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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DENISE MURRAY, INDIVIDUALLY AND AS IN THE SUPERIOR COURT OF
EXECUTRIX OF THE ESTATE OF ROBERT PENNSYLVANIA
MURRAY, SR. DECEASED
Appellant
v.
THOMAS JEFFERSON UNIVERSITY
HOSPITALS, INC., THOMAS JEFFERSON
UNIVERSITY, KIMMEL CANCER CENTER,
AND EDITH MITCHELL, M.D., FACP,
Appellees
APPEAL OF: DENISE MURRAY No. 2617 EDA 2016
Appeal from the Order July 5, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): June Term, 2014 No. 140600327
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 04, 2017
Appellant, Denise Murray, appeals from the order entered on July 5,
2016, which granted the motion for summary judgment filed by Thomas
Jefferson University Hospitals, Inc., Thomas Jefferson University, Kimmel
Cancer Center, and Edith Mitchell, M.D., FACP (hereinafter "the
Defendants"). We affirm.
The trial court ably explained the underlying facts of this case:
Appellant [] brought a medical negligence case individually
and on behalf of her husband's estate after his prostate
cancer, thought to be in remission, came back and he
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passed away. [Appellant] sued the hospital and cancer
center where her husband, Robert Murray, received
treatment, and his primary doctor, alleging that he was not
properly treated because no one discovered or informed
them that his cancer had returned. . . .
[According to Appellant's complaint,] Mr. Murray had
prostate cancer and Edith Mitchell, M.D. was his treating
physician and oncologist. Mr. Murray's cancer went into
remission. Sometime later, Mr. Murray's cancer returned
and metastasized, unbeknownst to the Murrays. Mr. Murray
passed away on April 1, 2012. [Appellant] sued the
[Defendants] and alleged that [they] failed to properly care
for her husband[; specifically, Appellant claimed that the
Defendants] should have realized that the cancer had
returned and notified Mr. Murray. [Appellant] also alleged
that Dr. Mitchell was away from her medical practice due to
personal reasons and unavailable to treat Mr. Murray during
that time. [Appellant's] complaint did not provide dates to
establish a time frame for when Mr. Murray was first
diagnosed, when Dr. Mitchell began treating him, how long
Dr. Mitchell was absent from her practice, or how long Mr.
Murray's cancer was in remission.
The Defendants filed a motion for summary judgment on
May 25, 2016, arguing that due to [Appellant's] counsel's
failure to furnish expert reports, [Appellant] could not prove
her case. Pennsylvania law requires expert reports in
medical professional negligence cases. [Appellant's]
counsel never filed a response to the motion for summary
judgment, nor did he file a motion to extend his time to
answer the motion for summary judgment. [The trial] court
granted the motion for summary judgment on July [5],
2016 as unopposed.
Trial Court Opinion, 9/28/16, at 1-3 (some internal citations and
capitalization omitted).
On August 4, 2016 - two days before the trial court lost jurisdiction to
reconsider its final order under Pa.C.S.A. § 5505 (allowing 30 days for the
trial court to reconsider an order) - Appellant filed a motion for
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reconsideration with the trial court. Within the reconsideration motion,
Appellant's counsel claimed that, on June 26, 2016, he had sent an e-mail to
the trial judge's law clerk, which explained that he was unable to produce an
expert report in the case because the Defendants were "stone walling" him.
Motion for Reconsideration, 8/4/16, at Exhibit "0." Further, attached to the
August 4, 2016 motion for reconsideration was, finally, an expert report in
the case. Id. at Exhibit "C."
The trial court did not expressly grant reconsideration of its July 5,
2016 order and, thus, the July 5, 2016 order granting summary judgment in
favor of the Defendants became final and the current appeal is now before
this Court. See Pa.R.A.P. 1701(b)(3). Appellant numbers two claims on
appeal:
1. When it granted summary judgment, did the [trial] court
erroneously fail to consider arguments made in a letter brief
e -mailed to it and a discovery motion immediately filed
thereafter?
2. Even if [Appellant's] counsel did not "respond" to the
[D]efendants' motion, did the [trial] court abuse its
discretion by granting summary judgment?
Appellant's Brief at 6.
This Court has held:
A reviewing court may disturb the order of the trial court
only where it is established that the court committed an
error of law or abused its discretion. As with all questions
of law, our review is plenary.
