J-A34023-14

                              2015 PA Super 61

FREDERICK E. KREPPS AND                  :      IN THE SUPERIOR COURT OF
MARGARET M. KREPPS,                      :           PENNSYLVANIA
                                         :
                        Appellants       :
                                         :
            v.                           :
                                         :
KHRISTIAN SNYDER, DPM AND                :
CHERRY TREE FOOT AND ANKLE               :
SPECIALISTS, P.C.,                       :
                                         :
                        Appellees        :      No. 449 MDA 2014


              Appeal from the Judgment Entered March 6, 2014,
                In the Court of Common Pleas of York County,
                     Civil Division, at No. 07-SU-788-Y01.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STABILE, J.

OPINION BY SHOGAN, J.:                              FILED MARCH 24, 2015

      Frederick E. Krepps (individually, “Appellant”) and Margaret M. Krepps

(collectively, “Appellants”) appeal from the judgment entered on March 6,

2014. After careful review, we affirm.

      Appellants filed a medical malpractice complaint on April 11, 2007,

alleging that Khristian Snyder (“Appellee”), a podiatrist, and his medical

practice, Cherry Tree Foot and Ankle Specialists, P.C., (collectively,

“Appellees”) negligently failed to follow appropriate amputation prevention

procedures for diabetic patients such as Appellant, eventually resulting in the

below-the-knee amputation of Appellant’s leg.          Lengthy and litigious

discovery ensued for four years culminating, in one instance, in imposition of
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monetary sanctions against Appellees for failure to respond to Appellants’

Expert Witness Interrogatories. Trial Court Order, 1/13/12, at unnumbered

1.   Additionally, Appellees did not respond to Appellants’ Requests for

Admissions for almost a year after they were served with the discovery

request, well beyond the thirty-day response time set forth in Pa.R.C.P

4014(b).

     After discovery closed, on May 14, 2012, Appellants filed a motion for

summary judgment requesting the trial court to:      1) define the legal duty

owed by Appellee to Appellant; 2) determine the standard of care that

applies in this case; and 3) adjudge Appellees liable. In the event that the

trial court decided summary judgment was not warranted, Appellants

requested that certain facts be deemed admitted and others be classified as

established without controversy.     Although the trial court decided that,

under Rule 4014(b), statements included in Appellants’ Requests for

Admissions were considered true for purposes of adjudicating the motion, it

ultimately denied awarding summary judgment in Appellants’ favor because

material issues of fact remained outstanding. Summary Judgment Opinion,

9/14/12, at unnumbered 5–6.        Prior to trial, Appellees filed a motion in

limine to preclude these same admissions from being introduced at trial; the

motion was denied as untimely.           Trial Court Order, 4/24/2013, at

unnumbered 1.




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      At trial, Appellants’ theory of liability was that Appellee was derelict in

following   appropriate     amputation     prevention     procedures    for   diabetic

patients,   specifically,   that   he   failed    to   perform   necessary    vascular

examinations, failed to order additional vascular studies, failed to properly

document Appellant’s foot pulses in his medical records, and failed to refer

Appellant to a vascular surgeon in a timely manner.               Appellants’ expert,

Dr. Vincent Mandracchia, opined that patients presenting in Appellant’s

condition — toe ulcer with no palpable foot pulses—must be referred

immediately to a vascular surgeon and that podiatrists should document foot

pulses each time a patient is seen.              Appellee countered that he timely

referred Appellant to a vascular surgeon when it appeared that an ulcer on

Appellant’s left foot was not healing properly. Appellee’s expert, Dr. Michael

Downey, disagreed that documentation of foot pulses was required each

time a patient is seen when the treating podiatrist is familiar with the

patient’s history and concluded that Appellee met or exceeded the standard

of care for a podiatrist treating patients presenting like Appellant.

      When testimony concluded, the trial court denied Appellants’ request

to read admissions allegedly made by Appellee to the jury. It also denied

certain of Appellants’ requested jury instructions, but did instruct the jury on

the “two schools of thought” charge that is relevant in a malpractice action

when competent medical authority is divided on a course of treatment. The




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jury returned a verdict in favor of Appellees based on its finding that

Dr. Snyder was not negligent. Appellants filed post-trial motions, which the

trial court denied on March 4, 2014.        This appeal followed the entry of

judgment in Appellees’ favor.

      Appellants present the following questions for appellate review:

      I.     Did The Trial Court Commit Reversible Error By Refusing
             To Allow Mr. Krepps To Admit Conclusively Established
             Judicial Admissions Under Pa.R.C.P. 4014(d) Into
             Evidence?

