J-A02008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DORIS VALINCIUS AND                              IN THE SUPERIOR COURT OF
JOHN VALINCIUS                                         PENNSYLVANIA

                        Appellants

                   v.

BRUCE WEINER, M.D., ASSOCIATED
SURGEONS, P.C., MONTGOMERY
HOSPITAL AND MEDICAL CENTER, LINDA
L. KURTZ, D.O., AND JOHN E. DEVENNY,
M.D.

                        Appellees                     No. 3539 EDA 2013


          Appeal from the Judgment Entered November 13, 2013
           In the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 2011-15685


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY LAZARUS, J.:                              FILED JULY 23, 2015

     Doris Valincius and John Valincius appeal from the order granting

summary judgment in favor of Appellees entered in the Court of Common

Pleas of Montgomery County. After careful review, we affirm.

     The trial court set forth the facts of this case as follows:

     Several years before filing the [p]resent [a]ction, [the
     Valinciuses] participated in a mass tort litigation in Philadelphia
     regarding certain hormone replacement therapy drugs taken by
     Doris Valincius (generally, “the HRT Litigation”).       The HRT
     Litigation was filed in 2004 and included a complaint[,] a long
     [f]orm [c]omplaint signed by both [of the Valinciuses], and a
     fact sheet, which was signed by . . . Doris Valincius[.] According
     to the HRT [c]omplaint, Doris Valincius was prescribed various
     HRT drugs from 1990 to 1998.            Subsequently, she was
     diagnosed by Dr. Weiner with breast cancer in June, 2002.
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                                     ...

      [The Valinciuses] filed this medical negligence action in June,
      2011 (“the Present Action”). Subsequently, [the Valinciuses]
      filed an amended complaint[.] According to the [a]mended
      [c]omplaint, in 2002, after a diagnosis of possible breast cancer,
      . . . Doris Valincius treated with Defendant Bruce Weiner, M.D.
      and Associated Surgeons, P.C. . . . That same year, she was
      admitted to Defendant Montgomery Hospital for surgery[.] Upon
      admission, [Dr.] Weiner performed a procedure “generally
      described as a partial mastectomy with axillary dissection and
      sentinel node identification.”

      For the next eight years, [Mrs. Valincius] continued under the
      care of Dr. Weiner, Montgomery Hospital, Defendant Linda L.
      Kurtz . . ., and Defendant [Dr.] John E. Devenney[.] In the
      [a]mended [c]omplaint, [Mrs.] Valincius complained about pain
      and discomfort in the area of the surgery and underwent many
      investigative procedures during that eight year period. In 2010,
      . . . Dr. Weiner located and removed a retained surgical sponge
      that was left behind during the 2002 surgery. [The Valinciuses]
      commenced the Present Action in June, 2011.

Trial Court Opinion, 3/7/14, at 7, 1-2.

      In 2013, the defendants each filed for summary judgment. By order

entered on November 14, 2013, the trial court granted summary judgment

in favor of all defendants and dismissed the Valinciuses’ action. The court

found that the Valinciuses’ claims were barred by the terms of a release they

executed in settlement of the HRT mass tort claim.     The Valinciuses filed a

timely notice of appeal followed by a court-ordered statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed

its Rule 1925(a) opinion on March 7, 2014.




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        The Valinciuses raise the following issues for our review:1

        1. Whether the Superior Court should distinguish this case from
           Buttermore [v. Aliquippa Hospital, 561 A.2d 733 (Pa.
           1989,] and its progeny because there is no causal connection
           between the injury and the subsequent malpractice claim and
           no specific event to release.

        2. Whether the trial court erroneously concluded there is a
           causal connection between the HRT drugs and [Mrs.
           Valincius’] breast cancer.

        3. Whether the trial court erred when it considered the Fact
           Sheet from the Hormone Replacement Therapy lawsuit.

        4. Whether New York [law] applies to this case and thereby
           requires consideration of the purpose and intent of the HRT
           release.

Brief of Appellant, at 1.

        We begin by noting our standard and scope of review of an order

granting summary judgment:

        Our scope of review is plenary, and our standard of review is the
        same as that applied by the trial court. Our Supreme Court has
        stated the applicable standard of review as follows: An appellate
        court may reverse the entry of a summary judgment only where
        it finds that the lower court erred in concluding that the matter
        presented no genuine issue as to any material fact and that it is
        clear that the moving party was entitled to a judgment as a
        matter of law. In making this assessment, 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. As our inquiry involves
        solely questions of law, our review is de novo.



