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FLORENCE FERENCZ v. ROBERT J. MILIE (12/23/87)

decided: December 23, 1987.

FLORENCE FERENCZ, APPELLANT,
v.
ROBERT J. MILIE, APPELLEE



Appeal by Allowance from an Order of the Superior Court of Pennsylvania at No. 1100 Pittsburgh, 1984, Affirming Per Curiam on February 19, 1986, the Judgment Entered on August 23, 1984, at No. 7517 of 1982 in the court of Common Pleas of Westmoreland County, Pennsylvania, civil Division. Pa. Superior Ct. , A.2d (19 ).

COUNSEL

Seymour A. Sikov, Sikov and Love, P.A., Pittsburgh, for appellant.

James P. McKenna, Jr., Stephen M. Houghton, Dickie, McCamey & Chilcote, P.C., Pittsburgh, for amici curiae.

Christine L. Donohue, Clifford A. Rieders, Charles E. Evans, Evans, Rosen, Portnoy, Quinn & Donohue, Pittsburgh, for PA Trial Lawyers Ass'n.

Vincent J. Grogan, Kathryn L. Simpson, Grogan, Graffam, McGinley & Lucchino, P.C., Pittsburgh, for PA Bar Ass'n.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Hutchinson, former J., did not participate in the consideration or decision of this case. Larsen, J., files a concurring opinion.

Author: Papadakos

[ 517 Pa. Page 142]

Opinion OF THE COURT

Appellant, Florence Ferencz, filed suit in both trespass and assumpsit against Appellee, Attorney Robert J. Milie, in the Court of Common Pleas of Westmoreland County. She sought damages for alleged professional negligence and malpractice. At the conclusion of her presentation of evidence to the jury, the trial court (Loughran, J.) granted defendant (Appellee, here) a compulsory non-suit. The Superior Court (Cirillo, P.J., Hoffman and Rosenwald,*fn* JJ.) affirmed in a Memorandum Opinion and Per Curiam Order, 355 Pa. Superior Ct. 638, 509 A.2d 1324 (1986). A motion for reargument was denied. For the reasons set forth below,

[ 517 Pa. Page 143]

    we reverse the grant of the compulsory non-suit and remand to the trial court for further proceedings.

The facts underlying these claims for professional negligence and malpractice, as set forth in the record, are undisputed since they are based almost entirely on evidence presented by Appellant. For purposes of this appeal, we will review the facts presented in a light most favorable to Appellant, the party who opposed the motion for a compulsory non-suit. See, McNally v. Liebowitz, 498 Pa. 163, 445 A.2d 716 (1982). These facts may be summarized as follows. Appellant was seriously injured in a fall on a patch of ice which occurred at approximately 9:00 a.m. on Saturday, December 2, 1972, on a parking lot ramp maintained by Monsour Hospital and Clinic located in Jeannette, Pennsylvania. She was a business visitor on the premises. A hospital nurse came to her aid and moved her to the hospital where she was admitted for treatment of a comminuted fracture of the patella of her left knee. Shortly thereafter, a maintenance worker of the hospital came to the scene and was shown by Appellant's daughter, Susan Reinhardt, who had accompanied her mother to the hospital that day, the icy patch on which Appellant had fallen. (R. 372a-375a.)

Surgery was performed on Appellant by Dr. S.P. Barua on December 5, 1972. She later came under the care of Dr. Peter J. Kyne, Board Certified orthopedic surgeon, whose deposition, taken for use at trial by videotape and court reporter, revealed that Appellant had permanent shortening of her left leg, permanent disability, impairment of earning capacity, and disabling and disfiguring injuries resulting from the fall.

In late 1973, Appellant retained Attorney Milie, the Appellee, to take whatever action was necessary to recover damages for the serious injuries she had sustained in the fall at Monsour Hospital. Following his retention, as aptly stated in the Memorandum Opinion of the Superior Court, Appellee admitted the following:

1) That he did not interview the maintenance people at the hospital.

[ 517 Pa. Page 1442]

) That he did not check their maintenance ...


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