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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LINDA JUDGE AND DAVID JUDGE, IN THE SUPERIOR COURT OF
ADMINISTRATORS OF THE ESTATE OF PENNSYLVANIA
ASHLEY JUDGE, DECEASED, LINDA
JUDGE, IN HER OWN RIGHT
Appellants
v.
WYOMING VALLEY HEALTH CARE
SYSTEM, INC.; WILKES-BARRE GENERAL
HOSPITAL; CYNTHIA LISKOV, M.D. AND
SAPPHIRE EMERGENCY SERVICES, P.C.
Appellees No. 1274 MDA 2013
Appeal from the Judgments Entered
December 15, 2011 and September 3, 2013
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 2007-00469, 2007-01810, 2007-01902
BEFORE: FORD ELLIOTT, P.J.E., OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 18, 2015
Appellants, Linda Judge and David Judge, Administrators of the Estate
of Ashley Judge, deceased, and Linda Judge, in her own right, appeal from
the judgments entered on December 15, 2011 and September 3, 2013.
After careful consideration, we affirm.
The factual background of this case is as follows. On February 24,
2005, 15-year-old Ashley Judge (“Ashley”) fell down 12 steps at her house.
Hanover Township Community Ambulance Association Inc. (the “Ambulance
Association”) dispatched an ambulance to the residence at 10:34 p.m. The
* Retired Senior Judge assigned to the Superior Court.
J-A14023-14
ambulance was staffed by paramedic Keith Feschuk (“Feschuk”) and
emergency medical technician Kareena Picton (“Picton”). The ambulance
arrived at Ashley’s residence at 10:43 p.m. Ashley was placed in the back of
the ambulance and her mother, Linda Judge, sat up front in the passenger
seat. A snowstorm was hitting the area at the time which made vehicular
travel difficult.
Ashley informed Feschuk that 20 to 30 minutes earlier she had
become lightheaded while walking up the stairs and subsequently fell down
the 12 stairs. Ashley did not lose consciousness during the incident and
remembered the entire episode. Ashely complained of pain in her lower
chest and upper abdomen and some nausea. Ashley’s blood sugar level was
475 mg/dL both before and after being given saline. 1 At 11:07 p.m., Ashley
was immobilized and transferred to the ambulance. Feschuk and Picton
planned to transport Ashley to Wilkes-Barre General Hospital (the
“Hospital”). At 11:19 p.m., Feschuk called the Hospital for medical direction.
This call was answered by paramedic Ronald Redmond (“Redmond”). Dr.
Cynthia Liskov (“Liskov”), the medical command physician, listened to this
telephone call. Liskov was employed by Sapphire Emergency Services, P.C.
(“Sapphire”), which contracted with the Hospital to provide emergency
department physicians.
1
Normal blood sugar for a patient such as Ashley is approximately 100
mg/dL. See N.T., 6/11/13, at 57.
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Feschuk relayed to Redmond that Ashley did not have a diabetic
history and that it was not necessary to transport Ashley to a trauma center.
At 11:30 p.m., Feschuk again contacted the Hospital medical command and
advised that Ashley’s right pupil had become dilated and less responsive to
light. A nurse at the Hospital told Feschuk to divert to Community Medical
Center (“CMC”), the nearest trauma center. On the way to CMC, Picton
became lost and stopped to ask for directions to CMC. At 11:40 p.m.,
Ashley’s breathing became labored and she began drifting out of
consciousness. Around 11:45 p.m., Ashley was provided with oxygen and
administered atropine2 and epinephrine.3 At 12:05 a.m. on February 25,
2005, the ambulance arrived at CMC. Seven minutes later, Dr. Andrew
Furman (“Furman”) pronounced Ashley dead.
The procedural history of this case is as follows. On January 12, 2007,
Appellants filed a complaint against the Ambulance Association, Feschuk,
Picton, Wyoming Valley Healthcare System,4 the Hospital, CMC, Community
2
“[A]tropine is a drug given in the hospital as kind of a resuscitative type
drug. It’s supposed to increase the heart rate to try to establish blood
pressure and blood flow.” Castellano v. Texas, 2013 WL 1258161, *3 n.1
(Tex. App. Mar. 19, 2013) (internal quotation marks omitted).
3
“[E]pinephrine is the first drug administered when a child is dying.”
Overton v. Texas, 2009 WL 3489844, *7 n.21 (Tex. App. Oct. 29, 2009).
4
Appellants filed their three lawsuits just prior to the expiration of the
statute of limitations. In an abundance of caution, they included a plethora
of redundant corporate entities as defendants. This was one such
defendant.
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Medical Center Healthcare System,5 and Furman. That case was docketed at
2007-00469 (“the 469 action”).
On February 21, 2007, Appellants commenced an action against
Liskov, Sapphire, and Emergency Services, P.C.6 by filing a praecipe for a
writ of summons. That case was docketed at 2007-01810 (“the 1810
action”). On June 4, 2007, Appellants filed a complaint in the 1810 action.
On February 23, 2007, Appellants commenced an action against
Hanover Community Ambulance Association,7 Wyoming Valley Health Care
System,8 Wyoming Valley Healthcare System, Inc. (“WVHCS”) (the parent
company of the Hospital), and WVHCS-Hospital9 by filing a praecipe for a
writ of summons. That case was docketed at 2007-01902 (“the 1902
action”). On May 14, 2007, Appellants filed a complaint in the 1902 action.
On May 14, 2008, Appellants discontinued their action against Hanover
Community Ambulance Association in the 1902 action. See Pa.R.C.P.
229(a)(2). On February 17, 2010, summary judgment was granted in favor
of Emergency Services, P.C. in the 1810 action, and CMC, Community
Medical Center Healthcare System, and Furman in the 469 action. On June
5
See note 4, supra.
6
See note 4, supra.
7
See note 4, supra.
8
See note 4, supra.
9
See note 4, supra.
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30, 2010, Appellants filed a motion in the 469 action seeking that all three
actions
be consolidated to permit discovery deadlines to be entered and
to ensure that there is only one trial with regard to liability and
damages so as to avoid issues of res judicata, collateral
estoppel[,] and possible inconsistent jury verdicts.
Brief in Support of Motion for Consolidation, 6/30/10, at 3. On August 24,
2010, the trial court granted Appellants’ motion. The trial court consolidated
all three actions under the 469 action. On December 15, 2011, the trial
court granted summary judgment in favor of Picton, the Hospital, and
Wyoming Valley Healthcare System in the 469 action and WVHCS-Hospital,
Wyoming Valley Health Care System, and WVHCS in the 1902 action.10 See
generally Judge v. Hanover Twp. Cmty. Ambulance Ass’n, Inc., 2011
WL 12526056 (C.C.P. Luzerne Dec. 15, 2011).
On January 15, 2012, Appellants filed a motion to reconsider the trial
court’s December 15, 2011 order granting summary judgment. In the
alternative, Appellants sought certification under Pennsylvania Rule of
Appellate Procedure 341(c).11 The trial court denied the motion for
10
The trial court also granted partial summary judgment to the four
remaining defendants: the Ambulance Association and Feschuk (defendants
in the 469 action) and Liskov and Sapphire (defendants in the 1810 action).
11
Rule 341(c) allows a trial court to certify as final an order disposing of
certain claims and/or certain parties which would otherwise be deemed
interlocutory under the rules of appellate procedure and interpretive case
law.
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reconsideration on February 28, 2012. On March 15, 2012, Appellants filed
a petition for permission to appeal the December 15, 2011, summary
judgment order. On April 11, 2012, this Court denied the petition as
untimely. See Judge v. Hanover Twp. Cmty. Ambulance Ass’n, Inc.,
23 MDM 2012 (Pa. Super. Apr. 11, 2012) (per curiam).
Trial commenced on June 10, 2013 against the two remaining
defendants in the 1810 action, Liskov and Sapphire. On June 17, 2013, the
jury found in favor of Liskov and Sapphire. Also on June 17, 2013, the
Ambulance Association and Feschuk settled with Appellants.12 No judgment
was ever entered in the Ambulance Association or Feschuk’s favor and no
discontinuance was filed with respect to those two defendants. Instead, on
August 23, 2013, the Ambulance Association and Feschuk filed a
supplemental new matter that raised the June 17, 2013 settlement as an
affirmative defense.
Appellants filed a timely post-trial motion.13 While the post-trial
motion remained pending, Appellants filed a notice of appeal on July 12,
12
Picton was also a party to the settlement, despite the fact that summary
judgment had previously been entered in her favor.
13
Although the trial was only against defendants in the 1810 action, almost
all documents relating thereto, including the post-trial motion, were filed in
the 469 action.
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2013.14 The notice of appeal contained the captions for all three cases and
read, “Notice is hereby given that [Appellants] hereby appeal[] to the
Superior Court of Pennsylvania from the [j]udgment entered in the above
consolidated matter on the 14th day of December 2011.”15 Notice of Appeal,
7/12/13, at 2. The notice of appeal was docketed in the 1902 action and
later transferred to the 469 action by the trial court prothonotary.16 The trial
court denied Appellants’ post-trial motion on August 13, 2013.17 On August
14
The notice was dated July 12, 2012. The date stamp from the
prothonotary, however, indicates that the notice of appeal was filed on July
12, 2013.
15
The December 15, 2011 summary judgment order was dated December
14, 2011; however, it was filed on December 15, 2011.
