NOT covered by judicial privilege; it is not
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related and it is not relevant to any legal procedures.” Appellant’s Brief at 17
(capitalization/emphasis in original). According to Kovalev,
[Doctor Shipkin’s] acts of defamation, oppression, fraud,
harassment, willful misconduct, and abuse of legal process were
not a part of any legitimate affairs in the judicial process and it
was not pertinent or material to the case at hand. [Doctor Shipkin]
was acting on his personal accord and in his malicious conduct
that had no legitimate purpose for the litigated case.
Id. at 18.
First, Kovalev asserts that his claims of fraud, deception, and abuse of
process are not covered by the privilege. See Appellant’s Brief at 17-21.
Second, Kovalev maintains that his causes of action against Dr. Shipkin fall
within the exception to judicial privilege recognized in LLMD of Mich., Inc.,
discussed below. See id. at 14-15. Third, Kovalev asserts that his requests
for injunction and declaratory relief are not subject to judicial privilege. See
id. at 23-28. We find no relief is due.
We begin our analysis with judicial privilege. Whether a particular
statement receives the absolute protection of judicial privilege is a question of
law for the court. See Richmond v. McHale, 35 A.3d 779, 785 (Pa. Super.
2012); Smith v. Griffiths, 476 A.2d 22, 25 (Pa. Super. 1984) (stating that
“Whether a privilege exists is a question of law for the court.”). Accordingly,
our standard of review is de novo, and the scope of our review is plenary. See
Ford-Bey v. Pro. Anesthesia Servs., 302 A.3d 789, 794, 796 (Pa. Super.
2023) (explaining that our standard of review over a question of law is de
novo, and our scope of review is plenary); see also Birchwood Estates
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Realty, Inc. v. Hovan, 2024 WL 5135471, at *3 (Pa. Super., filed Dec. 17,
2024) (545 MDA 2024) (explaining that our review of a judicial privilege query
is de novo) (non-precedential decision cited for persuasive value pursuant to
Pa.R.A.P. 126(b)).
The doctrine of judicial privilege provides that “[a]ll communications
pertinent to any stage of a judicial proceeding are accorded an absolute
privilege which cannot be destroyed by abuse.” Binder v. Triangle
Publications, Inc., 275 A.2d 53, 56 (Pa. 1971). Thus, “[i]t has long been the
law of Pennsylvania that statements made by judges, attorneys, witnesses
and parties in the course of[,] or pertinent to[,] any stage of judicial
proceedings are absolutely privileged and, therefore, cannot form the basis
for liability for defamation.” Pawlowski v. Smorto, 588 A.2d 36, 41 (Pa.
Super. 1991). As such, “[w]hen alleged libelous or defamatory matters, or
statements, or allegations and averments in pleadings or in the trial or
argument of a case are pertinent, relevant and material to any issue in a civil
suit, there is no civil liability for making any of them.” Post v. Mendel, 507
A.2d 351, 355 (Pa. 1986) (citations and quotation marks omitted).
Pennsylvania has extended this immunity from civil liability from
defamation to other alleged torts when occurring in connection with judicial
proceedings. See Moses v. McWilliams, 549 A.2d 950, 957 (Pa. Super.
1988) (providing examples of such torts). Judicial privilege “has been applied
by [this court] in actions other than for defamation when the court has
determined that the extension of immunity is in furtherance of the policy
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underlying the doctrine.” LLMD of Mich., Inc. v. Jackson-Cross Co., 740
A.2d 186, 189 (Pa. 1999). Further, “[t]he privilege [. . .] encompasses [. . .]
even less formal communications such as preliminary conferences and
correspondences between counsel in furtherance of the client’s interest.”
Richmond, 35 A.3d at 785 (explaining that the privilege applies “broadly”).
The policy reasons underlying judicial privilege are well-defined:
A judge must be free to administer the law without fear of
consequences. This independence would be impaired were he to
be in daily apprehension of defamation suits. The privilege is also
extended to parties to afford freedom of access to the courts, to
witnesses to encourage their complete and unintimidated
testimony in court, and to counsel to enable [counsel] to best
represent [the] client’s interests. Likewise, the privilege exists
because the courts have other internal sanctions against
defamatory statements, such as perjury or contempt proceedings.
