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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


APPEAL OF:       DENISE MURRAY                          No. 2617 EDA 2016


                        Appeal from the Order July 5, 2016
             In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): June Term, 2014 No. 140600327


BEFORE:     OLSON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                FILED APRIL 04, 2017

        Appellant, Denise Murray, appeals from the order entered on July 5,

2016, which granted the motion for summary judgment filed by Thomas

Jefferson University Hospitals, Inc., Thomas Jefferson University, Kimmel

Cancer     Center,   and    Edith   Mitchell,   M.D.,   FACP   (hereinafter   "the

Defendants"). We affirm.

        The trial court ably explained the underlying facts of this case:

          Appellant [] brought a medical negligence case individually
          and on behalf of her husband's estate after his prostate
          cancer, thought to be in remission, came back and he
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          passed away.     [Appellant] sued the hospital and cancer
          center where her husband, Robert Murray, received
          treatment, and his primary doctor, alleging that he was not
          properly treated because no one discovered or informed
          them that his cancer had returned.          .   .   .




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

          The Defendants filed a motion for summary judgment on
           May 25, 2016, arguing that due to [Appellant's] counsel's
          failure to furnish expert reports, [Appellant] could not prove
           her case.     Pennsylvania law requires expert reports in
          medical professional negligence cases.            [Appellant's]
          counsel never filed a response to the motion for summary
          judgment, nor did he file a motion to extend his time to
          answer the motion for summary judgment. [The trial] court
          granted the motion for summary judgment on July [5],
          2016 as unopposed.
Trial   Court    Opinion,   9/28/16,     at     1-3       (some   internal   citations   and

capitalization omitted).

        On August 4, 2016    -   two days before the trial court lost jurisdiction to

reconsider its final order under Pa.C.S.A.            §   5505 (allowing 30 days for the

trial   court to   reconsider     an   order)     - Appellant        filed   a   motion for


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reconsideration with the trial court.         Within the reconsideration motion,

Appellant's counsel claimed that, on June 26, 2016, he had sent an e-mail to

the trial judge's law clerk, which explained that he was unable to produce an

expert report in the case because the Defendants were "stone walling" him.

Motion for Reconsideration, 8/4/16, at Exhibit      "0." Further, attached   to the

August 4, 2016 motion for reconsideration was, finally, an expert report in

the case.   Id. at Exhibit "C."
        The trial court did not expressly grant reconsideration of its July 5,

2016 order and, thus, the July 5, 2016 order granting summary judgment in

favor of the Defendants became final and the current appeal        is now    before

this Court.      See Pa.R.A.P. 1701(b)(3).     Appellant numbers two claims on

appeal:

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

          2. Even if  [Appellant's] counsel did not "respond" to the
          [D]efendants' motion, did the [trial] court abuse its
          discretion by granting summary judgment?
Appellant's Brief at 6.

        This Court has held:

          A reviewing court may disturb the order of the     trial court
          only where it is established that the court committed an
          error of law or abused its discretion. As with all questions
          of law, our review is plenary.

          In evaluating the trial court's decision to enter summary
          judgment, we focus on the legal standard articulated in the

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          summary judgment rule. Pa.R.C.P. 1035.2. The rule states
          that where there is no genuine issue of material fact and
          the moving party is entitled to relief as a matter of law,
          summary judgment may be entered.                 Where the
          non-moving party bears the burden of proof on an issue, he
          may not merely rely on his pleadings or answers in order to
          survive summary judgment.        Failure of a non[-]moving
          party to adduce sufficient evidence on an issue essential to
          his case and on which it bears the burden of proof
          establishes the entitlement of the moving party to judgment
          as a matter of law. Lastly, we will 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.

