Frick, S. v. Li, F

2019 Pa. Super. 367, 225 A.3d 573
CourtSuperior Court of Pennsylvania
DecidedDecember 23, 2019
Docket927 EDA 2019
StatusPublished
Cited by5 cases

This text of 2019 Pa. Super. 367 (Frick, S. v. Li, F) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frick, S. v. Li, F, 2019 Pa. Super. 367, 225 A.3d 573 (Pa. Ct. App. 2019).

Opinion

J-A28032-19

2019 PA Super 367

SHARON FRICK, INDIVIDUALLY AND : IN THE SUPERIOR COURT OF AS ADMINISTRATRIX OF THE ESTATE : PENNSYLVANIA OF TODD FRICK, DECEASED : : : v. : : : FUHAI LI, M.D., NEUROLOGY AND : No. 927 EDA 2019 PAIN MANAGEMENT CENTER, PC, Y. : BARRY KURTZER, M.D., AND : GREENTOWN MEDICAL : ASSOCIATES, PC : : : APPEAL OF: FUHAI LI, M.D. AND : NEURLOGY AND PAIN MANAGEMENT : CENTER, PC :

Appeal from the Order Entered March 8, 2019 In the Court of Common Pleas of Pike County Civil Division at No(s): 547-2017

BEFORE: PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED DECEMBER 23, 2019

Defendants Fuhai Li, M.D., and Neurology and Pain Management Center,

PC (hereinafter collectively “Appellants”) appeal from the Order entered in the

Court of Common Pleas of Pike County on March 8, 2019, overruling in their

entirety Appellants’ Preliminary Objections, and in particular their Motion to

Dismiss for Failure to Serve Complaint contained therein, to the Fourth

Amended Complaint of Plaintiff Sharon Frick, Individually and as

____________________________________________

* Former Justice specially assigned to the Superior Court. J-A28032-19

Administratrix of the estate of Todd Frick, deceased (hereinafter “Appellee”).

Following a careful review, we affirm.1

The trial court set forth the relevant facts and brief procedural history

herein in its Opinion Submitted Pursuant to Pennsylvania Rule of Appellate

Procedure 1925 as follows:

[Appellee] initiated this case by filing a Writ of Summons on April 27, 2017. [Appellee] is asserting a professional liability claim against Fuhai Li, M.D. ("Defendant Li"). [Appellee] avers that Defendant Li was in charge of or responsible for the decedent and [Appellee’s] husband, Todd Frick. [Appellee] avers that her husband was being treated at Defendant Li's facility for chronic pain treatment and/or neurological medical needs. [Appellee] avers that her husband had a history of back pain associated with bulging or herniated discs. [Appellee] avers that Defendant Li prescribed certain medications to her husband, including but not limited to: Vicodin, Morphine, Flexeril, Hydrocodone, Contin, and Oxycodone. [Appellee] avers that Defendant Li directly, through various acts and omissions, caused [Appellee’s] husband to ____________________________________________

1 Pa.R.A.P. 311(b) reads, in pertinent part, as follows:

(a) General rule. – An appeal may be taken as of right and without reference to Pa.R.A.P. 341(c) from: . . . (b) Order sustaining venue or personal or in rem jurisdiction.- An appeal may be taken as of right from an order in a civil action or proceeding sustaining the venue of the matter or jurisdiction over the person or over real or personal property if: . . . (2) the court states in the order that a substantial issue of venue or jurisdiction is presented.

Pa.R.A.P. 311(b).

In its March 8, 2019, Order, the trial court granted Appellants’ Motion for Amendment of its June 6, 2018, Order and amended the same to include the following language required by Pa.R.A.P. 311(b)(2) so as to permit an interlocutory appeal as of right: “A substantial issue of venue or jurisdiction is presented.”

