Steward, S. v. Lennox, N. ( 2021 )

J-S09003-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHAMAR STEWARD AND MARIA : IN THE SUPERIOR COURT OF
COLON : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 2036 EDA 2020
NANCY LENNOX :
Appeal from the Judgment Entered October 1, 2020
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2019-22299
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 24, 2021
Appellants, Shamar Steward (Steward) and Maria Colon (Colon), appeal
from an order entered on October 1, 2020 directing the entry of summary
judgment in favor of Nancy Lennox (Lennox). We affirm.
Upon review of the certified record, we briefly summarize the facts and
procedural history of this case as follows. On September 12, 2019, Appellants
filed a civil complaint alleging that, on September 15, 2017, Lennox struck a
motor vehicle operated by Colon, wherein Steward was a passenger. After
discovery commenced, Lennox served Appellants with interrogatories,
requests for the production of documents, and requests for admissions on
November 16, 2019. See Appellants’ Brief at 7; see also Lennox’s Motion to
Compel, 1/20/2020, at ¶ 1 and Exhibit A. On January 29, 2020, Lennox filed
J-S09003-21
a motion to have her requests for admissions deemed admitted due to
Appellants’ failure to respond.1
Thereafter, on August 4, 2020, the trial court entered an order directing
that Lennox’s request for admissions be deemed admitted. The trial court
noted “that [Appellants] had over six months and countless opportunities to
cure their failure to answer between the date of [Lennox’s] filing the motion
to have requests for admission deemed admitted on January 29, 2020 and the
issuance of the [] order dated August 4, 2020 [granting Lennox’s request].”
Trial Court Opinion, 12/8/2020, at 6. On August 18, 2020, Appellants filed a
motion to reconsider requesting the withdrawal of the August 4, 2020 order
which deemed Appellants’ admissions admitted. In their motion, Appellants
argued they responded to Lennox’s requests for admissions on August 17,
2020, 13 days after entry of the August 4, 2020 order, as evidenced by an
e-mail and an attachment sent from Appellants’ counsel to Lennox. See
Motion for Reconsideration Requesting Withdrawal of Deemed Admissions,
8/18/2020, at ¶ 3(a). Appellants also alleged in their motion they produced
a document to Lennox during discovery showing that Steward was not bound
by a limited tort option. Id. at ¶ 3(b); see also Appellants’ Memorandum in
Support of Motion for Reconsideration Requesting Withdrawal of Deemed
Admissions, 8/18/2020, at *2 (unpaginated) (“It is clear from the record,
plaintiff Shamur Steward is full tort.”). Appellants, however, did not support
____________________________________________
1Appellants concede they “did not timely respond to Lennox’s requests for
admissions.” Appellants’ Brief at 7 (unnecessary capitalization omitted).
-2-
J-S09003-21
their motion by attaching a copy of the alleged document showing Steward’s
tort status.2 Without supporting documentation, Appellants also alleged that
Colon “was out of work for approximately one year and continues to have
ongoing pain[] in her back and neck.” Appellants’ Memorandum in Support
of Motion for Reconsideration Requesting Withdrawal of Deemed Admissions,
8/18/2020, at *7 (unpaginated). Appellants ultimately “request[ed] a
withdrawal of the admissions as ‘upholding the admissions would practically
eliminate any presentation of the merits of the case’ and create a manifest
injustice.” See Motion for Reconsideration Requesting Withdrawal of Deemed
Admissions, 8/18/2020, at ¶ 4, citing Stimmler v. Chestnut Hill Hospital,
981 A.2d 145, 160 (Pa. 2009). The trial court did not rule on Appellants’
____________________________________________
2 Appellants failed to identify the “document” purportedly turned over during
discovery. We remind Appellants:
[I]t is the appellant's obligation to demonstrate which appellate
issues were preserved for review. Pa.R.A.P. 2117(c), 2119(e).
* * *
Thus, because our review necessitates a determination of whether
issues were preserved, the appellant has the burden to
demonstrate which part of the certified record reveals the
preservation of the appellate issues.
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (case citation
omitted).