Thompson v. Ginkel, 95 A.3d 900, 904 (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 Rule of Civil Procedure 1035.3 states:

          (a) Except as    provided in subdivision (e), 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 identifying

             (1) one or more issues of fact arising from evidence in
             the record controverting the evidence cited in support of
             the motion or from a challenge to the credibility of one
             or more witnesses testifying in support of the motion, or

              (2) evidence in the record establishing the facts
              essential to the cause of action or defense which the
              motion cites as not having been produced.

          (b) 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.




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          (d) Summary judgment may be entered against                        a
          party who does not respond.
          (e)(1) Nothing in this rule is intended to prohibit a court, at
          any time prior to trial, from ruling upon a motion for
          summary judgment without written responses or briefs if no
          party is prejudiced. A party is prejudiced if he or she is not
          given a full and fair opportunity to supplement the record
          and to oppose the motion.

              (2) A court granting a motion under subdivision (e)(1)
              shall state the reasons for its decision in a written
              opinion or on the record.
Pa.R.C.P. 1035.3 (emphasis added).

        First, Appellant claims that the trial court erred when it concluded that

she did not respond to the Defendants' motion for summary judgment.

According    to Appellant,     she    responded   to the     Defendants'     summary

judgment motion when her counsel           e -mailed   the trial judge's law clerk "a

letter setting forth the reasons why [counsel] could not present evidence

essential to justify opposition to the motion."             Appellant's Brief at 19

(internal quotations omitted).        Appellant claims this e-mail constitutes      a

proper "response" under Rule 1035.3 or, in the alternative, the trial court

should have forgiven the procedural error, in accordance with Pennsylvania

Rule of Civil Procedure 126.    Id.
        Initially, Appellant's claim that her counsel's e-mail constitutes          a

proper response under Rule 1035.3 immediately fails, as Rule 1035.3 plainly

requires that    a   response to      a   summary judgment motion be "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   a   response within

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thirty days after service of the motion")             (emphasis added). Appellant's

ex parte e-mail to an individual who Appellant claims to be the trial judge's

law clerk does not constitute        a   "filing."   See Pa.R.C.P. 205.1     -   205.5

(concerning "filing" of legal papers and noting that "filing" contemplates

delivery to the prothonotary).

        Further, Appellant's claim that the trial court should have relied upon

Pennsylvania Rule of Civil Procedure 126 and "disregarded" her "procedural"

error of failing to "file" the response    is   meritless. See Pa.R.C.P. 126 ("[t]he

rules [of civil procedure] shall be liberally construed to secure the just,

speedy and inexpensive determination of every action or proceeding to

which they are applicable.       The court at every stage of 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, the trial judge

never acknowledged that either she or her law clerk received Appellant's ex

parte e-mail.    See Trial Court Opinion, 9/28/16, at 1-7.          Indeed, the trial

court never acknowledged that the e-mail attached to Appellant's motion for

reconsideration was even addressed to the judge's law clerk. See id. Thus,

Appellant's claim that the ex parte e-mail should suffice as           a   "response"

under Rules 1035.3 and 126 simply fails, as the trial court apparently did not

receive Appellant's e-mail and there is no way for this Court to confirm that

Appellant even   e -mailed   the trial judge's law clerk.

        Appellant also claims that the trial court should have concluded that         a

"motion for sanctions," that she filed on June 30, 2016, constitutes         a   proper

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"response" to the summary judgment motion.                  Appellant's Brief at 26-27.

This claim, too, is meritless.

        Within   Appellant's     completely     separate     "motion      for   sanctions,"

Appellant requested that the trial court sanction the Defendants for "failure

to comply with the [trial court's discovery] orders of December[] 30, 2015

and    March 22, 2016."          Appellant's Motion for Sanctions, 6/30/16, at

Proposed     Order   (some     internal    capitalization     omitted).         Specifically,

