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Home My WebLink About01-1510 DEANNA K. COLLINS, Trustee Ad Litem for the Estate of GEORGE G. STEWART, Plaintiff V. JEAN WADE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-1510 CIVIL TERM ORDER OF COURT AND NOW, this 8" day of June, 2004, upon consideration of Plaintiff's Motion for Continuance, the motion is denied. BY THE COURT, J. sley Oler, Jr., J. Deanna K. Collins 471 High Street Bressler, PA 17113 Plaintiff, pro se Charles E. Wasilefski, Esq. 2931 N. Front Street Harrisburg, PA 17110 Attorney for Defendant F'vy rc _ ?Ii;J4 i ? .. . -7 STtrTE OF 6" 6 E, S??ke Pia(", to vi (Tf-4w ldoE o?AC2,r 7 ?004 THEcoteeF or C?mn??v P[. ? ? r fm ?t A& 2-VA-Ni t (V0; o! ?V,'L%er-PA - (9\ 6 v i L Yk cD oN --? 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ORDER OF COURT AND NOW, this 17th day of August, 2004, after careful consideration of the Defendant's motion for judgment on the pleadings, and for the reasons stated in the accompanying opinion, Defendant's motion for judgment on the pleadings is granted and Plaintiffs complaint is dismissed. BY THE COURT, v Seanna K. Collins 46 Willow Street Highspire, PA 17034 Plaintiff, pro Se OiCharles E. Wasilefski, Esquire 2931 North Front Street Harrisburg, PA 17110-1280 Attorney for Defendant esley Olen r., J. a? o? -ig -o V i ti. ,, r,,?,.J l_ u_? •c. J_ ax ;{ w ''iui7? DEANNA K. COLLINS, TRUSTEE AD LITEM FOR THE ESTATE OF GEORGE G. STEWART, Plaintiff v JEAN WADE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-1510 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE OLER and GUIDO, JJ. OPINION and ORDER OF COURT Oler, J., August 17, 2004. This case was commenced by Plaintiff, referring to herself as "trustee ad litetn for the Estate of George G. Stewart," 2001, entitled "Com Taint of by fling a document on March 16, p Medical Negligence."' In fact, Plaintiff is the administratrix of the estate, having succeeded the decedent's spouse as personal representative on March 5, 2001.2 Without leave of court, and in the absence of an agreement between the parties ,3 Plaintiff filed a similarly titled amended complaint on April 9, 2001.4 ' See Plaintiffs Original Complaint, entitled "Complaint of Medical Negligence," 2001. filed March 16, 2 See In Re: Estate of George G. Stewart, Or litem" is defined by Black's Law Dictionary, Tans Court Division Nc. 21-99-504. designation is inapposite ed., as a trustee appointed to the Plaintiff. Plaintiff was granted letters of administration d.bsnat a. (de bonis non cum testamento annexo) by the Cumberland County Register by of the Wills on court; this March 5, 2001, after the executrix of the estate, Hilda Stewart, renounced her position. 3 See Pa. R.C.P. 1033. 4 See Plaintiff's Amended Complaint, entitled "Amended Complaint of Medical Negligence," filed April 9, 2001 [hereinafter Amended Complaint at pg. _], 1 Although Plaintiff's amended complaint consisted largely of conclusions of law, and a rambling narrative, it purported to be a. wrongful death actions On April 30, 2001, Defendant filed an answer with new matter to the amended complaint.6 On May 18, 2001, Plaintiff filed a document entitled "Plaintiff's Response to Defendant's Answer to This Plaintiff's Complaint," which seems to have been intended to respond to Defendant's answer, and to reply to Defendant's new matter.7 The fifteen paragraphs appearing under the heading "New, Matter," however, did not directly correlate with the sixteen paragraphs of Defendant's new matter.8 On November 4, 2003, Defendant filed a motion for judgment on the pleadings,' to which no response was filed by Plaintiff. The motion contended that Plaintiff failed to state a claim upon which relief could be granted, and that the statute of limitations for a wrongful death action had nun prior to the filing of the original complaint. 10 On May 18, 2004, Defendant tiled a preacipe to list the matter for argument." On June 9, 2004, argument was held on Defendant's 5 Amended Complaint at pgs. 1, 3. Plaintiff's Amended Complaint contains the following language: "I, Deanna K. Collins ... charge [Defendant] with the following allegations Negligence that contributed to the wrongful death situation for [Decedent] of Medical ...."Amended Complaint at pg. 1 (emphasis added). The ad damnum clause reads as follows. "Therefore, this [sic] ESTATE OF GEORGE G. STE WART PRAyS FOR A JUDGMENT IN THE AMOUNT OF: $125,000.