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HomeMy WebLinkAbout00-7949 CivilDEANNA K. COLLINS, Trustee ad Litem for the Estate of George G. Stewart, Plaintiff ROSEMARY DAILEY BATHAVIC, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 00-7949 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HOFFER, P.J., OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 18th day of May, 2001, upon consideration of Defendant's preliminary objections to Plaintiff's pleadings in the above-captioned case, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. A Rule is issued upon Plaintiff to show cause, if any she has, why the relief requested in Defendant's preliminary objections should not be granted. a. Plaintiff shall file an answer to the preliminary objections within 21 days of the date of this order. b. The preliminary objections shall be decided under Pa. R.C.P. 206.7. c. Depositions shall be completed within 35 days of the date of this order. d. Briefs shall be submitted within 56 days of the date of this order. e. Defendant's preliminary objections shall be decided upon the record as supplemented. 2. Plaintiff's untimely (fifth) amended complaint, filed on March 16, 2001, is stricken. 3. Plaintiff is requested not to file further amended complaints in the absence of leave of court, agreement of the parties, or conformity with Pennsylvania Rule of Civil Procedure 1028(c)(1). BY THE COURT, J. ~esley~O'ler~,., J. Deanna K. Collins 46 Willow Street Highspire, PA 17034 Plaintiff, Pro Se Charles E. Wasilefski, Esq. 2931 North Front Street Harrisburg, PA 17110-1280 Attorney for Defendants DEANNA K. COLLINS, Trustee ad Litem for the Estate of George G. Stewart, Plaintiff Vo ROSEMARY DAILEY BATHAVIC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 00-7949 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HOFFER, P.J., OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., May 18, 2001. Presently before the court in this civil case are preliminary objections filed by Defendant to an amended complaint filed by a pro se plaintiff. For the reasons stated in this opinion, a rule to show cause will be issued for purposes of development of a record. STATEMENT OF FACTS; PROCEDURAL HISTORY The present action at law was commenced on November 9, 2000, by the filing of a document entitled "Complaint of Medical Negligence which resulted in a wrongful death situation." A number of amended complaints have followed. Plaintiff's claim or claims arise out of allegedly negligent nursing care given to Plaintiff's decedent by Defendant. Plaintiff's decedent allegedly died on November 9, 1998.~ The preliminary objections subjudice are in the form of a motion to strike references to a claimant added in a (third) amended complaint2 after the applicable ~ Plaintiff's Amended Complaint of Medical Negligence and Wrongful Death at 3, filed December 8, 2000. 2Id. statute of limitations had run and a "demurrer" to the underlying claim or claims in a (second) amended complaint.3 The "demurrer" is based upon the following specific contentions: Plaintiff lacks standing and capacity to bring suit against Defendant, Bathavic, for the death of George G. Stewart. Plaintiff lacks standing and capacity to bring suit against Defendant, Bathavic, for medical negligence. Plaintiff's Complaint fails to conform to law or rule of court and includes scandalous and impertinent matter. Plaintiff's Complaint is legally insufficient and must be dismissed.4 Defendant listed the preliminary objections for argument at the time they were filed, notwithstanding the availability of a 20-day period within which Plaintiff~vas permitted to file an amended complaint. See Pa. R.C.P. 1028(c)(1). Within this period, Plaintiff filed a (fourth) amended complaint.5 The parties nevertheless proceeded to oral argument, which was held on February 14, 2001.6 About a month after the oral argument, Plaintiff filed another (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,s The first complaint in this action, denominated "Civil Action--Medical Negligence," was filed on behalf of Deanna K. Collins on November 9, 2000.9 This complaint consisted of a one-page claim for $85,000.00 by Plaintiff as the 3 Plaintiff's Amended Complaint of Medical Negligence and Wrongful Death, filed December 6, 2000. 4 Preliminary Objections of Defendant, Rosemary Dailey Bathavic, filed January 11, 2001, at 3. 5 Plaintiff's Amended Complaint of Medical Negligence and Wrongful Death, filed January 22, 2001. 6 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. See Pa. R.C.P. 126. 7 See Pa. R.C.P. 1033. 8 See Pa. R.C.P. 1028(c)(1). 9 Plaintiff's "Complaint of Medical Negligence which resulted in a wrongful death situation," filed November 9, 2000. 