Beltz, S. v. Ethicon Women's Health and Urology ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHARON BELTZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ETHICON WOMEN'S HEALTH AND :
UROLOGY, ETHICON, INC., :
JOHNSON & JOHNSON, GYNECARE; : No. 2138 EDA 2017
SECANT MEDICAL; SECANT :
MEDICAL, INC.; PRODESCO, INC.; :
AND SECANT MEDICAL LLC :
:
:
APPEAL OF: ETHICON, INC. AND :
JOHNSON & JOHNSON :
Appeal from the Judgment Entered June 23, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): June Term, 2013 No. 3835
BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED DECEMBER 21, 2018
Ethicon, Inc. and Johnson & Johnson (“Defendants”) appeal from the
June 23, 2017, judgment entered in Philadelphia County Court of Common
Pleas, in the amount of $2,430,000.00 in favor of Sharon Beltz pursuant to
the jury verdict entered on May 26, 2017, as molded by the trial court’s June
21, 2017, order allowing delay damages. Defendants now raise the following
claims: (1) whether the trial court erred and/or abused its discretion when it
struck as untimely Defendants’ post-trial motions that were filed 17 days after
the verdict was read in open court but ten days after the clerk entered the
verdict on the docket; (2) the court erred and/or abused its discretion in failing
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to determine the motion to strike in light of Pa.R.C.P. 126, given the absence
of legally cognizable prejudice to Beltz and the fact that if there is any “fault”
of Defendants, it is only that they relied on a prominent Pennsylvania treatise
and case law for the date on which the 10-day period began; and (3) whether
the court erred in permitting a strict liability claim to proceed to verdict when
Pennsylvania law requires plaintiffs bringing design defect claims for
prescription-only medical devices to establish negligence. Defendants’ Brief
at 3. Based on the following, we affirm.
The trial court set forth the procedural history and facts as follows:
I. Procedural History
On June 28, 2013, the Plaintiff Sharon Beltz commenced this
action by filing a complaint against Ethicon, Inc. as well as
numerous other defendants. On October 9, 2014, in response to
a case management order, [Beltz] filed a short-form complaint
clarifying that their [sic] action was against Ethicon Inc., Johnson
and Johnson, Secant Medical, Inc., Secant Medical, LLC, and
Prodesco, Inc. The complaint arises from the implantation of a
Prolift, a transvaginal mesh product, which was surgically
implanted in Ms. Beltz on September 20, 2006.
The complaint brought numerous claims based in
Pennsylvania law. Ultimately, the jury determined that the
benefits of the Prolift did not outweigh the risk of harm associated
with its design.[1] On May 26, 2017, after a two-week trial, the
jury awarded Ms. Beltz $2,160,000[.00] in compensatory
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1 The jury found in favor of Beltz solely on her strict liability design-defect
claim. The jury found in favor of Defendants on Beltz’s claims alleging
negligent failure-to-warn, strict liability failure-to-warn, negligent design-
defect, and strict liability failure-to-warn under a consumer-expectation
theory.
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damages.[2] The verdict was recorded on May 26, 2017. [The
verdict was subsequently timestamped and docketed on May 31,
2017.3]
On June 12, 2017[,] Defendants filed a motion for post-trial
relief. On June 14, 2017 [Beltz] filed a motion to strike
Defendants’ post-trial motion, alleging that Defendants’ motion
was untimely, in violation of the ten-day filing deadline for post-
trial relief required by Pa.R.C.P. No. 227.1(c)(1). [Beltz’s] motion
to strike also alleged that the correct filing date was June 5, 2017.
On June 19, 2017, this Court heard oral arguments from both
parties on the issue of Defendants’ untimely post-trial motion.
This Court held an additional hearing on June 20, 2017, permitting
the Plaintiff, Ms. Beltz, to testify about the prejudice that would
be visited upon her if [Defendants’] untimely post-trial motion was
not dismissed. On June 20, 2017, this Court granted [Beltz’s]
motion to strike [Defendants’] post-trial motion. [Three days
later, the court, upon praecipe, entered judgement in favor of
Beltz, and against Defendants, in the amount of $2,430,000.00,
which reflected the jury award and delay damages. On June 28,
2017, the trial court ordered Defendants to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Defendants filed a concise statement on July 13, 2017.