[00] Against [Defendant] ... for her [actions] ... w hich we the [sic] contributed to the Wrongful Death situation for [Decedent] ...." 3 (emphasis added). family, alleges Amended Complaint at pg. e See Answer with New Matter of Defendant, Jean Wade, to Plaintiff's Complaint, filed April 30, 2001 [hereinafter Defendant's Answer at para. _, or Defendant's _]. May ' See 18,2001. generally Plaintiff's Response to Defendant New Matter at para. 's Answer to This Plaintiff's s Complaint, filed Compare Plaintiff's Response to Defendant's Answer to This Plaintiff's Complaint at para. 1- 15, filed on May 18, 2001, with Defendant's New Matter at para. 6-2 L, filed April 30, 2001. 9 See Motion of Defendant, Jean Wade, 1 for Judgment on the Pleadings, filed November 4, 2003. 11 See Motion of Defendant, Jean Wade, for Judgment on the Pleadings. See Praecipe for Listing Case for Argument, filed May 18, 2004. 2 motion." Plaintiff did not file a brief with the argument court, nor did she appear before the court for argument. 13 STATEMENT OF FACTS In ruling on a motion for judgment on the pleadings, the court must treat all well-pleaded allegations of the party opposing the motion as true and draw all reasonable inferences favorable to that party. Necho Coal Co. V- Denise Coal Co., 387 Pa. 567, 568, 128 A.2d 771, 772 (1957). Avennents requiring a responsive pleading by the nonmoving party, however, which are either not responded to or not adequately addressed, are also to be credited. See, e.g., Pisiechko V. Diaddorio, 230 Pa. Super. 295, 301, 326 A.2d 608, 611 (1974). Pennsylvania Rule of Civil Procedure 1017 defines "pleadings" to include "a complaint, an answer thereto, [and] a reply if the answer contains new matter or a counterclaim ...." Pa. R.C.P. 1017. If Plaintiff's well-pleaded allegations are credited, and if averments of Defendant's new matter to which a proper response has not been made are also credited, the facts may be stated as follows: Defendant, Jean Wade, was employed at the Claremont Nursing and Rehabilitation Center 14 as a nurse supervisor on November 7, 1998.15 Plaintiff's decedent, George G. Stewart, had been admitted to the facility on November 2, 1998.16 At the time of Mr. Stewart's admission, he was eighty-two years of age, 12 A motion for continuance of the argument filed by Plaintiff on June 4, 2004, was denied by the court on June 8, 2004. Order of Court, June 8, 2004. 13 With respect to the rules and procedures of the Argument Court of the Cumberland County Court of Common Pleas, a party seeking an order from the court must file two copies of a brief with the court administrator, as well as a copy with opposing counsel or an unrepresented party, twelve days before the date of the It for argument, which contains a statement of facts and a discussion issue(s) with reference to relevant authority. See Cumberland County Rul ar e of Court 210-6. argument. responding Id. Party must furnish a brief in a similar fashion five days prior to the date set for 14 Amended Complaint at pp. 1, 3. 15 See Amended Complaint at pp. 1-2. 16 Defendant's New Matter at para. 6. 3 weighed approximately 95 pounds and suffered from "mild emphysema. ,17 Plaintiff was Mr. Stewart's daughter. 18 At approximately 5:30 p,tm19 on the eveninlg of November 7, 1998, the nursing staff noticed that Mr. Stewart's condition had begun to change.20 Mr. Stewart required a nurse's assistance in order to dine that evening," which was unusual, and by approximately 7:45 p.m. he indicated to nursing personnel that he wished to retire early.22 After helping Mr. Stewart to bed, the staff checked his vital signs, and, based upon the information gathered thereby, called a physician named John Schiro.23 At approximately 8:10 p.m., Dr. Schiro issued a verbal directive to Defendant to notify family members of Mr. health .24 Stewart's declining One of the issues in dispute is whether Defendant, in fact, complied with this directive in a timely fashion.21 After realizing that the telephone number of record for Mr. Stewart's spouse was incorrect, Defendant made contact with Plaintiff, the only other contact person listed in the facility's records,2e at approximately 8:25 p.M.27 During the ensuing conversation, Plaintiff provided Defendant with Mrs. Stewart's 17 Plaintiffs Response to Defendant's Answer to This Plaintiffs Complaint at para. 8; Defendant's New Matter at para. 11. 