Rutyna, A. v. Schweers, W. ( 2015 )

J-A04021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ALDIS RUTYNA AND MARY JANE IN THE SUPERIOR COURT OF
RUTYNA, PENNSYLVANIA
Appellants
v.
WILLIAM S. SCHWEERS, JR., AND
HARRINGTON, SCHWEERS, DATILLO &
MCCLELLAND, P.C.,
Appellees No. 1170 WDA 2014
Appeal from the Order of July 14, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 07-025594
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 10, 2015
Appellants, Aldis Rutyna and Mary Jane Rutyna, appeal from the order
entered on July 14, 2014, which granted the motion for summary judgment
that was filed on behalf of William S. Schweers, Jr. (hereinafter “Attorney
Schweers”) and Harrington, Schweers, Datillo & McClelland, P.C. (hereinafter
“the Law Firm”). We vacate the trial court’s order and remand.
We previously explained the underlying facts of this case. We quote,
in part, from our prior factual summary:
On May 18, 2006, [Attorney] Schweers filed a medical
malpractice complaint on behalf of [Appellants, naming, as
defendants, William P. Donaldson, III, M.D. and the
University of Pittsburgh Medical Center – Presbyterian. The
complaint alleged] that Mr. Rutyna was injured as a result
of negligence during surgery. After [Attorney] Schweers did
*Retired Senior Judge assigned to the Superior Court.
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not file a certificate of merit, a judgment of non pros was
entered and the case [was] dismissed.
On December 5, 2007, [Appellants] filed a complaint
against [Attorney Schweers and the Law Firm]. In that
complaint, [Appellants] alleged that [Attorney] Schweers
committed professional [malpractice] when he failed to file
the required certificate of merit, resulting in the entry of a
non pros judgment against [Appellants]. [Appellants] also
alleged that [Attorney] Schweers made misrepresentations
to them to conceal his misconduct and to prevent
[Appellants] from seeking a different attorney. In their
complaint, [Appellants] raised claims of professional
negligence, fraudulent misrepresentation, negligent
misrepresentation, breach of fiduciary duty, and breach of
contract against [Attorney] Schweers. [Appellants] alleged
respondeat superior/vicarious liability and Unfair Trade
Practices and Consumer Protection Law violations against
the Law Firm. A certificate of merit for each defendant was
attached to the complaint.
[Attorney Schweers and the Law Firm] filed preliminary
objections. On January 18, 2011, [Appellants] filed an
amended complaint. On January 19, 2011, the trial court
struck the amended complaint, and dismissed with
prejudice from the original complaint the counts of
fraudulent and negligent misrepresentation and breach of
fiduciary duty against [Attorney] Schweers, and violations
of the Unfair Trade Practices and Consumer Protection Law
against the Law Firm. The order also struck several
paragraphs from the complaint that alleged that [Attorney]
Schweers made misrepresentations to [Appellants. The
result of the trial court’s order was that only Appellants’
claims for professional negligence, breach of contract, and
vicarious liability remained pending before the trial court].
Rutyna v. Schweers, 100 A.3d 325 (Pa. Super. 2014) (unpublished
memorandum) at 1-3 (internal footnotes omitted) (internal italics added).
On September 11, 2012, Attorney Schweers and the Law Firm filed a
motion for summary judgment. As the movants claimed, during the
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underlying medical malpractice action, Attorney Schweers sought to obtain
an expert medical report from Dr. Lance Perling. However, the movants
claimed, Dr. Perling “prepared a written report which yielded a negative
opinion[; in particular, Dr. Perling concluded] that Dr. Donaldson and UPMC
were not responsible for [Mr. Rutyna’s] condition.”1, 2
Motion for Summary
Judgment, 9/11/12, at ¶ 11 (internal emphasis omitted).
Attorney Schweers and the Law Firm noted that, for Appellants to
prevail on their legal malpractice claim, Appellants must be able to prove the
following three elements: “(1) [t]he employment of the attorney or other
basis for duty; (2) [t]he failure of the attorney to exercise ordinary skill and
knowledge; and (3) [t]hat such negligence was the proximate cause of
damage to the plaintiff.” Rizzo v. Haines, 555 A.2d 58, 65 (Pa. 1989); see
Motion for Summary Judgment, 9/11/12, at ¶ 35. According to the
movants, since Attorney Schweers could not obtain a favorable expert
opinion from Dr. Perling to support the underlying medical malpractice
____________________________________________
1
Attorney Schweers and the Law Firm attached a copy of Dr. Perling’s letter
to their summary judgment motion. Motion for Summary Judgment,
9/11/12, at “Exhibit 5.”
