J-A13016-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

ANN MARIE SWATT, PERSONAL 

REPRESENTATIVE OF THE ESTATE OF 

MADLYN BLUSIUS 

Appellant

v.

NOTTINGHAM VILLAGE, 

NOTTINGHAM MANAGEMENT, LLC, 

NOTTINGHAM VILLAGE RETIREMENT 

CENTER, LLC, NOTTINGHAM VILLAGE 

HEALTHCARE SERVICES, INC., 

LEEDS HEALTHCARE SERVICES, 

INC., SYNERGY GRANDVIEW 

PHARMACY, LLC AND FREDERICK 

KESSLER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1506 MDA 2021

Appeal from the Order Entered October 12, 2021

In the Court of Common Pleas of Northumberland County Civil Division at 

No(s): CV-2014-00830

ANN MARIE SWATT, PERSONAL 

REPRESENTATIVE OF THE ESTATE OF 

MADLYN BLUSIUS 

Appellant

v.

NOTTINGHAM VILLAGE, 

NOTTINGHAM MANAGEMENT, LLC, 

NOTTINGHAM VILLAGE RETIREMENT 

CENTER, LLC, NOTTINGHAM VILLAGE 

HEALTHCARE SERVICES, INC., AND 

LEEDS HEALTHCARE SERVICES, INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1507 MDA 2021

Appeal from the Order Dated October 12, 2021
J-A13016-23

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In the Court of Common Pleas of Northumberland County Civil Division at 

No(s): CV-2014-00005

BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED: APRIL 26, 2024

Ann Marie Swatt, Administratrix1 of the Estate of Madlyn Blusius, 

Deceased, appeals from the order, entered in the Court of Common Pleas of 

Northumberland County, granting summary judgment in favor of Nottingham 

Village, Nottingham Management, LLC, Nottingham Village Retirement Center, 

LLC, Nottingham Village Healthcare Services, Inc., Leeds Healthcare Services, 

Inc., and Frederick Kessler (collectively, “Nottingham”).2 Upon careful 

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* Former Justice specially assigned to the Superior Court.

1 The original plaintiff in this matter was Elizabeth Jane Swatt, who was 

appointed as administratrix pro tem of the estate by order of the Franklin 

County Court of Common Pleas on April 11, 2014. By trial court order dated 

February 24, 2020, Ann Marie Swatt, daughter of Elizabeth Swatt, was 

substituted as plaintiff upon being appointed administratrix of the estate and

is the appellant herein. To avoid confusion, we will use the term 

“Administratrix” to refer to both Ann Marie and Elizabeth Swatt.

2 On July 5, 2022, Synergy Grandview Pharmacy, Inc. (“Synergy”), a 

defendant in the Blusius III matter, see discussion infra, filed a motion to 

intervene for the limited purpose of moving to quash any putative appeal as 

to Synergy. As discussed infra, in 2016, the trial court entered judgment on 

the pleadings in favor of Synergy. Thereafter, “Synergy was removed from 

the caption of the case, and Synergy and its counsel received no notices from 

the trial court and virtually no correspondence relating to the action for 

approximately six years.” Motion to Intervene, 7/5/22, at ¶ 11. After the 

instant appeal was filed, Nottingham’s counsel reached out to counsel for 

Synergy to advise that Administratrix had included in her brief a claim

regarding the trial court’s order granting Synergy judgment on the pleadings. 

Accordingly, Synergy sought intervention to file an application to quash “any 

(Footnote Continued Next Page)
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consideration, we affirm in part, reverse in part, and remand for further 

proceedings.

This matter has a long and tortured procedural history involving three 

separate actions3 and litigation lasting eight years. The claims all arise from 

the death of Madlyn Blusius (“Decedent”) on January 5, 2012, while residing 

at Nottingham Village Retirement Center, and involve allegations of 

negligence and breach of contract. The first action (“Blusius I”) was initiated

by the then-Executrix of the Decedent’s Will, Janine Hawbaker, Esquire, on 

January 2, 2014, via the filing of a writ of summons at docket number CV2014-05. The writ of summons stated that the civil action sounded in medical 

professional liability against Nottingham. On April 15, 2014, Executrix filed a 

motion to enlarge time to file a complaint at the Blusius I docket number, to 

which Nottingham consented. On May 13, 2014, within the time allotted by 

the court, Elizabeth Jane Swatt, having by then been appointed as 

administratrix pro tem of the Estate, filed a complaint alleging wrongful death, 

survival, and breach of contract claims. That complaint, however, was 

docketed at a new number—the Blusius III docket number. See discussion

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putative appeal regarding the 2016 entry of judgment” in its favor. Id. at ¶ 

19. On August 4, 2022, this Court entered an order, inter alia, directing this 

Court’s Prothonotary, as well as the Prothonotary of Northumberland County, 

to correct their dockets to reflect that Synergy is an appellee/defendant and 

directed Synergy to raise the issue of quashal in its appellee’s brief. Synergy 

has submitted its brief and addressed, inter alia, the issue of quashal therein. 