-3-
J-S09003-21
motion for reconsideration requesting withdrawal of their deemed
admissions.3
____________________________________________
3 The trial court initially found that Appellants’ August 18, 2020 motion to
withdraw admissions did not request reconsideration, but later determined
that the motion did ask the trial court to reconsider its prior August 4, 2020
order:
[In a footnote to] an order dated September 30, 2020, [the trial
court opined that] “[Appellants] failed to file a motion for
reconsideration of the court’s order of August 4, 2020 within thirty
days. In the same footnote, the court noted that “[p]ursuant to
Pa.C.S.A. § 5505, [the trial] court was without authority to modify
or vacate its order of August 4, 2020, thus [the trial] court [could]
not properly consider [Appellants’] motion to withdraw
admissions.” The [trial] court amended its order of September
30, 2020 in an order dated October 1, 2020, noting that
“[Appellants’] motion to withdraw admissions filed on August 18,
2020 was substantially in the form of a motion for reconsideration
of the court’s order of August 4, 2020,” but again point[ed] out
that the court no longer had jurisdiction to vacate the order of
August 4, 2020 given that more than thirty (30) days had passed
from its entry.
Trial Court Opinion, 12/8/2020, at 3 (record citations and superfluous
capitalization omitted). Thereafter, in its subsequent opinion, the trial court
determined that Appellants failed to appeal the August 4, 2020 order, which
it considered a final order, within 30 days of its issuance. Id. at 6-8. More
specifically, the trial court determined that the “order dated August 4, 2020
became final [after] thirty (30) days passed without a motion for
reconsideration having been expressly granted and without [Appellants]
appealing said order. Pursuant to 42 Pa.C.S.A. § 5505, the [trial] court was
without authority to modify or vacate the order of August 4, 2020[,] as
[Appellants] request[ed], absent one of the few exceptions to modifying a final
order outside of the thirty[-]day period.” Id. at 8, citing 42 Pa.C.S.A. § 5505
(“Except as otherwise provided or prescribed by law, a court upon notice to
the parties may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from
such order has been taken or allowed.”).
(Footnote Continued Next Page)
-4-
J-S09003-21
On August 11, 2020, Lennox filed a motion for summary judgment
alleging that Appellants’ deemed admissions were conclusively binding and,
therefore, there were no genuine issues of material fact to decide at trial. See
Motion for Summary Judgment, 8/11/2020, at ¶ 26 (“As [Appellants] have
admitted to being bound by the limited tort option, to being unable to prove
the serious injury required to collect non-economic damages, and have
admitted that there are no economic damages applicable to the instant case,
____________________________________________
We find the trial court’s analysis to be erroneous to the extent it considered
the August 4, 2020 order to be final and subject to appeal. “Under
Pennsylvania law, an appeal may only be taken from an interlocutory order as
of right (Pa.R.A.P. 311), from a final order (Pa.R.A.P. 341), from a collateral
order (Pa.R.A.P. 313), or from an interlocutory order by permission (Pa.R.A.P.
313, 1311, 42 Pa.C.S.A. § 702(b)).” Smitley v. Holiday Rambler Corp.,
707 A.2d 520, 524 (Pa. Super. 1998) (citation omitted). The August 4, 2020
order was interlocutory because it did not “dispose[] of all claims and of all
parties.” Pa.R.A.P. 341(b)(1). As a discovery order, the order was not an
interlocutory order appealable as of right and Appellants did not request
permission to appeal it. See Pa.R.A.P. 311; Pa.R.A.P. 312. It was not a
collateral order since the issue involved claims central to this case. See
Pa.R.A.P. 313. As such, the trial court erred by concluding that the August 4,
2020 order was final and subject to appeal. However, the August 4, 2020
interlocutory order, subsequently became final once the trial court granted
Lennox’s motion for summary judgment on October 1, 2020, as all claims
against all the parties were finally decided. See Smitley, 707 A.2d at 524.
Thus, Appellants’ appeal from the grant of Lennox’s motion for summary
judgment would have drawn up any additional challenge to the August 4, 2020
interlocutory order. Appellants could have challenged the initial interlocutory
ruling once Lennox’s motion for summary judgment was entered. However,
“[w]e are [also] cognizant that an appeal does not lie from the denial of a
motion for reconsideration.” Century Sur. Co. v. Essington Auto Ctr., LLC,
140 A.3d 46, 48 n.1 (Pa. Super. 2016) (citation omitted). Regardless,
Appellants do not claim the trial court erred by failing to rule on
reconsideration or deeming their admissions admitted. Instead, as set forth
in greater detail below, Appellants claim that even with the deemed
admissions there were still material issues of fact for the trial court to have
considered.