      II.    Did The Trial Court Commit Reversible Error By Instructing
             The Jury On The Two Schools Of Thought Doctrine?

      III.   Did The Trial Court Commit Reversible Error By Refusing
             To Grant Mr. Krepps’ Points For Charge?

      IV.    Did The Trial Court Abuse Its Discretion Or Commit An
             Error Of Law When It Denied Mr. Krepps’ Motion for
             Summary Judgment And Establishment Of Averments
             Deemed Admitted And Facts Without Controversy When It
             Failed To:

             A. Determine If Dr. Snyder Had An Affirmative Duty
                To Protect Mr. Krepps From Foreseeable Risk Of
                Amputation?

             B. Determine The Standard Of Conduct That Applied
                To Dr. Snyder’s Care Of Mr. Krepps?

             C. Failed To Grant Judgment In Favor Of The
                Plaintiffs And Against The Defendants?

             D. Determined    That   Facts Existed    Without
                Controversy And Were Deemed Established Under
                Pa.R.C.P. 1035.5?

Appellants’ Brief at 6–7.


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      I. Exclusion of Admissions

      On the last day of trial, Appellants attempted to introduce two

exhibits:   Appellees’ statements that were previously deemed admitted

under Rule 4014(b) due to Appellees’ failure to timely respond to discovery

and proposed admissions that Appellees failed to respond to in any manner.

Plaintiffs’ Exhibits 36a and 36b, respectively.1    After some preliminary

discussion, Appellants limited their original demand and requested that

Admissions numbered ten through twenty-four, excepting Admission number

sixteen, included in Exhibit 36a be read to the jury. N.T., 8/8/13, at 659.

The trial court agreed in principle that the statements should be deemed

admitted because of Appellees’ failure to timely respond to Appellants’

discovery request, but ruled against admissibility, questioning both the

timing of the proffer and its evidentiary value in light of the testimony

offered at trial. Making the additional observation that Appellants were not

prejudiced by Appellees’ late response to the Requests for Admissions, the

trial court employed the liberal construction precepts of Pa.R.C.P. 126 to

negate operation of Rule 4014(b). N.T., 8/8/13, at 663–664.

      Despite the trial court’s ruling, Appellants continued to advocate that

certain admissions should be read to the jury because they were admitted


1
  Exhibit 36b entitled, “Proposed Admissions Not Agreed To By Defendant”
was a compilation of facts gleaned from depositions and medical records.
N.T., 8/8/13, at 657. In this appeal, Appellants do not contest the trial
court’s decision precluding admission of Exhibit 36b at trial.

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by Appellees in their eventual response to Appellants’ Requests for

Admissions.2 The trial court again denied Appellants’ request reiterating that

admission of this evidence would be repetitive of trial testimony.         N.T.,

8/8/13, at 665. Appellants’ final plea that Admission thirty-two, relating to

the availability of non-invasive tests to assess arterial disease, was likewise

rejected by the trial court. Id. at 665–666.3

      The trial court expanded on its rationale for its evidentiary ruling on

Exhibits 36a and 36b in its opinion denying post-trial relief:

            First, the Court determined it was not appropriate to read
      the admissions that were not responded to by Defendants
      because all those admissions were testified to at trial, it would
      therefore be repetitious to read those admissions to the jury.
      Second, while the Court agreed in principle that [Pa.R.Civ.P.]
      4014(b) provides that Admissions not timely responded to are
      deemed admitted, the Court was concerned that this issue was
      not raised by Plaintiffs until the end of the trial. In addition,
      there was testimony to the effect that Defendants did not in fact
      agree with all of the Admissions, and the Court believed that this
      issue would have been more properly raised during testimony or,
      preferably, pre-trial, i.e., in discovery; further, there was
      testimony wherein Defendants did in fact admit to some of the
      admissions, rendering any potential reading of the Admissions
      into evidence duplicative. The court also determined Admission

2
   Specifically, Appellants requested that Admissions ten, seventeen,
nineteen, and twenty-one be submitted to the jury. N.T., 8/8/13, at 664.
Review of the pleadings reveals that while Appellees admitted to Admissions
ten and seventeen, they objected to the statements as hearsay and averred
that they would be inadmissible at trial. Defendants’ Motion in Limine,
Exhibit B at unnumbered 2.       Additionally, and contrary to Appellants’
representations, Appellees denied Admissions nineteen and twenty-one. Id.
at unnumbered 2, 3.
3
  We note that Appellee admitted to the availability of these tests at trial.
N.T., 8/7/13, at 314–315; 339.