Binder, 275 A.2d at 56. Judicial privilege will attach to a statement that is (1)
“issued during the regular course of the [] proceedings”; and (2) “pertinent
and material to those proceedings.” Bochetto v. Gibson, 860 A.2d 67, 73
(Pa. 2004). “[A]ll doubt as to whether the alleged defamatory communication
was indeed pertinent and material to the relief or redress sought is to be
resolved in favor of pertinency and materiality.” Richmond, 35 A.3d at 785.
In LLMD of Mich., Inc., our Supreme Court carved out an exception to
judicial privilege in “professional negligence actions which are brought against
an expert witness when the allegations of negligence are not premised on the
substance of the expert’s opinion.” 740 A.2d at 191. Specifically, the Court
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explained that the goals of the privilege5 are “not advanced by immunizing an
expert witness from his or her negligence in formulating [their] opinion.” Id.
(emphasis added). This Court has further concluded, in a non-precedential
decision, that the exception outlined in LLMD of Mich., Inc. only applies to
experts retained by the party seeking to impose liability. See Handfield v.
Howell, 2020 WL 691550, at *6 (Pa. Super., filed Feb. 11, 2020) (1479 EDA
2019) (stating that “Here, [the witness] prepared an expert opinion regarding
damages in [the underlying action]. [. . .] The imposition of a new duty of
care on [an] adverse expert is contrary to the realities of litigation.”).
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5 The Court explained the goals of judicial privilege with respect to witnesses
as follows:
A witness’ apprehension of subsequent damages liability might
induce two forms of self-censorship. First, witnesses might be
reluctant to come forward to testify. And once a witness is on the
stand, his testimony might be distorted by the fear of subsequent
liability. Even within the constraints of the witness’ oath there may
be various ways to give an account or to state an opinion. These
alternatives may be more or less detailed and may differ in
emphasis and certainty. A witness who knows that he might be
forced to defend a subsequent lawsuit, and perhaps to pay
damages, might be inclined to shade his testimony in favor of the
potential plaintiff, to magnify uncertainties, and thus to deprive
the finder of fact of candid, objective, and undistorted evidence.
But the truthfinding process is better served if the witness’
testimony is submitted to the crucible of the judicial process so
that the factfinder may consider it, after cross-examination,
together with the other evidence in the case to determine where
the truth lies.
LLMD of Mich., Inc., 740 A.2d at 189 (citation and quotation marks omitted).
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Finally, as we have explained:
[Abuse of process] is defined as the use of legal process against
another primarily to accomplish a purpose for which it is not
designed. To establish a claim for abuse of process it must be
shown that the defendant[:] (1) used a legal process against the
plaintiff[;] (2) primarily to accomplish a purpose for which the
process was not designed; and (3) harm has been caused to the
plaintiff. This tort differs from that of wrongful use of civil
proceedings in that, in the former, the existence of probable cause
to employ the particular process for its intended use is immaterial.
The gravamen of abuse of process is the perversion of the
particular legal process for a purpose of benefit to the
defendant, which is not an authorized goal of the
procedure. In support of this claim, the [plaintiff] must show
some definite act or threat not authorized by the process, or aimed
at an objective not legitimate in the use of the process …; and
there is no liability where the defendant has done nothing more
than carry out the process to its authorized conclusion, even
though with bad intentions.
Greenberg v. McGraw, 161 A.3d 976, 990 (Pa. Super. 2017) (citations
omitted; emphasis in original). We have previously held that judicial privilege
does not operate to bar abuse of process claims. See id. at 989; Freundlich
& Littman, LLC v. Feierstein, 157 A.3d 526, 535 (Pa. Super. 2017)
(explaining that the privilege does not apply to claims for wrongful use of civil
proceedings and abuse of process). 6
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6 The court in Freundlich & Littman, LLC explained that extending judicial
privilege to abuse of process claims would not further the policies underlying
the privilege because “individuals who [. . .] use the legal process for an
illegitimate end after a suit has been initiated, are not seeking the
ascertainment of the truth or to encourage candor from witnesses.” 157 A.3d
at 535.
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Instantly, the trial court opined on the applicability of judicial privilege
as follows:
First, a doctor’s deposition by video submitted as evidence at trial
contains statements that are issued for and in the regular course
of the proceedings. Second, testimony in support of or disputing
[Kovalev’s] damages is relevant to an element of a negligence
case, and therefore is pertinent and material to the proceedings.