2
Within their summary judgment motion, Attorney Schweers and the Law
Firm claimed: “[Attorney Schweers and the Law Firm] have now obtained
two negative expert reviews on the case, one oral and one in writing.”
Motion for Summary Judgment, 9/11/12, at ¶ 24. However, the summary
judgment motion did not specify who provided the “oral” expert review –
and there was no documentation to support the statement regarding an
“oral” expert review.
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action, Attorney Schweers could not file a certificate of merit in the
underlying case. Therefore, the movants claimed, Appellants are unable to
sustain their burden of production in this legal malpractice case, as
Appellants cannot establish that Attorney Schweers failed to “exercise
ordinary skill and knowledge” when he failed to file a certificate of merit in
the underlying medical malpractice case. Id. at ¶¶ 41-42.
Moreover, within the summary judgment motion, Attorney Schweers
and the Law Firm claimed that Appellants are unable to prove that the
alleged negligence was the proximate cause of their damages, as:
“[Appellants] have not presented any particular piece of evidence to prove
that [Attorney Schweers] did not obtain at least one medical expert report”
and it was speculative to conclude that Attorney Schweers should have
found “a doctor that was willing to opine that [Appellants’] case had merit.”
Id. at ¶¶ 46-54.
Finally, Attorney Schweers and the Law Firm claimed that they were
entitled to summary judgment because Appellants refused to pay for their
case to be reviewed by other experts. See id. at ¶¶ 16-17.
On December 11, 2012, Appellants filed their response to the
summary judgment motion. Within their response, Appellants: denied the
movants’ declaration that Dr. Perling’s review constituted a comprehensive,
expert review of their claim, as Dr. Perling had reviewed the case before all
of Mr. Rutyna’s relevant medical information was collected; claimed that
Attorney Schweers “never submitted [Mr. Rutyna’s] medical records and
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other documentation to any expert medical witness or requested a case
evaluation therefrom;” claimed that “[Attorney Schweers’] failure to file a
certificate of merit was not the result of not being able to find a suitable
medical review[, i]nstead, it was the result of [Attorney Schweers’] failure to
adequately seek one;” asserted that Attorney Schweers had actively misled
them as to the status and condition of their case; claimed that Attorney
Schweers promised them that he would “handle” the fees associated with
procuring an expert opinion; and, claimed that Attorney Schweers and the
Law Firm promised to pay all of the litigation costs associated with the
medical malpractice action.3 Appellants’ Response to Motion for Summary
Judgment, 12/11/12, at ¶¶ 11, 16-17, 22, 31, 32, 38, 41, 51, 52, 53, and
54.
Further, even though Attorney Schweers and the Law Firm did not
move for summary judgment on the ground that Appellants failed to produce
an expert medical report to support their action, Appellants attached an
expert medical report to their response. The report was authored by Dr.
Mark R. Foster and, within the report, Dr. Foster opined that Dr. Donaldson
had deviated from the standard of care during and following Mr. Rutyna’s
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3
Appellants also denied the movants’ unsupported claim that Attorney
Schweers “obtained two expert reports.” Appellants’ Response to Motion for
Summary Judgment, 12/11/12, at ¶ 41.
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surgery, and that the deviations from the standard of care caused harm to
Mr. Rutyna. Specifically, Dr. Foster opined:
Dr. Donaldson’s care [was] significantly below the standard
of care. First, he damaged the important lower sacral
nerves, as they passed by his operative sight without
documenting – or apparently being aware of – the damage
that he had done. Not only was Dr. Donaldson unable to
describe what happened, but he does not even describe the
closure of the dural net, of which he certainly was aware.
Further, he seems to be taken by surprise when the January
29, 2004 urinary retention presents itself. Although the
discharge sheet talks about a transient neurologic injury,
this is a permanent injury which Dr. Donaldson did not
recognize when he caused the injury. He still did not
recognize the injury on [] January 29, 2004 and then
attributed the problem to operative stretch. An MRI was
performed to rule out cauda equine syndrome because Dr.
Donaldson still did not recognize the neurologic permanent
deficit that he had caused.