____________________________________________


1
    We have renumbered the Valinciuses’ issues for ease of disposition.



                                           -3-
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      Thus, our responsibility as an appellate court is to determine
      whether the record either establishes that the material facts are
      undisputed or contains insufficient evidence of facts to make out
      a prima facie cause of action, such that there is no issue to be
      decided by the fact-finder. If there is evidence that would allow
      a fact-finder to render a verdict in favor of the non-moving
      party, then summary judgment should be denied.

Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa. Super.

2015) (brackets omitted).

      The Valinciuses’ first two issues are interrelated and, as such, will be

addressed   together.       The   Valinciuses   argue   that   the   trial   court

inappropriately relied on Buttermore to enforce the release against them

because: (1) there was no causal connection between the HRT medication

ingested by Mrs. Valincius and the breast cancer which led to the alleged

malpractice at issue here; (2) there was no specific “event” to release; and

(3) they did not intend to release the Appellees when they executed the HRT

release. These claims are meritless.

      We begin by noting that “the effect of a release must be determined

from the ordinary meaning of its language.” Buttermore, 561 A.2d at 735.

“[A] release given to a particular individual and ‘any and all other persons . .

. whether herein named or not’ [is] applicable to all tort-feasors despite the

fact they were not specifically named.” Id.

      Here, the trial court relied on Buttermore to enforce the HRT release

against the Valinciuses in the instant suit against the Appellees.             In

Buttermore, the plaintiff suffered injuries in an automobile accident with

Frances Moser. Buttermore sought treatment for those injuries at Aliquippa


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Hospital. Buttermore subsequently executed a release in settlement of his

claim against Moser, which release provided, in relevant part, as follows:

      I/We . . . hereby remise, release, acquit and forever discharge
      Frances Moser, et al. . . . and all other persons, associations
      and/or corporations, whether known or unknown, suspected or
      unsuspected, past, present and future claims, demands,
      damages, actions, third party actions, causes of action, or suits
      at law or in equity, indemnity of whatever nature, for or because
      of any matter or thing done, omitted or suffered to be done, on
      account of or arising from damage to property, bodily injury or
      death resulting or to result from an accident which occurred on
      or about the 3rd day of December, 1981 at or near Aliquippa,
      Pennsylvania for which I/We have claimed the said Frances
      Moser, et al. to be legally liable[.]

Id. at 734.   Thereafter, Buttermore sued Aliquippa Hospital, alleging that

the treatment he received at the facility aggravated the injuries he had

sustained in the accident with Moser.     In new matter, Aliquippa Hospital

raised the Moser release as a defense and, ultimately, was granted summary

judgment. This Court reversed, and the Supreme Court granted allowance

of appeal.

      On allowance of appeal, Buttermore argued that he did not intend to

release the hospital from liability when he signed the Moser release.        The

Supreme Court held that, where there is no allegation of fraud, accident or

mutual mistake, the plain language of the release must be given its full

effect. The Court quoted its earlier decision in Emery v. Mackiewicz, 240

A.2d 68 (Pa. 1968), noting:

      If such a release can be nullified or circumvented, then every
      written release and every written contract or agreement of any
      kind no matter how clear and pertinent and all-inclusive, can be

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      set aside whenever one of the parties has a change of mind or
      whenever there subsequently occurs a change of circumstances
      which were unforeseen, or there were after-discovered injuries,
      or the magnitude of a releasor’s injuries was unexpectedly
      increased, or plaintiff made an inadequate settlement. It would
      make a mockery of the English language and of the law to
      permit this release to be circumvented or held to be nugatory.

Buttermore, 561 A.2d at 735, quoting Emery, 240 A.2d at 70. The Court

went on to state:

      Parties with possible claims may settle their differences upon
      such terms as are suitable to them. They may include or
      exclude terms, conditions and parties as they can agree. In
      doing so, they may yield, insist or reserve such right as they
      choose. If one insists that to settle, the matter must end then
      and forever, as between them, they are at liberty to do so. They
      may agree for reasons of their own that they will not sue each
      other or any one for the event in question.            However
      improvident their agreement may be or subsequently
      prove for either party, their agreement, absent fraud,
      accident or mutual mistake, is the law of their case.

Id. (emphasis added).

