Court: 30-day appeal clock begins to tick at discontinuance order, not award confirmation

By Robert L. Sharpe, Jr.

The Superior Court has ruled that a defendant on the losing side of a $1.1 million binding arbitration award may not appeal a months-old order granting summary judgment to a joint tortfeasor.

The court this week held that the 30-day period in which to appeal the summary judgment as a final order began upon the trial court's order to discontinue the case so that the remaining parties could pursue arbitration, not months later when the court confirmed an arbitrator's award.

The defendant, Otis Elevator Co., appealed in an attempt to revive its claim against a tortfeasor who, after settling with a personal-injury plaintiff, was granted summary judgment dismissing Otis' cross-claim.

But Otis did not file its appeal until after Otis and the plaintiff agreed to discontinue the case and take the claim to binding arbitration.

Otis' appeal "was an extraordinary maneuver," said the plaintiff's attorney, Alan M. Feldman of Feldman Shepherd & Wohlgelernter. "It was a procedural gambit to avoid paying us."

The plaintiff, Patricia A. Care, in 1993 sued both Otis and Community General Hospital in Berks County. She claimed her severe back injuries were caused when she stumbled out of a hospital elevator that had stopped below the floor's level.

The plaintiff settled with the hospital for $200,000 in 1997. Soon afterward, the hospital was granted a motion for summary judgment against Otis' cross-claims.

In early 1998, both Otis and the plaintiff agreed to file a praecipe to discontinue the case and submit the claim to binding arbitration.

The court on July 6, 1998, granted the requests of both Otis and the plaintiff to confirm the independent arbitrator's May 29, 1998, award of $1,098,173.

In quashing the defendant's appeal, the Superior Court rejected Otis' argument that the hospital's summary judgment order was not made final until the court's July 6, 1998, confirmation of the arbitration award.

Instead, the order granting summary judgment became final on Feb. 19, 1998, when the order to discontinue was entered after "the parties had agreed to resolve the matter by means of private arbitration," the court's memorandum opinion stated.

"Otis should have filed its notice of appeal within 30 days of the Feb. 19 order," instead of Aug. 4, 1998, the court stated.

The $1.1 million award "was a good award under the circumstances," Feldman said yesterday.

The plaintiff was a phlebotomist in her 40's who was employed by a nonparty hospital and assigned to work at Community General Hospital.

Testimony indicated that she tripped and twisted her back while walking from the elevator car due to the elevator's failure to level properly at each floor.

The plaintiff presented testimony that the elevator's dangerous condition was known to the hospital's maintenance employees, although no formal documentation of such notice existed.

"Often what's at issue in these cases is whether there has been prior, similar problems," said Feldman. "In this case, there was no documentation to demonstrate that service technicians encountered any prior leveling complaints or failure to level problems. We overcame the lack-of-notice problem with oral testimony from a physician and three nurses, all of whom testifies that the leveling problems on this elevator were repeated, frequent and ongoing, and that the hospital maintenance staff had been notified," Feldman said.

Otis was under contract to service the elevator and provide preventive maintenance. Feldman argued that with such a contract it was unnecessary to prove notice "because preventive maintenance is all about doing the work before the problem occurs."

The size of the award was appropriate, Feldman said, because the plaintiff underwent three extensive back surgeries, which included spinal fusions.

"The procedures helped only the most modest way," Feldman said. After the surgeries, the plaintiff still required a cane and walked with a halting gait in a bent-over fashion.

"Here was an active woman, an avid golfer, who had been working as a phlebotomist for years, reduced to looking like an elderly woman, walking like a cripple, and needing assistance to do everyday tasks." Feldman said.

The arbitration award included $150,000 for the plaintiff's husband's loss of consortium, $300,000 for pain and suffering, $266,000 for future loss of earnings and fringe benefits and $140,000 in medical expenses.