J-A33026-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ANITA RICHARDSON, AS ASSIGNEE           :   IN THE SUPERIOR COURT OF
OF CHESTNUT HILL HOSPITAL AND           :          PENNSYLVANIA
HEALTH SYSTEM                           :
                                        :
                       Appellee         :
                                        :
                  v.                    :
                                        :
JOBY KOLSUN, D.O.                       :
                                        :
                       Appellant        : No. 261 EDA 2014


           Appeal from the Judgment Entered December 11, 2013
            in the Court of Common Pleas of Philadelphia County,
             Civil Division at No(s): No. 005041 Jan. Term 2011

BEFORE: LAZARUS, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED FEBRUARY 09, 2015

      Joby Kolsun, D.O. (Kolsun) appeals from the judgment entered against

him and in favor of Anita Richardson, as assignee of Chestnut Hill Hospital

and Health System (Chestnut Hill).     Specifically, Kolsun requests that this

Court reverse the order which denied his motion for summary judgment.

After careful review, we affirm.

      The trial court set forth the following summary of this case.

      On September 16, 2008, [Richardson] in her individual capacity
      and as Administratrix of the Estate of Nathaniel Summers,
      Deceased, commenced the underlying wrongful death litigation
      by filing a complaint against Chestnut Hill Hospital, Richard
      Shoemaker, M.D., and various other individuals that
      [Richardson] alleged were agents of Chestnut Hill Hospital. In
      her complaint, [Richardson] argued that the decedent died on
      October 31, 2006 as a result of negligent medical care received
      in the emergency room at Chestnut Hill Hospital on October 29


* Retired Senior Judge assigned to the Superior Court.
J-A33026-14


     and 31, 2006. The decedent was evaluated in the emergency
     room by [Kolsun] on October 29, 2006. Decedent was also
     evaluated by Richard Shoemaker, M.D., in the emergency room
     on October 31, 2006. Although Dr. Kolsun clearly was the
     emergency room physician who treated [decedent] on October
     29, 2006, he was not named as a defendant in the underlying
     wrongful death litigation. However, the complaint in that action
     alleged that Dr. Kolsun was an ostensible agent of Chestnut Hill
     Hospital, such that Chestnut Hill Hospital was liable for the
     negligent acts or omission of Dr. Kolsun under theories of
     agency, master-servant, respondeat superior, and/or right of
     control.

            During discovery in the wrongful death medical malpractice
     action, [Richardson] produced an expert report authored by
     Edward Monico, M.D., an expert in emergency medicine. In his
     report, Dr. Monico was critical of the care rendered by Dr. Kolsun
     on October 29th and the care rendered by Dr. Shoemaker on
     October 31st. [Richardson] also produced an expert report from
     Marvin Corman, M.D., that was critical of various other agents of
     Chestnut Hill Hospital who provided care to the decedent.
     [Richardson’s] expert, Dr. Corman, aside from being critical of
     Dr. Kolsun, was also critical of Dr. Shoemaker for his role in the
     October 31, 2006 care as well as Nurse Claire Zakrzewski, the
     emergency room nurse on October 31, 2006, for her electronic
     record keeping. Further, Dr. Corman was ciritcal of all of the
     medical providers for not being aware of [decedent’s] history of
     prior small bowel obstruction. Finally, Dr. Corman was critical of
     the surgeon and surgical resident, Steven Myrick, M.D., and
     Tania Brice, M.D., who attended to [decedent] on October 31,
     2006, for failing to pursue early surgical intervention.

            During the underlying trial, [Chestnut Hill Hospital and
     Richard Shoemaker, M.D.] agreed to pay Richardson a three
     million dollar settlement. As part of the settlement, 2.1 million
     dollars was paid by Chestnut Hill Hospital, $400,000.00 was paid
     by Dr. Shoemaker and $500,000.00 was paid by the Medical
     Care Availability and Reduction of Error [(MCARE)] Fund. In
     addition, Chestnut Hill Hospital assigned [Richardson] its right to
     claim common law indemnification from Dr. Kolsun. Chestnut
     Hill Hospital’s settlement of the underlying matter was a global
     settlement that settled all claims based on vicarious liability in
     connection with the underlying wrongful death litigation.



