Sutch, R. v. Roxborough Memorial Hospital , 151 A.3d 241 ( 2016 )

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2016 PA Super 251ROSALIND W. SUTCH, AS EXECUTRIX OF IN THE SUPERIOR COURT OF
THE ESTATE OF ROSALIND WILSON, PENNSYLVANIA
DECEASED
v.
ROXBOROUGH MEMORIAL HOSPITAL,
SOLIS HEALTHCARE, LP, ANDORRA
RADIOLOGY ASSOC., TENET
HEALTHSYSTEM ROXBOROUGH, LLC,
TENET, INC., TENET GROUP, LLC,
ROXBOROUGH EMERGENCY PHYSICIAN
ASSOCIATES, LLC, BARBARA ROBINS,
M.D., JEFFREY GELLER, M.D., AND
MELANIO D. AGUIRRE
APPEAL OF: NANCY K. RAYNOR,
ESQUIRE
No. 1836 EDA 2015
Appeal from the Judgment Entered May 2, 2012
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 0907-0901
ROSALIND W. SUTCH, AS EXECUTRIX OF IN THE SUPERIOR COURT OF
THE ESTATE OF ROSALIND WILSON, PENNSYLVANIA
DECEASED
v.
ROXBOROUGH MEMORIAL HOSPITAL,
SOLIS HEALTHCARE, LP, ANDORRA
RADIOLOGY ASSOC., TENET
HEALTHSYSTEM ROXBOROUGH, LLC,
TENET, INC., TENET GROUP, LLC,
ROXBOROUGH EMERGENCY PHYSICIAN
ASSOCIATES, LLC, BARBARA ROBINS,
J-A15043-16
M.D., JEFFREY GELLER, M.D., AND
MELANIO D. AGUIRRE, M.D.
APPEAL OF: JEFFREY GELLER, M.D. AND
ROXBOROUGH EMERGENCY PHYSICIAN
ASSOCIATES, LLC
No. 1852 EDA 2015
Appeal from the Judgment Entered May 15, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 0907-0901
BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.
OPINION BY JENKINS, J.: FILED NOVEMBER 15, 2016
In this contentious medical malpractice action, Jeffrey Geller, M.D.
(“Dr. Geller”) and Roxborough Emergency Physician Associates, LLC
(“REPA”) appeal at 1852 EDA 2015 from a judgment of $778,643.85 entered
in favor of Rosalind Sutch, personal representative of the Estate of Rosalind
Wilson, deceased (“the Estate”).1 Dr. Geller and REPA argue, among other
things, that the trial court abused its discretion by disqualifying their
attorney, Nancy Raynor, Esquire, from representing them during the second
trial in this case.
Raynor herself appeals at 1836 EDA 2015 from an order directing her
to pay $44,693.25 in counsel fees to the Estate.
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1
There were two trials in this case. Following the first trial, the trial court
granted the Estate’s motion for new trial, and this Court affirmed. The
second trial resulted in a verdict for the Estate, which the trial court
subsequently reduced to judgment. The appeal at 1852 EDA 2015 followed.
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On August 17, 2015, we consolidated these appeals sua sponte. For
the reasons that follow, we affirm.
Factual and Procedural History
Decedent’s illness and lawsuit. On May 3, 2007, Rosalind Wilson
(“Decedent”), then 68 years old, visited the emergency room of Roxborough
Memorial Hospital (“Hospital”) due to a headache, chest pains and shortness
of breath. Jeffrey Geller, M.D. (“Dr. Geller”) saw Decedent and ordered a
chest x-ray. A radiologist, Barbara Robins, M.D., reviewed the x-ray and
noted a suspicious 2.3 centimeter nodule on both a hospital STAT sheet and
in her preliminary and final reports. Dr. Robins also recommended a CT
scan.
During Decedent’s overnight stay, Hospital physicians ruled out cardiac
problems and pulmonary embolism. But at discharge, neither Dr. Geller nor
the attending physicians, including Melanio Aguirre, M.D., advised Decedent
of her lung nodule or her need for a CT scan.
Twenty months later, in January 2009, Decedent learned that she had
Stage IV lung cancer. The malignant lung nodule had grown to 8
centimeters and metastasized to her brain. In early July 2009, Decedent
filed a writ of summons against Hospital, Dr. Geller, REPA and other
defendants. On July 21, 2009, Decedent passed away. After her death, her
personal representative (“the Estate”) filed a complaint alleging that all
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defendants breached their duty to tell Decedent about her lung nodule
during her hospitalization in May 2007.
Raynor’s and Packett’s letters to HUP. On July 21, 2009, attorney
Raynor of the law firm of Raynor & Associates (“the Raynor firm”) entered
her appearance for Dr. Geller and REPA in the medical malpractice action.
Trial was originally scheduled for December 6, 2011, but another defendant,
Dr. Aguirre, had a medical emergency which necessitated a continuance until
May 21, 2012.
On January 13, 2012, four months before the new trial date, Raynor
sent a letter to general counsel for HUP, a non-party in the medical
malpractice action. Raynor’s letter attacked the anticipated testimony of the
Estate’s expert witness on emergency medicine, Stefanie Porges, M.D.,
whom HUP employed as an emergency room physician. Raynor labeled Dr.
Porges’ opinion “untenable” and wrote: “I thought you might want to know
that, if this is [Dr. Porges’] position and plaintiff[s’] attorneys become aware
of it, it could expose [HUP] to significant liability … I find it very difficult to
believe that [Dr. Porges’ opinion] could be the official position of [HUP]
under these circumstances …”
The head of HUP’s Emergency Department contacted Dr. Porges about
Raynor’s letter, and Dr. Porges in turn notified the Estate’s attorney. The
Estate filed a motion seeking monetary sanctions and Raynor’s
disqualification from representing Dr. Geller and REPA. Undaunted, Raynor
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had an associate in her law firm, Judy May Packett, send letters to the
Estate’s attorney in March and April of 2012 inquiring whether Dr. Porges
would remain as the Estate’s expert.
On April 19, 2012, Raynor and Packett attended a hearing before the
Honorable Jacqueline Allen concerning the Estate’s motion for sanctions.
Raynor stated that she “simply just said to someone outside the course of
what [Dr. Porges] did in this case that hey, this is an opinion that’s out
there.” N.T., 4/19/12, at 47. Raynor contended that her letter to HUP “is
the type of thing that happens all the time. It could have been information
relayed at lunch or at a cocktail party.” Id. at 18.
On April 30, 2012, Judge Allen granted the Estate’s motion in part and
ordered Raynor to refrain from contacting the Estate’s expert witnesses
and/or their employers about any matter relating to the Estate’s case.