3 As will become clear, Administratrix argues that at least two of these three 

actions should, in fact, be considered one action.
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infra. On May 29, 2014, the trial court entered an order dismissing the 

Blusius I action for failure to file a complaint. More than seven years after 

the court dismissed that action, Administratrix filed a notice of appeal at the 

Blusius I docket number. That appeal was docketed in this Court at 1507 

MDA 2021.

On January 6, 2014, after the filing of the initial writ of summons in 

Blusius I, but prior to the filing of Blusius III, Elizabeth Jane Swatt and Ann 

Marie Swatt, Decedent’s sister and niece, respectively, purportedly acting as 

self-described “trustees ad litem” for the estate, filed a second action, at 

docket number CV-2014-25 (“Blusius II”), alleging wrongful death. By order 

dated March 21, 2014, the trial court dismissed this complaint on preliminary 

objections for lack of capacity to sue.

4

 Blusius II is not at issue in these 

appeals. 

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4 The Swatts styled themselves as “trustees ad litem” pursuant to Pa.R.C.P. 

2202, which provides as follows:

Rule 2202. Parties Entitled to Bring Action for Wrongful Death

Currentness

(a) Except as otherwise provided in clause (b) of this rule, an 

action for wrongful death shall be brought only by the personal 

representative of the decedent for the benefit of those persons 

entitled by law to recover damages for such wrongful death.

(b) If no action for wrongful death has been brought within six 

months after the death of the decedent, the action may be brought 

by the personal representative or by any person entitled by law to 

recover damages in such action as trustee ad litem on behalf of

all persons entitled to share in the damages.

(Footnote Continued Next Page)
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Finally, on May 13, 2014, Elizabeth Swatt, in her capacity as 

Administratrix pro tem, filed a complaint (“Blusius III”), assigned docket 

number CV-2014-830. This complaint alleged counts of wrongful death, 

survival, and breach of contract against Nottingham and an entity identified 

as “Synergy Health Systems.” Administratrix subsequently filed three 

amended complaints on June 30, 2014, January 6, 2015, and January 29, 

2015. In response to the third amended complaint, Synergy Grandview 

Pharmacy, Inc. (“Synergy”), filed preliminary objections. The court granted 

those preliminary objections, in part, and denied them in part. Specifically, 

the court dismissed, with prejudice, Administratrix’s breach of contract claim 

against Synergy. Thus, the only remaining claim against Synergy was the 

survival/professional negligence claim. 

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(c) While an action is pending it shall operate as a bar against the 

bringing of any other action for such wrongful death.

Pa.R.C.P. 2202. Pursuant to 42 Pa.C.S.A. § 8301, the persons entitled by law 

to recover damages for wrongful death are “the spouse, children[,] or parents 

of the deceased.” 42 Pa.C.S.A. § 8301(b). In dismissing the action, the trial 

court found that (1) the Swatts, as sister and niece of the decedent, lacked 

capacity to bring a wrongful death suit under section 8301(b), and (2) the 

existing suit filed by the then-Executrix (Blusius I) precluded the filing of a 

second action pursuant to Pa.R.C.P. 1028(a)(6) (pendency of prior action). 

See also Pa.R.C.P. 2202(c) (pending action operates as bar to other action 

for wrongful death).
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Both Nottingham5 and Synergy filed answers and new matter to the 

third amended complaint, to which Administratrix responded. In their new 

matter, both defendants raised, inter alia, the statute of limitations as an 

affirmative defense. On July 15, 2015, Synergy filed a motion for judgment 

on the pleadings on the basis that the remaining claim against it—professional 

negligence—was time-barred. The trial court granted Administratrix a limited 

period of discovery relative to the statute of limitations issue. Following 

discovery, briefing, and oral argument, the trial court granted Synergy’s 

motion on April 8, 2016, finding that the claim against it was not asserted 

until May 13, 2014, more than two years after Decedent’s death.6 On May 

23, 2016, six weeks after the court entered judgment on the pleadings in favor 

of Synergy, Administratrix filed a “Motion for Reconsideration or, Alternatively, 

for Finality.” The parties submitted court-ordered briefs on the “finality” issue; 

however, no ruling was ever issued.7

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5 See discussion of issue regarding Nottingham’s filing of its answer and new 

matter, infra.

