Valincius, D. v. Weiner, B.

J-A02008-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DORIS VALINCIUS AND IN THE SUPERIOR COURT OF
JOHN VALINCIUS PENNSYLVANIA
Appellants
v.
BRUCE WEINER, M.D., ASSOCIATED
SURGEONS, P.C., MONTGOMERY
HOSPITAL AND MEDICAL CENTER, LINDA
L. KURTZ, D.O., AND JOHN E. DEVENNY,
M.D.
Appellees No. 3539 EDA 2013
Appeal from the Judgment Entered November 13, 2013
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2011-15685
BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.
MEMORANDUM BY LAZARUS, J.: FILED JULY 23, 2015
Doris Valincius and John Valincius appeal from the order granting
summary judgment in favor of Appellees entered in the Court of Common
Pleas of Montgomery County. After careful review, we affirm.
The trial court set forth the facts of this case as follows:
Several years before filing the [p]resent [a]ction, [the
Valinciuses] participated in a mass tort litigation in Philadelphia
regarding certain hormone replacement therapy drugs taken by
Doris Valincius (generally, “the HRT Litigation”). The HRT
Litigation was filed in 2004 and included a complaint[,] a long
[f]orm [c]omplaint signed by both [of the Valinciuses], and a
fact sheet, which was signed by . . . Doris Valincius[.] According
to the HRT [c]omplaint, Doris Valincius was prescribed various
HRT drugs from 1990 to 1998. Subsequently, she was
diagnosed by Dr. Weiner with breast cancer in June, 2002.
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...
[The Valinciuses] filed this medical negligence action in June,
2011 (“the Present Action”). Subsequently, [the Valinciuses]
filed an amended complaint[.] According to the [a]mended
[c]omplaint, in 2002, after a diagnosis of possible breast cancer,
. . . Doris Valincius treated with Defendant Bruce Weiner, M.D.
and Associated Surgeons, P.C. . . . That same year, she was
admitted to Defendant Montgomery Hospital for surgery[.] Upon
admission, [Dr.] Weiner performed a procedure “generally
described as a partial mastectomy with axillary dissection and
sentinel node identification.”
For the next eight years, [Mrs. Valincius] continued under the
care of Dr. Weiner, Montgomery Hospital, Defendant Linda L.
Kurtz . . ., and Defendant [Dr.] John E. Devenney[.] In the
[a]mended [c]omplaint, [Mrs.] Valincius complained about pain
and discomfort in the area of the surgery and underwent many
investigative procedures during that eight year period. In 2010,
. . . Dr. Weiner located and removed a retained surgical sponge
that was left behind during the 2002 surgery. [The Valinciuses]
commenced the Present Action in June, 2011.
Trial Court Opinion, 3/7/14, at 7, 1-2.
In 2013, the defendants each filed for summary judgment. By order
entered on November 14, 2013, the trial court granted summary judgment
in favor of all defendants and dismissed the Valinciuses’ action. The court
found that the Valinciuses’ claims were barred by the terms of a release they
executed in settlement of the HRT mass tort claim. The Valinciuses filed a
timely notice of appeal followed by a court-ordered statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed
its Rule 1925(a) opinion on March 7, 2014.
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The Valinciuses raise the following issues for our review:1
1. Whether the Superior Court should distinguish this case from
Buttermore [v. Aliquippa Hospital, 561 A.2d 733 (Pa.
1989,] and its progeny because there is no causal connection
between the injury and the subsequent malpractice claim and
no specific event to release.
2. Whether the trial court erroneously concluded there is a
causal connection between the HRT drugs and [Mrs.
Valincius’] breast cancer.
3. Whether the trial court erred when it considered the Fact
Sheet from the Hormone Replacement Therapy lawsuit.
4. Whether New York [law] applies to this case and thereby
requires consideration of the purpose and intent of the HRT
release.
Brief of Appellant, at 1.
We begin by noting our standard and scope of review of an order
granting summary judgment:
Our scope of review is plenary, and our standard of review is the
same as that applied by the trial court. Our Supreme Court has
stated the applicable standard of review as follows: An appellate
court may reverse the entry of a summary judgment only where
it finds that the lower court erred in concluding that the matter
presented no genuine issue as to any material fact and that it is
clear that the moving party was entitled to a judgment as a
matter of law. In making this assessment, we 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. As our inquiry involves
solely questions of law, our review is de novo.
