Grunde v. Huff

Decision Date07 April 1994
Citation433 Pa.Super. 94,639 A.2d 1227
PartiesKathleen GRUNDE and Arno Grunde, v. Denise HUFF, M.D., Appellant.
CourtPennsylvania Superior Court

Kevin H. Wright, Plymouth Meeting, for appellant.

Henry B. Fitzpatrick, Philadelphia, for appellee.

Before BECK, TAMILIA and HESTER, JJ.

HESTER, Judge:

The conduct in this case demonstrates the type of legal maneuvering which suggests to the public that lawyers are akin to combat infantrymen operating in a battle zone engaging in hand-to-hand combat. From the filing of this lawsuit and its eleventh hour discontinuance, to the scheduling of discovery and the refusal to accommodate reasonable requests, to the conduct of the attorneys at the deposition of the defendant, the key word here is unprofessional. As an aid to understanding the issues, we have set forth an extensive narrative of the facts and procedural history. For the reasons which follow, we reverse.

On September 1, 1990, plaintiff-appellee Kathleen Grunde sought medical treatment from defendant-appellant Dr. Denise Huff of Pediatric Medical Associates for appellee's then seventeen-month-old daughter, Eileen. Dr. Huff described the child's left leg as extremely bruised and swollen from the foot to the knee. In fact, the color was so bad the doctor was concerned about the vascular supply to the leg. Since Dr. Huff immediately recognized that the child's leg was severely fractured by looking at it, she referred Mrs. Grunde to Children's Hospital in Philadelphia. An orthopedic surgeon at Children's Hospital diagnosed a "crush" fracture to the fibula and tibia at the growth plate.

In her deposition, Dr. Huff stated that Mrs. Grunde, uncertain as to how the injury happened, opined that the child may have caught her leg between the crib bars. Dr. Huff also stated that Mrs. Grunde told a nurse at Pediatric Medical Associates that she had dropped the child at Sesame Place. The orthopedic surgeon at Children's Hospital told Dr. Huff that Mrs. Grunde had stated that the child may have been injured on a ride at Sesame Place. Based on the differing explanations for this young child's severe injury, Dr. Huff concluded that she was obligated to report the child's injury pursuant to the Child Protective Services Law, 23 Pa.C.S. § 6311, 1 which she did on September 11, 1990.

Notwithstanding 23 Pa.C.S. § 6318, 2 the child's parents, Kathleen and Arno Grunde, appellees, hereinafter referred to as parents, filed a complaint on December 17, 1990, against Dr. Huff asserting causes of action for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence. The complaint was served on Dr. Huff on January 3, 1991. On January 21, 1991, parents served a notice of deposition upon Dr. Huff which was scheduled for January 29, 1991. On January 23, 1991, parents' counsel received a letter from counsel for Dr. Huff stating that Dr. Huff would not attend the deposition on January 29 for the following reasons: 1) the notice of deposition had been served fewer than thirty days following the service of the complaint, thus leave of court was required pursuant to Pa.R.C.P. 4007.2(b), 2) five business days notice was not reasonable notice as required by Pa.R.C.P. 4007.1(a), and 3) counsel was listed on the jury trial list at that time and likely would be engaged in a jury trial.

Parents' counsel wasted no time in firing back a letter the following day in which he responded that leave of court to take Dr. Huff's deposition was not required since Dr. Huff had served interrogatories on the plaintiffs; therefore, they had "otherwise sought discovery" thereby negating the requirement of obtaining leave of court. Counsel stated that he would "expect your client to be present for the deposition at the appointed time and place...." Reproduced Record ("R.R.") at 9a.

Notwithstanding Dr. Huff's notice that she could not be present for the deposition on the scheduled day, parents' counsel allegedly spent twelve hours preparing for the deposition and attended at the appointed date and time, waiting for three hours. Then, the next day, parents filed a petition for contempt and to compel attendance at deposition in which they requested that a fine be imposed and sanctions awarded in the form of counsel fees "for the time reasonably expended by counsel" and that Dr. Huff be ordered to appear for her deposition at a time and place convenient to plaintiffs within twenty days of entry of the order. R.R. at 14a. The court denied the petition on March 20, 1991.