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J-A34023-14



      responses were provided at a date not sufficiently late to
      prejudice the Plaintiffs. Finally, relying on [Pa.R.Civ.P.] 126, a
      rule rarely relied on by this Court but which the Court believes is
      intended for cases such as this, the Court liberally construed
      Rule 4014. For the reasons stated above, the Court’s decision
      was not in error.

Trial Court Opinion Denying Post-Trial Relief, 3/4/14, at 9.4        On appeal,

Appellants’ overarching argument is that the trial court erred when it applied

Rule 126 to exclude from evidence Exhibit 36a’s recital of facts deemed

admitted under Rule 4014(b).

      Interpretation and application of Pennsylvania Rules of Civil Procedure

present a question of law.     Accordingly, our scope of review is plenary.

Keller v. Mey, 67 A.3d 1, 5 (Pa. Super. 2013) (citing Gray v. Buonopane,

53 A.3d 829, 834 (Pa. Super. 2012)).

      Pa.R.C.P. 4014 provides in pertinent part:

           (a) A party may serve upon any other party a written
      request for the admission, for purposes of the pending action
      only, of the truth of any matters . . . set forth in the request that
      relate to statements or opinions of fact or of the application of
      law to fact, including the genuineness, authenticity, correctness,
      execution, signing, delivering, mailing or receipt of any
      documents described in the request.

          (b) Each matter of which an admission is requested shall be
      separately set forth. The matter is admitted unless, within thirty
      days after service of the request or within such shorter or
      longer time as the court may allow, the party to whom the


4
  In its Pa.R.A.P 1925(a) Memorandum Opinion in Support of Order, the trial
court referred this Court to its Opinion and Order Denying Motion for Post-
Trial Relief and submitted that no further statement was required. Trial
Court Opinion, 4/8/14, at unnumbered 2.

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J-A34023-14



     request is directed serves upon the party requesting an
     admission an answer verified by the party or an objection,
     signed by the party or by the party’s attorney. . . .

                                 ***

        (d) Any matter admitted under this rule is conclusively
     established unless the court on motion permits withdrawal or
     amendment of the admission.

Pa.R.C.P. 4014(a), (b), and (d) (emphasis added).

     Pennsylvania Rule of Civil Procedure 126 provides:

           The rules 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.

Pa.R.C.P. 126.

     In   examining   the   “letter   and    intent   of   Pa.R.C.P.   4014,”   the

Pennsylvania Supreme Court has explained:

            The purpose of the procedure provided in Rule 4014 is to
     clarify the issues raised in prior pleadings with the goal of
     expediting the litigation process. Rule 4014 is designed to
     expedite the production and authentication of evidence that is
     not controverted by the litigants . . . . Rule 4014 permits the
     court to modify the time for responding to requests for
     admissions (Pa.R.C.P. 4014(b)); places the burden on the
     requesting party to move for the clarification and enforcement of
     defective answers (Pa.R.C.P. 4014(c)); and permits the
     withdrawal of or amendment to answers to requests for
     admissions “when the presentation of the merits of the action
     will be subserved thereby” and where the requesting party has
     failed to establish that the withdrawal of or amendment to
     answers to requests for admissions will prejudice that party “in




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      maintaining the action or defense on the merits.”        (Pa.R.C.P.
      4014(d) (emphasis added)).

Stimmler v. Chestnut Hill Hospital, 981 A.2d 145, 160 n.18 (Pa. 2009)

(quoting Goodrich-Amram 2d §4014:1, p. 444) (punctuation omitted).

      Our Supreme Court has also spoken on the doctrine of substantial

compliance incorporated in Pa.R.C.P. 126. In Womer v. Hilliker, 908 A.2d

269 (Pa. 2006), the Court stated that although it “expect[s] that litigants will

adhere to procedural rules as they are written, . . . we have always

understood that procedural rules are not ends in themselves, and that the

rigid application of our rules does not always serve the interests of fairness

and justice.” Id. at 276. See also Anthony Biddle Contractors, Inc. v.

Preet Allied American Street, LP, 28 A.3d 916, 924 (Pa. Super. 2011)

(Rule 126’s doctrine of substantial compliance affords trial courts latitude to

overlook procedural defects that do not prejudice party’s rights).

      Appellants contend that the Womer holding does not apply to exempt

Appellees from Rule 4014(b)’s “deemed admitted” provision because

Appellees did not substantially comply with Rule 4014 and because

Appellants’ rights were substantially affected by Appellees’ dilatory conduct.