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1
We have renumbered the Valinciuses’ issues for ease of disposition.
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Thus, our responsibility as an appellate court is to determine
whether the record either establishes that the material facts are
undisputed or contains insufficient evidence of facts to make out
a prima facie cause of action, such that there is no issue to be
decided by the fact-finder. If there is evidence that would allow
a fact-finder to render a verdict in favor of the non-moving
party, then summary judgment should be denied.
Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa. Super.
2015) (brackets omitted).
The Valinciuses’ first two issues are interrelated and, as such, will be
addressed together. The Valinciuses argue that the trial court
inappropriately relied on Buttermore to enforce the release against them
because: (1) there was no causal connection between the HRT medication
ingested by Mrs. Valincius and the breast cancer which led to the alleged
malpractice at issue here; (2) there was no specific “event” to release; and
(3) they did not intend to release the Appellees when they executed the HRT
release. These claims are meritless.
We begin by noting that “the effect of a release must be determined
from the ordinary meaning of its language.” Buttermore, 561 A.2d at 735.
“[A] release given to a particular individual and ‘any and all other persons . .
. whether herein named or not’ [is] applicable to all tort-feasors despite the
fact they were not specifically named.” Id.
Here, the trial court relied on Buttermore to enforce the HRT release
against the Valinciuses in the instant suit against the Appellees. In
Buttermore, the plaintiff suffered injuries in an automobile accident with
Frances Moser. Buttermore sought treatment for those injuries at Aliquippa
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Hospital. Buttermore subsequently executed a release in settlement of his
claim against Moser, which release provided, in relevant part, as follows:
I/We . . . hereby remise, release, acquit and forever discharge
Frances Moser, et al. . . . and all other persons, associations
and/or corporations, whether known or unknown, suspected or
unsuspected, past, present and future claims, demands,
damages, actions, third party actions, causes of action, or suits
at law or in equity, indemnity of whatever nature, for or because
of any matter or thing done, omitted or suffered to be done, on
account of or arising from damage to property, bodily injury or
death resulting or to result from an accident which occurred on
or about the 3rd day of December, 1981 at or near Aliquippa,
Pennsylvania for which I/We have claimed the said Frances
Moser, et al. to be legally liable[.]
Id. at 734. Thereafter, Buttermore sued Aliquippa Hospital, alleging that
the treatment he received at the facility aggravated the injuries he had
sustained in the accident with Moser. In new matter, Aliquippa Hospital
raised the Moser release as a defense and, ultimately, was granted summary
judgment. This Court reversed, and the Supreme Court granted allowance
of appeal.
On allowance of appeal, Buttermore argued that he did not intend to
release the hospital from liability when he signed the Moser release. The
Supreme Court held that, where there is no allegation of fraud, accident or
mutual mistake, the plain language of the release must be given its full
effect. The Court quoted its earlier decision in Emery v. Mackiewicz, 240
A.2d 68 (Pa. 1968), noting:
If such a release can be nullified or circumvented, then every
written release and every written contract or agreement of any
kind no matter how clear and pertinent and all-inclusive, can be
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set aside whenever one of the parties has a change of mind or
whenever there subsequently occurs a change of circumstances
which were unforeseen, or there were after-discovered injuries,
or the magnitude of a releasor’s injuries was unexpectedly
increased, or plaintiff made an inadequate settlement. It would
make a mockery of the English language and of the law to
permit this release to be circumvented or held to be nugatory.
Buttermore, 561 A.2d at 735, quoting Emery, 240 A.2d at 70. The Court
went on to state:
Parties with possible claims may settle their differences upon
such terms as are suitable to them. They may include or
exclude terms, conditions and parties as they can agree. In
doing so, they may yield, insist or reserve such right as they
choose. If one insists that to settle, the matter must end then
and forever, as between them, they are at liberty to do so. They
may agree for reasons of their own that they will not sue each
other or any one for the event in question. However
improvident their agreement may be or subsequently
prove for either party, their agreement, absent fraud,
accident or mutual mistake, is the law of their case.
Id. (emphasis added).
