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HomeMy WebLinkAbout2005-2906 Civil and 2004-983 Equity JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW YOUTH ADVOCATE PROGRAM, INC., VALERIE LOUISE ZEHRING, Defendants NO. 05-2906 CIVIL TERM JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - EQUITY VALERIE L. ZEHRING, Defendant NO. 04-983 EQUITY TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, 1., February 10, 2006. For disposition in this civil matter, in which Plaintiff has sued a therapist who once treated two of his family members and the therapist's employer, are Defendants' preliminary objections to Plaintiff's complaint at No. 2005-2906 Civil Term. 1 Plaintiffs complaint represents the aftermath of the failure of an alleged romantic relationship between Plaintiff and the therapist, which was entered into 1 Preliminary Objections of Youth Advocate Programs, Inc. to Plaintiffs Complaint, filed November 17, 2004 (hereinafter Youth Advocate Program's Preliminary Objections); Valerie Zehring's Preliminary Objections to Plaintiffs Complaint, filed December 7, 2004 (hereinafter Zehring's Preliminary Objections). By separate order of court, this case has been consolidated with a related claim filed by Plaintiff against Defendant Zehring at No. 2004-0983 Equity Term. See Order of Court, January 9, 2006 (Hess, J.). subsequent to the conclusion of the therapeutic relationship with Plaintiff s family members. Specifically, Plaintiff s l22-page complaint, including exhibits, contains a count against the therapist and the employer for "negligence and negligence per se and professional malpractice" based upon the therapist's purported violation of an ethical provision proscribing certain sexual relationships;2 a count against the therapist and the employer for "false imprisonment" based upon a mental health commitment of Plaintiff allegedly instigated by the therapist;3 a count against the therapist and the employer for "intentional and negligent infliction of emotional distress" based upon the therapist's alleged ethical violation, her alleged act of false imprisonment, her purported removal of Plaintiff s belongings from Plaintiff s home while he was committed, and her alleged undue influence with respect to receipt of a survivorship interest in certain property of Plaintiff;4 and a count against the employer for "negligence, negligence per se and employer liability" based upon theories of negligent supervision, breach of ethics and vicarious liability. 5 Plaintiff s claim, as it relates to undue influence, is also the subject of his consolidated action for rescission at No. 2005-2906 Equity Term, a claim not at issue herein. The preliminary objections of the therapist consist of a demurrer to Plaintiff s claim for false imprisonment6 and a demurrer to Plaintiff s claims to the extent that they are premised upon alleged ethical violations. 7 The preliminary 2 Plaintiffs Complaint, Count 2, filed September 23, 2004 (hereinafter Plaintiffs Complaint, Count ~. 3 Plaintiffs Complaint, Count 3. 4 Plaintiffs Complaint, Count 4. 5 Plaintiffs Complaint, Count 1. 6 Zehring's Preliminary Objections, paras. 11-19. 7 Zehring's Preliminary Objections, paras. 20-51. 2 objections of the employer consist, in pertinent part,8 of a demurrer to Plaintiff s claims to the extent that they are premised upon false imprisonment. 9 Defendants' preliminary objections were argued on October 20, 2005.10 For the reasons stated in this opinion, Defendants' preliminary objections will be sustained. STATEMENT OF FACTS In reviewing a preliminary objection to a complaint in the nature of a demurrer, a court is to "accept[] as true all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences from it[.]" Filippi v. Kwitowski, 880 A.2d 711, 713 (Pa. Commw. Ct. 2005). In accordance with this standard, the pertinent facts may be summarized as follows: Plaintiff is James Henry Turban, an adult individual residing in Camp Hill, Cumberland County, Pennsylvania. 1 1 Defendant Valerie Louise Zehring is an adult individual residing in Boiling Springs, Cumberland County, Pennsylvania. 12 Defendant Youth Advocate Program, Inc., is a non-profit corporation providing mental and behavioral health services to the public and having offices in Harrisburg, Dauphin County, Pennsylvania. 