Appellants cite to Appellees’ eleven-month delay in submitting responses to

the Request for Admissions and Appellees’ failure to move affirmatively for

relief from the admissions, as provided in Rule 4014(d), as indicative of

Appellees’ abject disregard for the procedural rules.    Appellants also claim


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that they were prejudiced by the trial court’s refusal to admit Appellees’

admissions into evidence because certain averments germane to establishing

Appellee’s negligence—specifically that: 1) Appellant had undiagnosed and

untreated artery disease that progressed; 2) arterial insufficiency is rarely a

stable condition in high risk patients; 3) doctors owe a heightened duty of

care to high risk patients; and, 4) non-invasive tests exist to assess extent

of arterial disease—were transformed from established truths into regular

testimony.

      We begin by recognizing that the practical effect of the trial court’s

utilization of Rule 126 to trump Rule 4014(b) was that Appellees’

significantly tardy responses to Appellants’ Requests for Admissions was

excused. The trial court’s action thus represented a tacit extension of the

thirty-day response time delineated in Rule 4014(b).

      We cannot conclude that the trial court erred when it applied Rule 126

to override Rule 4014(b)’s thirty-day response time.      First, Rule 4014(b)

itself permits the court to extend the time for parties to respond to requests

for admissions.   While we note with disfavor the cavalier attitude towards

the rules of discovery displayed by Appellees throughout this litigation, the

responses to the Requests for Admissions were filed eighteen months before

the start of trial, a significant time for Appellants to conduct additional




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J-A34023-14



discovery if they felt the same was necessary after receiving Appellees’

responses.

      Second, we agree with the trial court that Appellants waited too long in

the trial process to request admission of Exhibit 36a. At the point Appellants

proposed that the exhibit be read to the jury, two days of testimony on the

subject matter of the admissions had been presented to the jury.          See

P.C.S. v. J.E.B., 659 A.2d 1043, 1048 (Pa. Super. 1995) (party advocating

that unanswered admissions be deemed accepted as true should have

lodged objection before lengthy testimony contradicting the admissions was

taken at trial).

      Third, as to any prejudice suffered, Appellants claim that the trial

court’s application of Rule 126 converted the nature of some of the

testimony presented to the jury from admitted to debated.     Thus, the jury

was not compelled to accept these facts as true; rather, it was free to

employ its discretion to weigh the credibility of all of the testimony on these

matters.

       We agree in theory with Appellants’ description of the legal effect of

the trial court’s decision to employ Rule 126; however, the trial court

determined that no prejudice was suffered because Appellees’ responses

were filed “at a date not sufficiently late to prejudice [Appellants],” without

comment on how the nature of the testimony was implicated.         Trial Court




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Opinion, 3/4/14, at 9.       We conclude that the trial court accurately

emphasized the timing factor.

      In Estate of Borst v. Edward Stover Sr. Testamentary Trust, 30

A.3d 1207, 1211 (Pa. Super. 2011), a case involving whether particular

statements that the trial court deemed admitted under Rule 4014(b) were

actually conclusions of law and, therefore, beyond the permissible scope of

requests for admissions, this Court had occasion to comment on the concept

of prejudice resulting from permitting withdrawal of an admission. Quoting

Dwight v. Girard Medical Center, 623 A.2d 913, 916 (Pa. Cmwlth. 1993),

we observed that “[t]he test of prejudice turns on whether a party opposing

the withdrawal [of an admission] is rendered less able to obtain the evidence

required to prove the matters which had been admitted.” Borst, 30 A.3d at

1211. So too here, whether Appellants suffered prejudice from the court’s

acceptance of Appellees’ nunc pro tunc responses should focus on the timing

of their filing in relation to the commencement of trial.     Since the record

reveals that Appellees’ responses contesting liability were served on

February 20, 2012, eighteen months prior to the start of trial on August 5,

2013, we find no error in the trial court’s conclusion that Appellants failed to

demonstrate prejudice.

      Finally, the trial court’s decision to accept Appellees’ late responses

was consistent with Rule 4014’s merit-based approach to litigation and the




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J-A34023-14



case law instructing that the purpose of the procedures outlined in Rule 4104

is to clarify the issues, streamline the lawsuit’s process, and authenticate

uncontroverted evidence. Stimmler, 981 A.2d at 160 n.18. Rule 4014(b)

should not be applied solely as a punitive measure when, as here, Appellees

eventually complied with the discovery request, and there was no showing of

prejudice.   The trial court’s decision also reflects an acknowledgment that

strict application of procedural rules may not comport with the interests of

fairness and justice.    Biddle Contractors, 28 A.3d at 924.         For these

reasons, we find no error in the trial court’s interpretation and application of

the procedural rules.5

      II. Two Schools of Thought Jury Instruction

      Appellants next argue that the trial court erred when it instructed the

jury on the two schools of thought doctrine. We conclude that this issue was

not properly preserved for appeal due to Appellants’ failure to lodge a

specific and timely objection to the trial court’s instruction.

