Bonavitacola v. Cluver
| Citation | 422 Pa.Super. 556,619 A.2d 1363 |
| Parties | Paula BONAVITACOLA, Individually and as Administratrix of the Estate of Dominic S. Bonavitacola, also Known as Dominic J. Bonavitacola, Dec'd., Appellee, v. Henry J. CLUVER, D.M.D., and William E. Munley, D.M.D., and Henry J. Cluver, D.M.D., William E. Munley, D.M.D., F.A.G.D., P.C. Appeal of Henry J. CLUVER, D.M.D. and Henry J. Cluver, D.M.D., William E. Munley, D.M.D., F.A.G.D., P.C., Appellants. |
| Decision Date | 16 February 1993 |
| Court | Pennsylvania Superior Court |
Roberta D. Pichini, Philadelphia, for appellee.
Before CAVANAUGH, KELLY and HOFFMAN, JJ.
In this case we are called upon to determine whether we must quash the appeal because the order denying appellants' post-verdict motions was not reduced to judgment. We conclude that quashal is inappropriate. Accordingly, we deny appellee's motion to quash and address appellants' arguments. Finding merit in none of appellants' arguments, we affirm.
Giving all reasonable inferences to the appellees, the jury verdict winners, we summarize the history of this case as follows. Dominic Bonavitacola had scheduled a dentist appointment with appellant, Dr. Cluver, for October 1, 1987. Mr. Bonavitacola had routinely taken penicillin before and after dental procedures that involved the risk of bleeding, because he had two heart conditions, mitral valve prolapse and rheumatic heart disease, which rendered his heart susceptible to contracting an infection, bacterial endocarditis, if ordinary mouth bacteria entered the blood stream.
Because he was aware of his condition, Mr. Bonavitacola telephoned Dr. Cluver, requesting whether he would receive a prescription for penicillin before the October 1 The dentist, using a drill, accessed not only the top of that tooth, but also the back of the tooth, at the gum line. The procedure caused the gums to bleed. Mouth bacteria, streptococcus viridans, entered Mr. Bonavitacola's blood stream and, still alive due to the absence of penicillin, thrived in the heart, causing bacterial endocarditis.
1987 visit. Although Dr. Cluver was also aware of Mr. Bonavitacola' condition, see, e.g., Reproduced Record at 1370a (), he told Mr. Bonavitacola that he would not need the antibiotic for the October 1, 1987 procedure. Apparently, Dr. Cluver believed that the scheduled procedure, superficial work on "tooth number 15," would not involve bleeding.
Mr. Bonavitacola suffered pain and underwent intravenous therapy. The infections in his heart spread and eventually caused brain damage. A brain hemorrhage was the ultimate cause of Mr. Bonavitacola's death on February 13, 1988, only five and one-half months after his dental visit with Dr. Cluver.
Mrs. Bonavitacola, individually, and as administratrix of her husband's estate, instituted this action against Dr. Cluver, Dr. Munley, and their corporation, Henry J. Cluver, D.M.D. and William E. Munley, D.M.D., F.A.G.D., P.C. At trial, before Judge Lawhorne and a jury, the above facts were adduced. The jury rejected appellants' theories that the October 1, 1987 procedure was not likely to result in bleeding, that Dr. Cluver had indeed prescribed penicillin for the procedure, and that Mr. Bonavitacola was contributorily negligent. A directed verdict was entered in favor of Dr. Munley. However, the jury entered verdicts against Dr. Cluver and the corporation. After a separate hearing on damages, the jury returned a verdict for $3,169,661.00, which the court molded to $4,032,918.10, to reflect delay damages pursuant to Pa.R.Civ.P. 238.
Appellants filed post-trial motions, seeking a new trial. On October 17, 1991, Judge Lawhorne entered an order denying appellants' motion for a new trial and an amended motion for a new trial. Appellants filed this appeal on November 7, 1991. As Judge Lawhorne had left the bench, Judge Cronin filed an opinion in support of the order denying post-verdict motions on May 28, 1992.
On January 3, 1992, the Central Legal Staff of this Court sent a letter to appellants' attorney advising that the appeal may be dismissed because judgment had not been entered and an order denying post-trial motions is interlocutory. Appellants' attorney responded, explaining that he would not praecipe for judgment because such an action would render appellants liable for more than the amount for which they were insured. Accordingly, counsel refused to praecipe for judgment.
After advising appellants of her intention to move this Court to quash the appeal with prejudice, appellee filed a motion to quash on February 26, 1992. Appellants responded, and we deferred resolution of the motion to quash.
