Sayers v. Heritage Valley Med. Grp., Inc.

• Decision Date: 15 March 2021
• Docket Number: No. 405 WDA 2020,405 WDA 2020
• Citation: 247 A.3d 1155
• Parties: William Scott SAYERS, Individually, and as Administrator of the Estate of Patricia Ann Sayers, Appellants v. HERITAGE VALLEY MEDICAL GROUP, INC., Robert L. Grieco, M.D., Jessica Leigh Anderson, PA.C., Advanced Pain Medicine, P.C., Mark R. Lodico, M.D.; Matthew Lodico, M.D.; Richard Plowey, M.D.; Kevin Hibbard, M.D.; Med-Fast Pharmacy, Inc.; Med-Fast Pharmacy, L.P. ; Giant Eagle, Inc. t/d/b/a Giant Eagle Pharmacy; Wal-Mart Stores East, L.P. t/d/b/a Wal-Mart Pharmacy and Wal-Mart Stores, Inc. t/d/b/a Wal-Mart Pharmacy
• Court: Pennsylvania Superior Court

247 A.3d 1155

William Scott SAYERS, Individually, and as Administrator of the Estate of Patricia Ann Sayers, Appellants

v.HERITAGE VALLEY MEDICAL GROUP, INC., Robert L. Grieco, M.D., Jessica Leigh Anderson, PA.C., Advanced Pain Medicine, P.C., Mark R. Lodico, M.D.; Matthew Lodico, M.D.; Richard Plowey, M.D.; Kevin Hibbard, M.D.; Med-Fast Pharmacy, Inc.; Med-Fast Pharmacy, L.P. ; Giant Eagle, Inc. t/d/b/a Giant Eagle Pharmacy; Wal-Mart Stores East, L.P. t/d/b/a Wal-Mart Pharmacy and Wal-Mart Stores, Inc. t/d/b/a Wal-Mart Pharmacy

No. 405 WDA 2020

Superior Court of Pennsylvania.

Submitted August 24, 2020

Filed: March 15, 2021

Richard G. Talarico, Pittsburgh, for appellant.

George N. Stewart, IV, Greensburg, for Med-Fast, appellee.

Justin M. Gottwald, Pittsburgh, for Heritage Valley, appellee.

Daniel P. Carroll, Jr., Pittsburgh, for Advanced Pain Medicine, appellee.

James F. Rosenberg, Pittsburgh, for Giant Eagle, appellee.

Sharlenn E. Pratt, King of Prussia, for Walmart, appellee.

Rebecca A. Sember Izsak, Pittsburgh, for Walmart, appellee.

BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

OPINION BY OLSON, J.:

Appellants, William Scott Sayers, individually and as administrator of the estate of Patricia Ann Sayers, his wife, (collectively, "Appellants") appeal from the February 20, 2020 order sustaining the preliminary objections filed by Heritage Valley Medical Group, Inc., Robert L. Grieco, M.D., and Jessica Leigh Anderson, PA.C. (collectively, "Heritage Valley"),¹ as well as the amended preliminary objections filed by Advanced Pain Medicine, P.C., Mark R. Lodico, M.D., Matthew Lodico, M.D., Richard Plowey, M.D., and Kevin Hibbard, M.D. (collectively, "Advanced Pain Medicine"), Med-Fast Pharmacy, Inc. and Med-Fast Pharmacy, L.P. (collectively, "Med-Fast Pharmacy"), Giant Eagle, Inc. t/d/b/a Giant Eagle Pharmacy (collectively, "Giant Eagle"), and Wal-Mart Stores East, L.P. t/d/b/a Wal-Mart Pharmacy and Wal-Mart Stores, Inc. t/d/b/a Wal-Mart Pharmacy (collectively, "Wal-Mart") (all defending parties collectively referred to as "Appellees"), and dismissing Appellants’ complaint. The preliminary objections filed on behalf of Appellees alleged that Appellants failed to toll the statute of limitations through the issuance of their writ of summons. We affirm.

The record demonstrates that Patricia Ann Sayers ("Sayers") died on April 19, 2015, as a result of combined drug poisoning. Appellants initiated causes of action for medical malpractice² in connection with Sayers’ death against Appellees by filing a praecipe for writ of summons on April 18, 2017. No attempt at service of the writ appears in the record. On August 10, 2017, Appellants filed a praecipe to reissue the writ of summons. No attempt at service of the reissued writ appears in the record. On March 18, 2019, current counsel entered his appearance on behalf of Appellants, and Appellants subsequently filed a praecipe to reissue the writ of summons on April 3, 2019. Appellants served the reissued writ of summons on each defending party at various times in April 2019.³

On May 20, 2019, Appellants filed a complaint against Appellees for medical malpractice. Appellees each raised, inter alia , a statute of limitations defense by way of preliminary objections.⁴ Appellants then filed preliminary objections to Appellees’ preliminary objections.⁵ The trial court entertained argument on the parties’ respective positions on January 28, 2020. At argument, Appellees asserted that the writ of summons issued by Appellants did not toll the applicable statute of limitations. N.T., 1/28/20, at 7-13. Appellants did not dispute the substantive merit of this assertion but merely responded that the statute of limitations defense must be raised in new matter and, therefore, it did not constitute grounds to dismiss Appellants’ complaint. Id. at 14-18. Finding that the pleadings and record clearly established that the writ of summons issued by Appellants failed to toll the statute of limitations, the trial court addressed the statute of limitations defense in the interest of judicial economy and dismissed Appellants’ complaint. Trial Court Opinion, 2/20/20, at 10-11. This appeal followed.