The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
October 17, 2017].
II. Facts
On June 19, 2017, this Court heard arguments from the
parties concerning [Defendants’] post-trial motion filed on June
12, 2017. [Defendants] admitted that the deadline to file a post-
trial motion in this litigation was June 5, 2017, and their post-trial
motion was filed untimely, on June 12, 2017, one week after the
ten-day deadline mandated by Rule 227.1(c)(1). [Defendants]
submit that the untimeliness was due to reliance on a secondary
source, 10 Standard Pennsylvania Practice § 61:10, and claim that
it misapprehended the start of the period to file as being when the
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2 The jury declined to award punitive damages.
3 That same day, Beltz filed a motion for delay damages pursuant to Pa.R.C.P.
238 in the amount of $270,000.00. Defendants filed an answer on June 20,
2017. One day later, the court granted Beltz’s motion.
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verdict was entered into the docket, as opposed to when the
verdict is announced and recorded in open court. [Defendants]
then implored this Court to accept the untimely filing in light of
Pa.R.C.P. No. 126 because their mistake was inadvertent; they
made a good faith effort to comply with the rules; and have
demonstrated a track record of timely post-trial filings in previous
mass-tort litigation, and, ultimately, that accepting the late filing
would not substantially prejudice [Beltz]’s rights.
[Beltz] argued that the Rules of Civil Procedure are black letter
rules, the violation of which is not acceptable. [Beltz’s] counsel
then argued that the rights of Ms. Beltz would be substantially
prejudiced if this Court accepted the untimely filing. The Plaintiff,
Ms. Beltz, also testified at a subsequent hearing on June 20, 2017.
Ms. Beltz discussed the trial and the humiliation she felt during
the extensive testimony about her medical issues. Ms. Beltz also
testified about the relief she felt when her attorneys contacted her
a few days after the June 5, 2017 filing deadline to tell her that
Defendants did not submit a post-trial motion. Ms. Beltz believed
that her legal journey was finally over and even had a preliminary
discussion with her attorneys about investment opportunities for
her jury award.
Trial Court Opinion, 10/17/2017, at 1-3 (record citations omitted; emphasis
removed).
Based on the nature of their claims, we address Defendants’ first two
arguments together. Overall, Defendants contend the trial court erred in
granting Beltz’s motion to strike their post-trial motions as untimely filed. See
Defendants’ Brief at 17 (footnote omitted). In support of this general
argument, Defendants assert:
Applying both Rule 227.1(c)(1) and Pa.R.C.P. No. 126 together,
the Superior Court has held that while a “late filing [is] surely a
transgression of the Rules, not all transgressions are equal and,
therefore, sanctions such as waiver should be reserved for those
instances in which indulgence of a late filing actually works to
prejudice the interests of the adverse party or the orderly
administration of justice. The Rules recognize this distinction, and
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thereby permit a court to mete out the proper punishments
accordingly.”
Defendants’ Brief at 18, quoting Carlos R. Leffler, Inc. v. Hutter, 696 A.2d
157, 166 (Pa. Super. 1997).
Whenever a party files post-trial motions at a time when the court
has jurisdiction over the matter but outside the ten-day
requirement of Pa.R.C.P. 227.1, the trial court’s decision to
consider the motions should not be subject to review unless the
opposing party objects. Millard v. Nagle, 402 Pa. Super. 376,
587 A.2d 10, 12 (Pa. Super. 1991), affirmed 533 Pa. 410, 625
A.2d 641 (1993). As stated in Carlos R. Leffler, Inc. v. Hutter,
696 A.2d 157, 166 (Pa. Super. 1997), “in situations in which a
party files post-trial motions out of time and a specific objection
is made thereto by the opposing party, the trial court, in
deciding whether to rule upon the merits of the motion,
must consider the nature of the derelict party’s default as
well as the resulting prejudice to the objecting party.”
(citations omitted).
Mammoccio v. 1818 Mkt. Pshp., 734 A.2d 23, 27 (Pa. Super. 1999)
(emphasis added), appeal granted, case remanded, 744 A.2d 265 (Pa. 2000).
With respect to the first prong, the derelict party’s default, Defendants
argue they “attempted to comply with the 10-day deadline but relied on a
respected practice manual,” 10 Standard Pennsylvania Practice 2d § 61:10
(2017), “to determine the date on which the 10-day began to run.”
