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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

DENISE MURRAY, INDIVIDUALLY AND AS 

EXECUTRIX OF THE ESTATE OF ROBERT 

MURRAY, SR. DECEASED 

Appellant 

v. 

THOMAS JEFFERSON UNIVERSITY 

HOSPITALS, INC., THOMAS JEFFERSON 

UNIVERSITY, KIMMEL CANCER CENTER, 

AND EDITH MITCHELL, M.D., FACP, 

Appellees 

APPEAL OF: DENISE MURRAY 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

No. 2617 EDA 2016 

Appeal from the Order July 5, 2016 

In the Court of Common Pleas of Philadelphia County 

Civil Division at No(s): June Term, 2014 No. 140600327 

BEFORE: OLSON, SOLANO and MUSMANNO, JJ. 

MEMORANDUM BY OLSON, J.: FILED APRIL 04, 2017 

Appellant, Denise Murray, appeals from the order entered on July 5, 

2016, which granted the motion for summary judgment filed by Thomas 

Jefferson University Hospitals, Inc., Thomas Jefferson University, Kimmel 

Cancer Center, and Edith Mitchell, M.D., FACP (hereinafter "the 

Defendants"). We affirm. 

The trial court ably explained the underlying facts of this case: 

Appellant [] brought a medical negligence case individually 

and on behalf of her husband's estate after his prostate 

cancer, thought to be in remission, came back and he 
J -S23003-17 

passed away. [Appellant] sued the hospital and cancer 

center where her husband, Robert Murray, received 

treatment, and his primary doctor, alleging that he was not 

properly treated because no one discovered or informed 

them that his cancer had returned. . . . 

[According to Appellant's complaint,] Mr. Murray had 

prostate cancer and Edith Mitchell, M.D. was his treating 

physician and oncologist. Mr. Murray's cancer went into 

remission. Sometime later, Mr. Murray's cancer returned 

and metastasized, unbeknownst to the Murrays. Mr. Murray 

passed away on April 1, 2012. [Appellant] sued the 

[Defendants] and alleged that [they] failed to properly care 

for her husband[; specifically, Appellant claimed that the 

Defendants] should have realized that the cancer had 

returned and notified Mr. Murray. [Appellant] also alleged 

that Dr. Mitchell was away from her medical practice due to 

personal reasons and unavailable to treat Mr. Murray during 

that time. [Appellant's] complaint did not provide dates to 

establish a time frame for when Mr. Murray was first 

diagnosed, when Dr. Mitchell began treating him, how long 

Dr. Mitchell was absent from her practice, or how long Mr. 

Murray's cancer was in remission. 

The Defendants filed a motion for summary judgment on 

May 25, 2016, arguing that due to [Appellant's] counsel's 

failure to furnish expert reports, [Appellant] could not prove 

her case. Pennsylvania law requires expert reports in 

medical professional negligence cases. [Appellant's] 

counsel never filed a response to the motion for summary 

judgment, nor did he file a motion to extend his time to 

answer the motion for summary judgment. [The trial] court 

granted the motion for summary judgment on July [5], 

2016 as unopposed. 

Trial Court Opinion, 9/28/16, at 1-3 (some internal citations and 

capitalization omitted). 

On August 4, 2016 - two days before the trial court lost jurisdiction to 

reconsider its final order under Pa.C.S.A. § 5505 (allowing 30 days for the 

trial court to reconsider an order) - Appellant filed a motion for 

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reconsideration with the trial court. Within the reconsideration motion, 

Appellant's counsel claimed that, on June 26, 2016, he had sent an e-mail to 

the trial judge's law clerk, which explained that he was unable to produce an 

expert report in the case because the Defendants were "stone walling" him. 

Motion for Reconsideration, 8/4/16, at Exhibit "0." Further, attached to the 

August 4, 2016 motion for reconsideration was, finally, an expert report in 

the case. Id. at Exhibit "C." 

The trial court did not expressly grant reconsideration of its July 5, 

2016 order and, thus, the July 5, 2016 order granting summary judgment in 

favor of the Defendants became final and the current appeal is now before 

this Court. See Pa.R.A.P. 1701(b)(3). Appellant numbers two claims on 

appeal: 

1. When it granted summary judgment, did the [trial] court 

erroneously fail to consider arguments made in a letter brief 

e -mailed to it and a discovery motion immediately filed 

thereafter? 

2. Even if [Appellant's] counsel did not "respond" to the 

[D]efendants' motion, did the [trial] court abuse its 

discretion by granting summary judgment? 

Appellant's Brief at 6. 

This Court has held: 

A reviewing court may disturb the order of the trial court 

only where it is established that the court committed an 

error of law or abused its discretion. As with all questions 

of law, our review is plenary. 