Judge Allen determined that another hearing was necessary to determine
the proper sanction but stayed the hearing pending the disposition of the
upcoming trial.
First trial. Prior to trial, the Honorable Paul Panepinto, the assigned
trial judge, granted the Estate’s motion in limine to preclude all references to
Decedent’s long history of smoking.
During trial, Dr. Porges testified for the Estate as an expert witness on
emergency room medicine. Raynor called John Kelly, D.O., as a defense
expert on the same subject. During direct examination, Raynor asked Dr.
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Kelly whether Decedent had any cardiac risk factors. Dr. Kelly responded
that Decedent was a smoker and was hypertensive. At the conclusion of Dr.
Kelly’s testimony, the Estate’s attorney requested a sidebar conference.
Judge Panepinto dismissed the jury and asked Dr. Kelly whether Raynor
made him aware of the order banning all mention of Decedent’s smoking.
Dr. Kelly answered that he did not remember discussing the order with
Raynor.
The next day, the Estate moved for a mistrial. Judge Panepinto denied
the motion but gave a curative instruction to the jury. Several days later,
on June 8, 2012, the jury returned a verdict for the Estate in the amount of
$190,000 against Roxborough Memorial Hospital and Dr. Aguirre, but not
against Raynor’s clients, Dr. Geller and REPA. The Estate filed post-trial
motions requesting a new trial on the ground that the court erroneously
denied its motion for mistrial.
Further sanctions proceedings before Judge Allen. While post-
trial motions were pending before Judge Panepinto, the Estate filed a
supplemental memorandum with Judge Allen in support of its motion for
sanctions against Raynor. The supplemental memorandum contended that
the Estate incurred $45,694.25 in fees due to the hearings and motions
necessitated by Raynor’s letter to HUP. The Estate also claimed in the
supplemental memorandum that Raynor committed misconduct during the
“smoking” incident in the first trial.
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Judge Allen held a sanctions hearing, and on August 28, 2012, she
entered an order (1) directing Raynor to pay $44,693.25 in counsel fees to
the Estate and (2) disqualifying Raynor -- but not other attorneys in the
Raynor firm -- from further representation of Dr. Geller and REPA.
Raynor filed an interlocutory appeal from Judge Allen’s sanctions
order, which this Court quashed.
New trial granted and interlocutory appeal. On October 22,
2012, Judge Panepinto granted the Estate’s motion for a new trial. All
defendants appealed at 3246, 3249, 3255 & 3257 EDA 2012 (including Dr.
Geller and REPA at 3246 EDA 2012).2 On November 4, 2013, this Court
affirmed, stating that “the trial court properly reasoned [that the Estate]
would suffer unfair prejudice if the jury discovered that [Decedent] was a
smoker for approximately 50 years, in that this information might lead the
jury to hold [D]ecedent accountable, to some extent, for contributing to the
cause of her death, i.e., lung cancer.” Sutch v. Geller, et al., 3246 EDA
2012 et al., at 15-16 (Pa.Super., 11/4/13). None of the parties filed a
petition for allowance of appeal with our Supreme Court.3
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2
Dr. Geller and REPA state incorrectly that the “Plaintiff” appealed. Brief For
Dr. Geller and REPA, at 50 (italics and underlining in brief).
3
In separate proceedings, Judge Panepinto held both Raynor and the Raynor
firm in civil contempt and imposed monetary sanctions in the amount of
$946,197.16 on the ground that Raynor’s conduct in the “smoking” incident
forced the court to order a new trial and caused needless expense to the
(Footnote Continued Next Page)
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Proceedings before second trial. Although Raynor herself was
disqualified as counsel, two attorneys from the Raynor firm, Packett and
Carolyn Sollecito, continued to represent Dr. Geller and REPA. Sollecito
drafted all memoranda relating to the second trial, and she continues to
represent Dr. Geller and REPA in this appeal. Packett served as trial counsel
for Dr. Geller and REPA during the second trial.
The Honorable Frederica Massiah-Jackson presided over the second
trial. The parties filed multiple pretrial motions in limine, including the
Estate’s Motion In Limine To Enforce Pennsylvania Superior Court Order As
The Law Of The Case And To Preclude Any Reference to Decedent’s
Smoking. On October 17, 2014, Judge Massiah-Jackson granted this motion
in part and denied it in part, ordering that the parties could not use
Decedent’s smoking history with regard to causation but could use it with
regard to damages. The judge also held that the Superior Court opinion at
3246 EDA 2012 was “the law of the case.”
Second trial. The second trial began on October 21, 2014. Thus,
Sollecito and Packett had over two years following Raynor’s disqualification
to prepare for trial and/or to obtain new counsel for Dr. Geller and REPA.
_______________________
(Footnote Continued)
Estate. Raynor and the Raynor firm appealed to this Court at 3494 EDA
2014. In a published opinion issued on June 15, 2016, this Court reversed
the contempt order and vacated the judgment entered on the monetary
sanctions. Sutch v. Roxborough Hospital, 142 A.3d 38 (Pa.Super.2016).
On July 15, 2016, the Estate filed a petition for allowance of appeal to our
Supreme Court at 313 EAL 2016. This petition remains pending.
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Dr. Geller’s defense was that he never received Dr. Robins’ radiology
report about the nodule in Decedent’s lungs. In rebuttal, the Estate
presented the testimony of Dr. Porges, the same expert on emergency room
procedure that the Estate had presented during the first trial. Dr. Porges
observed that Dr. Geller ordered the chest x-ray which led to Dr. Robins’
report identifying the lung nodule and recommending a CT scan. Dr. Porges
opined that Dr. Geller breached his duty as the ordering doctor to obtain the
test results. Dr. Porges testified that if Dr. Geller did not intend to obtain
the test results, he had a duty to write in Decedent’s chart that the test
results were not obtained, and that he expected someone else to obtain
them. Relying on Dr. Robins’ testimony, Dr. Porges stated that Dr. Geller
could have obtained the test results either by accessing the Hospital’s
dictation system, calling radiology or walking 15 feet to the Radiology
Department and making a verbal request.
Dr. Robins and Dr. Geller testified that under Hospital’s standard
practices, the STAT sheet that Dr. Robins prepared, as well as copies of her
preliminary and final reports, were supposed to go to Dr. Geller as the
ordering physician. The STAT sheet, preliminary report and final report all
included Dr. Robins’ observation of the lung nodule and her recommendation
for a CT scan. Dr. Robins testified that she directed the STAT sheet to Dr.
Geller in the emergency room and then completed the preliminary and final
reports, each of which identified Dr. Geller as a “cc” recipient.
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defendants breached their duty to tell Decedent about her lung nodule
during her hospitalization in May 2007.
