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JAMES J. BUTTERMORE AND ANN BUTTERMORE v. ALIQUIPPA HOSPITAL MICHAEL ZERNICH (11/10/87)

filed: November 10, 1987.

JAMES J. BUTTERMORE AND ANN BUTTERMORE, HIS WIFE, APPELLANTS,
v.
ALIQUIPPA HOSPITAL; MICHAEL ZERNICH, M.D., BEAVER COUNTY SPORTS MEDICINE, INC., DONALD KERR, R.P.T., MICHAEL ZERNICH, M.D. AND DONALD KERR, R.P.T. T/D/B/A PHYSIO-THERAPY AND SPORTS MEDICINE CLINIC, RODNEY ALTMAN, M.D. AND WILLIAM DUMEYER, M.D., APPELLEES, V. FRANCES E. MOSER, APPELLEE



Appeal from the Judgment Entered March 27, 1986 in the Court of Common Pleas of Beaver County, Civil Division, No. 1597 of 1983.

COUNSEL

Alfred S. Pelaez, Pittsburgh, for appellants.

John W. Jordan, IV, Pittsburgh, for appellees.

Popovich, Montgomery and Cercone, JJ. Popovich, J., files a dissenting statement.

Author: Montgomery

[ 368 Pa. Super. Page 51]

The Plaintiff-Appellants, James J. Buttermore and his wife, Ann, filed the instant appeal from an order of the lower court which granted a motion for summary judgment which had been filed by the Defendant-Appellees. The primary issue presented for review is whether the lower court was correct in finding that a release signed by the Appellant husband precluded him from asserting the claims he raised against the medical service provider Appellees in this suit. We are constrained to find that the lower court erred in its grant of summary judgment in the circumstances of this case.

In the review of this appeal, we start with the recognition that summary judgment is governed by Pa.R.C.P. 1035(b). That Rule, in pertinent part, states:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The trial court, in reviewing a motion for summary judgment, must accept as true all well-pleaded facts in the non-moving party's pleadings, as well as any admissions on file, giving the non-moving party the benefit of all reasonable inferences which may be drawn. Mattia v. Employers Mutual Companies, 294 Pa. Super. 577, 440 A.2d 616 (1982). Moreover, the record as a whole must be examined in a light most favorable to the party opposing the motion for summary judgment. Community Medical Services of Clearfield, Inc. v. Local 2665, American Federation of State, County and Municipal Employees, AFL-CIO, 292 Pa. Super. 238, 437 A.2d 23 (1981).

[ 368 Pa. Super. Page 52]

Mindful of such concepts, we turn to the record of the instant case. It indicates that on December 3, 1981, Appellant James Buttermore was injured in an automobile accident when his vehicle was struck by an automobile operated by the Appellee Frances Moser. The collision caused Mr. Buttermore to suffer lacerations to the head, cervical injury, and numbness in his feet and hands. Mr. Buttermore was transported by ambulance to Appellee Aliquippa Hospital, where he subsequently was examined and received treatment by some of the other Appellees. Subsequent to his release from the hospital, Mr. Buttermore received additional medical care for his injuries from other Appellees.

In this suit, Mr. Buttermore has asserted that he sustained damages from the Appellee health care providers as a result of their alleged negligence in failing to diagnose a fracture of his neck, and in prescribing care and actually treating him in a manner which caused an aggravation of such injuries, and a worsening of his condition. He maintained that such negligence caused him to suffer irreversible spinal cord trauma and spinal nerve damage. In the suit, Appellant Ann Buttermore sought to recover damages for loss of consortium.

On November 14, 1983, approximately two weeks before the instant suit was filed, the Plaintiff executed a form release in consideration of the payment of $25,000 by State Farm Mutual Insurance Company, the insurer of Frances Moser, the ...


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