J-A21004-24
2024 PA Super 315
JOANNE JORDAN AND STEPHEN : IN THE SUPERIOR COURT OF JORDAN : PENNSYLVANIA : Appellants : : v. : : MICHAEL LYNDE, D.P.M., JOHN : YOUSSEF, M.D., YOUVAL KATZ, : M.D., AND PENN HEMATOLOGY AND : ONCOLOGY : No. 234 EDA 2024
Appeal from the Order Entered December 13, 2023 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2021-02616
BEFORE: KUNSELMAN, J., NICHOLS, J., and BECK, J.
OPINION BY KUNSELMAN, J.: FILED DECEMBER 31, 2024
In this medical-malpractice action, Joanne and Stephen Jordan appeal
from the order granting summary judgment to the Defendants, Michael Lynde,
D.P.M.; Penn Hematology and Oncology; John Youssef, M.D.; and Youval Katz,
M.D. Because the Jordans were not afforded the allowed 30 days under the
Rules of Civil Procedure to respond to Dr. Lynde’s motion for summary
judgment, we vacate the order as to Dr. Lynde. In all other respects, we
affirm.
In 2019, Mrs. Jordan was under the care of Penn Hematology and
Oncology, Dr. Youseff, and Dr. Katz (collectively, “Penn Hematology”). Penn
Hematology prescribed her blood thinners, including Coumadin.
She also had a bunion on her foot, which Dr. Lynde removed. He then
prescribed Mrs. Jordan the antibiotic Bactrim. Because Bactrim and Coumadin J-A21004-24
are contraindicated, Mrs. Jordan’s foot did not heal and became infected.
According to Mrs. Jordan, on May 22, 2019, she “was advised, for the first
time, there may have been an issue with her treatment, given her problematic
recovery, and in particular . . . the improper administration of Coumadin, a
blood thinner, while on Bactrim . . . .” Amended Complaint at 8.
Almost two years later, on May 19, 2021, the Jordans sued Dr. Lynde
and Penn Hematology. The matter proceeded to discovery, and, on October
26, 2023, Penn Hematology moved for summary judgment. It asked the trial
court to dismiss the case, because the Jordans failed (1) to provide an expert
report on Penn Hematology’s negligence and (2) to file suit within the statute
of limitations.1 The Jordans filed no response opposing the motion.
On December 5, 2023, Dr. Lynde filed a joinder in Penn Hematology’s
motion for summary judgment but only on the statute-of-limitations defense.
Eight days later, the trial court granted both motions for summary judgment.
This timely appeal followed.
The Jordans raise two issues:
1. Is summary judgment properly granted when (a) a party joins in a separate party’s motion, (b) the issues and facts differ among the moving parties, and (c) the respondent was not afforded 30 days to respond to the second/joining party’s motion?
2. Is summary judgment properly granted when (a) a party has granted the respondent additional time to respond to the motion, (b) the trial court is aware of the extension, (c)
____________________________________________
1 See 42 Pa.C.S.A. § 5524.
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the trial court seeks substantive information from counsel, and (d) the trial court rules upon the motion, nonetheless?
Jordans’ Brief at 4. We address each issue in turn.
Initially, the Jordans claim the trial court erred by granting Dr. Lynde’s
joinder motion for summary judgment without giving them 30 days to
respond. They argue Pa.R.C.P. 1035.3 allows 30 days for a party to respond
to a motion for summary judgment, as well as supplement the record. The
Jordans assert that this applies to a joinder motion, even if the joining
defendant’s summary-judgment theory is the same as the other defendants’
theory, because the applicable facts and law may vary from party to party.
In response, Dr. Lynde claims the trial court correctly granted summary
judgment, because he did not raise a new theory in his motion. In his view,
Pa.R.C.P. 1035.3(e) permits the trial court to rule on summary judgment at
any time, without written responses or briefs. 2
Generally, as the parties note, on an appeal from a summary judgment
order our scope and standard of review are plenary and de novo, respectively.
See Jordans’ Brief at 3; Lynde’s Brief at 2.
However, the drafters of Rule 1035.3 explicitly “provid[ed] that a court
has the discretion to rule on a motion for summary judgment at any time
prior to trial.” Pa.R.C.P. 1035.3, 2003 Comment (quotation omitted)
2 We note that Penn Hematology also responds to the Jordans’ first issue in
its brief. However, this issue is irrelevant to Penn Hematology, because the Jordans had 30 days to respond to its motion for summary judgment. Thus, we disregard Penn Hematology’s argument.