Raynor’s and Packett’s letters to HUP. On July 21, 2009, attorney
Raynor of the law firm of Raynor & Associates (“the Raynor firm”) entered
her appearance for Dr. Geller and REPA in the medical malpractice action.
Trial was originally scheduled for December 6, 2011, but another defendant,
Dr. Aguirre, had a medical emergency which necessitated a continuance until
May 21, 2012.
On January 13, 2012, four months before the new trial date, Raynor
sent a letter to general counsel for HUP, a non-party in the medical
malpractice action. Raynor’s letter attacked the anticipated testimony of the
Estate’s expert witness on emergency medicine, Stefanie Porges, M.D.,
whom HUP employed as an emergency room physician. Raynor labeled Dr.
Porges’ opinion “untenable” and wrote: “I thought you might want to know
that, if this is [Dr. Porges’] position and plaintiff[s’] attorneys become aware
of it, it could expose [HUP] to significant liability … I find it very difficult to
believe that [Dr. Porges’ opinion] could be the official position of [HUP]
under these circumstances …”
The head of HUP’s Emergency Department contacted Dr. Porges about
Raynor’s letter, and Dr. Porges in turn notified the Estate’s attorney. The
Estate filed a motion seeking monetary sanctions and Raynor’s
disqualification from representing Dr. Geller and REPA. Undaunted, Raynor
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had an associate in her law firm, Judy May Packett, send letters to the
Estate’s attorney in March and April of 2012 inquiring whether Dr. Porges
would remain as the Estate’s expert.
On April 19, 2012, Raynor and Packett attended a hearing before the
Honorable Jacqueline Allen concerning the Estate’s motion for sanctions.
Raynor stated that she “simply just said to someone outside the course of
what [Dr. Porges] did in this case that hey, this is an opinion that’s out
there.” N.T., 4/19/12, at 47. Raynor contended that her letter to HUP “is
the type of thing that happens all the time. It could have been information
relayed at lunch or at a cocktail party.” Id. at 18.
On April 30, 2012, Judge Allen granted the Estate’s motion in part and
ordered Raynor to refrain from contacting the Estate’s expert witnesses
and/or their employers about any matter relating to the Estate’s case.
Judge Allen determined that another hearing was necessary to determine
the proper sanction but stayed the hearing pending the disposition of the
upcoming trial.
First trial. Prior to trial, the Honorable Paul Panepinto, the assigned
trial judge, granted the Estate’s motion in limine to preclude all references to
Decedent’s long history of smoking.
During trial, Dr. Porges testified for the Estate as an expert witness on
emergency room medicine. Raynor called John Kelly, D.O., as a defense
expert on the same subject. During direct examination, Raynor asked Dr.
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(1) where the movant is entitled to judgment as a matter of law;
and/or, (2) the evidence was such that no two reasonable minds
could disagree that the verdict should have been rendered for
the movant. When reviewing a trial court’s denial of a motion
for JNOV, we must consider all of the evidence admitted to
decide if there was sufficient competent evidence to sustain the
verdict. In so doing, we must also view this evidence in the light
most favorable to the verdict winner, giving the victorious party
the benefit of every reasonable inference arising from the
evidence and rejecting all unfavorable testimony and inference.
Concerning any questions of law, our scope of review is plenary.
Concerning questions of credibility and weight accorded the
evidence at trial, we will not substitute our judgment for that of
the finder of fact. If any basis exists upon which the court could
have properly made its award, then we must affirm the trial
court’s denial of the motion for JNOV. A JNOV should be entered
only in a clear case.
Brown v. Trinidad, 111 A.3d 765, 769–70 (Pa.Super.2015).
Construed in the light most favorable to the Estate, the evidence
defeats Dr. Geller’s claim of entitlement to JNOV. Dr. Robins, the
radiologist, testified that her practice was to review the patient’s films; write
her findings on a STAT sheet; dictate the findings on the STAT sheet onto
the hospital phone system, where any other physician can retrieve it; send
the STAT sheet to the ER; and later dictate preliminary and final reports. In
this case, Dr. Robins followed these procedures. She wrote her findings on a
STAT sheet, phoned a report into the hospital phone system, and drafted a
preliminary report and final report. Dr. Geller himself admitted that as
ordering physician, he was supposed to receive the STAT sheet and the
radiologist’s preliminary report. The documentary evidence showed that Dr.
Robins “cc’d” Dr. Geller on her preliminary and final reports. The clear
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inference arising from this evidence is that Dr. Geller received not one but
multiple reports from Dr. Robins.
Dr. Geller attempts to counter these damaging facts by insisting that
he received none of Dr. Robins’ reports, and that the normal flow of reports
simply broke down in Decedent’s case. In making this argument, Dr. Geller
construes the evidence in the light most favorable to himself, instead of in
the light most favorable to the Estate, the proper standard of review.
Viewed under the correct standard, the evidence demonstrates that Dr.
Geller received Dr. Robins’ reports but failed to notify Decedent about the
test results, thus allowing the nodule to grow over the next 20 months and
cause Decedent’s death.
Even assuming that Dr. Geller did not receive the reports, the trial
court’s denial of JNOV was still proper. Dr. Porges, the Estate’s expert,
opined that if Dr. Geller did not obtain the test results, he had a duty, as the
physician who ordered the tests, to ensure that the next medical provider
obtained and reviewed the test results. Dr. Geller breached this duty, said
Dr. Porges, by failing to note on Decedent’s chart that the results of her
tests were “still pending”. Thus, assuming Dr. Geller did not receive the
report, the jury remained free to credit Dr. Porges’ opinion that Dr. Geller
was negligent for failing to follow up on the tests he ordered.
Dr. Geller’s second argument on appeal is that the trial court
improperly denied his post-verdict motion seeking a new trial based on the
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Kelly whether Decedent had any cardiac risk factors. Dr. Kelly responded
that Decedent was a smoker and was hypertensive. At the conclusion of Dr.
Kelly’s testimony, the Estate’s attorney requested a sidebar conference.
Judge Panepinto dismissed the jury and asked Dr. Kelly whether Raynor
made him aware of the order banning all mention of Decedent’s smoking.
Dr. Kelly answered that he did not remember discussing the order with
Raynor.
The next day, the Estate moved for a mistrial. Judge Panepinto denied
the motion but gave a curative instruction to the jury. Several days later,
on June 8, 2012, the jury returned a verdict for the Estate in the amount of
$190,000 against Roxborough Memorial Hospital and Dr. Aguirre, but not
against Raynor’s clients, Dr. Geller and REPA. The Estate filed post-trial
motions requesting a new trial on the ground that the court erroneously
denied its motion for mistrial.