      Prior to instructing the jury, the trial court and counsel discussed the

parties’ proposed points for charge.     Appellees’ Proposed Point for Charge

Number 28 requested the trial court to instruct the jury on the two schools


5
  Because we conclude that the court did not err in this regard, we need not
confront Appellants’ ancillary issue of whether the Admissions that they
requested be read to the jury, namely, Exhibit 36a, can be considered
repetitive of trial testimony because misapplication of Rule 126 converted
facts relevant to alleged acts of negligence from established as true into
ordinary testimony.

                                        -13-
J-A34023-14



of thought doctrine, a principle applied in medical malpractice cases when

competent medical authority is divided on the appropriate course of

treatment for a particular patient or in a particular medical situation. Jones

v. Chidester, 610 A.2d 964, 969 (Pa. 1992). Defendants’ Proposed Points

for Charge, 7/29/13, at 30.     The trial court accepted the point for charge

without objection from Appellants.      N.T., 8/8/13, at 685.      After closing

arguments, the trial court included the two schools of thought instruction in

its charge to the jury as requested by Appellees and, again, Appellants did

not lodge an objection to the instruction prior to the jury retiring for its

deliberations.

      After the jury left the courtroom, the following exchange occurred:

      [Appellants’ Counsel]:     Your Honor, I did want to note an
      objection on the record about the two schools of thought
      doctrine that you instructed on. I object to that.

      THE COURT: Okay. Thank you very much. And I apologize, I
      should have asked both of you before they went out.

N.T., 8/9/13, at 788.

     Under Pa.R.C.P. 227(b), objections to jury instructions must be made

before the jury retires to deliberate, unless the trial court specifically allows

otherwise.       Passarello v. Grumbine, 87 A.3d 285, 292 (Pa. 2014).

Additionally, if a party fails to object specifically to a trial court’s jury

instruction, the objection is waived and cannot be raised in a subsequent

appeal.   Cruz v. Northeastern Hospital, 801 A.2d 602, 610–611 (Pa.


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Super. 2002) (quoting Randt v. Abex Corporation, 671 A.2d 228, 232 (Pa.

Super. 1996)). Further, we will not consider a claim on appeal which was

not called to the trial court’s attention at a time when any error committed

could have been corrected. “‘[O]ne must object to errors, improprieties or

irregularities at the earliest possible stage of the adjudicatory process to

afford the jurist hearing the case the first occasion to remedy the wrong and

possibly avoid an unnecessary appeal to complain of the matter.’” Keffer v.

Bob Nolan's Auto Service, Inc., 59 A.3d 621, 645 (Pa. Super. 2012)

(quoting McManamon v. Washko, 906 A.2d 1259, 1274 (Pa. Super.

2006)) (quotation omitted).

      It is undisputed that Appellants here did not object to the propriety of

the two schools of thought jury instruction when Appellees proposed the

charge, when the trial court accepted the point for charge, and prior to the

jury’s dismissal to begin deliberations. It was only after the jury retired that

Appellants presented their challenge to the instruction. However, Appellants

did not identify the legal basis for their objection, did not request that the

trial court make a ruling on their objection, or request that the court recall

the jury for supplemental instructions.         In other words, nothing in

Appellants’ perfunctory objection provided the trial court with a basis to

remedy any possible error in the jury instruction.




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      Also, we have considered and rejected the notion that the trial court’s

candid acknowledgment that it should have asked for counsels’ input prior to

releasing the jury to commence deliberations relieves Appellants from the

mandate of Rule 227(b) in that the rule empowers the trial court to specify

another time when objections to jury instructions will be accepted.        Even

recognizing the trial court’s oversight, its misstep did not equate to an

override of Rule 227(b)’s timing dictate, nor did it relieve Appellants of their

duty to present objections to the instruction before the jury deliberates. The

court is not obligated to ask counsel if he has objections; rather, counsel is

required, in a timely manner, to note affirmatively any protestations

concerning the conduct of the proceedings. For these reasons, we conclude

that Appellants waived their claim that the two schools of thought instruction

was not appropriate in this matter.