Appellee argues that the instant appeal should be quashed with prejudice because appellants did not reduce to judgment the order denying post-trial motions. Appellee further argues that, in this case, we should not consider this appeal as one from judgment because appellants have openly refused to follow directives from this Court's Central Legal Staff to praecipe the prothonotary to enter judgment. Counsel for appellants refuses to praecipe for the entry of judgment because such an action would render appellants liable for an amount greater than their professional liability insurance indemnifies them. For the reasons that follow, we deny appellants' motion to quash.
Although an order denying post-trial motions is interlocutory, Pa.R.A.P. 301(a), (c) and (d) and 904(d), we allow an appeal lying from an interlocutory order when the only step to be taken is the entry of judgment. See e.g. McCormick v. Northeastern Bank of PA, 522 Pa. 251 These principles apply, notwithstanding a direct refusal by an appellant to enter judgment. The policy of judicial economy does not apply only with the willing participation of counsel. The policy behind our entertaining the merits of an appeal from an otherwise interlocutory order is to efficiently dispose of an appeal which cannot be stopped from ever returning.
254 n. 1, 561 A.2d 328, 330 n. 1 (1989); Summit Fasteners v. Harleysville Nat'l Bank, 410 Pa.Super. 56, 59 n. 1, 599 A.2d 203, 205 n. 1 (1991), allocatur denied, 530 Pa. 633, 606 A.2d 902 (1992). As long as the order from which a party appeals "was clearly intended to be a final pronouncement on the matters discussed [422 Pa.Super. 563] in the opinion [accompanying the order], ... the appeal is properly before us and ... we have jurisdiction to address the parties' claims." Murphy v. Murphy, 410 Pa.Super. 146, 152, 599 A.2d 647, 650 (1991), allocatur denied, 530 Pa. 633, 606 A.2d 902 (1992). The rationale behind treating this appeal as one from an entered judgment is to allow the appeal which is in progress to proceed, economizing judicial resources. McCormick, supra; Summit Fasteners, supra. See also Murphy v. Murphy, supra, 410 Pa.Super. at 152, 599 A.2d at 650. Were we to quash an appeal from an order which, except for the entry of judgment, is otherwise final, we would expend judicial resources in the decision to quash, one of the parties would inevitably praecipe the prothonotary to enter judgment, and a subsequent appeal would be permitted to follow. See McCormick, supra, citing Commonwealth v. Allen, 278 Pa.Super. 501, 505 n. 3, 420 A.2d 653, 654 n. 3 (1980)
Our research has not disclosed a sanction of "quashing with prejudice." Pennsylvania Rule of Appellate Procedure 902 provides:
An appeal permitted by law as of right from a lower court to an appellate court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 903 (time for appeal). Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but it is subject to such action as the appellate court deems appropriate, which may include, but is not limited to, remand of the matter to the lower court so that the omitted procedural step may be taken.
Therefore, the failure to praecipe to enter judgment "does not affect the validity of the appeal." Id. Accordingly, were we to exercise the option provided by the rule and remand, we would have no authority to quash with prejudice against an appellant to cure the omission and file a second appeal.
Because the court is without the power to sanction with "a quashal with prejudice," the policy of promoting judicial economy is present, even when an appellant defies a warning by our Central Legal Staff. We can quash without prejudice, but, as we have consistently recognized, that course of action serves to consume more judicial resources, to encourage more litigation costs, and to postpone the disposition of the appeal.
In the instant case, in the interests of judicial economy, we deny appellee's motion to quash. 1 As the appeal is ripe for disposition, we decide the issues raised by the parties.
On appeal, appellants present the following issues for our review:
1. WHETHER IN A DENTAL MALPRACTICE CASE INVOLVING WHETHER PRE-MEDICATION WITH PENICILLIN WAS REQUIRED BEFORE THE ANTICIPATED PROCEDURE, THE TRIAL COURT ERRED IN REFUSING DEFENDANTS' REQUEST THAT THE JURY BE GIVEN THE "TWO SCHOOLS OF THOUGHT" INSTRUCTION.
2. WHETHER THE TRIAL COURT ERRED BY INFERRING [sic] TO THE JURY, IN ITS CHARGE, THAT DEFENDANTS WERE PROTECTED BY INSURANCE COVERAGE.
3. WHETHER THE TRIAL COURT ERRED IN ADMITTING, OVER OBJECTION, HEARSAY TESTIMONY BY THE DECEDENT'S WIDOW AS TO WHAT THE DENTIST ALLEGEDLY TOLD HER HUSBAND CONCERNING THE NEED FOR PRE-MEDICATION WITH PENICILLIN.
4. WHETHER THE TRIAL COURT ERRED IN RULING THAT THE VERDICT WAS NOT EXCESSIVE.
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