Opinion
J-A11037-16 No. 1140 EDA 2015 No. 1306 EDA 2015
07-21-2016
JENNA MARIE SCOTT, A MINOR BY AND THROUGH HER GUARDIAN AD LITEM, JUDITH ALGEO, ESQUIRE v. LOWER BUCKS HOSPITAL, AMY L. HARVEY, M.D., MARK D. KUHN, M.D., LAURA CASTNER, RN, JO ANN BUTRICA, RN, AND MARY (BOYLE) ROMOLINI, RN APPEAL OF: AMY L. HARVEY, M.D., AND MARK D. KUHN, M.D. JENNA MARIE SCOTT, A MINOR BY AND THROUGH HER GUARDIAN AD LITEM, JUDITH ALGEO, ESQUIRE v. LOWER BUCKS HOSPITAL, AMY L. HARVEY, M.D., MARK D. KUHN, M.D., LAURA CASTNER, RN, JO ANN BUTRICA, RN, AND MARY (BOYLE) ROMOLINI, RN APPEAL OF: LOWER BUCKS HOSPITAL, LAURA CASTNER, RN, JO ANN BUTRICA, RN, AND MARY (BOYLE) ROMOLINI, RN
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated April 10, 2015
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2010-01193 BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J. MEMORANDUM BY MUNDY, J.:
Former Justice specially assigned to the Superior Court.
Appellants, Amy L. Harvey, M.D. and Mark D. Kuhn, M.D. (collectively Doctors) and Lower Bucks Hospital, Laura Castner, RN, Jo Ann Butrica, RN, and Mary (Boyle) Romolini, RN (collectively Hospital), appeal from the April 10, 2015 order awarding a new trial to Appellee, Jenna Marie Scott (Scott), a minor by and through her guardian ad litem, Judith Algeo, Esquire (Algeo). After careful review, we dismiss Hospital's appeal in part, affirm the award of a new trial, and vacate the order awarding fees to the guardian ad litem.
Doctors' appeal was docketed at 1140 EDA 2015, and Hospital's appeal was docketed at 1306 EDA 2015. This Court sua sponte consolidated the appeals because they involve related issues and parties. See Pa.R.A.P. 513 (permitting sua sponte consolidation).
We adopt the facts and procedural history set forth in the trial court's opinion. Trial Court Opinion, 8/10/15, at 1-7. Briefly, Scott brought this medical malpractice action against Doctors and Hospital, alleging that they were negligent during her birth. This negligence resulted in permanent injuries, including a hypoxic brain injury, cerebral palsy, and blindness. On September 24, 2014, after a four-week jury trial, the jury found Dr. Harvey negligent, but found that her negligence did not increase the risk of harm to Scott. The jury found the remaining Appellants not negligent. On October 3, 2014, Scott timely filed a post-trial motion for a new trial. On October 9, 2014, Hospital filed a post-trial motion for judgment notwithstanding the verdict (JNOV). On March 31, 2015, the trial court filed an order granting Scott's motion for post-trial relief, but the court did not serve that order until April 10, 2015. On April 15, 2015, Doctors filed a timely notice of appeal. Subsequently, on April 28, 2015, Hospital filed its timely notice of appeal.
See In re L.M., 923 A.2d 505, 508-509 (explaining appeal period does not begin to run until the trial court gives Pa.R.C.P. 236(b) notice of the entry of an order).
Appellants and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Hospital raises the following issues for our review.
1. Is a Hospital entitled to a JNOV on [Appellee's] claim of Hospital ostensible liability for the conduct of [Appellant] physicians where there is no evidence that the Hospital did anything to "hold out" to the patient that the physicians its [sic] agents; where there is no evidence that the patient ever believed or thought, in fact, that the physicians were Hospital agents; and where any such mistaken thought would have been unreasonable and unjustified, because physician communications to the patient would have informed any reasonable person that the physician was not a Hospital employee?
2. On a contention that a nurse mis-interpreted external fetal monitoring strips, is the nurse entitled to a JNOV where the discharging physician based her discharge decision on her own review of the strips, her own assessment of the clinical data, all independent of the nurse, with
whom she did not even discuss the EFM strips, and thus there was no evidence that any nurse conduct had any causal relation to the physician's decision to discharge the patient from the Hospital?Hospital's Brief at 2-4.
3. Should a new trial be ordered on the basis of the collateral source of payment rule, where there was no evidence of any collateral source of payment of the child's medical expenses received at trial, and the only time the jury was told about this was during the court's charge to jury, to which [Appellee's] counsel explicitly agreed as proper?