The Valinciuses claim that the trial court misapplied Buttermore for
several reasons. First, they argue that Buttermore requires the existence
of a causal connection between Mrs. Valincius’ breast cancer and the HRT
claim. The Valinciuses assert that such a causal connection existed in
Buttermore and its progeny, including Dublin v. Shuster, 598 A.2d 1296
(Pa. Super. 1991) (auto accident and subsequent malpractice), Smith v.
Thomas Jefferson Univ. Hosp., 621 A.2d 1030 (Pa. Super. 1993) (auto
accident and subsequent malpractice), and Brown v. Herman, 665 A.2d
504 (Pa. Super. 1995) (fall from defective stool and subsequent
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malpractice). Because it was never established that the cancer was caused
by Mrs. Valincius’ ingestion of HRT drugs, there is no nexus between the
“prior event” and the malpractice claim at issue here. Thus, under
Butterworth and its progeny, the Valinciuses argue that the court erred in
granting summary judgment in favor of the Appellees. We find this
argument to be misplaced.
The release executed by the Valinciuses in the HRT litigation provides,
in relevant part, as follows:
A. Complete and General Release, Covenant Not to Sue &
Assignment
1. The Claimant, individually and for her family members,
heirs, beneficiaries, and agents, hereby RELEASES,
ACQUITS, and FOREVER DISCHARGES the HT Defendants,
the other Released Parties, as defined below, and ANY
AND ALL OTHER INDIVIDUALS OR ENTITIES WHO ARE OR
MAY BE CLAIMED TO BE LIABLE TO THE CLAIMANT (AND
HER FAMILY MEMBERS, HEIRS, SUCCESSORS,
BENEFICIARIES AND AGENTS) of and from all Released
Claims, as defined below. The Claimant, individually and
for heirs, beneficiaries, successors, and agents, also
hereby agrees and covenants not to sue the HT
Defendants, the other Released Parties, as defined below,
and ANY AND ALL OTHER INDIVIDUALS OR ENTITIES
WHO ARE OR MAY BE CLAIMED TO BE LIABLE TO THE
CLAIMANT (AND HER FAMILY MEMBERS, HEIRS,
BENEFICIARIES, SUCCESSORS, AND AGENTS) in any
capacity, for any Released Claims, as defined below. It is
expressly understood and agreed by the Claimant
that the foregoing release is intended to and does
include a release of all claims that were, could have
been, or could be brought (whether now or in the
future, including any future cancer) in connection
with the facts, events, and incidents that gave rise
to or related in any way to this Civil Action.
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2. The term “Released Parties” as used herein shall mean:
[a.] . . .
b. . . .
c. Any and all individuals or entities who furnished any
medical care or treatment and/or prescribed or dispensed
Hormone Therapy to the Hormone Therapy Claimant
arising out of or relating to the Hormone Therapy Claim,
including all such physicians, hospitals, health care
providers, pharmacies and any other actual or potential
defendants.
d. . . .
3. The term “Released Claims” shall mean any and all claims,
demands, damages, injuries, losses, and causes of action,
of whatever nature or character, whether known or
unknown, past, present or future (including any future
cancer), that have been, could have been, may be, or
could be alleged or asserted now or in the future, whether
alleged or asserted or not, whether founded in law,
equity, admiralty, tort, contract, statute, rule, regulation,
or otherwise, including any loss or compensatory or
punitive damage claim relating thereto; claims for future
cancer or wrongful death; claims for consumer fraud,
refunds, unfair business practices, deceptive trade
practices, and other similar claims whether arising under
statute, regulation or judicial decision; claims for medical
screening and monitoring, injunctive and declaratory
relief; and claims for economic or business losses or
disgorgement of profits, deriving from or related to the
prescription, purchase or use of Hormone Therapy, and
including any alleged loss of consortium or other
derivative claims related thereto.
4. THE RELEASES IN PARAGRAPH II.A.1 ABOVE ARE
SPECIFICALLY INTENDED TO OPERATE AND BE
APPLICABLE EVEN IF IT IS ALLEGED, CHARGED, OR
PROVEN THAT SOME OR ALL OF THE CLAIMS OR
DAMAGES RELEASED WERE CAUSED IN WHOLE OR IN
PART BY THE NEGLIGENCE, NEGLIGENCE PER SE, GROSS
NEGLIGENCE, BREACH OF EXPRESS OR IMPLIED
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WARRANTY, MISREPRESENTATION, VIOLATION OF
STATUE OR COMMON LAW, DEFECTIVE PRODUCT,
FAILURE TO WARN, RECKLESS OR INTENTIONAL
CONDUCT, FRAUD, MALICE, OR CONDUCT OF ANY TYPE
BY ANY OF THE RELEASED PARTIES AND/OR ANY THIRD
PARTY.
