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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SANDRA KRZAN & FRANK J. TOPOLSKI, IN THE SUPERIOR COURT OF
JR., ADMINISTRATORS OF THE ESTATES PENNSYLVANIA
OF CAROLINE & FRANK TOPOLSKI
Appellants
v.
KEYSTONE PROPANE SERVICES, INC.
AND KENNETH PRINGLE
No. 574 MDA 2016
Appeal from the Order Entered May 8, 2014
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 2011-CV-4097
BEFORE: BOWES, OLSON AND STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 01, 2017
Sandra Krzan and Frank J. Topolski, Jr, in their capacity as
administrators of the estates of Caroline and Frank Topolski (collectively
“Administrators”), appeal from the trial court’s grant of summary judgment
in favor of Kenneth Pringle. We affirm.
This matter has its genesis in an early morning explosion which
demolished the house situated at 730 Carmalt Street, Dickson City,
Lackawanna County. At the time of the explosion, Frank and Caroline
Topolski, and their son, Frank, Jr., were within the residence. Frank and
Caroline died in the ensuing fire, while Frank, Jr. escaped with minor
injuries.
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On July 6, 2011, Administrators commenced this action by filing a writ
of summons. Their subsequent complaint alleged that the explosion and fire
were directly and proximately caused by propane gas which leaked into the
basement through a service line attached to a propane tank provided by
Keystone Propane Service, Inc. (“Keystone”). As it relates to this matter,
Administrators averred, inter alia, that Pringle had negligently disconnected
the gas line and left it uncapped when he installed a hot water heater in the
Topolski’s basement eight months prior to the explosion. Administrators
brought claims of negligence, wrongful death, survival, and negligent
infliction of emotional distress against Keystone and Pringle.
A case management order was issued on October 11, 2012. That
order established that all discovery was to be completed by April 1, 2013,
Administrators had until June 15, 2013, to produce expert reports, Keystone
and Pringle had until August 15, 2013, to produce their expert reports, all
dispositive motions had to be filed by October 15, 2013, and after that date,
if no dispositive motions were pending before the court, the matter could be
certified for trial by any party.
On April 1, 2013, both parties concluded discovery. On May 30, 2013,
the court granted a motion to withdraw filed by Administrators’ counsel and
stayed the proceedings for sixty days until July 30, 2013, to permit
Administrators to obtain new counsel. Nevertheless, the court denied an
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August 22, 2013 request by Pringle to extend the case management
deadlines. Administrators did not pursue a similar request.
Following the withdrawal of counsel, Administrators did not file an
expert report by the June 15, 2013 deadline. The matter was not certified
for trial, but rather, on October 15, 2013, Keystone filed a timely motion for
summary judgment contending that there was no evidence of record tending
to show the propane tank provided by Keystone was defective and arguing
that Administrators had failed to identify expert testimony to show that any
alleged defect had contributed to the incident. On October 23, 2013, Pringle
also filed a motion for summary judgment asserting that Administrators had
failed to present expert testimony to establish the cause of the explosion.1
No timely answers were filed by Administrators to either motion.2
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1
In response to the motions for summary judgment filed by Keystone and
Pringle, Sandra Krzan, acting in her individual capacity, filed a praecipe for
satisfaction and termination discontinuing her personal claims against the
defendants. Ms. Krzan, acting as co-administrator, could not unilaterally
bind the estate in a similar manner. See In re Estate of Moskowitz, 115
A.3d 372 (Pa.Super. 2015) (holding that co-administrator operating outside
the ordinary administration of an estate, such as a litigation decision, cannot
act without consent of all co-administrators). Hence, Ms. Krzan remains a
party to this action in her capacity as an administrator to the estate.
2
The rules of civil procedure require the non-moving party to a motion for
summary judgment to file an answer in opposition within thirty days after
service of the motion. Pa.R.C.P. 1035.3(a).
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Subsequently, Administrators retained new counsel.3 After they were
granted three continuances, a hearing on both motions for summary
judgment was scheduled for May 8, 2014. Administrators did not, however,
request that the court provide them with additional time to file a response in
opposition to those motions. On May 7, 2014, Administrators filed an
untimely answer and brief in opposition to Pringle’s motion for summary
judgment and attached an unsigned expert’s report to that filing.4 In that
report, the expert opined that the explosion was caused by Pringle’s failure
to properly secure the gas line when he installed the hot water heater.
Following oral argument on May 8, 2014, the trial court precluded
consideration of the expert report due to its untimeliness and the lack of the
expert’s signature and granted summary judgment in favor of Keystone and
Pringle.5
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3
Current counsel’s entry of appearance is not listed on the docket. Noting
that Keystone and Pringle served their motions for summary judgment
directly on the Administrators in their individual capacities, and present
counsel filed his first continuance on behalf of Administrators on January 7,
2014, we surmise that Administrators obtained representation sometime
after the motions for summary judgment were filed.
4
Administrators did not file a response in opposition to Keystone’s motion
for summary judgment.
5
The trial court entered its order granting summary judgment in favor of
Keystone and Pringle on May 8, 2014. The trial court only prepared an
opinion revealing its basis for its decision in response to this appeal.
