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HomeMy WebLinkAbout00-7949 Civil (2)DEANNA K. COLLINS, : IN THE COURT OF COMMON PLEAS OF Trustee Ad Litem for the : CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF GEORGE G. : STEWART, : Plaintiff : : v. : CIVIL ACTION - LAW : ROSEMARY DAILEY : BATHAVIC, : Defendant : NO. 00-7949 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT BEFORE HOFFER, P.J., OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 15th day of August, 2001, after careful consideration of the Preliminary Objections of Defendant, PlaintifFs Answer, and the briefs and arguments in support thereof, and for the reasons stated in the accompanying opinion, Defendant's demurrer is sustained and PlaintifFs complaint is dismissed. Defendant's motion to strike references to Hilda B. Stewart is deemed moot. BY THE COURT, esley Oler~_Jrfl, Deanna K. Collins 46 Willow Street Highspire, PA 17034 Plaintiff, Pro Se Charles E. Wasilefski 2931 North Front Street Harrisburg, PA 17110-1280 Attorney for Defendant DEANNA K. COLLINS, : IN THE COURT OF COMMON PLEAS OF Trustee Ad Litem for the : CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF GEORGE G. : STEWART, : Plaintiff : : v. : CIVIL ACTION - LAW : ROSEMARY DAILEY : BATHAVIC, : Defendant : NO. 00-7949 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT BEFORE HOFFER, P.J., OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., August 15, 2001. This case arises out of allegedly negligent care provided by Defendant Rosemary Dailey Bathavic, a nurse for the Claremont Nursing and Rehabilitation Center, which purportedly resulted in the death of a resident of that facility, George G. Stewart, on November 9, 1998.~ On November 9, 2000, Plaintiff Deanna K. Collins filed a complaint on her own behalf as the daughter of the decedent.2 In a series of amendments, the caption of the original complaint was modified to name Plaintiff as "trustee ad litem" for the estate of George G. Stewart,3 and to include as a co-Plaintiff Hilda B. Stewart, purportedly the widow of the decedent.4 The amended complaints stated that Plaintiff sought compensation for the losses in the value of the ~ Am. Compl. Medical Negligence and Wrongful Death, filed Jan. 22, 2001, at 3 (hereinafter Fourth Am. Compl.). 2 Compl. Medical Negligence which resulted in a wrongful death situation, filed Nov. 9, 2000 (hereinafter Compl.) 3 Fourth Am. Compl at 1. 4 Am. Compl. Medical Negligence and Wrongful Death, filed Dec. 8, 2000, at 1 (hereinafter Third Am. Compl.). estate of the decedent, including the value of Plaintiff's music recording contract, which was allegedly lost due to the death of the decedent.5 Defendant filed preliminary objections which were collectively denominated a "demurrer," raising issues as to standing and capacity to sue, conformity to law or rule of court, inclusion of scandalous and impertinent matter, specificity, and legal sufficiency.6 Defendant also filed a preliminary objection in the form of a motion to strike references to Hilda B. Stewart, on the ground that she was being added as a party plaintiff after the applicable two-year statute of limitations had run.7 By order of court dated May 18, 2001, Plaintiff was directed to file an answer to the preliminary objections, and both parties were directed to conduct depositions for purposes of development of a record, pursuant to Pennsylvania Rule of Civil Procedure 206.7.8 Plaintiff filed an answer to the preliminary objections and submitted a brief in support thereof, but no depositions have been filed. Based upon the record as it exists, and for the reasons stated in the accompanying opinion, a demurrer will be sustained. Because of this disposition, Defendant's motion to strike references to Hilda B. Stewart will be deemed moot. STATEMENT OF FACTS The present action at law was commenced on November 9, 2000, by the filing of a document titled "Complaint of Medical Negligence which resulted in a wrongful death situation." The caption listed Deanna K. Collins as the Plaintiff. The complaint consisted of a one-page claim for $85,000.00 by Plaintiff as the daughter of George G. Stewart, due to unspecified negligence on the part of Defendant which resulted in the death of 5 E.g., Fourth Am. Compl. at 4. In the interest of a cohesive disposition of issues, the court will treat Plaintiff's second, third and fourth amended complaints as a connected series. Op. and Order of Ct., dated May 18, 2001, at 2 n.6; see Pa. R.C.P. 126. 6 Def.'s Prelim. Objections, filed Jan. 11, 2001, paras. 8-11. 7Id. at 1. 8 Op. and Order of Ct., dated May 18, 2001, at 8. Plaintiffs father, a resident of Claremont Nursing and Rehabilitation Center.9 The complaint did not specify the nature of the losses for which damages were being sought. The complaint contained the observation that "the Estate of George G. Stewart is pursuing a Wrongful Death Lawsuit of its own.''