Defendants’ Brief at 20. Standard Pennsylvania Practice states, in pertinent
part:
Posttrial motions must be filed within 10 days after the verdict,
discharge of the jury because of inability to agree, or nonsuit in
the case of a jury trial, or notice of nonsuit or the filing of the
decision in the case of a trial without jury. An untimely posttrial
motion waives appellate arguments where the trial court refuses
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to address the merits of the issues raised in the adverse
possessor’s motion.
The 10-day period for filing posttrial motions begins running when
the order of the court is entered on the docket, thus placing it on
the record, and not when the order is announced by the court.
During this 10-day period, the verdict is not evidence of anything,
being subject to the control of the court and liable to be set aside.
Where the 10th day after the verdict is a Saturday, the motion is
timely if filed on the following Monday.
10 Standard Pennsylvania Practice 2d § 61:10.
Defendants acknowledge the trial court refused to credit the treatise
pursuant to Mammoccio, supra. See Defendants’ Brief at 23. They state:
In any event, the attorneys here filed what they thought were
timely post-trial motions, but, under Mammoccio, the filing was
late. Unlike most such cases, however, this was not a case in
which a party simply ignored the existence of a deadline and had
no basis for asking for fault to be excused. See, e.g., D.L. Forrey
& Assocs., Inc. v. Fuel City Truck Stop, Inc., 71 A.3d 915, 920
(Pa. Super. 2013) (distinguishing Millard and other cases
because appellant never filed post–trial motions); Hines v. Se.
Pa. Transp. Auth., 607 A.2d 301, 304 (Pa. Cmwlth. 1992) (filing
demand for jury trial not substantial compliance where notice of
appeal was required, because “appellant simply didn’t comply”
and “never perfected an appeal”).
…
Defendants did not “disregard[] the terms of a rule in their
entirety and determin[e] for [them]sel[ves] the steps [they] can
take to satisfy the procedure that [courts] have adopted to
enhance the functioning of the trial courts.” [Womer v. Hilliker,
908 A.2d 269, 271 (Pa. 2006)]. Instead, Defendants intended to
be and thought that they were in compliance with the terms of
Rule 227.1(c)(1) by relying on Pennsylvania Standard Practice to
determine the trigger date for the 10-day deadline for motions for
post-trial relief. Indeed, it was because they believed the motions
were timely filed that they did not file a motion for its acceptance
nunc pro tunc. The first notice of untimeliness to Defendants was
through Plaintiff’s motion to strike.
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Id. at 23-25.
We are guided by the following. Post-trial motions are governed by
Pa.R.C.P. 227.1, which states, in pertinent part:
(c) Post-trial motions shall be filed within ten days after
(1) verdict, discharge of the jury because of inability to agree, or
nonsuit in the case of a jury trial[.]
Pa. R.C.P. 227.1(c)(1). Moreover,
[t]he trial court has broad discretion to dismiss an untimely
posttrial motion or to overlook its untimeliness. See Kennel v.
Thomas, 804 A.2d 667, 668–69 (Pa.Super.2002); cf. Baker v.
Scranton Aluminum Mfg. Co., 242 Pa. Super. 488, 364 A.2d
377, 378 (1976) (affirming dismissal for untimeliness under local
four-day rule for the filing of motion for new trial).
Ferguson v. Morton, 84 A.3d 715, 718 n.4 (Pa. Super. 2013).
In Mammoccio, supra, this Court opined: “Pa.R.C.P. 227.1(c)(1) does
not expressly require entry of the verdict upon the docket before the
ten-day period begins to run, and we will not judicially amend the rule to
include such a requirement.” Mammoccio, 734 A.2d at 26 (emphasis
added).4 Cf. Brednick v. Marino, 644 A.2d 199 (Pa. Super. 1994) (stating
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4 As indicated above, the Pennsylvania Supreme Court granted allocatur in
Mammoccio, and, as a result, the Supreme Court remanded the case to the
trial court, issuing the following order:
AND NOW, this 13th day of January 2000, the petition for
allowance of appeal is GRANTED and the case is REMANDED to
the Court of Common Pleas of Philadelphia County to rule on the
petitioners’ post-trial motions for remittitur and to rule on the
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when verdict not announced in open court, period for filing post-trial motions
is ten days from mailing of notice of verdict to parties); Pa.R.C.P. 227.1(c)(2).