Further sanctions proceedings before Judge Allen. While post-
trial motions were pending before Judge Panepinto, the Estate filed a
supplemental memorandum with Judge Allen in support of its motion for
sanctions against Raynor. The supplemental memorandum contended that
the Estate incurred $45,694.25 in fees due to the hearings and motions
necessitated by Raynor’s letter to HUP. The Estate also claimed in the
supplemental memorandum that Raynor committed misconduct during the
“smoking” incident in the first trial.
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father’s lung cancer. He claimed that this evidence would have
demonstrated that he would not have ignored the test results, because his
own life experience sensitized him to lung cancer. He also claimed that this
evidence was relevant under Pa.R.E. 406 to show his customary and habitual
decisionmaking process in treating patients with Decedent’s symptoms.
The admission or exclusion of evidence is a decision subject to the
discretion of the trial court, whose decision will not be disturbed absent a
clear abuse of that discretion, or an error of law. Dubose v. Quinlan, 125
A.3d 1231, 1242-43 (Pa.Super.2015). The trial court properly excluded the
proposed evidence as irrelevant and prejudicial.
Evidence is relevant if: “(a) it has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Pa.R.E. 401. Dr. Geller’s
interaction with his father did not make any consequential fact more or less
probable. In no way did this evidence demonstrate whether Dr. Geller
actually received Dr. Robins’ reports or explain whether he complied with the
standards of reasonable medical care that he must meet in his professional
capacity.
Dr. Geller contends that the evidence was relevant under Pa.R.E. 406
as evidence of his habits in treating patients with Decedent’s symptoms. We
disagree. Pa.R.E. 406 provides in relevant part: “Evidence of a person’s
habit … may be admitted to prove that on a particular occasion the person …
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acted in accordance with the habit.” Pa.R.E. 406. Habit “connotes one’s
conduct in a precise factual context, and frequently involves mundane
matters (e.g., recording the purpose for checks drawn).” Comment, Pa.R.E.
406. To establish a habit or custom, a party must prove behavior
approaching fixed regularity. See Baldridge v. Matthews, 106 A.2d 809,
811 (Pa.1956) (“whether evidence of such usage or habit is admissible to
show what occurred in a specific instance depends on the invariable
regularity of the usage or habit. To be admissible[,] the usage must have
sufficient regularity to make it probable that it would be carried out in every
instance or in most instances”) (internal quotations omitted).
Pennsylvania jurisprudence includes several interesting examples of
habit or custom evidence. In Baldridge, a hotel clerk testified that it was
the hotel’s uniform practice to require payment in advance if the guests
registered without luggage. The trial court ruled that the testimony was
admissible to demonstrate that the defendant and plaintiff’s wife had
baggage when they registered at the hotel. Our Supreme Court affirmed on
the basis that evidence of uniform practice is admissible without specific
examples as long as the testimony indicates that the practice was performed
with invariable regularity. Id., 106 A.2d at 811. Similarly, in Frey v.
Harley Davidson Motor Co., 734 A.2d 1 (Pa.Super.1999), a representative
of a dealership testified that the dealership had a routine practice of
disconnecting the jumper wires on the motorcycles it sold. We affirmed the
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trial court’s reliance on the witness’s testimony to conclude that the
dealership was responsible for an inoperable jumper wire that had been cut.
Id., 734 A.2d at 10.
In addition, since our Supreme Court modeled Pa.R.E. 406 after F.R.E.
406,4 federal court decisions construing F.R.E. 406 are instructive in
interpreting Pa.R.E. 406.5 We find particularly persuasive the following
analysis of habit evidence by the D.C. Circuit Court of Appeals:
[H]abit refers to the type of nonvolitional activity that occurs
with invariable regularity. It is the nonvolitional character of
habit evidence that makes it probative. See, e.g., Levin v.
United States, 338 F.2d 265, 272 (D.C.Cir.1964) (testimony
concerning religious practices not admissible because ‘the very
volitional basis of the activity raises serious questions as to its
invariable nature, and hence its probative value’) … Thus, habit
is a consistent method or manner of responding to a particular
stimulus. Habits have a reflexive, almost instinctive quality. The
advisory committee notes on Rule 406 illustrate this point:
A habit ... is the person’s regular practice of meeting a
particular kind of situation with a specific type of conduct,
such as the habit of going down a particular stairway two
stairs at a time, or of giving the hand-signal for a left turn,
or of alighting from railway cars while they are moving.
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4
See Comment, Pa.R.E. 406 (“this rule is identical to F.R.E. 406”).
5
See Commonwealth v. Hendricks, 546 A.2d 79, 81 (Pa.Super.1986)
(because Pennsylvania rule of criminal procedure is modeled after federal
rule of criminal procedure, “our interpretation of the Pennsylvania rule is
accordingly guided by reference to federal cases” interpreting federal rule);
Cambanis v. Nationwide Ins. Co., 501 A.2d 635, 637 n. 4
(Pa.Super.1985) (where Pennsylvania rule fashioned upon federal rule,
federal case law is instructive); Michigan Bank v. Steensen, 236 A.2d
565, 566 n. 1 (Pa.Super.1967) (same).
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The doing of the habitual acts may become semi-
automatic.
Weil v. Seltzer, 873 F.2d 1453, 1460 (D.C.Cir. 1989).
Unlike the foregoing examples of habit provided by Pennsylvania and
federal courts, the manner in which Dr. Geller treated patients with
Decedent’s symptoms was not reflexive, instinctive, semi-automatic or
mundane in nature. Medical patients are not manufactured on assembly
lines; they each have unique attributes and idiosyncracies that call for
individualized care. The notion that Dr. Geller treats each patient with
Decedent’s symptoms as reflexively as, for example, the manner in which he
climbs stairs is preposterous. His proposed testimony fell well outside the
boundaries of Pa.R.E. 406.
Even if this proposed testimony was relevant, the trial court properly
excluded it under Pa.R.E. 403. This rule provides that “the court may
exclude relevant evidence if its probative value is outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” In our view, the injection of testimony about Dr.
Geller’s father’s cancer was a transparent ploy to generate sympathy for Dr.
Geller’s personal travails and divert the jury’s attention from the core issue
of whether he met the standard of care in his treatment of Decedent.
In his fourth argument on appeal, Dr. Geller objects to the following
comments by Hospital’s counsel during closing argument:
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Roxborough Memorial Hospital agreed that we stand behind our
doctors. They are our ostensible agents. What that means is if
you find against Dr. Robins, Dr. Geller, or Dr. Aguirre, the judge
later is going to assign responsibility also to Roxborough
Memorial Hospital. So whatever award you would make against
one will also be made against Roxborough Memorial Hospital.
Tr., 11/13/14, at 188-89. According to Dr. Geller, the jury misconstrued
this remark to mean that any award will be paid by Hospital instead of by a
doctor, so the jury did not have to worry that its verdict might cripple Dr.