Whether [Dr. Shipkin’s] video deposition helped or hurt
[Kovalev’s] case is immaterial. [Kovalev’s] defamation claim,
along with all of the claims asserted in [Kovalev’s] complaint[,]
stem from [Dr. Shipkin’s] video deposition and are barred by
judicial privilege.
Trial Court Opinion, 2/6/26, at 4 (citations omitted).
After our review, we emphasize that, in the trial court, and on appeal,
Kovalev has failed to identify which specific statements form the basis of his
complaint. Indeed, both the trial court and Dr. Shipkin noted that evidentiary
deficiency. See Trial Court Opinion, 2/3/26, at 3 (finding that “[Kovalev] fails
to identify exactly what information or statements he refers to as fraudulent
and false in his complaint that were provided by [Dr. Shipkin] in the video
deposition.”); Appellee’s Brief at 15 (stating that “For example, [Kovalev] has
brought the instant litigation for unidentified statements made by [Dr.
Shipkin] during the course of a video trial deposition.” (emphasis in original)).
Without specifics to the contrary, we have no reason to disagree with the trial
court’s conclusion that Dr. Shipkin’s expert witness deposition testimony,
made in connection with damages in Kovalev’s trip and fall action, is subject
to judicial privilege. See Bochetto, 860 A.2d at 67; Pawlowski, 588 A.2d at
41; Binder, 275 A.2d at 56. Indeed, all doubt as to whether the privilege
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applies favors finding pertinency and materiality. See Richmond, 35 A.3d at
785. Insofar as LLMD of Mich., Inc. carves out an exception to the immunity
rule for expert testimony relating to negligence in formulating an expert
opinion, we find that case distinguishable where Kovalev failed to identify
which statements are at issue in this case, and Dr. Shipkin was not retained
by Kovalev in the underlying action.7 See Handfield at *6.
Plainly, any statement made by Dr. Shipkin related to that trip and fall
action made during the deposition as part of his expert testimony is protected
by the absolute privilege that is judicial privilege. See Binder, 275 A.2d at
56. Moreover, all of the causes of action that Kovalev asserts in the complaint,
as well as the request for declaratory relief, are factually based upon that
challenged expert deposition testimony. See Trial Court Opinion, 2/3/26, at
4; see also supra at n.3. As such, we find no reason to depart from the
conclusion that Dr. Shipkin should not face any civil liability for providing that
expert witness deposition testimony on the issues underlying that trip and fall
case. See Post, 507 A.2d 355; LLMD of Mich., Inc., 740 A.2d at 189, 191.
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7 Even if Kovalev had included the specific statements that support his
allegations, we are not convinced that this would entitle him to relief. The
exception provided for in LLMD of Mich., Inc. applies when an expert witness
was negligent in formulating an opinion. 740 A.2d at 191. Here, all of
Kovalev’s asserted causes of action are factually based on the substance of
the opinions expressed by Dr. Shipkin during the deposition testimony,
whatever they may be, rather than the methodology by which Dr. Shipkin
arrived at such opinions. Id.; see also Trial Court Opinion, 2/3/26, at 4.
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Similarly, the deficiency in specificity in Kovalev’s complaint and briefs
demands that we find that Kovalev failed to establish his abuse of process
claim. Although Kovalev is correct that judicial privilege does not extend to
abuse of process claims, he is not entitled to relief. See Greenberg, 161 A.3d
at 989; Freundlich & Littman, LLC, 157 A.3d at 535; see also Appellant’s
Brief at 19-21. Obviously absent, here, is any definite act or threat not
authorized by the process on the part of Dr. Shipkin. See Greenberg, 161
A.3d at 990. Moreover, liability will not follow where Dr. Shipkin has merely
carried the deposition to its natural conclusion (statements made in deposition
and shown at trial), even assuming, arguendo, that he carried out the process
of offering deposition testimony with bad intentions. See id. Thus, the trial
court did not err in finding that Kovalev’s abuse of process claim was frivolous,
although we reach the same conclusion for different reasons.8 See Neitzke,
490 U.S. at 325.
Accordingly, we conclude that the trial court did not err or abuse its
discretion when it dismissed each of the causes of action in Kovalev’s
complaint as frivolous pursuant to Rule 240(j)(1). See Pa.R.Civ.P. 240(j)(1);
Ocasio, 979 A.2d at 354; Bell, 853 A.2d at 1060.
