J. A10001/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


ESTATE OF PAUL S. TERRY, JR.,              :     IN THE SUPERIOR COURT OF
DECEASED                                   :          PENNSYLVANIA
                     APPELLANT             :
               v.                          :
                                           :
CATHEDRAL VILLAGE                          :
                                           :
                                           :
                                           :     No. 1826 EDA 2016

              Appeal from the Order Entered January 11, 2016
            In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): March Term, 2014, No. 820

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                FILED MAY 23, 2017

      Appellant, the Estate of Paul S. Terry, Jr., appeals from the January

11, 2016 Order entered in the Philadelphia County Court of Common Pleas

granting the Motion for Summary Judgment filed by Cathedral Village

(“Appellee”) and dismissing Appellant’s Complaint with prejudice.          After

careful review, we affirm.

      The trial court set forth the facts and procedural history as follows:

         On February 2, 2009, Paul S. Terry (“Decedent”) was
         admitted to Cathedral Village as a resident of its continuing
         care retirement community facility located at 600 E.
         Cathedral Road in Philadelphia. He remained at Cathedral
         Village until his death on March 7, 2012. On July 30,
         2014, [Appellant] filed a [C]omplaint for one count of
         negligence against [Appellee], alleging [that Appellee’s]
         “negligent and careless evaluation, care, treatment,
         service and supervision” led to Decedent’s death from
         sepsis.
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         On July 31, 2014, a case management conference was
         held and a Case Management Order was issued. The
         Order established October 5, 2015[,] as the discovery
         deadline. The deadline for production of expert reports
         was November 2, 2015.          On October 15, 2015,
         [Appellee’s] Motions to Compel Discovery and Compel
         Depositions were granted as unopposed.

         On December 1, 2015, [Appellee] filed a Motion for
         Summary Judgment. On January 5, 2016, [Appellant] filed
         a [R]esponse to [Appellee’s] Motion and included a
         proposed [O]rder, which requested additional time for
         [Appellant’s] expert report.

         On January 11, 2016, the [c]ourt granted [Appellee’s]
         Motion; [Appellant’s] Complaint and all claims against
         [Appellee] were dismissed with prejudice.

         On February 12, 2016, in accordance with his proposed
         order, [Appellant] served [Appellee’s] counsel [with
         Appellant’s] expert medical report.        Due to an
         administrative error, [Appellant] never received written
         notice of the [c]ourt’s January 11, 2016 Order granting
         [Appellee’s] Motion.

         On June 3, 2016, [Appellant] filed a notice of appeal. On
         June 7, 2016, the [c]ourt ordered [Appellant] to provide a
         Concise Statement of Errors Complained of on Appeal
         pursuant to Pa.R.A.P. 1925(b). [Appellant complied.]

Trial Ct. Op., 11/17/16, at 1-2 (citations omitted, paragraph breaks

inserted).

      Appellant raises the following two issues on appeal:

         1. Did the lower court fail to provide required notice of the
         January 11, 2016 Order thereby denying Appellant the
         opportunity to file a timely Notice of Appeal and in
         violation of Appellant’s right of due process?

         2. Did the lower court wrongfully grant [Appellee’s] Motion
         for Summary Judgment where Appellant had provided
         notice to [Appellee] and the court that an expert opinion


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           was being tendered to support the Complaint and the
           existence of material disputed facts?

Appellant’s Brief at 4.

      In his first issue, Appellant complains that the trial court failed to

provide him with notice of the Order granting Appellee’s Motion for Summary

Judgment, thereby preventing him from filing a timely Notice of Appeal.

Appellant’s Brief at 13-18.

