Pennsylvania Record

Sunday, March 29, 2020

Patient's appeal of malpractice trial result not valid, rules Superior Court


By Nicholas Malfitano | Jul 30, 2018


HARRISBURG – A three-judge panel of the Superior Court of Pennsylvania threw out the post-trial appeal of a plaintiff who filed a medical malpractice complaint against Philadelphia-area doctors for reasons of jurisdiction, due to the trial court not having entered a final judgment on the case’s verdict.

Superior Court judges Jacqueline O. Shogan, Anne E. Lazarus and Alice Beck Dubow rejected the post-trial motion appeal of plaintiff Donald Knudsen as pre-mature, since the Montgomery County Court of Common Pleas never rendered a judgment in the original matter.

Knudsen filed an amended medical malpractice complaint against defendants Dr. Eliot Brownstein, Dr. Aneesh Khushman, Glenside Internal Medicine, Presbyterian Hospital Medical Center and the Trustees of the University of Pennsylvania in the Montgomery County Court of Common Pleas on April 6, 2016 – specifically alleging counts of negligence and fraud against Kushman.

Knudsen alleged the defendants’ (and particularly, Khushman’s) inadequate medical care led him to develop arterial thrombosis, lose his left foot, suffer infection and require a prosthetic medical device. However, Khushman failed to file an answer to the complaint.

“On June 1, 2016, the prothonotary entered a default judgment in appellant’s favor and against Khushman pursuant to Pa.R.C.P. No. 1037(b). On July 19, 2017, the trial court held a bench trial on damages pursuant to Pa.R.C.P. No. 1037(b)(2). Appellant appeared for trial and presented evidence against Khushman. Khushman did not appear,” Dubow said.

“Following the trial on damages, the court concluded that appellant had failed to present evidence that Khushman’s conduct was the legal cause of appellant’s injuries. Thus, the court awarded appellant zero damages.”

As a result, Knudsen filed a post-trial motion, which the trial court granted in part and denied in part on Oct. 13, 2017, leading to Knudsen to appeal on three points: 1) Whether the trial court erred by determining causation at appellant’s assessment of damages hearing? 2) Whether the trial court erred [in] holding [that] appellant failed to make out causation on his claim for negligence where default judgment had already been obtained? 3) Whether the trial court erred in holding [that] appellant failed to establish by clear and convincing evidence that appellee’s fraud was a factual cause of any injury or loss to appellant?

Dubow explained the Superior Court had no jurisdiction over Knudsen’s appeal, since the Montgomery County court never entered final judgment on the verdict.

“As noted…following the prothonotary’s entry of a default judgment in appellant’s favor, the trial court held a trial to assess the amount of appellant’s damages. Displeased with the trial court’s zero-dollar verdict, appellant filed a post-trial motion. The court granted the motion in part and denied it in part, but did not enter judgment on the verdict,” Dubow said.

“It is axiomatic that an appeal to the Superior Court can only lie from a judgment entered subsequent to the trial court’s disposition of a party’s post-trial motion, not from the order denying the post-trial motion. Because the trial court has not entered judgment in this matter, this appeal is premature. Accordingly, we quash it.”

The plaintiff is represented by Aaron Freiwald, Glenn A. Ellis and Matthew J. Bravette of Freiwald Law, in Philadelphia.

The defendants are represented by Benjamin A. Post and Andrew K. Worek of Post & Post in Berwyn, plus James A. Young and Samantha L. Conway of Christie & Young, in Philadelphia.

Superior Court of Pennsylvania case 3453 EDA 2017

Montgomery County Court of Common Pleas case 2013-23058

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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Superior Court of Pennsylvania Freiwald Law PC