6 The statute of limitations on “[a]n action to recover damages for injuries to 

the person or for the death of an individual caused by the wrongful act or 

neglect or unlawful violence or negligence of another” is two years. 42 

Pa.C.S.A. § 5524(2). “[A] survival action is not an independent cause of 

action, but a continuation of a cause of action that accrued to the decedent, 

and the latest time when the statute of limitations runs is at the decedent’s 

death.” Dubose v. Quinlan, 173 A.3d 634, 645 (Pa. 2017).

7 As Synergy correctly noted in its brief in opposition to Administratrix’s motion

for reconsideration/determination of finality, the motion for finality—filed 45 

days after the entry of the order granting judgment on the pleadings—was 

(Footnote Continued Next Page)
J-A13016-23

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After approximately five years of discovery, Nottingham filed a motion 

for summary judgment on June 23, 2020. On September 8, 2020, 

Administratrix filed a response to Nottingham’s motion for summary 

judgment, as well as her own motion to correct the filing date of the action, 

nunc pro tunc, in which Administratrix sought to have the filing date of the 

third amended complaint in Blusius III relate back to the filing date of the 

writ of summons in Blusius I, the action previously dismissed for lack of 

prosecution. On September 9, 2020, the trial court issued an order scheduling 

oral argument on Nottingham’s summary judgment motion for November 24, 

2020. Despite not yet having heard oral argument, on October 23, 2020, the 

court issued an order denying Nottingham’s motion for summary judgment. 

That same day, the court issued another order granting Administratrix’s 

motion to correct the filing date of the third amended complaint. This order 

was issued before Nottingham’s response to that motion was filed of record. 

The docket does not reflect that either party was notified of the orders issued 

on October 23, 2020. See Docket (Blusius III), at 9.

Notwithstanding its prior issuance of an order denying summary 

judgment, on November 20, 2020, the trial court issued an order continuing 

____________________________________________

untimely filed. See Brickman Group, Ltd. v. CGU Ins. Co., 829 A.2d 1160, 

1163-65 (Pa. Super. 2003) (interpreting prior version of Pa.R.A.P. 341(c)(1) 

to require application for determination of finality be filed within 30 days of 

entry of order). Similarly, “the trial court may consider a motion for 

reconsideration only if the motion for reconsideration is filed within thirty days 

of the entry of the disputed order.” Haines v. Jones, 830 A.2d 579, 584 (Pa. 

Super. 2003); see also 42 Pa.C.S.A. § 5505 (court may modify or rescind 

order within 30 days of entry).
J-A13016-23

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the previously scheduled November 24, 2020, oral argument on Nottingham’s 

summary judgment motion. When the court failed to reschedule the 

argument, Nottingham filed a praecipe to relist oral argument on July 6, 2021. 

On July 23, 2021, the court issued an order rescheduling oral argument for 

September 1, 2021.

Following an “unexpected series of events,” on or about August 11, 

2021, Administratrix became aware of the two orders entered by the court on 

October 23, 2020. Nottingham’s Motion for Reconsideration of the Court’s 

Orders Dated October 23, 2020, 8/20/21, at ¶ 29. She alerted her counsel, 

who in turn forwarded copies of the orders to counsel for Nottingham. See 

id. at ¶ 31. As a result, Nottingham filed a motion for reconsideration of those 

orders on August 20, 2021, seeking to have the orders vacated and stricken 

and to move forward with the oral argument scheduled for September 1, 2021. 

Following a response by Administratrix, on September 21, 2021, the court 

granted reconsideration and struck the orders.

On October 12, 2021, the court entered an order granting summary 

judgment in favor of Nottingham, holding that Administratrix’s negligence 

claims were barred by the statute of limitations and her breach of contract 

claims were barred by the “gist of the action” doctrine. See Trial Court 

Opinion, 10/12/21, at 3-5 (unpaginated). On November 9, 2021, 

Administratrix filed a motion for reconsideration, which the court denied on 

December 2, 2021. On November 10, 2021, Administratrix filed two notices 
J-A13016-23

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of appeal, one at the Blusius I docket number8 and one at the Blusius III

docket number, both challenging the October 12, 2021 order in the Blusius 

III matter granting summary judgment in favor of Nottingham.9 

Administratrix raises the following claims for our review:

I. Did the trial court err or abuse its discretion in ruling that the 

[Administratrix’s] survival action was time-barred under the 

statute of limitations when the Decedent died on January 5, 

2012[,] and the [former Executrix] filed a praecipe for writ of 

summons on January 2, 2014, and when the trial court granted 

the [former Executrix] leave to file an amended complaint within 

that same docket, but the Northumberland Prothonotary, through 

no fault of the Estate, filed the [] complaint in a new docket?