2 daughter of George G. Stewart, due to unspecified negligence on the part of Defendant which resulted in the death of Plaintiff's father; the complaint contained the observation that the Estate of George G. Stewart was "pursuing a Wrongful Death Lawsuit of its own.''l° Without leave of court or agreement of the parties, Plaintiff filed a (first) amended complaint on November 16, 2000.il This amended complaint replicated the original complaint, with the addition of a more formal notice to defend.12 On December 4, 2000, Defendant filed preliminary objections to this 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.13 On December 6, 2000, Plaintiff filed a (second) amended complaint,TM in response to the preliminary objections, as permitted by Pennsylvania Rule of Civil Procedure 1028(c)(1). This amended complaint, entitled "Amended Complaint of Medical Negligence and Wrongful Death," 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.''15 The amended complaint was basically in narrative form, contained several specific allegations as to negligence leading to the death of the 82-year-old decedent, and included among damages the loss of "a recent independent I°/d. ~ Plaintiff's Amended Complaint of Medical Negligence which resulted in a wrongful death situation with Official Notice to Defend and Answer, filed November 16, 2000. 12Id' ~3 See Preliminary Objections of Defendant, Rosemary Dailey Bathavic to Plaintiff's Amended Complaint, filed December 4, 2000. 24 Plaintiff's Amended Complaint of Medical Negligence and Wrongful Death, filed December 6, 2000. 15 Id. at 1. recording contract" which the decedent had allegedly been signed to.16 Attached to the amended complaint was a paper entitled "SUMMONS IN A CIVIL LAWSUIT," which demanded damages on behalf of the Estate of George G. Stewart for "medical negligence" and "wrongful death" in the amount of $85,000.00.17 On December 8, 2000, without leave of court or agreement of the parties, Plaintiff filed a (third) amended complaint.18 This amended complaint, entitled "Amended Complaint of Medical Negligence and Wrongful Death," basically reiterated the allegations of the prior amended complaint.~9 However, the caption was revised to name as plaintiffs "Hilda B. Stewart--Executrix & Deanna K. Collins (Daughter) - Plaintiffs In Pro Per for Estate of George G. Stewart." This amended complaint stated that the plaintiffs were "[a]cting jointly together As In Pro Per Plaintiffs,''2° and purported to represent the interests "of myself and all the beneficiaries of said Estate whom I legally represent.''2~ Attached to the amended complaint was the "summons" which had been attached to the previous amended complaint.22 On January 11, 2001, Defendant filed preliminary objections to the third amended complaint, and reiterated Defendant's preliminary objections to the second amended complaint, styling them a "demurrer.''23 These new preliminary objections contained, in addition to the "demurrer" items, which have been quoted ~6 Id. at4. 17Id' ~8 Plaintiff's Amended Complaint of Medical Negligence and Wrongful Death, filed December 8, 2000. ~9 Id' 2° Id. at 1. 2~ Id' 22 Id. 23 See Preliminary Objections of Defendant, Rosemary Dailey Bathavic, filed January 11,2001. 4 previously in this opinion,24 a motion to delete references to Hilda B. Stewart, executrix, on the ground that she was being added as a party plaintiff after the applicable statute of limitations had run.25 In response to these preliminary objections, on January 22, 2001, Plaintiff filed a (fourth) amended complaint, entitled "Amended Complaint of Medical Negligence and Wrongful Death," deleting the reference to Hilda B. Stewart as a plaintiff, naming as the plaintiff "Deanna K. Collins--Trustee Ad litem for the Estate of George G. Stewart," and specifically reciting that she (Deanna K. Collins) had been "appointed TRUSTEE Ad litem for the ESTATE OF GEORGE G. STEWART.''26 It otherwise basically reiterated the allegations of the prior amended complaint and included the "summons" previously mentioned. Oral argument on Defendant's preliminary objections was held on February 14, 2001. Without leave of court or agreement of the parties, Plaintiff thereafter filed another (fifth) amended complaint, on March 16, 2001.27 This amended complaint included a demand on behalf of the Estate of George G. Stewart in the increased amount of $125,000.00.28 DISCUSSION For a number of reasons the record in the present case is not sufficient to dispose of all of Defendant's preliminary objections. One major difficulty in this regard is that the history, in terms of the personal representative, of the estate of George G. Stewart is not clear,29 nor is the financial relationship between the 24 See text accompanying note 4 supra. 25 Preliminary Objections of Defendant, Rosemary Dailey Bathavic, filed January 11, 2001. 26 Plaintiff's Amended Complaint of Medical Negligence and Wrongful Death, filed January 22, 2001. 27 Plaintiff's Amended Complaint of (1) Medical Negligence (2) Wrongful Death, filed March 16, 2001. 28 Id. at4. 29 It is well settled that as a general rule a court will not take judicial notice of the records of other cases, even in the same court. See Woolardv. Burton, 345 Pa. Super. 366, 372-73,498 A.2d 445, 448 (1985). 