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Administrators filed a timely notice of appeal from the grant of
summary of judgment in favor of Pringle only, but due to a breakdown in the
court, the case was not transferred to the Superior Court until April 7, 2016.
Administrators complied with the court’s order to file a Rule 1925(b)
statement of matters complained of on appeal. On November 10, 2016, the
trial court authored its Rule 1925(a) opinion. This matter is now ripe for
review. Administrators present one question for our consideration:
“Whether the trial court erred in granting summary judgment in favor of
[Pringle] when [Administrators] had submitted an expert report that created
genuine issues of material fact as to their cause of action.” Appellant’s brief
at 5 (unnecessary capitalization omitted).
An order granting summary judgment will be reversed if the trial court
committed an error of law or clearly abused its discretion. Malanchuk v.
Sivchuk, 148 A.3d 860, 865 (Pa.Super. 2016). Where, as here, the trial
court’s decision regarding a motion for summary judgment involves a finding
based upon its procedural history, we evaluate that order under an abuse of
discretion standard. Cooper v. Schoffstall, 905 A.2d 482, 488 (Pa. 2006)
(stating, “Within the ambit of the discretionary authority allocated by the
rules to the trial courts, we review for an abuse of discretion.”).
Administrators contend that the trial court erred in excluding their
admittedly untimely expert they appended to their untimely response to
Pringle’s motion for summary judgment. Relying on Kurian ex rel. Kurian
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v. Anisman, 851 A.2d 152 (Pa.Super. 2004), they assert that, in order to
justify such a drastic action, the court was required to find that permitting
consideration of the expert report would prejudice Pringle. Having failed to
make this determination, Administrators continue, the court erred in
rejecting the report. Administrators conclude that, since the expert report
creates a genuine issue of material fact, the court committed an error of law
by granting summary judgment in favor of Pringle.
Our High Court first considered whether a party may supplement the
record with an untimely expert report by appending it to a response to a
motion for summary judgment in Gerrow v. John Royle & Sons, 813 A.2d
778 (Pa. 2002) (plurality opinion). Then Chief Justice Zappala, speaking for
a plurality of the court, interpreted Pa.R.C.P. 1035.3(b), 6 governing a party’s
response to a motion for summary judgment, and determined that it was in
keeping with the purpose of the rule to permit a party to supplement the
record when filing a timely response to a motion for summary judgment.
The Court underscored the importance of the timing of the motion for
summary judgment, noting that it was an appropriate maneuver “after the
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6
As it relates to a party’s response to a motion for summary judgment, Rule
1035.3(b) of the Rules of Civil Procedure states: “An adverse party may
supplement the record or set forth the reasons why the party cannot present
evidence essential to justify opposition to the motion and any action
proposed to be taken by the party to present such evidence.” Pa.R.C.P.
1035.3(b).
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completion of discovery relevant to the motion.” Id. at 781 (citation
omitted).
The Court in Gerrow concluded that, “Since the intent of the motion
for summary judgment is not to eliminate meritorious claims that could be
established by additional discovery or expert report, it is consistent with that
intent to permit supplementation of the record under Rule 1035.3(b) to allow
the record to be enlarged by the addition of such expert reports.” Id. at
780-781; Cf. Wolloch v. Aiken, 815 A.2d 594 (Pa. 2002) (finding the party
could not supplement the record with untimely expert reports filed after the
court had granted summary judgment in favor of all defendants).
The Supreme Court found that the Gerrows could append signed
expert reports to their timely response to the motion for summary
judgment, and therefore, the trial court should have considered them in its
summary judgment decision.
This Court subsequently adopted the Supreme Court’s holding in
Kurian, supra. In Kurian, we applied the Supreme Court’s interpretation
of Rule 1035.3 as expressed in Gerrow, supra. However, in embracing the
High Court’s reasoning, we noted that the rules governing responses to
motions for summary judgment must be read in harmony with Pa.R.C.P.
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4003.5(b) and its relevant case law.7 We observed that the case law
construing Rule 4003.5(b) required the trial court to evaluate the prejudicial
effect of reviewing an otherwise untimely expert report. Thus, we concluded
that, “when a party makes a timely response to a summary judgment
motion and attempts to supplement the record with otherwise untimely
expert reports, the court may, on its own motion, determine whether this is
allowed under Rule 4003.5(b).” Id. at 159-160. In other words, the court
must determine whether the party moving for summary judgment would be
prejudiced by the inclusion of the supplemental expert report.
The Kurian court found that the appellees in that case would be
prejudiced by the late inclusion of the expert report since the appellants had
violated numerous court ordered deadlines and the report was offered on the
day the parties were set to go to trial. Id. at 162. As it concerns the timing
of the submission of the reports, we noted that allowing the report at such a
late stage caused “unfair surprise and prejudice,” since, “appellees would be
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7
Pennsylvania Rule of Civil Procedure 4003.5(b) reads,
An expert witness whose identity is not disclosed in compliance
with subdivision (a)(1) of this rule shall not be permitted to
testify on behalf of the defaulting party at the trial of the action.