II. Did the trial court err or abuse its discretion in failing to toll 

the statute of limitations when the Defendants in this matter failed 

to produce requested documents during the initial two-year

statutory window, and when the Defendants also misle[d

Administratrix] as to the identity of the corporate entity that 

administered pharmaceutical drugs that contributed to the 

Decedent’s death?

III. Did the trial court err or abuse its discretion in dismissing 

[Synergy] from suit due to the alleged passage of the statute of

limitations when the Estate did name “Synergy” in its initial, 

timely-filed pleadings, but simply got the corporate name wrong, 

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8 As noted above, on May 29, 2014, the trial court entered an order dismissing 

the action at the Blusius I docket number for failure to file a complaint. 

Administratrix did not file a petition to open or strike the judgment of non 

pros. “Any appeal related to a judgment of non pros lies not from the 

judgment itself, but from the denial of a petition to open or strike.” Madrid 

v. Alpine Mountain Corp., 24 A.3d 380, 382 (Pa. Super. 2011). As the 

failure to file such a petition operates as a waiver of all rights to address the 

issues concerning the underlying judgment of non pros, see id., we quash the 

appeal filed at docket number 1507 EDA 2021.

9 This Court consolidated the appeals in response to an application filed by 

Administratrix on March 16, 2022.
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and when the Defendants misle[d Administratrix] as to the true 

and correct name of the intended corporate defendant?[10]

IV. Did the trial court err or abuse its discretion when it ruled that 

the gist of the action doctrine bars the [Administratrix’s] breach 

of contract claim when the contract at issue memorializes specific 

promises to provide nourishment and care, which promises were

allegedly breached, and when the contract specifies a certain 

dollar sum for such promises, which [Decedent] paid?

Brief of Appellant, at 3-4 (unnecessary capitalization omitted).

Administratrix’s first two claims allege that the trial court erroneously 

ruled that her negligence claims against Nottingham were time-barred and, 

accordingly, improperly granted summary judgment in favor of Nottingham.

In reviewing 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: [A]n appellate court may 

reverse the entry of 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 review the record in the light most 

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10 This claim may be summarily disposed of by noting that Administratrix failed 

to include in her notice of appeal the April 8, 2016, trial court order granting 

judgment on the pleadings in favor of Synergy. That order became final when 

the court disposed of the remaining claims and parties in its October 12, 2021,

order granting Nottingham’s motion for summary judgment. See Weible v. 

Allied Signal, Inc., 963 A.2d 521, 524–25 (Pa. Super. 2008) (permitting 

appeal where trial court order declaring case settled as to all remaining parties 

rendered prior grants of summary judgment final for purposes of appeal). 

Pennsylvania Rule of Appellate Procedure 904 requires a petitioner to 

specifically identify in her notice of appeal the order(s) from which she wishes 

to appeal. See Pa.R.A.P. 904(a). Accordingly, Administratrix’s failure to 

identify the April 8, 2016, order in her notice of appeal waives any claims

related thereto. See Jordan v. Pennsylvania State University, 276 A.3d 

751, 761 (Pa. Super. 2022) (appellant’s failure to appeal trial court’s order 

denying petition for relief from judgment of non pros renders all claims related 

to that order waived).
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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 [standard of] review is de novo.

Caterpillar Fin. Servs. Corp. v. Get ’Er Done Drilling, Inc., 286 A.3d 302, 

305–06 (Pa. Super. 2022).

The awarding of summary judgment with respect to an issue of 

fact is supportable only when the non-moving party has failed to 

adduce evidence from which a factfinder could find in his/her 

favor. Washington v. Baxter, [] 719 A.2d 733 ([Pa.] 1998).

Stated alternatively, where there is evidence that would allow a 

jury to find in the non-moving party’s favor, summary judgment 

should be denied and the case should proceed to trial. Moreover, 

the evidence must be viewed in a light most favoring the nonmovant giving that party the benefit of credibility determinations 

and any inferences deducible from the evidence. Young v. 

Commonwealth, [] 744 A.2d 1276 ([Pa.] 2000). Thus, in the 

present case, we must examine the evidence to determine 

whether a reasonable factfinder could conclude that Appellants’

action was instituted in a timely fashion.

Griffin v. Cent. Sprinkler Corp., 823 A.2d 191, 199–200 (Pa. Super. 2003).

