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WILLIAM F. CONFORTI AND SUE ANN CONFORTI v. RICHARD N. MCGARVEY (09/13/89)

filed: September 13, 1989.

WILLIAM F. CONFORTI AND SUE ANN CONFORTI, HIS WIFE, APPELLANTS,
v.
RICHARD N. MCGARVEY, WALTER N. WILSON, AND WILLIAM F. SWEENEY, AS INDIVIDUALS AND AS PARTNERS TRADING AS MCGARVEY, WILSON AND SWEENEY, AND FORBES HEALTH SYSTEM, A/K/A FORBES HOSPITAL SYSTEM, A/K/A EAST SUBURBAN HEALTH CENTER, A NON-PROFIT CORPORATION, APPELLEES



Appeal from the Order Entered April 28, 1988 in the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 84-16151.

COUNSEL

Edward J. Osterman, Pittsburgh, for appellants.

Robert W. Murdoch, Pittsburgh, for Forbes Health System, appellee.

John W. Jordan, IV, Pittsburgh, for McGarvey, Wilson and Sweeney, appellees.

Rowley, Beck and Montgomery, JJ.

Author: Montgomery

[ 387 Pa. Super. Page 231]

The instant appeal arises from an Order entered by the trial court granting defense Motions for Summary Judgment. The action was instituted by Plaintiff-Appellants William F. and Sue Ann Conforti against the Defendant-Appellee physicians and hospital after a stillborn child was delivered by the Appellant wife. In their Complaint and Amended Complaint, both Plaintiffs sought to recover damages for alleged negligent infliction of emotional distress and the loss of consortium of the child. Further the Plaintiff wife sought to recover for pain and suffering, and the husband claimed a right to recover for loss of his wife's consortium. The Appellants offer five arguments in support of their claim that the trial court erred in granting summary judgment. After a review of the record, we find that the Appellants have waived all such contentions.

The record shows that after the Plaintiffs filed their Amended Complaint, the Defendants were compelled to

[ 387 Pa. Super. Page 232]

    seek the assistance of the trial court to require the Plaintiffs to properly respond to discovery efforts. A court order mandated that the Plaintiffs appear for depositions. After the depositions were taken, the Defendants all filed Motions for Summary Judgment. The Plaintiffs failed to file any brief in opposition to the Motions, and did not appear at the oral argument on the Motions which was scheduled by the trial court.

After the trial court granted summary judgment, the Plaintiffs instituted the instant appeal. They also submitted a Motion for Reconsideration in the trial court, which was denied. The trial court thereafter entered an Order, pursuant to Pa.R.A.P. 1925(b), requiring the Plaintiffs to file a concise statement of the matters complained of on their appeal.*fn1 The Plaintiffs ignored this Order and never filed such a statement. Thereafter, the Plaintiffs failed to adhere to the briefing schedule of this Court, and their appeal was dismissed. They filed a Motion for Reconsideration with our Court, and their appeal was reinstated.

The application of Pa.R.A.P. 1925(b) sanctions, to consider that an appellant has waived arguments because of a failure to properly respond to an Order of the trial court to file a statement of matters complained of on appeal, is clearly discretionary. Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982). In the exercise of this discretion, we must act with great care, and examine the failure to comply with Rule 1925 in the context of the entire case. Commonwealth v. Johnson, 309 Pa. Super. ...


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