Opinion
No. 988 C.D. 2012
02-07-2013
Andrew Fullman, Appellant v. Judge Stewart L. Kurtz, Kimberly K. Gresko, Deborah J. Higgins, and Sandra McNeal
OPINION NOT REPORTED
MEMORANDUM OPINION
Before this Court is the appeal of Andrew Fullman (Fullman), pro se, from three Orders of the Court of Common Pleas of Huntingdon County (trial court), all dated April 13, 2012, that effectively dismissed with prejudice Fullman's Complaint. In his Complaint, Fullman alleged that the Honorable Judge Stewart L. Kurtz; Deborah J. Higgins, the administrator of the trial court (together, Judicial Defendants); and Kimberly K. Gresko, the attorney for a physician previously sued by Fullman (collectively, Defendants), violated Fullman's constitutional rights, discriminated against him, or committed a fraud on the courts by causing or allowing his medical malpractice action against the Commonwealth of Pennsylvania, Department of Corrections (Department), and others to be non-prossed when Fullman alleges he was suffering from depression that kept him from timely prosecuting the case. For the following reasons, we affirm.
Ms. Gresko's last name is now Windish, (Gresko's Br. at 4); however, for sake of consistency with the record, we will use Gresko throughout this opinion.
The fourth defendant, Sandra McNeal, was removed as a party in this matter upon a motion by Fullman and an order of the trial court dated August 9, 2010.
The extensive history of Fullman's underlying medical malpractice case against the Department was previously described in this Court's opinions in Fullman v. Pennsylvania Department of Corrections (Fullman I) (Pa. Cmwlth., No. 910 C.D. 2005, filed April 6, 2006) and Fullman v. Pennsylvania Department of Corrections (Fullman II) (Pa. Cmwlth., No. 783 C.D. 2008, filed February 23, 2009) as follows:
Fullman initiated an action for medical malpractice on April 29, 1996 in the Court of Common Pleas of Philadelphia County, which was later transferred in 1999 to the trial court . . . . Fullman alleges that, while he was incarcerated at SCI Smithfield, he was given negligent medical treatment by David Ruso, M.D.3 beginning on or around May 1994. On July 31, 2003, Dr. Ruso filed a Motion for Non Pros and, on November 3, 2003, the trial court granted said motion and dismissed the case with prejudice. On November 19, 2003, Fullman filed a Request for Reconsideration and, on December 12, 2003, he filed a Motion/Request to Open Judgment of Non Pros (Motion).
On October 26, 2004, the trial court entered an order and issued a memorandum denying Fullman's Motion. The trial court stated that since 1999, when the case was transferred to Huntingdon County, there had been little activity, and between January 1, 2002 and July 31, 2003, when Dr. Ruso filed his Motion for Non Pros, there was no activity. The trial court stated that Fullman had never identified a theory of liability or produced an expert's report with respect to the
3Apparently Dr. Ruso's name [Russo] is misspelled in the caption and in the trial court's opinion.