~° On November 16, 2000, without leave of court or agreement of the parties, Plaintiff filed a (first) amended complaint. It replicated the original complaint, with the addition of a more formal notice to defend.~ On December 4, 2000, Defendant filed preliminary objections to the amended complaint, raising issues as to standing and capacity to sue, conformity to law or rule of court, inclusion of scandalous and impertinent matter, specificity, and legal sufficiency. ~2 On December 6, 2000, in response to the preliminary objections and as permitted by Pennsylvania Rule of Civil Procedure 1028(c)(1), Plaintiff filed a (second) amended complaint, titled "Amended Complaint of Medical Negligence and Wrongful Death." It was filed in the name of"Deanna K. Collins-Plaintiff (Trustee ad litem for the Estate of George G. Stewart[)]," and purported to represent the interests of "myself and all the beneficiaries of said Estate whom I legally represent and initially failed to mention.''13 The (second) amended complaint was basically in narrative form and contained several specific allegations as to negligence leading to the death of the 82-year-old decedent. The complaint alleged that Defendant, as a nurse at Claremont Nursing and Rehabilitation Center, failed to act according to her duty to provide medical aid to the decedent after she became aware that he was in a "comatose condition.''14 The complaint 9 Compl. ~° Id' ~ See Am. Compl. Medical Negligence which resulted in a wrongful death situation, filed Nov. 16, 2000 (hereinafter First Am. Compl.) ~2 Def.'s Prelim. Objections, filed Dec. 4, 2000, paras. 1-6. ~3 Am. Compl. Medical Negligence and Wrongful Death, filed Dec. 6, 2000, at 1 (hereinafter Second Am. Compl.). 14 Second Am. Compl. at 1. indicated that the decedent remained in this condition for more than an hour before he was taken to a hospital, where he died soon after, apparently without regaining consciousness.15 The (second) amended complaint included claims for damages in the amount of $85,000 based on the "Pain-Suffering, Personal, and Financial losses due to the untimely death of [George G.] Stewart?6 It alleged that Plaintiff recently had signed an "Independent recording contract," for which she would perform songs composed by the decedent, and that the loss of this contract "was a significant financial loss to the value of the Estate.''~7 On December 8, 2000, without leave of court or agreement of the parties, Plaintiff filed a (third) amended complaint, titled "Amended Complaint of Medical Negligence and Wrongful Death." It basically reiterated the allegations of the prior amended complaint; however, the caption was revised again to name as plaintiffs "Hilda B. Stewart-Executrix & Deanna K. Collins (Daughter)-Plaintiffs In Pro Per for Estate of George G. Stewart." The complaint stated that the plaintiffs were "[a]cting Jointly together As In Pro Per Plaintiffs," and that Plaintiff represented the interests "of myself and all the beneficiaries of said Estate whom I legally represent.'dS On January 11, 2001, Defendant filed preliminary objections to the (third) amended complaint. The objections included a motion to strike references to Hilda B. Stewart, executrix, on the ground that she was being added as a party plaintiff after the applicable two-year statute of limitations period had run~9 and a "demurrer" to the underlying claims which was based upon the following specific contentions: Plaintiff lacks standing and capacity to bring suit against Defendant, Bathavic, for the death of George G. Stewart. ~5 Id. at 2-3. ~6 Id. at4. 17Id' 18 Third Am. Compl. at 1. ~9 See Def.'s Prelim. Objections, filed Jan. 11, 2001. 4 Plaintiff lacks standing and capacity to bring suit against Defendant, Bathavic, for medical negligence. Plaintiffs Complaint fails to conform to law or rule of court and includes scandalous and impertinent matter. Plaintiffs Complaint is legally insufficient and must be dismissed.2° In response to these preliminary objections, Plaintiff filed a (fourth) amended complaint, titled "Amended Complaint of Medical Negligence and Wrongful Death," in which the reference to Hilda B. Stewart as a plaintiff was deleted. The complaint named "Deanna K. Collins-Trustee Ad litem for the Estate of George G. Stewart" as the plaintiff and stated that Deanna K. Collins had been "appointed Trustee Ad litem for the Estate of George G. Stewart." It otherwise basically reiterated the allegations of the prior amended complaint? Notwithstanding the latest amended pleading, the parties proceeded to oral argument on the earlier preliminary objections on February 14, 