-2- J-A28032-19

become addicted to the prescribed controlled substances and breached the standards of care in his professional field. [Appellee’s] husband died on May 1, 2015. [Appellee] filed a Praecipe for Writ of Summons on April 27, 2017. Attorney Kevin P. Milazzo, counsel for Defendant Li, filed both an entry of appearance and a Praecipe to Rule Plaintiff to File Complaint on May 23, 2017. The initial Complaint in this matter was filed on June 14, 2017, and the controlling Fourth Amended Complaint was filed on December 4, 2017. [Appellants] filed Preliminary Objections to [Appellee’s] Fourth Amended Complaint on December 21, 2017. This [c]ourt deferred a ruling on the Preliminary Objections until we issued a ruling on Defendant Li’s Motion to Dismiss, which was filed on December 7, 2017. We denied the Motion to Dismiss on June 6, 2018. We determined that [Appellee] had engaged in a good faith attempt to serve Defendant Li and to move this case forward and that [Appellee] had demonstrated that her efforts at service were reasonable. On December 13, 2018, [Appellants] filed a Motion for Amendment of the Order dated June 6, 2018. On March 8, 2019, we granted the Motion for Amendment. We noted in our Order:

“While we stand by our Order denying [Appellants’] Motion to Dismiss, we nevertheless recognize that [Appellants] have presented a substantial issue of jurisdiction and are entitled to interlocutory appeal. As noted by our Supreme Court, “It is extremely unlikely that the loser court will find it likely that its Order will be reversed on the merits. On the other hand, there are ample instances when the loser tribunal could find that the appellant has presented a substantial case on the merits even though it disagrees.” Pennsylvania Public Util. Commission v. Process Gas Consumers Group, 467 A.2d 805, 809 (Pa. 1983). We recognize that [Appellants] have presented a substantial question of jurisdiction even though we may disagree with [Appellants’] ultimate conclusion.

On March 20, 2019, [Appellants] filed a Notice of Appeal to the Superior Court as to this [c]ourt’s Order dated March 8, 2019 amending the Order of June 6, 2018. On March 21, 2019, this [c]ourt ordered that [ ] Appellants file a Concise Statement of Matters Complained of on Appeal within twenty-one (21) days

-3- J-A28032-19

from the date of the Order. [ ] Appellants filed their Concise Statement on April 10, 2019.

Trial Court Opinion filed 5/16/19, at 1-3.

In their concise statement of errors complained of on appeal, Appellants

raise seven (7) claims, each of which pertains to service. In their appellate

brief, Appellants present a single issue for this Court’s review:

Whether the [t]rial [c]ourt erred/abused its discretion in denying [Appellants’] Motion to Dismiss the case against them for lack of service, where [Appellee] did not make “good faith efforts” to serve them for eight months after the statute of limitations had expired; where [Appellee] persistently attempted service at a wrong address during that time, and never tried to serve Appellants at an address that she herself recited in her five complaints, and that was conspicuously marked with [Appellants’] names; and where [Appellants] put [Appellee] on notice of lack of service in five sets of Preliminary Objections?

Brief of Appellant at 4.

This Court’s standard of review of a trial court’s order denying

preliminary objections is well-settled: we will reverse the trial court's decision

regarding preliminary objections only where there has been an error of law or

abuse of discretion. When sustaining the trial court's ruling will result in the

denial of a claim or dismissal of a suit, preliminary objections will be sustained

only where the case is free and clear of doubt. Brosovic v. Nationwide

Mutual Insurance, 841 A.2d 1071, 1073 (Pa.Super. 2004) (citation

omitted). “An abuse of discretion may not be found merely because [this

Court] might have reached a different conclusion, but requires a showing of

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such

-4- J-A28032-19

lack of support as to be clearly erroneous.” Hoy v. Angelone, 544 Pa. 134,

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Frick, S. v. Li, F
2019 Pa. Super. 367 (Superior Court of Pennsylvania, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
2019 Pa. Super. 367, 225 A.3d 573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frick-s-v-li-f-pasuperct-2019.