alleged negligence of Dr. Ruso. The trial court also noted that Fullman had also been unable, despite some effort on his part, to secure counsel to undertake his representation in the matter. The trial court granted Dr. Ruso's Motion for Non Pros after giving Fullman two opportunities to obtain counsel or to file "something meaningful." The trial court held that the eight-year delay in the case was inordinate and had, without question, prejudiced Dr. Ruso. In its discussion, the trial court held that Fullman failed to demonstrate a reasonable explanation or legitimate excuse for inactivity or delay, and did not demonstrate there was a meritorious cause of action. "The only explanation for the inactivity and delay in this case is the inability of Mr. Fullman to obtain counsel." This, the trial court concluded, was neither reasonable nor legitimate, given the eight-year delay since the action was commenced, and the ten years since the alleged injury occurred. Before the trial court, Fullman argued that "[w]ith respect to the expert reports, [he] is working on this, even though the medical record speaks pretty much for itself in proving medical negligence and malpractice." However, the trial court noted that this argument reflected an attitude "common in pro se cases and demonstrates that Mr. Fullman does not understand or appreciate his burden in a malpractice action." Accordingly, the trial court denied Fullman's Motion.Fullman I, slip op. at 2-4 (emphasis in original) (citations omitted) (quoted in Fullman II, slip op. at 2-3). This Court held that the record showed that the eight-year delay in the case's prosecution was caused by Fullman's failure to obtain representation, not by any lack of diligence on the part of the trial court, which timely responded to the Fullman motions that were meritorious. Fullman I, slip op. at 5-6. Thus, this Court concluded that the trial court did not abuse its discretion in denying Fullman's Motion. Id. at 6. With regard to Fullman's argument that a three-page letter from his treating physician provided sufficient support for his burden of opening the judgment of non-pros, this Court noted that Fullman never submitted the letter to the trial court. Id. at 7. Therefore, this Court affirmed the trial court's order denying Fullman's Motion. Id. The Supreme Court denied Fullman's Petition for Allowance of Appeal from this Court's decision. Fullman v. Pennsylvania Department of Corrections, 590 Pa. 680, 912 A.2d 1294 (2006). Fullman then continued to pursue the matter:
. . . . On appeal, Fullman asserts that the trial court erred in denying his Motion because: (1) the trial court caused the delay by not answering or responding to his pending motions; and (2) his treating physician, Carla Rossi, M.D., wrote a three-page "medical impression" of the inadequate medical treatment provided to Fullman by Dr. Ruso, which is sufficient to prove a meritorious cause of action.
Thereafter, Fullman apparently attempted to both appeal our disposition of the matter, as well as assert several constitutional claims, in federal court. In opinions by the United States District Court for the Middle District of Pennsylvania, and by the Third Circuit Court of Appeals, Fullman's complaint was ultimately dismissed for a failure to state a claim upon which relief could be granted, and for untimeliness. See Fullman v. Pennsylvania Department of Corrections, Civil Action No. 4:07CV-000079 (M.D. Pa. Jan 25, 2007), appeal dismissed, 265 Fed. Appx. 44 (3d Cir. 2008).Fullman II, slip op. at 4-5. This Court generally stated that the issues Fullman raised in his attempt to overturn the trial court's decision not to open the judgment of non pros had already been litigated and considered on appeal. Fullman II, slip op. at 6-8. In response to a request from Dr. Russo that this Court enjoin or preclude Fullman from making further claims against Dr. Russo, this Court declined but stated, "we caution Fullman, in the strongest possible terms, against pursuing this matter in the duplicative manner, bereft of any legal merit whatsoever, in which he has presented the instant appeal." Id. at 10.
On March 25, 2008, Fullman filed the Petition to Open the Judgment of Non Pros . . . at issue herein, again requesting that the Trial Court open the judgment it had entered on November 3, 2003. By order dated March 27, 2008, the Trial Court denied Fullman's petition.
Fullman filed the Complaint in the current matter on May 12, 2010. Fullman alleged that the reason he failed to pursue his medical malpractice case was that he was suffering from severe depression from 2002 through 2009. (Complaint ¶ 6.) Fullman alleged that Judge Kurtz: intentionally failed to consider Fullman's application to apply the res ipsa loquitur doctrine to his case, discriminated against Fullman by failing to put the case on hold until Fullman was able to proceed, and intentionally confused Fullman by instructing him to file "something meaningful." (Complaint ¶¶ 8, 10, 14, 20.) Fullman alleged that Ms. Gresko intentionally misled the trial court regarding the information Fullman had provided her in his responses to interrogatories and failed to inform the trial court of Fullman's depression. (Complaint ¶¶ 9, 11.) Fullman alleged that Judge Kurtz, Ms. McNeal, and Ms. Higgins intentionally prevented the filing of his November 4, 2004 Motion for Reconsideration in his medical malpractice case. (Complaint ¶ 28.) On the basis of these allegations, Fullman asserted claims for fraud, discrimination, and punitive damages. (Complaint at 8.)
