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April 29, 1997


Appeal from the Order Dated October 16, 1996, Docketed October 17, 1996, In the Court of Common Pleas of Philadelphia County, Civil Division, No. September Term, 1992, No. 2399. Before MOSS, J.

Before: Mcewen, P.j., Eakin, J. and Cercone, P.j.e. Opinion BY Cercone, P.j.e.

The opinion of the court was delivered by: Cercone


FILED APR 29 1997

This is an appeal from an order granting summary judgment in a medical malpractice action in favor of defendant/appellee and against appellant Timothy Eaddy. We vacate and remand to the trial court for proceedings consistent with this opinion.

On September 23, 1992, appellant filed a medical malpractice action against Edward G. Hamaty, Jr., D.O. Appellant had been referred to Dr. Hamaty in January, 1991 for treatment of an asthmatic condition. In his complaint, appellant avers that Dr. Hamaty's inappropriate treatment and poor monitoring caused him to develop avascular necrosis. Specifically, appellant claims that Dr. Hamaty (1) used the drug Prednisone in an inappropriate manner; (2) failed to use appropriate techniques and procedures when diagnosing and treating his asthmatic condition and leg pain; (3) failed to utilize appropriate treatment in light of medical and scientific advances; and (4) failed to inform him about the possible side effects of Prednisone. Appellant further alleges that the foregoing acts of negligence caused him physical and emotional injury.

During a pre-trial conference on August 20, 1996, defense counsel made an oral summary judgment motion based on the insufficiency of an expert report submitted on appellant's behalf by Dr. Eric I. Mitchell. The trial court presided over a hearing on this matter on September 4, 1996. At that hearing, counsel for appellant requested a continuance to supplement Dr. Mitchell's expert report. The trial court denied that request:

This is a Day Backward case in which discovery has closed. At the Summary Judgment hearing Plaintiff requested a continuance to supplement its report. See N.T. at 26. We denied the continuance citing our need to strictly enforce Day Backward deadlines to reduce our backlog and move cases to closure. . . . Equity would not call for granting a continuance to supplement a four and one-half year old expert report. See N.T. at 26-29.

Trial court opinion filed 11/4/96 at 3. By order dated October 16, 1996, the trial court granted defendant's motion for summary judgment.

In this timely appeal from that order, appellant contends that because he is able to state a valid cause of action against Dr. Hamaty for medical malpractice, the trial court improperly granted summary judgment. *fn1 Preliminarily, we note that when reviewing an order granting summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party, accepting as true all well-pleaded facts and giving that party the benefit of all reasonable inferences drawn from those facts. Szabo v. Bryn Mawr Hospital, 432 Pa. Super. 409, 412, 638 A.2d 1004, 1006 (1994). We may overturn a trial court's entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa. Super. 313, 318, 549 A.2d 1311, 1313 (1988). Accord Marks v. Tasman, 527 Pa. 132, 134-35, 589 A.2d 205, 206 (1991).

Although neither the appellant nor the trial court cites the new rules, the summary judgment motion in this case is governed by Rules of Civil Procedure 1035.1 through 1035.5, which replace former Rule 1035. Pa. R.Civ.P., Rules 1035.1-1035.5, 42 Pa. C.S.A. (Adopted February 14, 1996, effective July 1, 1996). The new rules specifically authorize a motion for summary judgment based on a record that is insufficient to sustain a prima facie case:

After the relevant pleadings are closed, but within such time as not to delay trial, *fn2 any party may move for summary judgment in whole or in part as a matter of law

(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which ...

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