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NON-PRECEDENTIALDECISION - SEE 

### SUPERIORCOURT

### I.O.P. 

### 65.37 DENISE MURRAY, INDIVIDUALLYANDAS EXECUTRIX OFTHE ESTATE OF ROBERT MURRAY, SR. DECEASED 

### Appellant

v. THOMAS JEFFERSON UNIVERSITY HOSPITALS,INC., THOMAS JEFFERSON UNIVERSITY, KIMMELCANCER CENTER, AND EDITH MITCHELL, M.D., FACP, Appellees

APPEAL OF: DENISE MURRAY IN THE SUPERIORCOURT OF PENNSYLVANIA

No. 2617 EDA 2016 Appeal

### from the OrderJuly 5, 2016 In the CourtofCommon 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

### APRIL04, 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 courtablyexplained the underlying facts ofthis 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 heJ

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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 tothe 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 

### unavailableto 

### treat Mr. Murrayduring 

### thattime. 

### [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'scancerwas in remission. The Defendants filed a 

### motion 

### for summary

### judgment on May 25, 2016, arguing 

### that due to 

### [Appellant's] counsel's 

### failureto 

### 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 answerthe 

### motion

### for summaryjudgment. [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

### August4, 2016

## - two days beforethe

### 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-mailto the

### trialjudge's law 

### clerk,which explained 

### that he was unableto 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 

### orderand, 

### thus, theJuly 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 erroneouslyfail 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 Briefat 6. ThisCourt 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 establishesthe

### entitlementofthe moving 

### partyto

### judgment as a 

### matter of law. Lastly, we will 

### view the record in 

### the light mostfavorable tothe non-moving 

### party, and all doubts as to the existence of a genuine issue 

### of material fact must be resolved againstthe 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

### ofCivil 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

### ofthe motion identifying (1) one or more issues of 

### fact arising 

### from evidence in the record 

### controverting theevidence cited in 

### support of the 

### motion or from a challenge to the 

### credibility of one or morewitnesses

### testifying in

### support ofthe 

### 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 betaken bythe 

### partyto 

### presentsuch evidence.



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### (d) Summary 

### judgment may be 

### entered against a 

### partywhodoes 

### notrespond. (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

### judgmentwithoutwritten 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 opinionor on the record. Pa.R.C.P. 1035.3 (emphasis added). First,

### Appellant claims

### thatthe

### 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 Ruleof 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

### afterservice

### ofthe motion") (emphasis added). 

### Appellant's
ex

### parte e-mail to an 

### individual who

### Appellant claims to be the

### trialjudge'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 deliverytothe 

### prothonotary). Further, 

### Appellant's claim 

### that the 

### trial court should have relied upon Pennsylvania Rule of Civil Procedure 126 and 

### "disregarded" her 

### "procedural"
erroroffailing 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 ofthe parties"). Atthe 

### outset, the 

### trialjudge
never acknowledged 

### thateither 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 neveracknowledged

### thatthe e-mail attached to

### Appellant's motion

### for reconsideration was even addressed tothe

### 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 

### simplyfails, as the

### trial courtapparentlydid not receive

### Appellant's e-mail and 

### there is no way

### for this Court to 

### confirm 

### that Appellanteven e-mailed the

### trialjudge's law clerk. 

### Appellant also claims 

### thatthe

### trial court should have concluded 

### that a 

### "motion forsanctions,"

### 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. Thisclaim,too, is 

### meritless. Within Appellant's completely separate 

### "motion for sanctions," Appellant requested 

### thatthe 

### trial courtsanction 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

### thatthe

### 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 Productionof 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 tothe claimsalleged in 

### [Appellant's] complaint. 

### Id. (some 

### internal capitalization 

### omitted). Appellant now claims 

### that the 

### trial court should have considered her 

### motion for sanctionsto 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 forsanctions"constituted an 

### entirely separate motion 

### that required its own procedure

### fordisposition. 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 

### August23, 2015. Counsel

### for [Appellant] thenfiled 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 orfiled consentofthe 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 responseto unopposed 

### preliminaryobjections.

. 

### [Further, when 

### the Defendants filed 

### their summary 

### judgment motion, discovery relevant to the motion had completed. The 

### trial] court gave 

### [Appellant's] counsel repeated 

### extensionsto providethe 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 reportdeadline. On March 22, 2016, 

### [the 

### trial] court extended 

### [Appellant's] expert reportdeadline an 

### additional 30 days,giving afinal deadline of May 2, 2016. 

### [Appellant's] counsel failed to 

### submit

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expert reports by

### thefinal 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 

### theirmotion

### forsummary

### 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] courtto 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 itgranted the Defendants' motion 

### forsummaryjudgment. Order

### affirmed. Jurisdiction relinquished. Judgment Entered.

Jo'seph D.

# Seletyn,1 Es 

### Prothonotary

Date: 

### 4/4/2017


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