16
The certified record is unclear as to whether the notice of appeal was filed
in the 1902 action and transferred to the 469 action or vice versa. This
issue, however, does not impact our conclusion regarding our jurisdiction
over this matter. Therefore, we decline to address it further.
17
On August 21, 2013, Appellants filed an application with this Court
requesting that the notice of appeal be amended to note that it was being
taken from the August 13, 2013 order denying their post-trial motion. On
September 6, 2013, this Court denied the application as moot and directed
the prothonotary to update the docket to reflect that the July 12, 2013
notice of appeal was being taken from the “August 13, 2013 order.” Order
Denying Application for Relief, 9/6/13. This order was legally flawed in that
the August 13, 2013 order was not a final appealable order. See Maya v.
Johnson & Johnson, 97 A.3d 1203, 1208 n.2 (Pa. Super. 2014) (citation
omitted) (“An appeal to this Court can only lie from judgments entered
subsequent to the trial court’s disposition of post-verdict motions, not from
the order denying post-trial motions.”). This error was a breakdown in the
judicial system. We therefore shall treat Appellants’ July 12, 2013 notice of
appeal as having been taken from the judgment entered in the 1810 action
(ironically entered on the 469 docket), as well as the dispositions entered in
the 469 and 1902 actions.
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22, 2013, this Court ordered Appellants to have the trial court enter
judgment in favor of Liskov and Sapphire. The trial court entered judgment
on September 3, 2013.18
Appellants present six issues for our review:
1. [Did the trial court err by granting summary judgment in
favor of the Hospital?
2. Did the trial court err by granting summary judgment with
respect to Linda Judge’s claim for negligent infliction of
emotional distress (“NIED”)?
3. Did the trial court err by failing to preclude testimony about
mononucleosis?
4. Did the trial court err by permitting Feschuk to appear on the
verdict slip?
5. Did the trial court err by failing to grant a new trial because of
alleged jury irregularities?
6. Did the trial court err by granting summary judgment with
respect to Appellants’ claim for punitive damages?]
Appellants’ Brief at 4.19
“A threshold question is whether this Court has jurisdiction to decide
the appeal.” Commonwealth v. Wright, 78 A.3d 1070, 1077 (Pa. 2013).
Although the parties have only raised certain questions regarding our
jurisdiction, we may raise subject matter jurisdiction concerns sua sponte.
See Sheard v. J.J. DeLuca Co., 92 A.3d 68, 75 (Pa. Super. 2014) (citation
18
The trial court did not order Appellants to file a concise statement of
errors complained of on appeal. See Pa.R.A.P. 1925(b).
19
The issues have been re-numbered for ease of disposition.
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omitted). Thus, we first concentrate our attention on whether we possess
jurisdiction over this appeal. See Coulter v. Ramsden, 94 A.3d 1080,
1084 (Pa. Super. 2014), appeal denied, 403 WAL 2014 (Pa. Dec. Dec. 10,
2014) (citation omitted). As a pure question of law, our standard of review
in determining whether we possess jurisdiction is de novo and our scope of
review is plenary. See Beneficial Consumer Disc. Co. v. Vukman, 77
A.3d 547, 550 (Pa. 2013) (citation omitted).
In general, a party invokes appellate jurisdiction by filing a notice of
appeal within 30 days of a judgment, decision, decree, sentence or
adjudication that disposes of all claims and all parties. See Pa.R.A.P. 903(a)
(a “notice of appeal . . . shall be filed within 30 days after the entry of the
order from which appeal is taken”); Pa.R.A.P. 102 (defining the term “order”
for purposes of the appellate rules to include a judgment, decision, decree,
sentence or adjudication); Pa.R.A.P. 341(a) and (b)(1) (providing that
appeals as of right may be taken from “final orders” and defining that term).
Appellants here rely upon a notice of appeal that they filed on July 12, 2013.
As we stated in our recitation of the facts, Appellants initially filed their
notice in the 1902 action and the prothonotary later filed a copy in the 469
action. Moreover, as we stated in footnote 17, we shall treat Appellants’
notice as having been filed in the 1810 action, given their August 21, 2013
application for relief and the erroneous order that issued in response to that
request.
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To determine whether Appellants’ notice timely invoked appellate
jurisdiction over the orders entered separately at docket numbers 469,
1810, and 1902, we look initially to the Pennsylvania Rules of Appellate
Procedure. In relevant part, the note to Pennsylvania Rule of Appellate
Procedure 341 provides:
A party needs to file only a single notice of appeal to secure
review of prior non-final orders that are made final by the entry
of a final order, see K.H. v. J.R., 826 A.2d 863, 870-871 (Pa.
2003) (following trial); Betz v. Pneumo Abex LLC, 44 A.3d 27,
54 (Pa. 2012) (summary judgment). Where, however, one or
more orders resolves issues arising on more than one
docket or relating to more than one judgment, separate
notices of appeal must be filed. Commonwealth v. C.M.K.,
932 A.2d 111, 113 & n.3 (Pa. Super. 2007) (quashing appeal
taken by single notice of appeal from order on remand for
consideration under Pa.R.Crim.P. 607 of two persons’ judgments
of sentence).
Pa.R.A.P. 341 note (emphasis added).
Based upon Pennsylvania Rule of Appellate Procedure 341, we deduce
that, because separate notices were required at each docket number, the
timeliness of each notice must be established with reference to the order
from which an appeal has been taken. In this case, when we compare the
filing date of Appellants’ July 12, 2013 notice of appeal to the entry dates of
the orders that terminated litigation between the parties, we conclude that
Appellants timely appealed from the 469 and 1810 actions. As discussed
infra, the litigation at case number 469 concluded on August 23, 2013 when
Feschuk and the Ambulance Association filed a supplemental new matter
raising their settlement agreement with Appellants as an affirmative
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defense.20 The litigation at case number 1810 ended when the trial court
entered judgment on September 3, 2013, following the jury’s defense
verdict and the ensuing denial of post-trial motions. As to these actions,
under Pennsylvania Rule of Appellate Procedure 905(5), Appellants’ July 12,
2013 notice is deemed timely filed from the order that ended litigation in the
469 action and as to the final order in the 1810 action. See Pa.R.A.P.
905(5) (“A notice of appeal filed after the announcement of a determination
but before the entry of an appealable order shall be treated as filed after
such entry and on the day thereof.”).21 In the 1902 action, however,
Appellants’ notice appears manifestly untimely. The litigation at case
number 1902 concluded when the trial court entered summary judgment in
favor of the defendants on December 15, 2011, 575 days before Appellants
filed their notice of appeal. Hence, Appellants’ notice in the 1902 action was
filed outside the 30-day appeal period.
This approach to determining whether Appellants properly established
appellate jurisdiction – which compares the filing date of Appellants’ notice
with the date of entry for each final order that terminated the cases at bar –
20
Recall that one of the defendants in the 469 action, Picton, was included in
the settlement agreement despite the prior entry of summary judgment in
her favor.
21
Liskov and Sapphire argue in their letter brief that the notice of appeal in
this case was filed prematurely. Rule 905, however, addresses this issue.
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derives support not only from Pennsylvania Rule of Appellate Procedure 341
but also our prior decision in C.M.K.
In C.M.K., a jury convicted C.M.K. and M.W.K. of multiple counts of
endangering the welfare of a child and simple assault.22 Both defendants
filed notices of appeal from their respective judgments of sentence. This
Court consolidated their direct appeals and, ultimately, vacated the
judgments of sentence and remanded for consideration of a Pennsylvania
Rule of Criminal Procedure 607 motion challenging the weight of the
evidence. After a hearing, the trial court denied that motion and imposed
separate sentences upon the defendants in separate orders entered on
separate dockets. Thereafter, the C.M.K. defendants filed a single notice of
appeal from their judgments of sentence.
This Court quashed the appeal in C.M.K., noting that Pennsylvania
courts disapproved of the practice of submitting a single appeal from
multiple orders.23 C.M.K., 932 A.2d at 112. We reasoned that, while some
22
The charges against the defendants in C.M.K. were filed and prosecuted
at separate docket numbers but the cases were consolidated for trial.
23
Under the circumstances of this case, we do not believe that quashal
serves as an appropriate remedy. In C.M.K., we quashed the appeal
because the appellants filed a single notice of appeal purporting to challenge
two judgments of sentence. We found this practice to be repugnant to the
appellate rules. Here, however, we are treating Appellants’ notice of appeal
as having been filed at all three docket numbers. Hence, our primary reason
for discussing C.M.K. and Pennsylvania Rule of Appellate Procedure 341 is
the idea that multiple final orders entered on multiple dockets call for
separate notices of appeal where appellate review is sought.
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appellate issues might coincide, many appellate claims would not overlap.
In C.M.K., the defendants proceeded to a consolidated trial, but were
convicted individually of different charges and sentenced individually (at
their respective docket numbers on separate dates) to different
punishments. Therefore, this Court concluded that the defendants should
have filed separate notices of appeal from each of the judgments of
sentence entered at the defendants’ individual docket numbers. Id. at 112-
113.
C.M.K. illustrates application of the principle set forth in Pennsylvania
Rule of Appellate Procedure 341, i.e. that separate notices of appeal must
be filed when litigants seek to challenge final orders arising on more than
one docket or relating to more than one judgment. 24 We infer from this
sensible precept that the timeliness of each such notice should be judged by
comparing its filing date against the entry date of the challenged order.
