Holmes v. Lankenau Hosp.

• Decision Date: 02 July 1993
• Parties: Gail HOLMES and Terri Hyden, Co-Administrators of the Estate of Phillip W. Johnson, Deceased, Appellants, v. LANKENAU HOSPITAL; Lankenau Hospital, Dept. of Radiology; Dr. Judith Johnson; Dr. Howard A. Richter; Dr. Nelson M. Oyesiku; Dr. Robert Fine; Dr. Charles Schnall; Dr. Ronald W. Russell; Dr. Shiun-Tin-Kerr; Dr. Robert K. Jones; Dr. Irwin K. Kline; Dr. Hugo Rodriguez; Dr. Michael E. Fischer; Dr. Daniel Erhard; Dr. Benack; Dr. Piazza; and Dr. Gallagher, Appellees.
• Court: Pennsylvania Superior Court

Page 763

627 A.2d 763

426 Pa.Super. 452

Gail HOLMES and Terri Hyden, Co-Administrators of the Estate of Phillip W. Johnson, Deceased, Appellants, v. LANKENAU HOSPITAL; Lankenau Hospital, Dept. of Radiology Dr. Judith Johnson; Dr. Howard A. Richter; Dr. Nelson M Oyesiku; Dr. Robert Fine; Dr. Charles Schnall; Dr. Ronald W. Russell; Dr. Shiun-Tin-Kerr; Dr. Robert K. Jones; Dr Irwin K. Kline; Dr. Hugo Rodriguez; Dr. Michael E Fischer; Dr. Daniel Erhard; Dr. Benack; Dr. Piazza; and Dr. Gallagher, Appellees.

Superior Court of Pennsylvania.

Argued Feb. 18, 1993.

Filed July 2, 1993.

Larry Glass, Philadelphia, for appellants.

Robin B. Arnold, Philadelphia, for appellee Lankenau.

Robert B. Mulhern, Jr., Philadelphia, for appellees Fine and Schnall.

Patrick J. McMenamin, Jr., Norristown, for appellees Richter and Oyesiku.

Before BECK, POPOVICH, JJ., and BROSKY, JJ.

POPOVICH, Judge.

This is an appeal from an order granting appellees' motions for summary judgment. We find that the trial court did not err in granting summary judgment. Accordingly, we affirm.

The facts of the present case are as follows: Appellants, Gail Holmes and Terri Hyden, filed a medical malpractice suit against appellees, Lankenau Hospital, Dr. Johnson, Dr. Russell, Dr. Kerr, Dr. Richter and Dr. Fine. Appellants alleged that appellees negligently treated their father, Phillip Johnson, at Lankenau Hospital.

On February 4, 1984, Phillip Johnson fell in the home of Reuben and Girdell Robinson. Thereafter, he was taken to Lankenau Hospital for emergency treatment of injuries he sustained in the fall. Mr. Johnson was then admitted to Lankenau Hospital for further treatment. Phillip Johnson died at Lankenau Hospital on February 9, 1984.

On March 19, 1985, Gail Holmes, in her capacity as co-administratrix of Johnson's estate, executed a signed release, witnessed by Terri Hyden, in favor of Reuben and Girdell Robinson, in exchange for the sum of $10,000.00. The release provides, in relevant part:

I do hereby release and forever discharge Reuben Robinson and Girdell Robinson and any other person, firm or corporation charged or chargeable with responsibility or liability, their heirs, representatives and assigns, from any and all claims, demands, damages, costs, expenses, loss of services, actions and causes of action arising from any act or occurrence up to the present time ... in consequence of an accident that occurred on or about the 4th day of February, 1984, at or near [the Robinson's home] (emphasis added).

After the existence of the release was disclosed to appellees through discovery, appellees filed motions for summary judgment that were granted by the trial court.

On appeal, appellants raise the following issues:

1. [Appellees] failed to plead "release" as an affirmative defense, so that summary judgments based on the release were improperly entered.

2. Summary judgment based on the release, was inappropriate where the signing [appellant] could not, and did not, reasonably understand the release to cover possible medical malpractice.

3. The release, as worded, does not bind the estate so as to prevent claims for future medical malpractice, where only one of the co-administrators executed the release.

An order granting summary judgment will not be reversed unless the trial court has committed an error of law or clearly abused its discretion. Cooperstein v. Liberty Mutual Fire Insurance Company, 416 Pa.Super. 488, 611 A.2d 721 (1992). Summary judgment is to be granted only in those cases that are clear and free from doubt, where the undisputed allegations of the pleadings and the other permissible material filed in support of and in opposition to the motion reveal that there is no genuine issue as to a material fact and that the movant is entitled to judgment as a matter of law. Krause v. Great Lakes Holdings, Inc., 387 Pa.Super. 56, 563 A.2d 1182 (1989), appeal denied, 524 Pa. 629, 574 A.2d 70 (1990); Pa.R.C.P. No. 1035, 42 Pa.C.S.A.

