J-A29042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROSEMARY G. GASIOR, INDIVIDUALLY 

AND AS EXECUTRIX OF THE ESTATE OF 

JOSEPH M. GASIOR, DECEASED

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

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v. :

:

ALBERT C. PARULIS, M.D.; SYED R. 

GILANI, M.D.; UPMC, a/k/a 

UNIVERSITY OF PITTSBURGH MEDICAL 

CENTER; UPMC BRADDOCK, a/k/a 

UNIVERSITY OF PITTSBURGH MEDICAL 

CENTER-BRADDOCK; UPMC 

EMERGENCY MEDICINE, INC., d/b/a 

EMERGENCY RESOURCE MANAGEMENT, 

INC.; AND UPMC PRESBYTERIAN 

SHADYSIDE, a/k/a UPMC SHADYSIDE

:

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:

APPEAL OF: ROSEMARY G. GASIOR : No. 665 WDA 2016

Appeal from the Order entered April 6, 2016

in the Court of Common Pleas of Allegheny County,

Civil Division, No(s): GD-12-3028

BEFORE: DUBOW, MOULTON and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 29, 2016

Rosemary G. Gasior (“Gasior”), individually and as executrix of the 

Estate of Joseph M. Gasior, deceased, appeals from the April 6, 2016 Order 

granting the Motion to Dismiss filed by the above-captioned defendants 

(“Defendants”), and dismissing the action with prejudice. We affirm. 

The trial court set forth the relevant factual and procedural history, 

which we adopt for the purpose of this appeal. See Trial Court Opinion, 

6/10/16, at 1-2. 

On appeal, Gasior raises the following issues for our review:
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1. Whether the trial court committed reversible error and abused 

its discretion by ruling that Defendants’ Motion was “not 

opposed” by [Gasior] when[,] in fact[,] it was opposed by 

[Gasior’s] attorney at the hearing[,] and in [Gasior’s] 

Response in Opposition[?]

2. Whether the trial court abused its discretion by misstating the 

facts on the record[,] and exercising judgment that was 

manifestly unreasonable and/or the result of prejudice and 

bias[?]

Brief for Appellant at 7-8. 

“On appeal, we will not reverse a trial court’s dismissal of an action 

with prejudice absent an abuse of discretion.” Stock v. Arnott, 608 A.2d 

552, 554 (Pa. Super. 1992). “An abuse of discretion is not merely an error 

in judgment; rather it occurs when the law is overridden or misapplied, or 

when the judgment exercised is manifestly unreasonable or the result of 

partiality, prejudice, bias or ill will.” Id. 

In her first issue, Gasior contends that, when counsel for Defendants 

presented the Motion to Dismiss to the Honorable Ronald Folino (“Judge 

Folino”), her counsel was “waiting at the back of the courtroom to approach 

the bench with her Response in Opposition.” Brief for Appellant at 20. 

Gasior asserts that “[Judge Folino] may have written ‘not opposed’ on the 

[O]rder before he saw [Gasior’s] counsel approaching the bench, and if so, 

could easily have crossed out his notation and conducted the hearing with 

both parties present.” Id. at 20-21. Gasior claims that Judge Folino abused 

his discretion by choosing to defer his authority to Defendants, rather than 

exercising his judicial authority independently. Id. at 21. Gasior argues 
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that Judge Folino’s determination that the Motion was unopposed “was 

clearly based upon an erroneous finding of material fact.” Id. Gasior 

contends that her counsel was “less than 15 minutes late due to a medical 

emergency,” and “[Judge Folino] should not have dismissed [her] entire 

case on the basis of a few minutes delay.” Id. at 22.1

In its Opinion, the trial court addressed Gasior’s first issue, and 

determined that it was factually incorrect and lacked merit. See Trial Court 

Opinion, 6/10/16, at 2-4. We discern no abuse of discretion by the trial 

court, and affirm on this basis as to Gasior’s first issue. See id.