5 decedent and his daughter set forth. This information would be relevant to the issues of standing, limitation of actions and legal sufficiency. With respect to standing, several points of law may be mentioned. First, in appropriate cases a plaintiff's lack of standing may be made the subject of a preliminary objection.3° Disposition of such an objection, however, will normally require a record beyond the complaint itself.3~ Second, a survival action may be maintained by the personal representative of a decedent? A wrongful death action may be maintained in the first instance by the personal representative of a decedent; and, in lieu of commencement of suit by the personal representative within six months of the decedent's death, it may also be maintained by certain qualifying individuals.33 A child of a decedent is such a qualifying individual if the child received from the parent services, maintenance, or gifts with such reasonable frequency as to lead to an expectation of future enjoyment of such services, maintenance, or gifts.34 In the present case, it is unclear whether the decedent's daughter, Deanna K. Collins, was at some point appointed in place of Hilda B. Stewart as the personal representative of the decedent, thus conferring upon her standing to maintain a survival action and/or a wrongful death action, and if so when. It is also unclear whether her standing to maintain a wrongful death action could be predicated upon her financial relationship with her father. With respect to limitation of actions, it is well settled that where an amendment to a complaint would introduce a new, time-barred claim, it is 30 See Kee v. Pennsylvania Turnpike Corem'n, 685 A.2d 1054, 1056 n.4 (Pa. Commw. Ct. 1996), aff'd, 548 Pa. 550, 699 A.2d 721 (1997). 3[ See Note, Pa. R.C.P. 1028(c). Defendant's preliminary objections were not endorsed with a notice to plead. 32 Prevish v. Northwest Med. Ctr. Oil City Campus, 692 A.2d 192-200 (Pa. Super. Ct. 1997), afl'd, 553 Pa. 73,717 A.2d 1023 (1998). 33 Tulewicz v. Southeastern Pennsylvania Transp. Auth., 529 Pa. 588, 598 n.9, 606 A.2d 427, 431 n.9 (1992); Pa. R.C.P. 2202. 34Berryv. Titus, 346 Pa. Super. 376, 381,499 A.2d 661,664 (1985); 42 Pa. C.S. §8301. 6 appropriate to refuse to permit the amendment. See Frey v. Pennsylvania Electric Co., 414 Pa. Super. 535,540, 607 A.2d 796, 798, appeal denied, 532 Pa. 645,614 A.2d 1142 (1992). It is also well settled that for purposes of this rule survival and wrongful death actions are not to be considered variants of the same claim. Id. at 539, 607 A.2d at 798. The Pennsylvania Superior Court has stated as follows with regard to the statutes of limitations applicable to survival and wrongful death actions in the present context: The statute of limitations applicable to both wrongful death and survival actions ... provides that "[a]n action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another" must be commenced within two years. The two year period begins to run "from the time the cause of action accrued .... ,,35 In no event can either a wrongful death action or a survival action be brought more than two years after the decedent's death.36 These rules are not in themselves unclear. However, the effect of amendments to the initial complaint herein, whereby plaintiffs have been changed and causes of action have been altered, combined with uncertainty as to a factual predicate for standing, is to make an analysis of Defendant's preliminary objection based upon the statute of limitations speculative at best. Finally, with respect to legal sufficiency of Plaintiff's pleading, and to the extent that Deanna K. Collins is attempting to maintain a wrongful death action in a capacity other than as personal representative of the decedent, the record lacks a basis upon which to decide whether an opportunity to amend should accompany 35 Moyer v. Rubright, 438 Pa. Super. 154, 158, 651 A.2d 1139, 1141 (1994) [(citations omitted)], appeal denied, 540 Pa. 649, 659 A.2d 988 (1995). 36/d.. 7 the sustaining of a demurrer. Such an opportunity should be granted where it appears that the legal insufficiency of a pleading can be corrected.37 For the foregoing reasons, and in the interest of developing a record upon which several of the more serious preliminary objections raised by Defendant may be resolved and of preventing further confusion, the following order of court will be entered: ORDER OF COURT AND NOW, this 18th day of May, 2001, upon consideration of Defendant's preliminary objections to Plaintiff's pleadings in the above-captioned case, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. A Rule is issued upon Plaintiff to show cause, if any she has, why the relief requested in Defendant's preliminary objections should not be granted. a. Plaintiff shall file an answer to the preliminary objections within 21 days of the date of this order. b. The preliminary objections shall be decided under Pa. R.C.P. 206.7. c. Depositions shall be completed within 35 days of the date of this order. d. Briefs shall be submitted within 56 days of the date of this order. e. Defendant's preliminary objections shall be decided upon the record as supplemented. 2. Plaintiff's untimely (fifth) amended complaint, filed on March 16, 2001, is stricken. 3. Plaintiff is requested not to file further amended complaints in the absence of leave of court, agreement of the parties, or conformity with Pennsylvania Rule of Civil Procedure 1028(c)(1). 37 UnitedNat'llns. Co. v. M. London, Inc., 337 Pa. Super. 526, 546, 487 A.2d 385,395 (1985). 8 BY THE COURT, Deanna K. Collins 46 Willow Street Highspire, PA 17034 Plaintiff, Pro Se Charles E. Wasilefski, Esq. 2931 North Front Street Harrisburg, PA 17110-1280 Attorney for Defendants /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 9