Parents filed a petition for reconsideration or for a hearing on March 25, 1991. On July 22, 1991, the trial court filed the following order:

AND NOW, this 19th day of July, 1991, upon consideration of Plaintiffs' Petition for Reconsideration or For a Hearing, it is hereby ORDERED and DECREED that the Court's March 20, 1991 Order is vacated and that Defendant Denise Huff, M.D. is to submit to a deposition at a time and place convenient to plaintiffs not later than twenty (20) days from the date hereof, to pay a fine in the amount of $5,000.00 and to pay reasonable expenses, including counsel fees, incurred by plaintiffs as a result of her failure and the failure of the custodian of records to attend their January 29, 1991 deposition.

R.R. at 85a. By order dated August 5, 1991, and filed August 14, 1991, upon learning that Dr. Huff's deposition had taken place and upon being informed that the July 19, 1991 order mistakenly had omitted the word "or," the Honorable Anthony Semeraro corrected the July 19, 1991 order as follows: "not later than twenty (20) days from the date hereof, or to pay a fine in the amount of $5,000,00." The August 14, 1991 order also noted that Dr. Huff's appearance at deposition had been satisfied.

Parents filed a petition to confirm amount of counsel fees on August 2, 1991, requesting fees in the amount of $8,660.00 for the failure of Dr. Huff and the custodian of records to attend the January 29, 1991 deposition, and Dr. Huff replied. A hearing was held before Judge Semeraro on September 17, 1991, at which time the trial court directed the parties to file briefs. On May 27, 1992, another judge, the Honorable Kenneth A. Clouse, entered an order pursuant to the July 19, 1991 order and granted counsel fees to parents in the amount of $4,425.00 representing eighteen hours of legal work at $175.00 per hour and 10.2 hours at $125.00 per hour. Trial court opinion, 9/2/93 at 4.

On July 1, 1992, parents filed another petition for contempt alleging that Dr. Huff had failed to comply with the court's order of May 27, 1992, by refusing to pay counsel fees. Dr. Huff responded, but the court never ruled upon the matter.

A pretrial conference was held the week before trial was to begin. At the call of the list the following week, on May 3, 1993, counsel for Dr. Huff learned that unbeknownst to him, parents had filed a praecipe to discontinue without prejudice on April 27, 1993. On May 17, 1993, counsel for Dr. Huff twice wrote to the trial court requesting that an order terminating the litigation be entered since the praecipe to discontinue was not a final order, and he wished to file an appeal. R.R. at 162a-65a. In those letters, counsel suggested that the court utilize May 3, 1993, the date counsel attended the call of the list and was informed by the trial court that parents had praeciped to discontinue. While waiting for the requested order, appellant attempted to file a notice of appeal on June 1, 1993, but it allegedly was refused by the Office of Judicial Support because no final order had been entered on the docket. Therefore, on June 10, 1993, defendant-appellant filed a praecipe for an adverse order. Finally, on that day, in response to counsel's praecipe, the court entered the following order:

AND NOW, this 10th day of June, 1993, upon consideration of the Praecipe of plaintiffs' attorney to discontinue the above-captioned matter, and any response thereto, that request is granted and the Office of Judicial Support shall enter an Order dated May 3, 1993, indicating the matter has been discontinued.

Dr. Huff filed a notice of appeal the following day.

The trial court asserts that the appeal to this court should be quashed as untimely. Unfortunately, the court's reasons are unclear. On one hand, the court declares that the "entry" date of an order, not the "issuance" date is the pivotal date for purposes of calculating the timeliness of an appeal. In support, it cites Leckey v. Aetna Casualty and Surety Co., 404 Pa.Super. 323, 590 A.2d 1255 (1991). Our review of that case supports the timeliness of the appeal in the instant case...

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2 cases
  • McGovern v. Hospital Service Ass'n
    • United States
    • Pennsylvania Superior Court
    • October 26, 2001
    ...Pennsylvania Financial Responsibility Assigned Claims Plan, 454 Pa.Super. 512 [518-19], 686 A.2d 1, 4 (1996); Grunde v. Huff, 433 Pa.Super. 94, 101, 639 A.2d 1227, 1230 (1994). Absent a finding that the trial court abused its discretion, [the Superior] Court will not reverse an order sancti......
  • Croydon Plastics Co., Inc. v. Lower Bucks Cooling & Heating
    • United States
    • Pennsylvania Superior Court
    • July 29, 1997
    ...v. Pennsylvania Financial Responsibility Assigned Claims Plan, 454 Pa.Super. 512, ----, 686 A.2d 1, 4 (1996); Grunde v. Huff, 433 Pa.Super. 94, 101, 639 A.2d 1227, 1230 (1994). Absent a finding that the trial court abused its discretion, this Court will not reverse an order sanctioning a pa......

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