In her second issue, Gasior contends that Judge Folino’s June 10, 2016 

Opinion “contains numerous misstatements of fact concerning the brief 

events of April 6, 2016.” Brief for Appellant at 23. Gasior claims that 

numerous witnesses, as well as “her [counsel’s] time-stamped parking ticket 

and [the] time-stamped Response in Opposition[,] also verify the times of 

 

1 Gasior also challenges Judge Folino’s subsequent ruling that she could file 

her Response in Opposition if Defendants raised no objection to such filing. 

See Brief for Appellant at 21-22. As this issue was not raised in Gasior’s 

Statement of Questions Presented, nor set forth in a separate discussion in 

the Argument section of her brief, we decline to address it. See Pa.R.A.P. 

2116(a) (providing that “[n]o question will be considered unless it is stated 

in the statement of questions involved or is fairly suggested thereby.”); 

2119(a) (providing that “[t]he argument shall be divided into as many parts 

as there are questions to be argued; and shall have at the head of each 

part--in distinctive type or in type distinctively displayed--the particular point 

treated therein, followed by such discussion and citation of authorities as are 

deemed pertinent.”).
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her [counsel’s] arrival and departure ....”2 Id. Finally, Gasior argues that 

Judge Folino absued his discretion by permitting the Honorable Christine 

Ward (“Judge Ward”) to be involved in her case, as Judge Ward had a 

conflict of interest due to her prior employment with the law firm 

representing Defendants in this case. Id. at 24.3

The Argument section of Gasior’s brief, as pertaining to her second 

issue, is completely lacking of any citation to legal authority in support of her 

argument, and fails to provide any analysis of pertinent authority. 

Accordingly, we are constrained to conclude that Gasior’s second issue is 

waived. See Papadoplos v. Schmidt, Ronca & Kramer, PC., 21 A.3d 

1216, 1229 (Pa. Super. 2011) (finding waiver where the appellants 

advanced only a cursory argument in support of their issue, and failed to cite 

to any pertinent legal authority).

4

 

2 Notably, the record is devoid of any witness statements or copies of the 

alleged time-stamped parking ticket. This Court may not consider evidence 

that is not included in the certified record. See Ruspi v. Glatz, 69 A.3d 

680, 691 (Pa. Super. 2013).

3 Additionally, Gasior challenges delays and periods of inactivity in the case. 

See Brief for Appellant at 23-24. However, as these issues were not raised 

in her Concise Statement, she failed to preserve them for our review. See

Korman Commercial Props. v. Furniture.com, LLC, 81 A.3d 97, 102 (Pa. 

Super. 2013) (deeming as waived an issue that was not raised and 

preserved properly before the lower court in the concise statement); see 

also Pa.R.A.P. 302(a) (providing that issues not raised in the lower court are 

waived and cannot be raised for the first time on appeal).

4 Even if we had not found waiver of Gasior’s second issue, we would have 

determined that the issue lacks merit for the reasons set forth by the trial 

court in its Opinion. See Trial Court Opinion, 6/10/16, at 4-5. 
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/2016
I Pursuant to Allegheny County Loca] Ru]e 208.3(a)(3), motions in any case that has been iisted for trial on a 

published trial list shall be presented to the Calendar Control Judge. 

1 

I. 

On April 6, 2016, while I was sitting in my capacity as Calendar Control Judge, 1 

Defendant presented to me a "Motion to Dismiss," requesting that I dismiss the instant action 

for numerous reasons set forth in the Motion. After studying the Motion, and listening to 

argument in support of the Motion by counsel for Defendant, I signed the proposed Order and 

dismissed the action. I further noted on the Order that no one appeared on behalf of Plaintiff to 

oppose the Motion. 

Plaintiff has appealed from my Order of April 6, 2016 that dismissed the instant action 

with prejudice. 

FOLINO,J. 

MEMORANDUM 

CNIL DNISION 

No.GD 12-003028 

Defendants. 

ALBERT C. PARULIS, M.D.; SYED R. 

Gll..ANI, M.D.; UPMC a/kJa UNNERSITY 

OF PITISBURGH MEDICAL CENTER; 

UPMCBRADDOCK,a/k/aUNNERSITY 

OF PITTSBURGH MEDICAL CENTERBRADDOCK; UPMC EMERGENCY 

lvlEDICINE, INC., d/b/a EfvIBRGENCY 

RESOURCE MANAGEMENT, INC.; and 

UPMC PRESBYTERIAN SHADYSIDE, 

a/k/a/ UPMC SHADYSIDE, 

vs. 