      Our law is clear that “[t]he time for filing an appeal does not begin to

run until (1) the order has been entered upon the appropriate docket, and

(2) a notation appears in the docket that proper notice has been given

concerning the entry of the order." Jara v. Rexworks Inc., 718 A.2d 788,

791 (Pa. Super. 1998) (emphasis added). It does not matter whether the

parties had actual notice of the order nor does it matter when the parties

received actual notice.     Vertical Resources, Inc. v. Bramlett, 837 A.2d

1193, 1199 (Pa. Super. 2003). The Rule 236 notice must be provided and

docketed before an order can be considered "entered." See Jara, 718 A.2d

at 791 (criticizing Allegheny County practice of failing to docket Rule 236

notice).

      Our    Supreme      Court   held   as    follows   in   Frazier   v.   City   of

Philadelphia, 735 A.2d 113 (Pa. 1999):

           Rule of Appellate Procedure 301(a) provides that "no order
           of a court shall be appealable until it has been entered
           upon the appropriate docket in the lower court." Further,
           Rule of Appellate Procedure 108(b) designates the date of
           entry of an order, for purposes of appeal, as follows:


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            (b) Civil orders. The date of entry of an order in a
            matter subject to the Pennsylvania Rules of Civil
            Procedure shall be the day on which the clerk makes
            the notation in the docket that notice of entry of the
            order has been given as required by Pa.R.Civ.P.
            236(b).

         Pa.R.A.P. 108(b). . . . Rule of Civil Procedure 236(b)
         describes the prothonotary's obligation to "note in the
         docket the giving of the notice and, when a judgment by
         confession is entered, the mailing of the required notice
         and documents."

         Thus, pursuant to the express terms of the rules, an order
         is not appealable until it is entered on the docket with the
         required notation that appropriate notice has been given.
         That the parties may have received notice of the order
         does not alter the formal date of its entry and the
         associated commencement of the period allowed for appeal
         for purposes of the rules. The procedural requirements
         reflected in the rules serve to promote clarity, certainty
         and ease of determination, so that an appellate court will
         immediately know whether an appeal was perfected in a
         timely manner, thus eliminating the need for a case-by
         case factual determination.

Id. at 115 (citations omitted).

      In the present case, the record does not indicate that the trial court

sent proper notice to Appellant pursuant to Rule 236. In fact, a Rule 236

Notice of the January 11, 2016 Order does not appear on the docket as of

this writing. Consistent with our holding in Vertical Resources, however,

we conclude that, because the Rule 236 Notice has not been sent, the

appeal period has not yet been triggered in this case.     In the interest of

judicial economy, we regard as done that which ought to have been done

and proceed accordingly.     See Vertical Resources, 837 A.2d at 1199


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(explaining that it is a waste of judicial resources to remand a matter for the

sole purpose of requiring that Rule 236 notice be provided to perfect a notice

of appeal).     As required by Vertical Resources, we deem the present

appeal to have been timely filed from the trial court's order of January 11,

2016.

        In his second issue, Appellant claims the trial court erred in granting

Appellee’s Motion for Summary Judgment because issues of material fact

remain and Appellant had requested an extension of time to submit an

expert opinion in support of his Complaint.       Appellant’s Brief at 18-29.

Appellant further claims that the trial court erred in not granting the

requested extension until February 12, 2016.1 Id. at 18-19.

        Pa.R.C.P. No. 1035.2 provides that a party may move for summary

judgment, after the relevant pleadings are closed, whenever there is no

genuine issue of any material fact as to a necessary element of the cause of

action or defense that could be established by additional discovery or an

expert report. See Pa.R.C.P. No. 1035.2(1)-(2).

        Our standard of review of an Order granting summary judgment is

well-settled.

          . . . [A]n appellate court may reverse a grant of summary
          judgment if there has been an error of law or an abuse of
          discretion. But the issue as to whether there are no

1
 Appellant does not develop this specific sub-claim separately; thus, we will
not address it except to the extent that it impacts our review of the Order
granting summary judgment.