18 Amended Complaint at pg. 1. 19 Defendant's New Matter at para. 13. 20 Amended Complaint at pp. 1.2. 21 Defendant's New Matter at para. 13. 22 Defendant's New Matter at para. 13. 23 Defendant's New Matter at para. 14; see also Plaintiffs Response to Defendant's Answer to This Plaintiffs Complaint at para. 2. 24 Amended Complaint at pg. 1. 25 Compare Amended Complaint at pg. 1, with Defendant's Answer at para. 1. 26 Plaintiffs Response to Defendant's Answer to This Plaintiffs Complaint at para. 2. 27 Amended Complaint at para. 2; see Plaintiffs Response to Defendant's Answer to This Plaintiffs Complaint at para. 13. 4 correct telephone number.28 Mrs. Stewart was contacted by the staff of Claremont sometime later in the evening when no one from Mr. Stewart's family had called back or arrived at the facility.29 Throughout the evening, Mr. Stewart's condition continued to deteriorate as evidenced by falling blood pressure and periods of unconsciousness.30 During this period, according to Plaintiff, Defendant did too little with regard to the care provided to Mr. Stewart.31 At some point in the evening, staff again attempted to, and did, in fact, contact Mrs. Stewart.32 Once informed of the events that had transpired, Mrs. Stewart indicated her desire to have all further treatment provided at the Carlisle Hospital.33 Mrs. Stewart's request was promptly honored, and Dr. Schiro ordered Mr. Stewart's transfer to the Carlisle Hospital.31 Plaintiff alleges that Mr. Stewart died as a result of Defendant's failure to act in an appropriate manner-specifically, to contact Mrs. Stewart immediately, so as to allow her the opportunity to request that her spouse be transferred to the Carlisle Hospital more expeditious1y.35 Mr. Stewart was eventually diagnosed with strept- pneumonia.36 According to Plaintiff, the Claremont facility was subsequently cited by the Pennsylvania Department of Health for "NON-COMPLIANCE to perform adequate, safe, [and] timely Emergency Procedures for Mr. Stewart during the time of his declining health from Nov. 7, 1998[,] thru the early AM 28 Plaintiff's Response to Defendant's Answer to This Plaintiff's Complaint at para. 13; Defendant's New Matter at para. 15; see Defendant's New Matter at para. 16. 29 Defendant's New Matter at para. 16. 30 Amended Complaint at pp. 1.2. 31 Plaintiffs Response to Defendant's Answer to This Plaintiff's Complaint at para. 13; Amended Complaint at pg. 2. 32 Defendant's New Matter at para. 16. 33 Defendant's New Matter at para. 16. 34 Defendant's New Matter at para. 17. 35 Plaintiff s Response to Defendant's Answer to This Plaintiffs Complaint at para. 15. 36 Plaintiffs Response to Defendant's Answer to This Plaintiff's Complaint at para. 14. 5 hours of Nov. 8, 1998."37 The date of Mr. Stewart's death was November 9, 1998.38 Although the events giving rise to the instant action took place in November, 1998, Plaintiff initiated the litigation on March 16, 2001,39 approximately two years and four months after the events complained of occurred.40 Plaintiff alleges that she was without actual knowledge of the Defendant's purported negligence until she was contracted on March 11, 2001, at approximately 6:30 p.m., by an unnamed "third party informant. ,41 Plaintiff maintains, therefore, that March 11, 2001, is the date of discovery and should begin the running of the statute of limitations.42 DISCUSSION Statement of Law Judgment on the Pleadings. A motion for judgment on the pleadings is provided for in the Pennsylvania Rules of Civil Procedure. See Pa. R.C.P. 1034. A case can be decided and a judgment on the pleadings entered "only ... where no material facts remain in dispute." Williams by and through Williams v. Lewis, 319 Pa. Super. 