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04/19/96 BRUCE M. GOLDEY AND SANDRA GOLDEY v.

April 19, 1996

BRUCE M. GOLDEY AND SANDRA GOLDEY, HUSBAND AND WIFE, APPELLANTS
v.
TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA AND R. BRUCE HEPPENSTALL, M.D., ANDREW T. COSTARINO, JR., M.D., AND FRANK L. MURPHY, M.D., APPELLEES



Appeal from Order of the Superior Court dated October 19, 1994, at No. 3597PHL93, affirming Judgment of the Court of Common Pleas of Philadelphia County, Civil Division, dated September 21, 1993, at No. 3038 June Term, 1986. Before: Nix, C.j., Flaherty, Zappala, Cappy, Castille And Montemuro, JJ. Mr. Justice Montemuro, who was sitting by designation, did not participate in the decision of this case.

The opinion of the court was delivered by: Zappala

JUSTICE ZAPPALA

DECIDED:April 19, 1996

We granted allowance of appeal to consider the application of the rule that a Judge should not overrule a decision of another Judge of the same court in the same case.

This is a medical malpractice action in which Bruce and Sandra Goldey allege negligence during surgery on Mr. Goldey's shoulder in July of 1984. The surgery followed a prior course of treatment by Dr. William B. McNamee for a work-related injury to the shoulder. The Goldeys had previously instituted a malpractice action against McNamee. That case was settled approximately two years after the complaint in this action was filed, the Goldeys executing a general release.

In August of 1990, the defendants filed a motion for summary judgment, asserting that the release signed in the McNamee case barred this action. Judge Nicholas D'Allesandro denied the motion "without prejudice to the trial Judge's discretion to reconsider the matter at a later stage of the proceedings." In November of 1991, the defendants renewed their motion for summary judgment. Following response and supplemental briefing, the case was assigned for trial to Judge Alfred DiBona, who denied the motion on October 8, 1992. Due to the backlog of cases, this case did not receive a trial date until August 30, 1993, when it was assigned to Judge Pro Tem Thomas B. Rutter.

Six days prior to the scheduled start of trial, the defendants again asserted that the action was barred by the release. The court ultimately ruled in the defendants' favor, entering an order granting summary judgment on September 21, 1993. The court reasoned that "the General Release in the instant case is not materially different in its language from those found to be preclusionary of subsequent actions in, inter alia, Buttermore vs. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989); Habovick vs. Askin, 400 Pa. Super. 628, 576 A.2d 1141 (1990) *fn1; Dublin vs. Shuster, 410 Pa. Super. 1, 598 A.2d 1296 (1991); Smith vs. Thomas Jefferson University Hospital, [424] Pa. Super. [41], 621 A.2d 1030 (1993); and Holmes vs. Lankenau Hospital, [426] Pa. Super. [452], 627 A.2d 763 (1993)." Slip Opinion at 1-2. The court rejected the argument that it could not revisit the issue decided by the October 8, 1992, order denying summary judgment, citing "practical and jurisprudential considerations." The court quoted the following question, which it had posed during argument on the motion:

Under the facts of this case as we now know them, including the release, the general release which was signed by the Goldeys in the underlying case, if we were to go to trial . . . after the defendants had offered into evidence the unquestionably authentic general release signed by the Goldeys, would we not then be obliged . . . to grant the Defendants' motion for directed verdict . . . ?

Superior Court affirmed, filing a memorandum opinion in support of its decision. The court acknowledged the general rule that one Judge should not ordinarily overrule the interlocutory decision of another Judge of the same court in the same case. Okkerse v. Howe, 521 Pa. 509, 516, 556 A.2d 827, 831 (1989). The court observed, however, that the purpose of the rule is judicial economy and efficiency and that the rule should not be applied where to do so would defeat that very purpose. Citing Solcar Equipment Leasing Corp. v. Pennsylvania Manufacturers Assoc., 414 Pa. Super. 110, 606 A.2d 522 (1992), the court stated, "where an initial order is issued without opinion or other explanation, the trial court is free to revisit and, if necessary, reverse the initial decision." Slip Opinion at 8.

Stated in this fashion, the exception is far broader than its origins in Farber v. Engle, 106 Pa. Commw. 173, 525 A.2d 864 (1987). Indeed, as a practical matter it would seem to be an exception that could swallow the rule, since opinions explaining the denial of pretrial motions are not required by the rules of procedure.

In Farber, one Judge of the Philadelphia Common Pleas Court had granted judgment on the pleadings in favor of the City, after another Judge of the same court had overruled preliminary objections. Commonwealth Court held that this did not contravene the rule that one Judge should not overrule the decision of another Judge of the same court. The court observed that since the preliminary objections had been overruled without opinion, it could not determine whether the first Judge had ruled on the merits of the objections or had decided them on procedural grounds. The court then stated that "under the circumstances" it could not say that it was improper for the second Judge to grant the City's motion for judgment on the pleadings.

In Salerno v. Philadelphia Newspapers, Inc., 377 Pa. Super. 83, 546 A.2d 1168 (1988), Superior Court stated that the rule that one Judge should not overrule the interlocutory order of another

is not intended to preclude the granting of summary judgment following the denial of preliminary objections. "The failure to present a cause of action upon which relief can be granted may be raised at any time. A motion for summary judgment is based not only upon the averments of the pleadings but may also consider discovery depositions, admissions and affidavits." . . . We can discern no reason for prohibiting the consideration and granting of a summary judgment if the record as it then stands warrants such action.

Id. at 87-88, 546 A.2d at 1170 (emphasis added)(citation omitted). Citing Farber, the court then observed that, "this is particularly true when the preliminary ...


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