In responding to a summary judgment motion, 

a non-moving party must adduce sufficient evidence on an issue 

essential to his case and on which he bears the burden of proof 

such that a jury could return a verdict in his favor. Failure to 

adduce this evidence establishes that there is no genuine issue of 

material fact and the moving party is entitled to judgment as a 

matter of law.

Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996).

Preliminarily, we address Administratrix’s claim that Nottingham waived 

the statute of limitations defense by failing to file an answer and new matter. 

Under Pa.R.C.P. 1030(a) and 1032(a), if the statute of limitations is not pled 

as a new matter, the right to assert the defense is waived. See Pa.R.C.P. 
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1030(a), 1032(a); Holmes v. Lankenau Hosp., 627 A.2d 763, 765 (Pa. 

Super. 1993). However, in certain circumstances, courts are not required to 

strictly enforce the rule and will allow a defendant to assert the defense for 

the first time in a motion for summary judgment. See Holmes, 627 A.2d at 

766. Where the rights of the plaintiff are not prejudiced, the defendant’s 

failure to properly plead the defense as new matter under Rule 1030 does not 

necessarily equate to waiver thereof; rather, the court has discretion to allow 

or deny the defense. Id. at 766. A plaintiff is not prejudiced by defendant’s 

failure to assert a defense where, prior to the defendant’s assertion of the 

defense in its motion, the plaintiff was already subjectively aware of that 

defense. See Blumenstock v. Gibson, 811 A.2d 1029, 1039-40 (Pa. Super. 

2002). The rules of civil procedure must be liberally construed so that actions 

are resolved in a just, speedy, and inexpensive manner consistent with 

Pa.R.C.P. No. 126.11 Holmes, 627 A.2d at 765–66.

Here, Nottingham sent its answer and new matter to the third amended 

complaint to the Northumberland County Prothonotary via FedEx overnight 

delivery on April 1, 2015. See Nottingham’s Sur Response in Support of 

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11 Pennsylvania Rule of Civil Procedure 126 provides:

The rules shall be liberally construed to secure the just, speedy[,]

and inexpensive determination of every action or proceeding to 

which they are applicable. The court at every stage of any 

such action or proceeding may disregard any error or 

defect of procedure which does not affect the substantial 

rights of the parties.

Pa.R.C.P. 126 (emphasis added).
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Motion for Summary Judgment, 12/3/20, at 2 (unpaginated); id. at Exhibit 

SR-2 (transmittal letter from Nottingham’s counsel to Prothonotary); id. at 

Exhibit SR-3 (first page of Answer and New Matter marked “received” on April 

2, 2015). Nottingham’s answer and new matter were not immediately 

docketed by the Prothonotary.12 However, the pleading was received by 

counsel for Administratrix, who filed an answer to Nottingham’s new matter—

which included a defense based upon the statute of limitations—on April 13, 

2015. Accordingly, Administratrix was not prejudiced by the failure of the 

Prothonotary to timely file Nottingham’s answer and new matter of record, as 

she was well-aware of Nottingham’s statute of limitations defense no later 

than April 13, 2015, when she filed her answer to new matter. See 

Blumenstock, supra. Thus, the trial court did not err in declining to find 

waiver. Accordingly, we turn to Administratrix’s claims on appeal.

Administratrix’s claims require us to determine whether there was 

sufficient evidence from which a factfinder might conclude her negligence 

claims were timely filed. Administratrix’s arguments in this regard are all 

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12 In Nottingham’s sur response in support of summary judgment, 

Nottingham’s counsel stated he eventually determined that the answer and 

new matter was received by the court, but it was directed, not to the 

Prothonotary, but to the trial judge’s chambers. The judge’s secretary 

acknowledged that the “received” stamp, and date and initials affixed thereon, 

were hers. On November 24, 2020, the pleading was docketed with a notation 

that it was “rec[eived] by judge’s chambers 4/2/2015” and “rec[eived] with 

Prothonotary 11/24/2020.” Docket (Blusius III), at 10. We note with some 

irony Administratrix’s argument that she should not be held responsible for 

errors purportedly made by the Prothonotary’s Office, while simultaneously 

arguing that an error by the Prothonotary should be held against Nottingham.
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predicated on her assertion that Blusius I and Blusius III are not, in 

actuality, separate actions, but rather a unitary action, timely commenced via 

writ of summons on January 2, 2014, within two years of the decedent’s death. 

As such, Administratrix asserts that the filing of the complaint (albeit at the 

Blusius III docket number) after the expiration of the statute of limitations 

on her negligence claims is of no moment. 