      III. Refusal of Appellants’ Proposed Points for Charge—Standard of
           Care

      Appellants proposed that the jury be instructed that the standard of

care owed by a physician varies according to the degree of danger posed by

a patient’s condition. Plaintiffs’ Points for Charge, 8/5/13, at 3. Specifically,

Appellants suggested that because Appellant was a patient at risk of

amputation, the jury should have been instructed that Appellee should be

held to a magnified standard of care. Appellants also proposed that the jury

be specifically instructed that the applicable standard of care required a


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podiatrist to promptly refer a patient in Appellant’s condition to a vascular

surgeon. Plaintiffs’ Points for Charge, 8/5/13, at 7. The trial court rejected

Appellants’ Proposed Point 3 and provided its own instruction on the duty of

care question.   It likewise refused Proposed Point 7, observing that the

request for a specific podiatric standard of care instruction was unnecessary

as its substance was fully addressed by its own instructions.     Trial Court

Opinion, 3/4/14, at 13.

      Our standard of review regarding jury instructions is limited to

determining whether the trial court committed a clear abuse of discretion or

error of law which controlled the outcome of the case.      Error in a charge

occurs when “the charge as a whole is inadequate or not clear or has a

tendency to mislead or confuse rather than clarify a material issue.”

Gorman v. Costello, 929 A.2d 1208, 1211–1212 (Pa. Super. 2007)

(citation omitted).   Conversely, “[a] jury instruction will be upheld if it

accurately reflects the law and is sufficient to guide the jury in its

deliberations.” Cruz, 801 A.2d at 611 (citation omitted).

             [T]he proper test is not whether certain portions or
      isolated excerpts taken out of context appear erroneous. We
      look to the charge in its entirety, against the background of the
      evidence in the particular case, to determine whether or not
      error was committed and whether that error was prejudicial to
      the complaining party.”

Estate of Hicks v. Dana Companies, LLC, 984 A.2d 943, 972 (Pa. Super.

2009) (quoting Schmidt v. Boardman Co., 958 A.2d 498, 515 (Pa. Super.


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2008)) (subsequent history and quotation omitted). In other words, “there

is no right to have any particular form of instruction given; it is enough that

the      charge   clearly   and   accurately   explains   the   relevant   law.”

Commonwealth v. Alvin, 516 A.2d 376, 381 (Pa. Super. 1986) (citation

omitted).

         Appellants argue that the trial court erred in refusing their proposed

points for charge on the standard of care because the jury was not made

aware that Appellee owed a heightened duty of care to Appellant given his

status as a high risk patient.     Appellants contend that in light of defense

counsel’s closing argument that the standard of care did not require Appellee

to conduct vascular testing for non-palpable pulses because other podiatrists

did not conduct such testing, the instruction as given permitted the jury to

apply an inappropriate subjective standard when evaluating the duty of care

issue.

         We have carefully reviewed the trial court’s instruction concerning the

duty of care and conclude that it accurately explained the law to guide the

jury in its deliberations. Despite Appellants’ assertion that the jury was not

instructed to view the evidence objectively, the trial court properly charged

on the reasonable person standard as follows:

                The legal term negligence, otherwise known as
         carelessness, is the absence of ordinary care that a reasonably
         prudent person would use in the circumstances presented in a
         case like this.


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            Negligent conduct may consist either of an act or failure to
      act when the party has a duty to do so. In other words,
      negligence is the failure to do something that a reasonably
      careful person would be or doing something that a reasonably
      careful person would not do in light of the all the surrounding
      circumstances that is evidenced in this case.

             It is for you to decide how a reasonably careful person
      would act in those circumstances established by the evidence in
      this case.

             This case involves medical professional negligence being
      alleged. Professional medical negligence consists of a negligent,
      careless or unskilled performance by a physician of the duties
      imposed on him by the professional relationship with the patient.
      It is also negligence when a physician shows lack of proper care
      and skill in performance of a professional act.

N.T., 8/9/13, at 754–755.

      The trial court also instructed correctly on the concepts of duty and

standard of care as follows:

           A physician such as Dr. Snyder must have the same
      knowledge and skill and use the same care normally used in his
      medical profession podiatry. A podiatrist whose conduct falls
      below the standard of care is negligent.

            A physician such as Dr. Snyder, who professes to be a
      specialist in a particular field, in this case podiatric medicine, he
      must have the same knowledge and skill and use the same care
      as others in that same medical specialty. A specialist who . . .
      does not meet this professional standard of care is negligent.

             Under the standard of care, a podiatrist must also keep
      informed of the contemporary developments in his medical
      profession and his [specialty] and must use current skills and
      knowledge. In other words, a podiatrist must have up-to-date
      medical skills and knowledge, and if he fails to keep current or
      fails to use current knowledge in the medical treatment of his
      patient, then the podiatrist is negligent.


