Brown v. Sloane

22 Pa. D. & C.5th 252
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedFebruary 17, 2011
Docketno. 01323
StatusPublished

This text of 22 Pa. D. & C.5th 252 (Brown v. Sloane) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Sloane, 22 Pa. D. & C.5th 252 (Pa. Super. Ct. 2011).

Opinion

LACHMAN, J.,

Meaningful appellate review in this case is impossible because there is no record for the Superior Court to review. The appellant, Gregory Brown, refuses to pay the fee of the court reporters for the transcription and certification of the notes of testimony of this five day trial. This appeal should be dismissed sua sponte by the Superior Court.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant-plaintiff Gregory Brown was diagnosed with prostate cancer on March 14,2006. His primary care physician referred him to defendant Bruce B. Sloane, M.D., a urologist. Dr. Sloane performed radical perineal prostatectomy surgery at defendant Penn Presbyterian Medical Center on June 12, 2006. When Dr. Sloane dissected the prostate from the rectum, there was a rectal [254]*254tear. Dr. Sloane completed the prostatectomy and the rectal tear was repaired by Dr. David Marón.

Plaintiff claimed that he was rendered impotent as a result of the surgical negligence of Dr. Sloane. On June 9, 2008, plaintiff filed this medical malpractice action against Dr. Sloane and his practice group, Philadelphia Urology Associates, P.C.; and against Penn Presbyterian Medical Center and its parent the University of Pennsylvania Health System.

After a five-day trial beginning on September 13,2010, the jury returned verdicts in favor of all of the defendants on September 17, 2010. The jury answered special interrogatories and specifically found that Dr. Sloane was not negligent in the performance of the surgery and that he did not fail to obtain the informed consent of the plaintiff before performing the prostatectomy. The jury never reached the issues of causation or whether Dr. Sloane was an ostensible agent of Penn Presbyterian Medical Center.

Plaintiff timely filed a post-trial motion on September 27, 2010, seeking a judgment notwithstanding the verdict or a new trial. After briefing by the parties, the court heard oral argument on the motion on December 10,2010. None of the issues raised by the plaintiff had merit and the court denied the motion and entered judgment in an order dated December 14, 2010.

FAILURE TO PAY FOR THE NOTES OF TESTIMONY

Jacob Snyder, Esquire, and the law firm of Richman, Berenbaum & Associates, PC, represented Mr. Brown at trial and continues to represent him on appeal. On the [255]*255first day of trial, September 13,2010, Mr. Snyder signed a transcript order form requesting “daily (next day)” copies of the notes of testimony from the court reporter, Douglas J. Zweizig, R.D.R., C.R.R.

To meet the extra burden of producing daily copy, an additional court reporter, Shannan Gagliardi, R.P.R., C.R.R., was assigned to the case. Mr. Zweizig produced the transcript of the morning sessions of the trial and Ms. Gagliardi produced the transcript of the afternoon sessions. Mr. Zweizig and Ms. Gagliardi will be referred to collectively as “the court reporters.”

Pursuant to the contract with Mr. Snyder, the court reporters gave to Mr. Snyder daily copy of the notes of testimony ofthe morning and afternoon sessions for the first four days ofthe trial, September 13-16, 2010. Mr. Snyder did not request a copy of the last day of trial, September 17, 2010, which is the day the charging conference was completed, the jury was charged and rendered its verdict.

The court reporters sent separate invoices to Mr. Snyder on September 22,2010, each of which demanded payment within two weeks of $3,328, or a total due of $6,656. Mr. Snyder and his firm continually failed and refused to pay the court reporters for their transcription of the notes of testimony despite repeated demands for payment.

Despite not having paid for the notes of testimony, Mr. Snyder extensively made use of them and referred to them in his brief supporting his post-trial motions. At the oral argument of the post-trial motions on December 10,2010, the trial court warned Mr. Snyder that if he failed to pay the court reporters for their work, a certified copy of the transcript would not be sent to the appellate court in the [256]*256event of an appeal. A copy of the colloquy between the court and Mr. Snyder is attached hereto as Exhibit “A.”1

After Mr. Snyder filed the appeal in this case, the trial court entered an order pursuant to Pa.R.A.P. 1925(b), requesting a statement of the errors that were to be raised in the appeal. In addition, the order required Mr. Snyder to certify whether “the court reporters have or have not been paid on behalf of plaintiff/appellant Brown for the trial notes of testimony ordered on behalf of plaintiff/appellant Brown.”

Mr. Snyder served his 1925(b) statement upon the trial court on February 9, 2011. Attached to the statement was a certification by Mr. Snyder that “the court reporters have not been paid for the trial Notes of Testimony ordered on behalf of plaintiff/appellant Brown.” The many citations to the notes of testimony in Mr. Snyder’s 1925(b) statement are to the daily copy which is not part of the certified record on appeal.

On December 28, 2010, the court reporters sued Mr. Snyder and his law firm in Philadelphia Municipal Court at No. SC-10-12-28-6152, seeking $6,656 plus $105.50 in court costs. On February 11, 2011, the court reporters obtained judgments by default against Mr. Snyder and his law firm in the amount of $6,761.50, when they failed to appear at the trial of that case.

As of the date of this opinion, Mr. Snyder and his law firm have not paid the court reporters for their transcription of the notes of testimony. Consequently, the certified record on appeal transmitted to the Superior Court in this [257]*257case will not contain the notes of testimony of the trial.2

DISCUSSION

Rule 1911 of the Pennsylvania Rules of Appellate Procedure provides in relevant part as follows:

Rule 1911. Request for transcript
(a) General rule. The appellant shall request any transcript required under this chapter in the manner and make any necessary payment or deposit therefor in the amount and within the time prescribed by Rules 5000.1 et seq. of the Pennsylvania Rules of Judicial Administration (court reporters).
(d) Effect of failure to comply. If the appellant fails to take the action required by these rules and the Pennsylvania Rules of Judicial Administration for the preparation of the transcript, the appellate court may take such action as it deems appropriate, which may include dismissal of the appeal.
Note:...It is the responsibility of the appellant to contact the court reporter to ascertain whether a deposit will be required and the amount thereof, and to make the deposit. The court reporter is under no obligation to proceed in the absence of a required deposit, and under Pa.RJ.A. 5000.11(b) is under no obligation to certify and file the transcript in the absence of full payment or adequate security therefor. While delay in payment, and any resulting [258]*258delay in certification and filing of the transcript, does not automatically affect the validity of the appeal, under subdivision (d) the appellate court may impose other sanctions in an appropriate case. Compare Rule 902 (manner of taking appeal) and Rule 2101 (conformance with requirements). Pa.R.A.P. 1911 (emphasis added).

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Bluebook (online)
22 Pa. D. & C.5th 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-sloane-pactcomplphilad-2011.