4. Should a new trial be ordered on the basis of "fundamental unfairness" of allegedly objectionable questions asked by counsel, where any objections thereto were sustained, no requests for curative instructions were made, no motion for mistrial was ever made, and the court has not identified any error in its rulings below?
Further, Doctors present the following issues for our review.
1. Whether any of the conduct of defense counsel mentioned by the trial court is sufficient to justify the award of a new trial, where all questions were properly related to admissible evidence and/or where all objections thereto were waived[?]Doctors' Brief at 4.
2. Whether the questions concerning damages incurred by [Appellee] were in violation of the collateral source rule, in a manner justifying a new trial[?]
3. Whether [Appellants] can be forced to pay for minor, incapacitated [Appellee's] guardian ad litem's fees, and whether the claim for those fees is proper where both the hourly rate and the time incurred are unreasonable and excessive, and the services compensated are not compensable as guardian ad litem services[?]
Hospital's first two issues challenge the denial of its post-trial motion for JNOV. In its motion for JNOV, Hospital admits "this is a wholly protective motion filed by verdict winners." Brief of Hospital in Support of Cross-Motion for Post-Trial Relief, 1/30/15, at 3. Hospital was the prevailing party at trial because the jury returned a verdict in its favor, finding no negligence. Nonetheless, Hospital contends that because the trial court granted a new trial, it should have considered Hospital's motion for JNOV. Id. Hospital argues it is entitled to JNOV because Scott did not present evidence at trial that made out a claim against Hospital. Id. at 14. However, in awarding a new trial to Appellee, the trial court vacated the jury's verdict. The award of a new trial did not resolve the case in favor of either Scott or Hospital, and it did not enter a verdict in favor of Scott nor confirm the verdict in favor of Hospital. Therefore, any issues in Hospital's motion for JNOV are premature until the conclusion of the new trial.
Even though the trial court did not expressly dispose of Hospital's post-trial motions, Hospital's October 9, 2014 post-trial motions were denied by operation of law after 120 days, on February 6, 2015. See Morningstar v. Hoban , 819 A.2d 1191, 1195 (Pa. Super. 2003) (explaining that "[Pennsylvania] Rule [of Civil Procedure] 227.4(b) recognizes that post-trial motions may be deemed resolved when the trial court does not enter an order disposing the motions within 120 days[]"), appeal denied, 844 A.2d 553 (Pa. 2004). Typically, when post-trial motions are denied by operation of law, a party may praecipe for entry of judgment to obtain a final, appealable order. See id. at 1195-1196 (noting a party's right to praecipe for judgment after post-trial motions have been pending for more than 120 days); Pa.R.C.P. 227.4(b) (authorizing the prothonotary to enter judgment upon praecipe of any party when the trial court does not dispose of post-trial motions within 120 days). However, in this case, because the trial court awarded a new trial in Appellee's favor, Hospital could not praecipe for the entry of judgment against itself and in favor of Appellee. Therefore, because Hospital's motion for JNOV was denied by operation of law, we decline to quash Hospital's appeal.
We note that after the new trial, Hospital may file post-trial motions.
Hospital's final two issues and Doctors' first two issues challenge the award of a new trial. Initially, Appellants argue Scott waived the request for a new trial by not moving for a mistrial during trial when the trial court sustained her objections to Appellants' improper questions. Hospital's Brief at 48; Doctors' Brief at 13. However, a trial court may sua sponte grant a new trial if sufficient cause exists. See Armbruster v. Horowitz , 813 A.2d 698, 704 n.6 (Pa. 2002) (noting "a trial judge has the power to grant a new trial sua sponte if [the trial judge] determines that the interests of justice so require[]") (citations omitted); Commonwealth v. Powell , 590 A.2d 1240, 1245 (Pa. 1991) (affirming a trial court's sua sponte award of a new trial following the jury verdict and stating "[w]here it will result in the attainment of justice, a trial court may grant a new trial without the initiation of the defendant[]") (citations omitted); Getz v. Balliet , 246 A.2d 108, 110 (Pa. 1968) (noting "[i]t has long been established that if sufficient cause exists, a court may grant a new trial sua sponte[]"), citing Trerotola v . City of Phila., 29 A.2d 788 (Pa. 1943); Read v. Shu , 615 A.2d 109, 110 (Pa. Super. 1992) (affirming trial court's sua sponte award of new trial due to the inadequacy of the jury's damages award). Because the trial court has the inherent authority to order a new trial, a party's actions cannot waive the trial court's exercise of that power. Therefore, Scott did not waive this issue.