On June 4, 2010, the Judicial Defendants filed Preliminary Objections pleading sovereign immunity, judicial immunity on the part of Judge Kurtz, quasi-judicial immunity on the part of Ms. Higgins, and a lack of jurisdiction on the basis of the doctrine of coordinate jurisdiction. (Preliminary Objections of Judicial Defendants ¶¶ 2, 4, 6.) On June 16, 2010, the Judicial Defendants filed a Motion for a Protective Order and Stay of Discovery requesting that the trial court not require them to answer Fullman's interrogatories until after disposing of their Preliminary Objections. Fullman objected to this motion and subsequently, on September 21, 2010, filed Plaintiff's Praecipe to Compel Discovery. On July 6, 2010, Fullman filed a Praecipe to Enter Default Judgment against Ms. Gresko, which the trial court entered on the same date. On July 8, 2010, Ms. Gresko filed Preliminary Objections pleading that the punitive damages sought by Fullman's Complaint were improper where the claims asserted therein did not constitute reckless or otherwise egregious conduct on the part of Ms. Gresko. (Preliminary Objections of Gresko ¶¶ 4, 6-7.) On July 13, 2010, Ms. Gresko filed a Petition to Open Default Judgment, along with an Answer and New Matter. In the New Matter, Ms. Gresko asserted that the doctrines of collateral estoppel and res judicata were applicable to Fullman's claims against her. (Answer and New Matter of Defendant, Kimberly K. Gresko ¶¶ 46-47.) On March 10, 2011, Fullman filed a Motion to Amend Complaint, seeking to amend his Complaint to include averments regarding a Motion for Consideration Nunc Pro Tunc he attempted to file in his original medical malpractice case on August 6, 2010.
By Order dated April 13, 2012, the trial court sustained the Preliminary Objections of the Judicial Defendants on the basis of judicial immunity and quasi-judicial immunity and dismissed any outstanding motions or petitions not addressed by the trial court's April 13, 2012, Orders (including, apparently, Fullman's Praecipe to Compel Discovery) as moot. By separate Order, also dated April 13, 2012, the trial court granted Ms. Gresko's Petition to Open Default Judgment, opened and vacated the default judgment, and dismissed the Complaint as to Ms. Gresko on the grounds of collateral estoppel. By a third Order, the trial court dismissed, as moot, Fullman's Motion to Amend Complaint. Fullman now appeals to this Court.
This Court's "review of a trial court's order sustaining preliminary objections and dismissing a complaint is limited to determining whether the trial court abused its discretion or committed an error of law." Podolak v. Tobyhanna Township Board of Supervisors, 37 A.3d 1283, 1287-88 (Pa. Cmwlth. 2012). In reviewing preliminary objections, all well pleaded relevant and material facts are to be considered as true, and preliminary objections shall only be sustained when they are free and clear from doubt. Id. at 1288.
"A petition to open judgment is an appeal to the equitable powers of the court. Therefore, this Court's standard of review is limited to determining whether the trial court abused its discretion or committed an error of law." Horner v. C.S. Myers & Sons, Inc., 721 A.2d 394, 396 n.4 (Pa. Cmwlth. 1998).
Before this Court, germane to the trial court's orders, Fullman argues that the trial court erred in dismissing Ms. Higgins and Ms. McNeal as defendants and erred in denying Fullman's Praecipe to Compel Discovery. However, in the three-page Argument section of his brief, Fullman only develops the argument that the trial court erred in failing to grant his Praecipe to Compel Discovery prior to dismissing his Complaint. The Judicial Defendants respond that judicial immunity and quasi-judicial immunity are not only defenses against judgment, but defenses against suit. Ms. Gresko argues that Fullman's claims against her are barred by collateral estoppel. Ms. Gresko also asks that this Court award her $2,500.00 as a sanction against Fullman "to impress upon [Fullman] the seriousness and importance of this Court's prior and current rulings and to prevent any further frivolous litigation arising out of these matters." (Gresko's Br. at 4.)
