Turnpaugh Chiropractic Health v. Erie Ins. Exch.

J-A23032-22
2023 PA Super 99TURNPAUGH CHIROPRACTIC HEALTH : IN THE SUPERIOR COURT OF
AND WELLNESS CENTER, : PENNSYLVANIA
P.C.(ZIMMERMAN) :
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:
v. :
:
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ERIE INSURANCE EXCHANGE : No. 1448 MDA 2021
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Appellant :
Appeal from the Judgment Entered November 10, 2021
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2019-CV-06937-CV
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
CONCURRING STATEMENT BY BOWES, J.: FILED JUNE 08, 2023
I wholly agree with the learned Majority’s holding. I write separately
merely to highlight that there exists a conflict within this Court’s jurisprudence
as to whether a party may appeal the denial of a motion for summary
judgment after a trial has been held. Compare Whitaker v. Frankford
Hospital of City of Philadelphia, 984 A.2d 512, 517 (Pa.Super. 2009)
(noting that once the case proceeded to trial and the defendants presented a
defense, the denial of their motion for summary judgment became moot and,
upon entry of a verdict in plaintiff’s favor, “the issue became whether the trial
court erred in failing to grant them [JNOV]”), Xtreme Caged Combat v.
Zarro, 247 A.3d 42, 50 (Pa.Super. 2021) (applying Whitaker in concluding
that “the denial of [plaintiff’s] summary judgment motion is not appealable as
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* Former Justice specially assigned to the Superior Court.
J-A23032-22
an issue separate from the grant of the nonsuit at trial”), and Yoder v.
McCarthy Constr., Inc., 291 A.3d 1, 14 n.15 (Pa.Super. 2023) (agreeing
with defendant’s argument that “where summary judgment is denied and the
same claim then proceeds to trial, post-trial and appellate review must focus
on whether [JNOV] is required, not on whether summary judgment or nonsuit
were improperly denied[,]” and, consequently, “the subsequent trial record
supplants the pre-trial record” (cleaned up)), with Windows v. Erie
Insurance, 161 A.3d 953 (Pa.Super. 2017) (reaching merits of trial court’s
denial of summary judgment motion on appeal following trial without
explanation as to why the denial was reviewable), Krepps v. Snyder, 112
A.3d 1246, 1257-60 (Pa.Super. 2015) (same), and Brownlee v. Home
Depot U.S.A., Inc., 241 A.3d 455 (Pa.Super. 2020) (non-precedential
decision at 6, 7 n.5) (holding that the denial of a motion for summary
judgment is not moot following trial and noting further “that a litigant should
be permitted to challenge, on appeal, a trial court’s denial of a pretrial motion
for summary judgment even after the parties have proceed to trial and a
verdict. If not, a trial court’s unchecked denial of pretrial relief may result in
delayed justice or a waste of judicial resources”). I note that the Majority’s
position that issues raised in a motion for summary judgment must be revived
in a motion for JNOV following trial to be viable for review on appeal, with
which I agree, aligns with Whitaker, Xtreme, and Yoder.
We strive for consistency in the law so that similarly situated litigants
are treated the same. When the law strikes discordant notes, it is time for
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J-A23032-22
this Court to consider the issue and resolve the conflicts. Only then will the
sweet music of the law be in harmony for all.
Judge McCaffery and P.J.E. Stevens join this Concurring Statement.
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