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HomeMy WebLinkAbout2008-0081 Civil THE ESTATE OF MARY ARLEDGE, : IN THE COURT OF COMMON PLEAS OF BY EXECUTORS HENRY ARLEDGE, : CUMBERLAND COUNTY, PENNSYLVANIA HUSBAND, AND ANITA ARLEDGE, : DAUGHTER, AND HENRY ARLEDGE : AND ANITA ARLEDGE INDIVIDUALLY : IN THEIR OWN RIGHT, : PLAINTIFFS : : V. : : SELECT MEDICAL CORPORATION, : THE COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : STATE, BUREAU OF PROFESSIONAL : AND OCCUPATIONAL AFFAIRS: : STATE BOARD OF NURSING AND : THE DIVISION OF HEALTH : MONITORING PROGRAMS AND : UNIT 1: VOLUNTARY RECOVERY : PROGRAM, : DEFENDANTS : 08-0081 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF SELECT MEDICAL CORPORATION TO PLAINTIFFS’ COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., April 30, 2008:-- January 7, 2008 On , a writ of summons was filed naming plaintiffs as: The Estate of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own Right. On February 12, 2008 , plaintiffs filed a complaint. The only averments in the complaint as to the identity of the plaintiffs are: 08-0081 CIVIL TERM 1. Mary Arledge is a deceased person who at the time in question was employed by the defendant hospital as a registered nurse (RN). 2. Plaintiff Henry Arledge is the widower of Mary Arledge and is suing on behalf of the estate and in his own right. 3. Anita Arledge is the daughter of Mary Arledge and is suing on behalf of the estate and in her own right. The complaint alleges several causes of action arising out of a drug screen obtained from Mary A. Arledge when she was employed as a registered nurse in a hospital operated by defendant, Select Medical Corporation. Count I is “The Estate v. Select Medical Corporation” for negligent reporting. Count II is “The Estate v. Select Medical Corporation” for tortious interference with an employment relationship. Count III is “The Estate v. Select Medical Corporation” for intentional infliction of emotional distress. Count IV is “The Estate v. Select Medical Corporation” for discrimination. Count VIII is “Henry Arledge v. Select Medical Corporation” for negligent infliction of emotional distress. Count X is “Anita Arledge v. Select Medical Corporation” for 1 negligent infliction of emotional distress. The averments in support of these causes of action set forth in the complaint can be summarized as follows. In the beginning of 2006, while working as a registered nurse for Select Medical Corporation, Mary Arledge was informed by a director that a controlled drug may have been tampered with. Select Medical wanted to have a drug screen performed on several employees including Arledge. Because of the medications she was taking for breast cancer, Arledge informed Select Medical that she would test positive. She did __________ 1 There are eleven counts in the complaint. The other counts involve claims against the -2- 08-0081 CIVIL TERM test positive. She was angry over a resulting confrontation with an administrator, and because all employees with access to controlled drugs were not tested. She resigned and secured new employment. Thereafter, she was notified by the State Board of Nursing that Select Medical had reported her positive drug test. She then reported to the Voluntary Recovery Program where she denied impairment due to the medications she was taking for her disease. The Voluntary Recovery Program failed to recognize that she was not impaired. They kept her in an evaluation phase for nine months until a psychiatrist finally recognized the gravity of her illness. She died on April 6, 2007. March 3, 2008 On , Select Medical Corporation filed preliminary objections to the April 16, 2008 complaint which were briefed and argued on . We will review the objections seriatim. I. WHETHER COUNTS I, II, III, IV OF PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED FOR HAVING BEEN BROUGHT ON BEHALF OF DECEDENT’S