While we readily acknowledge that C.M.K. was a criminal matter and that
the present case involves a civil appeal, we see several points of alignment
between the cases that support our approach to determining whether
24
We note that this Court’s decision in C.M.K. conflicts with the
Commonwealth Court’s decision in Alma v. Monroe Cnty. Bd. of
Assessment Appeals, 83 A.3d 1121 (Pa. Cmwlth. 2014). In Alma, the
Commonwealth Court held that failure to file notices of appeal at each case
was a procedural defect and not a jurisdictional defect.
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jurisdiction is proper.25 Like C.M.K., in which the Commonwealth charged
the defendants at two distinct dockets and proceeded to a consolidated joint
25
This is not a case in which one or more interlocutory orders entered on a
single docket are challenged on appeal following the entry of an appealable
order or judgment on the same docket number. See e.g. Stephens v.
Messick, 799 A.2d 793, 798 (Pa. Super. 2002) (“As a general rule,
interlocutory orders that are not subject to immediate appeal as of right may
be reviewed on a subsequent timely appeal of the final appealable order or
judgment in the case.”). Moreover, this case does not present a joint appeal
under Pennsylvania Rule of Appellate Procedure 512. Rule 512 states:
Parties interested jointly, severally or otherwise in any order in
the same matter or in joint matters or in matters consolidated
for the purposes of trial or argument, may join as appellants or
be joined as appellees in a single appeal where the grounds for
appeal are similar, or any one or more of them may appeal
separately or any two or more may join in an appeal.
Note: This describes who may join in a single notice of appeal.
The rule does not address whether a single notice of appeal is
adequate under the circumstances presented. Under Rule 341,
a single notice of appeal will not be adequate to take an
appeal from orders entered on more than one trial court
docket. See Rule 341, Note (“Where, however, one or more
orders resolves issues arising on more than one docket or
relating to more than one judgment, separate notices of appeal
must be filed.”).
Pa.R.A.P. 512 (with notation; emphasis added).
Appellants’ challenge to separate orders entered on three distinct dockets
does not fall within the purview of Rule 512. See General Elec. Credit
Corp. v. Aetna Cas. and Surety Co., 263 A.2d 448, 452-453 (Pa. 1970)
(construing virtually identical Rule 20(A) of the former Rules of the Supreme
Court of Pennsylvania and noting that reference to a singular ‘order’ in the
phrase “in any order” does not displace the rule that “a single appeal is
incapable of bringing on for review more than one final order, judgment or
decree”); Egenrieder v. Ohio Casualty Group, 581 A.2d 937, 940 n.3 (Pa.
Super. 1990) (Rule 512 did not apply and separate appeals were required
where trial court denied petitioner-appellants’ motions to intervene by way
(Footnote Continued Next Page)
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trial, Appellants here filed three separate cases and subsequently secured
consolidation solely to obtain uniform discovery deadlines and to avoid
multiple trials on liability and damages.26 Moreover, like C.M.K. in which
separate judgments of sentence were imposed, the final orders terminating
litigation between the parties in the instant cases were entered at different
docket numbers on different dates and for different reasons. Lastly, our
review of the claims raised before us, by docket number, also reveals
substantial differences among the cases in terms of the issues Appellants
seek to litigate on appeal.27 Appellants’ first, second, and sixth claims (see
supra at 8) involve defendants sued in the 469 action. Appellants’ second,
third, fourth, fifth, and sixth claims involve defendants sued in the 1810
_______________________
(Footnote Continued)
of separate orders on different grounds). Exercising discretion, our Supreme
Court in General Electric and this Court in Egenrieder refrained from
quashal. In those cases, however, all of the orders challenged on appeal
were entered on the same docket numbers and the failure to file separate
appeals did not raise jurisdictional concerns. See K.H., 826 A.2d at 871-
872 & n.11 (appeal from interlocutory order is “treated as filed after [entry
of judgment] and on the date thereof” under Pennsylvania Rule of Appellate
Procedure 905(a) and such treatment resolves jurisdictional concerns). By
contrast, here, as in C.M.K., the orders presented for appellate review were
entered on different dockets. In addition, as we have stated, Appellants’
notice of appeal was not filed within 30 days of the summary judgment order
in the 1902 action. Hence, while General Electric and Egenrieder are
instructive as to whether Rule 512 applies in this case, those decisions did
not involve the jurisdictional concerns we have identified.
26
As we shall discuss further, this did not constitute complete consolidation
and Appellants’ three separate actions retained their individual identities.
27
Appellants do not categorize their appellate claims by docket number.
Nevertheless, through a careful review of Appellants’ brief and the certified
record, we are able to identify the claims that relate to each case number.
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action. Lastly, Appellants’ first, second and sixth claims involve defendants
sued in the 1902 action. For each of these reasons, we are persuaded,
under C.M.K., that Appellants needed to file separate notices of appeal at
each case docket and that the timeliness of each notice must be determined
in reference to the entry date of the challenged order. Applying this
approach, we lack jurisdiction over any claim involving the defendants in the
1902 action.
In view of the trial court’s August 24, 2010 order consolidating the
three actions, however, we cannot end our inquiry at this juncture. We turn
now to consider the impact of the court’s consolidation order on our
jurisdictional analysis. Pennsylvania Rule of Civil Procedure 213(a) provides
that:
In actions pending in a county which involve a common question
of law or fact or which arise from the same transaction or
occurrence, the court on its own motion or on the motion of any
party may order a joint hearing or trial of any matter in issue in
the actions, may order the actions consolidated, and may make
orders that avoid unnecessary cost or delay.
Pa.R.C.P. 213(a).
As our Supreme Court has explained:
[U]nder Rule 213(a), a trial court has three options where
pending actions involve either a common question of law or fact,
or which arise from the same transaction: (1) ordering a joint
trial or hearing on any matter at issue; (2) ordering the actions
“consolidated”; and (3) issuing other orders designed to avoid
unnecessary costs or delay.
Kincy v. Petro, 2 A.3d 490, 493 (Pa. 2010).
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There is a difference between consolidation under Rule 213(a) and
“complete consolidation.” As our Supreme Court explained,
[S]eparate actions cannot be consolidated to the extent the
actions lose their separate identities and become a single
action[, i.e.,] “complete consolidation[,]”—unless the actions
involve the same parties, subject matter, issues, and defenses.
Although the language of Rule 213(a) suggests that a court may
order actions consolidated when the actions involve a common
question of law or fact, or arise from the same transaction or
occurrence, . . . the second option for consolidation under Rule
213(a) . . . is distinct from [] complete consolidation.
Kincy, 2 A.3d at 494.
It is clear from the record that the trial court in this matter attempted
to achieve complete consolidation of the 469, 1810, and 1902 actions. This
is evidenced by the wording of the trial court’s order. See Order of
Consolidation, 8/24/10, at 1 (the actions “are hereby consolidated under
[the 469 action]”). However, disapproving of Keefer v. Keefer, 741 A.2d
808 (Pa. Super. 1999),28 and other decisions of this Court, our Supreme
28
In Keefer, a wife filed two separate lawsuits against her husband which
were eventually consolidated. Keefer, 741 A.2d at 810. The trial court
dismissed the one action but permitted certain counts of the other action to
proceed. When addressing whether the dismissal of one of Wife’s lawsuits
was a final appealable order, this Court noted that “[a]n order affecting any
one of those individual cases must be closely scrutinized to determine its
finality. If such an order disposes of all claims and all parties in any single
case, then the order is final and therefore proper for immediate appeal.”
Keefer, 741 A.2d at 811 (internal quotation marks omitted; emphasis
removed). This Court ultimately decided that the cases had been completely
consolidated. Id. In Kincy, however, our Supreme Court repudiated this
Court’s holding in Keefer that the actions had been completely consolidated
because, although the parties were identical, the issues and claims were not
(Footnote Continued Next Page)
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Court held that the language of a consolidation order is not controlling as to
whether complete consolidation has occurred. Kincy, 2 A.3d at 496.
Instead, our Supreme Court held that, even if a trial court’s order appears to
completely consolidate several cases, the order does not completely
consolidate the cases unless the cases involve the same parties, subject
matter, issues, and defenses. Id.
Since the present cases do not meet these criteria, complete
consolidation was never achieved under the test set forth in Kincy.
Moreover, because the cases retained their separate identities, it follows that
Appellants needed to file timely notices of appeal at each docket (upon the
entry of a final order) in order to invoke appellate jurisdiction. Since this did
not occur in the 1902 action, Kincy leads to the conclusion that we lack
appellate jurisdiction over all claims pertaining to that case. Again,
however, we cannot end our analysis here.
This case was held internally after oral argument because this Court
granted reargument in Malanchuk v. Sivchuk, 106 A.3d 789 (Pa. Super.
2014) (en banc). After this Court issued its en banc decision in
_______________________
(Footnote Continued)
identical. Thus, Keefer also shows the interplay between complete
consolidation and finality. Specifically, our Supreme Court’s treatment of
Keefer shows that cases retain separate identities where, despite identical
parties, cases on different dockets have different claims, defenses, and
issues.
