J-A06035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS WISNIEWSKI                                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

JAMES F. FROMMER, JR., D.O., ANDREW
J. DANCHA, D.O., AND CORRECT CARE
SOLUTIONS, LLC

                            Appellees                No. 1495 MDA 2015


               Appeal from the Order Entered September 1, 2015
              In the Court of Common Pleas of Huntingdon County
                    Civil Division at No: CP-31-CV-1143-2015


BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

MEMORANDUM BY STABILE, J.:                             FILED JUNE 16, 2016

       Appellant Thomas Wisniewski appeals from the September 1, 2015

order entered in the Court of Common Pleas of Huntingdon County (“trial

court”), which dissolved an injunction sought by Appellant against James F.

Frommer, Jr., D.O., Andrew J. Dancha, D.O., and Correct Care Solutions,

LLC (individually “Dr. Frommer”, “Dr. Dancha,” and “Correct Care,” and

collectively “Appellees”). Upon review, we vacate and remand.

       On August 17, 2015, Appellant filed a complaint against Appellees,

claiming a violation of Article I, Section 13 of the Pennsylvania Constitution,1

____________________________________________


1
  Article I, Section 13 provides that “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel punishments inflicted.” Pa. CONST.
art. I, § 13.
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and seeking emergency injunctive relief.     Appellant alleged that he was a

prisoner in the custody of Pennsylvania Department of Corrections and

housed at the State Correctional Institution at Smithfield.        Appellant’s

Complaint, 8/17/15, at ¶ 4.      Appellant alleged that he was a disabled

veteran because of an injury he sustained to his back. Id. at ¶ 9. According

to Appellant, the injury was further aggravated because of his post-military

service as a bricklayer.   Id. at ¶ 10.   Appellant alleged that he ultimately

became addicted to methamphetamine and, in a “drug-induced stupor,”

ended up committing a murder for which he was sentenced to life

imprisonment.    Id. at ¶ 11.     While in prison, Appellant was receiving

treatment for the back injury. Id. at ¶ 12-13. Appellant alleged that he was

prescribed two non-opioid medications—Tramadol at 400 mg/per day and

high-dose Motrin at 800 mg/per day—to treat the spinal pain and to “enable

him to walk.” Id. at ¶ 15. Appellant alleged that the two medications were

discontinued abruptly on August 4, 2015.            According to Appellant,

Dr. Dancha “issued an order whose effect was to stop dispensing any

medication for management of chronic pain.”        Id. at ¶ 18.   As a result,

Appellant alleged that

      [he] now experiences sharp pain in his neck and back, radiating
      out into the left arm and left leg. This makes it difficult for him
      sleep and to walk. With limited mobility, [Appellant] is deprived
      of access to a number of activities and services at the prison that
      he formerly participated in.

Id. at ¶ 19. Appellant also alleged that his “need for pain medication is well

documented in his prison medical records and in the medical records


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maintained by outside specialists who have treated and evaluated him from

time to time.” Id. at ¶ 20. Finally, Appellant alleged that he had no other

means of accessing the required pain medication and that the low-dose

Tylenol and Motrin available in the prison commissary were inadequate and

ineffective to treat his pain.    Id. at ¶ 22.      Based on the foregoing

allegations, Appellant requested that the trial court enjoin Appellees from

denying him the prescribed pain medication.

      The trial court scheduled a hearing over which Senior Judge, Stewart

L. Kurtz, presided and at which Appellant testified. Following the hearing, on

August 21, 2015 Judge Stewart issued an order enjoining Appellees from

refusing to provide Appellant with the two non-opioid medications that he

had been receiving since 2003. See Trial Court Order, 8/21/15.

      On August 26, 2015, Appellees filed a motion to dissolve the

injunction, claiming that it contravened “the specific plan of care which

Dr. Frommer was attempting to implement for [Appellant],” and constrained

“Dr. Frommer’s ability to exercise his best medical judgment in the care of

[Appellant].” Appellees’ Motion, 8/26/15, at ¶ 7. On the same day, the trial

court scheduled a hearing on the motion for September 1, 2015. On August

27, 2015, Appellant moved for a continuance, claiming inter alia:

      13. Medical records, expert witnesses, and other witnesses are
      needed. They would be needed for any hearing on the [m]otion
      to [d]issolve[.]

      14. [Appellant] requested prison medical records on August 24,
      2015, and may need outside records as well.



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Appellant’s Motion for Continuance, 8/27/15, at ¶ 13-14 (emphasis added).

Following Appellees’ response, the trial court denied Appellant’s motion for a

continuance on August 27, 2015.