On the merits of Hospital's and Doctors' issues relating to the award of a new trial, we adopt the thorough and well-reasoned opinion of the Honorable Robert J. Mellon. Therein, Judge Mellon details "[t]he cumulative effect of [Appellants'] conduct[, which] created insurmountable and undue prejudice towards [Appellee.]" Trial Court Opinion, 8/10/15, at 10. Specifically, during the four-week jury trial, Appellants' improper questioning forced the trial court to issue at least 23 warnings to Appellants "regarding their incessant attempts to elicit inadmissible and prejudicial testimony." Id. at 24. Further, the trial court concluded that "despite its numerous warnings and instructions, [Appellants'] conduct caused the jury to speculate about other alleged causes of injury through inadmissible evidence which resulted in a verdict for [Appellants]." Id. (emphasis added). The trial court was in the best position to view how the repeated prejudicial questioning influenced the jury, and we give great deference to the trial court's observations. Judge Mellon concluded that "where [Appellants] intentionally violated pre-trial orders, the only remedy is a new trial, in order to promote fundamental fairness, to ensure professional respect for the rulings of the trial court, to guarantee the orderly administration of justice, and to preserve the sanctity of the rule of law." Id. (emphasis in original).
After Appellants' egregious disregard for the trial court's repeated instructions and rulings, their assertions of waiver, and justification of their actions are disingenuous.
The trial court's August 10, 2015 opinion fully and accurately disposes of Hospital's and Doctors' issues on appeal. The trial court did not abuse its discretion in awarding a new trial in the interests of justice. See Powell , supra. Therefore, we affirm the trial court's order granting a new trial.
In Doctors' third issue, they contend that the trial court erred in directing them to pay one-third of the guardian ad litem's fees. Doctors' Brief at 51. Scott responds that the trial court appointed Algeo at Appellants' request, over Scott's opposition. Scott's Brief at 52-53.
The trial court also ordered Scott to pay one-third of Algeo's fees and Hospital to pay the remaining one-third. Hospital did not appeal the award of guardian ad litem fees.
The award of fees to a guardian ad litem implicates the Pennsylvania Rules of Civil Procedure. "Issues regarding the operation of procedural rules of court present us with questions of law. Therefore, our standard of review is de novo and our scope of review is plenary." Green Acres Rehab. & Nursing Ctr. v. Sullivan , 113 A.3d 1261, 1267-1268 (Pa. Super. 2015) (citations and internal quotation marks omitted).
"A guardian ad litem is appointed by the court to represent a minor child in particular litigation. The function of the guardian is to represent and protect unrepresented minors and their interests." C.W. v. K.A.W., 774 A.2d 745, 748-749 (Pa. Super. 2001) (citations omitted). Pennsylvania Rule of Civil Procedure 2039 provides that a guardian for a minor party in a case may be compensated upon the completion of the case as follows.
Rule 2039. Compromise, Settlement, Discontinuance and DistributionPa.R.C.P. 2039(b).
...
(b) When a compromise or settlement has been so approved by the court, or when a judgment has been entered upon a verdict or by agreement, the court, upon petition by the guardian or any party to the action, shall make an order approving or disapproving any agreement entered into by the guardian for the payment of counsel fees and other expenses out of the fund created by the compromise, settlement or judgment; or the court may make such order as it deems proper fixing counsel fees and other proper expenses. ...
Because Rule 2039(b) authorizes payment only when a compromise, settlement, or judgment has been reached, the trial court's order directing payment of the guardian ad litem's fees was premature. See id. The Rule does not permit a guardian ad litem to recover fees when the case is still pending, as when a new trial is ordered. See id. Therefore, the trial court erred as a matter of law in awarding guardian ad litem fees at this stage, and we vacate that order. See Sullivan , supra.
Our decision is without prejudice to the right of the guardian ad litem or any party to petition for fees under Rule 2039 upon the entry of a compromise, settlement, or judgment. --------
Based on the foregoing, we dismiss Hospital's appeal in part as premature. Further, we affirm the trial court's April 10, 2015 order awarding a new trial. Finally, we vacate as premature the December 26, 2014 order awarding fees to the guardian ad litem.
Appeal 1306 EDA 2015 dismissed in part. April 10, 2015 order affirmed. December 26, 2014 order vacated.
Judge Shogan joins the memorandum.
Justice Fitzgerald files a concurring and dissenting statement. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/21/2016
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