Geller financially.
Dr. Geller waived this argument due to his failure to object to this
remark during closing argument or afterward. Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal”); Craley v. Jet Equipment & Tools, Inc., 778 A.2d 701, 706-
07 (Pa.Super.1997) (party’s failure to object to opponent’s closing argument
constituted waiver).
Anticipating this waiver obstacle, Dr. Geller claims that he could not
make any objections because the trial court directed counsel to refrain from
objections during closing arguments, and it would have been “meaningless
and futile” to object afterward. Given that the trial court instructed counsel
to remain silent during closing argument, it is understandable that Dr.
Geller’s attorney did not object when Hospital’s attorney made the remark in
question. On the other hand, we are unconvinced by Dr. Geller’s claim that
a post-argument objection at sidebar would have been an exercise in futility.
Had the court sustained a post-argument objection, it could have cured any
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prejudice by instructing the jury not to construe Hospital’s counsel’s remarks
in the manner feared by Dr. Geller, or, if it considered the prejudice
irremediable, it could have declared a mistrial. Because Dr. Geller failed to
make a post-argument objection, he cannot complain about Hospital’s
counsel’s comment now.
Even if Dr. Geller had preserved this issue for appeal, Hospital’s
counsel’s comment was proper. The parties stipulated during trial that Drs.
Geller, Robins and Aguirre were ostensible agents of Hospital, which entitled
Hospital to point out to the jury that any award it entered against these
physicians would be entered against Hospital as well. Moreover, Dr. Geller’s
claim of prejudice rings hollow when we consider that the jury returned a
verdict for Dr. Robins even though Hospital’s counsel made the same
comment about her during closing argument.
In his fifth argument, Dr. Geller complains that he had “very limited”
time to present a key defense witness, his standard of care expert, Dr.
Thomas Rebbecchi, because the trial court permitted Estate’s attorney to use
up most of the allotted time that day with repetitive questioning of two other
witnesses. Dr. Geller waived this argument by failing to make any pertinent
objection on the record. Pa.R.A.P. 302(a). Moreover, Dr. Geller fails to
identify any subjects about which his expert could not testify due to the
alleged time limitation.
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In his sixth argument, Dr. Geller argues that Judge Allen violated his
constitutional rights by disqualifying attorney Raynor from the second trial.
We disagree.
Before addressing the substance of this issue, we dispose of several
waiver questions. The Estate argues that Dr. Geller waived this issue by not
raising it himself until post-trial motions in 2014. The Estate claims that
only Raynor objected to disqualification at the time of the Estate’s
disqualification motion in 2012. Review of the record indicates, however,
that Raynor appeared at the hearing before Judge Allen on April 19, 2012 in
her capacity as counsel for Dr. Geller. Thus, Raynor opposed the Estate’s
motion on Dr. Geller’s behalf, which preserved his right to object to her
disqualification on appeal.
The Estate also argues that Dr. Geller waived this issue by failing to
appeal Raynor’s disqualification before the second trial. An order
disqualifying counsel in a civil case is a non-appealable interlocutory order,
Vaccone v. Syken, 899 A.2d 1103, 1108 (Pa.2006), and is not appealable
under the collateral order doctrine. Id. at 1107-08. Thus, Dr. Geller could
not appeal this issue until after a final order, which did not occur here until
after the second trial.
The Estate also claims that Dr. Geller should have objected to Raynor’s
disqualification during Dr. Geller’s appeal after the first trial from Judge
Panepinto’s order granting a new trial. Again, we disagree. In
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Banohashim v. R.S. Enterprises, LLC, 77 A.3d 14 (Pa.Super.2013), we
held, in an interlocutory appeal from an order awarding a new trial:
[W]e do not have jurisdiction to consider Appellant’s remaining
claims on appeal—wherein Appellant claims that the trial court
erred in denying its request for a compulsory nonsuit and in
denying its motion in limine. Appellant has appealed, as of right,
from the interlocutory order granting Ms. Banohashim’s post-trial
motion for a new trial. Pa.R.A.P. 311(a)(6). While the trial
court’s July 25, 2012 interlocutory order is appealable under
Pennsylvania Rule of Appellate Procedure 311, the order is not
final and, thus, the order does not draw into question the
propriety of [the other] non-final orders in the case … Rather, as
to the remaining issues, the relevant orders must be appealable
in their own right. Yet, as to the remaining issues, the relevant
orders are not appealable as of right (per Pa.R.A.P. 311), are not
appealable by permission (per Pa.R.A.P. 312), and are not
collateral orders (per Pa.R.A.P. 313).
Id. at 27 n. 6. Pursuant to Banohashim, when Judge Panepinto granted a
new trial, the only issue that Dr. Geller could appeal at 3246 EDA 2012 was
whether Judge Panepinto abused his discretion in awarding a new trial. All
other non-final issues, such as Raynor’s disqualification, were not appealable
at 3246 EDA 2012. Id. The first opportunity Dr. Geller had to contest
Raynor’s disqualification was after the second trial via post-trial motions. He
raised this issue in post-trial motions and again in this appeal. There was no
waiver.
Turning to the merits, disqualification of counsel is a serious remedy
that the court should use only when due process so requires. In McCarthy
v. Southeastern Pennsylvania Transportation Authority, 772 A.2d 987(Pa.Super.2001), we elaborated:
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father’s lung cancer. He claimed that this evidence would have
demonstrated that he would not have ignored the test results, because his
own life experience sensitized him to lung cancer. He also claimed that this
evidence was relevant under Pa.R.E. 406 to show his customary and habitual
decisionmaking process in treating patients with Decedent’s symptoms.
The admission or exclusion of evidence is a decision subject to the
discretion of the trial court, whose decision will not be disturbed absent a
clear abuse of that discretion, or an error of law. Dubose v. Quinlan, 125
A.3d 1231, 1242-43 (Pa.Super.2015). The trial court properly excluded the
proposed evidence as irrelevant and prejudicial.
Evidence is relevant if: “(a) it has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Pa.R.E. 401. Dr. Geller’s
interaction with his father did not make any consequential fact more or less
probable. In no way did this evidence demonstrate whether Dr. Geller
actually received Dr. Robins’ reports or explain whether he complied with the
standards of reasonable medical care that he must meet in his professional
capacity.
Dr. Geller contends that the evidence was relevant under Pa.R.E. 406
as evidence of his habits in treating patients with Decedent’s symptoms. We
disagree. Pa.R.E. 406 provides in relevant part: “Evidence of a person’s
habit … may be admitted to prove that on a particular occasion the person …
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acted in accordance with the habit.” Pa.R.E. 406. Habit “connotes one’s
conduct in a precise factual context, and frequently involves mundane
matters (e.g., recording the purpose for checks drawn).” Comment, Pa.R.E.