With respect to Rule 126, it provides:
The rules shall be liberally construed to secure the just, speedy
and inexpensive determination of every action or proceeding to
which they are applicable. The court at every stage of any such
action or proceeding may disregard any error or defect of
procedure which does not affect the substantial rights of the
parties.
Pa.R.C.P. 126.
A panel of this Court previously explained the interaction of Rule 126
with the remaining rules of civil procedure:
It is self-evident that our Rules of Civil Procedure are essential to
the orderly administration and efficient functioning of the courts.
Accordingly, we expect that litigants will adhere to procedural
rules as they are written, and take a dim view of litigants who
flout them. See Wood v. Ganett, 353 Pa. 631, 46 A.2d 321, 324
(Pa. 1946). That said, we have always understood that procedural
rules are not ends in themselves, and that the rigid application of
our rules does not always serve the interests of fairness and
justice. Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280,
1281 (Pa. 1978). It is for this reason that we adopted Rule 126,
which provides in pertinent part that “[t]he court at every stage
of any such action or proceeding may disregard any error or defect
of procedure which does not affect the substantial rights of the
parties.” Pa.R.C.P. No. 126. With this language, we incorporated
equitable considerations in the form of a doctrine of substantial
compliance into Rule 126, giving the trial courts the latitude to
overlook any “procedural defect” that does not prejudice a party’s
rights. Sahutsky v. H.H. Knoebel Sons, 566 Pa. 593, 782 A.2d
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issues concerning evidentiary rulings and the allegedly prejudicial
remarks.
Mammoccio v. 1818 Mkt. Pshp., 744 A.2d 265 (Pa. 2000). Nevertheless,
the Supreme Court’s order did not affect this Court’s reasoning in the matter.
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996, 1001 (Pa. 2001) (quoting Kurtas v. Kurtas, 521 Pa. 105,
555 A.2d 804, 806 (Pa. 1989) (emphasis in original));
Pomerantz, 387 A.2d at 1281. Thus, while we look for full
compliance with the terms of our rules, we provide a limited
exception under Rule 126 to those who commit a misstep when
attempting to do what any particular rule requires. Moreover, we
made Rule 126 a rule of universal application, such that the trial
court may disregard any such procedural defect or error at every
stage of any action or proceeding to which the civil procedural
rules apply. See id.
Womer, 908 A.2d at 276.
Here, the trial court found the following:
During the hearing held by this Court on June 19, 2017,
regarding [Beltz]’s motion to strike, [Defendants’] post-trial
motion, [Defendants] admitted to filing an untimely post-trial
motion.
“Pursuant to the applicable rule that a post-trial motion was
to be filed ten days later. It was a week late, no question
about that.” N.T. 6/19/17 pp. 10.
[Defendants] point out correctly in their first point of error that
post-trial motions are a procedural mechanism to ensure that a
trial court reviews allegations of error in the first instance. When
they are filed on time, that’s how they function. However, when
they are untimely, as they were in this case by 7 days, a trial court
must then consider the consequences of accepting or disregarding
them.
[Defendants] seem to characterize their infraction of Rule
227.1(c)(1) as an innocuous misadventure that does not prejudice
the substantive rights of [Beltz], requiring the benevolent posture
of Rule 126 to act as a legal deus ex machina, rescuing their
untimely post–trial motion from peril. This court disagrees and
finds that [Beltz]’s substantial rights would be affected if it
accepted [Defendants’] untimely post-trial motion. However,
even if it is determined that the infraction is de minimis, as
[Defendants] seem to suggest, then this is the exact type of
infraction that Rule 126 permits a trial court to either disregard or
accept.
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This Court comprehends Rule 126 and its applicability to the
issue of whether or not to grant [Beltz]’s motion to strike due to
Defendant[s’] violation of Rule 227.1(c)(1). N.T. 6/19/17 pp. 10.
The basic purpose of Rule 126 is straightforward and if this Court
accepted [Defendants’] untimely post-trial motion that purpose
cannot be achieved. First, reopening this case, filed in 2013 and
decided by a jury in 2017, would not promote a “speedy and
inexpensive determination of every action or proceeding.”
