J-A29042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROSEMARY G. GASIOR, INDIVIDUALLY : IN THE SUPERIOR COURT OF
AND AS EXECUTRIX OF THE ESTATE OF: PENNSYLVANIA
JOSEPH M. GASIOR, DECEASED :
:
v. :
:
ALBERT C. PARULIS, M.D.; SYED R. :
GILANI, M.D.; UPMC, a/k/a :
UNIVERSITY OF PITTSBURGH MEDICAL :
CENTER; UPMC BRADDOCK, a/k/a :
UNIVERSITY OF PITTSBURGH MEDICAL :
CENTER-BRADDOCK; UPMC :
EMERGENCY MEDICINE, INC., d/b/a :
EMERGENCY RESOURCE MANAGEMENT, :
INC.; AND UPMC PRESBYTERIAN :
SHADYSIDE, a/k/a UPMC SHADYSIDE :
:
APPEAL OF: ROSEMARY G. GASIOR : No. 665 WDA 2016
Appeal from the Order entered April 6, 2016
in the Court of Common Pleas of Allegheny County,
Civil Division, No(s): GD-12-3028
BEFORE: DUBOW, MOULTON and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 29, 2016
Rosemary G. Gasior (“Gasior”), individually and as executrix of the
Estate of Joseph M. Gasior, deceased, appeals from the April 6, 2016 Order
granting the Motion to Dismiss filed by the above-captioned defendants
(“Defendants”), and dismissing the action with prejudice. We affirm.
The trial court set forth the relevant factual and procedural history,
which we adopt for the purpose of this appeal. See Trial Court Opinion,
6/10/16, at 1-2.
On appeal, Gasior raises the following issues for our review:
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1. Whether the trial court committed reversible error and abused
its discretion by ruling that Defendants’ Motion was “not
opposed” by [Gasior] when[,] in fact[,] it was opposed by
[Gasior’s] attorney at the hearing[,] and in [Gasior’s]
Response in Opposition[?]
2. Whether the trial court abused its discretion by misstating the
facts on the record[,] and exercising judgment that was
manifestly unreasonable and/or the result of prejudice and
bias[?]
Brief for Appellant at 7-8.
“On appeal, we will not reverse a trial court’s dismissal of an action
with prejudice absent an abuse of discretion.” Stock v. Arnott, 608 A.2d
552, 554 (Pa. Super. 1992). “An abuse of discretion is not merely an error
in judgment; rather it occurs when the law is overridden or misapplied, or
when the judgment exercised is manifestly unreasonable or the result of
partiality, prejudice, bias or ill will.” Id.
In her first issue, Gasior contends that, when counsel for Defendants
presented the Motion to Dismiss to the Honorable Ronald Folino (“Judge
Folino”), her counsel was “waiting at the back of the courtroom to approach
the bench with her Response in Opposition.” Brief for Appellant at 20.
Gasior asserts that “[Judge Folino] may have written ‘not opposed’ on the
[O]rder before he saw [Gasior’s] counsel approaching the bench, and if so,
could easily have crossed out his notation and conducted the hearing with
both parties present.” Id. at 20-21. Gasior claims that Judge Folino abused
his discretion by choosing to defer his authority to Defendants, rather than
exercising his judicial authority independently. Id. at 21. Gasior argues
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that Judge Folino’s determination that the Motion was unopposed “was
clearly based upon an erroneous finding of material fact.” Id. Gasior
contends that her counsel was “less than 15 minutes late due to a medical
emergency,” and “[Judge Folino] should not have dismissed [her] entire
case on the basis of a few minutes delay.” Id. at 22.1
In its Opinion, the trial court addressed Gasior’s first issue, and
determined that it was factually incorrect and lacked merit. See Trial Court
Opinion, 6/10/16, at 2-4. We discern no abuse of discretion by the trial
court, and affirm on this basis as to Gasior’s first issue. See id.
In her second issue, Gasior contends that Judge Folino’s June 10, 2016
Opinion “contains numerous misstatements of fact concerning the brief
events of April 6, 2016.” Brief for Appellant at 23. Gasior claims that
numerous witnesses, as well as “her [counsel’s] time-stamped parking ticket
and [the] time-stamped Response in Opposition[,] also verify the times of
1
Gasior also challenges Judge Folino’s subsequent ruling that she could file
her Response in Opposition if Defendants raised no objection to such filing.
See Brief for Appellant at 21-22. As this issue was not raised in Gasior’s
Statement of Questions Presented, nor set forth in a separate discussion in
the Argument section of her brief, we decline to address it. See Pa.R.A.P.
2116(a) (providing that “[n]o question will be considered unless it is stated
in the statement of questions involved or is fairly suggested thereby.”);
2119(a) (providing that “[t]he argument shall be divided into as many parts
as there are questions to be argued; and shall have at the head of each
part--in distinctive type or in type distinctively displayed--the particular point
treated therein, followed by such discussion and citation of authorities as are
deemed pertinent.”).
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her [counsel’s] arrival and departure ….”2 Id. Finally, Gasior argues that
Judge Folino absued his discretion by permitting the Honorable Christine
Ward (“Judge Ward”) to be involved in her case, as Judge Ward had a
conflict of interest due to her prior employment with the law firm
representing Defendants in this case. Id. at 24.3
The Argument section of Gasior’s brief, as pertaining to her second
issue, is completely lacking of any citation to legal authority in support of her
argument, and fails to provide any analysis of pertinent authority.
Accordingly, we are constrained to conclude that Gasior’s second issue is
waived. See Papadoplos v. Schmidt, Ronca & Kramer, PC., 21 A.3d
1216, 1229 (Pa. Super. 2011) (finding waiver where the appellants
advanced only a cursory argument in support of their issue, and failed to cite
to any pertinent legal authority).4
2
Notably, the record is devoid of any witness statements or copies of the
alleged time-stamped parking ticket. This Court may not consider evidence
that is not included in the certified record. See Ruspi v. Glatz, 69 A.3d
680, 691 (Pa. Super. 2013).
3
Additionally, Gasior challenges delays and periods of inactivity in the case.
See Brief for Appellant at 23-24. However, as these issues were not raised
in her Concise Statement, she failed to preserve them for our review. See
Korman Commercial Props. v. Furniture.com, LLC, 81 A.3d 97, 102 (Pa.
Super. 2013) (deeming as waived an issue that was not raised and
preserved properly before the lower court in the concise statement); see
also Pa.R.A.P. 302(a) (providing that issues not raised in the lower court are
waived and cannot be raised for the first time on appeal).
4
Even if we had not found waiver of Gasior’s second issue, we would have
determined that the issue lacks merit for the reasons set forth by the trial
court in its Opinion. See Trial Court Opinion, 6/10/16, at 4-5.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2016
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