      The Valinciuses claim that the trial court misapplied Buttermore for

several reasons. First, they argue that Buttermore requires the existence

of a causal connection between Mrs. Valincius’ breast cancer and the HRT

claim.     The Valinciuses assert that such a causal connection existed in

Buttermore and its progeny, including Dublin v. Shuster, 598 A.2d 1296

(Pa. Super. 1991) (auto accident and subsequent malpractice), Smith v.

Thomas Jefferson Univ. Hosp., 621 A.2d 1030 (Pa. Super. 1993) (auto

accident and subsequent malpractice), and Brown v. Herman, 665 A.2d

504      (Pa.   Super.   1995)   (fall   from   defective   stool   and   subsequent


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malpractice). Because it was never established that the cancer was caused

by Mrs. Valincius’ ingestion of HRT drugs, there is no nexus between the

“prior event” and the malpractice claim at issue here.          Thus, under

Butterworth and its progeny, the Valinciuses argue that the court erred in

granting summary judgment in favor of the Appellees.           We find this

argument to be misplaced.

      The release executed by the Valinciuses in the HRT litigation provides,

in relevant part, as follows:

      A. Complete and General Release, Covenant Not to Sue &
         Assignment

          1. The Claimant, individually and for her family members,
             heirs, beneficiaries, and agents, hereby RELEASES,
             ACQUITS, and FOREVER DISCHARGES the HT Defendants,
             the other Released Parties, as defined below, and ANY
             AND ALL OTHER INDIVIDUALS OR ENTITIES WHO ARE OR
             MAY BE CLAIMED TO BE LIABLE TO THE CLAIMANT (AND
             HER     FAMILY     MEMBERS,      HEIRS,     SUCCESSORS,
             BENEFICIARIES AND AGENTS) of and from all Released
             Claims, as defined below. The Claimant, individually and
             for heirs, beneficiaries, successors, and agents, also
             hereby agrees and covenants not to sue the HT
             Defendants, the other Released Parties, as defined below,
             and ANY AND ALL OTHER INDIVIDUALS OR ENTITIES
             WHO ARE OR MAY BE CLAIMED TO BE LIABLE TO THE
             CLAIMANT (AND HER FAMILY MEMBERS, HEIRS,
             BENEFICIARIES, SUCCESSORS, AND AGENTS) in any
             capacity, for any Released Claims, as defined below. It is
             expressly understood and agreed by the Claimant
             that the foregoing release is intended to and does
             include a release of all claims that were, could have
             been, or could be brought (whether now or in the
             future, including any future cancer) in connection
             with the facts, events, and incidents that gave rise
             to or related in any way to this Civil Action.


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        2. The term “Released Parties” as used herein shall mean:

           [a.] . . .

           b. . . .

           c.    Any and all individuals or entities who furnished any
           medical care or treatment and/or prescribed or dispensed
           Hormone Therapy to the Hormone Therapy Claimant
           arising out of or relating to the Hormone Therapy Claim,
           including all such physicians, hospitals, health care
           providers, pharmacies and any other actual or potential
           defendants.

           d. . . .

        3. The term “Released Claims” shall mean any and all claims,
           demands, damages, injuries, losses, and causes of action,
           of whatever nature or character, whether known or
           unknown, past, present or future (including any future
           cancer), that have been, could have been, may be, or
           could be alleged or asserted now or in the future, whether
           alleged or asserted or not, whether founded in law,
           equity, admiralty, tort, contract, statute, rule, regulation,
           or otherwise, including any loss or compensatory or
           punitive damage claim relating thereto; claims for future
           cancer or wrongful death; claims for consumer fraud,
           refunds, unfair business practices, deceptive trade
           practices, and other similar claims whether arising under
           statute, regulation or judicial decision; claims for medical
           screening and monitoring, injunctive and declaratory
           relief; and claims for economic or business losses or
           disgorgement of profits, deriving from or related to the
           prescription, purchase or use of Hormone Therapy, and
           including any alleged loss of consortium or other
           derivative claims related thereto.

        4. THE RELEASES IN PARAGRAPH II.A.1 ABOVE ARE
           SPECIFICALLY  INTENDED   TO   OPERATE   AND   BE
           APPLICABLE EVEN IF IT IS ALLEGED, CHARGED, OR
           PROVEN THAT SOME OR ALL OF THE CLAIMS OR
           DAMAGES RELEASED WERE CAUSED IN WHOLE OR IN
           PART BY THE NEGLIGENCE, NEGLIGENCE PER SE, GROSS
           NEGLIGENCE, BREACH OF EXPRESS OR IMPLIED

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              WARRANTY,   MISREPRESENTATION,   VIOLATION   OF
              STATUE OR COMMON LAW, DEFECTIVE PRODUCT,
              FAILURE TO WARN, RECKLESS OR INTENTIONAL
              CONDUCT, FRAUD, MALICE, OR CONDUCT OF ANY TYPE
              BY ANY OF THE RELEASED PARTIES AND/OR ANY THIRD
              PARTY.

