Case Information

*1 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 DENISE MURRAY, INDIVIDUALLY AND AS IN THE SUPERIOR COURT OF EXECUTRIX OF THE ESTATE OF ROBERT PENNSYLVANIA MURRAY, SR.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 No. EDA 2016 APPEAL OF: DENISE MURRAY Appeal from the Order July 2016 In the Court of Common Pleas Philadelphia County Civil Division at No(s): June Term, No. 140600327 BEFORE: OLSON, SOLANO and MUSMANNO, JJ. FILED APRIL 04, 2017

MEMORANDUM BY OLSON, J.: Appellant, Denise Murray, appeals entered 5, 2016, which granted the Thomas Jefferson University Hospitals, Inc., Thomas Jefferson University, Kimmel (hereinafter "the Cancer Center, Edith Mitchell, M.D., FACP Defendants"). We affirm. trial court ably explained the underlying facts of this case: [] brought medical negligence case individually

and on behalf of husband's estate after his prostate cancer, thought remission, came back and he *2 [Appellant] sued hospital and cancer passed away. center where her husband, Robert Murray, received treatment, and his primary doctor, alleging that he was not properly treated no one discovered or informed them that his cancer returned. . . . complaint,] Mr. Murray had

[According 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 metastasized, unbeknownst Murrays. Mr. Murray [Appellant] sued passed away on April 1, 2012. [Defendants] alleged that [they] failed to properly care for her husband[; specifically, Appellant claimed that Defendants] should have realized that cancer returned notified Mr. Murray. [Appellant] alleged Dr. Mitchell was away from her medical practice due to personal reasons unavailable treat Mr. Murray during time. [Appellant's] complaint did not provide dates to establish time frame for when Mr. Murray was first diagnosed, when Dr. Mitchell began treating him, how long Dr. Mitchell was absent her practice, or how long Mr. Murray's cancer was remission. Defendants filed motion for summary on

May 25, 2016, arguing due counsel's failure furnish expert reports, [Appellant] could not prove case. Pennsylvania requires expert reports [Appellant's] medical professional negligence cases. never filed for summary judgment, nor file motion extend his time to answer the for summary judgment. [The court granted the motion [5], 2016 unopposed.

Trial Court Opinion, 1-3 internal citations (some capitalization omitted).

On August - two days before the trial court lost jurisdiction reconsider final under Pa.C.S.A. § (allowing reconsider order) Appellant *3 reconsideration with the trial court. Within the reconsideration motion, counsel claimed that, on June 26, 2016, he sent e-mail the trial judge's law clerk, which explained was unable produce an expert report the case the Defendants were "stone walling" him. Motion for Reconsideration, at Exhibit "0." Further, attached the August 4, reconsideration was, finally, expert report in case. Id. at Exhibit "C." trial court did not expressly grant reconsideration July 5, and, thus, the order granting summary favor of the Defendants became final current appeal is now before this Court. See Pa.R.A.P. 1701(b)(3). numbers two on appeal:

1. When it granted judgment, did [trial] court erroneously fail consider arguments made letter brief e -mailed it discovery motion immediately filed thereafter?

2. Even if "respond" [trial] court abuse [D]efendants' did its discretion granting summary judgment?

Appellant's Brief 6.

This Court has held:

A reviewing may disturb order of trial court only where it established court committed an error abused its discretion. As with all questions law, our review plenary. In evaluating the court's decision enter summary judgment, we focus legal standard articulated

- 3 - *4 rule. Pa.R.C.P. 1035.2. The rule states where there no genuine issue of material fact the moving party entitled to relief as a matter of law, may be entered. Where summary the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in to survive summary judgment. Failure of non[-]moving party to adduce sufficient evidence on an issue essential his case which it bears the burden of proof establishes the entitlement of the moving party judgment as matter of law. Lastly, we will view the record in light most favorable the non-moving party, and all doubts as the existence of genuine issue of material fact must be resolved against the moving party.

Thompson v. Ginkel, A.3d (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 Civil Procedure 1035.3 states:

(a) Except as provided subdivision (e), the adverse party may not rest upon the mere allegations or denials of the but must file within thirty after service of the motion identifying

(1) one or more issues fact arising evidence in the record controverting the evidence cited support of motion or from challenge the credibility one more witnesses testifying support of the or (2) evidence record establishing facts essential cause of action or defense which cites not having been produced. (b) An adverse party may supplement record or set forth reasons why party cannot present evidence essential to justify opposition any action proposed taken party present such evidence. *5 (d) Summary judgment may be entered against a party who does not respond.

(e)(1) Nothing in this rule is intended prohibit a court, at any time prior trial, ruling upon a motion judgment without written responses or briefs if no party prejudiced. A party prejudiced if or she is not given a full fair opportunity supplement record oppose the motion.

(2) A court granting motion under subdivision (e)(1) shall state the reasons decision written opinion record.

Pa.R.C.P. 1035.3 (emphasis added).