-5-
J-S09003-21
there is no genuine issue of material fact with respect to [Appellants’] inability
to recover as a matter of law as to their claims against [Lennox].”). On August
21, 2020, Appellants filed a response to Lennox’s motion for summary
judgment. In support, Appellants attached the August 17, 2020 e-mail from
their counsel, their untimely responses to Lennox’s request for admission, and
their previously filed motion for reconsideration requesting withdrawal of
deemed admissions filed on August 18, 2020.
On September 30, 2020, the trial court entered an order granting
Lennox’s motion for summary judgment, which it subsequently amended by
order entered on October 1, 2020.4 Ultimately, the trial court determined:
[T]he record [] establishe[d] that [Appellants] were served [with
Lennox’s] requests for admissions and failed to timely respond
within thirty (30) days under Pa.R.A.P. 4014.[5] Not only did
____________________________________________
4 The trial court stated that it no longer had jurisdiction or the authority to
vacate the August 4, 2020 order by the time Lennox filed her motion for
summary judgment on August 11, 2020. As discussed, however, Appellants
filed a timely motion for reconsideration on August 18, 2020, which remained
pending and unresolved at the time the trial court granted Lennox’s motion
for summary judgment on September 30, 2020. As examined in greater detail
below, Appellants have not challenged the denial of their August 18, 2020
motion for reconsideration requesting withdrawal of deemed admissions.
5 “A party may serve upon any other party a written request for []
admission[s.]” Pa.R.C.P. 4014(a). “The matter is admitted unless, within
thirty days after service of the request[] the party to whom the request is
directed serves upon the party requesting the admission an answer verified
by the party or an objection, signed by the party or by the party's attorney[.]”
Pa.R.C.P. 4014(b). “If the court determines that an answer does not comply
with the requirements of this rule, it may order [] the matter is admitted[.]”
Pa.R.C.P. 4014(c). “Any matter admitted under this rule is conclusively
established unless the court on motion permits withdrawal or amendment of
(Footnote Continued Next Page)
-6-
J-S09003-21
[Appellants] fail to respond within the time limit prescribed by
Pa.R.A.P. 4014, but they also neglected to move to cure their
failure to answer even upon [receiving] notice[] of the risk of
admission upon continued failure to cure. [The trial court] note[d]
that [Appellants] had over six months and countless opportunities
to cure their failure to answer between the date of [Lennox’s] filing
the motion to have requests for admission deemed admitted on
January 29, 2020 and the issuance of the [] order dated August
4, 2020 [granting Lennox’s request]. [… Appellants] [did not]
advance a reasonable explanation for [rejecting the deemed
admissions despite their untimely answers to the underlying
discovery requests]. [… Appellants’] dilatory conduct [should not]
have been rewarded [or Lennox] unduly prejudiced by the
extreme delay.
Trial Court Opinion, 12/8/2020, at 6-7.
Furthermore, the trial court opined:
[The] August 4, 2020, order caus[ed Appellants] to be
conclusively bound to the admissions they permitted to be
admitted through persistently dilatory conduct. Specifically,
[Appellants’] admission to requests for admissions number[ed] 1-
5 established that they were bound by the limited tort option.
Admissions to requests [numbered] 6-7 established that they did
not suffer serious injury so as to breach the limited tort threshold.
These admissions together preclude [Appellants] from recovering
damages for pain and suffering. As to whether [Appellants] could
prove economic damages at trial, [Appellants’] admissions to
request [number] 8 established that their first-party medical
coverage was not exhausted, while admissions to request[s]
[numbered] 9-12 established that they do not have unpaid
medical bills, out-of-pocket expenses, or lost wages. Together,
these admissions preclude [Appellants] from collecting economic
____________________________________________
the admission. [T]he court may permit withdrawal or amendment when the
presentation of the merits of the action will be subserved thereby and the
party who obtained the admission fails to satisfy the court that withdrawal or
amendment will prejudice him or her in maintaining the action or defense on
the merits.” Pa.R.C.P. 4014(d). Again, as discussed below, Appellants do not
challenge the trial court’s determination that the deemed admissions were
conclusively binding upon them or any other ruling relating to the court’s
determination.