However, if the failure to disclose the identity of the witness is
the result of extenuating circumstances beyond the control of
the defaulting party, the court may grant a continuance or other
appropriate relief.
Pa.R.C.P. 4003.5(b).
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‘left with no time to evaluate and respond to the expert testimony.’” Id.
We continued that such prejudice could be neutralized if the court delayed
trial. However, we found that, therein, further delaying trial would “disrupt
the efficient and just administration of justice and would send a blatant
message that case management deadlines are meaningless.” Id. We stated,
[w]hen these deadlines are violated with impunity, as was done
by the plaintiffs in this case, the abusing party must be prepared
to pay the consequences. Usually the consequences are less
than what occurred here, an order which effectively dismisses
the lawsuit. Yet, when the other party suffers prejudice because
of the unjustified delay, this result is proper and in accordance
with Pennsylvania’s Rules of Civil Procedure.
Id. Hence, we determined the court did not err in precluding the expert
reports and granting summary judgment.
In the case sub judice, the trial court found that Administrators failed
to timely respond to Pringle’s motion for summary judgment when they filed
their response in opposition five months after the answer was due. The
court observed that, pursuant to Kurian, in order for it to accept the report,
it had to be included in a timely response to a motion for summary
judgment. The trial court also emphasized that Administrators had ignored
numerous case management deadlines throughout the proceedings. Thus, it
precluded the report from consideration, and finding no other evidence of
record to establish that Pringle caused the explosion in question, the court
granted summary judgment in favor of Pringle. We discern no abuse of
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discretion in the trial court’s preclusion of Administrators’ unsigned expert
report.
Initially, we note that Administrators rely on Gerrow, supra, and
Kurian, supra, in support of their position. However, Administrators’
argument presupposes that they filed a timely response to Pringle’s motion
for summary judgment with a signed expert report appended thereto.
Neither condition was actually met. As a result of Administrators’ errant
presumptions, they offer no explanation for the tardiness of their response
or their inability to proffer a signed expert report despite the fact that nearly
three years passed from the institution of this action to the court’s grant of
summary judgment. For the reasons set forth below, this discrepancy is
fatal to their claim.
Additionally, we observe that the trial court’s statements with regard
to Administrators’ failure to follow the case management schedule appear to
indicate that the court believed that Pringle would have been prejudiced if
the court had considered the expert report. However, contrary to
Administrators’ contentions, a finding of prejudicial effect was unnecessary
since the expert report was attached to an untimely response to a motion
for summary judgment. Kurian, supra (holding that the court must apply
“the long-standing prejudice standard found in the caselaw [sic] construing
[Pa.R.C.P.] 4003.5(b)” when a party attempts to supplement the record with
otherwise untimely expert reports attached to a timely response to a
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summary judgment motion); Commonwealth v. Reeves, 866 A.2d 1115
(Pa. 2004) (finding trial court abused its discretion in failing to make
prejudice determination after excluding expert reports attached to a timely
response in opposition to summary judgment).
Herein, Keystone and Pringle filed motions for summary judgment six
months after the completion of discovery and four months after
Administrators were required to submit an expert report. Administrators
filed their response to Pringle’s motion for summary judgment five months
after the deadline established by the rules of civil procedure had lapsed.
See Pa.R.C.P. 1035.3(a) (“the adverse party may not rest upon the mere
allegations or denials of the pleadings but must file a response within thirty
days after service of the motion[.]”). Under Gerrow, the trial court may
only consider an otherwise untimely expert report as a supplement to the
record when it is attached to a timely response to a motion for summary
judgment. Gerrow, supra; Kurian; supra. To find otherwise would
condone Administrators’ numerous violations of the rules of civil procedure,
and render the trial court’s efforts at case management meaningless.8
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8
We note that Administrators included an ostensibly signed copy of the
expert report in the reproduced record. This Court cannot consider
documents outside of the official record. See Brandon v. Ryder Truck
Rental, Inc., 34 A.3d 104, 106 n.1 (Pa.Super. 2011) (“Any document which
is not part of the official certified record is considered to be nonexistent,
which deficiency may not be remedied by inclusion in the reproduced
(Footnote Continued Next Page)
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Although the trial court’s decision to ignore the unsigned expert report
essentially guaranteed that Pringle would succeed on his motion for
summary judgment, Administrators’ own errors sowed the seeds of that
decision. Throughout the course of this matter, and on appeal,
Administrators have failed to ensure that this case proceeded expeditiously
through the system. As such, the trial court did not abuse its discretion in
omitting Administrators’ unsigned expert report from consideration.
Cooper, supra; Kurian, supra. The court correctly analyzed the motion
for summary judgment, and concluded that Administrators could not
establish a prima facie case absent expert testimony. Hence, Pringle was
entitled to summary judgment and Administrators are not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2017
_______________________
(Footnote Continued)
record.”). Furthermore, nothing in the record indicates that a signed expert
report was presented to the trial court, and even if Administrators had
attempted to remedy their error following the court’s grant of summary
judgment in favor of Pringle, the court could not have considered the report.
See Wolloch v. Aiken, 815 A.2d 594 (Pa. 2002).
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