J-A14011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 SALLY QUIVERS, ADMINISTRATRIX         :   IN THE SUPERIOR COURT OF
 OF THE ESTATE OF GARY LEE             :        PENNSYLVANIA
 QUIVERS, SR. AND SALLY QUIVERS,       :
 AN INDIVIDUAL                         :
                                       :
                   Appellant           :
                                       :
                                       :
              v.                       :   No. 745 WDA 2018
                                       :
                                       :
 GENE W. MANZETTI, M.D.; MICHAEL       :
 LEMENTOWSKI, M.D.; THAD               :
 OSOWSKI, M.D.; AND                    :
 MONONGAHELA VALLEY HOSPITAL           :

            Appeal from the Judgment Entered April 26, 2018
   In the Court of Common Pleas of Washington County Civil Division at
                         No(s): No. 2014-2187

 SALLY QUIVERS, ADMINISTRATRIX         :   IN THE SUPERIOR COURT OF
 OF THE ESTATE OF GARY LEE             :        PENNSYLVANIA
 QUIVERS, SR. AND SALLY QUIVERS,       :
 AN INDIVIDUAL                         :
                                       :
                   Appellant           :
                                       :
                                       :
              v.                       :   No. 814 WDA 2018
                                       :
                                       :
 GENE W. MANZETTI, M.D., MICHAEL       :
 LEMENTOWSKI, M.D., THAD               :
 OSOWSKI, M.D., AND                    :
 MONONGAHELA VALLEY HOSPITAL           :

            Appeal from the Judgment Entered May 10, 2018
   In the Court of Common Pleas of Washington County Civil Division at
                          No(s): 2014-2187


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
J-A14011-19



CONCURRING MEMORANDUM BY KUNSELMAN, J.:

FILED DECEMBER 27, 2019

      I join in the lead Memorandum, except for the third appellate issue —

i.e., the participation of Mon Valley Hospital’s lawyer, Douglas R. Nolin, Esq.,

in the trial. See Majority Memorandum at 19-24.         Appellant Sally Quivers

claims we should order a retrial and ban Attorney Nolin from the proceedings.

She waived this claim by not developing her appellate argument on the issue

she preserved. Instead, Ms. Quivers gears her argument towards a question

that she never raised at trial. Thus, we should not decide whether allowing

Attorney Nolin to make a closing argument violated Deeds v. University of

Pennsylvania Medical Center, 110 A.3d 1009 (Pa. Super. 2015), appeal

dismissed, 128 A.3d 764 (Pa. 2015).

      Ms. Quivers begins this issue by asserting that she had no direct claims

of negligence pending against the hospital from the start of the jury trial. See

Ms. Quivers’ Brief at 48. She asserts that Mon Valley only remained in the

case as a stipulated agent of Dr. Thad Osowski, the anesthesiologist. This is

incorrect.

      Ms. Quivers alleged torts of vicarious liability (through the agency of Dr.

Osowski) and direct liability for corporate negligence against Mon Valley. The

latter claim arose from the hospital’s continuing extension of operating

privileges to Dr. Gene W. Manzetti, a surgeon with whom another hospital had

severed ties due to the suspension of his medical license. Before trial, the

court granted a motion in limine precluding evidence of Dr. Manzetti’s history

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of disciplinary actions. On appeal, Ms. Quivers claims this ruling “effectively

dismissed” the corporate negligence before the trial. Ms. Quivers’ Brief at 48-

9. In her view, this quasi dismissal brought the procedural posture of her case

within the scope of Deeds, supra.1

       First, a claim is never “effectively dismissed.” Either it is still part of the

case, or it is not. As Ms. Quivers soon acknowledges, her allegation of Mon

Valley’s corporate negligence remained pending until she rested her case-in-

chief and the trial court granted a compulsory nonsuit. See Ms. Quivers Brief

at 49; see also N.T., 6/16/17, at 620.2 This occurred on the fourth day of

trial. See id.

       Six days later, when the parties were about to make closing arguments,

Mrs. Quivers finally objected to Attorney Nolin’s continued representation of

the hospital. Plaintiff’s counsel stated:

                In support of our previous motion about the testimony
          of Dr. Caldwell, I want to put on the record that there is a

____________________________________________


1 The majority described the facts of Deeds v. University of Pennsylvania
Medical Center, 110 A.3d 1009 (Pa. Super. 2015), appeal dismissed, 128
A.3d 764 (Pa. 2015), so I need not repeat them here at great length. Briefly,
the liability of one defendant arose solely from the alleged liability of another
defendant. Thus, the plaintiffs’ attorney moved to limit the two defendants to
a single lawyer after the first day of trial. The trial court denied that motion,
and this Court reversed, because the trial court abused its discretion.

2 It appears that, by relying on Ms. Quivers’ Brief, the majority has mistakenly
said the trial court “granted a nonsuit as to [Ms. Quivers’ direct-negligence]
claims four days prior to trial.” Majority Memorandum at 20. Entering a
nonsuit prior to trial is impossible. A trial court may only impose a compulsory
nonsuit “at the close of the plaintiff’s case on liability” — i.e., during trial.
Pennsylvania Rule of Civil Procedure 230.1(a)(1).