Release, 11/30/11, at 3-4 (emphasis added at ¶ II.A.1). The Release also

states that it is “intended by the Claimant to be as broad as can possibly be

created by the Claimant and including any liability whatsoever.” Id. at 5.

      As stated above, where, as here, there is no allegation of fraud,

accident or mutual mistake, the plain language of the release must be given

its full effect.   In each of the cases cited by the Valinciuses, the release

specifically refers to the particular event that caused the injury to the

claimant. In Buttermore, the release discharges all claims related to “an

accident which occurred on or about the 3rd day of December, 1981 at or

near Aliquippa, Pennsylvania.” Buttermore, 561 A.2d at 734. In Dublin,

the release discharges all liability for injury sustained “in consequence[] of

an accident that occurred on or about the second day of August, 1981[.]”

Dublin, 598 A.2d at 1299.       Similarly, in Smith, the release applied to all

injuries “and the consequences thereof resulting or to result from the

accident[.]” Smith, 621 A.2d at 1032 n.2. Finally, in Brown, the release

applied to all injuries “sustained or received on or about the 5 th day of

January, 1987, when an incident occurred at [appellant’s] residence where

[appellant] fell from a chair/stool, and about which specific allegations were

made by us in pleadings.”       Brown, 665 A.2d at 506.      Thus, in deciding

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those cases, the Courts considered the plain language of the releases in

question, which included references to specific causal events.

      In contrast to those cases cited by the Valinciuses, here, the language

of the release does not specifically require a causal link between the

ingestion of HRT drugs and possible later claims.        Its application is not

limited to injuries sustained as a result of Mrs. Valincius’ ingestion of HRT

drugs.   Rather, the Release applies to any claims connected to “the facts,

events, and incidents that gave rise to or related in any way to this Civil

Action.” Release, 11/30/11, at ¶ II.A.1 (emphasis added). This language

clearly encompasses Mrs. Valincius’ breast cancer and associated complaints

and conditions, including the malpractice alleged to have occurred during

Mrs. Valincius’ partial mastectomy and left axillary dissection surgery in July

2002. Had Mrs. Valincius never developed breast cancer, she would never

have had reason to join the HRT class action. Accordingly, the breast cancer

is plainly a “fact[], event[], or incident[] that gave rise to or related in any

way to” the HRT action, and, as such, the Release must be read to apply to

the claims asserted against the Appellees in the instant matter.

      The Valinciuses also claim that they never intended to release the

Appellees, arguing “[i]t would simply not make sense for [them] to release

the parties that they had just filed suit against for the retained surgical

sponge.” Brief of Appellants, at 12. We disagree.




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J-A02008-15


      The Valinciuses rely on two cases to support their contention, both of

which are inapt. In Vaughn v. Didizian, 648 A.2d 38 (Pa. Super. 1994),

the appellant, Vaughn, was injured while riding in a car driven by Tonyia

Woods on August 12, 1983. On November 22, 1983, Vaughn, in exchange

for the sum of $33,000, executed a release providing, in relevant part, as

follows:

      the undersigned hereby releases and forever discharges Donald
      Woods and Tonyia Woods and all other persons, firms and
      corporations from all claims and demands, rights and causes of
      action of any kind the undersigned now has or hereafter may
      have on account of or in any way growing out of personal
      injuries known or unknown to me/us at the present time. . .
      resulting or to result from an occurrence which happened on or
      about August 12, 1983.

Id. at 39. Subsequently, Vaughn sought treatment from Dr. Didizian, who

performed surgery on her on August 1, 1984. Vaughn thereafter instituted a

medical malpractice action against Dr. Didizian, alleging that he was

negligent in his performing the surgery.     Dr. Didizian filed a motion for

summary judgment, alleging that Vaughn’s action was barred by the release

she executed on November 22, 1983.

