Miller v. Krug
Miller v. Krug
Opinion of the Court
In 1972 appellant began a trespass action against appellees Krug and Columbia Hospital, alleging negligent medical treatment. In April 1974 the Hospital served interrogatories on appellant. On November 22, 1974, upon motion of the Hospital under Pa.R.Civ.P. 4019(a)(1) & (c)(2), the lower court ordered appellant to answer the interrogatories within twenty days, or be barred from offering “any testimony at trial as to damages.” Appellant filed no answers.
On September 4, 1975, appellant and her counsel attended a pre-trial conciliation conference, without, however, having first filed a pre-trial statement as required by Allegheny County Local Court Rule 212 VI A.
On September 12, 1975, appellant filed a motion to strike the order of November 22, 1974 — the order that barred any testimony as to damages. On October 14, 1975, after argument, the lower court denied the motion.
On November 1, 1976, the lower court certified a question for appeal to us, in the following form:
STATEMENT FOR CERTIFICATION OF APPEAL
AND NOW, this 1st day of November, 1976, at the request of counsel for the plaintiff in the above captioned case, this Court hereby certifies that the Order entered on the 14th day of October, 1976 involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the Order may materially advance the ultimate termination of the matter.
R. 141a.
On November 29, 1976, we granted appellant’s petition for permission to appeal.
On appeal appellant raises two questions: (1) Whether the lower court abused its discretion in entering the order of November 22, 1974; (2) Whether the lower court abused its discretion in entering the order of October 14, 1976. For the reasons that follow, we find that permission to appeal was improvidently granted, and that the appeal must be quashed.
Appeal from Order of November 22, 1974
As is apparent from the statement for certification, quoted above, the lower court did not certify to us the
Appeal from Order of October 14, 1976
The lower court did certify to us the question of the propriety of its order of October 14,1976. However, in a proper case we may decline to exercise our jurisdiction over such an appeal. Appellate Court Jurisdiction Act, supra, 17 P.S. § 211.501(b); Commonwealth v. Rucco, 229 Pa.Super. 247, 324 A.2d 388 (1974) (dictum). Here, we have decided that we should decline, for upon reflection we disagree with the lower court that the certified question meets the criteria set forth by the Appellate Court Jurisdiction Act, 17 P.S. § 211.501(b).
First, we disagree that deciding the certified question now will “materially advance the ultimate termination of the
Second, we disagree that the order “involves a controlling question of law as to which there is a substantial ground for difference of opinion.” To begin with, it is unlikely that any question of abuse of discretion would fall within this category. Speaking generally, appellate courts find abuse of discretion only in flagrant cases; almost by definition, a flagrant case is one where there is not “a substantial ground for difference of opinion.” Furthermore, we are not quite sure what “the question” is, which inhibits us from deciding whether the lower court abused its discretion. In explaining its order, the lower court said:
[I]t appearing to the Court that the matter has been conciliated and on 21 September 1976 it was advertised as being scheduled for trial — and is so scheduled for jury trial — on Wednesday, November 17,1976, and that permitting the filing of the Supplemental Pre-Trial Statement would force re-scheduling of the jury trial until May of 1977, the interim jury trial schedules having already been filled, and would require allowing time for retaining additional experts’ reports by Defendants and the Additional Defendant, and that the matter was not progressed [sic] with diligence by the claimant, and it is now five years since the incident complained of occurred, Defendants’*46 Motions, joined in by Additional Defendant are granted and Plaintiffs Pre-Trial Statement is stricken from the record.
R. 140a.
While this does seem to say that appellant’s statement was stricken as untimely, we also note the following docket entry: “And Now, Oct. 15, 1975, Ordered to Jury Trial— Sept. 4, 1975 [sic] — Discovery to Remain Open.” R. 2a. What did the lower court mean by the words, “Discovery to remain open”? Why should it remain open? For how long? And for what purposes?
Under these circumstances, we have concluded that the case will proceed in a more informed, orderly, and expeditious manner if we remand for such further proceedings as the lower court, in response to such appropriate motions as any party may file, may direct.
The permission to appeal is vacated as improvidently granted, and the appeal is quashed.
. At least so appellant’s brief states. However, the docket states: “Dec. 12, 1974 [i. e., twenty days after the order compelling answers] Pltfs Answers to Defts Columbia Hospital Interrogs filed.” The printed record does not contain these answers, but the official record does. We find these facts, and the omission of any reference to them, puzzling.