-7-
J-S09003-21
damages. Thus, the [trial] court [] grant[ed] [Lennox’s] motion
for summary judgment [because Appellants] allowed their
admissions to be deemed admitted, [the trial] court no longer
ha[d] authority to vacate the order deeming said admissions
admitted, and [] said admissions conclusively eliminate[d] any
genuine issues of material fact.
Trial Court Opinion, 12/8/2020, at 6-10 (superfluous capitalization, record
citations, and internal quotations omitted). This timely appeal followed.6
On appeal, Appellants present the following issues for our review:
I. Whether or not the trial court erred in granting [] Lennox’s
[m]otion for [s]ummary [j]udgment when the issue of whether
Appellants sustained serious injury is a question of fact for trial?
II. Whether or not the trial court erred in granting [Lennox’s]
[m]otion for [s]ummary [j]udgment when the record before it
established genuine issues of material fact?
III. Whether or not the trial court erred in [failing to review] the record
in the light most favorable to Appellants as the non-moving party,
and failing to resolve all doubts as to the existence of genuine
issues of material fact?
IV. Whether the trial court erred when it improperly granted
[Lennox’s] [m]otion for [s]ummary [j]udgment when a genuine
issue of material fact exists as to Appellants’ injuries and extent
of injuries?
____________________________________________
6 On October 13, 2020, Appellants filed a motion for reconsideration of the
order granting summary judgment. The trial court denied relief by order
entered on October 14, 2020. Appellants filed a notice of appeal on October
14, 2020. On October 19, 2020, the trial court ordered Appellants to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellants complied timely on October 26, 2020. On December 8,
2020, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).
-8-
J-S09003-21
Appellants’ Brief at 5.7
Appellants claim that the trial court erred by granting Lennox’s motion
for summary judgment. Initially, we note that, as detailed above, Lennox’s
request for admissions were deemed admitted by order entered on August 4,
2020. The trial court opined that the deemed admissions were conclusively
binding upon Appellants because they failed to respond, reconsideration was
not granted, Appellants did not perfect an appeal of the August 4, 2020 order
within 30 days, and Appellants failed to demonstrate extraordinary cause to
vacate or modify the August 4, 2020 order after it became final. See Trial
Court Opinion, 12/8/2020, at 6-8, citing Pa.R.C.P. 4014 and 42 Pa.C.S.A.
§ 5505. On appeal, Appellants do not challenge these determinations by the
trial court. See Appellants’ Brief at 17 (“Admittedly, Colon and Steward did
not serve timely responses to Lennox’s [r]equests for [a]dmissions. Pursuant
to 4014(b), Appellants[’] admissions to the above-mentioned requests were
deemed admitted on December 27, 2019.”). Instead, Appellants claim that
despite the deemed admissions, there were still issues of material fact
precluding summary judgment. See Appellants’ Brief at 22 (“The evidence in
this case, when viewed in the light most favorable to Appellants,
demonstrate[s] genuine issues of material fact even with the requests for
admissions deemed admitted.”).
____________________________________________
7 We note that Appellants raised a single issue in their Rule 1925(b) statement.
Despite presenting four issues on appeal, these four claims merely encompass
the one general issue raised in the Rule 1925(b) statement, namely whether
the trial court erred in granting Lennox’s motion for summary judgment.
-9-
J-S09003-21
In support of their argument that genuine issues of material fact remain
ripe for resolution at trial, Appellants rely upon their complaint and their
untimely responses to Lennox’s request for admissions dated August 17,
2020. Id. at 6-9. Furthermore, Appellants rely upon their answers to
interrogatories and production of documents, an affidavit of no insurance
coverage from Steward, and Appellants’ medical records. Id. at 18-20.
However, upon review of the certified record, these additional documents were
presented to the trial court for the first time on October 13, 2020, as exhibits
to Appellants’ motion to reconsider the September 30, 2020 order granting
Lennox’s motion for summary judgment. They were not contained in the
certified record at the time the trial court ruled on Lennox’s motion for
summary judgment. Moreover, for the first time on appeal, Appellants claim
Colon’s and Steward’s deposition testimony, taken on June 24, 2020, created
issues of material fact. Id. at 8 and 18; see also Reproduced Record at
193(a)-235(a). Appellants also claim, for the first time on appeal, that a
defense expert review conducted by Dr. Lucas Zahir Margolies on August 22,
2020 also precluded the entry of summary judgment. Appellants’ Brief at 20;
see also Reproduced Record at 351(a)-353(a). Appellants principally cite our
Supreme Court’s decision in Stimmler v. Chestnut Hill Hosp., 981 A.2d 145(Pa. 2009) and this Court’s decision Krepps v. Snyder, 112 A.3d 1246 (Pa.