In evaluating the trial court's decision to enter summary
judgment, we focus on the legal standard articulated in the
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summary judgment rule. Pa.R.C.P. 1035.2. The rule states
that where there is no genuine issue of material fact and
the moving party is entitled to relief as a matter of law,
summary judgment may be entered. Where the
non-moving party bears the burden of proof on an issue, he
may not merely rely on his pleadings or answers in order to
survive summary judgment. Failure of a non[-]moving
party to adduce sufficient evidence on an issue essential to
his case and on which it bears the burden of proof
establishes the entitlement of the moving party to judgment
as a matter of law. Lastly, we will 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.
Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (some internal
citations omitted), quoting, Murphy v. Duquesne Univ. of the Holy
Ghost, 777 A.2d 418, 429 (Pa. 2001).
In relevant part, Pennsylvania Rule of Civil Procedure 1035.3 states:
(a) Except as provided in subdivision (e), 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 identifying
(1) one or more issues of fact arising from evidence in
the record controverting the evidence cited in support of
the motion or from a challenge to the credibility of one
or more witnesses testifying in support of the motion, or
(2) evidence in the record establishing the facts
essential to the cause of action or defense which the
motion cites as not having been produced.
(b) 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.
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(d) Summary judgment may be entered against a
party who does not respond.
(e)(1) Nothing in this rule is intended to prohibit a court, at
any time prior to trial, from ruling upon a motion for
summary judgment without written responses or briefs if no
party is prejudiced. A party is prejudiced if he or she is not
given a full and fair opportunity to supplement the record
and to oppose the motion.
(2) A court granting a motion under subdivision (e)(1)
shall state the reasons for its decision in a written
opinion or on the record.
Pa.R.C.P. 1035.3 (emphasis added).
First, Appellant claims that the trial court erred when it concluded that
she did not respond to the Defendants' motion for summary judgment.
According to Appellant, she responded to the Defendants' summary
judgment motion when her counsel e -mailed the trial judge's law clerk "a
letter setting forth the reasons why [counsel] could not present evidence
essential to justify opposition to the motion." Appellant's Brief at 19
(internal quotations omitted). Appellant claims this e-mail constitutes a
proper "response" under Rule 1035.3 or, in the alternative, the trial court
should have forgiven the procedural error, in accordance with Pennsylvania
Rule of Civil Procedure 126. Id.
Initially, Appellant's claim that her counsel's e-mail constitutes a
proper response under Rule 1035.3 immediately fails, as Rule 1035.3 plainly
requires that a response to a summary judgment motion be "filed."
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
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thirty days after service of the motion") (emphasis added). Appellant's
ex parte e-mail to an individual who Appellant claims to be the trial judge's
law clerk does not constitute a "filing." See Pa.R.C.P. 205.1 - 205.5
(concerning "filing" of legal papers and noting that "filing" contemplates
delivery to the prothonotary).
Further, Appellant's claim that the trial court should have relied upon
Pennsylvania Rule of Civil Procedure 126 and "disregarded" her "procedural"
error of failing to "file" the response is meritless. See Pa.R.C.P. 126 ("[t]he
rules [of civil procedure] shall be liberally construed to secure the just,
speedy and inexpensive determination of every action or proceeding to
which they are applicable. The court at every stage of any such action or
proceeding may disregard any error or defect of procedure which does not
affect the substantial rights of the parties"). At the outset, the trial judge
never acknowledged that either she or her law clerk received Appellant's ex
parte e-mail. See Trial Court Opinion, 9/28/16, at 1-7. Indeed, the trial
court never acknowledged that the e-mail attached to Appellant's motion for
reconsideration was even addressed to the judge's law clerk. See id. Thus,
Appellant's claim that the ex parte e-mail should suffice as a "response"
under Rules 1035.3 and 126 simply fails, as the trial court apparently did not
receive Appellant's e-mail and there is no way for this Court to confirm that
Appellant even e -mailed the trial judge's law clerk.
Appellant also claims that the trial court should have concluded that a
"motion for sanctions," that she filed on June 30, 2016, constitutes a proper
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"response" to the summary judgment motion. Appellant's Brief at 26-27.
This claim, too, is meritless.