We note that, while the trial court dismissed Ms. McNeal as a defendant, it sustained Ms. Higgins' Preliminary Objections and dismissed Fullman's claims against her with prejudice.
The remainder of Fullman's arguments essentially ask this Court to reopen his medical malpractice case, either because the Defendants in the current matter conspired against him or because he believes he has discovered new evidence that would support his medical malpractice claim. Fullman's medical malpractice claim has been decided, as discussed above. As this Court explained in Fullman II, these claims cannot now be relitigated. Fullman II, slip op. at 6.
Fullman argues that the trial court's failure to grant him discovery was harmful error and denied him due process. However, matters of discovery are within a trial court's discretion and should not be overturned by a reviewing court absent an abuse of that discretion. Luckett v. Blaine, 850 A.2d 811, 818 (Pa. Cmwlth. 2004). In Luckett, this Court held that a trial court did not abuse its discretion in staying discovery until after the resolution of preliminary objections in the nature of demurrer, on the basis of which the trial court dismissed the complaint. Id. at 815, 818-19. While the trial court in this case dismissed Fullman's Complaint on the bases of judicial immunity, quasi-judicial immunity, and collateral estoppel rather than failure to state a claim, this case is similar to Luckett in that discovery would not have aided Fullman in his attempt to assert his claims. Discovery is appropriate to unearth facts necessary to prove a claim, not to conduct "a 'fishing expedition' to determine whether a cause of action exists." Id. at 818. The defenses of judicial immunity, quasi-judicial immunity, and collateral estoppel focus on the identity of the parties and the subject matter of prior litigation. Additional facts beyond those pleaded in the Complaint and Ms. Gresko's Answer and New Matter would not have affected the applicability of those defenses. Therefore, the trial court neither abused its discretion nor denied Fullman due process in dismissing Fullman's Complaint without allowing him discovery.
As far as this Court can discern, Fullman's brief does not argue that the trial court erred in applying the doctrines of judicial immunity or quasi-judicial immunity to his claims against the Judicial Defendants, or the doctrine of collateral estoppel to the claims against Ms. Gresko. --------
With regard to Fullman's assertion that the trial court abused its discretion in dismissing his claims against Ms. McNeal, we note that it was Fullman himself who moved to remove Ms. McNeal as a defendant. (Motion to Remove Defendant, August 9, 2010.) Therefore, we hold that the trial court did not abuse its discretion in dismissing those claims.
Finally, we address Ms. Gresko's request for a sanction against Fullman to "prevent any further frivolous litigation arising out of these matters." (Gresko's Br. at 4.) Rule 2744 of the Pennsylvania Rules of Appellate Procedure provides for reasonable counsel fees and delay damages where this Court determines that "an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious." Pa. R.A.P. 2744. We believe the current appeal is frivolous, particularly against Ms. Gresko, because it seeks to relitigate matters that have already been resolved in two other appeals. Moreover, in Fullman II, this Court specifically cautioned that "should Fullman file any further meritless appeal in this matter, found to be frivolous or vexatious in any manner or respect, this Court will not hesitate to impose the full weight of awards for damages, fees, costs, and/or any other sanctions found applicable to such pursuit on Fullman's part." Fullman II, slip op. at 11. Therefore, we award a sanction in the amount of $500.00 against Fullman in favor of Ms. Gresko as further costs in this matter. See Nahas v. Zoning Hearing Board of Schuylkill County, 823 A.2d 237, 239 (Pa. Cmwlth. 2003) (awarding $500.00 in further costs against appellants pursuant to Rule 2744 as a sanction for a frivolous appeal).
For these reasons, this Court affirms the Orders of the trial court. PER CURIAM ORDER
NOW, February 7, 2013, the Orders of the Court of Common Pleas of Huntingdon County entered in the above-captioned matter are hereby AFFIRMED. Further, in addition to any costs taxable as of right pursuant to Pa. R.A.P. 2741-43, further costs in the amount of $500.00 are taxed against Andrew Fullman and in favor of Kimberly K. Gresko, pursuant to Pa. R.A.P. 2744.