552, 555, 466 A.2d 682, 683 (1983) (citing Pennsylvania Ass'n of State Mental Hosp. Physicians, Inc. v. State Employees' Ret. AV, 484 Pa. 313, 320 n.11, 399 A.2d 93, 96 n.l l (1979)). Additionally, "[o]nly where the moving party's right to prevail is so clear that a trial would be a fruitless exercise should a judgment on the pleadings be entered." Id. (citing A' vling v. Natoli, 290 Pa. Super. 174, 177, 434 A.2d 187, 188 (1981)). 37 Plaintiffs Response to Defendant's Answer to This Plaintiff's Complaint at para. 11. 38 See In Re: Estate of George G. Stewart, Orphans' Court Division No. 21-99-504, Pet. for Probate and Grant of Letters, filed Mar. 1, 2001. 39 Plaintiff's Original Complaint, filed March 16, 2001. 40 See Amended Complaint at pp. 1-2. 41 Plaintiffs Response to Defendant's Answer to This Plaintiffs Complaint at para. 1. 42 Plaintiffs Response to Defendant's Answer to This Plaintiffs Complaint at para. 1. 6 Pro Se Status. Pro se status does not, in and of itself, confer some special benefit upon the litigant who chooses to proceed in such a manner. Strawn v. Strawn, 444 Pa. Super. 390, 396, 664 A.2d 129, 132 (1995). Stated otherwise, a litigant who chooses, for whatever reason, to represent himself or herself is not entitled to any particular advantage based upon his or her lack of legal training. Cole v. Czegan, 722 A.2d 686, 687 (Pa. Super 19913). Indeed, the Pennsylvania Supreme Court has stated that "any layperson choosing to represent [himself or herself] in a legal proceeding must, to some reasonable extent, assume the risk that [his or her] lack of expertise and legal training will prove [his or her] undoing." Vann v. Commonwealth, Unemployment Comp. Bd of Review, 508 Pa. 139, 148, 494 A.2d 1081, 1086 (1985) (quoting Groch v. Commonwealth, Unemployment Comp. Bd. of Review, 81 Pa. Commw. 26, 30, 472 A.2(1286, 288 (1984)). Wrongful Death Action. The Wrongful Death Act provides, in pertinent part, as follows: (a) General Rule.-An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another .... (b) Beneficiaries.-[T]he right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased .... The damages recovered shall be distributed to the beneficiaries in the proportion they wound take the personal estate of the decedent in the case of intestacy Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S.A. §8301(a), (b), Damages recovered under this statute "are not part of the decedent's estate, but rather are compensation to individual members of the family for their loss." Tulewicz v. Southeastern Pennsylvania Transp. Auth., 529 Pa. 588, 596, 606 A.2d 427, 431 (1992). 7 The Purpose of the Wrongful Death Act is to "compensate certain enumerated relatives of the deceased for the pecuniary loss occasioned to them through deprivation of the part of the earnings of the deceased which they would have received from him had he lived." Manning v. Capelli, 270 Pa. Super. 207, 211, 411 A.2d 252, 254 (1979); accord Hodge v. Loveland, 456 Pa. Super. 188, 193, 690 A.2d 243, 245-46 (1997). Accordingly, in order to recover under the statute, a plaintiff must show that a member of one of the enumerated classes suffered pecuniary loss resulting from the death of the decedent. Hodge, 456 Pa. Super. at 193, 690 A.2d at 246. A recovery for pecuniary loss, as defined in this context, is dependent upon a showing that the decedent contributed support to the family member with "reasonable frequency," and that the family member had a reasonable expectation of future support from the decedent. Berry v. Titus, 346 Pa. Super. 376, 381-82, 499 A.2d 661, 664 (1985) (quoting Manning, 270 Pa. Super at 211, 411 A.2d at 254). Statute of Limitations. With respect to the limitations period applicable to the filing of a wrongful death action, the Pennsylvania Legislature has provided: The following actions and proceedings must be commenced within two years: (2) An action to recover damages for injuries to the personor for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another .... Act of July 9, 1976, P.L. 586, § 2, as amended, 42 Pa. C.S.A. §5524. Generally, "a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period." Bradley v. Ragheb, 429 Pa. Super. 