Plaintiff, 

ROSEMARY G. GASIOR, individually and ) 

as Executrix of the EST A TE OF JOSEPH M. ) 

GASIOR, Deceased, ) 

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IN THE COURT OF COMMON PLEAS OF AI.LEGHENY COUNTY, PENNSYLVANIA 

GD 12-003028 Circulated 12/06/2016 10:52 AM
2 

In support of this assignment of error, Plaintiff argues that "this court erred when it 

declared Defendant's Motion to Dismiss was 'not opposed,' since Plaintiff' s counsel was 

present in the courtroom on April 6, 2016 to oppose the motion while Defendant's counsel was 

still in the courtroom, having arrived only a few minutes late due to a family medical 

emergency, and the court reporter had not yet arrived." 

Plaintiff's first assignment of error is: "I. Defendants Motion to Dismiss was in fact 

opposed by Plaintiff." 

Thereafter, Plaintiff never scheduled a motion for reconsideration before me, but 

approximately one month later (on May 6, 2016) filed an appeal to the Superior Court of 

Pennsylvania. I then entered an Order dated May 10, 2016, directing Plaintiff to file a Concise 

Statement of Matters Complained of on Appeal. On May 31, 2016, Plaintiff then filed her 

Statement of Matters; there she sets forth three categories of errors. 

My law clerk advised me that he had checked the courtroom and the adjoining hallways 

to see if the opposing attorney (Defendants' attorney) might still be present, but he was 

nowhere to be found. I told my staff person to please inform Plaintiff' s counsel :hat she had 

missed motions court, and that I had already signed an order in the case. 

On this particular day, April 6, 2016, I heard all of the motions that all of the parties in 

Allegheny County had scheduled to present before me that day, and then I adjourned motions 

court and retired to chambers to do other work. Sometime later that morning, I was advised by 

a member of my staff that Plaintiff's attorney, Marianne F. Gasior, had now arrived to oppose 

one of the motions that had been presented to me earlier. 

Calendar Control motions are heard at 9:30 a.m. on dates set forth on a previously 

published schedule. I never know how many motions will be presented to me on any particular 

day as the local rules do not require the moving parties to notify the Court ahead of time; the 

rules simply require the moving parties to provide opposing parties ten days advance notice of 

the intended presentation. 

GD 12-003028 
3 

2 Plaintiff states at paragraph 4 of her Statement of Matters that she filed her Response in Opposition on April 6, 20 J 6 

at 9:53 a.m. 

Paragraphs 5 and 6 of Plaintiffs Concise Statement are incorrect as they seem to imply 

that I was still on the bench and that motions court was still in session when Plaintiff' s counsel 

Further, Plaintiff's statement stated that "the court reporter had not yet arrived" is also 

incorrect in that it implies that a court reporter later arrived to transcribe motions court 

arguments. No court reporter later arrived. The Court does not transcribe motions court 

arguments as no testimony is taken and no evidence is presented. Of course any party may 

arrange to have a court reporter present at any court proceeding (such as an argument or 

conference) but no party had arranged for a court reporter on April 6, 2016; thus, no court 

reporter ever arrived to transcribe motions court arguments. 

Of course, I have no knowledge of Plaintiff's family emergency that delayed her. 

However, she never informed us of any emergency. Had she called my chambers prior to 

motions court and advised my staff that she was running approximately one-half hour late,2 we 

would have done everything feasible to accommodate her. 

Furthermore, Defendant's counsel was not present in the courtroom when Plaintiff 

presented herself on April 6, 2016. In fact, my law clerk checked the courtroom and the 

surrounding hallways outside the courtroom. But counsel for Defendant was, understandably, 

nowhere to be found as motions court had been adjourned and I was no longer on the bench. 

cases. 

