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04/21/97 PEGGY LEWIS AND WILSON LEWIS v. UNITED

SUPREME COURT OF PENNSYLVANIA


April 21, 1997

PEGGY LEWIS AND WILSON LEWIS, APPELLANTS,
v.
UNITED HOSPITALS, INC. D/B/A/ LAWNDALE COMMUNITY HOSPITAL AND STEVEN MUNZER, M.D., APPELLEES.

Appeal from the Order of the Superior Court entered August 22, 1995 at 2042PHL95 quashing the appeal from the order of the Court of Common Pleas of Philadelphia County, Civil Division entered on May 16, 1995 at No. 0318 Nov. Term, 1991. JUDGE(S) BELOW: CCP - Hon. Albert F. Sabo / Superior - PC ORDER.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Opinion By Mr. Justice Castille

The opinion of the court was delivered by: Castille

OPINION OF THE COURT

JUSTICE CASTILLE

DECIDED: April 21, 1997

The sole issue on appeal is whether the Superior Court erred in quashing appellants' appeal from the trial court's grant of appellee's motion for nonsuit prior to trial based on appellants' failure to file a post-verdict motion to remove the nonsuit. Because we find that the grant of nonsuit was improper, where, as here, no evidence was presented by appellants at trial as to liability, and because we find that appellants' failure to file a motion to remove the nonsuit was not fatal to their appeal, we reverse the order of the Superior Court quashing appellants' appeal and remand the matter for further proceedings consistent with this opinion.

The relevant facts in this appeal are that on December 25, 1989, appellant, Peggy Lewis, was involved in a motor vehicle accident. On December 26, 1989, Mrs. Lewis went to the Lawndale Community Hospital's emergency room where she was examined by Dr. Edward Whalen. Dr. Whalen requested x-rays of Mrs. Lewis' spine, shoulder and right clavicle. Thereafter, appellee, Dr. Steven Munzer, examined the x-rays and determined that there was no dislocation or fracture evident. Thus, Mrs. Lewis was released from Lawndale Community Hospital.

Mrs. Lewis, however, continued to suffer pain and after a few weeks went to Germantown Hospital and Medical Center in order to seek treatment for her continuing pain. There, Mrs. Lewis was diagnosed as having a dislocated right sternoclavicular joint.

On November 6, 1991, Mrs. Lewis and her husband sued both Dr. Munzer and Lawndale Community Hospital for medical malpractice based on the misinterpretation of her x-rays and for loss of consortium. The parties then proceeded to arbitration. On December 12, 1994, the arbitrators entered an award in favor of Dr. Munzer and Lawndale Community Hospital.

Appellants timely appealed the arbitration award to the Court of Common Pleas, Philadelphia County. On May 15, 1995, appellants withdrew their claim against Lawndale Community Hospital. *fn1 On that same date appellee, Dr. Munzer, filed a motion in limine seeking to preclude appellants' expert medical witness from testifying at trial on the basis that appellants' medical expert failed to state with the required degree of medical certainty that appellee's actions caused Mrs. Lewis' injuries. Appellants countered by making an oral motion to supplement the record with a revised expert report which would have stated the required degree of medical certainty. This request was based on appellants' assertion that their medical expert was unable to initially formulate an appropriate opinion to the required degree of medical certainty since he was not timely given all relevant evidence by appellee. The trial court conducted hearings on these motions and on May 16, 1995, the trial court granted appellee's motion in limine and denied appellants' motion to supplement the record.

After having his motion in limine granted, appellee then filed a motion for compulsory nonsuit. The trial court granted the motion for nonsuit even though appellants had not presented any evidence at trial as to liability. Appellants did not file a post-verdict motion to remove the nonsuit with the trial court. Instead, on June 2, 1995, appellants filed a direct appeal to the Superior Court. Appellee filed a motion to quash the appeal alleging that appellants waived their right to appeal because of their failure to file a post-verdict motion to remove the nonsuit. See Pa. R.Civ.P. 227.1(c) (motion to remove nonsuit must be filed within ten days after notice of nonsuit). On August 22, 1995, the Superior Court, in a per curiam order, granted appellee's motion to quash the appeal.

This Court granted allocatur in order to decide whether the Superior Court erred in quashing appellants' appeal for failing to file a timely post-verdict motion to remove the nonsuit. Appellants argue that the trial court erred by granting appellee's motion for nonsuit before they presented their liability evidence at trial. Appellee contends that appellants waived their right to appeal the grant of the nonsuit because appellants failed to file post-verdict motions with the trial court within 10 days of the trial court's grant of the nonsuit.