2001. About a month after the oral argument, Plaintiff filed a (fifth) amended complaint, without leave of court or agreement of the parties, and beyond the time for doing so of right in response to preliminary objections.22 The (fifth) amended complaint has been stricken by the court as untimely.23 In an opinion dated May 18, 2001, the court found that the record was insufficient to dispose of the preliminary objections, specifically regarding "the history, in terms of the personal representative, of the estate of George G. Stewart... [and] the financial relationship between the decedent and his daughter.''24 For purposes of development of a record for disposition of Defendant's preliminary objections, the court issued a rule to show cause upon Plaintiff, in which Plaintiff was directed to file an answer to the 20 Id. paras. 8-11. 21 See Fourth Am. Compl. 22 Am. Compl. (1) Medical Negligence (2) Wrongful Death, filed March 16, 2001 (hereinafter Fifth Am. Compl.). 23 Op. and Order of Ct., dated May 18, 2001, at 8. 24 Id. at 5-6 (footnote omitted). preliminary objections and both parties were directed to complete depositions and submit briefs on the matter.2s Plaintiff filed an answer and submitted a brief, but no depositions have been filed by either party.26 With respect to Plaintiff's status as personal representative of the decedent's estate, Plaintiff's answer averred that Hilda B. Stewart had "renunciated" her position as personal representative on November 7, 2000, and that, therefore, "during the filing of the Original Complaint and all other Complaints [the estate of George G. Stewart] was without a Personal Representative.''27 Plaintiff averred that she had been appointed as personal representative for the estate of George G. Stewart on March 5, 2001, and that she had acted in "Good Faith" in filing the prior complaints.28 With respect to the financial relationship between the decedent and Plaintiff, the answer basically reiterated allegations in the prior complaints. Plaintiff averred that she and her father had been involved in a "business relationship," and that she recently had obtained an "Independent recording contract" to record songs composed by the decedent? The answer alleged that the "Estate lost financial gains due to incompletion of this musical project.''3° 25 Id. at 8. The court stated that the preliminary objections would be decided under Pa. R.C.P. 206.7. Id. 26 Plaintiff actually filed two answers to the preliminary objections. Plaintiff filed the first answer on May 29, 2001, but this answer was deemed insufficient as a response to the preliminary objections. Order of Ct., dated May 31,2001. The court, however, permitted Plaintiff an opportunity to file an amended answer "in accordance with.., the order of May 18, 2001, on a timely basis." Id. On June 6, 2001, Plaintiff filed an amended answer. Pl.'s Answer to Order of Ct., filed June 6, 2001. All citations in this opinion to Plaintiff's answer to the preliminary objections refer to the amended answer. 27 Pl.'s Answer to Order of Ct., filed June 6, 2001, at 5. 28 Id. 29Id. at 7, 9. 30 Id. DISCUSSION Statement of Law Preliminary Objections. In reviewing a preliminary objection in the nature of a demurrer, which challenges the legal sufficiency of a complaint, the court must "must accept all material facts set forth in the complaint as well as all the inferences reasonably deducible therefrom as true." Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619, 621 (1995). If a court orders the parties to take depositions for the purposes of development of a record on preliminary objections, and depositions are not conducted, all facts properly pleaded in the answer to the preliminary objections will be deemed admitted. Pa. R.C.P. 206.7(c). A preliminary objection in the nature of a demurrer should be sustained only when, "on the facts averred, the law says with certainty that no recovery is possible." Powell, 539 Pa. at 489, 653 A.2d at 621. Survival Action. The basic statutory provision respecting survival of actions appears at 42 Pa. C.S.A. § 8302, and provides as follows: All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants. Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa. C.S.A. § 8302 (West 1998 & Supp. 2001). A survival action "merely continues in [the decedent's] personal representatives the right of action which accrued to the deceased.., because of the tort." Tulewicz v. Southeastern Pa. Transl,. Auth., 529 Pa. 588, 597, 606 A.2d 427, 431 (1992) (quoting Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942)). Only losses suffered by the decedent are recoverable in a survival action. Id. at 597, 606 A.2d at 431. Damages represent compensation for the decedent's pain and suffering from the time of injury until his or her death and for the decedent's loss of earning power, less personal maintenance expenses, until the end of his or her estimated working life-span. Kiser v. $chulte, 538 Pa. 219, 226, 648 A.2d 1, 4 (1994). No recovery for pain and suffering of the decedent is possible if the decedent was unconscious from 7 the time of injury until death. Nye v. Pa. Dep't of Transp., 331 Pa. Super. 