*1 335 hеaring, a remand Accordingly, and no relief is due. although majority appellant’s on addresses issues their meritless, they merits and I appel- concludes would hold sufficiently lant has not appellate demonstrated counsel’s inef- failing fectivеness for to challenge stewardship, trial counsel’s deny would relief on this basis. Therefore, I dissent from analysis my col- learned leagues. joins concurring dissenting CASTILLE this
opinion. 594 A.2d
Marjorie WOLLOCH, Appellee v. M.D., AIKEN, Meltzer, M.D., Keohane, Robert Michelle Richard M.D., Pennsylvania Hospital, and Thomas Jefferson
Hospital, Appellants, Appeal Aiken, of Robert M.D.
Marjorie Wolloch, Appellee v. Aiken, M.D., Meltzer, M.D., Robert Keohane, Michelle Richard M.D., Pennsylvania Hospital, and Thomas Jefferson
Hospital, Appellants, (Three Cases). Appeal of Michelle Meltzer Supreme Pennsylvania. Court of 15,
Argued Oct. 2001. 31,
Decided Dec. 2002. Reargument Feb. Denied *2 Kocher, Starr, Philadelphia, Bryan, Alan H. Ana Kim Marie Aiken, M.D. Robert Plymouh Meeting, P. for Richard B. Keo- Kilcoyne, James hane, M.D. Goldfein, Lynn L. Roseann Knight, Deborah Marie
Fredric Brenner, Philadelphia, for Michelle Meltzer. D. Brophy, Philadelphia,
Michael for Thomas Jefferson University Hosp. Casey, Philadelphia,
Benedict A. Marjorie Wolloch. King, Adrian R. Philadelphia, Pennsylvania Hosp. FLAHERTY, C.J., ZARPALA, CAPPY, Before CASTILLE, NIGRO, SAYLOR, NEWMAN and JJ.
OPINION Chief ZAPPALA.
This appeal involves consideration of violations and sanctions and their interaction procedural rules pertaining
Appellee, Marjorie Wolloch, filed a medical malpractice complaint in against Aiken, Meltzer, Doctors and Keo- hane, and against Thomas Jefferson Univеrsity Hospital and *3 Pennsylvania Hospital. complaint The alleged that, as a result of the doctors’ and hospitals’ recognize failure to her symptoms diagnose and condition, her her treatment for can- cer was improperly delayed, allowing malignant tumor to grow and causing pain increased and suffering, permanent disability, and damages. other Discovery lasted for approxi- mately years. three
At the conclusion of discovery, a case confer- ence was held. The case management order scheduled trial 3, 1998, August for required and identify Wolloch to her medical experts and submit expert reports no later than 2, February 1998. applied Wolloch for granted and was one time, extension of but did not meet the second deadline. Shortly expiration after of deadline, the of each the medical defendants filed a motion for summary judgment alleging that Wolloch could not make out a prima case of medical malpractice without expert reports. April 29, 1998, On the trial granted the motions for summary judgment favor of all five defendants.
Notwithstanding the summary judgments, Wolloch filed ex- pert medical reports May 4, 14, on 30, 1998, and and moved vacate all of five the judgment orders. Beсause the
338 time to act on
trial court did have sufficient Wolloch’s period, during appeal motion to vacate the allowable Wolloch timely Superior May on appeal filed a to the grant the trial court’s of sum- Superior Court reversed mary and for Doctors Aiken and Meltzer remanded proceedings. further appeal
We allowance of to consider one issue: granted Superior opinion conflicts with its subse- whether the Court’s Hospital, v. A.2d quent Miller Sacred Heart deсision Court, opinions of and (Pa.Super.2000), other parties effectively briefed Pa.R.C.P. 1035.2. The Heart and 1035.2. argued both Sacred interpretation first application We will look at the (motion judgment). reads: Rule 1035.2 closed, but such pleadings the relevant within
After delay trial, unreasonably any party may move time as not in whole part a matter law
(1) genuine any is no issue material whenever there necessary to a element of the cause of action fact as by which could be established additional defense or expert report, or
(2) if, completion relevant to the after motion, including expert reports, an ad- production proof who will the burden of at trial has verse bear produce of facts essеntial cause of failed evidence jury require which in a trial would action or defense *4 jury. to to a issues be submitted guid- the following The Comment—1996 includes Explanatory applying ance for the Rule: requirement taken of under
Special should be thе note 1035.2(2) of completion that motion be made after Rule the motion, production discovery including to the of relevant the 1035.2(2) expert reports. prefaced While Rule is with the may any party that a motion the rele- statement file аfter closed, party given the adverse be pleadings vant must to case and will be adequate develop time the the motion completed premature if filed before the adverse has the is discovery purpose relevant the motion. The of rule prior a party to eliminate cases to trial where cannot make discovery out a relevant has been claim defense after completed; the intent is not claims to eliminate meritorious completed. prematurely discovery before relevant has been timing important.... The of the motion is Rule Under 1035.2(2), completion motion of brought the is “after the discovery relevant to the motion.”
