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A case argued before the Pennsylvania Supreme Court Tuesday could help define the parameters of deciding when a judge has violated the coordinate jurisdiction rule. In Ryan v. Berman, the defense filed motions to amend before two trial judges. The first was denied, and the second was granted. The plaintiff claims the second judge’s grant was a violation of the rule because the same motion had already been denied by another judge. But the defense claims the second motion contained different facts from the first and that the denial of the first motion was error on the part of the judge. The plaintiff says that is not true and that the first petition contained all the relevant information the defendants had at the time. The action arises from an underlying medical malpractice suit by Barbara Ann Marie Ryan against I. Joel Berman, Morris Rossman, Regional Internal Medicine Assoc., Joel Jaffe, Leon Cattolico and Henry DiTommaso. Before she filed the action, Ryan filed a separate products liability action for alleged work-related injuries. Ryan settled the products liability suit and signed a release for injury claims arising from the accident. When the defendants learned of the release, they filed a motion for leave to amend their answer in the medical malpractice case to plead that the release barred the action against them. At the same time, the defendants filed a motion for summary judgment. Philadelphia Common Pleas Judge Levan Gordon denied both motions. However, Gordon granted a separate motion in limine by the defendants to preclude the use of deposition testimony from Cattolico at trial. Shortly before trial was set to begin, the defendants filed a joint motion for extraordinary relief, asking the court to allow them to again file a motion to amend their answers to incorporate a release-based defense and for summary judgment. The trial was postponed, and Judge Alex Bonavitacola granted the motion for extraordinary relief and later granted the motion to amend. Ultimately, Bonavitacola granted the motion for summary judgment. Ryan appealed the dismissal of her case to the Superior Court, which reversed and remanded, finding that the doctrine of coordinate jurisdiction prevented Bonavitacola from ruling on the same type of pretrial motions that Gordon had denied. The case went to trial before Judge Myrna Field. During trial, defense counsel again filed a motion to amend the complaint and incorporate the release. After the close of Ryan’s case-in-chief, Field granted the defense’s motion for compulsory nonsuit, finding that Ryan failed to make out a prima facie case of medical malpractice because her expert was not qualified to testify. Field also said that the defendant’s answers could be amended to reflect the release but that the release barred only the portion of the case occurring after Ryan’s work injury. Ryan filed post-trial motions seeking a new trial. Field granted the motion in part, vacating the entry of nonsuit as to Cattolico and DiTommaso but denying the motion as to the other doctors. On appeal to the Superior Court, Ryan claimed Field exceeded her authority by ruling on motions that had already been denied by Gordon. In a memorandum opinion, the Superior Court concluded that Field did not violate the coordinate jurisdiction rule. “The procedural posture of the case at the time of the order refusing the removal of the nonsuit was distinct from that at the time of Judge Gordon’s denial of the motion for summary judgment,” the Superior Court said. “A motion to remove a nonsuit is different in kind from a motion for summary judgment. Judge Field, ruling on a post-trial motion, was free to overrule legal errors committed at an earlier stage in the trial process.” ARGUMENTS At oral arguments yesterday before the Supreme Court, Philadelphia attorney George J. O’Neill argued for Ryan. He cited the point of law that a motion should not be entertained when an earlier motion of the same kind has already been denied absent intervening changes in the facts or law. That had not happened in his client’s case, O’Neill said. He said Field was not presented with any new evidence regarding the release. Justice Sandra Schultz Newman said it appeared to her as she read the briefs that Field had been presented with new facts, but O’Neill said that was not so. “In the motions before Judge Gordon the defendants included interrogatories and answers which fully covered their claims at that time,” O’Neill said. Later, Newman asked O’Neill again if there were any changes to the petitions filed before Field, and again, O,Neill said there were not. “Judge Gordon’s decision was discretionary,” O’Neill said. “The release did not apply to the defendants. There was ample reason to justify Judge Gordon’s decision.” Donald J. Brooks of McKissock & Hoffman in Philadelphia argued for the defense. As soon as he stood before the bench, Justice Russell Nigro asked him what was different about the motions he filed before Field. Brooks said there was new evidence establishing that the defendant physicians were treating physicians for the underlying accident, which he said was important because Ryan said her claims arose after the accident. Even if coordinate jurisdiction could apply, Brooks said, the third exception to the rule applied — the underlying decision was erroneous. That exception “clearly” applied, Brooks said. “The underlying error was the denial of the petition for leave to amend,” O’Neill said.

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