Appellant’s answers were perhaps flawed because she herself did not sign them; according to appellant’s first counsel’s affidavit attached to the answers, appellant was “not available.” Whether
. Local Rule 212 provides in pertinent part:
VI. In all trespass actions, and in all other forms of action to the extent this rule may be applicable:
A. Plaintiff, within thirty (30) days after notice of a pre-trial conciliation conference as provided in Paragraph II hereof:
1. Shall serve upon all parties a written statement containing:
b. The names and addresses of all persons who may be called as witnesses, classifying them as liability and/or damage witnesses.
c. Medical reports of any doctor who treated, examined, or was consulted in connection with the injuries complained of, and who may be called as a witness.
d. The reports of any expert whose opinion will be offered in evidence at the time of trial. Such reports shall include the findings and conclusion of the expert.
E. Witnesses whose identities have not been revealed as provided in Paragraph VI A.l.b. ... or whose reports have not been furnished under VI A.l.c. and d.....supra, will not, under any circumstances whatsoever, be permitted to testify at the subsequent trial of the case.
. Appellant assumes that the order of Nov. 22, 1974, was interlocutory. However, in a petition to quash, appellees cite Myers v. Travelers Ins. Co., 353 Pa. 523, 46 A.2d 224 (1946); Scharfman v. Philadelphia Transp. Co., 234 Pa.Super. 563, 340 A.2d 539 (1975); and Goodrich-Amram § 4019(a)-12 (1962), for the proposition that the order was final and appealable because by barring any testimony as to damages it effectively put appellant out of court. Therefore, appellees argue, since appellant took no appeal from the order within thirty days, the present appeal from the order should be quashed as untimely.
Appellant counters that
the evidence inherent in the proof of liability that the injection caused paralysis is admissible on the issue of liability, regardless of the effect of the Order of Court entered Nov. 22, 1974. The evidence of paralysis resulting from improper medical treatment thus having been admitted, the jury is entitled to award damages without receiving any additional testimony on the damage issue. Appellant’s Answer to Petition to Quash, at 2-3.
We see no need to resolve this issue. If appellant is right, she is nevertheless not properly before us because the order — interlocutory, as appellant argues — has not been certified to us. If appellees are right, appellant is likewise not properly before us because the appeal is untimely. The result is the same in either case: the appeal must be quashed.
. Judge PRICE, in dissent, would reverse the order of October 14, 197-6, thereby penalizing appellees, without, however, any suggestion that appellees have done anything wrong or that the lower court abused its discretion.
Dissenting Opinion
dissenting:
It seems to me that in the interest of judicial economy we should not so hastily invoke the “improvidently granted” routine.
The order of October 14, 1976, was certified, the appeal was accepted and I see no reason to sweep the matter under the rug by use of the “improvidently granted” routine for later disposition.
Briefly, the facts pleaded by plaintiff allege, in a complaint filed on May 31, 1972, that on November 9, 1971, she went to Columbia Hospital of Pittsburgh as an out-patient. She was complaining of arthritic pain in the area of the upper back and neck. E. C. Krug, III, M.D., was at that time on duty and administered an injection in the back of her neck. In the administration of this injection her spine was penetrated in such a manner so that she suffered allegedly permanent paralysis of both legs and of the left arm. Astra Pharmaceutical Products was joined as additional defendant.
It would seem that appellant would be out of court solely by reason of the exclusion of damage testimony, however, appellant argues that the evidence inherent in the proof of liability that the injection caused paralysis is admissible on the issue of liability, regardless of the effect of the order of November 22,1974, and that the evidence of paralysis resulting from improper medical treatment thus having been admitted, the jury is entitled to award damages without receiving any additional testimony on the damage issue.
I agree that the order of October 15, 1975, containing the cryptic notation “Discovery to remain open” is not ideally suited to clear interpretation, but under the circumstances here presented, I would give appellant the benefit of its widest interpretation. As such, it is permission to appellant to continue the development of her case by the addition of an expert as to the liability aspect of her case. Further, since the trial has been delayed and the appellees have had the report for some time, the purposes of the local rule, relied upon originally for the striking, have been served. See Coffey v. Faix, 426 Pa. 421, 233 A.2d 229 (1967). I would allow the expert to testify.
I would quash the appeal as untimely as it pertains to the order of November 22, 1974, and reverse as to the order of October 14, 1976, in regard to the striking of the expert’s report.
. The writer of this opinion signed the order of November 29, 1976 granting this appeal.
. I do not see the need of passing on this interesting theory at this time, electing, as does the majority, to at least meet that issue later.
Reference
- Full Case Name
- Lillie MILLER, Appellant, v. E. C. KRUG, III, M.D., and Columbia Hospital of Pittsburgh, a Corporation v. ASTRA PHARMACEUTICAL PRODUCTS, INC.
- Cited By
- 7 cases
- Status
- Published