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Frick v. Li

Superior Court of Pennsylvania

December 23, 2019

SHARON FRICK, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF TODD FRICK, DECEASED
v.
FUHAI LI, M.D., NEUROLOGY AND PAIN MANAGEMENT CENTER, PC, Y. BARRY KURTZER, M.D., AND GREENTOWN MEDICAL ASSOCIATES, PC APPEAL OF: FUHAI LI, M.D. AND NEURLOGY AND PAIN MANAGEMENT CENTER, PC

          Appeal from the Order Entered March 8, 2019 In the Court of Common Pleas of Pike County Civil Division at No(s): 547-2017

          BEFORE: PANELLA, P.J., STABILE, J., and STEVENS, P.J.E .[*]

          OPINION

          STEVENS, P.J.E.

         Defendants Fuhai Li, M.D., and Neurology and Pain Management Center, PC (hereinafter collectively "Appellants") appeal from the Order entered in the Court of Common Pleas of Pike County on March 8, 2019, overruling in their entirety Appellants' Preliminary Objections, and in particular their Motion to Dismiss for Failure to Serve Complaint contained therein, to the Fourth Amended Complaint of Plaintiff Sharon Frick, Individually and as Administratrix of the estate of Todd Frick, deceased (hereinafter "Appellee"). Following a careful review, we affirm.[1]

         The trial court set forth the relevant facts and brief procedural history herein in its Opinion Submitted Pursuant to Pennsylvania Rule of Appellate Procedure 1925 as follows:

[Appellee] initiated this case by filing a Writ of Summons on April 27, 2017. [Appellee] is asserting a professional liability claim against Fuhai Li, M.D. ("Defendant Li"). [Appellee] avers that Defendant Li was in charge of or responsible for the decedent and [Appellee's] husband, Todd Frick. [Appellee] avers that her husband was being treated at Defendant Li's facility for chronic pain treatment and/or neurological medical needs. [Appellee] avers that her husband had a history of back pain associated with bulging or herniated discs. [Appellee] avers that Defendant Li prescribed certain medications to her husband, including but not limited to: Vicodin, Morphine, Flexeril, Hydrocodone, Contin, and Oxycodone. [Appellee] avers that Defendant Li directly, through various acts and omissions, caused [Appellee's] husband to become addicted to the prescribed controlled substances and breached the standards of care in his professional field. [Appellee's] husband died on May 1, 2015.
[Appellee] filed a Praecipe for Writ of Summons on April 27, 2017. Attorney Kevin P. Milazzo, counsel for Defendant Li, filed both an entry of appearance and a Praecipe to Rule Plaintiff to File Complaint on May 23, 2017. The initial Complaint in this matter was filed on June 14, 2017, and the controlling Fourth Amended Complaint was filed on December 4, 2017. [Appellants] filed Preliminary Objections to [Appellee's] Fourth Amended Complaint on December 21, 2017. This [c]ourt deferred a ruling on the Preliminary Objections until we issued a ruling on Defendant Li's Motion to Dismiss, which was filed on December 7, 2017.
We denied the Motion to Dismiss on June 6, 2018. We determined that [Appellee] had engaged in a good faith attempt to serve Defendant Li and to move this case forward and that [Appellee] had demonstrated that her efforts at service were reasonable. On December 13, 2018, [Appellants] filed a Motion for Amendment of the Order dated June 6, 2018.
"While we stand by our Order denying [Appellants'] Motion to Dismiss, we nevertheless recognize that [Appellants] have presented a substantial issue of jurisdiction and are entitled to interlocutory appeal. As noted by our Supreme Court, "It is extremely unlikely that the loser court will find it likely that its Order will be reversed on the merits. On the other hand, there are ample instances when the loser tribunal could find that the appellant has presented a substantial case on the merits even though it disagrees." Pennsylvania Public Util. Commission v. Process Gas Consumers Group, 467 A.2d 805, 809 (Pa. 1983). We recognize that [Appellants] have presented a substantial question of jurisdiction even though we may disagree with [Appellants'] ultimate conclusion.
On March 20, 2019, [Appellants] filed a Notice of Appeal to the Superior Court as to this [c]ourt's Order dated March 8, 2019 amending the Order of June 6, 2018. On March 21, 2019, this [c]ourt ordered that [ ] Appellants file a Concise Statement of Matters Complained of on Appeal within twenty-one (21) days from the date of the Order. [ ] Appellants filed their Concise Statement on April 10, 2019.

Trial Court Opinion filed 5/16/19, at 1-3.

In their concise statement of errors complained of on appeal, Appellants raise seven (7) claims, each of which pertains to service. In their appellate brief, Appellants present a single issue for this Court's review:
Whether the [t]rial [c]ourt erred/abused its discretion in denying [Appellants'] Motion to Dismiss the case against them for lack of service, where [Appellee] did not make "good faith efforts" to serve them for eight months after the statute of limitations had expired; where [Appellee] persistently attempted service at a wrong address during that time, and never tried to serve Appellants at an address that she herself recited in her five complaints, and that was conspicuously marked with [Appellants'] names; and where [Appellants] put [Appellee] on notice of lack of service in five sets of Preliminary Objections?

Brief of Appellant at 4.

         This Court's standard of review of a trial court's order denying preliminary objections is well-settled: we will reverse the trial court's decision regarding preliminary objections only where there has been an error of law or abuse of discretion. When sustaining the trial court's ruling will result in the denial of a claim or dismissal of a suit, preliminary objections will be sustained only where the case is free and clear of doubt. Brosovic v. Nationwide Mutual Insurance, 841 A.2d 1071, 1073 (Pa.Super. 2004) (citation omitted). "An abuse of discretion may not be found merely because [this Court] might have reached a different conclusion, but requires a showing of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous." Hoy v. Angelone, 544 Pa. 134, 148, 720 A.2d 745, 752 (1998) (citation omitted). "It is not an abuse of the trial court's discretion to enforce the rules of civil procedure, even when the result has a serious adverse effect on the party violating the rules[.]" Paden v. Baker Concrete Construction, 540 Pa. 409, 414, 658 A.2d 341, 344 (1995).

         A defendant may file a preliminary objection on the basis that the plaintiff did not serve the complaint properly. Pa.R.C.P. 1028.

When a defendant challenges the court's assertion of personal jurisdiction, that defendant bears the burden of supporting such objections to jurisdiction by presenting evidence. The burden of proof only shifts to the plaintiff after the defendant has presented affidavits or other evidence in support of its preliminary objections challenging jurisdiction.

Trexler v. McDonald's Corp., 118 A.3d 408, 412 (Pa.Super. 2015). (quotation marks and citations omitted). The defendant's burden may be met by filing verified preliminary objections. Gall v. ...


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