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               You must decide whether Dr. Snyder was negligent. If you
         decide that Dr. Snyder was negligent, then you must determine
         whether the Defendant’s negligence was a factual cause of harm
         to Mr. Krepps. If you so decide, then you must also decide the
         amount of money to be awarded to Mr. Krepps for the negligent
         conduct.

               In a medical case, when a doctor or a podiatrist
         undertakes the treatment of a patient, it is within the scope of
         that doctor’s duty of care to protect his patient against
         preventable injuries, which could have reasonably been incurred
         during the treatment and to provide treatment with reasonable
         medical care.

               If a physician does not avail himself of the scientific means
         and facilities open to him for the collection of the best factual
         data upon which he is basing his treatment, the result is
         negligence and failing to incur an adequate factual basis upon
         which to support that physician’s judgment.

               Dr. Snyder was required to avail himself of [appropriate]
         diagnostic tools available in order to secure an adequate factual
         basis with which to support his judgment.

Id. at 757–759.

         Appellants fail to identify any legal inaccuracies in the trial court’s

instruction on medical negligence that would mislead or confuse the jury.

Their position that the charge should have been tailored to respond to the

particular factual scenario of this matter or to counteract the impact of

Appellee’s closing argument is unavailing.       A party has no right to have a

particular form of instruction; it is sufficient if the trial court’s charge clearly

and accurately explains the relevant law and properly covers the requested

point.     Alvin, 516 A.2d at 381.        Likewise, when formulating the jury




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instructions, the trial court is not obligated to temper the contents to

respond to counsels’ arguments. Finding no legal error, we uphold the trial

court’s jury instruction.

      IV. Motion for Summary Judgment

      Appellants filed a Motion for Summary Judgment requesting the court

to: 1) determine that Appellee had an affirmative duty to protect Appellant

from the foreseeable risk of amputation, and 2) determine the standard of

care that applied under the facts of the case.      While the motions court

agreed that by operation of Rule 4014(b), the averments included in

Appellants’ Requests for Admissions, identified as Exhibit 36a, infra, were

deemed admitted for purposes of deciding the motion, it declined to accord a

similar designation to those averments that Appellants described as facts

without controversy (identified as Exhibit 36b, infra). Summary Judgment

Opinion, 9/14/12, at unnumbered 5.6 Thus, in light of outstanding issues of

fact and conflicting expert opinions, the motions court denied Appellants’

motion for summary judgment. Id. at unnumbered 6–7.

      Our review of a trial court's order denying summary judgment is

plenary, and 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.


6
   The motion for summary judgment was adjudicated by a different judge
than the jurist who presided over the trial. In his opinion denying post-trial
relief, the trial court simply referred to his colleague’s opinion denying
summary judgment. Trial Court Opinion, 3/4/14, at 13–14.

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J-A34023-14



Krauss v. Trane USA Inc., 104 A.3d 556, 562–563 (Pa. Super. 2014)

(quotation omitted).   Summary judgment is appropriate “when the record

clearly shows that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law.” Weissberger v.

Myers, 90 A.3d 730, 733 (Pa. Super. 2014) (quoting Hovis v. Sunoco,

Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013)).          The record is viewed

favorably to the nonmoving party and only when the facts are so clear that

reasonable minds could not differ can a trial court properly enter summary

judgment. Id.

      Appellants first contend that the trial court erred because it did not

initially determine the duty owed to Appellant and the standard of Appellee’s

care arising from that duty, specifically, that Appellee had a duty to protect

Appellant from the foreseeable risk of amputation. In this regard, Appellants

restate their argument that Appellee’s expert’s opinion was improperly

subjective and did not provide the court or the jury with a valid basis to

establish a standard of conduct. Appellants assert that the trial court should

have rejected Appellee’s expert report and adopt the objective standard of

conduct stated in Appellants’ experts’ report when it adjudicated the

summary judgment motion.

      As we understand this argument, Appellants are suggesting that the

trial court erred when it decided that the conflicting expert opinions here




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posed a question of fact because their expert’s report correctly described the

standard of care applicable in this matter, and Appellees’ expert did not do

so. In effect, then, Appellants are raising an issue of credibility.

      With regard to expert opinions in the context of summary judgment:

“It has long been Pennsylvania law that, while conclusions recorded by

experts may be disputed, the credibility and weight attributed to those

conclusions are not proper considerations at summary judgment; rather,

such determinations reside in the sole province of the trier of fact . . . .”

DeArmitt v. New York Life Insurance Co., 73 A.3d 578, 595–596 (Pa.