      On appeal to this Court, Vaughn argued that the trial court erred in

granting summary judgment because the parties to the release did not

intend to bar a malpractice claim that had not accrued at the time the

release was executed. The Court noted that Pennsylvania uses a two-prong

approach to construing the effect of a release:




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     The court of Pennsylvania have traditionally determined the
     effect of a release using the ordinary meaning of its language
     and interpreted the release as covering only such matters as can
     fairly be said to have been within the contemplation of the
     parties when the release was given. Moreover, releases are
     strictly construed so as not to bar the enforcement of a claim
     which had not accrued at the date of the execution of the
     release.

Id. at 40 (emphasis in original; citations and quotation marks omitted).

     The Court concluded that the trial court had only utilized the first

component – the ordinary meaning of the release’s language – but failed to

consider the second – that a release may only cover matters within the

parties’ contemplation.   Because “[n]othing in the circumstances of [the]

case suggest[ed] that the parties to the release were anticipating [Dr.]

Didizian’s negligent surgery,” the Court concluded that the release did not

encompass the medical malpractice claim.

     Here, however, the cause of action based on Dr. Weiner’s alleged

negligence had already accrued at the time the release was executed. The

Valinciuses signed the HRT release nine years after the surgery in which the

sponge was left behind, one year after the sponge was discovered in Mrs.

Valincius’ body, and five months after the Valinciuses actually filed suit for

malpractice. Clearly, the action for the malpractice allegedly committed by

Dr. Weiner was within the Valinciuses’ contemplation at the time they

entered into the HRT release in November 2011.          See Brown, supra

(Court’s decision to apply release in subsequent malpractice suit “further

compelled by the fact that appellants executed the release eighteen months


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after they filed the malpractice suit. Hence, they were clearly aware of the

alleged malpractice when they relinquished their rights[.]”)      Despite their

clear awareness of the pending litigation against the Appellees, the

Valinciuses made no effort to exclude that action from the terms of the HRT

release.2 Accordingly, Vaughn is inapposite to the case at hand.

       The Valinciuses also cite Martin v. Donahue, 698 A.2d 614 (Pa.

Super. 1997), to support their assertion that extraneous evidence of the

parties’ intent should be considered. In Martin, the appellee, Martin, was

injured at work. Following emergency treatment, Martin was operated on by

the appellant, Dr. Donahue. Martin subsequently reached a settlement with

his employers and executed a release in which he discharged his employers

from any further liability for damages resulting from his injuries. Thereafter,

Martin sued Dr. Donahue for malpractice.           Dr. Donahue sought summary

judgment based on the release Martin had previously signed in favor of his

employers.     At the hearing in the trial court, Martin presented deposition

testimony and affidavits from the attorneys involved to demonstrate that the

release was drafted with the intention of releasing only the named parties

____________________________________________


2
  It appears that the Valinciuses’ relied on the advice of present counsel to
conclude that the release applied only to the HRT litigation and not the
retained sponge case. See Brief of Appellants, at 2 (stating that HRT
settlement package was given to Attorney Ennis for review). Unfortunately,
counsel either failed to read the release in full, or was unaware of the import
of Buttermore and its impact on his clients’ ability to pursue the retained
sponge litigation.



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from liability.   The trial court ultimately denied Dr. Donahue’s petition for

summary judgment.

      On appeal, this Court relied on the plain language of the release to

conclude that it did not apply to Dr. Donahue. In response to Dr. Donahue’s

argument that the trial court erred by admitting extraneous evidence of

intent, the Court stated as follows:

      While it is clear to this [C]ourt that the language of the
      release did not discharge [Dr. Donahue] from liability, [Dr.
      Donahue], nonetheless, urged the [trial] court to adopt his
      interpretation. Therefore, in order to ascertain the intent of the
      parties, the court deemed it necessary to consider the
      circumstances surrounding the release, the situation of the
      parties, and the nature of the content of the agreement. It was
      reasonable for the court to look to sources other than the
      contract for clarification. The court did not abuse its discretion in
      allowing affidavit and deposition testimony of the attorneys who
      drafted the releases.

Martin, 698 A.2d at 617 (emphasis added). The Valinciuses argue that the

above-quoted language provides support for their claim that surrounding

circumstances and intent of the parties should have been considered by the

court in the instant matter. We disagree. The Martin Court clearly found

that the plain language of the release was unambiguous and discharged only

the named parties, and that extrinsic evidence was not necessary to

ascertain the parties’ intent.   Accordingly, the Court’s statement that the

trial court did not abuse its discretion in considering extraneous evidence

was, essentially, dicta and is not controlling here.