Consequently, Dr. Donaldson not only deviated from the
standard of care during surgery, he also deviated in the
standard of care by failing to recognize and care for the
injury caused. He further suggests in his notes (some of
which are progress notes from the same day as the
incident) that muscle strength was five out of five, but the
resident notes demonstrate some failure of full recovery
despite decadron, which was given for the motor weakness
(not even recognizing the neurologic damage eliminating
continence), and the admission to physical medicine and
rehabilitation notes demonstrate “a significant diminish of
the right extensor halluces longus, EHL which is L5 nerve
root and would be involved with the L4-5 disc” as being the
grade of 2 out of 5, which is less than anti-gravity strength,
as anti-gravity strength is 3 out of 5.
To a reasonable degree of medical certainty, Dr. Donaldson
caused an intraoperative dural leak which damaged the
sacral nerve roots. This damage to the sacral nerve roots
caused permanent neurologic damages and eliminated
bowel and bladder continence, which were not even
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recognized by the attending surgeon performing the
procedure. In addition, prolonged retraction damaged the
L3 nerve roots, which had been normal on EMG,
approximately six months later.
Report of Dr. Mark R. Foster, dated 2/28/08, at 2-3 (attached as “Exhibit 13”
to Appellants’ Response to the Motion for Summary Judgment).
Within Appellants’ response, Appellants also averred that, after their
medical malpractice action was dismissed, they retained a new attorney and
their new counsel “was easily able to obtain” a favorable expert medical
report to support their medical malpractice claim. Appellants’ Response to
Motion for Summary Judgment, 12/11/12, at ¶ 52.
Apparently, oral argument on the summary judgment motion occurred
on December 17, 2012. See Scheduling Order, 11/21/12, at 1. Following
oral argument, counsel for Attorney Schweers and the Law Firm hand-
delivered a letter to the trial judge. In relevant part, the letter reads:
I am asking the court to grant summary judgment for
[Appellants’] failure to proffer an expert report establishing
a breach of a standard of care by the lawyer. This is a 2007
docket case (six years old) and [Appellants] have had
ample time to secure an expert to establish a breach of a
standard of care.
Attorney Schweers’ and the Law Firm’s Letter to the Trial Judge, dated
12/17/12, at 1.
Even though Attorney Schweers and the Law Firm did not explicitly
move for summary judgment on the ground that Appellants “fail[ed] to
proffer an expert report establishing a breach of a standard of care by the
lawyer,” the trial court signed the following order:
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AND NOW, to wit, this 22nd day of [February], 2013, upon
consideration of [Attorney Schweers’ and the Law Firm’s]
Motion for Summary Judgment it is hereby ORDERED,
ADJUDGED and DECREED that [Appellants are to] provide
an expert report as to liability within 45 days. Failure to do
so will result in the grant of summary judgment on praecipe
of [Attorney Schweers and the Law Firm].
Trial Court Order, dated 2/22/13, at 1.
As this Court has explained:
On April 9, 2013, [Attorney Schweers and the Law Firm]
filed a praecipe to enter summary judgment, because
[Appellants] had [allegedly] not complied with the [trial
court’s] February 22[, 2013] order. On April 10, [2013,
Appellants’] counsel delivered a letter to the [trial] court,
indicating that [Appellants’ counsel had not] received the
February 22[, 2013] order. On April 30, 2013, after hearing
argument, the [trial] court entered summary judgment in
favor of [Attorney Schweers and the Law Firm]. On May 3,
2013, [Appellants] filed a notice of appeal [to the Superior
Court and, within their brief to this Court, Appellants
claimed that the trial court erred in granting summary
judgment to Attorney Schweers and the Law Firm because
“the [trial court] docket did not reflect that notice was given
of the entry of the order directing [Appellants] to provide an
expert report, and [Appellants], in fact, never received the
order.”]
Rutyna v. Schweers, 100 A.3d 325 (Pa. Super. 2014) (unpublished
memorandum) at 4 (internal footnotes and some capitalization omitted)
(internal italics added).
On March 31, 2014, this Court vacated the trial court’s summary
judgment order and remanded the case for further proceedings. As we
explained, “[o]ur review of the docket show[ed] that there [was] no notation
[on the docket, indicating that the February 22, 2013] order was sent to the
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parties[,] as required by [Pennsylvania Rule of Civil Procedure] 236.” Id. at
8. Therefore, we held, since the February 22, 2013 order was never
properly entered, the grant of summary judgment to Attorney Schweers and
the Law Firm was erroneous. Id. at 9.
On remand, Appellants promptly filed an expert legal report to support
their legal malpractice claim. The report, which was authored by Dennis M.
