Trial Judge Criticized for Tossing Wrongful-Death Suit

, The Legal Intelligencer



The Pennsylvania Superior Court has criticized a Montgomery County trial judge for tossing out a protracted wrongful-death and survival suit after the plaintiff moved to delay the trial due to illness.

In an unpublished opinion in Jones v. Mercy Suburban Hospital, a three-judge panel unanimously ruled to reverse Montgomery County Court of Common Pleas Senior Judge Arthur R. Tilson's order dismissing the case and remanded the matter for trial.

Judge Anne E. Lazarus, writing for the majority, said that even though the case was more than a decade old and trial had already been delayed several times, Tilson abused his discretion by dismissing the suit when there was no evidence that delaying the trial again would prejudice the defendant hospital and doctors.

Lazarus called Tilson's order "troubling" and said it "placed justice second to arbitrary compliance with procedural rules."

"Upon review of the record, it is clear that there were ample delays on both sides," Lazarus said. "However, it does not appear that the doctors or hospital have suffered prejudice sufficient to warrant the severe sanction of dismissal. Further, in his Rule 1925(a) opinion, Judge Tilson provided little explanation of what prejudice, if any, he felt the doctors and hospital suffered. While we acknowledge that delays can be costly and inconvenient for both the courts and the parties, they are not a reason to deprive either party of its day in court."

Lazarus was joined by Judge John T. Bender and Senior Judge James J. Fitzgerald III.

But Fitzgerald penned a concurring opinion to note that he was concurring in the result "with the utmost reluctance."

"I greatly sympathize with the trial court's apparent frustration," Fitzgerald said. "Given the nature of the claims, the age of this case is staggering."

Fitzgerald said he was nevertheless constrained to agree with the majority but noted that trial should commence as soon as possible.

In Jones, according to Lazarus, plaintiff Donna Jones, the executor of decedent Marie C. Mulgrew's estate, filed suit against defendants Mercy Suburban Hospital, Dr. Lee Konecke and Dr. Hugh Lipshutz in March 2002.

After several years of discovery, trial was originally scheduled for October 2012, but Jones' attorney sought a continuance due to his wife's illness and trial was rescheduled for April 8, 2013, Lazarus said.

But on March 11, 2013, Jones' counsel filed a motion to adjourn trial, this time citing Jones' health issues and the unavailability of the plaintiff's experts, according to Lazarus.

Jones' counsel said in the motion that his client would not be able to proceed with trial for another 60 to 90 days, Lazarus said.

Tilson, however, denied the motion, according to Lazarus.

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