Pennsylvania Record

Tuesday, September 17, 2019

Dismissal of post-trial motion in medical malpractice case upheld by Superior Court

By Nicholas Malfitano | Sep 29, 2016

HARRISBURG – The Superior Court of Pennsylvania earlier this year ruled the Philadelphia County Court of Common Pleas was correct in dismissing a medical malpractice plaintiff’s post-trial motion, for not obtaining Notes of Testimony prior to filing said motion.

Judges Susan Peikes Gantman, Alice Beck Dubow and Sallie Updyke Mundy (now serving on the Supreme Court of Pennsylvania) decided July 5 plaintiff Thomas Williams, acting as administrator for the estate of decedent Gardenia Williams, would have his post-trial motion dismissed in his case against the Penn Center for Rehabilitation and Care, in addition to University of Pennsylvania Hospital and Trustees for the University of Pennsylvania.

On June 2, 2011, Williams filed a complaint alleging negligence and corporate negligence against the defendants, and a claim for breach of an oral contract against Penn Center and Manor Care of Yeadon, LLC and Manor Care, Inc., d/b/a Manor Care Health Services. Wrongful death and survival actions were added against Manor Care in the case the following month.

“On Feb. 27, 2012, the trial court sustained Manor Care’s preliminary objections resulting in the transfer of the wrongful death and survival actions against them to arbitration,” Dubow said. “After a 14-day trial, the jury entered a verdict for defendants on Dec. 12, 2013, and the plaintiff filed a motion for post-trial relief on Dec. 18, 2013. The next day, the trial court ordered appellant to file his post-trial brief within 30 days of receipt of the Notes of Testimony, but no later than Feb. 2, 2014.”

However, Williams filed a lengthy brief in support of his post-trial motion on Jan. 30, 2014, without having obtained the Notes of Testimony. Four weeks later, the defendants responded in alerting the court to that omission, arguing it “prevented them from being able to conduct meaningful substantive review of plaintiff’s claims of error.”

In March 2014, the trial court agreed and later denied Williams’ attempt at a motion for reconsideration – which led him to appeal to the Superior Court.

“Although the record is clear that plaintiff ordered the Notes of Testimony on Dec. 13 and Dec. 18, 2013, there is no evidence in the record substantiating the plaintiff’s claim that he paid the court reporter to obtain them. In fact, the trial court specifically found that ‘plaintiff failed to make financial arrangements for preparation of the notes of testimony,” Dubow said.

Dubow continued, concurring with the defense.

“In this case, notwithstanding that plaintiff requested the Notes of Testimony, [he] did not pay for the Notes of Testimony. Therefore, plaintiff did not exercise ‘due diligence” to ensure prompt receipt of the Notes of Testimony,” Dubow stated. “This neglect prevented both defendants and the trial court from being able to conduct meaningful and timely substantive review of the plaintiff’s claims of error. Accordingly, the trial court did not abuse its discretion in dismissing plaintiff’s post-trial motion.”

Dubow explained when “a party fails to comply with the rules governing post-trial motion practice”, the trial court may refuse to address other issues at dispute and hold they are not preserved for appeal.

“In this case, the trial court properly dismissed plaintiff’s post-trial motion as a result of plaintiff’s failure to exercise due diligence to pay for the Notes of Testimony,” Dubow said. “Since the plaintiff failed to pay for the Notes of Testimony, he could not obtain them and the trial court could not address the merits of the issues plaintiff raised in his post-trial motion.”

The plaintiff is represented by Rhonda Hill Wilson in Philadelphia.

The defendants are represented by Kathleen M. Kramer, Jennifer P. Reno and Daniel H. Tran of Marshall Dennehey Warner Coleman & Goggin in Philadelphia, plus Thomas M. Savon of Naulty Scaricamazza & McDevitt, also in Philadelphia.

Superior Court of Pennsylvania case 1167 EDA 2014

Philadelphia County Court of Common Pleas case 110503790

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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