Sterling v. Fineman

630 A.2d 1224, 428 Pa. Super. 233, 1993 Pa. Super. LEXIS 2369
CourtSuperior Court of Pennsylvania
DecidedJuly 23, 1993
Docket2120 and 2306
StatusPublished
Cited by10 cases

This text of 630 A.2d 1224 (Sterling v. Fineman) 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
Sterling v. Fineman, 630 A.2d 1224, 428 Pa. Super. 233, 1993 Pa. Super. LEXIS 2369 (Pa. Ct. App. 1993).

Opinions

FORD ELLIOTT, Judge:

Before us are cross-appeals from the granting of summary judgment below. The appeals arise out of a recently instituted program, implemented for the purpose of reducing the case backlog on the overburdened civil docket of the Philadelphia County Court of Common Pleas. Commonly referred to as the Judge Pro Tem Program, the system has been variously described and reported upon by the Legal Intelligencer, Philadelphia County’s daily legal newspaper. Essentially, the program employs experienced litigators to preside over civil jury cases. Upon disposition, either by jury verdict or otherwise, if either party is dissatisfied they may take exceptions to a supervising judge of the Court of Common Pleas, who, sitting with the judge pro tem, hears the exceptions, reviews the pertinent portions of the record, and resolves the exceptions. Instantly, exceptions in the form of a petition to strike, open, set aside, or reconsider were taken to the granting of summary judgment in defendants’ favor by the judge pro tem. Judge Nelson Diaz of the Court of Common Pleas heard the exceptions and granted summary judgment in defendants’ favor.

This case presents cross-appeals to the resolution below.1 Plaintiffs challenge the granting of summary judgment by Judge Diaz, who ruled so on a collateral estoppel basis. Defendants, on the other hand, contend that initial summary judgment granted by the judge pro tem was a final and appealable order and that Judge Diaz should not have enter[236]*236tained plaintiffs’ exceptions. Defendants are appealing Judge Diaz’s denial of their Motion to Quash.

The record before us presents a rather uncomplicated factual situation, but a rather more convoluted procedural milieu.

On September 6, 1983, plaintiff Sterling was involved in an automobile collision with defendant Anne Fineman. Plaintiff Abrams was a passenger in the Sterling vehicle. A hit-and-run driver was also involved in the subject accident. The negligence of this “phantom driver” was at least in part responsible for plaintiffs’ injuries.

Pursuant to the terms of plaintiff Sterling’s insurance policy and in accord with the Uninsured Motorist Act, 40 P.S. § 2000, plaintiffs instituted an uninsured motorist action against plaintiff Sterling’s insurance carrier. The instant suit out of which these appeals arise was filed during the pendency of the uninsured motorist suit.

The uninsured motorist action was heard by a panel of arbitrators who found in favor of plaintiffs, awarding plaintiff Sterling $40,000 in damages and plaintiff Abrams $50,000 in damages. Policy limits of the insurance were $100,000 per person and $300,000 per occurrence.

Meanwhile, plaintiffs’ action against defendants, after several procedural turns of no importance here, was eventually assigned to be heard by Judge pro tem Thomas Rutter.

Prior to trial, defendants presented Judge pro tem Rutter with a Motion for Summary Judgment.2 The basis of defendants’ motion was that plaintiffs were collaterally estopped from raising the issue of damages which they had previously litigated in the uninsured motorist action. Defendants argued that the prior lawsuit had sought recovery for all claims resulting from the accident and that these were fully compensated as evidenced by the fact that the awards were less than the policy limits.

[237]*237Plaintiffs, on the other hand, maintained that in the uninsured motorist suit they litigated and were awarded damages only for injuries which had been realized from the date of the accident until the date of the arbitration hearing. Plaintiffs argued that the damages sought in the instant suit were for injuries accruing after the uninsured motorist award, maintaining that both plaintiffs had incurred significant additional medical expenses since the date of the arbitration award. The judge pro tem concluded that the damages sought in the instant action were identical to those recovered in the uninsured motorist suit, were barred by collateral estoppel, and granted summary judgment in favor of defendants.

The summary judgment order was entered February 7, 1992. Plaintiffs did not file a Notice of Appeal to the Superior Court, but instead filed a petition to strike, open, set aside, or reconsider summary judgment. Defendants responded with a motion to quash. On May 29, 1992, Judge Nelson Diaz entered an order and opinion granting summary judgment and denying all post-trial motions.

The issues thus presented on these appeals are two-fold. First, plaintiffs argue that Judge pro tem Rutter erred in granting summary judgment. Second, defendants argue that Judge Diaz erred either in confirming that summary judgment, or in granting it anew, and in failing to quash plaintiffs’ petition. Before we may resolve the propriety of the granting of summary judgment by either Judge pro tem Rutter or by Judge Diaz, we must first resolve the procedural issue as to whether Judge Diaz could properly have reviewed the petition to reconsider summary judgment.

Defendants argue that the granting of summary judgment by the judge pro tem represented a final, appealable order and that appeal should have been taken directly from the ruling of the judge pro tem. While we agree with defendants that summary judgment is ordinarily a final and appealable order for which post-trial exceptions are not allowed and which initiates the running of the appeal period, Burkhart v. Brockway Glass Company, 352 Pa.Super. 204, 507 [238]*238A.2d 844 (1986), allocatur denied, 514 Pa. 615, 521 A.2d 930 (1987), we disagree with defendants’ analysis within the context of the Judge Pro Tem Program. We feel that the Judge Pro Tem Program anticipates that excepted rulings of a judge pro tem will first be reviewed by a judge of the Court of Common Pleas. We note with regret that no written procedural rules exist for the Judge Pro Tem Program. However, the intent of the program’s creators may be gleaned from the pronouncements of the Court of Common Pleas:

These attorneys [selected to sit as judges pro tem] will preside at the jury trials and make all necessary rulings. Should post trial motions follow the conclusion of the trial, they will be argued before the Judge Pro Tem who will be sitting with a Judge of the Court of Common Pleas and a final order will be issued by such Judge preserving all issues for appellate review, if necessary.

Court Notices, The Legal Intelligencer, 6/10/91 at 9 (emphasis added).

We perceive a clear intent on the part of the Court of Common Pleas to create a system whereby any disputed ruling of a judge pro tem would be reviewed first by a judge of the Court of Common Pleas before it would become a final, appealable ruling. Instantly, even Judge pro tem Rutter questioned whether he had the authority to entertain the Motion to Dismiss and grant summary judgment since the case had been assigned to him solely to try the liability claims.

Moreover, there is simply no basis, statutory or otherwise, which would authorize the Superior Court to review any order of a judge pro tem. The judge pro tem is an ad hoc creation of the Philadelphia County Court of Common Pleas without formal recognition before this court. We have no authority to review the rulings of a judge pro tem.

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Sterling v. Fineman
630 A.2d 1224 (Superior Court of Pennsylvania, 1993)

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Bluebook (online)
630 A.2d 1224, 428 Pa. Super. 233, 1993 Pa. Super. LEXIS 2369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sterling-v-fineman-pasuperct-1993.