New that a provides party may Rule move for summary judgment after the “relevant” pleadings closed and, court, to provide in the within order discretion lower “unreasonably” such as not delay time so the trial. Explanatory The Comment written at the time the instructive, Rule was in 1996 is it revised several addresses foster, features in this involved case. The Rule is intended inhibit, trial purpose the discretion the court. The the is to weed out cases has meritless after not to completed, prema eliminate meritorious claims turely completed. brought bеfore is is motion after completion discovery, timing relevant and the important.
Appellee, plaintiff below, necessary failed to submit reports medical within the time allotted the case But, brief, according order. to Appellеe’s trial practice frequently involves submission of such after This is commonplace requir deadline. an order ing completion discovery by a certain date does not prohibit discovery long after that so trial date as the is not delayed. Appellee argues Thus that Appellants’ motions for immediately after the were an condemns, is, attempt precisely to achieve what the prematurely. argues eliminate her meritorious claim She groundless, engaged her сlaim was not she was process procuring reports necessary case, to establish a prima expected that she to be *5 long as permitted reports to submit the after the so delay the she did not trial. argues Pennsylvania of Civil
Apрellee also that Rule Proce- summary (response judgment) dure to motion for 1035.3 provides: relevant. The Rule
(b) may or set party supplement An adverse record party present cannot why forth the reasons evidence to and justify opposition any to the motion action essential proposed by present to be to such evidence. taken
(c) upon may judgment The court rule obtained, permit depositions affidavits taken or to be be discovery to other as is other be had make such order just. 1035.3(b), (c). Appellee argues expert that
Pa.R.C.P. her accepted have of the supplementation should as 1035.3(b), they rejected record under Pa.R.C.P. of the were late and violation case order. Appellee timely curious did not a argument. This is a file response summary judgment to the motion for supplemented 1035.3(b) reports, though permits with it.1 her Instead, she waited until after had been entered, expert reports such indolent then submitted the fashiоn that had the trial court no time consider them lapse Appellee’s appeal allowable time from before hand, argue Appellants, plain on the other that the words of contemplate such motions for they nothing prеmature filed and that there was about the They they until was motions. contend waited closed, only summary judgment. Appel- then and moved Appellee lants was argue dilatory her search for testimony claim, support her if time, grounds Appellants hаd for a main- further extension sought tain could that she second extension of the so, however, deadline. She failed to do the time complete was moved for before judgment. Sons, (Pa.2002).
1. See Gerrow v. John Royle & agree Appellants’ position. We Whether or not trial *6 practice frequently involves informal or unofficiаl extensions of discovery imposition sanctions, without look suggests, we must at the record of the case to determine discovery complete whether not to establish the timeli- prematurity ness or of a motion for summary judgment under Rule 1035.2. The discоvery record establishes that was com- 1035.2, plete, purposes at the time filed their motions for It per- was therefore proper missible for the trial court summary to enter judgment.
An examination of Miller v. Hospital, Sacred Heart leads thе same conclusion.2 Sacred Heart is on all fours with this It, too, case. was a malpractice against action doctors hospital and a plaintiff wherein the violated discovery dead- granted lines the trial court summary judgment for the defendants. appeal, Superior On analyzed the case pertaining under the rules to summary judgment, not under pertaining the rules to discovery that, It sanctions. held entry summary whether judgment would have been overly violation, harsh as a sanction for а discovery the trial acting court was not on a motion for sanctions. The trial ruling court was on a judgment due to plaintiffs case, failure to establish a prima and the entry proper. was
In reaching
conclusion,
this
the Sacred Heart court dis-
distinguished
LaManna,
cussed and
v.
404 Pa.Su-
Steinfurth
(1991).
per.
Justice NIGRO NIGRO, concurring. reports within the to submit her Appellee As failed and, without such management order allotted in the case time case of medical prima to make out reports, was unable majority that the trial agree I with the malpractice, Appellant’s favor. On properly granted my dissenting opinion hand, the reasons stated the other J-124-2001, Sons, 5 EAP & Royle in Gerrow v. John (Pa.2002), could disagree I WL by attaching untimely report avoided the pursuant to Penn- summary judgment response to her 1035.3(b). sylvania Rule of Civil Procedure