Release, 11/30/11, at 3-4 (emphasis added at ¶ II.A.1). The Release also
states that it is “intended by the Claimant to be as broad as can possibly be
created by the Claimant and including any liability whatsoever.” Id. at 5.
As stated above, where, as here, there is no allegation of fraud,
accident or mutual mistake, the plain language of the release must be given
its full effect. In each of the cases cited by the Valinciuses, the release
specifically refers to the particular event that caused the injury to the
claimant. In Buttermore, the release discharges all claims related to “an
accident which occurred on or about the 3rd day of December, 1981 at or
near Aliquippa, Pennsylvania.” Buttermore, 561 A.2d at 734. In Dublin,
the release discharges all liability for injury sustained “in consequence[] of
an accident that occurred on or about the second day of August, 1981[.]”
Dublin, 598 A.2d at 1299. Similarly, in Smith, the release applied to all
injuries “and the consequences thereof resulting or to result from the
accident[.]” Smith, 621 A.2d at 1032 n.2. Finally, in Brown, the release
applied to all injuries “sustained or received on or about the 5 th day of
January, 1987, when an incident occurred at [appellant’s] residence where
[appellant] fell from a chair/stool, and about which specific allegations were
made by us in pleadings.” Brown, 665 A.2d at 506. Thus, in deciding
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those cases, the Courts considered the plain language of the releases in
question, which included references to specific causal events.
In contrast to those cases cited by the Valinciuses, here, the language
of the release does not specifically require a causal link between the
ingestion of HRT drugs and possible later claims. Its application is not
limited to injuries sustained as a result of Mrs. Valincius’ ingestion of HRT
drugs. Rather, the Release applies to any claims connected to “the facts,
events, and incidents that gave rise to or related in any way to this Civil
Action.” Release, 11/30/11, at ¶ II.A.1 (emphasis added). This language
clearly encompasses Mrs. Valincius’ breast cancer and associated complaints
and conditions, including the malpractice alleged to have occurred during
Mrs. Valincius’ partial mastectomy and left axillary dissection surgery in July
2002. Had Mrs. Valincius never developed breast cancer, she would never
have had reason to join the HRT class action. Accordingly, the breast cancer
is plainly a “fact[], event[], or incident[] that gave rise to or related in any
way to” the HRT action, and, as such, the Release must be read to apply to
the claims asserted against the Appellees in the instant matter.
The Valinciuses also claim that they never intended to release the
Appellees, arguing “[i]t would simply not make sense for [them] to release
the parties that they had just filed suit against for the retained surgical
sponge.” Brief of Appellants, at 12. We disagree.
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The Valinciuses rely on two cases to support their contention, both of
which are inapt. In Vaughn v. Didizian, 648 A.2d 38 (Pa. Super. 1994),
the appellant, Vaughn, was injured while riding in a car driven by Tonyia
Woods on August 12, 1983. On November 22, 1983, Vaughn, in exchange
for the sum of $33,000, executed a release providing, in relevant part, as
follows:
the undersigned hereby releases and forever discharges Donald
Woods and Tonyia Woods and all other persons, firms and
corporations from all claims and demands, rights and causes of
action of any kind the undersigned now has or hereafter may
have on account of or in any way growing out of personal
injuries known or unknown to me/us at the present time. . .
resulting or to result from an occurrence which happened on or
about August 12, 1983.
Id. at 39. Subsequently, Vaughn sought treatment from Dr. Didizian, who
performed surgery on her on August 1, 1984. Vaughn thereafter instituted a
medical malpractice action against Dr. Didizian, alleging that he was
negligent in his performing the surgery. Dr. Didizian filed a motion for
summary judgment, alleging that Vaughn’s action was barred by the release
she executed on November 22, 1983.
