Sokolsky v. Eidelman ( 2014 )

Justice FITZGERALD

files a Concurring and Dissenting Statement.

CONCURRING AND DISSENTING STATEMENT BY FITZGERALD, J.

I agree with the majority that the trial court erred as a matter of law in its interpretation of vicarious liability. See, e.g., Scampone v. Highland Park Care Center, LLC, 618 Pa. 363, 57 A.3d 582 (2012). I respectfully diverge from the majority, however, because it proceeds to evaluate the sufficiency of the evidence and address summary judgment in the first instance. I would instead elect to have the trial court undertake this task initially so that we may properly exercise the appropriate standard of review in the event of an appeal. See, e.g., Stimmler v. Chestnut Hill Hosp., 602 Pa. 539, 566, 981 A.2d 145, 161 (2009) (noting, “We[, ie., our Supreme Court,] will not make the initial determination of whether summary judgment is appropriate for any individual physician defendant; rather, such matters properly rest initially with the trial court, which can evaluate, under the theories of negligence advanced by Appellant, whether the record supports summary judgment on this issue.” (emphasis added)). In Stimmler, the trial court granted summary judgment solely on a particular basis, and “did not grant summary judgment based on a determination that the record fails to show a question of material fact concerning the negligence of any individual physician.” Id. at 565-66, 981 A.2d at 161. Accordingly, I respectfully concur in part and dissent in part.