Second, the substantial rights of Ms. Beltz would be affected if this
Court accepted [Defendants’] untimely post-trial motion. After
consideration of the policy justifications for Rule 126, the
discretion that Rule 126 allows, and the cases described supra,
this Court granted [Beltz]’s motion to strike [Defendants’]
untimely post-trial motion. This claim of error is meritless.
…
As was stated supra, [Defendants] declared that their post-trial
motion was untimely due to reliance on a secondary source, 10
Standard Pennsylvania Practice §61:10. This source advises its
readers that the ten-day filing deadline for post-trial motions
begins when the verdict is entered into the docket, as opposed to
when the verdict is announced in open court. Despite their
carelessness, [Defendants] provided testimony demonstrating
their knowledge of the proper way to follow [R]ule 227.1(c)(1).
“And so, this is not a case where the defendants opted,
as has been suggested, to use a different calculus. There
was a mistake. It was … a mistake. There’s no question
that the trigger is the reading of the verdict in open court.”
N.T. 6/19/17 pp. 10.
This Court rejects [Defendants’] explanation for the following
reasons. 10 Standard Pennsylvania Practice is a secondary
source. As their testimony demonstrates, [Defendants] were
clearly aware that the time to file a post-trial motion begins when
the verdict is read in open court. They also knew that the
Pennsylvania Rules of Procedure and a thorough analysis of the
case-law interpreting Rule 227.1(c)(1) should have guided their
post–trial strategy. Moreover, the legal notices contained at the
very beginning of the hard-copy and electronic versions of 10
Standard Pennsylvania Practice 2d caution the readers who rely
on them for information:4
_____________________
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4The legal notice contained within the hard-copy version of
10 Standard Pennsylvania Practice 2d is located on the
second page right before the table of contents. The
electronic legal notice is accessible in the table of contents
by clicking the i icon.
_____________________
“This publication was created to provide you with
accurate and authoritative information concerning the
subject matter covered; however, this publication was
not necessarily prepared by persons licensed to
practice law in a particular jurisdiction. The publisher
is not engaged in rendering legal or other
professional advice and this publication is not a
substitute for the advice of an attorney. If you require
legal or other expert advice, you should seek the services of
a competent attorney or other professional.” 10 Standard
Pennsylvania Practice 2d hard-copy legal notice pp. ii[.]
“Thomson Reuters is not providing legal advice by
providing this product. The information contained herein is
not a substitute for the advice of an attorney. If you require
legal or other expert advice, you should seek the services of
a competent attorney or other professional.” Table of
contents; Standard Pennsylvania Practice 2d electronic legal
notice.
This source clearly warns the reader that some of the
information contained within may not necessarily be drafted by
licensed attorneys. How could [the law firm for Defendants], one
of the most elite law firms in the country, not know when the
deadline to file post-trial begins, and then rely exclusively on a
source which warns them not to? Therefore, this court does not
accept [Defendants’] explanation for the late filing, especially
when the black letter Pennsylvania Rules of Civil Procedure and
the cases interpreting those rules, are readily available to every
practicing attorney for review. Furthermore, [Defendants] did not
introduce any evidence of an attempt on their behalf to mitigate
the impact of their untimely filing, during the extra week they took
to draft their post-trial motion. Seven days late is considerably
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more than one day and, this court is not obligated to accept this
untimely filing. This allegation of error is meritless.
Trial Court Opinion, 10/17/2017, at 6-7, 11-12 (emphasis in original; footnote
omitted).
We agree with the trial court’s well-reasoned analysis. While we
acknowledge Defendants’ reference to Standard Pennsylvania Practice may
have provided some guidance in their research on the issue, we point out that
the secondary source relies on Papalia v. Montour Auto Service Co., 682
A.2d 343 (Pa. Super. 1996), for the proposition that the 10-day period for
filing post-trial motions begins to run when the order of the court is entered
on the docket. See 10 Standard Pennsylvania Practice 2d § 61:10 n.4.
Papalia, however, concerns the untimely filing of post-trial motions from
notice of a nonsuit. Papalia, 682 A.2d at 345. Mammoccio, supra,
recognized there is a distinction in Rule 227.1 with respect to nonsuits and
jury verdicts entered in open court before the parties, explaining:
In Papalia, 682 A.2d at 345, this court cited to Pa.R.C.P.