In evaluating the trial court's decision to enter summary 

judgment, we focus on the legal standard articulated in the 

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summary judgment rule. Pa.R.C.P. 1035.2. The rule states 

that where there is no genuine issue of material fact and 

the moving party is entitled to relief as a matter of law, 

summary judgment may be entered. Where the 

non-moving party bears the burden of proof on an issue, he 

may not merely rely on his pleadings or answers in order to 

survive summary judgment. Failure of a non[-]moving 

party to adduce sufficient evidence on an issue essential to 

his case and on which it bears the burden of proof 

establishes the entitlement of the moving party to judgment 

as a matter of law. Lastly, we will view the record in the 

light most 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. 

Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (some internal 

citations omitted), quoting, Murphy v. Duquesne Univ. of the Holy 

Ghost, 777 A.2d 418, 429 (Pa. 2001). 

In relevant part, Pennsylvania Rule of Civil Procedure 1035.3 states: 

(a) Except as provided in subdivision (e), the adverse party 

may not rest upon the mere allegations or denials of the 

pleadings but must file a response within thirty days after 

service of the motion identifying 

(1) one or more issues of fact arising from evidence in 

the record controverting the evidence cited in support of 

the motion or from a challenge to the credibility of one 

or more witnesses testifying in support of the motion, or 

(2) evidence in the record establishing the facts 

essential to the cause of action or defense which the 

motion cites as not having been produced. 

(b) An adverse party may supplement the record or set 

forth the reasons why the party cannot present evidence 

essential to justify opposition to the motion and any action 

proposed to be taken by the party to present such evidence. 

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(d) Summary judgment may be entered against a 

party who does not respond. 

(e)(1) Nothing in this rule is intended to prohibit a court, at 

any time prior to trial, from ruling upon a motion for 

summary judgment without written responses or briefs if no 

party is prejudiced. A party is prejudiced if he or she is not 

given a full and fair opportunity to supplement the record 

and to oppose the motion. 

(2) A court granting a motion under subdivision (e)(1) 

shall state the reasons for its decision in a written 

opinion or on the record. 

Pa.R.C.P. 1035.3 (emphasis added). 

First, Appellant claims that the trial court erred when it concluded that 

she did not respond to the Defendants' motion for summary judgment. 

According to Appellant, she responded to the Defendants' summary 

judgment motion when her counsel e -mailed the trial judge's law clerk "a 

letter setting forth the reasons why [counsel] could not present evidence 

essential to justify opposition to the motion." Appellant's Brief at 19 

(internal quotations omitted). Appellant claims this e-mail constitutes a 

proper "response" under Rule 1035.3 or, in the alternative, the trial court 

should have forgiven the procedural error, in accordance with Pennsylvania 

Rule of Civil Procedure 126. Id. 

Initially, Appellant's claim that her counsel's e-mail constitutes a 

proper response under Rule 1035.3 immediately fails, as Rule 1035.3 plainly 

requires that a response to a summary judgment motion be "filed." 

Pa.R.C.P. 1035.3(a) ("the adverse party may not rest upon the mere 

allegations or denials of the pleadings but must file a response within 

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thirty days after service of the motion") (emphasis added). Appellant's 

ex parte e-mail to an individual who Appellant claims to be the trial judge's 

law clerk does not constitute a "filing." See Pa.R.C.P. 205.1 - 205.5 

(concerning "filing" of legal papers and noting that "filing" contemplates 

delivery to the prothonotary). 

Further, Appellant's claim that the trial court should have relied upon 

Pennsylvania Rule of Civil Procedure 126 and "disregarded" her "procedural" 

error of failing to "file" the response is meritless. See Pa.R.C.P. 126 ("[t]he 

rules [of civil procedure] 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"). At the outset, the trial judge 

never acknowledged that either she or her law clerk received Appellant's ex 

parte e-mail. See Trial Court Opinion, 9/28/16, at 1-7. Indeed, the trial 

court never acknowledged that the e-mail attached to Appellant's motion for 

reconsideration was even addressed to the judge's law clerk. See id. Thus, 

Appellant's claim that the ex parte e-mail should suffice as a "response" 

under Rules 1035.3 and 126 simply fails, as the trial court apparently did not 

receive Appellant's e-mail and there is no way for this Court to confirm that 

Appellant even e -mailed the trial judge's law clerk. 

Appellant also claims that the trial court should have concluded that a 

"motion for sanctions," that she filed on June 30, 2016, constitutes a proper 

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"response" to the summary judgment motion. Appellant's Brief at 26-27. 

This claim, too, is meritless. 