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8 Under the “right for any reason” doctrine, an appellate court is permitted to
affirm the trial court’s decision on any basis supported by the record. In re
A.J.R.-H., 188 A.3d 1157, 1175-76 (Pa. 2018) (citing Ario v. Ingram Micro,
Inc., 965 A.2d 1194, 1200 (Pa. 2009)).
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Kovalev’s fourth issue on appeal alleges that the trial court erred or
abused its discretion by not providing him an opportunity to amend his
complaint, particularly because the trial court included in its opinion “claims
about [the] contents of [Kovalev’s c]omplaint.” Appellant’s Brief at 21; see
also, Trial Court Opinion, 2/3/26, at 3-4. Kovalev states, without citing to any
authority, that “[u]nder Pennsylvania case law, a court should give a plaintiff
at least one opportunity to amend a complaint before dismissing a complaint.”
Appellant’s Brief at 21. Kovalev relies heavily on Pennsylvania Rule of Civil
Procedure 1028(c)(1) for his argument. See Appellant’s Brief at 22-23. That
Rule states that “[a] party may file an amended pleading as of course within
twenty days after service of a copy of preliminary objections.” Pa.R.Civ.P.
1028(c)(1) (emphasis added). Kovalev argues that the trial court improperly
dismissed the complaint only six days after Dr. Shipkin filed preliminary
objections. See Appellant’s Brief at 22. Kovalev has waived this issue by failing
to seek leave to amend his complaint with the trial court.
The only time a plaintiff has an automatic right to amend his or her
complaint is within twenty days after the defendant has filed preliminary
objections. See Pa.R.Civ.P. 1028(c)(1). However, the right to amend “as of
course” provided by Rule 1028(c)(1) is “available only when there has been
no intervening judicial determination of the validity of the preliminary
objections.” Holiday Lounge, Inc. v. Shaler Enters. Corp., 272 A.2d 175,
176 (Pa. 1971) (emphasis omitted); see also Bayada Nurses, Inc. v. Com.,
Dept. of Labor & Industry, 8 A.3d 866, 884 (Pa. 2010) (stating that “[A]
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court is not required to permit amendment of a pleading if a party is unable
to state a claim on which relief could be granted.”).
In all instances not covered by Rule 1028(c)(1), a plaintiff must obtain
either the defendant’s consent or leave of court to amend the complaint. See
Pa.R.Civ.P. 1033.9 Under those circumstances, the decision whether to grant
leave to amend a pleading is within the trial court’s sound discretion. See
d’Happart v. First Commonwealth Bank, 282 A.3d 704, 737 (Pa. Super.
2022). “A court abuses its discretion if it misapplies the law or exercises its
judgment in a way that is ‘manifestly unreasonable, or the result of partiality,
prejudice, bias[,] or ill-will.’” Id. (quoting Paden v. Baker Concrete Const.,
Inc., 658 A.2d 341, 343 (Pa. 1995)). Moreover, our Supreme Court has
previously held that a plaintiff waives his right to amend a complaint by failing
to raise the issue in the trial court. See Werner v. Zazyczny, 681 A.2d 1331,
1338 (Pa. 1996) (concluding that “Here, petitioner’s claim fails because he
never requested that the [court of first impression on the issue] allow him
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9 Rule 1033 provides that:
A party, either by filed consent of the adverse party or by leave of
court, may at any time change the form of action, add a person
as a party, correct the name of a party, or otherwise amend the
pleading. The amended pleading may aver transactions or
occurrences which have happened before or after the filing of the
original pleading, even though they give rise to a new cause of
action or defense. An amendment may be made to conform the
pleading to the evidence offered or admitted.
Pa.R.Civ.P. 1033(a).
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leave to amend. Appellant fails to cite to any case law, and we can find none,
requiring a court to sua sponte order or require a party to amend his
pleading.”).
Here, Kovalev lost the automatic right to amend his complaint within
twenty days of Dr. Shipkin filing preliminary objections when he filed a notice
of appeal from the trial court’s dismissal of his complaint without first seeking
leave to amend. See Pa.R.Civ.P. 1028(c)(1); Order, 12/5/25; Holiday
Lounge, Inc., 272 A.2d at 176; see also Pa.R.A.P. 1701(a) (providing that
trial court may no longer proceed in a matter after party appeals). Thus,
because he did not request leave to amend his complaint with the trial court,
or otherwise obtain Dr. Shipkin’s consent to do so prior to filing his appeal,
Kovalev has waived this claim. See d’Happart, 282 A.3d at 737; see also
Werner, 681 A.2d at 1338; Pa.R.A.P. 1701(a).