Blackwell, Esquire, declared in relevant part:
[] based on my experience, it is my opinion, expressed to a
reasonable degree of professional certainty, that the
standard of care prevailing in Western Pennsylvania in 2006
required that an attorney handling a medical malpractice
case for a client make some effort to obtain an expert
witness to support a certificate of merit, and that an
attorney that did not contact so much as a single potential
expert had breached that duty of care.
It is also my opinion, expressed to a reasonable degree of
professional certainty, that [] the standard of care
prevailing in Western Pennsylvania in 2006 required that an
attorney handling a medical malpractice case for a client
contact more than one potential expert to support a
certificate of merit, and that an attorney that only contacted
a single potential expert had breached that duty of care.
It is critical that I clarify what my opinion IS NOT. You did
not ask me to opine, nor do I opine that [] the standard of
care prevailing in Western Pennsylvania in 2006 required
that an attorney handling a medical malpractice case for a
client continue to search for an expert to support a
certificate of merit, until he finds one.
On a related issue, it is my opinion, expressed to a
reasonable degree of professional certainty, that [Attorney]
Schweers’ conduct in terms of his failure to promptly and
accurately report to his clients, [Appellants], developments
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in the search for an expert, did not meet the applicable
standard of care.
Report of Dennis M. Blackwell, Esquire, dated 4/7/14, at 6 (emphasis in
original).
On April 17, 2014, Attorney Schweers and the Law Firm filed a self-
titled “renewed motion for summary judgment.” Within this filing, Attorney
Schweers and the Law Firm claimed that Attorney Blackwell’s expert legal
report was insufficient to defeat their summary judgment motion because:
1) “no legal authority exists to support [Attorney Blackwell’s] assertion . . .
that the standard of care in Pennsylvania in 2006 required an ‘attorney
handling a medical malpractice case for a client [to] contact more than one
potential expert to support a certificate of merit, and that an attorney that
only contacted a single potential expert had breached that duty of care;’” 2)
Attorney Blackwell did not opine that “the standard of care prevailing in
Western Pennsylvania in 2006 required that an attorney handling a medical
malpractice case for a client continue to search for an expert to support a
certificate of merit, until he finds one;” and, 3) Attorney Schweers “obtained
. . . two expert reviews that did not support [Appellants’] position.”
Renewed Motion for Summary Judgment, 4/17/14, at ¶¶ 40-54.
By order entered on July 14, 2014, the trial court again granted
summary judgment against Appellants and in favor of Attorney Schweers
and the Law Firm. Within the trial court’s memorandum order, the trial
court declared that Attorney Blackwell’s expert legal report was insufficient
to defeat the summary judgment motion because Attorney Blackwell refused
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to opine that “the standard of care prevailing in Western Pennsylvania in
2006 required that an attorney handling a medical malpractice case for a
client continue to search for an expert to support a certificate of merit, until
he finds one.” Trial Court Order, 7/14/14, at 2.
Appellants filed a timely notice of appeal and Appellants now raise the
following claims to this Court:4
[1.] Did the [trial] court err in citing only a small portion of
the expert report, when a reading of the report as a whole
clearly set forth sufficient grounds to support a finding that
[Attorney] Schweers failed to comply with the standard of
care?
[2.] Did the trial court commit reversible error when, in
deciding [the] summary judgment motion, it removed from
the fact-finder the question of the weight to be accorded
[Appellants’] legal expert opinion and purported to make
that determination, itself?
[3.] Did the [trial] court err in making certain findings of
fact, when those facts had clearly been disputed by
[Appellants]?
Appellants’ Brief at 4 (some internal capitalization omitted).
We note:
Our scope of review of a trial court’s order granting or
denying summary judgment is plenary, and our standard of
review is clear: the trial court’s order will be reversed only
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4
The trial court did not order Appellants to file a concise statement of errors
complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), and Appellants did not file a Rule 1925(b) statement on
their own initiative.
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where it is established that the court committed an error of
law or abused its discretion.
Summary judgment is appropriate only when the record
clearly shows that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a
matter of law. The reviewing court must view the record in
the light most favorable to the nonmoving party and resolve
all doubts as to the existence of a genuine issue of material
fact against the moving party. Only when the facts are so
clear that reasonable minds could not differ can a trial court
properly enter summary judgment.
Englert v. Fazio Mech. Serv.’s, Inc., 932 A.2d 122, 124 (Pa. Super. 2007)
(internal citations omitted).
