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[U] Monroe v. Wyncote Healthcare Corp.

Superior Court of Pennsylvania

March 7, 2014

SARAH MONROE, DECEASED, BY ELLIS BROWN, ADMINISTRATOR Appellant
v.
WYNCOTE HEALTHCARE CORPORATION D/B/A THE OAKS, GENESIS HEALTHCARE CORP., GENESIS ELDERCARE CORP., GENESIS HEALTH VENTURES, INC., GENESIS ELDERCARE NETWORK SERVICES, INC. Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order February 25, 2013 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 06-28624

BEFORE: BENDER, P. J., LAZARUS, J., and FITZGERALD, J. [*]

MEMORANDUM

LAZARUS, J.

Ellis Brown, as Administrator of the Estate of Sarah Monroe, Deceased, appeals from several orders of the Court of Common Pleas of Montgomery County, including one that denied his petition to open and/or strike the entry of judgment of non pros in favor Wyncote Healthcare Corporation d/b/a The Oaks, Genesis Healthcare Corp., Genesis Eldercare Corp., Genesis Eldercare Corp., Genesis Healthcare Ventures, Inc., and Genesis Eldercare Network Services, Inc. (Appellees). After careful review, we affirm.

The facts and procedural history of this case have been summarized as follows by the Honorable Richard P. Haaz:

1. On November 16, 2006, [the Administrator] commenced the instant action by writ of summons.
2. On February 13, 2007, [the Administrator] filed a complaint seeking to recover damages for personal injuries on behalf of Sarah Monroe under negligence and corporate negligence theories of liability.
3. On May 2, 2007, [Appellees] filed preliminary objections to [the Administrator's] complaint.
4. On August 1, 2007, [Appellees] filed a motion for protective order.
5. On August 14, 2007, the Honorable Rhonda Lee Daniele entered an order striking the corporate negligence claim and granting [the Administrator] sixty days to conduct discovery to identify the unnamed agents referred to in the complaint. Judge Daniele further ordered [the Administrator] to file an amended complaint within twenty days after the expiration of the sixty day discovery period.
6. On October 12, 2007, Judge Daniele entered a protective order with respect to [Appellees'] representatives who personally investigated the incident that gave rise to the complaint, but ordered Appellees to produce specific individuals for depositions within twenty days.
7. On November 1, 2007, [the Administrator] filed a motion for reconsideration of the October 12, 2007 order.
8. On December 14, 2007, Judge Daniele entered an order with respect to [the Administrator's] motion for reconsideration stating the order of October 12, 2007 would remain in full force and effect, and granting [the Administrator] an additional sixty days to conduct discovery.
9. On May 12, 2011, [Appellees], Wyncote Healthcare Corp, d/d/a The Oaks, Genesis Healthcare Corp., Geriatric & Medical Services, and Genesis Eldercare Network Services, Inc. filed a motion for entry of judgment of non pros alleging [the Administrator] failed to file a timely amended complaint pursuant to Judge Daniele's August 14, 2007 order.
10. On June 8, [the Administrator] filed a motion for sanctions against [Appellees], alleging noncompliance with the October 12, 2007 order directing [Appellees] to produce certain individuals for deposition testimony.
11. On June 10, 2011, [the Administrator] filed an Amended Complaint.
12. On June 13, 2011, [the Administrator] filed a response to [Appellees'] motion for entry of judgment of non pros, claiming the August 14, 2007 order was superseded by the December 14, 2007 order, which did not provide a deadline for the filing of an amended complaint.
13. On June 29, 2011, [Appellees], Wyncote Healthcare Corp, d/b/a The Oaks, Genesis Healthcare Corp., Genesis Eldercare Corp., Geriatric & Medical Services, and Genesis Eldercare Network Services, Inc. filed preliminary objections seeking to strike [the Administrator's] amended complaint as untimely filed.
14. On June 30, 2011, [Appellee] Genesis Health Ventures filed a motion for entry of judgment of non pros and preliminary objections to the amended complaint incorporating the motion for non pros and preliminary objections filed by [the other Appellees].
15. On July 18, 2011, [the Administrator] filed a response to the preliminary objections.
16. On March 5, 2012, the Honorable Wendy Demchick-Alloy entered the following order with respect to [the Administrator's] motion for sanctions, [Appellees'] preliminary objections and [Appellees'] motion for entry of judgment of non pros.
AND NOW, this 5th day of March 2012, it is hereby ordered and decreed that: (a) defendants' preliminary objections to plaintiff's amended complaint are sustained and the amended complaint is stricken with prejudice; (b) defendants' motions for entry of judgment of non pros are granted and a judgment of non pros is entered in favor of all defendants against plaintiff; and (3) plaintiff's motion for sanctions is denied.
17. On April 2. 2012, [the Administrator] filed a notice of appeal to the Superior Court appealing the orders from Judge Daniele and Judge Demchick-Alloy dated August 14, 2007, October 12, 2007, December 14, 2007, September 1, 2010, November 1, 2010, and March 5, 2012, stating the order dated March 5, 2012 was final and appealable.
18. On May 4, 2012, the Superior Court issued a rule to show cause directing [the Administrator] to show cause as to why the appeal should not be quashed.
19. On May 9, 2012, Judge Demchick-Alloy filed her opinion pursuant to Pa.R.A.P. 1925(a), which suggested the appeal be quashed, since an entry of judgment of non pros is not a final order under Xu v. Montefiore Hospital, 618 A.2d 1043 (Pa.Super. 1993).
20. On May 16, 2012, [the Administrator] withdrew his appeal in the Superior Court.
21. On May 17, 2012, [the Administrator] filed an application to reinstate the appeal with the Superior Court.
22. On May 21, 2012, Judge Daniele filed her opinion pursuant to Pa.R.A.P. 1925(a) in which she joined the suggestion of Judge Demchick-Alloy that [the Administrator's] appeal should be quashed.
23. On May 23, 2012, [the Administrator] filed a petition to open and/or strike the entry of judgment of non pros in the lower court.
24. On June 8, 2012, [Appellees] filed an application to quash [the Administrator's] appeal in the Superior Court.
25. On June 8, 2012, the Superior Court denied [the Administrator's] application to reinstate the appeal.
26. On June 8, 2012, [Appellees] filed a response to [the Administrator's] petition to open and/or strike the entry of judgment of non pros.
27. On June 25, 2012, the Superior Court denied [Appellees'] application to quash appeal as moot.
28. On February 20, 2013, argument on [the Administrator's] petition to open and/or strike the entry of judgment of non pros was held.
29. On February 25, 2013, [the court] entered an order denying said petition.

