J-A11044-19


                              2020 PA Super 75

KENT GARMAN AND KELLY GARMAN                        IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                          Appellants

                     v.

RICHARD ANGINO, ESQUIRE AND
ANGINO AND ROVNER

                          Appellees                    No. 1079 MDA 2018


                Appeal from the Order entered May 30, 2018
              In the Court of Common Pleas of Dauphin County
                     Civil Division at No: 2014-7513-CV


BEFORE: BOWES, OLSON, and STABILE, JJ.

DISSENTING OPINION BY STABILE, J.:           FILED: MARCH 30, 2020

      The Majority concludes the trial court erred in granting summary

judgment in favor of Appellees.        As the Majority recognizes, our scope of

review of a trial court’s order granting 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.” Majority Opinion at 6 (quoting Kowalski v. TOA PA V, L.P., 206

A.3d 1148, 1156 (Pa. Super. 2019) (alterations omitted)). In this instance, I

find neither error of law nor abuse of discretion in the trial court’s grant of

summary judgment. Therefore, I respectfully dissent.

      Here, we have the situation in which the Garmans obtained a judgment

in Garman I for damages resulting from the negligent acts of Dr. Raschid and
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Chambersburg Hospital during Mrs. Garman’s 1993 cesarean section.        The

Garmans then obtained a judgment in Garman II against Dr. Raschid and

Chambersburg Hospital for damages that also stemmed—and stemmed

solely—from their negligent acts that occurred during the 1993 surgery. The

jury in Garman II found no negligence on the part of any defendants with

regard to Mrs. Garman’s 1997 or 1999 surgeries, and the Garmans’ expert

concluded the second sponge was retained during the 1993 surgery.

     The judgment in Garman II was vacated by this Court on appeal, not

because the Garmans had obtained a verdict in Garman I but, rather,

because the amended complaint in Garman II—asserting for the first time in

that case a claim of negligence for the 1993 surgery—was filed after the

statute of limitations expired. Therefore, because the Garmans must prove

“a case within a case” in their legal malpractice action, see Kituskie v.

Corbman, 714 A.2d 1027, 1030 (Pa. 1998), they must prove they would have

recovered a judgment against Dr. Raschid and Chambersburg Hospital in

Garman II. Only after proving, by a preponderance of the evidence, that

they would have recovered a judgment in the underlying action can they

proceed with proof that Mr. Angino was negligent in the handling of Garman

II and that his negligence was the proximate cause of their loss. In essence,

the Garmans must initially prove they would have prevailed on claims relating

to the 1993 surgery if those claims had been timely raised in Garman II.




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      The Majority suggests that “the same type of negligent conduct on the

part of [Dr.] Raschid and Chambersburg Hospital in 1993 caused two distinct

injuries: one discovered in 1997, and the other discovered in 2006.” Majority

Opinion at 10. I submit that, in reality, it was the same negligent conduct,

not the same type of negligent conduct, that caused all of Mrs. Garman’s

injuries and that all of that negligent conduct occurred during the 1993

surgery.

      As the Majority recognizes, in Garman I, Mrs. Garman alleged that Dr.

Raschid was negligent for, inter alia, “failing to assure that all surgical

materials were removed, in toto; failing to ensure accurate sponge counts;

and failing to recognize that a sponge had been left behind during the surgery

he performed.”    Id. at 11 (citing Garman I complaint at ¶ 30(a)-(c))

(emphasis in original).   Mrs. Garman did not merely assert that she was

seeking damages for “leaving behind one surgical sponge,” as the Majority

maintains. She sought damages for all negligent conduct on the part of Dr.

Raschid and Chambersburg Hospital during the 1993 surgery, including their

failure to assure that all surgical instruments and materials were removed as

well as their failure to ensure an accurate sponge count.    See Garman I

Complaint at ¶¶ 30(a)-(c) and 48 (a)-(e). She claimed damages not just for

“one sponge,” but for past and future medical expenses, past and future pain

and suffering, lost earnings and earning capacity, and permanent scarring and

disfigurement. Id. at ¶¶ 31-36; 49-54.