Within Appellant's completely separate "motion for sanctions,"
Appellant requested that the trial court sanction the Defendants for "failure
to comply with the [trial court's discovery] orders of December[] 30, 2015
and March 22, 2016." Appellant's Motion for Sanctions, 6/30/16, at
Proposed Order (some internal capitalization omitted). Specifically,
Appellant requested that the trial court enter an order:
preclud[ing the Defendants] from offering any evidence at
the time of trial against [Appellant] for failure to comply
with [the trial] court's previous orders of December [30],
2015 and March 22, 2016 providing [Appellant] with any/all
materials stated in her Request for Production of Documents
and Supplemental Request for Production of Documents in a
timely manner so as to prejudice [Appellant] in taking the
deposition of Defendant, Dr. Edith Mitchell and for
withholding evidence and/or destroying evidence that is
essential to the claims alleged in [Appellant's] complaint.
Id. (some internal capitalization omitted).
Appellant now claims that the trial court should have considered her
motion for sanctions to be a proper response to the Defendants' motion for
summary judgment. This claim fails because: 1) Appellant's separate
motion did not respond to the Defendants' summary judgment motion, and
2) Appellant's "motion for sanctions" constituted an entirely separate motion
that required its own procedure for disposition.
Finally, Appellant claims that the trial court erred in granting the
Defendants' summary judgment motion because the relevant pleadings had
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not closed and because discovery relevant to the motion had not completed.
Appellant's Brief at 28-30. As the trial court explained, Appellant's
arguments are meritless:
Contrary to [Appellant's] arguments . . , the relevant
.
pleadings were closed prior to the Defendants [submission
of] their motion for summary judgment. [Appellant] filed a
third amended complaint on July 6, 2015 and the
Defendants answered the third amended complaint on
August 23, 2015. Counsel for [Appellant] then filed a fourth
amended complaint without leave of court and without
consent of the adverse parties, in violation of Pennsylvania
Rule of Civil Procedure 1033. [The trial] court struck the
fourth amended complaint on November 9, 2015 and stated
that the third amended complaint would remain in effect.
The [trial] court also stated that "[Appellant] is hereby
precluded from filing any further amended complaints
absent leave of court or filed consent of the adverse party."
[Appellant's] counsel then filed a miscellaneous motion
seeking [trial] court approval to file a fourth amended
complaint, but the motion was cancelled out without being
decided due to a court administrative error. Thus,
[Appellant] was never granted leave of court to file another
complaint and the third amended complaint was answered,
closing the pleadings. Significantly, [Appellant's] proposed
amendment simply attempted to add counts back into the
complaint that [the trial] court had stricken earlier in
response to unopposed preliminary objections. .
[Further, when the Defendants filed their summary
judgment motion, discovery relevant to the motion had
completed. The trial] court gave [Appellant's] counsel
repeated extensions to provide the necessary expert reports
but they were not provided. [Appellant] was originally
given an expert report deadline of February 1, 2016. On
December 29, 2015, [the trial] court granted a 60 -day
extension of [Appellant's] expert report deadline. On March
22, 2016, [the trial] court extended [Appellant's] expert
report deadline an additional 30 days, giving a final deadline
of May 2, 2016. [Appellant's] counsel failed to submit
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expert reports by the final extended deadline or by the time
[the trial] court granted summary judgment. [Appellant's]
counsel also did not ask the [trial] court for an additional
extension to submit an expert report after the Defendants
filed their motion for summary judgment.
Despite [Appellant's] counsel's repeated failures to comply
with discovery, which resulted in four orders to comply, he
alleged he could not produce a timely doctor's report
because the Defendants "willfully withheld evidence." This
argument is unpersuasive. [Appellant's] counsel had
already failed to submit an expert report 60 days after his
twice -extended deadline had passed. [Appellant's] counsel
also failed to follow the proper procedures for petitioning
[the trial] court to compel the allegedly missing discovery in
a timely fashion. Finally, [Appellant's] counsel failed to
respond to the motion for summary judgment as the law
requires.
Trial Court Opinion, 9/28/16, at 3-4 and 5-6 (internal citations and some
internal capitalization omitted).
We agree with the above analysis and conclude that the relevant
pleadings and discovery in this matter were closed prior to the filing of the
Defendants' summary judgment motion and that the trial court did not err
when it granted the Defendants' motion for summary judgment.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Jo'seph D. Seletyn,1
Es
Prothonotary
Date: 4/4/2017
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