406. To establish a habit or custom, a party must prove behavior
approaching fixed regularity. See Baldridge v. Matthews, 106 A.2d 809,
811 (Pa.1956) (“whether evidence of such usage or habit is admissible to
show what occurred in a specific instance depends on the invariable
regularity of the usage or habit. To be admissible[,] the usage must have
sufficient regularity to make it probable that it would be carried out in every
instance or in most instances”) (internal quotations omitted).
Pennsylvania jurisprudence includes several interesting examples of
habit or custom evidence. In Baldridge, a hotel clerk testified that it was
the hotel’s uniform practice to require payment in advance if the guests
registered without luggage. The trial court ruled that the testimony was
admissible to demonstrate that the defendant and plaintiff’s wife had
baggage when they registered at the hotel. Our Supreme Court affirmed on
the basis that evidence of uniform practice is admissible without specific
examples as long as the testimony indicates that the practice was performed
with invariable regularity. Id., 106 A.2d at 811. Similarly, in Frey v.
Harley Davidson Motor Co., 734 A.2d 1 (Pa.Super.1999), a representative
of a dealership testified that the dealership had a routine practice of
disconnecting the jumper wires on the motorcycles it sold. We affirmed the
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trial court’s reliance on the witness’s testimony to conclude that the
dealership was responsible for an inoperable jumper wire that had been cut.
Id., 734 A.2d at 10.
In addition, since our Supreme Court modeled Pa.R.E. 406 after F.R.E.
406,4 federal court decisions construing F.R.E. 406 are instructive in
interpreting Pa.R.E. 406.5 We find particularly persuasive the following
analysis of habit evidence by the D.C. Circuit Court of Appeals:
[H]abit refers to the type of nonvolitional activity that occurs
with invariable regularity. It is the nonvolitional character of
habit evidence that makes it probative. See, e.g., Levin v.
United States, 338 F.2d 265, 272 (D.C.Cir.1964) (testimony
concerning religious practices not admissible because ‘the very
volitional basis of the activity raises serious questions as to its
invariable nature, and hence its probative value’) … Thus, habit
is a consistent method or manner of responding to a particular
stimulus. Habits have a reflexive, almost instinctive quality. The
advisory committee notes on Rule 406 illustrate this point:
A habit ... is the person’s regular practice of meeting a
particular kind of situation with a specific type of conduct,
such as the habit of going down a particular stairway two
stairs at a time, or of giving the hand-signal for a left turn,
or of alighting from railway cars while they are moving.
____________________________________________
4
See Comment, Pa.R.E. 406 (“this rule is identical to F.R.E. 406”).
5
See Commonwealth v. Hendricks, 546 A.2d 79, 81 (Pa.Super.1986)
(because Pennsylvania rule of criminal procedure is modeled after federal
rule of criminal procedure, “our interpretation of the Pennsylvania rule is
accordingly guided by reference to federal cases” interpreting federal rule);
Cambanis v. Nationwide Ins. Co., 501 A.2d 635, 637 n. 4
(Pa.Super.1985) (where Pennsylvania rule fashioned upon federal rule,
federal case law is instructive); Michigan Bank v. Steensen, 236 A.2d
565, 566 n. 1 (Pa.Super.1967) (same).
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The doing of the habitual acts may become semi-
automatic.
Weil v. Seltzer, 873 F.2d 1453, 1460 (D.C.Cir. 1989).
Unlike the foregoing examples of habit provided by Pennsylvania and
federal courts, the manner in which Dr. Geller treated patients with
Decedent’s symptoms was not reflexive, instinctive, semi-automatic or
mundane in nature. Medical patients are not manufactured on assembly
lines; they each have unique attributes and idiosyncracies that call for
individualized care. The notion that Dr. Geller treats each patient with
Decedent’s symptoms as reflexively as, for example, the manner in which he
climbs stairs is preposterous. His proposed testimony fell well outside the
boundaries of Pa.R.E. 406.
Even if this proposed testimony was relevant, the trial court properly
excluded it under Pa.R.E. 403. This rule provides that “the court may
exclude relevant evidence if its probative value is outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” In our view, the injection of testimony about Dr.
Geller’s father’s cancer was a transparent ploy to generate sympathy for Dr.
Geller’s personal travails and divert the jury’s attention from the core issue
of whether he met the standard of care in his treatment of Decedent.
In his fourth argument on appeal, Dr. Geller objects to the following
comments by Hospital’s counsel during closing argument:
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Roxborough Memorial Hospital agreed that we stand behind our
doctors. They are our ostensible agents. What that means is if
you find against Dr. Robins, Dr. Geller, or Dr. Aguirre, the judge
later is going to assign responsibility also to Roxborough
Memorial Hospital. So whatever award you would make against
one will also be made against Roxborough Memorial Hospital.
Tr., 11/13/14, at 188-89. According to Dr. Geller, the jury misconstrued
this remark to mean that any award will be paid by Hospital instead of by a
doctor, so the jury did not have to worry that its verdict might cripple Dr.
Geller financially.
Dr. Geller waived this argument due to his failure to object to this
remark during closing argument or afterward. Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal”); Craley v. Jet Equipment & Tools, Inc., 778 A.2d 701, 706-
07 (Pa.Super.1997) (party’s failure to object to opponent’s closing argument
constituted waiver).
Anticipating this waiver obstacle, Dr. Geller claims that he could not
make any objections because the trial court directed counsel to refrain from
objections during closing arguments, and it would have been “meaningless
and futile” to object afterward. Given that the trial court instructed counsel
to remain silent during closing argument, it is understandable that Dr.
Geller’s attorney did not object when Hospital’s attorney made the remark in
question. On the other hand, we are unconvinced by Dr. Geller’s claim that
a post-argument objection at sidebar would have been an exercise in futility.
Had the court sustained a post-argument objection, it could have cured any
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prejudice by instructing the jury not to construe Hospital’s counsel’s remarks
in the manner feared by Dr. Geller, or, if it considered the prejudice
irremediable, it could have declared a mistrial. Because Dr. Geller failed to
make a post-argument objection, he cannot complain about Hospital’s
counsel’s comment now.
Even if Dr. Geller had preserved this issue for appeal, Hospital’s
counsel’s comment was proper. The parties stipulated during trial that Drs.
Geller, Robins and Aguirre were ostensible agents of Hospital, which entitled
Hospital to point out to the jury that any award it entered against these
physicians would be entered against Hospital as well. Moreover, Dr. Geller’s
claim of prejudice rings hollow when we consider that the jury returned a
verdict for Dr. Robins even though Hospital’s counsel made the same
comment about her during closing argument.