In support of this assertion, Administratrix points to the fact that, on 

April 15, 2014, the then-Executrix filed a motion to enlarge time to file a 

complaint at the Blusius I docket number. Although Executrix did not file a 

complaint, on May 13, 2014, Administratrix did so in her capacity as 

Administratrix pro tem, within the time allotted by the court in response to 

the Executrix’s motion to enlarge time. According to Administratrix, the timing 

of this filing—within the period of the extension granted by the trial court in 

the Blusius I case—demonstrates that the complaint was intended to 

continue that action rather than initiate a new—by then untimely—action. 

As noted above, the May 13, 2014, complaint was docketed at a new 

number—the Blusius III docket number. Administratrix blames the 

Prothonotary13 for assigning the complaint a new docket number, rather than 

filing it under the Blusius I docket number. She asserts that she “instruct[ed] 

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13 We note with disapproval the inappropriate commentary directed to the 

Northumberland County Prothonotary, as well as to the trial court, included 

by the Administratrix in her brief. See, e.g., Brief of Appellant, at 69 (stating 

Administratrix has “lost faith and trust” in the prothonotary and accusing trial 

court of “copy[ing]-and-past[ing]” from Nottingham’s summary judgment 

brief).
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the Prothonotary to file it in the correct docket at CV-2014-05[,]” but the 

Prothonotary “elected to docket it” at a new number. Brief of Appellant, at 

16-17. 

As noted above, the failure by a non-moving party to adduce sufficient 

evidence on an issue essential to her case and on which she bears the burden 

of proof establishes that there is no genuine issue of material fact and entitles 

the moving party to judgment as a matter of law. Ertel, 674 A.2d at 1042. 

Here, in order to defeat summary judgment on the issue of the statute of 

limitations, Administratrix bore the burden of proving that the filing of her May 

13, 2014, complaint at a new docket number was simply an administrative 

error on the part of the Prothonotary—a “breakdown in the court’s 

operations”—and not the fault of Administratrix or her counsel. See 2303 

Bainbridge, LLC v. Steel River Bldg. Sys., Inc., 239 A.3d 1107, 1117 (Pa. 

Super. 2020) (party’s filing error excusable when it is result of breakdown in 

court’s operations). In response to Nottingham’s statute of limitations claim, 

Administratrix averred that her “initial [c]omplaint was erroneously docketed 

under CV-2014-25, despite plaintiff’s intentions and attempts to file 

said [c]omplaint under number CV-2014-5.” Plaintiff’s Opposition to 

Nottingham’s Motion for Summary Judgment, 9/8/20, at ¶ 3 (emphasis 

added). However, Administratrix adduced no evidence regarding her 

“intentions and attempts” to file her complaint under the pre-existing docket 
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number.

14

 She attached no affidavit from prior counsel, or from anyone in the 

Prothonotary’s Office, that would create an issue of fact as to the timeliness 

of her (facially untimely) filing.

15

 Because Administratrix did not adduce any 

evidence supporting her assertion that a breakdown in court operations 

caused her complaint to be filed under the wrong docket number, there was 

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14 Our review of the record reveals that, rather than including the Blusius I

docket number in the caption of the May 13, 2014, complaint, Administratrix 

left the docket number blank, as one would do when commencing a new 

action. See Complaint, 5/13/14 (Caption). Moreover, the docket in Blusius 

III indicates that the May 13, 2014, complaint “commenced” a civil action, 

for which a commensurate filing fee was assessed and paid. See Blusius III

Docket, at 1 (noting “5/13/2014 Filing: Commencement of Any Civil Action 

Paid . . . $116.00”). 

15 Administratrix attached to her “Supplemental Memorandum of Fact and Law 

Pending Decision on Motion for Summary Judgment and Motion for 

Reconsideration of Decision to Vacate and Strike Plaintiff’s Request for Nunc 

Pro Tunc Relief,” filed on October 1, 2021, an “affidavit” signed by Ann Marie 

Swatt, reciting reasons allegedly given to her by an unidentified clerk in the 

Prothonotary’s office as to why the May 13, 2014, complaint was docketed 

under a new number. Administratrix further attached a similar “affidavit” to 

her sur reply to Nottingham’s reply to her supplemental memorandum, 

“providing . . . facts that [she] witnessed that occurred during oral arguments 

from 2014 to 2020.” Administratrix’s Sur Reply, 10/20/21, at Exhibit E. 