209, 214, 480 A.2d 318, 321 (1984). Wrongful Death Action. The Wrongful Death Act provides, in pertinent part, as follows: 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 .... · . . [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 would take the personal estate of the decedent .... Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended, 42 Pa. C.S.A. §§ 8301(a), (b) (West 1998 & Supp. 2001). 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, 529 Pa. at 596, 606 A.2d at 431. 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 243,246 (1997). Accordingly, in order to recover under the statute, plaintiffs must show that they 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). Application of Law to Facts Survival Action. In the court's view, Plaintiff has not alleged sufficient facts to permit recovery in a survival action. In a survival action, the personal representative of the estate of the decedent may recover damages to which the decedent would have been entitled both for pain and suffering from the time of injury until death and for lost earning potential, less personal maintenance expenses, over the decedent's estimated life-span. Plaintiff Collins, however, seeks recovery for losses sustained by Plaintiff, including loss of consortium and of her "Independent recording contract.''31 Plaintiff has not asserted a claim based upon a contention that the decedent experienced pain or suffering from the time of the negligent act until his death,32 that the decedent had any significant earning potential which was lost, or that this earning potential would have exceeded his personal maintenance costs. In short, Plaintiff has not alleged any pertinent losses sustained by the decedent, and, therefore, cannot recover damages in a survival action.33 Wrongful Death Action. In the court's view, Plaintiff has not alleged sufficient facts to permit recovery in a wrongful death action. To recover under the Wrongful Death Act, Plaintiff must show that she suffered pecuniary loss as a result of the death of the decedent. Plaintiff, however, has not averred any facts that suggest that the decedent contributed support to Plaintiff with "reasonable frequency," or that she was deprived of expected support because of his death. The facts, as alleged, suggest that Plaintiff and the decedent were involved in a "business relationship" and that she lost a recording contract with an independent producer due to the death of George G. Stewart? These facts do not rise to the level of the deprivation of expected contributions from the decedent as contemplated by the statute. The court, in the order dated May 18, 2000, found Plaintiff's complaint to be insufficient in terms of the financial relationship between Plaintiff and the decedent, and issued a rule upon Plaintiff with a view toward supplementation of the record in this area. 31 Pl.'s Answer to Order of Ct., filed June 6, 2001, at 7, 9. 32 In fact, the complaint suggests that decedent was comatose and unconscious from the time of the alleged negligent act until his death. Fourth Am. Compl. at 2-4. 33 Because of the disposition of the preliminary objections on other grounds, the court will not address Plaintiff's ability to amend the caption of the complaint to identify Plaintiff as personal representative of the estate of decedent following the expiration of the two-year statute of limitations period. 34 Pl.'s Answer to Order of Ct., filed June 6, 2001, at 7, 9. 9 Plaintiff's answer, however, merely repeated previous allegations. Because Plaintiff's answer failed to remedy the defects identified by the court, and, thus, failed to present a viable claim, the court must sustain Defendant's demurrer and dismiss the complaint. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 15th day of August, 2001, after careful consideration of the Preliminary Objections of Defendant, Plaintiff's Answer, and the briefs and arguments in support thereof, and for the reasons stated in the accompanying opinion, Defendant's demurrer is sustained and Plaintiff's complaint is dismissed. Defendant's motion to strike references to Hilda B. Stewart is deemed moot. BY THE COURT, /s/J. Wesley Oler, Jr., J. J. Wesley Oler, Jr., J. Deanna K. Collins 46 Willow Street Highspire, PA 17034 Plaintiff, Pro Se Charles E. Wasilefski 2931 North Front Street Harrisburg, PA 17110-1280 Attorney for Defendant 10