227.1(c)(1) in making its decision. We are convinced that said
citation was a typographical error since that section only applies
to “a nonsuit in the case of a jury trial [,]” and in that case, the
nonsuit was granted before trial, pursuant to Pa.R.C.P. 218, due
to the plaintiffs refusal to proceed. Rather, we believe the Papalia
court actually applied Pa.R.C.P. 227.1(c)(2) which provides that
“Post Trial motions shall be filed within ten days after ... (2) notice
of nonsuit or the filing of the decision or adjudication in the case
of a trial without a jury or equity trial.” Thus, the ten-day period
could not begin to run until the nonsuit order was docketed and
notice was served pursuant to Pa.R.C.P. 236, and the Papalias’
post-trial motion was timely filed within ten days from the entry
of the order on the docket. Cf., McCormick v. Blue Cross of
Western Pa., 360 Pa.Super. 210, 520 A.2d 59 (1987) (where
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compulsory nonsuit was entered in non-jury trial at the close of
plaintiffs’ case, ten-day period for filing post-trial motions did not
begin to run until the order granting the nonsuit was entered on
the docket and notice was sent).
Even if we are incorrect in our assumption that Papalia, supra,
was actually decided based upon the application of Pa.R.C.P.
227.1(c)(2), we are still convinced Papalia, supra, is
distinguishable from the present case since we are not dealing
with a nonsuit but, rather, entry of a jury verdict in open court.
The date upon which the ten-day period for filing post-trial
motions begins to run differs between sections (c)(1) and (c)(2)
of Rule 227.1, because of the possibility that the parties do not
know that a decision (or nonsuit) has been rendered and the ten-
day period has begun to run. See Pa.R.C.P. 1038 (Trial court,
sitting without a jury, shall render his decision within seven days
after the conclusion of the trial, except in protracted or
extraordinarily complicated cases.).
When, as in the present case, the jury’s verdict is announced in
open court at the conclusion of the trial, all parties are present
and are placed on notice of the verdict. This situation is distinct
from that covered by Pa.R.C.R. 227.1(c)(2), where the trial court’s
decision or order granting a nonsuit may be rendered outside of
the parties’ presence. Thus, entry of the order on the docket and
service of notice on the parties is necessary to insure that the
litigants know of the court’s decision and have time to prepare a
post-trial motion before the expiration of the ten-day period. See,
e.g., Carr v. Downing, 388 Pa.Super. 195, 565 A.2d 181, 181–
82 (1989), allocatur denied, 527 Pa. 628, 592 A.2d 1296 (1990)
(Ten-day period for filing post-trial motions did not begin to run
until the adjudication and decree nisi were filed on the record and
the prothonotary served notice of the decision.); Brednick v.
Marino, 434 Pa.Super. 513, 644 A.2d 199, 200 (1994) (same).
Mammoccio, 734 A.2d at 26–27.
As such, the Rule and related case law are clear and straightforward
regarding the timing for filing a post-trial motion following a jury verdict.
Defendants should have referred to the Rule and distinguishing case law when
developing their post–trial strategy, rather than merely relying on a secondary
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source. Furthermore, Defendants, by their own admission at the June 19,
2017, proceeding, were well-aware that their post-trial motions were tardy.
See N.T., 6/19/2017, at 10. Lastly, Defendants should have taken notice that
Standard Pennsylvania Practice is not controlling authority based on the legal
notices at the beginning of the hard and electronic copies. Therefore,
Defendants’ excuse that they were the “quintessential parties”5 who just
committed a misstep and the trial court applied a “hard-and-fast”6 rule based
on the fact that they filed the motion a mere seven days late is disingenuous
and not persuasive. Accordingly, we find the trial court clearly considered the
nature of Defendants’ default, and its explanation for not applying Rule 126
did not represent an abuse of discretion.7
Next, Defendants argue the court “committed an error of law when it
credited subjective reactions of [Beltz] as prejudice.” Defendants’ Brief at 25.
They state the “seven-day delay here did not prejudice [Beltz] in any objective
sense and did not impact her substantial rights”8 based on the following:
[Beltz] did not supply "specific facts," … that a witness would be
unavailable if a new trial were granted or that recollections had
faded over the seven days. Nor did [Beltz] alter her financial
situation on the expectation of payment in the seven days before
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5 Defendants’ Brief at 20.