ESTATE WITHOUT PLAINTIFFS HAVING OBTAINED LETTERS OF ADMINISTRATION PROVIDING THEM THE LEGAL AUTHORITY TO SET FORTH CLAIMS ON BEHALF OF THE ESTATE. While the writ of summons identifies plaintiffs to include “The estate of Mary Arledge, by executors Henry R. Arledge, husband, and Anita Arledge, daughter,” the averments as to the parties in the complaint sets forth only that Henry Arledge and Anita Arledge are suing on behalf of the estate. There is no averment that they are the personal representatives of the estate. Thus, the pleadings do not set forth causes of Prevish v. Northwest Medical action by the personal representatives of the estate. In other defendants. -3- 08-0081 CIVIL TERM Center, 692 A.2d 192 (Pa. Super. 1997), the Superior Court of Pennsylvania stated: It is settled law that a decedent’s estate cannot be a party to litigation unless a personal representative exists. Estate of Gasbarini v. Medical Center of Beaver County, 487 Pa. 266, 409 A.2d 343 (1979); D’Orazio v. Locust Lake Village, Inc., 267 Pa.Super. 124, 406 A.2d 550 (1979); Marzella v. King, 256 Pa.Super. 179, 389 A.2d 659 (1978); McGuire v. Erie Lackawanna Railway Company, 253 Pa.Super. 531, 385 A.2d 466 (1978); Lovejoy v. Georgeff, 224 Pa. Super. 206, 303 A.2d 501 (1973); Wilkes-Barre General Hospital v. Lesho, 62 Pa.Commw. 222, 435 A.2d 1340 (1981). Stated differently, all actions that survive a decedent must be brought by or against the personal representative of the decedent’s estate. D’Orazio, supra; Lesho, supra. The practical significance of this principle was explained by the Supreme Court some sixty years ago: It is fundamental that an action at law requires a person or entity which has the right to bring the action, and a person or entity against which the action can be maintained. By its very terms, an action at law implies the existence of legal parties; they may be natural or artificial persons, but they must be entities which the law recognizes as competent. A dead man cannot be a party to an action, and any such attempted proceeding is completely void and of no effect. . . . Plaintiffs acknowledge in their brief that letters of administration had not been issued when the complaint was filed on February 12, 2008. They ask to be allowed to amend their complaint to reflect the appointment, subsequent to its filing, of Henry Arledge as the personal representative of the Estate of Mary Arledge. Whether the complaint can be amended at this point has not been briefed and argued as plaintiffs have not even filed a motion pursuant to Pa. Rule of Civil Procedure 1033 for leave of court to amend. The causes of action on behalf of the estate must be dismissed unless -4- 08-0081 CIVIL TERM 2 plaintiffs can amend the complaint to cure the defect. We will hold the motion to __________ 2 Prevish, In there is an extensive discussion of the relation back doctrine as it relates to such an issue. -5- 08-0081 CIVIL TERM dismiss in abeyance pending an opportunity for plaintiffs to file a motion for leave of court to amend a complaint and a resolution of that motion. II. WHETHER PLAINTIFFS’ CLAIM FOR “DISCRIMINATION” IN COUNT IV OF THE COMPLAINT SHOULD BE DISMISSED WHERE PLAINTIFFS HAVE FAILED TO IDENTIFY THE PARTICULAR TYPE OF DISCRIMINATION FORMING THE BASIS FOR THEIR CLAIM, WHERE THE COMPLAINT FAILS TO ASSERT ANY FACTS CAPABLE OF SUPPORTING A CLAIM FOR DISCRIMINATION, AND WHERE THE ALLEGATIONS SET FORTH IN COUNT IV ARE ALREADY SUBSUMED IN COUNT I OF THE COMPLAINT. Plaintiff argues that a fair reading of their complaint makes out a prima facie case for selective enforcement and disparate treatment, both of which are derivative discrimination claims and sound in employment law. The allegations in Count IV of the complaint do not set forth a legal cause of action. Count IV will be dismissed. III. WHETHER PLAINTIFF HENRY ARLEDGE’S CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD BE DISMISSED WHERE THE COMPLAINT FAILS TO ASSERT THE FACTS NECESSARY TO MAKE OUT A PRIMA FACIE CASE FOR SUCH A CLAIM AS A MATTER OF LAW. We will not dismiss this cause of action at the pleading stage. IV. WHETHER PLAINTIFF ANITA ARLEDGE’S CLAIM FOR NEGLIGENT INFLECTION OF EMOTIONAL DISTRESS SHOULD BE DISMISSED WHERE THE COMPLAINT FAILS TO ASSERT THE FACTS NECESSARY TO MAKE OUT A PRIMA FACIA CASE FOR SUCH A CLAIM AS A MATTER OF LAW. We will not dismiss this cause of action at the pleading stage. V. WHETHER PLAINTIFFS SHOULD BE REQUIRED TO AMEND THEIR COMPLAINT SO AS TO IDENTIFY THE NARCOTIC FOR WHICH THE DECEDENT TESTED POSITIVE, AND THE NARCOTICS FOR WHICH THE DECEDENT WAS ALLEGEDLY PRESCRIBED PRIOR TO DRUG TESTING, SO AS TO ENABLE SELECT MEDICAL TO ACCURATELY -6- 08-0081 CIVIL TERM ANSWER PLAINTIFFS’ COMPLAINT AND FORMULATE ITS DEFENSE. Select Medical Corporation knows the results of the drug screen it obtained from having plaintiff tested. We are satisfied that such drugs that decedent was alleged prescribed prior to the drug testing do not have to be pleaded. If relevant, they are subject to discovery. VI. WHETHER PLAINTIFFS SHOULD BE REQUIRED TO AMEND THEIR COMPLAINT SO AS TO ATTACH THE FMLA DOCUMENT UPON WHICH THEY BASE THEIR CLAIMS, AND ATTACH A VERIFICATION SIGNED BY THE PLAINTIFFS. The manner in which the FLMA document is referred to in Paragraph 19 of the complaint does not require that it be attached. The complaint was verified by plaintiffs’ attorney. It does not conform with Pa. Rule of Civil Procedure 1024(c). Plaintiffs will be granted leave to file a proper verification pursuant to Rule 1024. ORDER OF COURT IT IS ORDERED THAT: AND NOW, this day of April, 2008, IS DISMISSED (1) Count IV of plaintiffs’ complaint, . (2) Plaintiffs may, within fifteen days of this date, file a motion for leave of court to amend their complaint. Pending whether such a motion is filed, and if a motion is filed pending a resolution, the motion of Select Medical Corporation to dismiss Counts I, II, and III IS DEFERRED. of the complaint, (3) Plaintiffs are granted leave to file, within fifteen days of this date, a proper verification of the complaint. (4) All other preliminary objections of Select Medical Corporation to plaintiffs’ -7- 08-0081 CIVIL TERM ARE DISMISSED. complaint, By the Court, Edgar B. Bayley, J. Renee Knicos, Esquire For Plaintiffs Marc A. Moyer, Esquire For Defendants :sal -8- THE ESTATE OF MARY ARLEDGE, : IN THE COURT OF COMMON PLEAS OF BY EXECUTORS HENRY ARLEDGE, : CUMBERLAND COUNTY, PENNSYLVANIA HUSBAND, AND ANITA ARLEDGE, : DAUGHTER, AND HENRY ARLEDGE : AND ANITA ARLEDGE INDIVIDUALLY : IN THEIR OWN RIGHT, : PLAINTIFFS : : V. : : SELECT MEDICAL CORPORATION, : THE COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : STATE, BUREAU OF PROFESSIONAL : AND OCCUPATIONAL AFFAIRS: : STATE BOARD OF NURSING AND : THE DIVISION OF HEALTH : MONITORING PROGRAMS AND : UNIT 1: VOLUNTARY RECOVERY : PROGRAM, : DEFENDANTS : 08-0081 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF SELECT MEDICAL CORPORATION TO PLAINTIFFS’ COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT IT IS ORDERED THAT: AND NOW, this day of April, 2008, IS DISMISSED (1) Count IV of plaintiffs’ complaint, . (2) Plaintiffs may, within fifteen days of this date, file a motion for leave of court to amend their complaint. Pending whether such a motion is filed, and if a motion is filed pending a resolution, the motion of Select Medical Corporation to dismiss Counts I, II, and III IS DEFERRED. of the complaint, 08-0081 CIVIL TERM (3) Plaintiffs are granted leave to file, within fifteen days of this date, a proper verification of the complaint. (4) All other preliminary objections of Select Medical Corporation to plaintiffs’ ARE DISMISSED. complaint, By the Court, Edgar B. Bayley, J. Renee Knicos, Esquire For Plaintiffs Marc A. Moyer, Esquire For Defendants :sal -2-