Appellants raise the following issues for our review:

[1.] Whether the trial court abused its discretion and/or erred as a matter of law in granting Appellees' preliminary objections on statute of limitation grounds where that affirmative defense must be plead[ed] in [ ] new matter and not in preliminary objections?

[2.] Whether the trial court abused its discretion and/or erred as a matter of law in dismissing all [Appellees] on partial grounds of lack of [personal] jurisdiction where not all [Appellees] raised this defense in their responsive pleading and[,] therefore[,] waived it?

Appellants’ Brief at 7.

Appellants’ first issue challenges the trial court's order sustaining Appellees’ preliminary objections and dismissing Appellants’ complaint on the grounds that Appellants’ writ of summons failed to toll the applicable statute of limitations. Id. at 12-15. Appellants contend that all affirmative defenses, including a statute of limitations defense, must be raised in new matter and that Appellees incorrectly raised a statute of limitations defense in their preliminary objections. Id. Appellants assert that the trial court erred by overlooking "Appellees’ failure to raise their statute of limitations defenses in [ ] new matter" and "reached an improperly plead[ed] issue on the merits" in reliance upon judicial economy. Id.

Whether a trial court may address the merits of a statute of limitations defense, when improperly raised in preliminary objections as opposed to new matter, requires this Court to interpret the Rules of Civil Procedure. Thus, our standard of review is de novo and our scope of review is plenary. See Neducsin v. Caplan , 121 A.3d 498, 507 (Pa. Super.), appeal denied , 635 Pa. 725, 131 A.3d 492 (2015). "The object of all interpretation and construction of [the Rules of Civil Procedure] is to ascertain and effectuate the intention of [our] Supreme Court." Pa.R.Civ.P. 127(a). In so doing, the Rules are to be "liberally construed to secure the just, speedy[,] and inexpensive determination of every action or proceeding to which they are applicable." Pa.R.Civ.P. 126.

Generally, a statute of limitations defense is properly raised in new matter and not in preliminary objections. See Pa.R.Civ.P. 1030(a) (stating, "all affirmative defenses including but not limited to the defenses of ... statute of limitations ... shall be pleaded in a responsive pleading under the heading ‘New Matter’ "). This Court in Cooper v. Downington Sch. Dist. , however, held that,

[a]lthough the issue of the expiration of the statute of limitations is properly raised under new matter, rather than by preliminary objection, we will reach the merits at this time, in the interests of judicial economy, for two reasons. First, it was briefed, argued, and considered in the [trial] court. Secondly, once the statute of limitations is raised in new matter, [the defendant's] right to a judgment on the pleadings, based on the statute of limitations, will be clear. Therefore, we see no reason to remand this case for further pleadings.

Cooper v. Downingtown Sch. Dist. , 238 Pa.Super. 404, 357 A.2d 619, 621 (1976) (citations and footnotes omitted). This Court rejected the application of Cooper in Duffee v. Judson , a case involving a statute of frauds defense, stating that our Supreme Court's holding in Brown v. Hahn , 419 Pa. 42, 213 A.2d 342 (1965) was the "better rule" for considering the propriety of raising a statute of frauds defense in preliminary objections. Duffee v. Judson , 251 Pa.Super. 406, 380 A.2d 843, 845 (1977). In Brown , our Supreme Court held,

if the particular statute of frauds operates to bar or destroy the plaintiff's right of action, irrespective of the action of the defendant, such statute may be raised by preliminary objections [pursuant to] Rule 1017(b)[. I]f the particular statute of frauds merely gives the defendant a waivable defense, [however,] the plaintiff will have stated a cause of action to which the defendant may, if he chooses, defend on the ground of the statute [of frauds] and, under such circumstances, the statute [of frauds] must be asserted under ‘New Matter’ [pursuant to] Rule 1030.

Brown , 213 A.2d at 344 (extraneous capitalization omitted).

Unlike Appellants, who read Duffee as forbidding a flexible and efficient application of our Rules of Civil Procedure, we find Duffee distinguishable from the case sub judice . In Duffee , the plaintiff failed to admit or plead on the record the relevant facts that demonstrated the defendant's right to prevail under the statute of frauds. Duffee , 380 A.2d at 845 n.2. In other words, it was not clear from the record in Duffee that if the statute of frauds defense were raised as new matter, and not by means of preliminary objections, the defendant had the right to obtain a judgment on the pleadings. Moreover, it is important to note that our Supreme Court, in Brown (the legal precedent underpinning Duffee ), addressed the merits of the statute of frauds defense, despite the Court's conclusion that the defense was raised improperly by way of preliminary objections. The Court, in Brown , stated,

[e]ven though [defendant] erred procedurally, ... we should decide this appeal on its merits as though the issue of the statute of frauds had been properly raised under Rule 1030. All the relevant documents have been stipulated by the parties and made part of the record, the question of the statute of frauds was presented to and determined by the court below and both parties have briefed and argued the question before this Court. Nothing is to be gained by sending the parties back to the trial court to set their procedural house in order before coming once again to this Court with the identical controversy.

Brown , 213 A.2d at 346. In other words, the "best rule" as...