Super. 2015) to support their contentions. Appellants’ Brief at 14-15; 19-21.
Our standard of review regarding an order granting a motion for
summary judgment is well settled:
- 10 -
J-S09003-21
An appellate court may reverse a grant of summary judgment if
there has been an error of law or an abuse of discretion. But the
issue as to whether there are no genuine issues as to any material
fact presents a question of law, and therefore, on that question
our standard of review is de novo. This means we need not defer
to the determinations made by the trial court.
To the extent that an appellate court must resolve a question of
law, we shall review the grant of summary judgment in the
context of the entire record.
Additionally,
in evaluating the trial court's decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states
that where there is no genuine issue of material fact and the
moving party is entitled to relief as a matter of law,
summary judgment may be entered. ... Lastly, we will view
the record in the light most favorable to the non-moving
party, and all doubts as to the existence of a genuine issue
of material fact must be resolved against the moving party.
Albert v. Sheeley's Drug Store, Inc., 234 A.3d 820, 822 (Pa. Super. 2020)
(internal citations, quotations, and brackets omitted).
Pennsylvania Rule of Civil Procedure 1035.3 governs a response to a
motion for summary judgment and provides, in pertinent part:
(a) Except as provided in subdivision (e), the adverse party may
not rest upon the mere allegations or denials of the
pleadings but must file a response within thirty days after service
of the motion identifying
(1) one or more issues of fact arising from evidence in the
record controverting the evidence cited in support of the
motion or from a challenge to the credibility of one or more
witnesses testifying in support of the motion, or
(2) evidence in the record establishing the facts essential
to the cause of action or defense which the motion cites as
not having been produced.
- 11 -
J-S09003-21
(b) An adverse party may supplement the record or set forth
the reasons why the party cannot present evidence essential to
justify opposition to the motion and any action proposed to be
taken by the party to present such evidence.
(c) The court may rule upon the motion for judgment or permit
affidavits to be obtained, depositions to be taken or other
discovery to be had or make such other order as is just.
(d) Summary judgment may be entered against a party who does
not respond.
(e)(1) Nothing in this rule is intended to prohibit a court, at any
time prior to trial, from ruling upon a motion for summary
judgment without written responses or briefs if no party is
prejudiced. A party is prejudiced if he or she is not given a full
and fair opportunity to supplement the record and to oppose the
motion.
(2) A court granting a motion under subdivision (e)(1) shall state
the reasons for its decision in a written opinion or on the record.
Pa.R.C.P. No. 1035.3 (internal notes omitted; emphasis added).
If a party opposing a motion for summary judgment “need[s] the trial
court to consider [] facts, the response to the motion for summary judgment
need[s] to place those facts properly before the trial court by specifically
answering the averments of that motion.” Welsh v. Nat'l R.R. Passenger
Corp., 154 A.3d 386, 395 (Pa. Super. 2017). “The rules of civil procedure
require both movant and respondent to supply specific citation to the record
to support averments.” Id. at 393. “The trial court must examine the entire
record, including the pleadings, depositions, answers to interrogatories, any
admissions to the record, and affidavits that were filed by the parties
before ruling on a summary judgment motion.” White v.
Owens-Corning Fiberglas, Corp., 668 A.2d 136, 142 (Pa. Super. 1995)
- 12 -
J-S09003-21
(citation omitted; emphasis added); see also Fletcher v. Pennsylvania
Prop. & Cas. Ins. Guar. Ass'n, 27 A.3d 299, 305 (Pa. Cmwlth. 2011), citing
Pa.R.C.P. 1035.3(b) (“Summary judgment will be based on the record at the
time the motion is filed or made part of the record concurrent with the filing
of the motion. However, in response to the motion the adverse party may
supplement the record.”).
Moreover,
[i]t is black letter law in this jurisdiction that an appellate court
cannot consider anything which is not part of the record in [the]
case.
It is the obligation of the appellant to make sure that the record
forwarded to an appellate court contains those documents
necessary to allow a complete and judicious assessment of the
issues raised on appeal. Under our Rules of Appellate Procedure,
those documents which are not part of the official record
forwarded to this Court are considered to be non-existent. And,
these deficiencies may not be remedied by inclusion in a brief [or]
in the form of a reproduced record.
