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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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



____________________________________________


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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