On appeal to this Court, Vaughn argued that the trial court erred in
granting summary judgment because the parties to the release did not
intend to bar a malpractice claim that had not accrued at the time the
release was executed. The Court noted that Pennsylvania uses a two-prong
approach to construing the effect of a release:
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The court of Pennsylvania have traditionally determined the
effect of a release using the ordinary meaning of its language
and interpreted the release as covering only such matters as can
fairly be said to have been within the contemplation of the
parties when the release was given. Moreover, releases are
strictly construed so as not to bar the enforcement of a claim
which had not accrued at the date of the execution of the
release.
Id. at 40 (emphasis in original; citations and quotation marks omitted).
The Court concluded that the trial court had only utilized the first
component – the ordinary meaning of the release’s language – but failed to
consider the second – that a release may only cover matters within the
parties’ contemplation. Because “[n]othing in the circumstances of [the]
case suggest[ed] that the parties to the release were anticipating [Dr.]
Didizian’s negligent surgery,” the Court concluded that the release did not
encompass the medical malpractice claim.
Here, however, the cause of action based on Dr. Weiner’s alleged
negligence had already accrued at the time the release was executed. The
Valinciuses signed the HRT release nine years after the surgery in which the
sponge was left behind, one year after the sponge was discovered in Mrs.
Valincius’ body, and five months after the Valinciuses actually filed suit for
malpractice. Clearly, the action for the malpractice allegedly committed by
Dr. Weiner was within the Valinciuses’ contemplation at the time they
entered into the HRT release in November 2011. See Brown, supra
(Court’s decision to apply release in subsequent malpractice suit “further
compelled by the fact that appellants executed the release eighteen months
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after they filed the malpractice suit. Hence, they were clearly aware of the
alleged malpractice when they relinquished their rights[.]”) Despite their
clear awareness of the pending litigation against the Appellees, the
Valinciuses made no effort to exclude that action from the terms of the HRT
release.2 Accordingly, Vaughn is inapposite to the case at hand.
The Valinciuses also cite Martin v. Donahue, 698 A.2d 614 (Pa.
Super. 1997), to support their assertion that extraneous evidence of the
parties’ intent should be considered. In Martin, the appellee, Martin, was
injured at work. Following emergency treatment, Martin was operated on by
the appellant, Dr. Donahue. Martin subsequently reached a settlement with
his employers and executed a release in which he discharged his employers
from any further liability for damages resulting from his injuries. Thereafter,
Martin sued Dr. Donahue for malpractice. Dr. Donahue sought summary
judgment based on the release Martin had previously signed in favor of his
employers. At the hearing in the trial court, Martin presented deposition
testimony and affidavits from the attorneys involved to demonstrate that the
release was drafted with the intention of releasing only the named parties
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2
It appears that the Valinciuses’ relied on the advice of present counsel to
conclude that the release applied only to the HRT litigation and not the
retained sponge case. See Brief of Appellants, at 2 (stating that HRT
settlement package was given to Attorney Ennis for review). Unfortunately,
counsel either failed to read the release in full, or was unaware of the import
of Buttermore and its impact on his clients’ ability to pursue the retained
sponge litigation.
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from liability. The trial court ultimately denied Dr. Donahue’s petition for
summary judgment.
On appeal, this Court relied on the plain language of the release to
conclude that it did not apply to Dr. Donahue. In response to Dr. Donahue’s
argument that the trial court erred by admitting extraneous evidence of
intent, the Court stated as follows:
While it is clear to this [C]ourt that the language of the
release did not discharge [Dr. Donahue] from liability, [Dr.
Donahue], nonetheless, urged the [trial] court to adopt his
interpretation. Therefore, in order to ascertain the intent of the
parties, the court deemed it necessary to consider the
circumstances surrounding the release, the situation of the
parties, and the nature of the content of the agreement. It was
reasonable for the court to look to sources other than the
contract for clarification. The court did not abuse its discretion in
allowing affidavit and deposition testimony of the attorneys who
drafted the releases.
Martin, 698 A.2d at 617 (emphasis added). The Valinciuses argue that the
above-quoted language provides support for their claim that surrounding
circumstances and intent of the parties should have been considered by the
court in the instant matter. We disagree. The Martin Court clearly found
that the plain language of the release was unambiguous and discharged only
the named parties, and that extrinsic evidence was not necessary to
ascertain the parties’ intent. Accordingly, the Court’s statement that the
trial court did not abuse its discretion in considering extraneous evidence
was, essentially, dicta and is not controlling here.