It is well settled that an appellate court may consider only those
facts which have been duly certified in the record on appeal.
Bennyhoff v. Pappert, 790 A.2d 313, 318 (Pa. Super. 2001) (internal
citations, quotations, and ellipsis omitted).
In this case, we note that Appellants’ untimely responses to Lennox’s
request for admissions were wholly irrelevant to Lennox’s motion for summary
judgment, given that Appellants were deemed to have conclusively admitted
the relevant subject matter. By operation of the trial court’s August 4, 2020
order, Appellants were deemed to have admitted: 1) they were bound by the
- 13 -
J-S09003-21
limited tort option; 2) they did not suffer serious injury; 3) first party coverage
was not exhausted; and, 4) there were no unpaid bills. As a result, Appellants
could not claim pain and suffering or economic damages. See Varner–Mort
v. Kapfhammer, 109 A.3d 244, 248 (Pa. Super. 2015), citing 75 Pa.C.S.A.
§ 1705(a)(1)(B) (A limited-tort plaintiff cannot recover for pain and suffering
or other non-economic damages unless the plaintiff's injuries fall within the
definition of serious injury). Thus, the trial court did not err by refusing to
consider Appellants’ untimely responses to Lennox’s request for admissions in
ruling on Lennox’s motion for summary judgment. Furthermore, upon review
of the certified record, Appellants did not file the documents upon which they
now rely (i.e., their answers to interrogatories and production of documents,
the affidavit of no insurance coverage from Steward, and/or Appellants’
medical records) with either their motion for reconsideration requesting
withdrawal of deemed admissions or their response to the motion for summary
judgment. Before the trial court, Appellants presented those documents for
the first time as attachments to their motion to reconsider the order granting
summary judgment. The trial court, however, could only rely upon documents
contained in the certified record as developed by the parties before it ruled
on the motion summary judgment motion. The record makes clear that,
contrary to a litigant’s obligations established by well-settled Pennsylvania
case law, Appellants did not place the facts they needed to withstand summary
judgment into the record. Although Appellants alleged there were issues of
material fact, Appellants failed to properly supplement or preserve the record.
- 14 -
J-S09003-21
Finally, this Court cannot consider the proffered deposition testimony or
defense expert report. Those documents were never before the trial court
and are not contained in the certified record filed with this Court. Appellants
cannot rely upon them for the first time on appeal merely by incorporating the
documents into the reproduced record or citing them in their appellate brief.
Thus, taken altogether, Appellants’ deemed admissions framed the dispositive
facts on all material issues to be aired at trial. Appellants failed to supplement
the certified record with any additional documentation to show genuine issues
of material fact.
Accordingly, we reject Appellants’ reliance on our Supreme Court’s
decision in Stimmler v. Chestnut Hill Hosp., 981 A.2d 145 (Pa. 2009) and
this Court’s decision Krepps v. Snyder, 112 A.3d 1246 (Pa. Super. 2015).
While those cases dealt with deemed admissions, there were additional facts
of record in both cases for the respective trial courts to consider. See
Stimmler, 981 A.2d at 159 (“Thus, [Stimmler’s] “deemed admissions” to the
[] IV catheterizations, which presumably merely confirms what is apparent in
[Stimmler’s] medical records, do not render the opinions of Drs. Reiffel and
DePace speculative concerning the origin of the twelve- to eighteen-inch
catheter fragment found in [Stimmler’s] heart. Stated another, more
metaphorical way, the lower courts erred by using the oranges of the “deemed
admissions” to render null the apples of [Stimmler’s] expert witness reports
on the issue of the identity of the catheter found in [Stimmler’s] body.”); see
also Krepps, 112 A.3d at 1250 (“The trial court agreed in principle that the
- 15 -
J-S09003-21
statements should be deemed admitted because of [Snyder’s] failure to timely
respond to [Krepps’] discovery request, but ruled against admissibility,
questioning both the timing of the proffer and its evidentiary value in light of
the testimony offered at trial.”). As described at length above that is not the
case instantly. Based upon all of the foregoing, the trial court properly granted
summary judgment because there were no issues of material fact to consider
at trial. Hence, Appellants’ appellate issues lack merit.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2021
- 16 -