Rule 230.1 of the Pennsylvania Rules of Civil Procedure provides that:

In a case involving only one defendant, at the close of plaintiff's case on liability and before any evidence on behalf of the defendant has been introduced, the court, on the oral motion of a party, may enter a nonsuit if the plaintiff has failed to establish a right to relief. If the motion is not granted, the trial court shall proceed. If the motion is granted, the plaintiff may file a written motion for the removal of the nonsuit.

Clearly, Rule 230.1 provides that the trial court may enter a nonsuit at the close of plaintiff's case on liability. Also, the Explanatory Comment to this rule, while not binding on this Court, instructs that: "The motion for nonsuit may not be made prior to the Conclusion of plaintiff's evidence as to liability."

This Court has never addressed whether a trial court can enter nonsuit pursuant to Rule 230.1 prior to the presentation of plaintiff's liability evidence at trial. The Superior Court, however, addressed this issue with a similar factual scenario in Gallagher v. Harleysville Mutual Insurance Company, 421 Pa. Super. 192, 202, 617 A.2d 790, 796 (1992), appeal denied, 535 Pa. 620, 629 A.2d 1381 (1993). In Gallagher, the trial court, sua sponte, entered nonsuit against plaintiffs' breach of contract claim before the trial began and before the plaintiffs presented any evidence as to liability. On appeal, the plaintiffs alleged that nonsuit should not have been entered pursuant to Rule 230.1 because a nonsuit may only be granted after the plaintiffs presented their evidence at trial as to liability. The Superior Court agreed and held that a trial court's grant of nonsuit prior to trial could not be characterized as granting nonsuit under Rule 230.1, since such a motion may only be granted after a plaintiff's liability evidence has been presented to the jury. The Superior Court found instead that the trial court's action should have been characterized as either a grant of summary judgment or a judgment on the pleadings. Thus, the Superior Court held that post-trial motions to remove the nonsuit were not required under Rule 227.1 since the proceedings did not constitute a trial. Gallagher, 421 Pa. Super. at 202, 617 A.2d at 796; Accord, Ray v. Armstrong Developers, 445 Pa. Super. 211, 664 A.2d 1387 (1995). *fn2

The Superior Court's interpretation of Rule 230.1 is supported by older precedent handed down by this Court in Ruhe v. Kroger Co., 425 Pa. 213, 228 A.2d 750 (1967). In Ruhe, this Court stated that:

We know of no proceeding which permits the court to enter a compulsory nonsuit without testimony having been taken in court. In fact, the Act of March 11, 1875, P.L. 6, 12 P.S. § 645, grants the court the power to enter judgment of nonsuit if in the court's opinion 'the plaintiff shall have given No such evidence as in law is sufficient to maintain the action.' (emphasis supplied). This Act, together with all of the cases decided thereunder setting forth the weight that a court must give to the adduced testimony and evidence, clearly indicates that a nonsuit is not to be entered prior to the taking of testimony. The law is clear that a compulsory nonsuit may not be entered at the commencement of trial on the ground that a plaintiff's proposed evidence is insufficient to sustain his cause of action.

Ruhe, 425 Pa. at 215, 228 A.2d at 751. While the holding in Ruhe was predicated on 12 P.S. § 645, *fn3 the Explanatory Comment to Rule 230.1 states that new Rule 230.1 is adapted from 12 P.S. § 645 and for the most part, continues the prior practice of that statutory section. Therefore, based on the above, we hold today that Gallagher is a correct statement of the law and that nonsuit may not be entered by the trial court pursuant to Rule 230.1 prior to the commencement of trial before plaintiff's presentation of evidence as to liability. Here, as in Gallagher, the trial court entered nonsuit prior to providing appellants with the opportunity to present any evidence as to appellee's liability for appellants' pain and suffering. Thus, the trial court erred in granting the nonsuit. Instead, the trial court should have treated appellee's motion as being one for either summary judgment or for judgment on the pleadings. Therefore, the Superior Court erred in quashing appellants' appeal since appellants' failure to file a motion to remove the nonsuit was not fatal to their appeal and appellants filed a timely notice of appeal after the trial court entered its order. *fn4 Accordingly, the order of the Superior Court is reversed and the matter is remanded to the Superior Court for consideration on the merits of appellants' appeal. *fn5


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