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J-A33026-14


Trial Court Opinion, 7/22/2014, at 1-3.

        On    February   4,   2011,   Richardson   instituted    an   action   for

indemnification against Kolsun. After pleadings were closed, Kolsun moved

for summary judgment. The trial court denied that motion on June 3, 2013.

On June 18, 2013, at the request of Kolsun, the trial court added language

pursuant to 42 Pa.C.S. § 702(b)1 to the order so that Kolsun could request

to file an interlocutory appeal by permission pursuant to Pa.R.A.P. 1311(b).

On July 12, 2013, this Court denied Kolsun’s petition for permission to

appeal.      On December 11, 2013, In order to facilitate the entry of a final

order such that this issue could be reviewed, the parties agreed to a

stipulated judgment in favor of Richardson and against Kolsun for $500,000,

the entire amount of coverage available. Kolsun timely filed a notice of

appeal.       The trial court did not order a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925, but did file an opinion.

        On appeal, Kolsun sets forth one issue for our review.



1
    The statute provides:

        When a court or other government unit, in making an
        interlocutory order in a matter in which its final order would be
        within the jurisdiction of an appellate court, shall be of the
        opinion that such order involves a controlling question of law as
        to which there is substantial ground for difference of opinion and
        that an immediate appeal from the order may materially
        advance the ultimate termination of the matter, it shall so state
        in such order.

42 Pa.C.S. § 702(b).


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      Whether the [trial] court committed an abuse of discretion
      and/or an error of law when it denied [Kolsun’s] Motion for
      Summary Judgment which argued there was not a proper
      indemnity action against [Kolsun] under Pennsylvania law but
      rather an attempt by [Richardson] to circumvent the statute of
      limitations after failing to name [Kolsun] as a defendant in the
      original medical malpractice matter?

Dr. Kolsun’s Brief at 6.

      “Our scope of review of a trial court’s order granting or denying

summary judgment is plenary, and our standard of review is clear: the trial

court’s order will be reversed only where it is established that the court

committed an error of law or abused its discretion.” Pappas v. Asbel, 768

A.2d 1089, 1095 (Pa. 2001) (citations omitted).

      We 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.
      Only where there is no genuine issue as to any material fact and
      it is clear that the moving party is entitled to a judgment as a
      matter of law will summary judgment be entered.

      Motions for summary judgment necessarily and directly implicate
      the plaintiff’s proof of the elements of his cause of action....
      Thus, a record that supports summary judgment will either (1)
      show the material facts are undisputed or (2) contain insufficient
      evidence of facts to make out a prima facie cause of action or
      defense and, therefore, there is no issue to be submitted to the
      [fact-finder]. Upon appellate review, we are not bound by the
      trial court’s conclusions of law, but may reach our own
      conclusions. The appellate Court may disturb the trial court’s
      order only upon an error of law or an abuse of discretion.

Stein v. Magarity, 102 A.3d 1010, 1013 (Pa. Super. 2014) (quoting

DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 585–86 (Pa. Super.

2013) (citations and quotation marks omitted)).



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J-A33026-14


      Kolsun first contends that because Chestnut Hill paid the settlement as

part of a direct claim against it, as well as for its vicarious liability with

respect to Dr. Shoemaker and other agents, it was not entitled to indemnity

as a matter of law. Kolsun’s Brief at 31. In other words, Kolsun argues that

Chestnut Hill had no right of indemnity to assign where it paid a settlement

on behalf of itself and other parties, not just on behalf of Dr. Kolsun.

      We set forth principles of Pennsylvania law with respect to vicarious

liability and indemnity.

