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Karen Fischer and Jonathan v. Upmc Northwest

November 18, 2011

KAREN FISCHER AND JONATHAN FISCHER, HER HUSBAND APPELLANTS
v.
UPMC NORTHWEST, NORTHWEST EMERGENCY PHYSICIANS, LLP, AMANDA S. HARTWELL, D.O., UPMC COMMUNITY MEDICINE, INC. AND ALFONSE A. EMMOLO, M.D. APPELLEES



Appeal from the Order Filed December 16, 2010, In the Court of Common Pleas of Venango County Civil Division at No(s): Civil Div NO 124-2007

The opinion of the court was delivered by: Freedberg, J

J.A30023-11

BEFORE: BOWES, DONOHUE, and FREEDBERG, JJ.

OPINION BY FREEDBERG, J.:

This matter is before the Court on the appeal of Karen Fischer and Jonathan Fischer from the trial court's order filed December 16, 2010, which denied their motion for leave to appeal nunc pro tunc. For the reasons set forth herein, we reverse.

On January 29, 2007, Appellants instituted this medical malpractice action. A jury trial commenced on October 19, 2009. At the conclusion of Appellants' case, a non-suit was granted in favor of Appellees Alfonse A. Emmolo, M.D., and UPMC Community Medicine, Inc. The jury subsequently returned a verdict in favor of Appellees UPMC Northwest, Northwest Emergency Physicians, LLP, and Amanda S. Hartwell, D.O. On November 9, 2009, Appellants filed a motion for post-trial relief. The trial court denied that motion by order dated February 2, 2010.

Appellants contend that they were not served with a copy of that order. Instead, they assert that they did not receive a copy of the order until March 10, 2010, following a conversation on March 3, 2010, with an employee of the prothonotary of Venango County. Upon receipt of the order, Appellants filed a notice of appeal on March 15, 2010. This Court quashed that appeal as untimely by per curiam order dated April 8, 2010. See 426 WDA 2010 (Pa. Super. April 8, 2010). Appellants' motion for reconsideration was denied without prejudice, so that Appellants could file a motion for leave to appeal nunc pro tunc with the trial court.

On April 27, 2010, Appellants filed a motion for leave to appeal nunc pro tunc with the trial court. A hearing was held on Appellants' motion on October 6, 2010. At the hearing, a court reporter and an employee of the prothonotary's office testified. The court reporter testified that she typed the February 2, 2010 order. Notes of Testimony ("N.T."), Oct. 6, 2010, p. 2. She further testified that, although she is not a member of the prothonotary's office, it is her responsibility to distribute the order to the people copied at the bottom of the order. Id. at 3-4. She did not have a specific recollection of sending this order to Appellants' counsel; however, she stated that it is her practice to send the order to counsel as demonstrated by the fact that his name and address were listed at the bottom of the order. Id. at 4-5, 8-9.

The prothonotary staff member testified that she spoke about the order with a secretary from Appellants' counsel's office on March 3, 2010. Id. at 16, 30. She then investigated whether the order had been filed. Id. at 14-15. Her review of the file led her to the conclusion that, even though the order was time stamped February 3, 2010, it had not been entered on the docket. Id. at 15. As a result, she entered it on the docket on March 3, 2010; however, she recorded the docket entry as though it had been entered on February 3, 2010, the date of the time-stamp. Id.

At the hearing, prothonotary staff member was referred to another docket entry dated November 9, 2009, which stated: "Motion for Post-Trial

Relief and Order of Court dtd 2/2/10 after consideration said request is hereby denied judgment in favor of the Dfts is affirmed (RLB/J) (CC: Court Reporter/KES; D Hunter/Esq; J Conti/Esq; R Puntil/Esq on 2/3/10)." See N.T., Oct. 6, 2010, p. 17. She testified that she had not seen that entry on her review of the file. Id. at 17-18. She said that entry demonstrated that another employee of the prothonotary had previously entered the order on the docket because the initials "CMS" appeared next to a check mark on the order. Id. at 17-18, 23-24. Thus, the order was entered on the docket twice. Id. at 17-18.

The prothonotary staff member further testified that, in Venango County, it is not the responsibility of the prothonotary's staff to mail written notice of orders of court, and that she did not mail or fax the February 2, 2010 order to Appellants' counsel on February 3, 2010. Id. at 32-34. Instead, the court reporters, and sometimes the court administration staff, send out the orders; and they note at the bottom of the order, by a "cc," to whom they have sent the order and in what manner. Id. She stated that the order contained Appellants' counsel's address following the "cc," but there was no other indication that the order had been mailed to Appellants' counsel. Id. at 30. Thus, she testified that she could not positively determine that it was mailed to Appellants' counsel. Id. at 23. Because there was no definitive indication that the order had been mailed and because Appellants' counsel stated he did not receive the order, the prothonotary staff member mailed Appellants' counsel a copy of the order on March 10, 2010. Id. at 21, 30.

Following the hearing, by order dated December 7, 2010, the trial court denied Appellants' motion for leave to file an appeal nunc pro tunc.*fn1

The trial court subsequently denied Appellants' motion for reconsideration. On January 6, 2011, Appellants filed a notice of appeal of that decision to this Court. The trial court directed Appellants to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellants ...


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