6 Id.
7 Wellons v. Metropolitan Life Insurance Co., 444 A.2d 173 (Pa. Super.
1982) (affirming the trial court’s refusal to consider post-trial exceptions filed
four days late due to inadvertence of counsel).
8 Id. at 26.
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the post-trial motions were filed. The trial court relied solely on
[Beltz]’s testimony of shifting emotions as the basis for its
prejudice finding. Under the standards in Pennsylvania cases,
[Beltz]’s testimony did not demonstrate objective prejudice and
could not sustain a decision to strike the post-trial motions.
Id. at 26-27 (citation omitted). Moreover, Defendants claim Beltz’s
contention that the loss of finality itself constituted prejudice was unavailing.
Id. at 27.
As noted above, “in situations in which a party files post-trial motions
out of time and a specific objection is made thereto by the opposing party,
the trial court, in deciding whether to rule upon the merits of the motion, must
consider the nature of the derelict party’s default as well as the resulting
prejudice to the objecting party.” Leffler, 696 A.2d at 166. In Leffler,
which deals with a nonsuit, the appellant-plaintiff filed his post-trial motion
one day late due to inclement weather, but the trial court declined to address
the motion declaring it untimely. A panel of this Court found that the trial
court abused its discretion in concluding the appellant-plaintiff’s filing tardy,
stating “[a]side from the mere fact of the tardy filing itself, we fail to see how
[appellant’s] lateness upset effective court procedure or prejudiced the
adverse parties.” Id. at 166 (footnote omitted). The panel continued:
While this late filing was surely a transgression of the Rules, not
all transgressions are equal and, therefore, sanctions such as
waiver should be reserved for those instances in which indulgence
of a late filing actually works to prejudice the interests of the
adverse party or the orderly administration of justice. The Rules
recognize this distinction, and thereby permit a court to mete out
the proper punishments accordingly.
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Id.9
Here, the trial court found the following:
This Court held hearings on June 19 - 20 enabling the parties to
present arguments concerning the nature of [Defendants’] fault,
and testimony from Ms. Beltz about the prejudice that would befall
her if [Defendants’] untimely post-trial motion were accepted.
[Defendants] argue that no prejudice would befall Ms. Beltz
if this Court accepted their untimely post-trial motion.
Pennsylvania law does not define the prejudice required by
Leffler. Nevertheless, this Court disagreed with [Defendants],
and found that prejudice would have befallen Ms. Beltz if this Court
overlooked the untimeliness of [Defendants’] post-trial motion 7
days after the deadline.
During the June 20, 2017 hearing, Ms. Beltz testified about
how she will be prejudiced if [Defendants’] untimely post-trial
motion were accepted. After the jury verdict on May 26, 2017,
her attorneys advised her about how the post-trial process works
and she was told that [Defendants] had ten days to file their post-
trial motions. N.T. 6/20/17 pp. 23. The next time Ms. Beltz spoke
to her legal counsel was on Wednesday June 7, 2017, 2 days after
[Defendants’] deadline to file post-trial motions. N.T. 6/20/17 pp.
23. Ms. Beltz discussed the substance of that conversation:
“When Kila ([Beltz’s] Attorney) called she expressed to me
that they did not file an appeal. She said that it was over
and she continued to talk about [sic]. It seemed silly, but
by the end of the conversation she actually was offering to
give us recommendations, like financial recommendations
because that’s how final it was, that's how it was over. And
one of the last things I said to her was, So this is it, like they
had their time? They didn't file anything, it's over? And you
said, yes, it's over.” N.T. 6/20/17 pp. 25.
Afterwards, Ms. Beltz discussed the relief she felt, believing
that her legal journey was over:
____________________________________________
9 Also in Leffler, there was no allegation of prejudice to the adverse party.
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“And then I called my husband immediately after that call
(from Ms. Baldwin) and I told him, I said, it’s over. I was
crying. I’m like, it’s over. We can put this behind us. We
can move on. And then, when he came home that night he
hugged me and said, he said, it seems inappropriate, but he
said he was happy for me because he knows what I go
through, what I suffer with every day and with my pelvic
pain. And he was like, this is one less thing that you have
to worry about, that you have to go through over the coming
years because they didn’t file [sic]. They didn’t take their
time that they had, and they didn’t file.” N.T. 6/20/17 pp.