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      It is true that Mrs. Garman initiated an action in Garman II that

asserted claims of negligence against additional parties for alleged negligence

in Mrs. Garman’s 1997 and 1999 surgeries.         She subsequently—and in an

untimely fashion—added negligence claims in Garman II that related to the

1993 surgery, for which the jury awarded her damages in Garman I. At the

conclusion of the trial in Garman II, the jury found negligence on the parts

of Dr. Raschid and Chambersburg Hospital only, and that negligence stemmed

from the 1993 surgery only.

      With respect to res judicata, in Robinson Coal Co. v. Goodall, 72 A.3d

685 (Pa. Super. 2013), this Court stated:

      The doctrine of res judicata prevents a party from instituting
      litigation that has been the subject of a lawsuit. We explained the
      concept in Stoeckinger v. Presidential Financial Corp. of
      Delaware Valley, 948 A.2d 828, 832 n. 2 (Pa. Super. 2008)
      (footnote omitted):

         “Res judicata” means “a thing adjudged” or a matter settled
         by judgment. Traditionally, American courts have used the
         term res judicata to indicate claim preclusion, i.e., the rule
         that a final judgment rendered by a court of competent
         jurisdiction on the merits is conclusive as to the rights of the
         parties and constitutes for them an absolute bar to a
         subsequent action involving the same claim, demand or
         cause of action.

      “Application of the doctrine of res judicata as an absolute bar to a
      subsequent action requires that the two actions possess the
      following common elements: ‘(1) identity of the thing sued upon;
      (2) identity of the cause of action; (3) identity of the parties; (4)
      identity of the capacity of the parties.’” Id. at 832 (quoting
      Dempsey v. Cessna Aircraft Co., 439 Pa. Super. 172, 653 A.2d
      679, 681 (Pa. Super. 1995) (en banc)).

Id. at 689.

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      The trial court in the instant matter determined:

      In both Garman I and II, the issues were the same in that
      [Appellants] asserted negligence by the nursing staff at the
      hospital and the vicarious liability of Dr. Raschid for failure to
      make an accurate sponge count and the associated damages
      arising from the October 18, 1993 C-section surgery. The causes
      of action against both defendants were identical and individual
      parties were in the same capacity in both cases, [i.e.,] doctor and
      patient.

Trial Court Opinion, 5/30/18, at ¶ 9. As the trial court’s analysis reflects, and

the record confirms, each of the elements of the res judicata test is satisfied.

      In its discussion of res judicata, the Majority imprecisely characterizes

Garman I as “a cause of action in negligence resulting from the failure to

remove one sponge during the 1993 C-section surgery” that was discovered

during her 1997 surgery.     Majority Opinion at 10.      The Majority contends

“[t]he damages sought related solely to the one sponge, which had formed an

abscess at that location.” Id. However, as explained above, in Garman I,

the Garmans alleged negligence not only for leaving behind a sponge but also,

inter alia, for failing to ensure the sponge counts were correct, failing to

properly check for and remove all foreign bodies left behind in the 1993

surgery, and failing to properly supervise the nursing staff to ensure they

performed proper sponge counts. See Garman I, Complaint at ¶¶ 30(a)-(c),

and 48(a)-(e). Therefore, the claims in Garman I were not simply claims for

“a sponge” and, I believe, encompass any foreign bodies left behind in the

1993 surgery, including the sponge removed in 2006.


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      The Majority attempts to draw a parallel between the instant case and

Daley v. A.W. Chesterton, Inc., 37 A.3d 1175 (Pa. 2012). Majority Opinion

at 16. In that case, the plaintiff was not barred by res judicata from pursuing

a mesothelioma claim despite previously maintaining a lung cancer claim for

asbestos exposure. Unquestionably, our Supreme Court has adopted the “two

disease rule” in asbestos cases such as Daley.          However, in Zieber v.

Bogert, 773 A.2d 758 (Pa. 2001), the Court rejected the plaintiffs’ contention

“that the two-disease rule has been adopted without restriction in medical

malpractice cases,” id. at 763 n.6, and recognized that the logic of limiting a

plaintiff to a single cause of action “is sound, considering that the action is

based upon the single event of medical negligence.”               Id. at 762-63

(emphasis added). A “single event of medical negligence” is precisely what is

at issue here.

      Regarding collateral estoppel, or issue preclusion, this Court has

explained:

      Collateral estoppel applies if (1) the issue decided in the prior case
      is identical to one presented in the later case; (2) there was a final
      judgment on the merits; (3) the party against whom the plea is
      asserted was a party or in privity with a party in the prior case;
      (4) the party or person privy to the party against whom the
      doctrine is asserted had a full and fair opportunity to litigate the
      issue in the prior proceeding and (5) the determination in the prior
      proceeding was essential to the judgment.