Appellant requested that the trial court enter an order:

          preclud[ing the Defendants] from offering any evidence at
          the time of trial against [Appellant] for failure to comply
          with [the trial] court's previous orders of December [30],
          2015 and March 22, 2016 providing [Appellant] with any/all
          materials stated in her Request for Production of Documents
          and Supplemental Request for Production of Documents in a
          timely manner so as to prejudice [Appellant] in taking the
          deposition of Defendant, Dr. Edith Mitchell and for
          withholding evidence and/or destroying evidence that is
          essential to the claims alleged in [Appellant's] complaint.
Id. (some internal capitalization omitted).
        Appellant now claims that the trial court should have considered her

motion for sanctions to be       a   proper response to the Defendants' motion for

summary judgment.         This claim fails because:            1) Appellant's separate

motion did not respond to the Defendants' summary judgment motion, and

2) Appellant's "motion for sanctions" constituted an entirely separate motion

that required its own procedure for disposition.
        Finally, Appellant claims that the trial court erred in granting the

Defendants' summary judgment motion because the relevant pleadings had


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not closed and because discovery relevant to the motion had not completed.

Appellant's Brief at 28-30.     As   the trial court explained, Appellant's

arguments are meritless:

       Contrary to [Appellant's] arguments      .   . , the relevant
                                                        .


       pleadings were closed prior to the Defendants [submission
       of] their motion for summary judgment. [Appellant] filed a
       third amended complaint on July 6, 2015 and the
       Defendants answered the third amended complaint on
       August 23, 2015. Counsel for [Appellant] then filed a fourth
       amended complaint without leave of court and without
       consent of the adverse parties, in violation of Pennsylvania
       Rule of Civil Procedure 1033. [The trial] court struck the
       fourth amended complaint on November 9, 2015 and stated
       that the third amended complaint would remain in effect.
       The [trial] court also stated that "[Appellant] is hereby
       precluded from filing any further amended complaints
       absent leave of court or filed consent of the adverse party."

        [Appellant's] counsel then filed a miscellaneous motion
        seeking [trial] court approval to file a fourth amended
        complaint, but the motion was cancelled out without being
        decided due to a court administrative error.           Thus,
        [Appellant] was never granted leave of court to file another
        complaint and the third amended complaint was answered,
        closing the pleadings. Significantly, [Appellant's] proposed
        amendment simply attempted to add counts back into the
        complaint that [the trial] court had stricken earlier in
        response to unopposed preliminary objections.       .




        [Further, when the Defendants filed their summary
       judgment motion, discovery relevant to the motion had
       completed.     The trial] court gave [Appellant's] counsel
        repeated extensions to provide the necessary expert reports
        but they were not provided.       [Appellant] was originally
       given an expert report deadline of February 1, 2016. On
        December 29, 2015, [the trial] court granted a 60 -day
       extension of [Appellant's] expert report deadline. On March
       22, 2016, [the trial] court extended [Appellant's] expert
        report deadline an additional 30 days, giving a final deadline
       of May 2, 2016.      [Appellant's] counsel failed to submit

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        expert reports by the final extended deadline or by the time
        [the trial] court granted summary judgment. [Appellant's]
        counsel also did not ask the [trial] court for an additional
        extension to submit an expert report after the Defendants
        filed their motion for summary judgment.

        Despite [Appellant's] counsel's repeated failures to comply
        with discovery, which resulted in four orders to comply, he
        alleged he could not produce a timely doctor's report
        because the Defendants "willfully withheld evidence." This
        argument is unpersuasive.          [Appellant's] counsel had
        already failed to submit an expert report 60 days after his
        twice -extended deadline had passed. [Appellant's] counsel
        also failed to follow the proper procedures for petitioning
        [the trial] court to compel the allegedly missing discovery in
        a timely fashion.      Finally, [Appellant's] counsel failed to
        respond to the motion for summary judgment as the law
        requires.
Trial Court Opinion, 9/28/16, at 3-4 and 5-6 (internal citations and some

internal capitalization omitted).

      We agree with the above analysis and conclude that the relevant

pleadings and discovery in this matter were closed prior to the filing of the

Defendants' summary judgment motion and that the trial court did not 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



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