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Sokolsky v. Eidelman

Superior Court of Pennsylvania

June 6, 2014


May 7, 2014.

Page 859

Appeal from the Order of the Court of Common Pleas, Lehigh County, Civil Division, No(s): 2012-C-0030. Before McGinley, J.

Courtney C. Barbacane, Philadelphia, for appellant.

Matthew Shindell, Philadelphia, for appellee.

Gary S. Figore, Easton, for appellee.



Page 860


Appellant, Janice L. Sokolsky (" Sokolsky" ), appeals from the September 18, 2013 order granting summary judgment in favor of Appellees, Edward R. Eidelman, Esquire and Eidelman Crossley, LLC (collectively " the Attorneys" ), and dismissing her cause of action. After careful review, we reverse in part, vacate in part, and remand for proceedings consistent with this opinion.

The trial court summarized the relevant factual and procedural history of this case as follows.

[Sokolsky]'s case sounds in legal malpractice, in which she claims that the attorney defendants negligently mishandled a medical malpractice claim by failing to file the action in medical malpractice prior to the expiration of the statute of limitations.

[Sokolsky] was a 67-year[-]old female at the time of the alleged medical malpractice with a history of diabetes, coronary artery disease, peripheral arterial disease and chronic renal insufficiency. She had a history of right toe and right leg ulcer[s]. [Prior to the alleged malpractice, s]he underwent an amputation for two [Methicillin-resistant Staphylococcus aureus (MRSA)]-infected, non-healing wounds and gangrenous toes on the left foot.

On March 21, 2008, she underwent a left iliac-femoral bypass and left femoral-popliteal bypass for limb-threatening ischemia of the left leg. She was a patient at Lehigh Valley Hospital on May 29, 2008, where she remained until June 18, 2008. During this admission, she was treated for osteomyelitis, acute renal failure, congestive heart failure, right middle lung mass and anemia.
She was transferred from Lehigh Valley Hospital [(Lehigh Valley)] to [HRC] Manor Care[ (Manor Care)], a skilled nursing facility, on June 18, 2008, for IV antibiotic therapy. While a patient at Manor Care, she developed a right heel blister. She was then transferred back to Lehigh Valley [] on July 5, 2008[,] for an acute myocardial infarction and related problems. After her return to Manor Care on July 19, 2008, it was noted the right heel had worsened and treatment was ordered.
On August 6, 2008, she was admitted to St. Luke's [Hospital] from Manor Care following a fall. She was returned to Manor Care on August 13, 2008, and the heel was noted to be worsening. Silvadene[, a topical cream,] was added to the heel treatment. She was returned to Lehigh Valley [] on September 1, 2008, due to a heart attack, and underwent coronary artery bypass on September 15, 2008. She left Lehigh Valley [] on September 22, 2008, against medical advice. Apparently, she returned to Lehigh Valley [] on September

Page 861

25, 2008. The right heel turned necrotic and unsalvageable, and, eventually, she underwent a below-the-knee amputation on October 10, 2008.
Following the amputation of her leg, she consulted the [Attorneys] for the purpose of pursuing a medical malpractice suit. The fact that [the Attorneys] did not timely file a medical malpractice action is conceded, although it is not conceded that the failure to do so was negligent.[1]
The within action followed[ by writ of summons filed January 4, 2012. Sokolsky filed her first complaint on March 7, 2012. Following Attorneys' preliminary objections, Sokolsky filed an amended complaint on May 14, 2012. F]ollowing the close of discovery, [the Attorneys] filed a motion for summary judgment[, on July 31, 2013. Because the matter was listed for imminent trial, [the trial court] decided the motion with a footnoted order[, granting the Attorneys' motion and dismissing Sokolsky's cause of action, on September 18, 2013].

Trial Court Opinion, 12/9/13, at 1-3 (footnote omitted). On October 14, 2013, this timely appeal followed. The trial court did not require Sokolsky to file a concise statement of matters complained of on appeal pursuant to Rule 1925(b). The trial court authored its Rule 1925(a) opinion on December 9, 2013.

On appeal, Sokolsky presents the following issues for our review.

[1.] Whether [] Sokolsky has produced sufficient evidence of negligence in the underlying medical malpractice claim against Manor Care and Lehigh Valley Hospital Center to recover under a theory of vicarious liability[?]
[2.] Whether [] Sokolsky has produced sufficient evidence of corporate negligence in the underlying medical malpractice claim against Manor Care[?]
[3.] Whether [] Sokolsky has produced sufficient evidence of damages resulting from [the Attorneys'] legal malpractice to warrant the imposition of punitive damages[?]

Sokolsky's Brief at 4.

We begin by noting our well-settled standard of review. " [O]ur standard of review of an order granting summary judgment requires us to determine whether the trial court abused its discretion or committed an error of law[,] and our scope of review is plenary." Petrina v. Allied Glove Corp., 2012 PA Super. 121, 46 A.3d 795, 797-798 (Pa. Super. 2012) (citations omitted). " We view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Barnes v. Keller, 2012 PA Super. 259, 62 A.3d 382, 385 (Pa. Super. 2012), citing Erie Ins. Exch. v. Larrimore, 2009 PA Super. 236, 987 A.2d 732, 736 (Pa. Super. 2009) (citation omitted). " Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered." Id.

Page 862

The rule governing summary judgment has been codified at Pennsylvania Rule of Civil Procedure 1035.2, which states as follows.

Rule 1035.2. Motion

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, 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 in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. 1035.2. " Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment." Babb v. Centre Cmty. Hosp., 2012 PA Super. 125, 47 A.3d 1214, 1223 (Pa. Super. 2012) (citations omitted), appeal denied, 619 Pa. 719, 65 A.3d 412 (Pa. 2013). Further, " failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law." Id.

Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact-finder. If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.

Id. , quoting Reeser v. NGK N. Am., Inc., 2011 PA Super. 17, 14 A.3d 896, 898 (Pa. Super. 2011).

Herein, Sokolsky alleges that the Attorneys committed legal malpractice when handling her medical malpractice action. Sokolsky's Brief at 5. Our Supreme Court has held that " a legal malpractice action in Pennsylvania requires the plaintiff to prove that [s]he had a viable cause of action against the party [s]he wished to sue in the underlying case and that the attorney [s]he hired was negligent in prosecuting or defending that underlying case (often referred to as proving a 'case within a case')." Kituskie v. Corbman, 552 Pa. 275, 714 A.2d 1027, 1030 (Pa. 1998). To prove her medical malpractice action, the plaintiff " must initially establish by a preponderance of the evidence that [s]he would have recovered a judgment in the underlying action." Id. " It is only after the plaintiff proves [s]he would have recovered a judgment in the underlying action that [she] can then proceed with proof that the attorney [s]he engaged to prosecute... the underlying action was negligent in the handling of the underlying action and that negligence was the proximate cause of the plaintiff's loss since it prevented [her] from being properly compensated for [her] loss." Id. To establish her legal malpractice claim, the plaintiff must satisfy the following three-prong test.

1) [E]mployment of the attorney or other basis for a duty;

2) the failure of the attorney to exercise ...

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