Trial Court Opinion, 5/17/13, at 1-4.

On March 21, 2013, the Administrator filed a notice of appeal from the orders issued by Judge Daniele, Judge Demchick-Alloy, and Judge Haaz. Each judge filed an opinion pursuant to Pa.R.A.P. 1925(a) addressing the orders that he or she entered.

On appeal, the Administrator raises the following issues for our review:

1. Whether the trial court erred when it granted, in part, [Appellees'] preliminary objections striking [the Administrator's] allegations of corporate negligence despite the then-applicable law, as well as subsequent appellate law, which provides that assisted living facilities have the corporate responsibility for arranging and coordinating the total health care of its patients.
2. Whether the trial court erred when it granted [Appellees'] preliminary objections striking references in [the Administrator's] complaint to state and federal regulations, where such regulations were applicable to the nursing home care at issue and constituted evidence of the standard of care applicable to the care provided to Sarah Monroe.
3. Whether the trial court erred in entering a protective order precluding [the Administrator] from conducting discovery of Appellees' corporate designees or representatives who personally investigated the incident described in the complaint or who supervised and reviewed the findings of the investigation by applying the Pennsylvania Peer Review Protection Act, where the Act did not protect documents or records that are otherwise available from original sources and where [Appellees] presented no evidence that any peer review procedure was conducted?
4. Whether the trial court abused its discretion in imposing the severe sanction of the preclusion of witnesses for a slight delay in the identification of potential witnesses whose identities were within the exclusive control of the Appellees, where discovery was continuing and where no prejudice to [Appellees] could be found or shown, and where the trial court failed to conduct a hearing as required by the Rules of Civil Procedure.
5. Whether the trial court erred in granting [Appellees'] preliminary objections, striking [the Administrator's] amended complaint which was timely filed and did not violate any ordered deadline for the filing of an amended complaint, especially in light of [Appellees'] continued refusal to participate in discovery in good faith, preventing [the Administrator] from acquiring the information necessary to complete the amended complaint.
6. Whether the trial court abused its discretion in granting [Appellees'] motion for non pros where [the Administrator's] amended complaint was timely filed, given [Appellees'] refusal to cooperate in ordered discovery to provide information necessary to the amendment of [the Administrator's] complaint and where [Appellees] waived their right to request non pros, by indicating a willingness to try this case on its merits.
7. Whether the trial court abused its discretion in failing to open and/or strike non pros where the petition set forth facts establishing timely filing, there was a reasonable explanation or legitimate excuse for the alleged inactivity or delay, and there is a meritorious cause of action.