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(emphasis added). Hence, the issue before us is not whether the trial court
correctly applied the statute of limitations to the undisputed facts of record,
for which our standard of review would be de novo. Instead, the issue is
whether the trial court abused its discretion in applying Pa.R.C.P. 1035.3 by
granting summary judgment only eight days after Dr. Lynde filed his joinder
motion.
“Judicial discretion requires action in conformity with law on facts and
circumstances before the trial court after hearing and consideration.” Eaddy
v. Hamaty, 694 A.2d 639, 643 (Pa. Super. 1997). “An abuse of discretion is
not merely an error of judgment. Rather, a trial court abuses its discretion if,
in reaching a conclusion, the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable or lacking in reason.” Id.
When a party moves for summary judgment, the opposing party “may
not rest upon the mere allegations or denials of the pleadings but must file a
response within thirty days after service of the motion . . . .” Pa.R.C.P.
1035.3(a). The Jordans claim nothing in the Rule “permits a [moving] party
to shorten this 30-day deadline by merely joining in another party’s motion”
for summary judgment. Jordans’ Brief at 20. Based on our precedents, we
agree.
This Court has stated that Rule 1035.3(a) “allows 30 days for response.”
Eaddy, 694 A.2d at 643. In Eaddy, the “trial court did not afford [the
plaintiffs] 30 days to respond to defendant’s summary judgment motion.” Id.
We deemed this a misapplication of Rule 1035.3, because “the Rule allows the
-4- J-A21004-24
adverse party to ‘supplement the record or set forth the reasons why the party
cannot present evidence essential to justify opposition to the motion and any
action proposed to be taken by the party to present such evidence.’” Id.
(quoting Pa.R.C.P. 1035.3(b)). We explained in Eaddy, that by “failing to
apply the new rules governing summary-judgment motions and to follow
proper legal procedures, the trial court committed an abuse of discretion.” Id.
at 644. Accordingly, we vacated summary judgment and “remanded to the
trial court with directions that it allow [the plaintiffs] 30 days to respond to
defendant’s summary judgment motion and then proceed as contemplated by
[] Rules of Civil Procedure 1035.1 through 1035.5.” Id.
Eaddy is directly on point and controls the outcome of the Jordans’ first
issue. Dr. Lynde filed his motion for summary judgment, and the trial court
hastily granted it eight days later. The trial court did not give the Jordans 30
days to respond to Dr. Lynde’s motion or to supplement the record to counter
his motion.
The trial court and Dr.
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J-A21004-24
2024 PA Super 315
JOANNE JORDAN AND STEPHEN : IN THE SUPERIOR COURT OF JORDAN : PENNSYLVANIA : Appellants : : v. : : MICHAEL LYNDE, D.P.M., JOHN : YOUSSEF, M.D., YOUVAL KATZ, : M.D., AND PENN HEMATOLOGY AND : ONCOLOGY : No. 234 EDA 2024
Appeal from the Order Entered December 13, 2023 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2021-02616
BEFORE: KUNSELMAN, J., NICHOLS, J., and BECK, J.
OPINION BY KUNSELMAN, J.: FILED DECEMBER 31, 2024
In this medical-malpractice action, Joanne and Stephen Jordan appeal
from the order granting summary judgment to the Defendants, Michael Lynde,
D.P.M.; Penn Hematology and Oncology; John Youssef, M.D.; and Youval Katz,
M.D. Because the Jordans were not afforded the allowed 30 days under the
Rules of Civil Procedure to respond to Dr. Lynde’s motion for summary
judgment, we vacate the order as to Dr. Lynde. In all other respects, we
affirm.
In 2019, Mrs. Jordan was under the care of Penn Hematology and
Oncology, Dr. Youseff, and Dr. Katz (collectively, “Penn Hematology”). Penn
Hematology prescribed her blood thinners, including Coumadin.
She also had a bunion on her foot, which Dr. Lynde removed. He then
prescribed Mrs. Jordan the antibiotic Bactrim. Because Bactrim and Coumadin J-A21004-24
are contraindicated, Mrs. Jordan’s foot did not heal and became infected.