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       The Valinciuses also assert that the trial court erred in relying on

Buttermore and its progeny because there was “no specific event to

release.”    The Valinciuses’ basis for this claim appears to be a passing

reference to a “given event” in the case of Taylor v. Solberg, 778 A.2d 664

(Pa. 2001).      The isolated quotation cited by the Valinciuses provides as

follows:    “When the parties to a release agree not to sue each other or

anyone else for a given event, this can effect a discharge of others who have

not contributed consideration for the release.” Id. at 667. From this, the

Valinciuses extrapolate that any valid release must be related to a specific

event. This argument is based on an absurdly narrow and literal reading of

the language used by the Supreme Court and must be rejected outright.

Simply stated, there is no requirement in the law of this Commonwealth that

a release must be predicated on a specific “event,” such as a car accident, to

be effective.

       For the foregoing reasons, the trial court did not err in relying on

Buttermore and its progeny to discharge the Appellees from liability in the

Valinciuses’ medical malpractice action.3


____________________________________________


3
  Although we recognize that Buttermore compels our affirmance, we
believe its application here to be at odds with the underpinnings of tort law.
“Two basic policies underlie theories of tort liability: deterrence of harm-
causing conduct and compensation of persons injured by such conduct.” 1
Summ. Pa. Jur. 2d Torts § 1:1 (2d ed.). Similarly, the object of awarding
damages in tort actions is “to give compensation, indemnity, or restitution
(Footnote Continued Next Page)


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      The Valinciuses next assert that the trial court erred in considering the

Fact Sheet from the HRT lawsuit to find a causal link between the HRT drugs

and Mrs. Valincius’ breast cancer.4 We find that the Valinciuses have waived

this issue for two reasons. First, the Fact Sheet was first introduced into the

proceedings at the deposition of the Valinciuses’ daughter. No objection was

made to the introduction and use of the document, despite extensive

questioning based on its contents.               “[I]n order for a claim of error to be

preserved for appellate review, a party must make a timely and specific

objection before the trial court at the appropriate stage of proceedings; the

failure to do so will result in a waiver of the issue.” Kaufman v. Campos,

827 A.2d 1209, 1212 (Pa. Super. 2003). As the Valinciuses did not lodge an

objection at the time of their daughter’s deposition, this claim is waived.
                       _______________________
(Footnote Continued)

for harms[,] to determine rights[, and] to punish wrongdoers and deter
wrongful conduct.” Id. § 9:1, citing Restatement (Second) Torts § 901.

      Here, Appellees benefit from a release to which they were not parties
and for which they provided no consideration. The appellee-doctors left a
sponge in Ms. Valincius that caused her years of pain.      However, they
benefit from the release and are neither deterred from their harm-causing
conduct nor required to compensate Ms. Valincius for her harm. In effect,
they receive a windfall. While we see no principled way to distinguish
Buttermore and its progeny, our Supreme Court may wish to consider an
exception.
4
  The Fact Sheet states: “Information provided by plaintiff within the fact
sheet will only be used for purposes related to this litigation and such
information will not be disclosed outside this litigation without plaintiff’s
written consent.” Plaintiff’s Fact Sheet, 11/4/04, at 1. Based on this
language, the Valinciuses argue that the information contained in the Fact
Sheet should not have been introduced in the instant matter.



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      Second, the Valinciuses have waived this argument for failure to

develop their appellate argument or to cite any authority whatsoever for

their claim.   “When an appellant fails to develop his issue in an argument

and fails to cite any legal authority, the issue is waived.” Commonwealth

v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008) (en banc). Here, the

Valinciuses’ argument is one paragraph long and cites no legal authority.

Accordingly, the issue is waived.

      Finally, the Valinciuses assert that this Court should apply New York

law in deciding the case. This argument is based on language contained in

the HRT release providing that the document shall be construed according to

the laws of the State of New York. Release, 11/30/11, at ¶ N. This issue is

also waived. “[I]ssues not raised in the lower court are waived and cannot

be raised for the first time on appeal.” Steiner v. Markel, 968 A.2d 1253,

1257 (Pa. 2009). Here, the Valinciuses did not present this argument in the

lower court or in their Pa.R.A.P. 1925(b) statement. Accordingly, this claim

is waived.

      For the foregoing reasons, we are constrained to agree with the trial

court that the HRT release bars any claims the Valinciuses may have against

Dr. Weiner and the other appellees.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/2015




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