Appellant's Brief, at 7-8.

We begin by examining the Administrator's claim that the trial court abused its discretion when it failed to open and/or strike the judgment of non pros.[1]

At all times relevant to the proceedings below, Pennsylvania Rule of Civil Procedure 3051 provided:

Rule 3051. Relief from Judgment of Non Pros
(a) Relief from a judgment of non pros shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition.
(b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that
(1) the petition is timely filed,
(2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and
(3) there is a meritorious cause of action.

Pa.R.C.P. 3051.[2]

Among the reasons cited by Judge Haaz for denying the petition to open and/or strike the judgment of non pros is that it was untimely filed, judgment being entered on March 5, 2012, but the petition not being filed until 79 days later on May 23, 2012.

Apparently believing that the March 5, 2012 order granting non pros was an appealable order, the Administrator filed a notice of appeal on April 2, 2012. Nevertheless, Rule 3051, which became effective on January 1, 1992, is clear that "relief from a judgment of non pros shall be sought by petition."

In Madrid v. Alpine Mountain Corp., 24 A.3d 380 (Pa.Super. 2011), the Madrids commenced an action against the defendants on December 19, 2005. On January 27, 2010, two years and four months after the Madrids' last docket activity, Alpine filed a motion to dismiss for lack of prosecution. The trial court dismissed the action on March 8, 2010. The Madrids filed a notice of appeal on March 29, 2010, which they withdrew when this Court's Central Legal Staff informed them that their appeal may have been premature. On May 3, 2010, the Madrids filed a petition to open judgment, which the trial court denied on May 5, 2010.

On appeal, this Court held that a delay of 56 days between the entry of non pros and the filing of a petition to open by the Madrids rendered the petition untimely. In reaching this conclusion, we noted that previous decisions of this Court held that unexplained delays of 37, 41 and 47 days rendered petitions to open untimely, citing Hatgimisios v. Dave's N.E. Mint, Inc., 380 A.2d 485 (Pa.Super. 1977); Toczylowski v. General Bindery Co., 519 A.2d 500 (Pa.Super. 1986); Schutte v. Valley Bargain Center, Inc., 375 A.2d 368 (Pa.Super. 1977). Madrid, supra at 383. We further noted that the days during which the matter was improperly on appeal due to the Madrids' failure to follow Rule 3051 should not be deducted from the period of time between the entry of judgment of non pros and the filing of a petition to open.

The procedural history of the instant matter is analogous to Madrid, the only difference being that here there was a delay of 79 days rather than 56 days between the entry of judgment and the filing of a petition to open. Accordingly, consistent with Madrid, we hold that the trial court did not abuse its discretion in denying the Administrator's petition to open and/or strike the judgment.

Our affirmance of the order denying the petition to open and/or strike the judgment of non pros renders moot the other issues raised on appeal. See generally In re Cain, 590 A.2d 291, 292 (Pa. 1991) ("An issue can become moot during the pendency of an appeal due to an intervening change in the facts of the case."). Even if we agreed with the Administrator that Judge Daniele and Judge Demchick-Alloy abused their discretion in entering the orders appealed from, we could grant no relief in light of the judgment of non pros.

Orders affirmed.

Judgment Entered.


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