Appellants argue that the trial court improperly granted summary judgment. Appellants claim that appellees failed to plead release as an affirmative defense as new matter, and therefore, waived the right to assert the defense in a motion for summary judgment. We disagree.

According to Pa.R.C.P. No. 1030, 42 Pa.C.S.A., release is an affirmative defense that must be pleaded in a responsive pleading under the heading "New Matter." If the affirmative defense of release is not pleaded according to Rule 1030, the right to assert the defense has been waived. Ruhe v. Kroger Company, 425 Pa. 213, 228 A.2d 750 (1967).

In the instant case, appellees had no knowledge of the release when they filed their answers and new matter. The existence of the release was revealed through discovery sometime after pleadings had been filed. According to the rules of procedure, appellees should have requested leave to amend the new matter portion of their answers to include the affirmative defense of release. Pa.R.C.P. No. 1033, 42 Pa.C.S.A. Motions for summary judgment could then have been filed following the filing of appellees' amended pleadings. Instead, appellees simply filed a motion for summary judgment based on the release.

Although we find that appellees did not technically follow the rules of civil procedure, appellees' procedural error does not warrant reversal of the trial court's order granting summary judgment. The rules of civil procedure must be liberally construed so that actions such as the present one are resolved in a just, speedy, and inexpensive manner consistent with Pa.R.C.P. No. 126. ¹

Appellants have failed to show that they were prejudiced by appellees' failure to comply strictly with procedural rules. Appellants had the opportunity to respond to appellees' motion for summary judgment. Therefore, although appellees did not amend their pleadings so as to include the defense of release, appellants were not denied the opportunity to respond to appellees' arguments regarding the defense.

A panel of this court was recently presented with a similar issue in DiLauro v. One Bala Avenue Associates, 419 Pa.Super. 191, 615 A.2d 90 (1992). The plaintiff in DiLauro, argued that the trial court erred by instructing the jury on the defense of assumption of risk because the defendants failed to assert the defense of assumption of risk in responsive pleadings. Although this court acknowledged that all affirmative defenses must be pleaded in a responsive pleading under the heading "New Matter," this court ruled that the trial court correctly admitted the defense. This court stated the following in DiLauro:

A trial court may on its own motion, permit or require amendment of a pleading, except where surprise or prejudice to the other party would result. Spain v. Vicente, 315 Pa.Super. 135, 144, 461 A.2d 833 (1983); Sullivan v. Allegheny Ford Truck Sales, 283 Pa.Super. 351, 357, 423 A.2d 1292, 1295 (1980). Contrary to his present assertions, appellant was well aware before trial that the defense of assumption of the risk would be a central issue in this case. Appellees' trial brief is replete with references to "assumption of the risk." ... Finding no surprise or prejudice to appellant, it was entirely proper for the lower court to instruct the jury on assumption of risk. By so doing, the court, in effect, permitted amendment of appellees' answer on its own motion.

615 A.2d at 93 (emphasis added).

Presently, appellants were obviously aware of the release. The appellees' assertion of the defense of release in motions for summary judgment did not cause either surprise or prejudice to appellants. In their response to appellees' motions for summary judgment, appellants argued that since appellees had not pleaded the affirmative defense of release, the defense had been waived. By granting the appellees' motions for summary judgment, the trial court, in effect, permitted amendment of appellees' answer on its own motion. DiLauro.

Additionally, a decision to reverse the trial court's grant of summary judgment because of this procedural defect would conflict with our supreme court's decision not to place form over substance. Specifically, our supreme court stated the following:

It has been our policy to overlook ... procedural errors when a party has substantially complied with the requirements of the rule and no prejudice would result. "Procedural rules are not ends in themselves, but means whereby justice, as expressed in legal principles, is administered. They are not to be exalted to the status of substantive objectives. McKay v. Beatty, 348 Pa. 286-87, 35 A.2d 264, 265 (1944). See also Chiara Estate, 467 Pa. 586, 593-94, 359 A.2d 756, 760-61 (1976). The Superior Court has succinctly stated the principle: "The niceties of procedure and pleading make fine intelligence games for lawyers but should never be used to deny ultimate justice. This is the reason for our modern approach to rules of civil procedure." Godina v. Oswald, 206 Pa.Super. 51, 55, 211 A.2d 91, 93 (1965).

Griffin v. Tedesco, 336 Pa.Super. 586, 593, 486 A.2d 419, 423 (1984), quoting Pomerantz v. Goldstein, 479 Pa. 175, 178, 387 A.2d 1280 (1978). Given the absence of prejudice and surprise to appellants, we find that the trial court properly granted appellees' motions for summary judgment notwithstanding appellees' failure to argue the release as an affirmative defense in amended pleadings.

Appellants' second argument is that the trial court should not have granted summary judgment based on the release because appellant who signed the release did not understand that the release included medical malpractice claims against the appellees. Although appellant claims that she did not intend to release appellees when she signed the release, the effect of a release is determined by the ordinary meaning of its language. Estate of Bodnar, 472 Pa. 383, 386, 372 A.2d 746, 748 (1977). This court interpreted a similar release to the present one in ...