Kovalev’s fifth issue raises a constitutional challenge insofar as he
argues that “[t]he trial court erred or abused its discretion by denying
[Kovalev] the right to access court and by preventing [him] from litigating his
legitimate grievances.” Appellant’s Brief at 28. Kovalev points to Article I,
Section 11 of the Pennsylvania Constitution, which provides that “all courts
shall be open[,]” to support his proposition that it “guarantees a legal remedy
for injuries done to [aggrieved parties] and the court system must be available
to hear it.” Id. Finally, Kovalev argues that “courts cannot use a party’s
financial status to ‘clear the docket’ by disregarding a party’s constitutional
rights.” Id. at 29. Kovalev alleges the trial court impermissibly and
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unconstitutionally cleared his case from the docket based on his financial
status when it dismissed his complaint pursuant to Rule 240(j). See id.
“The threshold consideration of whether there exists a common law or
constitutional right of public access to a judicial proceeding raises a pure
question of law.” Com. v. Selenski, 996 A.2d 494, 496 (Pa. Super. 2010).
Additionally, “[w]e review a trial court’s decision to grant or deny access to
judicial proceedings under an abuse-of-discretion standard.” PA ChildCare
LLC v. Flood, 887 A.2d 309, 311-12 (Pa. Super. 2005).
An abuse of discretion exists when the trial court has rendered a
judgment that is manifestly unreasonable, arbitrary, or capricious,
has failed to apply the law, or was motivated by partiality,
prejudice, bias, or ill will. A finding by an appellate court that it
would have reached a different result than the trial court does not
constitute a finding of an abuse of discretion. Where the record
adequately supports the trial court’s reasons and factual basis, the
court did not abuse its discretion.
Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1123 (Pa. 2000)
(citations and quotation marks omitted).
Article I, Section 11 of our Constitution provides, in full:
All courts shall be open; and every man for an injury done him in
his lands, goods, person or reputation shall have remedy by due
course of law, and right and justice administered without sale,
denial or delay. Suits may be brought against the Commonwealth
in such manner, in such courts and in such cases as the Legislature
may by law direct.
Pa. Const. Art. I, § 11. Our Supreme Court has interpreted this section to
provide a “constitutional right [to] every person who finds it necessary or
desirable to repair to the courts for the protection of legally recognized
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interests to have justice administered without sale, denial[,] or delay.”
Masloff v. Port Auth. of Allegheny Cnty., 613 A.2d 1186, 1190 (Pa. 1992).
Moreover, Article 1, Section 11 can be invoked only with respect to a legal
injury. See id. (citing Jackman v. Rosenbaum Co., 106 A. 238, 341 (Pa.
1919)).
Upon review, we see no basis to conclude that Kovalev was prevented
from accessing our courts or was denied justice administered without sale,
denial, or delay. See PA ChildCare LLC, 887 A.2d at 311-12; Masloff, 613
A.2d at 1190. Here, Kovalev filed a complaint and IFP Petition, and after Dr.
Shipkin filed preliminary objections, the trial court dismissed Kovalev’s
complaint as frivolous, which Kovalev appealed. See Trial Court Opinion,
2/3/26, at 1-2. In our view, we find it difficult to understand how or why,
under these circumstances, the trial court should be found to have violated
the Pennsylvania Constitution insofar as it dismissed a patently frivolous
complaint as frivolous. See Order, 12/5/25. Moreover, although Kovalev filed
his IFP Petition and thereafter had his complaint dismissed pursuant to Rule
240(j)(1), it does not follow that he experienced “justice denied or delayed by
reason of poverty.” Thompson v. Garden Court, Inc., 419 A.2d 1238, 1240
(Pa. Super. 1980) (emphasis added). Kovalev may prefer a different result,
but the court’s decision, while adverse to Kovalev, certainly does not, ipso
facto, make the court’s order unconstitutional.
In conclusion, we find that the trial court did not err or abuse its
discretion when it dismissed Kovalev’s entire complaint, including every cause
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of action therein, as frivolous, without permitting him an opportunity to amend
his complaint. See Pa.R.Civ.P.240(j)(1); Neitzke, 490 U.S. at 325.
Order affirmed.
Date: 11/3/2026
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