Opinion
J-A31015-16 No. 945 EDA 2016 No. 947 EDA 2016
01-31-2017
PATRICIA HAMMERQUIST AND SUSAN PRESSLER, CO-EXECUTRICES OF THE ESTATE OF DOLORES R. SHIELDS, Appellants v. VIDYA S. BANKA. M.D., SAHIL S. BANKA, M.D., VIDYA S. BANKA, M.D. & ASSOCIATES, P.C., PENNSYLVANIA HOSPITAL, PENN MEDICINE, D/B/A PENNSYLVANIA HOSPITAL, THE UNIVERSITY OF PENNSYLVANIA HEALTH SYSTEM AND THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, Appellees
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered March 2, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 03550 March Term, 2015 BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J. MEMORANDUM BY BENDER, P.J.E.:
Former Justice specially assigned to the Superior Court.
Patricia Hammerquist and Susan Pressler ("Appellants"), co-executrices of the Estate of Delores R. Shields ("Ms. Shields"), appeal from the two orders entered on March 2, 2016, that granted (1) the motion for judgment on the pleadings filed by Vidya S. Banka et al., and (2) the motion for judgment on the pleadings filed by Pennsylvania Hospital et al. (collectively "Appellees"). We affirm.
This case began as a result of a medical procedure in which coronary artery stents were inserted in two of Ms. Shields' arteries on August 16, 2007. On April 2, 2013, Ms. Shields received a letter from Pennsylvania Hospital informing her that she may have undergone the surgery unnecessarily. After an independent review of her catheterization records, Ms. Shields was informed that the stent procedures had not been necessary. On March 27, 2015, Ms. Shields filed a writ of summons against various doctors and medical facilities. Then, on May 11, 2015, she filed a complaint, including claims for "battery (lack of informed consent), common law fraud, corporate liability, negligence, recklessness and intentional misconduct, and [violations of the] Unfair Trade Practices and Consumer Protection Law ("UTPCPL") [73 Pa.C.S. § 201-1 et al]." Trial Court Opinion (TCO), 6/28/16, at 1. In November of 2015, each group of Appellees filed a motion for judgment on the pleadings. The trial court entered the two separate orders from which these appeals emanate, granting the motions and dismissing Ms. Shields' complaint with prejudice. The basis for the dismissals rested on the court's determination that the complaint was barred by the statute of repose contained in the Medical Care Availability and Reduction of Error Act ("MCARE Act"), 40 Pa.C.S. §§ 1303.101 - 1303.910. Appellants appealed to this Court and submitted a concise statement of errors complained of on appeal in response to the trial court's order. See Pa.R.A.P. 1925(b). A trial court opinion was filed in response to Appellants' claims of error.
See 40 Pa.C.S. § 1303.513(a) (stating, "[e]xcept as provided in subsection (b) and (c), no cause of action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort or breach of contract").
Ms. Shields passed away on December 3, 2015, and the two executrices of her estate were substituted as plaintiffs in this matter. --------
Appellants' brief filed with this Court contains five issues for our review:
1. Did the trial court improperly apply the MCARE Act's statute of repose to [Appellants'] claims in this matter which are based on a criminal and intentional battery purely performed for pecuniary gain and the cardiac stent placement surgery performed on Ms. Shields was not, by definition, a "healthcare service" because the procedure was a sham, not medically
necessary and thus would not provide any benefit to [] Ms. Shields' health?Appellants' brief at 3-5.
2. Did the trial court improperly apply the MCARE Act's statute of repose to [Appellants'] claims in this matter that were based on intentional, criminal and fraudulent conduct by [Appellees] performed only for pecuniary gain, despite the legislature's intent in that the MCARE Act only apply [sic] to medical malpractice claims?
3. Did the trial court improperly apply the MCARE Act's statute of repose to [Appellants'] claims for fraud and violations of the Pennsylvania UTPCPL when the MCARE Act does not specifically abrogate those causes of action?
4. Did the trial court improperly apply the MCARE Act's statute of repose to [Appellants'] claims for violations of the Pennsylvania UTPCPL when such claims are statutory causes of action that cannot be defined as torts or breaches of contract?
5. Did the trial court improperly apply the MCARE Act's statute of repose to [Appellants'] claims in this matter when [Appellants] pled continuing fraud and concealment and there was evidence in the record that there were new and continuing acts of fraud and concealment within the seven-year statute of repose that could serve as a basis for [Appellants'] claims?
In addressing Appellants' issues, we are guided by our well-settled standard of review for judgment on the pleadings.
Entry of judgment on the pleadings is permitted under Pennsylvania Rule of Civil Procedure 1034, which provides that "after the pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for judgment on the pleadings." Pa.R.C.P. 1034(a). A motion for judgment on the pleadings is similar to a demurrer. It may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law.
Appellate review of an order granting a motion for judgment on the pleadings is plenary. The appellate court will apply the same
standard employed by the trial court. A trial court must confine its consideration to the pleadings and relevant documents. The court must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted.Century Surety Co. v. Essington Auto Center , LLC , 140 A.3d 46, 51 (Pa. Super. 2016) (quoting Sw. Energy Prod. Co. v. Forest Res., LLC , 83 A.3d 177, 185 (Pa. Super. 2013) (citation omitted)).
We will affirm the grant of such a motion only when the moving party's right to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless exercise.
We have reviewed the certified record, the briefs of the parties, the applicable law, and the thorough, well-written opinion authored by the Honorable Denis P. Cohen of the Court of Common Pleas of Philadelphia County, dated June 28, 2016. We conclude that Judge Cohen's comprehensive opinion properly disposes of the issues presented by Appellants on appeal and we discern no abuse of discretion or error of law. Accordingly, we adopt Judge Cohen's opinion as our own and, on the basis stated therein, we affirm the orders appealed from that granted Appellees' motions for judgment on the pleadings and dismissed Appellants' complaint with prejudice.
Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/31/2017
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