Heldring v. Lundy, Beldecos & Milby, P.C., 151 A.3d 634, 644 (Pa. Super.

2016) (quoting Selective Way Ins. Co. v. Hospitality Grp. Servs., Inc.,




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119 A.3d 1035, 1042 (Pa. Super. 2015)). For collateral estoppel to apply, all

of these elements must be met. Id.

     Here, the trial court concluded:

     Collateral estoppel applies in this matter as the issue decided in
     the prior action (Garman I), i.e., the negligence by the nursing
     staff at the hospital and the vicarious liability of Dr. Raschid for
     failure to make an accurate sponge count and the associated
     damages arising from the October 18, 1993 C-section, was
     identical to the one presented in the later action (Garman II). A
     final judgment on the merits in Garman I was satisfied and the
     Garman[s] had a full and fair opportunity to litigate the issue in
     question in the prior action which led to a jury verdict in their
     favor. Accordingly, collateral estoppel applies thereby barring this
     legal malpractice action for failure to establish that the underlying
     case was meritorious.

Trial Court Order, 5/30/18, at ¶ 10.

     The Majority suggests that “Garman I did not resolve the issue of

whether [Dr.] Raschid and Chambersburg Hospital nurses deviated from the

standard of care in leaving behind the sponge discovered in 2006.” Majority

Opinion at 18. Nowhere in the record is there the slightest suggestion that

the sponge discovered in 2006 was left behind at any time other than at the

time of Mrs. Garman’s 1993 surgery. That is when the negligence occurred.

Whether the sponge was discovered in 1997 or 2006 does not alter the fact

the sponge was left behind due to the negligence of Dr. Raschid and

Chambersburg Hospital in 1993, negligence for which Mrs. Garman recovered

damages in Garman I.

     In both Garman I and Garman II, Appellants claimed negligence on

the part of Dr. Raschid and Chambersburg Hospital for failure to remove all

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sponges utilized in the course of the 1993 surgery. There was a final judgment

on the merits in Garman I; the parties were the same—with respect to all

claims involving the 1993 surgery; they had an opportunity to litigate the

issue in Garman I; and the determination in Garman I was essential to the

judgment entered in that case. Because all elements of collateral estoppel

are present, the doctrine applies. I believe the trial court properly determined

that the Garmans were collaterally estopped from reasserting their negligence

claims in Garman II.

      Finally, with regard to the one satisfaction rule, this Court explained that

“[t]he rationale underlying the rule is clear—the remedy provided to an injured

person is to receive only one full compensation for the wrong done to him.”

Brandt v. Eagle, 602 A.2d 1364, 1367 (Pa. Super. 1992) (citation omitted).

“Moreover, once the judgment is marked satisfied, the plaintiff is legally

barred from further recovery against any of the tort-feasors because the law

presumes that full satisfaction for the harm incurred has been received.” Id.

(citation omitted).

      Here, the trial court observed:

      The one satisfaction rule applies in the instant matter because in
      Garman I the Garman[s] asserted and fully litigated negligence
      causes of action[] against Dr. Raschid and Chambersburg Hospital
      for their failure to make an accurate sponge count and related
      negligence in connection with Mrs. Garman’s October 18, 1993 C-
      section surgery. Specifically, in Garman I, Dr. Raschid was sued
      for failing to make an accurate sponge count during the October
      18, 1993 C-Section surgery, not removing all foreign objects, in
      toto, and for failing to order studies following that surgery to
      discover retained foreign objects. In Garman II, Dr. Raschid was

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      sued again for failing to make an accurate sponge count and
      discover retained foreign bodies during the same October 18,
      1993 surgery. . . . The court instructed the Garman I jury to
      compensate Mrs. Garman for all future damages, including
      those relating to pain and suffering, embarrassment and
      humiliation, disfigurement and enjoyment of life, suffered as a
      result of the failure to remove the foreign objects, in toto.
      The jury considered and awarded future damages to Mrs. Garman.
      Such future damages are the same damages that the Garmans
      sought and recovered once again in Garman II.