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Malanchuk, we ordered all parties to file letter briefs addressing the impact
of Malanchuk and Burkey v. CCX, Inc., 106 A.3d 736 (Pa. Super. 2014).29
In Malanchuk, the plaintiff filed a complaint against Sivchuk alleging
claims sounding in negligence and products liability. Malanchuk, 106 A.3d
at 791. Less than one year later, Malanchuk filed a separate action (in the
same court) against Tsimura, asserting claims for negligence and products
liability. Id. The actions were consolidated for trial. Id. Eventually, the
trial court granted summary judgment in favor of Tsimura on all of
Malanchuk’s claims. Id. The trial court also granted summary judgment in
favor of Sivchuk on Malanchuk’s products liability claims, but denied
summary judgment on Malanchuk’s negligence claims. Malanchuk then
appealed the order granting summary judgment in favor of Tsimura to this
Court.
On appeal, Malanchuk argued, pursuant to Kincy, that the order
granting summary judgment in favor of Tsimura was final and appealable
because, despite the trial court’s consolidation order, the two actions did not
involve the same parties and thus retained their individual identities. This
29
The Hospital and WVHCS argue that this case is distinguishable from
Malanchuk because the claims filed in each of the three actions in the case
at bar were distinct. This contention misses the mark. This Court’s decision
in Malanchuk rested only in part on the fact that the claims were similar.
Instead, it relied upon the fact that the plaintiffs in both cases were identical
and raised claims relating to a common set of facts. The plaintiffs in the
469, 1810, and 1902 actions were identical and all three cases arose out of
the events of February 24 and 25, 2005. Thus, the Hospital and WVHCS’
efforts to distinguish Malanchuk are unavailing.
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Court disagreed and deemed the summary judgment order interlocutory,
finding Kincy distinguishable. In reaching this conclusion, this Court
reasoned that if our Supreme Court in Kincy had accepted the plaintiff’s
argument on consolidation and the merger of complaints, then it would have
permitted amendment outside the statute of limitations. Id. at 795.30 This
Court also observed that, if Malanchuk had named both Sivchuk and Tsimura
in a single complaint, there would be no question that the order granting
Tsimura summary judgment would be interlocutory and unappealable. This
Court saw no reason to treat that order any differently simply because the
claims against each defendant were originally filed separately and then
consolidated for trial pursuant to Rule 213(a). Id. Lastly, this Court said
that Kincy did not deal with the issue of what constituted a final appealable
30
Specifically, the Malanchuk Court concluded:
Malanchuk’s reliance on Kincy for the proposition that because
the actions were consolidated under Rule 213, the claims against
each defendant retained their separate identities, thereby
rendering summary judgment for Tsimura a final order, expands
Kincy’s application far beyond its holding and abrogates the
definition of a final order. Key to understanding Kincy is that by
the time the cases were consolidated, the statute of limitations
had expired. The accident occurred on September 13, 2003.
Kincy filed suit on August 3, 2005, and the cases were
consolidated on March 7, 2006. If the Kincy court had accepted
her argument regarding merger, it would have defeated the
statute of limitations by effectively allowing her to amend her
complaint to include an entirely new cause of action. Such a
result would have created a loophole in the statute of limitations.
Malanchuk, 106 A.3d at 794-795 (internal citations and footnote omitted).
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order. Id.31 This Court therefore held in Malanchuk that when cases are
consolidated under Rule 213(a), whether complete consolidation was
achieved or not, an appealable order does not emerge until all claims against
all parties in all consolidated actions have been resolved.
This Court’s decision in Malanchuk complicates our jurisdictional
analysis vis-à-vis the 1902 action since the present appeal raises issues that
did not emerge in Malanchuk and that would not have emerged until
Malanchuk resolved his claims against Sivchuk. In other words, this case
requires us to consider whether and how a plaintiff can eventually challenge
the summary judgment order that dismissed his claims against a defendant
after his claims in a companion case are resolved. Appellants here
challenge an adverse summary judgment ruling that was issued long before
final orders were entered in the companion-consolidated cases. Under
Malanchuk, the trial court’s summary judgment ruling in the 1902 action
was interlocutory and unappealable when it was entered. Now, however,
final orders have been entered in the companion cases. But, any appeal
from the summary judgment order at the 1902 docket clearly falls outside
the 30-day appeal period and, to the extent it is filed at the 1902 docket,
31
Specifically, the Malanchuk Court concluded “Kincy is distinguishable on
its facts and never addressed the issue of what constitutes a final appealable
order. Kincy involved the merger of complaints filed by separate plaintiffs,
after the statute of limitations had expired.” Malanchuk, 106 A.3d at 795.
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such an appeal challenges an order that was deemed “interlocutory” in
Malanchuk.
The entry of the December 15, 2011 summary judgment order in the
1902 action resolved all claims against all parties in that action; hence, that
order met all the criteria for “finality” because it terminated that action. In
other words, no orders disposing of any claim and/or party could
subsequently be entered in the 1902 action. Malanchuk assumes that a
future order, in either the 469 or 1810 actions, is necessary to make the
December 15, 2011 summary judgment order final with respect to the 1902
action. However, Pennsylvania Rule of Appellate Procedure 341 and this
Court’s decision in C.M.K. militate strongly against the conclusion that an
order entered on one docket can transform an order entered on a separate
docket into a final order. That is why separate notices of appeal are
required where separate orders resolve the claims pending at separate
dockets. Since the summary judgment order in the 1902 action cannot be
made final by a future order entered on a different docket, the December
15, 2011 summary judgment order will forever be an interlocutory order.32
32
Indeed, under Pennsylvania law, with the exception of orders that meet
the criteria of Pennsylvania Rule of Appellate Procedure 341(b)(2) (orders
defined as final by statute) or (b)(3) (orders entered as final following
determination that immediate appeal would facilitate resolution of entire
case) an interlocutory order never becomes a final order for purposes of
appeal. Instead, non-final orders become reviewable on appeal only after
the trial court enters a final order at that docket and the appellant files a
timely notice of appeal. See K.H., 826 A.2d at 870-871. Malanchuk cited
(Footnote Continued Next Page)
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This case is different from those situations, typically arising in the
criminal context, in which we say that a judgment of sentence can be “made
final” by the entry of a subsequent order. For example, we have said that a
judgment of sentence can be made final by the subsequent denial of a post-
sentence motion, see Commonwealth v. Trinidad, 96 A.3d 1031, 1032
(Pa. Super. 2014), appeal denied, 99 A.3d 925 (Pa. 2014), or by an order
designating the defendant a sexually violent predator. See
Commonwealth v. Hollingshead, 2015 WL 745709, *1 (Pa. Super. Feb.
19, 2015). Notwithstanding these examples, however, we generally view a
judgment of sentence as a final and appealable order within the context of a
criminal litigation because it resolves all matters between the parties at a
particular docket. The entry of such an order permits an immediate appeal.
In the limited circumstances in which this is not the case, the appeal still lies
from the judgment of sentence but must await the docketing of an order
that resolves some ancillary issue(s), which then completes the prerequisites
of finality. In either case, resolution of all claims against all parties at a
particular docket remains the hallmark of a final, appealable order. Thus,
even where we say that a judgment of sentence has been “made final” by a
subsequent order, it is the entry of an order that resolves all claims in that
same case that triggers the appellate procedures contemplated in
_______________________
(Footnote Continued)
no authority for expanding this single-case principle to encompass multiple
cases filed at multiple dockets.
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Pennsylvania Rule of Appellate Procedure 341. See Pa.R.A.P. 341
(requiring separate notices of appeal at each docket to commence appeal
process where more than one order resolves issues on more than one docket
or relating to more than one judgment). Therefore, special situations that
arise in the context of criminal litigation offer no basis to suggest that an
order entered in one case can transform an order entered at another docket
into a final and appealable determination.
Since we are reluctant to conclude that Malanchuk intended to
entirely foreclose appellate challenges to litigants who find themselves in
Appellants’ situation, we are compelled to hold that Malanchuk permits an
appeal from the summary judgment ruling in the 1902 action since
Appellants filed timely notices following the entry of final orders in the
companion-consolidated cases. The precise mechanisms and procedural
justifications for such a conclusion are unclear, however.
It is evident that our holding in Malanchuck altered appellate practice
in multi-docket cases where the trial court has ordered less-than-complete
consolidation. Under Kincy, cases such as the one at bar plainly do not
meet the requirements for complete consolidation because they lack identity
of parties, subject matter, issues, and defenses. It would seem to follow,
then, that a consolidation order could not strip them of their individual
identities. It further follows that appellate review could be obtained in such
instances only if the appellants filed timely notices of appeal at each docket
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upon the entry of a final order. Since this did not occur in this case, Kincy
would lead us to forego review of any claims involving the 1902 action.
Malanchuk, however, raises questions regarding this procedure in
holding that an otherwise final order entered in a case consolidated solely for
purposes of trial must await final resolution of all claims against all parties in
all companion-consolidated cases before an appellate challenge can be
lodged. It is unclear, for example, precisely what procedures this Court
should allow in order to permit a litigant to pursue an appeal once final and
appealable orders have been entered, as is the case in the present litigation.
To illustrate this point, consider an example utilizing the facts in
Malanchuk. Although the summary judgment order at issue in that case
dismissed all claims against all parties at the Tsimura docket, this Court
found that order to be “interlocutory” in nature. Any future appeal at the
Tsimura docket would seem futile since a party cannot appeal from an
interlocutory order and, as discussed above, an order entered on a separate
docket is incapable of making that interlocutory order a final order.
