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CHERYL C. PIERCE v. W. ROBERT PENMAN (09/29/86)

filed: September 29, 1986.

CHERYL C. PIERCE
v.
W. ROBERT PENMAN, M.D. AND DOROTHY I. LANSING, M.D., APPELLANTS



Appeal from the Order entered May 9, 1985, Court of Common Pleas, Chester County, Civil Division at No. 10 Equity, 1981.

COUNSEL

Hugh Hutchinson, Philadelphia, for appellants.

George A. Brutscher, Kennett Square, for appellee.

McEwen, Beck and Johnson, JJ.

Author: Johnson

[ 357 Pa. Super. Page 228]

In this case we consider whether a patient, with a history of emotional problems known to her physicians, may recover compensatory and punitive damages from those physicians for severe emotional distress suffered when the physicians repeatedly refused to turn over to the patient copies of her medical records under circumstances where the physicians conceded that the patient was legally entitled to receive promptly copies of her medical records.

[ 357 Pa. Super. Page 229]

Appellee, Cheryl C. Pierce (hereinafter referred to as "patient" or "Appellee"), filed an equity complaint on January 19, 1981 against Appellants, Robert Penman, M.D. and Dorothy Lansing, M.D. (hereinafter sometimes referred to as "physicians" or "Appellants"), alleging that Appellants refused to provide copies of Mrs. Pierce's medical records to her. The complaint sought copies of the medical records, compensatory damages, punitive damages and attorney's fees. The case was tried non-jury before the Honorable Lawrence E. Wood of the Court of Common Pleas of Chester County in June of 1984.

On September 11, 1984, Judge Wood, in a Decree Nisi, ordered payments by the physicians of the patient's counsel fees, plus $1,000 for compensatory damages and $7,000 for punitive damages. In the Decree Nisi the chancellor found, and on appeal the physicians concede, that copies of the patient's requested medical records should have been promptly turned over to her.*fn1 Both sides filed exceptions, and on May 9, 1985, a court en banc amended the Decree Nisi to increase compensatory damages to $2,500 and increase punitive damages to $10,000, while striking the earlier award of attorney's fees.

Apparently the May 9, 1985 Order was never sent by the trial court to counsel for the physicians, and their counsel never saw the order until June 18, 1985. The physicians' post-trial motion seeking leave to appeal nunc pro tunc was granted on July 8, 1985 giving them ten days to file an appeal. On July 17, 1985, the physicians filed a timely appeal to this Court.

On appeal the physicians contend that the trial court abused its discretion:

     a) in failing to grant their Motion for Continuance,

     b) by awarding compensatory damages for mental anguish and emotional distress,

[ 357 Pa. Super. Page 230]

    c) in awarding punitive damages, and

     d) by awarding excessive compensatory and punitive damages.

Finding no merit to these contentions, we affirm.

Before addressing the issues raised by the physicians, we note that the instant appeal was filed more than thirty days after the trial court's May 9, 1985 adjudication. Pennsylvania Rule of Appellate Procedure 903(a) expressly provides that a notice of appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken." However, an extension of the statutory period of time during which an appeal may be taken may be justified where there is fraud or some breakdown in the court's operation. West Penn Power Company v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975). We find the trial court properly granted the physicians additional time to appeal, since failure to notify their counsel of the court's adjudication obviously represents a breakdown in the operation of the court.

Turning to the issues raised by the physicians, we first address their contention that the trial court erred in not granting their Motion for Continuance. The power to grant or refuse a request for a continuance is within the discretion of the trial court and will be reversed only where it is clear that the trial court's discretion has been abused. Phoenix Mutual Life Insurance Co. v. Radcliffe on the Delaware, Inc., 439 Pa. 159, 266 A.2d 698 (1970); Walasavage v. Marinelli, 334 Pa. Super. 396, 483 A.2d 509 (1984).

We find no abuse of discretion by the trial court in the instant case. The physician's present counsel, Hugh J. Hutchison, Esquire, who requested a continuance on June 28, 1984, is the fourth attorney to represent Appellants in this case. The trial court, in denying Attorney Hutchison's motion, made specific reference to "prior continuances and change of counsel" (N.T., 6/28/86 at 5; R. at 35a) and went on to indicate that a continuance would have delayed the start of the trial for two months or possibly longer because

[ 357 Pa. Super. Page 231]

    of the court's busy schedule. Id. Moreover, the physicians' treatment of this issue in their brief cites no specific examples of prejudice incurred by Appellants as a result of the trial court's ruling.

Next, the physicians challenge the trial court's award of compensatory and punitive damages for mental anguish and emotional distress. In Hoffman v. Memorial Osteopathic Hospital, 342 Pa. Super. 375, 381, 492 A.2d 1382, 1385-86 (1985) we recently stated:

Intentional infliction of emotional distress is an actionable wrong in Pennsylvania. See Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970); Bartanus v. Lis, 332 Pa. Super. 48, 480 A.2d 1178 (1984). This actionable wrong is ...


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