Pasquariello v. Godbout

72 Pa. D. & C.4th 129, 2005 Pa. Dist. & Cnty. Dec. LEXIS 143
CourtPennsylvania Court of Common Pleas, Northampton County
DecidedApril 27, 2005
Docketno. C0048CV2003-000241
StatusPublished
Cited by1 cases

This text of 72 Pa. D. & C.4th 129 (Pasquariello v. Godbout) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Northampton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pasquariello v. Godbout, 72 Pa. D. & C.4th 129, 2005 Pa. Dist. & Cnty. Dec. LEXIS 143 (Pa. Super. Ct. 2005).

Opinion

BARATTA, J,

STATEMENT OF REASONS

Presently before the court is the defendants’, Brett P. Godbout M.D. and CHS Professional Practice P.C.’s, motion in the nature of preliminary objections/preliminary objections nunc pro tunc, or in the alternative, petition for the transfer of venue.

I. Factual and Procedural Background

This matter arises out of alleged medical negligence against the defendants for the care and treatment of plaintiff, Umberto Pasquariello Jr.’s, right foot.

In order to understand the issue now before the court, a brief summary of the procedural background is neces[131]*131sary. An amended complaint was filed on April 23,2003, against defendants, Brett P. Godbout M.D. and CHS Professional Practice P.C., as well as defendants, Coordinated Health Systems and CHS Ambulatory Surgical Center. The complaint identified Dr. Godbout, CHS Professional Practice P.C. and Coordinated Health Systems as maintaining a principal place of business at 2775 Schoenersville Road, Bethlehem, Lehigh County, Pennsylvania. Defendant, CHS Ambulatory Surgical Center, is located at 2310 Highland Avenue, Bethlehem, Northampton County, Pennsylvania.1 Although CHS Ambulatory Surgical Center is a related business entity to Coordinated Health Systems and CHS Professional Practice P.C., they are separate and independent entities.

The complaint alleges that, on or about January 24, 2001, Dr. Godbout performed surgery on plaintiff’s right foot where plaintiff had been experiencing chronic pain. The surgery has been described as a “closing base wedge osteotomy with internal fixation and distal bun-ionectomy.” It is admitted that the operation occurred in Northampton County at CHS Ambulatory Surgical Center. After the surgeiy, the plaintiff received surgical aftercare by Dr. Godbout at his Schoenersville Road, Lehigh County office.

The pleadings were closed and this case proceeded through discovery. The last scheduling order, entered on May 21, 2004, required plaintiff’s expert reports to be filed on August 31,2004. Defendants’ expert reports were to be filed on or before December 1,2004. The record is [132]*132silent as to compliance with the May scheduling order; therefore we assume compliance. On February 3,2005, all counsel entered into a stipulation for the dismissal of defendants Coordinated Health Systems and CHS Ambulatory Surgical Center. The result of the dismissal of CHS Ambulatory Surgical Center was that there is no longer a medical provider whose place of business is within Northampton County.

This matter is now ripe for trial. A pretrial conference was held on February 9, 2005, before the Honorable F. P. Kimberly McFadden. At the pretrial conference, the defendants announced that they were going to file preliminary objections based on improper venue, as a result of the dismissal of the Northampton County defendant. However, we note that it was not until April 8,2005, that these preliminary objections were filed, over two months since the entry of the stipulation, over six months after the receipt of plaintiff’s expert report and nearly two years after the amended complaint was filed.

A review of the complaint sets forth a cause of action against Dr. Godbout for negligence related to the surgery performed on January 24, 2001, in Northampton County specifically averring that the surgery was incorrectly and inappropriately performed in that it deviated from applicable medical care, thereby forcing the plaintiff into a lengthy period of recuperation and to submit to additional surgeries to correct the initial surgery done improperly. The complaint also alleges that, following the surgery, Dr. Godbout provided negligent aftercare in failing to recognize and correct an incorrect metatarsal alignment that was an unsuccessful result of the surgery. The allegations in the complaint against Dr. Godbout have not been altered by the February 3, 2005 stipulation.

[133]*133The plaintiff’s memorandum of law filed on March 10,2005, in opposition to the instant preliminary objections and petition for the transfer of venue, also alleges that Dr. Godbout improperly performed the original surgery. Within that memorandum, plaintiff alleges that “the surgical intervention by the defendants was incorrectly followed in that it deviated from the appropriate standard of medical care for such procedures.... As set forth in the complaint, the plaintiff alleged that the original defendants knew, or should have known, the alignment of the surgical area in question, including, without limited to, the metatarsal alignment was incorrect and/or that the attempted internal fixation had been unsuccessful. ...” See plaintiff’s memorandum 3/10/2005, p. 2.

Defendants, in their preliminary objections and brief, baldly state that the medical malpractice as set forth by plaintiff’s experts relates only to surgical aftercare performed by Dr. Godbout at the CHS Professional Practice P.C. location in Lehigh County.

We note that the summary of the allegations against Dr. Godbout, as asserted by defendants, differs from the allegations in the complaint, as well as the allegation in plaintiff’s memorandum of law.

To summarize, the plaintiff’s complaint and brief of plaintiff allege defective surgery and aftercare, while the defendants’ preliminary objections and petition for transfer of venue allege that plaintiff’s cause of action is limited to negligent surgical aftercare in Lehigh County.

II. Discussion

There is no record before us confirming the defendants’ allegations. We have not been provided with a [134]*134stipulation or expert report indicating that plaintiff has now limited his claim to a medical malpractice action existing solely in Lehigh County. Therefore, the record does not support granting the preliminary objections or preliminary objections nunc pro tunc.

Second, we find that these preliminary objections are untimely. “Improper venue shall be raised by preliminary objection and if not so raised shall be waived.” See Pa.R.C.P. 1006(e); see also, PECO Energy Co. v. Philadelphia Suburban Water Co., 802 A.2d 666 (Pa. Super. 2002) (the proper method of challenging venue in a civil action is by way of preliminary objections). Furthermore, “every pleading subsequent to the complaint shall be filed within 20 days after service of the preceding pleading. ...” See Pa.R.C.P. 1026(a). “Aparty waives all defenses and objections ... not presented... by preliminary objection. ...” See Pa.R.C.P. 1032(a).

Plaintiff argues that our Rules of Civil Procedure mandate that the defendants’ preliminary objections are untimely and that any challenge that the defendant may have to venue being improper has been effectively waived.

The defendants argue that the Pennsylvania Rules of Civil Procedure provide that the time period for the doing of any act may be extended by written agreement of the parties or by order of court. See Pa.R.C.P. 248. The decision of whether or not to grant an exception to the 20-day filing rule promulgated by Rule 1026 is within the trial court’s discretion. See Francisco v. Ford Motor Co., 397 Pa. Super. 430, 580 A.2d 374 (1990).

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Bluebook (online)
72 Pa. D. & C.4th 129, 2005 Pa. Dist. & Cnty. Dec. LEXIS 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pasquariello-v-godbout-pactcomplnortha-2005.