Moreover, any notice appealing the summary judgment order in the
Tsimura case filed after the resolution of Malanchuk’s claims against Sivchuk
would almost certainly extend beyond the 30-day appeal period. Assume,
for example, that Malanchuk’s claims against Sivchuk are resolved on August
1, 2016. Assume further that Malanchuk immediately files, at the Tsimura
docket, a notice of appeal challenging the order granting summary judgment
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in favor of Tsimura. That notice of appeal would be filed 1589 days after the
entry of the March 26, 2012 summary judgment order. Since no appellate
court in Pennsylvania enjoys the authority to extend the time for filing an
appeal, see Pa.R.A.P. 105(b), it is difficult to conceive of a scenario in which
Malanchuk could permissibly appeal the order dismissing his claims against
Tsimura. If this Court saw a notice of appeal filed 1589 days after the last
order entered on the docket, it would quash the appeal immediately. 33
Lastly, as we have discussed above, it is unclear how a notice of
appeal filed at the Sivchuk docket (and within 30 days of resolution of
Malanchuk’s claims against Sivchuk) could draw up for appellate review an
order entered in the Tsimura litigation, given that such a practice clearly
runs afoul of Pennsylvania Rule of Appellate Procedure 341 and our prior
holding in C.M.K. This Court would quash an appeal challenging an order
granting summary judgment in a case different from the one in which the
notice of appeal was filed.
Notwithstanding these issues, we are bound by this Court’s en banc
pronouncement in Malanchuk. See Commonwealth v. Tejada, 2015 WL
33
To further complicate matters, assume summary judgment was entered in
favor of Malanchuk and against Tsimura in the Tsimura litigation. Pursuant
to the holding in Malanchuk, that summary judgment order would be
interlocutory and Tsimura could not appeal it until Malanchuk’s case against
Sivchuk ended. As Tsimura would no longer be involved in the litigation
once summary judgment was entered against him, he would have to keep
checking the docket in the Sivchuk case to see when a final order was
entered in that case so that he could make sure to file a timely notice of
appeal within 30 days.
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62931 (Pa. Super. Jan. 6, 2015), citing Pa.R.A.P. 3103(b). Under
Malanchuk, we conclude that, while the 469, 1810, and 1902 actions were
not completely consolidated within the meaning of Kincy, no final and
appealable order was entered in this case until September 3, 2013, the date
that judgment was entered in favor of Liskov and Sapphire pursuant to the
jury’s verdict. As such, Malanchuk allows appellate review of Appellants’
claims involving the 1902 action.
We next examine whether a final and appealable order was entered in
the 469 action. As noted above, there was never a discontinuance filed, nor
was judgment entered in relation to, Feschuk and the Ambulance Association
in the 469 action. The Ambulance Association and Feschuk settled with
Appellants on June 17, 2013. Instead of filing a discontinuance or a
stipulated judgment, Feschuk and the Ambulance Association, on August 23,
2013, filed a supplemental new matter that raised the settlement as an
affirmative defense. If the claims against Feschuk and the Ambulance
Association are still pending, then a final appealable order has not been
entered and this appeal is interlocutory in nature.
Pennsylvania Rule of Civil Procedure 229 provides, in relevant part:
(a) A discontinuance shall be the exclusive method of voluntary
termination of an action, in whole or in part, by the plaintiff
before commencement of the trial.
(b)(1) Except [in situations not applicable here], a
discontinuance may not be entered as to less than all defendants
except upon the written consent of all parties or leave of court
after notice to all parties.
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Pa.R.C.P. 229.
We find instructive the decision of this panel in Burkey. In that case,
a stipulation of dismissal was filed on July 26, 2013. Burkey, 106 A.3d at
738. The trial court did not sign an order granting the stipulated dismissal
until August 6, 2013. Id. Burkey’s notice of appeal was timely if the appeal
period began to run on August 6 but was untimely if the appeal period began
to run on July 26. This panel held that the appeal period began to run on
July 26 and, therefore, Burkey’s notice of appeal was untimely. Id. at
739-741. Our determination was based on the fact that the filing of the
stipulation disposed of all claims against all parties in that particular case.
See id. at 741. Thus, we held that the mandates of Rule 229 were satisfied,
despite the irregular form of the pleading filed with the court. See id.
As noted above, Feschuk and the Ambulance Association were the last
parties remaining in the 469 action. Thus, when the settlement agreement
between Appellants and Feschuk and the Ambulance Association was filed on
August 23, 2013, all of the requirements of Rule 229 were satisfied and that
ended the 469 litigation. Because a final order was entered in the 469
action, that case does not hinder appellate review.34 Accordingly, we
34
Our holding in Malanchuk arguably calls this conclusion into question. To
demonstrate why this is so, recall our example above using the facts of
Malanchuk. Assume further that, instead of dismissing Malanchuk’s claims
against Tsimura, the trial court’s summary judgment order granted
summary judgment in favor of Malanchuk. Assume further that Malanchuk
(Footnote Continued Next Page)
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conclude that, despite the procedural irregularities present in the instant
appeal, all claims against all parties in all three actions have been disposed
of and we have jurisdiction to consider the merits of this appeal.
Having concluded that we possess jurisdiction over this appeal, we
turn now to address the merits of Appellants’ issues. In their first issue,
Appellants contend that the trial court erred by granting summary judgment
in favor of the Hospital.35 This Court has explained:
Our scope of review of an order granting summary judgment is
plenary. We apply the same standard as the trial court,
reviewing all the evidence of record to determine whether there
_______________________
(Footnote Continued)
ultimately resolved his claims against Sivchuk through a negotiated
settlement. Rule 229 requires the written consent of all parties or leave of
court after notice to all parties before a discontinuance can be entered as to
less than all defendants. Ostensibly, one of the reasons underlying this rule
is to give non-settling parties notice of the impending entry of an order that
could affect their rights, including their appellate rights. By linking the
finality and appealability of the Tsimura litigation to the resolution of the
Sivchuk litigation, Malanchuk arguably expands the scope of the notice and
consent obligations found in Rule 229 to include parties to all
companion-consolidated cases. In the absence of such a duty, then a party
in Tsimura’s position would have no notice that his appeal period had begun
to run.
In this case, no other party’s appellate rights were impacted by the fact that
notice of Appellants’ settlement with Feschuk and Ambulance Association
was not given to all litigants in all of the companion-consolidated cases.
Thus, we find that the requirements of Rule 229 were met here.
35
The Hospital and WVHCS make various waiver arguments throughout their
brief regarding Appellants’ alleged failure to comply with Pennsylvania Rule
of Appellate Procedure 2119. As we have not been hindered by Appellants’
brief, we decline to find waiver in our discretion. See Allegheny Office of
Med. Exam’r v. Unemployment Comp. Bd. of Review, 2011 WL
10845681, *2 n.4 (Pa. Cmwlth. Mar. 17, 2011).
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exists a genuine issue of material fact. We view the record in
the light most favorable to the non-moving party, and all doubts
as to the existence of a genuine issue of material fact must be
resolved against the moving party. Only where there is no
genuine issue as to any material fact and it is clear that the
moving party is entitled to a judgment as a matter of law will
summary judgment be entered.
Stein v. Magarity, 102 A.3d 1010, 1013 (Pa. Super. 2014) (internal
alterations and citation omitted).
Appellants’ complaint included three counts against the Hospital36 –
negligence, vicarious liability, and NIED.37 The trial court found that the
negligence and vicarious liability actions were barred by this Court’s decision
in Riffe v. Vereb Ambulance Serv., Inc., 650 A.2d 1076 (Pa. Super.
1994). In Riffe, the medical command physician at the hospital ordered an
emergency medical technician to administer a certain drug. Id. at 1076-
1077. The emergency medical technician administered 44 times the normal
dose of the drug, resulting in the patient’s death. Id. Eventually, a lawsuit
was filed against the emergency medical technician, ambulance service, and
hospital alleging that all three had been negligent with respect to the
patient’s care. The claim against the hospital was based upon the actions of
the medical command physician.
36
As WVHCS is the parent company of the Hospital, we need not address
Appellants’ claims against WVHCS separately.
37
We address the NIED claim against the Hospital infra when discussing
that claim against all defendants.
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The emergency medical technician and ambulance service settled with
the plaintiffs. Id. at 1077. The case against the hospital went to trial;
however, the trial court granted a motion for a compulsory nonsuit. Id. On
appeal, this Court was asked to consider whether “the hospital had an
independent, primary[,] and concurrent duty of care to the deceased pre-
hospital patient[.]” Id. (internal quotation marks omitted). After review of
the Emergency Medical Services Act, 35 P.S. §§ 6921–6938 (repealed),38
and implementing regulations, we concluded that there was no duty on the
part of the hospital. Riffe, 650 A.2d at 1077-1079.
In order to prevail on a negligence claim the plaintiff must prove that
(1) the defendant owed a duty; (2) the defendant breached that duty; (3)
the breach was the proximate result of harm; and (4) the damages were a
direct result of that harm. Fessenden v. Robert Packer Hosp., 97 A.3d
1225, 1229 (Pa. Super. 2014). Under Riffe, the Hospital did not owe a duty
to Ashley or Appellants. Therefore, Appellants failed to prove their prima
facie case of negligence.
Appellants attempt to distinguish Riffe by arguing that it differs from
the case sub judice because the plaintiffs in Riffe were seeking damages
based upon the actions of the emergency medical technician while in the
38
The Emergency Medical Services Act was repealed on August 18, 2009.