According to Mrs. Jordan, on May 22, 2019, she “was advised, for the first
time, there may have been an issue with her treatment, given her problematic
recovery, and in particular . . . the improper administration of Coumadin, a
blood thinner, while on Bactrim . . . .” Amended Complaint at 8.
Almost two years later, on May 19, 2021, the Jordans sued Dr. Lynde
and Penn Hematology. The matter proceeded to discovery, and, on October
26, 2023, Penn Hematology moved for summary judgment. It asked the trial
court to dismiss the case, because the Jordans failed (1) to provide an expert
report on Penn Hematology’s negligence and (2) to file suit within the statute
of limitations.1 The Jordans filed no response opposing the motion.
On December 5, 2023, Dr. Lynde filed a joinder in Penn Hematology’s
motion for summary judgment but only on the statute-of-limitations defense.
Eight days later, the trial court granted both motions for summary judgment.
This timely appeal followed.
The Jordans raise two issues:
1. Is summary judgment properly granted when (a) a party joins in a separate party’s motion, (b) the issues and facts differ among the moving parties, and (c) the respondent was not afforded 30 days to respond to the second/joining party’s motion?
2. Is summary judgment properly granted when (a) a party has granted the respondent additional time to respond to the motion, (b) the trial court is aware of the extension, (c)
____________________________________________
1 See 42 Pa.C.S.A. § 5524.
-2- J-A21004-24
the trial court seeks substantive information from counsel, and (d) the trial court rules upon the motion, nonetheless?
Jordans’ Brief at 4. We address each issue in turn.
Initially, the Jordans claim the trial court erred by granting Dr. Lynde’s
joinder motion for summary judgment without giving them 30 days to
respond. They argue Pa.R.C.P. 1035.3 allows 30 days for a party to respond
to a motion for summary judgment, as well as supplement the record. The
Jordans assert that this applies to a joinder motion, even if the joining
defendant’s summary-judgment theory is the same as the other defendants’
theory, because the applicable facts and law may vary from party to party.
In response, Dr. Lynde claims the trial court correctly granted summary
judgment, because he did not raise a new theory in his motion. In his view,
Pa.R.C.P. 1035.3(e) permits the trial court to rule on summary judgment at
any time, without written responses or briefs. 2
Generally, as the parties note, on an appeal from a summary judgment
order our scope and standard of review are plenary and de novo, respectively.
See Jordans’ Brief at 3; Lynde’s Brief at 2.
However, the drafters of Rule 1035.3 explicitly “provid[ed] that a court
has the discretion to rule on a motion for summary judgment at any time
prior to trial.” Pa.R.C.P. 1035.3, 2003 Comment (quotation omitted)
2 We note that Penn Hematology also responds to the Jordans’ first issue in
its brief. However, this issue is irrelevant to Penn Hematology, because the Jordans had 30 days to respond to its motion for summary judgment. Thus, we disregard Penn Hematology’s argument.
-3- J-A21004-24
(emphasis added). Hence, the issue before us is not whether the trial court
correctly applied the statute of limitations to the undisputed facts of record,
for which our standard of review would be de novo. Instead, the issue is
whether the trial court abused its discretion in applying Pa.R.C.P. 1035.3 by
granting summary judgment only eight days after Dr. Lynde filed his joinder
motion.
“Judicial discretion requires action in conformity with law on facts and
circumstances before the trial court after hearing and consideration.” Eaddy
v. Hamaty, 694 A.2d 639, 643 (Pa. Super. 1997). “An abuse of discretion is
not merely an error of judgment. Rather, a trial court abuses its discretion if,
in reaching a conclusion, the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable or lacking in reason.” Id.
When a party moves for summary judgment, the opposing party “may
not rest upon the mere allegations or denials of the pleadings but must file a
response within thirty days after service of the motion . . . .” Pa.R.C.P.
1035.3(a). The Jordans claim nothing in the Rule “permits a [moving] party
to shorten this 30-day deadline by merely joining in another party’s motion”
for summary judgment. Jordans’ Brief at 20. Based on our precedents, we
agree.
This Court has stated that Rule 1035.3(a) “allows 30 days for response.”
Eaddy, 694 A.2d at 643. In Eaddy, the “trial court did not afford [the
plaintiffs] 30 days to respond to defendant’s summary judgment motion.” Id.