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         case [from the] Superior Court called Deeds v. The
         University of Pennsylvania Medical Center . . . one of
         the defendants, as in this case, was not going to be on the
         jury ballot, but the Court permitted the lawyer for the party
         that was not going to be on the jury ballot to present
         evidence and make a closing argument.

               So in this case, as I understand it, Mon Valley Hospital
         is not going to be on this jury ballot . . . Mon Valley, by
         stipulation in here, is not going on there, because . . .
         everyone agrees that Dr. Osowski is an agent of the
         hospital.

                [Under Deeds,] Mr. Nolin should not have been able
         to put [Dr. Caldwell’s] testimony on and should not be
         allowed to make a closing argument here. Therefore, I’m
         making a motion on the record that Mr. Nolin be
         prohibited from making a closing argument, because
         his liability is only, if anything, through Dr. Osowski, and the
         hospital is not going to be on the jury ballot.

N.T., 6/22/17, at 1408-9 (emphasis added). Thus, Ms. Quivers confined her

motion to Attorney Nolin’s right to make a closing argument.

      On appeal, however, she expands her argument well beyond that motion

to engulf the whole trial. Notably, she says Deeds prohibited Attorney Nolin

from offering Dr. Caldwell’s expert testimony. See Ms. Quivers’ Brief at 52.

Although her counsel hinted at this below when first bringing this issue to the

trial court’s attention, Ms. Quivers made no specific motion regarding Dr.

Caldwell under Deeds. In fact, he had completed testifying the day prior to

the motion in question.

      “A party may claim error in a ruling to admit . . . evidence only if . . .

on the record, [that party] makes a timely objection, motion to strike, or

motion in limine; and states the specific ground . . . .” Pennsylvania Rule


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of Evidence 103(a)(1) (some punctuation omitted) (emphasis added). Here,

while Ms. Quivers filed a motion in limine and moved to strike Dr. Caldwell’s

testimony at various times, she based none of her prior motions on Deeds.

When she did raise Deeds on the last day of trial, Ms. Quivers did not move

to strike his previous testimony for the record. Thus, I find that, under Pa.R.E.

103, she waived the issue of whether Attorney Nolin could properly call Dr.

Caldwell as an expert witness, in light of Deeds.

      Moreover, “Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”        Pennsylvania Rule of Appellate

Procedure 302(a). This Rule “directs that an issue must be raised in the trial

court in order to provide that court with the opportunity to consider the issue,

rule upon it correctly, and obviate the need for appeal.” Gustine Uniontown

Assocs., Ltd. v. Anthony Crane Rental, Inc., 892 A.2d 830, 835 (Pa.

Super. 2006).

      Ms. Quivers gave the trial court no opportunity to determine whether

Deeds barred Attorney Nolin form calling or cross-examining witnesses. She

only interposed Deeds after everyone rested. I believe Ms. Quivers should

have objected to Attorney Nolin’s presence when the procedural posture of

Deeds arguably aligned with this case — i.e., when the court granted the

nonsuit on corporate negligence at the close of her case-in-chief. If Attorney

Nolin’s role became duplicative of Dr. Osowksi’s attorney, that was it.       By

keeping silent for six days, Ms. Quivers waived her opportunity to bar Attorney

Nolin’s participation in the evidentiary portion of the trial.

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      The only issue she preserved with her objection on the tenth day of trial

was whether he was “prohibited from making a closing argument . . . .” N.T.,

6/22/17, at 1409. However, Ms. Quivers does not develop that question on

appeal. Rather than explaining how the trial court abused its discretion by

allowing Attorney Nolin to close and how his closing argument prejudiced her

case, Ms. Quivers conflates the objection she made below into a blanket attack

on the hospital’s involvement in the trial at all. She fails to address the narrow

motion she made (regarding the closing argument) or why we should reverse

the trial court’s refusal to grant it.

      We have long-held that this Court:

         will address only those issues properly presented and
         developed in an appellant’s brief as required by our Rules of
         Appellate Procedure, Pa.R.A.P. 2101. Where defects in a
         brief impede our ability to conduct meaningful appellate
         review, we may . . . find certain issues to be waived . . . [I]t
         is a well-settled principle of appellate jurisprudence that
         undeveloped claims are waived and unreviewable on appeal.
         As this Court has made clear, we will not act as counsel and
         will not develop arguments on behalf of an appellant.

Sephakis v. Pa. State Police Bureau of Records & Id., 214 A.3d 680, 686-

7 (Pa. Super. 2019) (some citations and punctuation omitted).

      As explained above, Ms. Quivers does not argue the issue she preserved.

To have us review the trial court’s decision regarding Attorney Nolin’s closing,

she needed to demonstrate how that decision was an abuse of discretion under

Deeds, and how it prejudiced her case based on the substance of the closing

argument at issue. She did neither.


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     Accordingly, I would hold that Ms. Quivers has waived her third issue on

appeal and refrain from addressing its merits.




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