See 2009 P.L. 308. That statute, however, still governs this action. See
Wimer v. Pa. Employees Benefit Trust Fund, 939 A.2d 843 (Pa. 2007)
(substantive rights are governed by the law in place at the time of an
incident).
- 31 -
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case sub judice Appellants are seeking damages based upon the actions of
Liskov, the medical command physician. This Court’s holding in Riffe,
however, is much broader than the facts of that case. This Court held that a
hospital does not owe a duty to patients before their arrival at the care
giving facility. The case at bar fits squarely within that holding as Appellants
are arguing that the Hospital owed a duty to Ashley, a pre-hospital patient.
Appellants also argue that, irrespective of the Emergency Services Act,
the Hospital assumed responsibility for the medical command physician. A
medical command, by definition, is part of a hospital. See 28 Pa.Code
1001.2 (repealed).39 However, Appellants’ contention that the Hospital is
liable for the actions of Liskov, the medical command physician, because the
medical command is part of the Hospital stands in direct contravention of
this Court’s decision in Riffe. Indeed, this circumstance was present in
Riffe but did not alter our conclusion in that case; hence, it cannot impact
our analysis here. Finally, we reject Appellants’ public policy argument.
Appellants would have recovered against Liskov and Sapphire if they had
been able to prove that Liskov had been grossly negligent. As such,
Appellants were not completely foreclosed from seeking damages for the
conduct of the medical command. Accordingly, the trial court properly
granted summary judgment as to count V (negligence) in the 469 action.
39
The regulations promulgated under the Emergency Services act were
repealed upon the repeal of the Emergency Services Act. However, the
regulations were binding at the time this incident occurred.
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As to count VI (vicarious liability), any error in granting summary
judgment to the Hospital was harmless. Our Supreme Court has held that
“termination of the claim against the agent extinguishes the derivative claim
against the principal.” Mamalis v. Atlas Van Lines, Inc., 560 A.2d 1380,
1383 (Pa. 1989). Appellants’ vicarious liability claim was based upon the
alleged negligence of Liskov, the medical command physician, and Sapphire,
her employer. The jury determined that Liskov and Sapphire were not
grossly negligent and, therefore, the vicarious liability claim against the
Hospital would have been extinguished at the end of the trial if summary
judgment were not granted.
In their second issue on appeal, Appellants argue that the trial court
erred by granting summary judgment to all defendants with respect to Linda
Judge’s NIED claim. In order to recover on her NIED claim, Linda Judge was
required to prove that (1) the defendants negligently injured Ashley; (2)
Linda Judge was near the scene of the traumatic event; (3) the distress
resulted from her observation of the traumatic event and the negligence of
the defendant; (4) she had a close relationship with Ashley; and (5) that the
emotional distress caused physical harm. See Sonlin ex rel. Sonlin v.
Abington Mem'l Hosp., 748 A.2d 213, 217 (Pa. Super. 2000). The trial
court found that Linda Judge was unable to prove the third element of NIED
because she did not observe the alleged negligent actions of the defendants.
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The entirety of Appellants’ brief addressing Linda Judge’s NIED claim
focuses on how Linda Judge witnessed the alleged negligent actions of
Picton, Feschuk, and the Ambulance Association. These three defendants,
however, settled with Appellants. That settlement released Picton, Feschuk,
and the Ambulance Association from all liability relating to the events that
occurred on February 24 and 25, 2005. Therefore, Appellants are required
to show that Linda Judge observed the negligent acts of Liskov, Sapphire,
the Hospital, and WVHCS in order to recover on her NIED claim.
Linda Judge testified at her deposition that she did not see nor hear
any actions taken by the Hospital, WVHCS, Liskov, or Sapphire. See N.T.,
7/18/08, at 49-70. Instead, she only observed the alleged negligent actions
of Picton, Feschuk, and the Ambulance Association. See id. Although Linda
Judge observed the injury allegedly caused by the negligent conduct of
Liskov, Sapphire, WVHCS, and the Hospital (i.e., the death of Ashley), the
law in this Commonwealth is clear that viewing the resulting injury is
insufficient to recover on a NIED claim. Instead, the plaintiff must view both
the negligent act and the resulting injury in order to recover on a NIED
claim.
Our decision in Love v. Cramer, 606 A.2d 1175 (Pa. Super. 1992),
appeal denied, 621 A.2d 580 (Pa. 1992), confirms this conclusion. In Love,
this Court discussed how the plaintiff’s observation of both the negligent
action and the resulting injury to her loved one permitted her NIED claim to
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survive preliminary objections. Id. at 1178-1179. This Court noted that
“[a]lthough it seems odd that the plaintiff must actually witness the
negligent act itself and not just the resulting traumatic injury to the loved
one, the law as it now stands dictates such a requirement.” Id. at 1179 n.4;
see also id. at 1179 (Del Sole, J. concurring) (recognizing that a plaintiff
must observe the negligent act itself in order to recover on a NIED claim but
expressing disagreement with that rule).
The rule requiring observation of both the negligent act and resulting
harm was first announced by this Court in Bloom v. Dubois Reg’l Med.
Ctr., 597 A.2d 671 (Pa. Super. 1991). In Bloom, this Court observed that
often in NIED actions, the negligent action and the resultant injury occur
simultaneously, thereby negating the need to define exactly what the
plaintiff must observe in order to recover on their NIED claim. Id. at 682.
However, in Bloom the negligent action and the resulting injury did not
occur simultaneously. Thus, this Court had to determine exactly what the
plaintiff had to observe in order to recover on a NIED claim. This Court held
that in order to recover on a NIED claim, the plaintiff must observe the
negligent action taken by the defendant as well as any resulting injury. Id.
In Tiburzio-Kelly v. Montgomery, 681 A.2d 757 (Pa. Super. 1996),
superseded on other grounds, 23 Pa.C.S.A. § 1901(a), this Court again
emphasized the requirement that a plaintiff observe the negligent action
itself in order to recover for NIED. Tiburzio-Kelly, 681 A.2d at 773
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(citation omitted). Nowhere in Appellants’ brief is it averred that Linda
Judge observed the alleged negligent actions of WVHCS, the Hospital,
Liskov, and/or Sapphire. As there was no material issue of fact at issue
regarding whether Linda Judge could satisfy the third element required for
NIED, the trial court properly granted summary judgment to Liskov,
Sapphire, WVHCS, and the Hospital.40
In their third issue on appeal, Appellants contend that the trial court
erred by denying their motion in limine with respect to mononucleosis.
Specifically, Appellants sought to preclude any mention at trial that Ashley
had undiagnosed mononucleosis at the time of the incident. On May 15,
2013, the trial court denied Appellants’ motion in limine. “When reviewing a
ruling on a motion in limine, we apply an evidentiary abuse of discretion
standard of review. The admission of evidence is committed to the sound
discretion of the trial court and our review is for an abuse of discretion.”
Commonwealth v. Parker, 104 A.3d 17, 21 (Pa. Super. 2014) (citation
omitted).
Appellants first argue that the evidence of undiagnosed mononucleosis
was not relevant. “Evidence is relevant if: (a) it has any tendency to make a
fact more or less probable than it would be without the evidence; and (b)
the fact is of consequence in determining the action.” Pa.R.Evid. 401.
40
We decline to address whether the trial court erred by granting summary
judgment with respect to Picton, Feschuk, and the Ambulance Association as
that issue was mooted by Appellants’ settlement with those defendants.
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Liskov and Sapphire, on the other hand, argue that the undiagnosed
mononucleosis was relevant both to negligence and causation.
We conclude that the trial court did not abuse its discretion in
determining that the undiagnosed mononucleosis was relevant to causation.
Dr. Mark Cipolle, Liskov and Sapphire’s expert witness, testified that Ashley
was going to die no matter what decisions were made and what care was
administered prior to her arrival at a hospital. See N.T., 6/15/13, at 43241
(“[E]ven if [Ashley] had been brought directly to [the Hospital,] she would
have . . . still died from the splenic hemorrhage.”). This opinion was based,
in part, on the fact that Ashley’s spleen ruptured as a result of her fall down
the stairs. As Appellants’ own expert noted, mononucleosis is “a virus that
infects . . . lymphatic tissue. And a lot of that tissue lives in the spleen. So
the spleen gets much, much more swollen, and the membrane of the spleen
gets a little bit spongy. So it doesn’t take too much trauma to make it
rupture.” N.T., 6/11/13, at 124.
Thus, whether Ashley had mononucleosis was relevant to the issue of
causation. Expert testimony showed that mononucleosis may have caused
Ashley’s spleen to become swollen and spongy before her fall down the
stairs. That meant that any small trauma, such as the accident here, was
sufficient to rupture the spleen. The spleen rupture, according to the
41
The notes of testimony for the entire trial are contained in one volume.
We cite the proper date and the page number as outlined in the single
volume of testimony.
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defense expert, meant that Ashely would have perished no matter what
actions were taken by the defendants.
Appellants next contend that even if mononucleosis were relevant,
their motion in limine should have been granted pursuant to Pennsylvania
Rule of Evidence 403.42 Rule 403 provides that, “The court may exclude
relevant evidence if its probative value is outweighed by a danger of . . .
unfair prejudice[.]” Pa.R.Evid. 403. “Unfair prejudice supporting exclusion
of relevant evidence means a tendency to suggest decision on an improper
basis or divert the jury’s attention away from its duty of weighing the
evidence impartially.” Parr v. Ford Motor Co., 2014 WL 7243152, *9 (Pa.