Trial Court Order, 5/30/18, at ¶¶ 5-6 (some capitalization omitted) (emphasis

added). I find no error in the trial court’s conclusion. The jury in Garman I

was instructed to determine whether Dr. Raschid and Chambersburg Hospital

were negligent with regard to the 1993 C-section.       After determining both

were negligent, the jury awarded damages in accordance with the trial court’s

instruction that damages compensate Mrs. Garman for all past and future

damages stemming from the negligence of Dr. Raschid and Chambersburg

Hospital.   “[W]e presume that juries follow the trial court’s instructions.”

Mader v. Duquesne Light Company, 199 A.3d 1258, 1265 (Pa. Super.

2018) (citation omitted). Because the jury in Garman I awarded damages

for the negligence of Dr. Raschid and Chambersburg Hospital associated with

the 1993 C-section, the Garmans could not recover damages in Garman II,

or any other subsequent action, for that same negligence.

      Because I find no error on the part of the trial court for entering

summary judgment in Garman II based on application of the three

affirmative defenses, I would not disturb the trial court’s ruling.




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       Because the Majority vacated the trial court’s summary judgment order

based on the three affirmative defenses, it did not examine the Garmans’

remaining issues, except for a brief reference to their third and fourth issues.

See Majority Opinion at 21 n. 3. While I find no basis for vacating the trial

court’s order on either of those issues or the remaining issue, I believe it

appropriate to address each one briefly.1

       In their second issue, the Garmans assert trial court error for making

factual assumptions and/or drawing inferences in a light favorable to Mr.

Angino and the Law Firm. Specifically, the Garmans challenge the findings of

fact as reflected in Paragraphs 6 through 9 of the trial court’s May 30, 2018

order. See Appellants’ Rule 1925(b) Statement at ¶ 6. The Garmans also

assert the court’s grant of summary judgment constituted error of law because

the record was insufficient to justify judgment in Appellees’ favor.

       In its Rule 1925(a) opinion, the trial court explained that the findings

set forth in Paragraphs 6 and 9 of its May 30, 2018 order were based on its

comparisons of the Garman I complaint, which was an exhibit to Appellees’

motion for summary judgment, and the amended complaint filed in Garman

II.2 In addition, the court considered the verdict slips completed by the juries

____________________________________________


1The Majority re-ordered the Garmans’ issues. I am addressing them in the
order adopted by the Majority.

2While it is true that the amended complaint in Garman II included claims
against additional parties with respect to the 1997 and 1999 surgeries, the



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in the two cases in assessing whether the damages related to the 1993

negligence of Dr. Raschid and Chambersburg were the same in both cases.

The court concluded the damages in both cases were awarded for that

negligent conduct. As such, the findings in Paragraphs 6 and 9 “were based

on facts of record.” Trial Court Rule 1925(a) Opinion, 7/30/18, at 4. I discern

no “impermissible fact-finding” in the two referenced paragraphs of the trial

court’s May 30, 2018 order. Further, I reject the Garmans’ suggestion that

the facts set forth in those paragraphs represent a reading of the record in a

light favorable to Appellees.

        The Garmans raise the same “impermissible fact-finding” argument with

respect to Paragraphs 7 and 8 of the May 30, 2018 order. However, as the

trial court correctly recognizes, neither of those paragraphs includes any

findings of fact. Rather, “paragraph 7 merely sets forth the elements of a

legal malpractice action while paragraph 8 contains a conclusion of law.” Id.

at 4.    My reading of the paragraphs in question confirms the trial court’s

representation of their contents.

        Because the Garmans have failed to substantiate their contention that

the trial court erred as a matter of law in granting summary judgment by



____________________________________________


jury found no negligence on the part of any of those parties for those
surgeries. Therefore, the trial court’s comparison of the facts of Garman I
and Garman II was appropriately limited to allegations involving Dr. Raschid
and Chambersburg Hospital and the negligence alleged regarding the 1993
surgery.

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making factual assumptions and/or drawing inferences in favor of Appellees,

their second issue fails.

      In the third issue, the Garmans argue that the trial court erred by

applying the “three affirmative defenses” to determine that the Garmans could

not have won their underlying medical malpractice case (Garman II), even

though those defenses “had been specifically rejected” in Garman II by both

the trial court and this Court on appeal. Appellant’s Brief at 5. They also

claim, in their fourth issue, that the trial court’s application of the three

affirmative defenses was precluded by the doctrines of collateral estoppel

and/or judicial estopped because those defenses had rejected by the courts in

the underlying case. I address these issues together.