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        genuine issues as to any material fact presents a question
        of law, and therefore, on that question our standard of
        review is de novo. This means we need not defer to the
        determinations made by the lower tribunals. To the extent
        that this Court must resolve a question of law, we shall
        review the grant of summary judgment in the context of
        the entire record.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)

(citations and quotation omitted).

     A trial court may grant summary judgment “only in those cases where

the record clearly demonstrates that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter of law.”

Id. (citation and quotation omitted); see also Pa.R.C.P. No. 1035.2(1).

“When considering a motion for summary judgment, the trial court must

take all facts of record and reasonable inferences therefrom in a light most

favorable to the non-moving party.”    Summers, supra at 1159 (citation

omitted).   “In so doing, the trial court must resolve all doubts as to the

existence of a genuine issue of material fact against the moving party, and,

thus, may only grant summary judgment where the right to such judgment

is clear and free from all doubt.” Id. (citation and internal quotation marks

omitted).

     For purposes of deciding a Motion for Summary Judgment, the record

includes the pleadings, depositions, answers to interrogatories, admissions,

and affidavits. Bailets v. Pennsylvania Tpk. Comm’n, 123 A.3d 300, 301

(Pa. 2015) (citing Pa.R.C.P. No. 1035.1(1), (2)).   “Where the non-moving



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party bears the burden of proof on an issue, he may not merely rely on his

pleadings or answers in order to survive summary judgment.”           Truax v.

Roulhac, 126 A.3d 991, 997 (Pa. Super. 2015), appeal denied, 129 A.3d

1244 (Pa. 2015) (citation and quotation omitted). “Further, failure of a non-

moving party to adduce sufficient evidence on an issue essential to his case

and on which he bears the burden of proof establishes the entitlement of the

moving party to judgment as a matter of law.”        Id. (citation and internal

quotation marks omitted).     “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.” Id. (citation and quotation omitted).

      In order to prove medical malpractice, Pennsylvania law requires a

plaintiff in a medical negligence action to produce expert testimony

regarding duty, standard of care, breach of duty, causation, and damages.

Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. 2005). Pa.R.C.P. No.

4003.5(c) states that “the direct testimony of [plaintiff’s] expert at the trial

may not be inconsistent with or go beyond the fair scope of the [expert’s

report].” Pa.R.C.P. No. 4003.5(c); see also Stalsitz v. Allentown Hosp.,

814 A.2d 766, 770 (Pa. Super. 2002).        A medical malpractice plaintiff is

relieved of his burden to provide a medical expert who will testify only if he

can prove “that he has been injured by a casualty of a sort that normally

would not have occurred in the absence of the defendant's negligence.”




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Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1071

(Pa. 2006).

      On July 31, 2014, the trial court issued a Case Management Order

establishing November 2, 2015, as the deadline for production of expert

reports.   Appellant does not dispute that he failed to comply with this

production deadline, and did not request an extension of time to comply

until more than two months later, when responding to Appellee’s Motion for

Summary Judgment.      Appellant concedes that he did not actually provide

Appellee with an expert report for another month—on February 12, 2016—

after the court had already granted summary judgment.

      The instant matter arises from Appellant’s allegations that Appellee

improperly provided skilled medical and nursing services. As such, Appellant

was required to provide expert testimony regarding duty, standard of care,

breach of duty, causation, and damages. Because Appellant failed to timely

produce an expert report, he is unable to make out a prima facie case of

medical negligence and there are no genuine issues of material fact as to

any of the elements necessary to establish a prima facie claim of medical

negligence.

      Moreover, because a medical negligence plaintiff’s expert witness may

only testify at trial to matters within the scope of her report, and Appellant

did not timely produce an expert report or timely petition the court for an

extension of time to produce an expert report, the trial court correctly



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concluded that Appellant would be precluded from “calling any expert at trial

to testify as to any claims” against Appellee. Trial Ct. Op. at 6. Accordingly,

the trial court did not err in granting Appellee’s Motion for Summary

Judgment.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/23/2017




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