There are several responses to Plaintiff's argument. First it is factually incorrect in 

every material respect. The reason I wrote "not opposed" on my Order was because no one 

appeared to oppose the motion when it was called for argument. Plaintiff's counsel was not in 

the courtroom at any time during the period when motions court was in session on April 6, 

2016. She was not present when her case was called for argument, and she was not present 

when any of the other cases presented that day were called for argument. She did not arrive 

until after motions court had been adjourned and I had retired to chambers to attend to other 

GD 12-003028 
4 

In early January 2016, I arranged for Judge Ward to sit as Calendar Control Judge on 

February 19, 2016 and February 22, 2016, I obviously had no idea what motions might be 

brought before her. If Plaintiff believed Judge Ward had a conflict, Plaintiff should have 

requested recusal. 

Moreover, it was not error for me to assign another judge to hear motions in my 

absence. Indeed, it is one of my duties as Administrative Judge of the Civil Division. (See 

Local Rule 1, "Each Division of the Court is managed by an Administrative Judge who is 

appointed by the Supreme Court of Pennsylvania.") 

Plaintiff argues that I erred when I "permitted Judge Ward to substitute for [me] as 

Calendar Control Judge in this matter, since Judge Ward had significant conflicts of interest." 

There are several responses to this. First, Plaintiff seems to imply that Judge Ward should have 

recused herself, yet there is no indication on the docket that Plaintiff ever requested recusal. 

Second, while Plaintiff appears to be unhappy with Judge Ward's Order of February 19, 2016, 

Plaintiff has not appealed from that Order. 

As I was scheduled to be on vacation the latter part of February 2016, I had arranged for 

Judge Ward to hear Calendar Control motions on February 19, 2016 and February 22, 2016, so 

that Allegheny County litigants would not have to wait until I returned from vacation to have 

their motions argued. This schedule was published in the Pittsburgh Legal Journal, twice a 

week, beginning on January 18, 2016, and was also set forth on the Allegheny County 

Common Pleas Court web site, and on the bulletin board outside my courtroom. 

II. 

Plaintiff's second assignment of error is that "the Trial Court had a Conflict of Interest." 

This assignment of error is directed, for the most part, at the Honorable Christine A. Ward of 

this Court, and an Order she entered on February 19, 2016. 

arrived for court. As noted above, motions court had concluded, I was in my chambers, and 

opposing counsel was no longer available. 

GD 12-003028 
5 

For these reasons, it is respectfully submitted that my Order of April 6, 2016 should be 

affirmed. 

Finally, Plaintiff argues at paragraphs 11 and 12 of her Statement of Matters that I erred 

in "permitting Defendant's counsel to file their Pre-Trial Statement approximately one-year 

late." Once again, it is very difficult to understand Plaintiff's argument. First, I did not sign any 

such order permitting Defendant to file a one-year late Pre-Trial Statement. Second, if Plaintiff 

is implying that I should have struck Defendant's Pre-Trial Statement, Plaintiff never presented 

such a motion to strike. Third, Plaintiff does not say how she was prejudiced by any late filing 

(if it was late). Fourth, I do not see how a late-filed pre-trial statement relates in any way to my 

Order granting Defendant's Motion to Dismiss, the Order of April 6, 2016, that is the subject of 

Plaintiff' s instant appeal. 

In support of this assignment, Plaintiff first argues, at paragraph 16, that "the trial court 

erred in refusing to allow Plaintiff's counsel to file her response in opposition a few minutes 

late." I do not understand what Plaintiff is talking about here. First, court papers are not "filed" 

with the Calendar Control Judge, they are filed with the Department of Court Records, which 

maintains the Civil Division filings. Second, I never "refused to allow" Plaintiff to file her 

court paper. In fact, as noted above, when Plaintiff's counsel arrived, I was no longer on the 

bench, as motions court had been adjourned. Third, Plaintiff did, in fact, file her court papers. 

As Plaintiff herself notes, the Department of Court Records stamped the Response in 

Opposition as filed on April 6, 2016 at 9:53 a.m. 

Plaintiff" s third and final assignment of error is: "The trial court demonstrated bias and 

abused its discretion." 

Plaintiff's remaining arguments set forth at paragraphs 7 thru 10 of her Statement of 

Matters are difficult to understand. Plaintiff seems to imply that Judge Ward erred in failing to 

recuse herself, yet I see no indication on the court docket that Plaintiff even made such a 

request of Judge Ward. 

GD 12-003028