In his fifth argument, Dr. Geller complains that he had “very limited”
time to present a key defense witness, his standard of care expert, Dr.
Thomas Rebbecchi, because the trial court permitted Estate’s attorney to use
up most of the allotted time that day with repetitive questioning of two other
witnesses. Dr. Geller waived this argument by failing to make any pertinent
objection on the record. Pa.R.A.P. 302(a). Moreover, Dr. Geller fails to
identify any subjects about which his expert could not testify due to the
alleged time limitation.
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In his sixth argument, Dr. Geller argues that Judge Allen violated his
constitutional rights by disqualifying attorney Raynor from the second trial.
We disagree.
Before addressing the substance of this issue, we dispose of several
waiver questions. The Estate argues that Dr. Geller waived this issue by not
raising it himself until post-trial motions in 2014. The Estate claims that
only Raynor objected to disqualification at the time of the Estate’s
disqualification motion in 2012. Review of the record indicates, however,
that Raynor appeared at the hearing before Judge Allen on April 19, 2012 in
her capacity as counsel for Dr. Geller. Thus, Raynor opposed the Estate’s
motion on Dr. Geller’s behalf, which preserved his right to object to her
disqualification on appeal.
The Estate also argues that Dr. Geller waived this issue by failing to
appeal Raynor’s disqualification before the second trial. An order
disqualifying counsel in a civil case is a non-appealable interlocutory order,
Vaccone v. Syken, 899 A.2d 1103, 1108 (Pa.2006), and is not appealable
under the collateral order doctrine. Id. at 1107-08. Thus, Dr. Geller could
not appeal this issue until after a final order, which did not occur here until
after the second trial.
The Estate also claims that Dr. Geller should have objected to Raynor’s
disqualification during Dr. Geller’s appeal after the first trial from Judge
Panepinto’s order granting a new trial. Again, we disagree. In
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We review rulings under Rule 238 for abuse of discretion. Krebs v. United
Ref. Co., 893 A.2d 776, 794 (Pa.Super.2006). We conclude that none of
Dr. Geller’s delay damage arguments have merit.
Dr. Geller first contends that the trial court abused its discretion by
awarding delay damages to the Estate for the continuance from December
2011 to May 2012 due to the medical emergency of a co-defendant, Dr.
Aguirre. Rule 238(b)(1)(ii), however, does not exclude delay caused by co-
defendants such as Dr. Aguirre. Only when “the plaintiff cause[s] delay of
the trial” is delay excludable. See Schrock v. Albert Einstein Medical
Center, 589 A.2d 1103, 1106-07 (Pa.1991) (delay damages may be
assessed even if defendant is free from fault in delay of trial).
Next, Dr. Geller contends that the trial court abused its discretion by
awarding delay damages for the time period between July 2010 until May
2011. Dr. Geller claims this period is excludable because the Estate did not
produce an expert report until May 2011. The trial court applied Rule 238
correctly. Since the first scheduled date of trial was December 2011,
production of the expert report in May 2011 did not delay trial in any way.
Lastly, Dr. Geller argues that the delay between June 2012 and
November 2013 -- the time period beginning with the verdict in the first trial
and concluding with this Court’s order affirming the award of a new trial – is
excludable. Again, we disagree. Our Supreme Court has held that when the
plaintiff appeals from the first verdict and wins a new trial, delay damages
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accrue from the date of the verdict in the first trial until the date of the
verdict in the second trial. Arthur v. Kuchar, 682 A.2d 1250, 1255-56
(Pa.1996). Because Arthur holds that delay damages are available when
the plaintiff prevails in an appeal seeking a new trial, delay damages must
also be available when, as here, the defendants lose an appeal contesting
the grant of a new trial.
The final argument at 1852 EDA 2015 is by REPA. REPA contends that
since it was not on the verdict slip, the court erred by entering judgment
against REPA. This argument is devoid of merit.
The parties stipulated on the record that Dr. Geller acted as an agent
of REPA. Consequently, REPA was vicariously liable for Dr. Geller’s
negligence. Trial courts have the power to mold a jury’s verdict to conform
to the clear intent of the jury. Mitchell v. Gravely International, Inc.,
698 A.2d 618, 623 (Pa.Super.1997). “Verdicts which are not technically
correct in form but which manifest a clear intent on the part of the jury may
be corrected without resort to further jury deliberations or the grant of a
new trial.” Id. Based on the verdict against Dr. Geller and the stipulation
that he was acting as REPA’s agent, the trial court correctly entered
judgment against REPA to conform to the clear intent of the jury.
Raynor’s appeal
Raynor raises two issues in her appeal:
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replacement as trial is only weeks away.” On April 6, 2016, Packett wrote to
both of the Estate’s attorneys: “In light of the request for expert fees in [the
Estate’s] motion for sanctions, we can only assume that Dr. Porges is being
replaced by a new expert. As trial is mere weeks away, kindly advise as to
the identity of said expert, and provide us with a copy of his/her expert
report, as soon as possible.” These messages clearly assumed that Raynor’s
January 13, 2012 letter forced Dr. Porges to refrain from testifying, thus
requiring the Estate to identify a new expert in Dr. Porges’ place.
During the first hearing before Judge Allen, Raynor argued that her
January 13, 2012 letter was equivalent to a polite “cocktail party
conversation,” i.e., it was simply a good faith effort to place a member of
the medical community on notice of a potential problem. Judge Allen
perceived, and we agree, that Raynor’s letter was a threat made in bad
faith. Had Raynor sent this letter as a Good Samaritan, Raynor would not
have had Packett follow up with four letters to the Estate’s attorneys
demanding that the Estate identify a new expert. Packett’s follow-up letters
demonstrate that the purpose of Raynor’s letter was to force Dr. Porges to
change her testimony or refrain from testifying.
Nor did Packett’s letters serve a valid purpose. Judge Allen observed
during the April 19, 2012 hearing that when a party names a physician as an
expert witness in pretrial documents, it is “common understanding” that the
physician continues to serve as expert witness until the party provides notice
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to the contrary. N.T., 4/19/12, at 36. Thus, there was no legitimate reason
for Raynor to have Packett bombard the Estates’ attorneys with letters
requesting the identity of the Estate’s new expert, for Raynor already knew
that Dr. Porges remained in place as the Estate’s expert witness until the
Estate stated otherwise. The only purpose for Packett’s letters was to
advance Raynor’s goal of forcing Dr. Porges to change her testimony or
refrain from testifying.