Within Appellant's completely separate "motion for sanctions," 

Appellant requested that the trial court sanction the Defendants for "failure 

to comply with the [trial court's discovery] orders of December[] 30, 2015 

and March 22, 2016." Appellant's Motion for Sanctions, 6/30/16, at 

Proposed Order (some internal capitalization omitted). Specifically, 

Appellant requested that the trial court enter an order: 

preclud[ing the Defendants] from offering any evidence at 

the time of trial against [Appellant] for failure to comply 

with [the trial] court's previous orders of December [30], 

2015 and March 22, 2016 providing [Appellant] with any/all 

materials stated in her Request for Production of Documents 

and Supplemental Request for Production of Documents in a 

timely manner so as to prejudice [Appellant] in taking the 

deposition of Defendant, Dr. Edith Mitchell and for 

withholding evidence and/or destroying evidence that is 

essential to the claims alleged in [Appellant's] complaint. 

Id. (some internal capitalization omitted). 

Appellant now claims that the trial court should have considered her 

motion for sanctions to be a proper response to the Defendants' motion for 

summary judgment. This claim fails because: 1) Appellant's separate 

motion did not respond to the Defendants' summary judgment motion, and 

2) Appellant's "motion for sanctions" constituted an entirely separate motion 

that required its own procedure for disposition. 

Finally, Appellant claims that the trial court erred in granting the 

Defendants' summary judgment motion because the relevant pleadings had 

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not closed and because discovery relevant to the motion had not completed. 

Appellant's Brief at 28-30. As the trial court explained, Appellant's 

arguments are meritless: 

Contrary to [Appellant's] arguments . . . , the relevant 

pleadings were closed prior to the Defendants [submission 

of] their motion for summary judgment. [Appellant] filed a 

third amended complaint on July 6, 2015 and the 

Defendants answered the third amended complaint on 

August 23, 2015. Counsel for [Appellant] then filed a fourth 

amended complaint without leave of court and without 

consent of the adverse parties, in violation of Pennsylvania 

Rule of Civil Procedure 1033. [The trial] court struck the 

fourth amended complaint on November 9, 2015 and stated 

that the third amended complaint would remain in effect. 

The [trial] court also stated that "[Appellant] is hereby 

precluded from filing any further amended complaints 

absent leave of court or filed consent of the adverse party." 

[Appellant's] counsel then filed a miscellaneous motion 

seeking [trial] court approval to file a fourth amended 

complaint, but the motion was cancelled out without being 

decided due to a court administrative error. Thus, 

[Appellant] was never granted leave of court to file another 

complaint and the third amended complaint was answered, 

closing the pleadings. Significantly, [Appellant's] proposed 

amendment simply attempted to add counts back into the 

complaint that [the trial] court had stricken earlier in 

response to unopposed preliminary objections. . 

[Further, when the Defendants filed their summary 

judgment motion, discovery relevant to the motion had 

completed. The trial] court gave [Appellant's] counsel 

repeated extensions to provide the necessary expert reports 

but they were not provided. [Appellant] was originally 

given an expert report deadline of February 1, 2016. On 

December 29, 2015, [the trial] court granted a 60 -day 

extension of [Appellant's] expert report deadline. On March 

22, 2016, [the trial] court extended [Appellant's] expert 

report deadline an additional 30 days, giving a final deadline 

of May 2, 2016. [Appellant's] counsel failed to submit 

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expert reports by the final extended deadline or by the time 

[the trial] court granted summary judgment. [Appellant's] 

counsel also did not ask the [trial] court for an additional 

extension to submit an expert report after the Defendants 

filed their motion for summary judgment. 

Despite [Appellant's] counsel's repeated failures to comply 

with discovery, which resulted in four orders to comply, he 

alleged he could not produce a timely doctor's report 

because the Defendants "willfully withheld evidence." This 

argument is unpersuasive. [Appellant's] counsel had 

already failed to submit an expert report 60 days after his 

twice -extended deadline had passed. [Appellant's] counsel 

also failed to follow the proper procedures for petitioning 

[the trial] court to compel the allegedly missing discovery in 

a timely fashion. Finally, [Appellant's] counsel failed to 

respond to the motion for summary judgment as the law 

requires. 

Trial Court Opinion, 9/28/16, at 3-4 and 5-6 (internal citations and some 

internal capitalization omitted). 

We agree with the above analysis and conclude that the relevant 

pleadings and discovery in this matter were closed prior to the filing of the 

Defendants' summary judgment motion and that the trial court did not err 

when it granted the Defendants' motion for summary judgment. 

Order affirmed. Jurisdiction relinquished. 

Judgment Entered. 

Jo'seph D. Seletyn,1 Es 

Prothonotary 

Date: 4/4/2017 

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