      The Garmans contend the trial court’s consideration of the three

affirmative defenses in the instant legal malpractice action violated the

coordinate jurisdiction rule. They claim the Garman II trial court determined

those defenses did not preclude the jury from returning its verdict in favor of

the Garmans for the negligence of Dr. Raschid and Chambersburg Hospital

relating to Mrs. Garman’s 1993 surgery. However, the coordinate jurisdiction

rule is inapplicable here.

      As Appellees correctly note, the coordinate jurisdiction rule recognizes

that “judges of coordinate jurisdiction sitting in the same case should not

overrule   each   other’s    decision.”    Appellees’   Brief   at   36   (quoting

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (emphasis


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added)). However, “this legal malpractice action is a distinctly different case

[from] the underlying Garman II medical malpractice action.” Id. See also

Heldring, supra, 151 A.3d at 644-45. Moreover, this Court did not “reject”

the defenses, as Appellants suggest. Rather, this Court “concluded that the

statute of limitations bars the only claim of negligence for which the jury found

Dr. Raschid and Chambersburg Hospital liable.” Garman v. Heine, Raschid

and Chambersburg Hospital, 1367 MDA 2010 at 18 (Pa. Super. filed August

8, 2011).     Consequently, the Court did not consider the three affirmative

defenses.      The Garmans speculate that deciding Garman II without

addressing the three affirmative defenses, which Appellants characterize as a

“punt” by this Court,3 “weighs strongly in favor of the inference that the Court

. . . agreed with the decision of the Garman II trial court.” Appellants’ Brief

at 33. Such speculation is unjustified, as is the Garmans’ speculation as to

what our Supreme Court might have decided had it not dismissed the appeal.

See Appellants’ Motion for Reconsideration, 6/7/18, at ¶ 18.4

____________________________________________


3See Appellants’ Motion for Reconsideration, 6/7/18, at ¶ 13 and Appellants’
Rule 1925(b) Statement at ¶ 14.

4As our Supreme Court instructed in Commonwealth v. Tilghman, 673 A.2d
898 (Pa. 1996):

       In the circumstance where we have accepted an issue by granting
       allowance of appeal, and this Court, after conducting our review
       of the issue, enters an order dismissing the appeal as having been
       improvidently granted, the effect is as though this Court never
       granted allowance of appeal. In other words, a dismissal as being



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       As Appellees recognize, “[t]he trial court did not reopen questions

decided by another judge of the same court, or by a higher court, in an earlier

phase of this matter and thus, did not create an inconsistent legal ruling.”

Appellees’ Brief at 36-37. Despite the Garmans’ claim to the contrary, this

Court did not rule on the application of the three affirmative defenses and this

Court is not precluded from doing so by the coordinate jurisdiction rule.

       Similarly, this Court is not precluded from considering the affirmative

defenses based on judicial estoppel, which prevents a party from taking a

position inconsistent with his position in a previous case.         See, e.g.,

Trowbridge v. Scranton Artificial Limb Company, 747 A.2d 862, 864 (Pa.

2000). Here, judicial estoppel does not apply because Appellees were not

parties to the previous action.

       Because I believe the Garmans have failed to establish any error of law

or abuse of discretion in the trial court’s grant of summary judgment, I would

affirm the trial court’s order.5

____________________________________________


       improvidently granted has the exact same effect as if this Court
       had denied the petition for allowance of appeal (allocatur) in the
       first place. Where we dismiss an appeal as improvidently
       granted, the lower tribunal’s opinion and order stand as a
       decision of that court and this Court’s order has no precedential
       value.

Id. at 904 (emphasis in original).

5I do not express any opinion regarding the merits of any negligence or breach
of contract claims asserted by the Garmans in this legal malpractice action



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____________________________________________


with respect to Appellees’ representation of the Garmans in Garman II. As
explained above, the Garmans were tasked with proving their “case within a
case” before the trial court could consider any proof that Appellees were
negligent in their handling of Garman II. The Garmans were not able to
satisfy their burden of proof. Therefore, the legal malpractice claims were not
considered by the trial court and their merit, or lack thereof, is not before this
Court.