First, claims erred when it concluded that she did not respond to the Defendants' motion judgment. Appellant, she responded the Defendants' summary According when her counsel e -mailed the trial judge's clerk "a letter setting forth reasons why [counsel] could present evidence essential to justify opposition motion." Appellant's Brief 19 (internal quotations omitted). Appellant this e-mail constitutes a proper "response" under Rule 1035.3 or, alternative, court should have forgiven the procedural error, accordance with Pennsylvania Rule Civil Procedure 126. Id.

Initially, claim counsel's e-mail constitutes proper response under 1035.3 immediately fails, Rule 1035.3 plainly requires response summary "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 within *6 thirty after service of the motion") (emphasis added). Appellant's ex parte e-mail individual who Appellant claims be the trial judge's law clerk does constitute "filing." See Pa.R.C.P. 205.1 - 205.5 (concerning "filing" of legal papers and noting that "filing" contemplates delivery prothonotary).

Further, Appellant's claim that trial court should have relied upon Pennsylvania Civil Procedure 126 "disregarded" "procedural" error of failing to "file" meritless. See Pa.R.C.P. ("[t]he rules [of civil procedure] shall liberally construed to secure just, speedy inexpensive determination every action or proceeding which they are applicable. court every stage 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, trial judge never acknowledged that either she or her law clerk received Appellant's ex parte e-mail. See Trial Court Opinion, at 1-7. Indeed, the trial never acknowledged that the e-mail attached Appellant's motion reconsideration was even addressed the judge's law clerk. See id. Thus, claim that the ex parte e-mail should suffice as "response" under Rules 1035.3 simply fails, trial court apparently not receive Appellant's e-mail there no way this Court confirm that Appellant even e -mailed the trial judge's clerk. should have concluded

"motion for sanctions," she June 30, constitutes proper - *7 "response" summary judgment motion. Appellant's Brief 26-27. This claim, too, meritless.

Within Appellant's completely separate "motion for sanctions," Appellant requested that trial court sanction the Defendants for "failure comply with the [trial court's discovery] orders of December[] 30, 2015 March 2016." Appellant's Motion for Sanctions, at internal capitalization omitted). Proposed Order (some Specifically, Appellant requested that the trial court enter order:

preclud[ing the Defendants] from offering any evidence at time trial against [Appellant] for failure comply with [the court's previous orders of December [30], March 22, 2016 providing [Appellant] with any/all materials stated in her Request for Production of Documents Supplemental Request for Production of Documents in timely manner so prejudice [Appellant] taking the for deposition of Defendant, Dr. Edith Mitchell and withholding evidence and/or destroying evidence that is essential to the claims alleged complaint.

Id. (some internal capitalization omitted).

Appellant now claims should have considered her motion for sanctions proper response to the Defendants' motion summary judgment. This claim fails because: 1) Appellant's separate not respond to the Defendants' summary 2) "motion for sanctions" constituted entirely separate motion required own procedure disposition.

Finally, erred granting Defendants' relevant *8 closed discovery relevant to the motion had not completed. Appellant's Brief 28-30. As court explained, Appellant's arguments are meritless:

Contrary to [Appellant's] arguments . , relevant . . were closed prior the Defendants [submission of] their for summary judgment. [Appellant] filed third amended complaint on 6, 2015 Defendants answered third amended complaint on August 23, 2015. Counsel for [Appellant] then filed a fourth amended complaint without leave of court without consent of the adverse parties, violation Pennsylvania Civil Procedure 1033. [The trial] court struck fourth amended complaint November 9, stated third amended complaint would remain effect. The [trial] court stated that "[Appellant] hereby precluded from filing any further amended complaints absent leave of court or filed consent of the adverse party." [Appellant's] then miscellaneous motion seeking [trial] court approval file fourth amended complaint, but the motion was cancelled out without being court administrative error. Thus, decided due [Appellant] was never granted leave of court file another complaint third amended complaint was answered, closing pleadings. Significantly, [Appellant's] proposed amendment simply attempted add counts back into complaint [the trial] court stricken earlier response to unopposed preliminary objections. .

[Further, when their summary Defendants filed discovery relevant completed. trial] court gave [Appellant's] counsel repeated extensions provide the necessary expert reports but they were not provided. [Appellant] was originally given expert report deadline of February 1, 2016. On December 29, 2015, [the trial] court granted 60 -day extension of [Appellant's] expert report deadline. On March 22, 2016, [the extended [Appellant's] expert report deadline additional days, giving final deadline May 2016. counsel failed submit - *9 expert reports final extended deadline by time [the trial] granted summary judgment. [Appellant's] counsel also did not ask [trial] court for an additional extension submit expert report after the Defendants their for summary judgment.

Despite [Appellant's] counsel's repeated failures comply with discovery, which resulted four orders comply, he alleged could not produce timely doctor's report the Defendants "willfully withheld evidence." This argument unpersuasive. [Appellant's] counsel already failed submit expert report after his twice -extended deadline passed. [Appellant's] counsel failed to follow the proper procedures for petitioning [the court to compel the allegedly missing discovery timely fashion. Finally, failed to respond to law requires.

Trial Court Opinion, at 3-4 5-6 (internal citations and some internal capitalization omitted).

We agree with above analysis conclude relevant discovery this matter were closed prior the filing of the Defendants' summary 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