Appellants claim that the trial court erred when it granted the
summary judgment motion that was filed by Attorney Schweers and the Law
Firm. As Appellants first claim, in granting the summary judgment motion,
the trial court necessarily “disregarded [the] opinions expressed in
[Attorney] Blackwell’s [expert] report that unquestionably support[ed]
[Appellants’] claims.” Appellant’s Brief at 20 (some internal capitalization
omitted). According to Appellants, the trial court attempted to support its
order by citing to a superfluous statement within Attorney Blackwell’s expert
report and the trial court then erroneously based its order upon the
superfluous statement. Id. We agree.
As this Court has explained:
Our Supreme Court has held that “a legal malpractice action
in Pennsylvania requires the plaintiff to prove that he had a
viable cause of action against the party he wished to sue in
the underlying case and that the attorney he hired was
negligent in prosecuting or defending that underlying case
(often referred to as proving a ‘case within a case’).”
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Kituskie v. Corbman, 714 A.2d 1027, 1030 (Pa. 1998).
To prove [a legal] malpractice action, the plaintiff “must
initially establish by a preponderance of the evidence that
he would have recovered a judgment in the underlying
action.” Id. “It is only after the plaintiff proves he would
have recovered a judgment in the underlying action that
[he] can then proceed with proof that the attorney 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 [him] from being properly compensated
for [his] loss.” Id. To establish [the] 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 ordinary skill
and knowledge; and
3) that such negligence was the proximate cause of
damage to the plaintiff.
Sokolsky v. Eidelman, 93 A.3d 858, 862 (Pa. Super. 2014) (internal
corrections omitted).
Within Appellants’ complaint, Appellants alleged that Attorney
Schweers was professionally negligent because he failed to timely file a
certificate of merit in the underlying medical malpractice case. Appellants’
Complaint, 12/5/07, at ¶ 17. At the close of discovery, Attorney Schweers
and the Law Firm filed a summary judgment motion, wherein they raised the
following grounds for relief: Attorney Schweers obtained a negative expert
opinion from Dr. Perling and, therefore, Attorney Schweers was unable to file
a certificate of merit in the underlying medical malpractice action; Attorney
Schweers obtained a second negative expert opinion, from an unidentified
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source, in the underlying action; it was speculative to conclude that Attorney
Schweers should have found “a doctor that was willing to opine that
[Appellants’ medical malpractice] case had merit;” and, Appellants refused
to pay for their medical malpractice case to be reviewed by other experts.
Appellants responded to the summary judgment motion by: claiming
that Dr. Perling’s review of the case was necessarily incomplete, as Dr.
Perling had reviewed the case before all of Mr. Rutyna’s relevant medical
information was collected; denying Attorney Schweers’ unsupported
statement that he received a second negative expert opinion in the medical
malpractice case; and, claiming that Attorney Schweers promised them that
he would advance the fees necessary to obtain further expert medical
reviews and that the firm would pay for all litigation expenses. Further,
Appellants filed an expert legal report, authored by Attorney Blackwell,
wherein Attorney Blackwell declared:
[] based on my experience, it is my opinion, expressed to a
reasonable degree of professional certainty, that the
standard of care prevailing in Western Pennsylvania in 2006
required that an attorney handling a medical malpractice
case for a client make some effort to obtain an expert
witness to support a certificate of merit, and that an
attorney that did not contact so much as a single potential
expert had breached that duty of care.
It is also my opinion, expressed to a reasonable degree of
professional certainty, that [] the standard of care
prevailing in Western Pennsylvania in 2006 required that an
attorney handling a medical malpractice case for a client
contact more than one potential expert to support a
certificate of merit, and that an attorney that only contacted
a single potential expert had breached that duty of care.
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It is critical that I clarify what my opinion IS NOT. You did
not ask me to opine, nor do I opine that [] the standard of
care prevailing in Western Pennsylvania in 2006 required
that an attorney handling a medical malpractice case for a
client continue to search for an expert to support a
certificate of merit, until he finds one.
On a related issue, it is my opinion, expressed to a
reasonable degree of professional certainty, that [Attorney]
Schweers’ conduct in terms of his failure to promptly and
accurately report to his clients, [Appellants], developments
in the search for an expert, did not meet the applicable
standard of care.
Report of Dennis M. Blackwell, Esquire, dated 4/7/14, at 6 (emphasis in
original).
Notwithstanding the fact that the above-quoted, penultimate
paragraph in Attorney Blackwell’s report was superfluous, the trial court
based its summary judgment ruling upon that superfluous statement.