However, Administratrix’s submissions are not “affidavits” as required for 

consideration on summary judgment, as they are neither sworn nor made 

subject to the penalties of unsworn falsification and contain only inadmissible 

hearsay. See Pa.R.C.P. 76 (setting forth requirement that affidavit be either 

sworn or affirmed before an officer authorized by law to administer oaths, or 

unsworn and containing statement that it is made subject to penalties of 18 

Pa.C.S.A. § 4904 relating to unsworn falsification to authorities); Pa.R.C.P. 

1035.1 (providing “record” for purposes of summary judgment comprised of 

pleadings, depositions, answers to interrogatories, admissions, affidavits, and 

expert reports); Pa.R.C.P. 1035.4 (“Supporting and opposing affidavits shall 

be made on personal knowledge, shall set forth such facts as would be 

admissible in evidence, and shall show affirmatively that the signer is 

competent to testify to the matters stated therein.”).

 
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no genuine issue of material fact regarding the statute of limitations issue.

16

Therefore, Nottingham was entitled to summary judgment on Administratrix’s 

negligence claims as a matter of law. Ertel, supra.

Finally, Administratrix asserts that the trial court erred in finding that 

the gist of the action doctrine bars her breach of contract claims. 

Administratrix asserts that “the injuries and damages sought between [her] 

negligence claim[s] and contract claim[s] are separate and distinct.” Brief of 

Appellant, at 63. Administratrix argues that, while her tort claims arise from 

Nottingham’s alleged breach of duties imposed as a matter of social policy, 

____________________________________________

16 Administratrix also argues that, in the alternative, the trial court should 

have tolled the statute of limitations based on the doctrine of fraudulent 

concealment. Administratrix asserts that “[d]efendants in this case made 

fraudulent remarks or improperly concealed or failed to disclose material 

information that caused [Administratrix] delays in her investigation of the 

causes of [the decedent’s] death.” Brief of Appellant, at 51. 

“Where, through fraud or concealment, the defendant causes the plaintiff to 

relax his vigilance or deviate from his right of inquiry, the defendant is 

estopped from invoking the bar of the statute of limitations.” Kingston Coal 

Co. v. Felton Min. Co., Inc., 690 A.2d 284, 290 (Pa. Super. 1997) (citation 

omitted). “[I]n order for fraudulent concealment to toll the statute of 

limitations, the defendant must have committed some affirmative 

independent act of concealment upon which the plaintiffs justifiably relied.” 

Id. at 291. The burden of proving such fraud or concealment, by evidence 

which is clear, precise and convincing, is upon the asserting party. Id. at 290-

91.

Here, Administratrix’s claim of fraudulent concealment is completely belied by 

the fact that, on January 6, 2014—the last day of the limitations period—she 

timely filed a complaint in Blusius II, raising nearly identical claims against 

Nottingham. Moreover, Administratrix concedes that she “cannot produce” 

evidence in support of her fraudulent concealment claim. Brief of Appellant, 

at 55. Accordingly, this claim is meritless.
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see id. at 62, the contract claims arise from Nottingham’s alleged breach of 

Paragraphs 1 and 2 of the Admission Agreement (“Agreement”).

17

 See id. at 

64-67.

Generally, the gist of the action doctrine is designed to maintain the 

conceptual distinction between breach of contract claims and tort claims. 

eToll, Inc. v. Elias/Savion Advert., Inc., 811 A.2d 10, 14 (Pa. Super. 

2002). As a practical matter, the doctrine is employed “to ensure that a party 

____________________________________________

17 Paragraphs 1 and 2 of the Agreement provide as follows:

1. SERVICES PROVIDED BY FACILITY

The Facility agrees to furnish room, meals, housekeeping 

services, use of walker or wheelchair when medically necessary, 

nursing care, linen and bedding, and such other personal services 

as may be required for the health, safety, welfare, good 

grooming[,] and well-being of the resident.

2. AVAILABILITY OF PHYSICIANS AND MEDICATIONS

The Facility agrees to obtain the services of a licensed 

physician of the Resident’s choice whenever necessary, or the 

services of another licensed physician if a personal physician has 

not been designated or is not available, as well as to [e]nsure the 

availability and administration of such medication as a physician 

may order.

Admission Agreement, 7/20/06, at 1. Administratrix claims that Nottingham 

breached these provisions by: failing to provide adequate nursing care; failing 

to provide competent administration and availability of medications; failing to 

provide proper nutrition; failing to provide proper hydration; failing to provide 

physical therapy for rehabilitation of Decedent’s hip injury; failing to provide 

appropriate pain management; failing to monitor Decedent’s thyroid 

condition; failing to provide proper dental and patient care; and failing to 

provide proper monitoring of medicines. See Third Amended Complaint, 

1/29/15, at ¶¶ 95-103.
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does not bring a tort claim for what is, in actuality, a claim for a breach of 

contract.” Bruno v. Erie Ins. Co., 106 A.3d 48, 60 (Pa. 2014). Here, the 

trial court held that Administratrix’s contract claims were “simply [tort claims] 

masquerading as breach of contract” claims and, applying the gist of the action 

doctrine, dismissed her contract claims. Trial Court Opinion, 1/25/22, at 5. 