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The Valinciuses also assert that the trial court erred in relying on
Buttermore and its progeny because there was “no specific event to
release.” The Valinciuses’ basis for this claim appears to be a passing
reference to a “given event” in the case of Taylor v. Solberg, 778 A.2d 664
(Pa. 2001). The isolated quotation cited by the Valinciuses provides as
follows: “When the parties to a release agree not to sue each other or
anyone else for a given event, this can effect a discharge of others who have
not contributed consideration for the release.” Id. at 667. From this, the
Valinciuses extrapolate that any valid release must be related to a specific
event. This argument is based on an absurdly narrow and literal reading of
the language used by the Supreme Court and must be rejected outright.
Simply stated, there is no requirement in the law of this Commonwealth that
a release must be predicated on a specific “event,” such as a car accident, to
be effective.
For the foregoing reasons, the trial court did not err in relying on
Buttermore and its progeny to discharge the Appellees from liability in the
Valinciuses’ medical malpractice action.3
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3
Although we recognize that Buttermore compels our affirmance, we
believe its application here to be at odds with the underpinnings of tort law.
“Two basic policies underlie theories of tort liability: deterrence of harm-
causing conduct and compensation of persons injured by such conduct.” 1
Summ. Pa. Jur. 2d Torts § 1:1 (2d ed.). Similarly, the object of awarding
damages in tort actions is “to give compensation, indemnity, or restitution
(Footnote Continued Next Page)
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The Valinciuses next assert that the trial court erred in considering the
Fact Sheet from the HRT lawsuit to find a causal link between the HRT drugs
and Mrs. Valincius’ breast cancer.4 We find that the Valinciuses have waived
this issue for two reasons. First, the Fact Sheet was first introduced into the
proceedings at the deposition of the Valinciuses’ daughter. No objection was
made to the introduction and use of the document, despite extensive
questioning based on its contents. “[I]n order for a claim of error to be
preserved for appellate review, a party must make a timely and specific
objection before the trial court at the appropriate stage of proceedings; the
failure to do so will result in a waiver of the issue.” Kaufman v. Campos,
827 A.2d 1209, 1212 (Pa. Super. 2003). As the Valinciuses did not lodge an
objection at the time of their daughter’s deposition, this claim is waived.
_______________________
(Footnote Continued)
for harms[,] to determine rights[, and] to punish wrongdoers and deter
wrongful conduct.” Id. § 9:1, citing Restatement (Second) Torts § 901.
Here, Appellees benefit from a release to which they were not parties
and for which they provided no consideration. The appellee-doctors left a
sponge in Ms. Valincius that caused her years of pain. However, they
benefit from the release and are neither deterred from their harm-causing
conduct nor required to compensate Ms. Valincius for her harm. In effect,
they receive a windfall. While we see no principled way to distinguish
Buttermore and its progeny, our Supreme Court may wish to consider an
exception.
4
The Fact Sheet states: “Information provided by plaintiff within the fact
sheet will only be used for purposes related to this litigation and such
information will not be disclosed outside this litigation without plaintiff’s
written consent.” Plaintiff’s Fact Sheet, 11/4/04, at 1. Based on this
language, the Valinciuses argue that the information contained in the Fact
Sheet should not have been introduced in the instant matter.
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Second, the Valinciuses have waived this argument for failure to
develop their appellate argument or to cite any authority whatsoever for
their claim. “When an appellant fails to develop his issue in an argument
and fails to cite any legal authority, the issue is waived.” Commonwealth
v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008) (en banc). Here, the
Valinciuses’ argument is one paragraph long and cites no legal authority.
Accordingly, the issue is waived.
Finally, the Valinciuses assert that this Court should apply New York
law in deciding the case. This argument is based on language contained in
the HRT release providing that the document shall be construed according to
the laws of the State of New York. Release, 11/30/11, at ¶ N. This issue is
also waived. “[I]ssues not raised in the lower court are waived and cannot
be raised for the first time on appeal.” Steiner v. Markel, 968 A.2d 1253,
1257 (Pa. 2009). Here, the Valinciuses did not present this argument in the
lower court or in their Pa.R.A.P. 1925(b) statement. Accordingly, this claim
is waived.
For the foregoing reasons, we are constrained to agree with the trial
court that the HRT release bars any claims the Valinciuses may have against
Dr. Weiner and the other appellees.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/2015
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