26.
“And my husband and I started talking after that June 12th
call and that night and just the process of everything that I
went through over this trial, the embarrassment. I mean,
that was humiliating to sit up there and talk about those
personal things. It was humiliating to go sit back there and
listen to people talking about it. And then through those
next days after the 12th, I mean there was a wave of relief
like through me. Like it was, I hadn’t felt like that in a long
time.” N.T. 6/20/17 pp. 27-28.
Ms. Beltz then testified about how the possibility of protracted
litigation due to Defendant[s’] untimely post-trial motion affects
her.
“And now since last Tuesday I am physically ill over this.
Like I am, I’m shaking like every day. I have like a panic
inside of me because I know what I’m going to go through
that they’re allowed to do this, that, they’re allowed to miss
their deadline and then still put me through this.” N.T.
6/20/17 pp. 28.
Ms. Beltz’s testimony concluded on cross-examination with a
discussion about whether she expected finality, or further
litigation.
“I wasn’t expecting anything like that unless the defense
had filed in that ten days. That week after the 26th when
Kila called me she discussed the fact that, I will say you, but
the defense had ten days to file a motion for appeal. After
that ten days if you had filed I would imagine we would have
had a discussion in depth about that. We didn’t have
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discussions beforehand in depth that there was going to be
a post-trial motion. There wouldn’t need to be one if you
didn’t file anything, as you didn’t. So that’s my answer."
N.T. 6/20/17 pp. 33-34.
This Court also had ample opportunity to observe Ms. Beltz
during the trial from May 8, 2017 to May 26, 2017, during which,
Ms. Beltz’s private health issues reverberated throughout the
courtroom for days, in front of complete strangers. For most of
the trial, and especially during her own testimony, Ms. Beltz was
visibly upset, sobbing openly inside and outside the courtroom.
Ms. Beltz has endured physical and emotional trauma that will
likely last for the rest of her life. As the aforementioned testimony
demonstrates, accepting [Defendants’] untimely post–trial motion
is prejudicial because it will only cause further harm to Ms. Beltz
and abrogate the finality that she rightfully understood to be
certain.
The Pennsylvania Rules of Civil Procedure are necessary and
it’s essential that litigants are able to rely on the uniformity and
certainty they create. The ten-day deadline provided by Rule
227.1(c)(1) allows Ms. Beltz to reach a place of repose after the
expiration of that deadline. This same rule that provides a safe-
harbor for her jury verdict after ten-days also protects
Defendants[’] appellate rights from abridgement. When
[Defendants] filed their post-trial motion 7 days late, they waived
their appellate rights, knowing that this missed deadline ushers in
the finality that this judicial system is set up to provide litigants.
It was incumbent upon [Defendants] to preserve their issues for
an appeal of Ms. Beltz’s $2,160,000 jury award. This Court
recognizes that Rule 126, discussed supra, can sometimes provide
a lifeline for an untimely post-trial motion, but not under these
circumstances.
This is not an aberration. This judicial system provided Ms.
Beltz with finality and it functioned in the exact way it’s intended
to, based on fair rules that all parties involved in litigation are
required to follow. A jury of her peers, during a fair trial, saw fit
to compensate her. Accepting untimely post-trial motions that
[Defendants] took an extra week to refine and, granting them an
opportunity to vitiate Ms. Beltz’s jury award after missing the filing
deadline is palpably unfair and prejudicial to her because she
believed that she could move on with her life.
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Trial Court Opinion, 10/17/2017, at 8-11 (footnotes omitted; emphasis
added).
Although Defendants suggest that we should reweigh the factors
considered by the trial court and that no prejudice existed, we decline to do.
The trial court provided a thorough explanation of why it concluded
Defendants’ “late filing actually work[ed] to prejudice the interests” of Beltz.
Leffler, 696 A.2d at 166. Recognizing again that the trial court is afforded
“broad discretion” in these matters, we conclude the court did not abuse its
discretion in striking Defendants’ post-trial motion as untimely.
Based on our analysis, we need not address Defendants’ remaining
claim.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/18
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