We conclude that the court erred. 

Recently, in Poteat v. Asteak, __ A.3d __, 2024 WL 1202926 (Pa. 

Super. 2024), this Court addressed a scenario in which the plaintiff asserted 

a breach of contract claim arising out of an agreement for legal services. The 

trial court, relying on Bruno, supra,

18 reasoned that because the contractual

____________________________________________

18 This Court, in Poteat, summarized the facts and holding of Bruno as 

follows:

In Bruno, the plaintiff[s]/homeowners had purchased 

homeowner’s insurance from the defendant/insurance company.

The plaintiffs informed their homeowner[’s] insurance company 

that they had found mold in their home. The defendant insurance 

company retained an engineer and adjuster to determine whether 

there was mold in the plaintiff[s’] home. The engineer and

adjuster came to their home to investigate mold and informed the

homeowners that the mold was harmless and had no health 

consequences. 

The homeowners relied on this advice, later suffered health 

problems from mold exposure, and sued the defendant/insurance 

company. The homeowner[s]/plaintiff[s] asserted a tort claim 

against the defendant/insurance company, alleging that its 

engineer and adjuster negligently advised the homeowners about 

the risk of exposure to mold. The defendant/insurance company 

argued that the gist of the action doctrine precluded the 

plaintiff[s] from maintaining [their] tort claims because the 

insurance contract determined the scope of the insurance 

(Footnote Continued Next Page)
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duty asserted by the plaintiff was the same duty he could have asserted in a 

tort claim—i.e., professional negligence—the gist of the action doctrine 

converted the contractual duty into a tort duty and, thus, extinguished the 

duty inherent in the contract. Having recast plaintiff’s contract claim as one 

sounding in tort, the court concluded that the claim was barred by the twoyear statute of limitations governing tort claims and, consequently, dismissed 

the complaint.

In reversing the trial court, this Court found as follows:

The trial court misapplied the holding in Bruno. [There, t]he 

Supreme Court articulated the principles for the gist of the action 

doctrine as applying to whether a plaintiff who has a contract with 

a defendant may maintain a tort claim as well. The Supreme 

Court did not hold, and we have found no binding authority[] for 

the trial court’s conclusion[,] that the gist of the action doctrine 

extinguishes any rights that the contract provides a plaintiff when 

the duty the defendant undertook in the contract is the same duty 

that a tort claim would impose on a defendant. In other words, 

the gist of the action doctrine does not extinguish contractual 

____________________________________________

company’s duty to the homeowner[s] and the contract did not 

impose the duty to provide accurate advice about mold to the 

homeowner. Our Supreme Court disagreed and concluded the gist 

of the action doctrine did not apply because the negligence claim 

was based on an alleged breach of a social duty imposed by the 

law of torts, and not a breach of a duty created by the underlying 

contract of insurance. Thus, even though the plaintiff[s] and 

defendant had a contractual relationship, the duty expressed in 

the contract differed from the duty the plaintiff[s] asserted in 

[their] tort claim, so the gist of the action doctrine did not bar the 

plaintiff[s] from asserting a tort claim.

Poteat, supra at *4 (internal citations omitted).
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rights; it merely addresses whether a plaintiff can assert a tort 

claim when the duty set forth in the contract is similar to the duty 

that the plaintiff alleges in a tort claim.

Id. at *5.

Here, the trial court similarly misapplied the gist of the action doctrine 

by extinguishing Administratrix’s contract claims simply because the duties 

alleged therein were similar to those alleged in her tort claims. Accordingly, 

we reverse the order of the trial court dismissing Administratrix’s contract 

claims under the gist of the action doctrine and remand for further 

proceedings.19

Order affirmed in part and reversed in part. Case remanded for further 

proceedings in accordance with this memorandum. Jurisdiction relinquished. 

P.J.E., Stevens joins the Memorandum.

Bowes, J., Files a Concurring Memorandum.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 4/26/2024

____________________________________________

19 We make no comment on the viability of Administratrix’s contract claims, 

as the only issue before this Court is whether the gist of the action doctrine 

converted them to tort claims barred by the applicable statute of limitations.