Super. Dec. 22, 2014) (en banc) (internal quotation marks and citations
omitted).
Appellants contend that the low probative value of the mononucleosis
evidence and the prejudice associated with allowing the jury to speculate
regarding the standard of care or causation means that the balance tips
against admission. We disagree. As discussed above, the evidence was
relevant. Furthermore, it was not unduly prejudicial for the jury to hear
42
Liskov and Sapphire argue that Appellants’ argument is waived as it
wasn’t raised in the trial court. Appellants’ motion in limine, however,
specifically argued that the mononucleosis evidence should be excluded
under Rule 403. Motion In Limine To Preclude Defendants From Making Any
Reference To and/or Introducing Evidence of Mononucleosis, 4/22/13, at 3
(“Moreover, even relevant evidence may be excluded if its probative value is
outweighed by the danger of unfair prejudice. See Pa.R.E[vid]. 403.”).
Accordingly, Appellants complied with Rule 103 by specifying the grounds for
their objection in the trial court. See Pa.R.Evid. 103(a)(1)(B).
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about an undiagnosed medical condition which contributed to Ashley’s fatal
injuries. Although the evidence may have been detrimental to Appellants,
that does not make it unfairly prejudicial. The admission of Ashley’s
undiagnosed mononucleosis did not suggest an improper basis for decision
or divert the jury’s attention from fairly weighing the evidence. Accordingly,
we conclude that the trial court did not abuse its discretion by denying
Appellants’ motion in limine with respect to mononucleosis.
In their fourth issue on appeal, Appellants argue that the trial court
erred by including Feschuk on the verdict slip. We review a claim that the
trial court erred by including or excluding settling defendants on the verdict
slip for an abuse of discretion. See Hyrcza v. W. Penn Allegheny Health
Sys., Inc., 978 A.2d 961, 968 (Pa. Super. 2009). A trial court does not
abuse its discretion by permitting a settling defendant to be included on the
verdict slip if the evidence presented at trial was sufficient to meet the prima
facie burden of proving that the settling defendant was liable. See id. at
968-969.
We first note that Appellants’ whole argument is premised on the
assumption that Feschuk, at the time of trial, was a settling defendant.
This, however, was not the case. Feschuk was still a party to the case until
August 23, 2013, when Feschuk, the Ambulance Association, and Picton filed
a supplemental new matter which included as an attachment thereto a copy
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of the signed settlement agreement. Thus, Appellants argument fails
because Feschuk was not a settling defendant.43
Even if we considered Feschuk to be a settling defendant, we would
conclude that there was a prima facie case of Feschuk’s gross negligence.
See 35 P.S. § 6931 (repealed) (requiring evidence of gross negligence).44
Appellants’ expert witness testified that Feschuk breached his duty of care
and that this breach of his duty of care led to Ashley’s death. See N.T.,
6/11/13, at 129-132. This testimony was very similar to the testimony
relied upon by Appellants to show that Liskov was grossly negligent.
Compare id. with id. at 104-109. If Appellants satisfied their prima facie
burden with respect to Liskov then certainly a prima facie case of gross
negligence was shown as to Feschuk. Accordingly, the trial court did not
error by keeping Feschuk on the verdict slip.
In their fifth issue on appeal, Appellants argue that the trial court
erred by denying their motion for a new trial based upon jury irregularities.
Specifically, Appellants contend that the second alternate juror
impermissibly informed the 12 regular jurors that he believed they should
43
Even if we were to use the date the settlement agreement was signed, we
would come to the same conclusion. The settlement agreement is dated
June 17, 2013 – the same day the jury returned its verdict in this case.
There is no evidence of record that the settlement agreement was entered
into prior to the jury being sent out to deliberate.
44
See note 38, supra.
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return a verdict in favor of Liskov and Sapphire. The trial court denied
Appellants’ post-trial motion but offered no explanation of its ruling.
In support of their argument that there was an extraneous influence
on the jury, Appellants attached to their post-trial motion a document
entitled “AFFIDAVIT.” Post-Trial Motion, 6/27/13, Exhibit 4. That document
states that Dr. Gregory Bradshaw, Appellants’ jury consultant, discussed the
case with six jurors after the verdict was announced. It does not list the
names of the jurors with whom Bradshaw spoke. Instead, it lists the juror
numbers of the six individuals. The document states that Bradshaw
informed the jurors that he was recording the conversation. The document
also states that he made the recording available to Appellants’ counsel after
the meeting. The document does not relay the content of Bradshaw’s
conversation with the jurors. The signature and seal of a Texas notary
public appears at the bottom of the document. Also attached to Appellants’
post-trial motion was an alleged copy of the recording of Bradshaw’s
conversation with the jurors and a purported transcript thereof.
On appeal, Liskov and Sapphire argue that the document submitted by
Appellants in support of their post-trial motion was not an affidavit. They
also argue that the attached transcript did not comply with the rules of
judicial administration relating to transcripts. Liskov and Sapphire argue
that the speakers in the audio recording were not under oath nor were they
told that their testimony would be used to attack the validity of their verdict.
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Finally, Liskov and Sapphire argue that even if there were an extraneous
influence on the jury that it was not prejudicial to Appellants.
The right to a trial by an impartial jury “as preserved in the Seventh
Amendment of the United States Constitution, is enshrined in the
Pennsylvania Constitution, and the constitutional right to a jury trial, as set
forth in [Article 1, Section 6] does not differentiate between civil cases and
criminal cases.” Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 662
(Pa. Super. 2013), appeal denied, 86 A.3d 233 (Pa. 2014), cert denied, 134
S. Ct. 2890 (2014) (internal quotation marks and citation omitted). “It is
fundamental that every litigant who is entitled to a jury trial is entitled to an
impartial jury, free to the furthest extent practicable from extraneous
influences that may subvert the factfinding process.” Carter by Carter v.
U.S. Steel Corp., 604 A.2d 1010, 1015 (Pa. 1992) (citation omitted).
Determining if a new trial is warranted because of an extraneous
influence is a two-step process. First, the trial court must determine
whether there is competent evidence that there was an extraneous influence
on the jury. See Bruckshaw v. Frankford Hosp. of Phila., 58 A.3d 102,
114 (Pa. 2012). Appellants argue that any extraneous influence on the jury
is per se prejudicial. This is incorrect. In Bruckshaw, our Supreme Court
held that “in situations where there [is] unauthorized contact with the jury
or a juror” appellate courts “defer[] to the trial court’s discretionary finding
of [] prejudice based on competent record evidence[.]” Id. at 114. Thus,
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the second step of the inquiry is whether an extraneous influence was
prejudicial.
We first examine whether there was competent evidence of record that
there was an extraneous influence on the jury. In Carter, our Supreme
Court examined whether a trial court could consider testimony by a juror
regarding the existence of an extraneous influence when determining
whether to grant a motion for a new trial. Our Supreme Court reiterated
that Pennsylvania follows the majority rule and prohibits juror testimony
regarding the content of deliberations. Carter, 604 A.2d at 1013, citing
Pittsburgh Nat'l Bank v. Mut. Life Ins. Co. of N.Y., 425 A.2d 383 (Pa.
1981). There is, however, a narrow exception which permits juror testimony
regarding whether “prejudicial information not of record and beyond
common knowledge and experience was improperly brought to the jury’s
attention[.]” Pa.R.Evid. 606(b)(2)(A).
Liskov and Sapphire argue that the document signed by Bradshaw was
not proper evidence as it was not an actual affidavit.
An affidavit is defined as:
a statement in writing of a fact or facts, signed by the person
making it, that either (1) is sworn to or affirmed before an
officer authorized by law to administer oaths, or before a
particular officer or individual designated by law as one before
whom it may be taken, and officially certified to in the case of an
officer under seal of office, or (2) is unsworn and contains a
statement that it is made subject to the penalties of 18
Pa.C.S.[A.] § 4904 relating to unsworn falsification to
authorities.
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Pa.R.C.P. 76.
Under Texas law, a notary public is authorized to administer oaths.
See Tex. Govt. Code § 416.016(a)(3). Liskov and Sapphire argue this is
insufficient to make the document an affidavit because it does not say that it
is given under the pain of perjury. Liskov and Sapphire confuse an unsworn
statement pursuant to 18 Pa.C.S.A. § 4904 with a sworn statement in
writing made before an officer authorized to administer oaths. See
Pa.R.C.P. 76. An affidavit need only be sworn to or affirmed before an
individual authorized to administer oaths. See Coulter v. Dep't of Pub.
Welfare, 65 A.3d 1085, 1087 n.4 (Pa. Cmwlth. 2013), citing
Commonwealth v. Thomas, 908 A.2d 351, 354 (Pa. Super. 2006). On the
other hand, an unsworn declaration is required to include specific language
establishing it as having been given under the pain of perjury. See 18
Pa.C.S.A. § 4904; Pa.R.C.P. 76; Coulter, 65 A.3d at 1087 n.4; Thomas,
908 A.2d at 354. The law in Texas is the same. See In re K.M.L., 443
S.W.3d 101, 109–110 (Tex. 2014) (citation omitted). In this case, the
document executed by Bradshaw was signed by a Texas notary public and,
therefore, complied with the provisions of Texas and Pennsylvania law
relating to affidavits. Accordingly, it is an affidavit.