We deemed this a misapplication of Rule 1035.3, because “the Rule allows the
-4- J-A21004-24
adverse party to ‘supplement the record or set forth the reasons why the party
cannot present evidence essential to justify opposition to the motion and any
action proposed to be taken by the party to present such evidence.’” Id.
(quoting Pa.R.C.P. 1035.3(b)). We explained in Eaddy, that by “failing to
apply the new rules governing summary-judgment motions and to follow
proper legal procedures, the trial court committed an abuse of discretion.” Id.
at 644. Accordingly, we vacated summary judgment and “remanded to the
trial court with directions that it allow [the plaintiffs] 30 days to respond to
defendant’s summary judgment motion and then proceed as contemplated by
[] Rules of Civil Procedure 1035.1 through 1035.5.” Id.
Eaddy is directly on point and controls the outcome of the Jordans’ first
issue. Dr. Lynde filed his motion for summary judgment, and the trial court
hastily granted it eight days later. The trial court did not give the Jordans 30
days to respond to Dr. Lynde’s motion or to supplement the record to counter
his motion.
The trial court and Dr. Lynde contend that summary judgment was
appropriately granted, because Dr. Lynde merely joined Penn Hematology’s
motion and statute-of-limitations defense. However, as the Jordans observe,
there may be facts and legal arguments against Dr. Lynde’s statute-of-
limitations defense that do not apply to Penn Hematology’s motion, such as
the discovery rule. The only way to be certain that such facts and legal
arguments do not exist is to give the Jordans 30 days, as permitted by Rule
1035.5(a), to assert them. By prematurely granting Dr. Lynde’s motion, the
-5- J-A21004-24
trial court denied the Jordans the full and fair opportunity to respond to the
motion which the Rules of Civil Procedure clearly provide. Thus, the trial court
abused its discretion. See Eaddy, supra.
The Jordans’ first issue entitles them to appellate relief as to Dr. Lynde.
Next, the Jordans claim the trial court erroneously granted summary
judgment to Penn Hematology. They allege that counsel for Penn Hematology
told the Jordans’ attorney that the Jordans could have more time to answer
Penn Hematology’s motion for summary judgment. The Jordans claim they
advised the trial court of this agreed-upon extension in a December 15, 2023
e-mail to the trial judge’s administrative assistant. As such, the Jordans
maintain that equity demands vacating summary judgment in favor of Penn
Hematology. See Jordans’ Brief at 32-33.
Penn Hematology responds that the Jordans did not request a formal
extension of time from the court. It asserts that they needed to move for an
extension of time according to Rules of Court, and because they did not, the
issue is waived.
“The issue of waiver presents a question of law, and, as such, our
standard of review is de novo, and our scope of review is plenary.” Trigg v.
Children’s Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 2020).
“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.” Pa.R.A.P. 302(a).
Here, the Jordans neglected to file their own motion to request
additional time to respond to Penn Hematology’s summary judgment motion
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pursuant to the Rules of Civil Procedure, before the trial court entered its order
granting summary judgment. In Pennsylvania, a motion shall:
(1) contain a caption setting forth the name of the court, the number of the action, the name of the motion, and the name of the moving party,
(2) be divided into paragraphs numbered consecutively,
(3) set forth material facts constituting grounds for the relief sought, specify the relief sought and include a proposed order,
(4) include a certificate of service . . . and
(5) be signed and endorsed.
Pa.R.C.P. 208.2(a). The e-mail from the Jordans’ attorney to the trial judge’s
administrative assistant lacked most of the above items. Additionally, the e-
mail was never filed with the Prothonotary or served on the opposing party
prior to being presented to the trial court. Thus, we hold that e-mails to the
administrative assistants of trial judges do not constitute motions practice in
this Commonwealth.
The Jordans never formally moved for additional time beyond the 30
days provided in the Rules of Civil Procedure to respond to Penn Hematology’s
motion for summary judgment. Given that the Jordans did not file a motion
for an extension of time on the record, they did not raise this issue in the trial
court or preserve it for appeal. As such, we dismiss the Jordans’ second issue
as waived. See Pa.R.A.P. 302(a).
Order affirmed as to Dr. Youssef, Dr. Katz, and Penn Hematology and
Oncology. Order vacated as to Dr. Lynde; case remanded for the Jordans to
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supplement the record and file a response to Dr. Lynde’s motion within 30
days of remand.
Jurisdiction relinquished.
Date: 12/31/2024
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