      Our Supreme Court noted the standards for common law
      indemnity in Builders Supply Co. v. McCabe, 366 Pa. 322, 77
      A.2d 368 (1951):

            The right of indemnity rests upon a difference
            between the primary and the secondary liability of
            two persons each of whom is made responsible by
            the law to an injured party. It is a right which enures
            to a person who, without active fault on his own
            part, has been compelled, by reason of some legal
            obligation, to pay damages occasioned by the initial
            negligence of another, and for which he himself is
            only secondarily liable.

      Id. at 370 (emphasis removed). The proper inquiry for an
      indemnity claim is whether the party seeking indemnity had any
      part in causing the injury. A right of contribution, on the other
      hand, exists when a joint tortfeasor has discharged the common
      liability or paid more than his pro rata share, and the joint
      tortfeasor’s liability to the injured persons has been extinguished
      by the settlement.

            Indemnity and contribution are available against any
      defendant, even one the original plaintiff did not sue. An original
      defendant may pay or settle the claim voluntarily and recover
      against the person from whom he is entitled to indemnity,
      provided he has given proper notice and can establish that the
      settlement was fair and reasonable. The right of contribution


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J-A33026-14


      [and indemnity] may be asserted during the original proceeding
      ... via joinder of the additional defendants, see Pa.R.C.P. 2252,
      or it may be pursued in a separate action by an original
      defendant who has previously been held liable to the original
      plaintiff.

MIIX Ins. Co. v. Epstein, 937 A.2d 469, 472-73 (Pa. Super. 2007) (some

citations and quotations omitted).

      Both Kolsun and Richardson acknowledge that there is no Pennsylvania

case law directly on point.2 Richardson posits the question: “Why should the

law deprive a principal of its indemnity rights when two agents acted

negligently?” Richardson’s Brief at 18. To the extent that Kolsun is arguing

that where an employer pays on behalf of more than one employee, it could

never be entitled to indemnity, that argument simply makes no legal sense.

The law is clear that “[w]here an employer is not negligent by his own act, it

is well recognized that his liability to the injured party is only secondary to

that of the negligent employee. The employer therefore is entitled to

indemnity for any payment of damages he is compelled to make from the

employee who is primarily liable.” Ragan v. Steen, 331 A.2d 724, 730 (Pa.

Super. 1974).

      Here, where the employer may have paid on claims of vicarious

liability on behalf of several employees, Kolsun could have tried the case to

determine what percentage would be apportioned to each party for whom

the employer paid. Rather, Kolsun stipulated that if he was found liable for

2
  Furthermore, our review of case law from other states does not reveal any
case on point.


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J-A33026-14


indemnification, a judgment for his insurance policy, $500,000, would be

entered. Thus, there is no case for apportionment left to try.

      Next, Kolsun argues that indemnity is not available to a party that has

made a voluntary payment, ie. settled, the case. Kolsun’s Brief at 19-23.

This claim was not raised in Kolsun’s motion for summary judgment; as such

it may not be raised on appeal. “The Superior Court, as an error-correcting

court, may not purport to reverse a trial court’s order where the only basis

for a finding of error is a claim that the responsible party never gave the trial

court an opportunity to consider.” Harber Philadelphia Ctr. City Office

Ltd. v. LPCI Ltd. P'ship, 764 A.2d 1100, 1105 (Pa. Super. 2000).

      Finally, Kolsun argues that permitting Richardson to receive money

from Kolsun would amount to a “double recovery” and would unjustly enrich

Richardson. Kolsun’s Brief at 31-33.         Specifically, Kolsun argues that

Richardson is receiving a “windfall.” Id. at 32. There is an inkling of truth to

this argument under the circumstances of this case.          However, the law

provides that Chestnut Hill can be reimbursed for payments made on behalf

of Kolsun and can also assign that cause of action to Richardson. As such,

there is no legal basis to overturn it.

      Having concluded that the trial court properly denied Kolsun’s motion

for summary judgment, we affirm the order of the trial court.

      Judgment affirmed.




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J-A33026-14

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/9/2015




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