Specifically, the trial court granted Attorney Schweers’ and the Law Firm’s
motion for summary judgment because Attorney Blackwell did not render
an opinion on whether “the standard of care prevailing in Western
Pennsylvania in 2006 required that an attorney handling a medical
malpractice case for a client continue to search for an expert to support a
certificate of merit, until he finds one.” Trial Court Opinion, 7/14/14, at 2.
The trial court’s reasoning in this case was erroneous, given that
Attorney Blackwell’s statement in the above-quoted, second-to-last
paragraph neither added to nor detracted from the opinions contained in his
expert report. Further, when Attorney Blackwell’s actual, stated opinions in
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the expert report are combined with Appellants’ response to the summary
judgment motion, it is evident that the trial court erred when it granted
summary judgment to Attorney Schweers and the Law Firm. Indeed, when
the record is viewed in the light most favorable to Appellants, the record
demonstrates that Attorney Schweers contacted, at most, one expert – Dr.
Perling – to support the certificate of merit in the underlying case.5
However, as Attorney Blackwell opined, when an attorney contacts only one
potential expert to support a certificate of merit and then receives a negative
response, the attorney breached the standard of care he owes to his client.
In the words of Attorney Blackwell:
the standard of care prevailing in Western Pennsylvania in
2006 required that an attorney handling a medical
malpractice case for a client contact more than one
potential expert to support a certificate of merit, and that
an attorney that only contacted a single potential expert
had breached that duty of care.
Report of Dennis M. Blackwell, Esquire, dated 4/7/14, at 6.
Attorney Blackwell’s stated opinion clearly demonstrates that there is a
genuine issue of material fact as to whether Attorney Schweers breached his
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5
As stated, the record, viewed in a light most favorable to the Appellant,
leads to the conclusion that Attorney Schweers contacted only one potential
medical expert. Attorney Schweers and the Law Firm refute this and claim
that a second expert was contacted (a factual allegation denied by the
Appellants). Thus, at a minimum, a genuine issue of material fact exists
which makes summary judgment inappropriate.
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duty of care when he contacted only one potential expert to support the
certificate of merit. The trial court’s ruling to the contrary was erroneous.6, 7
Further, although this Court may affirm a trial court’s ruling upon any
basis, in this case there was simply no basis upon which the trial court could
have granted the summary judgment motion that was filed by Attorney
____________________________________________
6
According to Appellants’ second claim on appeal, the trial court erred when
it “refus[ed] to defer to the conclusions set forth in [Appellants’] expert
report.” Appellants’ Brief at 20-22. We will not independently discuss this
claim, as it is subsumed within Appellants’ first claim on appeal. See also
Summers v. Certainteed Corp., 997 A.2d 1152, 1161 (Pa. 2010) (“[i]t has
long been Pennsylvania law that, while conclusions recorded by experts may
be disputed, the credibility and weight attributed to those conclusions are
not proper considerations at summary judgment; rather, such
determinations reside in the sole province of the trier of fact”).
7
Within Appellants’ third claim on appeal, Appellants contend that the trial
court is biased against them. Appellants thus request this Court to instruct
that, on remand, a different trial judge hear the case. Appellants’ Brief at
28. In support of their claim, Appellants note that, within the trial court’s
factual recitation to this Court, the trial court acted in contravention of its
standard of review by purporting to resolve two disputed factual issues
against Appellants and in favor of Attorney Schweers and the Law Firm. Id.
at 22-24. Further, Appellants note: that the trial court initially “dismissed
[Appellants’ c]omplaint because [Appellants] had not filed an expert report,
notwithstanding [Appellants’ counsel’s] repeated protests that they had
never received the order telling them to do so and additionally pointing out
that the docket did not reflect that the order had been mailed” and that the
trial court “complete[ly] disregard[ed] the opinions stated in [Attorney
Blackwell’s] expert report in favor of a non-opinion found in that report, as a
basis for dismissing this case a second time.” Id. at 27 (internal
capitalization omitted). However, this Court lacks authority to remove a
judge from a case. Such power rests solely with our High Court. Reilly v.
Southeastern Pa. Transp. Auth., 489 A.2d 1291 (1985). See also
Commonwealth v. Whitmore, 912 A.2d 827 (Pa. 2006).
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Schweers and the Law Firm. Therefore, we vacate the trial court’s order and
remand for further proceedings.
Order vacated. Case remanded. Jurisdiction relinquished.
Bowes, J. joins the memorandum.
Strassburger, J. files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2015
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