616, 620, 633 A.2d 192, 194 (1993) (quoting Pocono Int'l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983)). Therefore, it has been said that "[t]he statutory period begins to run `as soon as the right to institute and maintain 8 a suit arises; lack of knowledge, mistake or misunderstanding do[es] not toll the running of the statute .... "' Bradley, 429 Pa. Super. at 620, 633 A.2d at 194 (quoting Pocono Int'l Raceway, Inc., 503 Pa. at 84, 468 A.2d at 471); see also A. MCD. v. Rosen, 423 Pa. Super. 304, 307, 621 A.2d 128, 130 (1993). "In most cases, the statute of limitations begins to run on the date the injury is sustained. Once the prescribed statutory period has expired, a plaintiff is thereafter barred from commencing suit." Bradley, 429 Pa. Super. at 620, 633 A.2d at 194. In some limited circumstances, however, a plaintiff will be unable to determine whether a cause of action exists until some time after a causative event has occurred. In an appropriate case, the Discovery Rule will apply with respect to the statute of limitations. The Pennsylvania Superior Court has stated the following with respect to the Discovery Rule: The discovery rule provides that where the existence of the injury is not known to the complaining ply and such knowledge cannot reasonably be ascertained within the prescribed period, the period of limitation does not begin to run until discovery of the injury is reasonably possible. Under the discovery rule, the limitations period will be tolled until the plaintiff knows, or in the exercise of reasonable diligence should have known, (1) that he has been injured, and (2) that his injury has been caused by another's conduct." When presented with an assertion of applicability of the discovery rule, a court must, before it applies the exception, "address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action." The plaintiffs conduct is to be evaluated in terms of what she should have known at a particular time by following a course of reasonable diligence. "If a party has the means of discovery within his [or her] power but neglects to use them, his [or her] claim will still be barred." Bradley, 429 Pa. Super. at 621, 633 A.2d at 194-95 (citations omitted). 9 Application of Law to FaLets In the court's view, Plaintiff has failed to allege sufficient facts to permit recovery for wrongful death. There are no allegations in the pleadings reflecting any pecuniary loss occasioned to Plaintiff, or any other qualified claimant under the Wrongful Death Act, as a result of decedent's death, and, therefore, recovery in a wrongful death action is not supportable. Additionally, Plaintiff and her predecessor, as decedent's personal representative, did not, in the court's view, act with reasonable diligence to discover the allegedly negligent actions of Defendant at the time in question to warrant the application of the Discovery Rule. If one assumes Plaintiff's allegations to be true, Plaintiff and Mrs. Stewart were aware on the date in question that either Defendant herself, or someone on the nursing staff of the Claremont facility, had failed to contact Mrs. Stewart in a timely manner. A person using reasonable diligence, in the court's view, would have begun pursuing the issues complained of well before the filing of the instant action. Indeed, "[i]f a party has the means of discovery within his [or her] power but neglects to use them, his [or her] claim will still be barred." Burnside v. Abbott Laboratories, 351 Pa. Super. 264, 292, 505 A.2d 973, 988 (1985). For the forgoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 17° day of August, 2004, after careful consideration of the Defendant's motion for judgment on the pleadings, and for the reasons stated in the accompanying opinion, Defendant's motion for judgment on the pleadings is granted and Plaintiff's complaint is dismissed. BY THE COURT, s/ J. Wesley Oler Jr J. 'Wesley Oler, Jr., J. 10 Deanna K. Collins 46 Willow Street Highspire, PA 17034 Plaintiff, Pro Se Charles E. Wasilefski, Esquire 2931 North Front Street Harrisburg, PA 17110-1280 Attorney for Defendant 11 Curtis R. Long Prothonotary OfflLC of the Vrotbonotarp Cumberlanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 5TH DAY OF NOVEMBER 2007 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573