Jon Campisi Feb. 3, 2014, 6:58am


A Pennsylvania appellate court panel has ruled that a Montgomery County

judge was wrong to dismiss a wrongful death and medical malpractice case brought by a woman whose mother died while under a hospital’s care.

The three-judge Superior Court panel on Jan. 31 reversed an April 2013 order by Montgomery County Common Pleas Court Judge Arthur Tilson dismissing a complaint by Donna Jones against Mercy Suburban Hospital and doctors Lee Konecke and Hugh Lipshutz.

Jones filed suit back in the summer of 2002 alleging the two physicians were negligent in the care of her mother, Marie Mulgrew, who died on March 11, 2000, three days after she was admitted to the hospital, which is located in East Norriton Township, Montgomery County.

After years of pre-trial discovery, the case was finally scheduled to go to trial in the fall of 2012, but it was continued after the plaintiff’s attorney had to take time off to care for his ill wife, records show.

Less than a month before the trial was set to commence, in early April of last year, Jones filed a continuance motion, saying her own health was now preventing her from appearing for trial.

On April 10, Tilson, the trial judge, dismissed the case due to the plaintiff’s inability to proceed with trial, the record shows.

Jones filed an appeal with the Superior Court on April 19.

The defendants argued that Jones waived her right to appeal for failure to seek relief from the trial court.

Defense attorneys asserted that when Tilson dismissed the case because Jones was not prepared for trial, and neither the hospital nor the doctors moved for a nonsuit, the court essentially entered a judgment of non pros.

The appeals panel, however, noted that there was nothing on the court docket indicating that a judgment of non pros had been entered.

Because no further action was taken, the appeals panel wrote, the conclusion is that Tilson’s order was a final order.

The panel wrote that the effect of Tilson’s order was “to end the litigation and, literally, put Jones out of court.”

Therefore, the appeals judges noted, it would have been improper for Jones to seek relief in a post-trial motion asking the trial court to remove a nonsuit.

The panel wrote that allowing Jones to pursue a direct appeal of Tilson’s order “serves the interests of fairness and justice because a direct appeal is her only mode of review.

“In the interest of justice, we will not deprive Jones of her day in court,” the Superior Court panel wrote.

In his order, portions of which are contained in the appellate ruling, Tilson had noted that Jones’s case was one of the “oldest cases in Montgomery County right now and it could have been brought to fruition earlier and it wasn’t …”

Tilson stated that while he felt sorry for the family of the deceased woman, because Jones wasn’t prepared to move forward at that junction, the case would have to be dismissed.

The appeals judges wrote that while it is clear there were ample delays on both sides, “it does not appear that the Doctors or Hospital have suffered prejudice sufficient to warrant the severe sanction of dismissal.”

The panel also pointed out that Tilson, in his order, provided little explanation of what prejudice, if any, he felt the defendants suffered.

“While we acknowledge that delays can be costly and inconvenient for both the courts and the parties, they are not a reason to deprive either party of its day in court,” the Superior Court ruling states. “This Court has repeatedly held that a court’s legitimate interest in controlling its docket should not unnecessarily infringe upon a litigant’s right to a trial.

“It is troubling that Judge Tilson dismissed Jones’ case because it was old,” the panel continued. “While we appreciate the court’s concern for the orderly and speedy administration of justice, it was an improper exercise of discretion to dismiss Jones’ case.”

The panel remanded the case to Montgomery County for a new trial.

The Superior Court panel was made up of Judges John Bender, Anne Lazarus, and James Fitzgerald.

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