By attempting to tamper with Dr. Porges’ testimony, Raynor violated
three Rules of Professional Conduct: (1) Pa.R.P.C. 3.4(a)(1), which prohibits
a lawyer from “unlawfully obstruct[ing] another party’s access to evidence”;
(2) Pa.R.P.C. 4.4(a), which prohibits a lawyer from “us[ing] means” during
her “representat[ion of] a client” that “have no substantial purpose other
than to embarrass, delay or burden a third person”; and (3) Pa.R.P.C.
8.4(a), which provides that “it is professional misconduct for a lawyer to …
violate or attempt to violate the Rules of Professional Conduct, knowingly
assist or induce another to do so,6 or do so through the acts of another.”
Through these transgressions, Raynor attempted to interfere with the
Estate’s due process right to a fair trial and the trial court’s authority to
administer justice. Moreover, Raynor forced the Estate to spend substantial
____________________________________________
6
In this case, Raynor “induce[d] another” to violate the Rules of Professional
Conduct by having her associate, Packett, send communications to counsel
for the Estate demanding to know whether Dr. Porges remained an expert.
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sums to combat this misconduct by litigating its motion for sanctions before
Judge Allen. Simply reporting Raynor to the Disciplinary Board under these
circumstances would not have been a sufficient remedy. A mere request for
a regulatory body to commence an investigation might not have dissuaded
Raynor from continuing these tactics. Indeed, Raynor emphatically argued
that she violated no rules and was entitled to continue her course of
conduct. N.T., 4/19/12, at 25-27, 47. To prevent Raynor from continuing
these egregious tactics in this case, and to assure due process and a fair
trial, it was necessary to disqualify her as counsel.
Dr. Geller strenuously maintains that Judge Allen violated his
constitutional right to counsel by removing Raynor from the case. The right
to counsel is obviously a fundamental right, but it is not absolute. Trial
courts have the authority to remove counsel when his or her conduct
threatens due process. Judge Allen properly exercised that authority by
removing Raynor as counsel. It also deserves mention that Raynor’s
removal caused no prejudice to Dr. Geller. Raynor’s associates, Packett and
Sollecito, had two years after Raynor’s removal to prepare for Dr. Geller’s
second trial. Dr. Geller could easily have obtained new counsel during this
interim but elected not to do so. Nor would it have helped him, because as
the trial judge, Judge Massiah-Jackson, observed: “[T]his trial court
enthusiastically concludes that Dr. Geller’s … counsel [during his second
trial] was well-prepared, competent and articulate, and a zealous and
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effective advocate for her client.” Memorandum In Support Of Orders
Denying All Motions For Post-Trial Relief, at 24.
In his seventh argument, Dr. Geller raises multiple challenges to the
trial court’s calculation of delay damages. To frame these challenges in
proper context, we recite the pertinent provisions of Pennsylvania’s delay
damage rule, Pa.R.Civ.P. 238:
(a)(1) At the request of the plaintiff in a civil action seeking
monetary relief for bodily injury, death or property damage,
damages for delay shall be added to the amount of
compensatory damages awarded against each defendant or
additional defendant found to be liable to the plaintiff in the
verdict of a jury … and shall become part of the verdict, decision
or award.
(2) Damages for delay shall be awarded for the period of time
from a date one year after the date original process was first
served in the action up to the date of the … verdict …
(3) Damages for delay shall be calculated at the rate equal to
the prime rate as listed in the first edition of the Wall Street
Journal published for each calendar year for which the damages
are awarded, plus one percent, not compounded.
(b)(1) The period of time for which damages for delay shall be
calculated under subdivision (a)(2) shall exclude the period of
time, if any,
(i) after the defendant made a written offer which complied with
the requirements of subdivision (b)(2), provided that the plaintiff
obtained a recovery which did not exceed the amount described
in subdivision (b)(3), or
(ii) during which the plaintiff caused delay of the trial.
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2012 and August 9, 2012, it filed multiple memoranda relating to its motion
for sanctions. Based on this record, Judge Allen ordered Raynor to pay
$44,693.25 in attorney fees to the Estate.
In this Court, Raynor argues in boilerplate fashion that Judge Allen
“made no evidentiary findings” and “offered absolutely no other justification
for the $44,693.25 sanction …” Brief For Raynor, at 21. We disagree. The
Estate presented evidence during the sanctions hearing in the form of an
exhibit that itemized its attorney fees. The Estate buttressed this evidence
with memoranda delineating the efforts it had to make in the course of
seeking sanctions. The Estate thus furnished Judge Allen with a sufficient
foundation to impose monetary sanctions under 42 Pa.C.S. § 2503(7).
Furthermore, in her appellate briefing, Raynor fails to challenge any
particular item of attorney fees or expenses sought by the Estate; she
simply asserts that they were excessive in toto. Because Raynor fails to
argue in this Court that any particular item was excessive, we see no reason
to exclude any item from the sanctions award. As a result, the sanctions
award remains fully intact.
For the foregoing reasons, we see no reason to disturb the judgment
entered against Dr. Geller and REPA or the sanctions entered by Judge Allen
against Raynor. The Estate is authorized to file a bill of costs that includes
these sanctions.
Judgment affirmed; order imposing sanctions affirmed.
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1. Whether Raynor’s appeal of the trial court’s interlocutory pre-
trial order was timely because it was filed within 30 days of the
trial court’s final order denying post-trial motions?
2. Whether the trial court erred in imposing $44,693.25 in
sanctions on … Raynor in circumstances where: (i) the trial court
lacked jurisdiction to sanction an attorney for violations of the
Rules of Professional Conduct; (ii) the trial court never found
that Raynor’s conduct actually violated any Rule of Professional
Conduct; (iii) the trial court identified no evidence whatsoever to
establish that Raynor’s conduct affected the outcome of the case
or in any way ‘obstructed’ the proceedings, and; (iv) the trial
court offered no justification for the $44,693.25 sanction award
it rendered?
Brief For Raynor, at 4.
Judge Allen opined that Raynor’s appeal is untimely, because she
should have appealed either (1) when Judge Panepinto granted a new trial,
(2) when this Court affirmed the grant of a new trial, or (3) prior to the
second trial. In response, Raynor contends, in her first argument on appeal,
that her appeal is timely because her right to appeal only ripened after
Judge Massiah-Jackson entered judgment against Dr. Geller and REPA.
We agree with Raynor that her appeal is timely. The sanctions order
against Raynor did not fall within any category of interlocutory orders that
are appealable as of right under Pa.R.A.P. 311. Although Judge Panepinto’s
order granting a new trial was appealable as of right under Pa.R.A.P.
311(a)(6), an interlocutory appeal from an order granting a new trial is not a
vehicle for appealing other non-final orders such as the sanctions order
against Raynor. Banohashim, 77 A.3d at 27 n. 6. Nor is there any
authority for the propositions that this Court’s affirmance of an order
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