Turnpaugh Chiropractic Health v. Erie Ins. Exch.

2023 Pa. Super. 99, 297 A.3d 404

• Court: Superior Court of Pennsylvania
• Decided: June 8, 2023
• Docket: 1448 MDA 2021
• Status: Published

Opinion

J-A23032-22

2023 PA Super 99

TURNPAUGH CHIROPRACTIC HEALTH : IN THE SUPERIOR COURT OF AND WELLNESS CENTER, : PENNSYLVANIA P.C.(ZIMMERMAN) : : : v. : : : ERIE INSURANCE EXCHANGE : No. 1448 MDA 2021 : Appellant :

Appeal from the Judgment Entered November 10, 2021 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2019-CV-06937-CV

BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*

CONCURRING STATEMENT BY BOWES, J.: FILED JUNE 08, 2023

I wholly agree with the learned Majority’s holding. I write separately

merely to highlight that there exists a conflict within this Court’s jurisprudence

as to whether a party may appeal the denial of a motion for summary

judgment after a trial has been held. Compare Whitaker v. Frankford

Hospital of City of Philadelphia, 984 A.2d 512, 517 (Pa.Super. 2009)

(noting that once the case proceeded to trial and the defendants presented a

defense, the denial of their motion for summary judgment became moot and,

upon entry of a verdict in plaintiff’s favor, “the issue became whether the trial

court erred in failing to grant them [JNOV]”), Xtreme Caged Combat v.

Zarro, 247 A.3d 42, 50 (Pa.Super. 2021) (applying Whitaker in concluding

that “the denial of [plaintiff’s] summary judgment motion is not appealable as

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* Former Justice specially assigned to the Superior Court. J-A23032-22

an issue separate from the grant of the nonsuit at trial”), and Yoder v.

McCarthy Constr., Inc., 291 A.3d 1, 14 n.15 (Pa.Super. 2023) (agreeing

with defendant’s argument that “where summary judgment is denied and the

same claim then proceeds to trial, post-trial and appellate review must focus

on whether [JNOV] is required, not on whether summary judgment or nonsuit

were improperly denied[,]” and, consequently, “the subsequent trial record

supplants the pre-trial record” (cleaned up)), with Windows v. Erie

Insurance, 161 A.3d 953 (Pa.Super. 2017) (reaching merits of trial court’s

denial of summary judgment motion on appeal following trial without

explanation as to why the denial was reviewable), Krepps v. Snyder, 112

A.3d 1246, 1257-60 (Pa.Super. 2015) (same), and Brownlee v. Home

Depot U.S.A., Inc., 241 A.3d 455 (Pa.Super. 2020) (non-precedential

decision at 6, 7 n.5) (holding that the denial of a motion for summary

judgment is not moot following trial and noting further “that a litigant should

be permitted to challenge, on appeal, a trial court’s denial of a pretrial motion

for summary judgment even after the parties have proceed to trial and a

verdict. If not, a trial court’s unchecked denial of pretrial relief may result in

delayed justice or a waste of judicial resources”). I note that the Majority’s

position that issues raised in a motion for summary judgment must be revived

in a motion for JNOV following trial to be viable for review on appeal, with

which I agree, aligns with Whitaker, Xtreme, and Yoder.

We strive for consistency in the law so that similarly situated litigants

are treated the same. When the law strikes discordant notes, it is time for

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this Court to consider the issue and resolve the conflicts. Only then will the

sweet music of the law be in harmony for all.

Judge McCaffery and P.J.E. Stevens join this Concurring Statement.

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