Super. 2013) (quoting Glaab v. Honeywell International, Inc., 56 A.3d

697–698 (Pa. Super. 2012)) (internal quotation, citations, and quotation

marks omitted).

      The parties’ experts presented conflicting views of the standard of care

under the circumstances presented. The motions court was not obligated to

accept either formulation. Instead, the motions court decided correctly that

the contradictory expert opinions created an issue of fact rendering

summary judgment unfitting. In light of the conflicting evidence, it would

have been error for the court to disregard Appellee’s expert’s opinion and

accept Appellants’ expert’s report as establishing the correct standard of

care as a matter of law.




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J-A34023-14



     Appellants also claim that the trial court abdicated its responsibility

established under Restatement of Torts (Second) § 328B to ascertain the

duty owed to Appellant and the standard of care required by that duty.

Section 328B delineates the functions of the court and the jury in negligence

cases and instructs:

     In an action for negligence the court determines:

           (a) whether the evidence as to the facts makes an issue
     upon which the jury may reasonably find the existence or non-
     existence of such facts;

           (b) whether such facts give rise to any legal duty on the
     part of the defendant;

            (c) the standard of conduct required of the defendant by
     his legal duty;

           (d) whether the defendant has conformed to that
     standard, in any case in which the jury may not reasonably come
     to a different conclusion;

            (e) the applicability of any rules of law determining
     whether the defendant’s conduct is a legal cause of harm to the
     plaintiff; and

            (f) whether the harm claimed to be suffered by the plaintiff
     is legally compensable.

Restatement (Second) of Torts § 328B.

     However, the trial court’s obligation to render determinations under

section 328B is not triggered if there are outstanding questions of fact. As

noted in paragraph d to Comment on clause a of § 328B, the court in the

first instance has the power and duty to decide whether the evidence as to



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J-A34023-14



the facts is such that the jury may reasonably come to more than one

conclusion.   If only one conclusion may reasonably be drawn, the issue is

withdrawn from the jury. However, where the jury may reasonably arrive at

either conclusion as to the existence of pertinent facts, the issue is for the

jury to decide.

      In the instant matter, the motions court determined that the evidence

in this matter was vulnerable to different conclusions, and for this reason,

summary judgment was inappropriate. Given the opposing opinions of the

experts as to the duty owed by Appellee and his standard of care, there was

no error in this decision. The motions court was correct that the issues of

fact must be submitted to the jury.

      Finally, Appellants aver that the motions court mischaracterized the

facts they proposed as “established without controversy” as controverted.

Appellants claim that the facts they submitted were indisputable because

they consisted of admissions made by Appellee in his deposition or medical

records and that the motions court should have been accepted as true when

deciding the summary judgment motion.7



7
   Appellants offer scant support for their argument that the facts at issue
were never controverted. Other than a generic reference to Exhibit 36b,
Appellants do not attempt to defend their premise that the facts it submitted
were undisputed. The only specific admission it references, that Appellant
had untreated peripheral artery disease that led to amputation, was a Rule
4014 admission that the motions court had deemed admitted. Additionally,
the notes from Appellee’s medical records that Appellants describe as

                                      -25-
J-A34023-14



         Appellants’ argument turns the proper standard for adjudicating

summary judgment motions on its head.        The concept that the summary

judgment record is viewed favorably to the nonmoving party certainly

argues against Appellants’ position that the motions court should have

accepted their version of the facts as clearly established. The motions court

here properly evaluated the record against Appellants and decided it was not

in a position to accept controverted facts as established.       This was an

appropriate exercise of the trial court’s authority to award summary

judgment only when reasonable minds could not differ on the clarity of the

facts.    “It is not the court’s function upon summary judgment to decide

issues of fact, but only to decide whether there is an issue of fact to be

tried.”     Fine v. Checcio, 870 A.2d 850, 861–862 (Pa. 2005) (citing

Pa.R.C.P. 1035.2(1)). There was no abuse of discretion or error of law in its

decision.8




demonstrating Appellee’s awareness that Appellant should have been
referred to a vascular surgeon, consisted of Appellee’s documentation of
Appellant’s symptoms. Appellants do not, and cannot contend, that Appellee
admitted in these records that an earlier surgical referral was mandated.
Indeed, the timing of the referral is one of the debated issues of fact in this
litigation.
8
   A further observation on this issue is that our Supreme Court has
questioned whether it is within the spirit of the Rules of Civil Procedure to
award summary judgment through utilization of deemed admissions. See
Stimmler, 981 A.2d at 160 n.18.

                                      -26-
J-A34023-14



     For all of these reasons, we affirm the judgment in Appellees’ favor.

Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/24/2015




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