      President Judge, George N. Zanic, presided over the September 1,

2015 hearing, following which President Judge Zanic granted Appellees’

motion to dissolve the August 21, 2015 injunction.             Appellant timely

appealed to this Court.   Following Appellant’s filing of a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, the trial court issued a

Pa.R.A.P. 1925(a) opinion.    To bolster its dissolution of the injunction, the

trial court concluded, inter alia, that Appellant failed to present any medical

testimony to rebut the testimony of Dr. Frommer.           Trial Court Opinion,

10/16/15 at 5-6.

      On appeal, Appellant raises seven issues for our review.

      1. Does the [c]omplaint allege a legally sufficient cause of
         action?

      2. Did [Appellant] show that he is likely to succeed on the
         merits?

      3. Did the trial court act arbitrarily by first denying [Appellant’s]
         request for time to gather medical records and conduct expert
         analysis, and then basing its decision on the dearth of expert
         medical testimony favoring [Appellant]?

      4. Did the trial court rely on an inaccurate finding that
         [Appellant] had only one “treating physician?”

      5. Did the trial court improperly admit the opinion testimony of a
         defendant physician without qualifying him as an expert
         under Pa.R.E. 702?

      6. Was it unreasonable for the trial court to credit only the
         testimony of defendant physician about the appropriateness
         of the treatment that he himself provided?


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J-A06035-16


      7. Did the president judge abuse his discretion when he
         dissolved a preliminary injunction issued eleven days earlier
         on the same facts by the senior judge after notice and
         hearing?

Appellant’s Brief at 3-4.

      Preliminarily, we note that we have jurisdiction over this appeal

pursuant to Pa.R.A.P. 311(a)(4).     Rule 311(a)(4), relating to interlocutory

appeals as of right, provides in relevant part:

      a) General Rule. An appeal may be taken as of right and
      without reference to Pa.R.A.P. 341(c) from:

       ....

      (4) Injunctions. An order that grants or denies, modifies or
      refuses to modify, continues or refuses to continue, or dissolves
      or refuses to dissolve an injunction unless the order was
      entered:

         (i) Pursuant to 23 Pa.C.S. §§ 3323(f), 3505(a); or

         (ii) After a trial but before entry of the final order. Such
         order is immediately appealable, however, if the order
         enjoins conduct previously permitted or mandated or
         permits or mandates conduct not previously mandated or
         permitted, and is effective before entry of the final order.

Pa.R.A.P. 311(a)(4) (emphasis added). As noted, Appellant here appealed

the trial court’s September 1, 2015 order dissolving the August 21, 2015

injunction.

      Because it is dispositive, we first address Appellant’s third issue on

appeal, which we construe as challenging the trial court’s denial of his

August 27, 2015 motion for a continuance. Appellant argues that the trial

court abused its discretion in refusing to grant his continuance motion, which

would have postponed the September 1, 2015 hearing (on Appellees’ motion




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to dissolve the injunction) to allow Appellant the necessary time to secure

medical records and expert witnesses.

      It is settled that the grant or denial of a continuance is a matter within

the sound discretion of the trial court, which will not be overturned unless

the court abused its discretion or committed an error of law. An abuse of

discretion is not a mere error in judgment, but, rather, a misapplication of

law, manifest unreasonableness, or the result of bias, ill-will, partiality or

prejudice. First Lehigh Bank v. Haviland Grille, Inc., 704 A.2d 135, 139-

40 (Pa. Super. 1997).

      As mentioned, Appellant sought a continuance of the September 1,

2015 dissolution hearing to review and present medical records and secure

medical testimony in support of maintaining the August 21, 2015 injunction.

Even though the trial court denied Appellant’s continuance motion, it

nonetheless dissolved the injunction in part on the grounds that Appellant

failed to provide medical testimony in support of the injunction. Given the

fact that the trial court deemed medical testimony to be relevant and

important, we agree with Appellant that the trial court’s decision to deny his

motion for a continuance was manifestly unreasonable and, therefore,

constituted an abuse of discretion.     Appellant was given less than three

business days to retrieve his medical records and secure an expert witness.

      In sum, because medical records and expert medical testimony are

necessary sub judice, we vacate the trial court’s order dissolving the

injunction, remand the matter to the trial court with instruction to grant

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J-A06035-16



Appellant an opportunity to gather the required medical records and medical

testimony, and reschedule and conduct a new hearing on Appellees’ motion

to dissolve the August 21, 2015 injunction.2

       Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2016




____________________________________________


2
 Based on the outcome, we need not address Appellant’s remaining issues
on appeal.



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