Although Bradshaw’s document was an affidavit, Liskov and Sapphire
also argue that Exhibit 5 to Appellants’ post-trial motion, a transcript of the
conversation between Bradshaw and the jurors is inadmissible as it does not
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conform to the rules of judicial administration regarding transcripts. 45 We
need not address whether the transcript complies with the rules of judicial
administration, however, as the actual audio recording was attached to the
post-trial motion. Instead, we must determine whether the audio recording
itself provided admissible evidence that could be considered by the trial
court when determining if extraneous influences impacted the jury’s
deliberations.
The recording appears to begin in the hall of the courthouse with
Bradshaw asking if anyone would like to speak about the case. A few
individuals can be heard agreeing to speak about the case. It appears that
they then enter the courtroom and discuss the trial. At one point in the
conversation, an individual states that the jurors asked the second alternate
his thoughts on the case before he left in order to not “discount” what he
was going to do.46 An individual also states that the alternate juror said that
he was for the defense. There is no further discussion about what the
second alternate juror said. For example, there is no indication that the
45
In particular, the transcript does not have a cover page nor does it have a
signature page identifying who transcribed the recording and attesting to the
accuracy of the transcript. The transcript also does not have a table of
contents. Finally, the transcript only differentiates between Bradshaw and
“Speaker.” It does not identify the different speakers, noting only that it
was an individual other than Bradshaw speaking. In other respects, it
appears to be a typical transcript.
46
This was an apparent reference to the jury wanting to consider the second
alternate’s views of the case.
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second alternate juror relayed his opinion on a specific issue, the credibility
of a certain witness, or the weight of any particular piece of evidence. The
notes of testimony indicate that the second alternate juror stayed for closing
arguments and then was dismissed prior to the jury charge. See N.T.,
6/17/13, at 607, 670. Thus, Appellants hypothesize, the latest that he could
have told the jury panel his views was after the closing arguments and
before the jury charge.
In Carter, our Supreme Court stated that a trial court should only
reach the prejudice prong of an extraneous influence inquiry if “the
existence of a potentially prejudicial extraneous influence has been
established by competent testimony[.]” Carter, 604 A.2d at 1016
(emphasis added). The use of the phrase “competent testimony” indicates
that unauthenticated testimony, such as the type that is present in the
instant case, is insufficient to prove the existence of an extraneous
influence. To that end, in Carter our Supreme Court relied upon testimony
given by the jurors, under oath, to the trial court in camera. Id. at 1013.
Competent evidence has been required to prove an extraneous
influence for at least 190 years. In Ritchie v. Holbrook, 7 Serg. & Rawle
458 (Pa. 1821), our Supreme Court considered whether an affidavit from a
juror was sufficient evidence to find that an extraneous influence had
impacted the jury’s deliberations. The affidavit alleged that the jury
foreperson had told the rest of the jury that he had a conversation with the
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plaintiff in which the plaintiff was able to explain an apparent hole in his trial
testimony. Id. The plaintiff objected to this affidavit being considered
because it was hearsay. Id. Our Supreme Court determined that it was not
hearsay because the affidavit was offered to establish that the jury
foreperson told the remaining jurors of an alleged conversation, not for the
truth of the conversation between the jury foreperson and the plaintiff. Id.
As far as this case is concerned, Richie stands for the proposition that the
evidence used to prove an extraneous influence must comport, at least in
some respects, with the rules of evidence.
In Friedman v. Ralph Bros., 171 A. 900 (Pa. 1934), our Supreme
Court stated, “Only in clear cases of improper conduct by jurors, evidenced
by competent testimony, should a verdict, which is fully supported by the
evidence, be set aside and a new trial granted.” Id. at 901 (emphasis
added). Our Supreme Court relied upon testimony given by the jurors,
under oath in the presence of the trial court, in determining that an
extraneous influence was present. See id. Similarly, in Welshire v.
Bruaw, 200 A. 67 (Pa. 1938) (per curiam), our Supreme Court affirmed the
grant of a new trial based upon testimony, given under oath, that the trial
court’s tipstaff pressured the jury into delivering a verdict even though it had
not finished deliberations. Id.
Finally, in Commonwealth v. Sero, 387 A.2d 63 (Pa. 1978), our
Supreme Court held that Juror A was able to testify regarding information
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that Juror B had communicated to the full jury. Juror B had learned the
information from her husband. Id. at 66-67. The testimony that our
Supreme Court found sufficient to conclude that an extraneous influence
impacted the jury’s deliberations was once again deposition testimony, given
under oath. Id. at 66.
The common theme of all of these cases involving jury irregularities is
that the moving party must produce admissible, authenticated evidence to
support its motion. Although the exact nature of the evidence differs, the
consistent feature of the evidence advanced in support of the request for a
new trial is that there is no dispute about who is giving the evidence or what
was said. Contrast that to the case at bar in which there is a genuine issue
as to: whether the tape recording in question is a true and accurate copy of
Bradshaw ’s conversation; whether the individuals speaking were actually
trial jurors; and whether those jurors would have said the same things under
oath.
As this Court has stated, in order to authenticate a recording there
must be evidence from “a witness with personal knowledge who can testify
that it fairly and accurately represents that which it purports to depict.”
Commonwealth v. McKellick, 24 A.3d 982, 995 (Pa. Super. 2011), appeal
denied, 34 A.3d 828 (Pa. 2011) (internal quotation marks and citations
omitted); see Commonwealth v. Fisher, 764 A.2d 82, 89 (Pa. Super.
2000), appeal denied, 782 A.2d 542 (Pa. 2001) (citation omitted) (“Tape
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recordings are admissible when they are properly identified as a
reproduction of what has been said and the voices are properly identified.”).
In this case, the recording has not been authenticated. Although
Bradshaw states that he made a recording and then gave the recording to
counsel, there is no indication, either by Bradshaw or Appellants’ counsel,
that the recording attached to Appellants’ post-trial motion was a true and
correct copy of the recording made by Bradshaw. Furthermore, there was
no evidence that the voices in the recording are actually the voices of six of
the jurors who served in this case. There is no information as to the identity
of the speakers on the recording. As such, the audio recording attached to
the post-trial motion was not properly authenticated and therefore could not
be considered by the trial court.47
Thus, Appellants are only left with Bradshaw’s affidavit to support their
claim of jury irregularities. This affidavit says absolutely nothing regarding
extraneous influences impacting the jury’s deliberation process.
Furthermore, Appellants did not seek an evidentiary hearing before the trial
court to produce further evidence relating to the alleged jury irregularities.
Appellants could easily have proffered affidavits executed by one (or more)
of the trial jurors that attested to the alleged statements made by the
47
As the recording itself was not properly authenticated, the transcript of
the recording would also be inadmissible if Appellants overcame the
problems inherent with the transcript.
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second alternate juror. They also could have deposed the jurors or
requested an evidentiary hearing where they subpoenaed one or more trial
jurors to testify. They chose not to take these routes and instead rested on
the affidavit of Bradshaw along with the inadmissible recording (and
transcript thereof). As such, Appellants have failed to meet the first
requirement for relief – proving by competent evidence that an extraneous
influence impacted the jury.48 Accordingly, we conclude that the trial court
did not abuse its discretion in denying Appellants’ post-trial motion relating
to alleged jury irregularities.
In their final issue on appeal, Appellants allege that the trial court
erred by granting summary judgment with respect to their claims for
punitive damages. However, “[a] request for punitive damages does not
constitute a cause of action in and of itself. Rather, a request for punitive
damages is merely incidental to a cause of action.” Feingold v. SEPTA,
517 A.2d 1270, 1276 (Pa. 1986). In this case, even if Appellants asserted
causes of action that may have allowed for punitive damages, Appellants did
not prevail on any of their causes of action and therefore they could not be
48
Even if we were to conclude that Appellants had proved the existence of
an extraneous influence on the jury, we would conclude that they are not
entitled to relief on this claim. As noted above, the second alternate juror
did not offer his views on specific facts in question. Instead, he only offered
his opinion that he favored the defendants. It is inconceivable that the
entire jury decided to find for the defense solely because of one alternate
juror’s general inclination. Thus, Appellants would be unable to prove the
necessary prejudice to succeed on their juror irregularity claim.
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entitled to punitive damages. Accordingly, any error in granting summary
judgment on the punitive damages claims early in the litigation was
harmless.
In sum, we conclude that we have jurisdiction over this matter.
Turning to the merits, Appellants are not entitled to relief. The trial court
properly granted summary judgment in favor of the Hospital and WVHCS
under Riffe. The trial court properly concluded that, since Linda Judge did
not observe the alleged negligent actions of Liskov, Sapphire, WVHCS, and
the Hospital, she could not recover on her NIED claim. Whether the trial
court erred by granting summary judgment to Feschuk, Picton, and the
Ambulance Association on Linda Judge’s NIED claim is now moot in view of
Appellants’ settlement with these defendants. The trial court did not abuse
its discretion by denying Appellants’ motion in limine relating to Ashely’s
undiagnosed mononucleosis. As Feschuk was still a party to the case, the
trial court did not err by including him on the verdict form. Appellants failed
to come forward with competent evidence that there had been jury
irregularities. Finally, any error in granting summary judgment as to the
punitive damages claims was harmless. We therefore affirm the judgments
entered in these three actions.
Judgments affirmed.
President Judge Emeritus Ford Elliott joins this memorandum.
Judge Strassburger files a Concurring Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2015
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Judge, L. & D. v. Wyoming Valley Health Care, etal
Combined Opinion