13 8 An aspect of these preliminary objections relating to improper venue was previously ruled upon by the Honorable Richard A. Lewis, President Judge of the Court of Common Pleas of Dauphin County, and the case was transferred to Cumberland County. Order of Court, May 4, 2005, at No. 2004-CV-4l85-MM (Dauphin County). 9 Youth Advocate Program's Preliminary Objections, paras. 22-32. 10 It appears that Defendant Zehring's Preliminary Objections were not listed for argument. See Praecipe Listing Case for Argument, filed September 2, 2005. However, both Defendants' preliminary objections were briefed and argued at argument court on October 20,2005, and both will be disposed of herein. 11 Plaintiffs Complaint, para. 1. 12 Plaintiffs Complaint, para. 3. 13 Plaintiffs Complaint, para. 2. 3 Defendant Zehring, who was not a psychologist,14 provided counseling services to Plaintiffs son from February 1999 to March 22, 2000, in her capacity as an employee of Defendant Youth Advocate Program. 15 She also provided counseling services on a private basis to Plaintiff s wife before her death on May 13, 2000.16 Subsequent to these counseling services, in July of 2000, a romantic relationship developed between Plaintiff and Defendant Zehring. 17 Defendant Zehring left the employ of Defendant Youth Advocate Program in June of 200 1. IS This romantic relationship between Plaintiff and Defendant Zehring was unstable.19 However, by instruments dated July 8, 2002, Plaintiff (a) conveyed an interest in his home (joint tenancy with right of survivorship) to Defendant Zehring,20 (b) appointed her his attorney-in-fact,21 and (c) made her a beneficiary of his will.22 With respect to the realty conveyance, Defendant "used undue influence, fraud, deception, and the promise to marry Plaintiff, taking advantage of her special relationship with the Plaintiff and his family to induce Plaintiff to convey one half of Plaintiff s house and property to her in joint tenancy with right of 14 Under 63 Pa. C.S. ~ l206(a)(2), a person can be licensed as a psychologist only after the person, inter alia, holds a degree of Doctor of Psychology, Doctor of Philosophy in psychology, Doctor of Education in psychology, or other such doctoral degree as is approved by the State Board of Psychology. Act of March 23, 1972, P.L. 136, ~6, as amended, 63 Pa. C.S. ~1206(a)(2). Defendant Zehring, whose job title is listed as a Behavioral Specialist Consultant, holds only a master's degree. See Plaintiffs Complaint, Ex. A, at 3. Therefore, under Pennsylvania law, Defendant Zehring cannot possibly be a licensed psychologist. 15 Plaintiffs Complaint, para. 6. 16 Plaintiffs Complaint, para. 7, 10. 17 Plaintiffs Complaint, para. 11. 18 Plaintiffs Complaint, para. 8. 19 Plaintiffs Complaint, para. 16. 20 Plaintiffs Complaint, Ex. B. 21 Plaintiffs Complaint, Ex. D. 22 Plaintiffs Complaint, Ex. C. 4 survivorship. ,,23 The validity of this conveyance, as previously mentioned, is the subject of a consolidated action filed by Plaintiff against Defendant Zehring at No. 04-983 Equity Term. On January 1, 2003, the romantic relationship between Plaintiff and Defendant Zehring ended, and she moved out of the house which they owned?4 Six months later, she "arranged the involuntary committal of Plaintiff into a psychological ward at Holy Spirit Hospital, Camp Hill, Pennsylvania, for one week, against Plaintiff's will [and then] successfully recommended to the hospital that they continue to keep Plaintiff against his will for an additional week. ,,25 The commitment occurred pursuant to Sections 302 and 303 of the Mental Health Procedures Act,26 and the complaint does not allege that Defendant Zehring made any false statement in connection with the commitment, that she acted with malice, or that the commitment was procedurally defective. However, during the two-week period of Plaintiff s involuntary treatlnent, Defendant Zehring "removed most of Plaintiffs furniture and other belongings" from the house.27 Plaintiff s complaint alleges that the romantic relationship between Plaintiff and Defendant Zehring represented an ethical violation on her part, in the following particulars: 27. Section 41.83 of Title 49 of the Pennsylvania Code, regulating the practice of Psychology provides as follows: 9 41.83. Sexual mtImacies with a former client/patient, or an immediate family member of a former client/patient. (a) Sexual intimacies between a psychologist and a former client/patient, or an immediate 23 Plaintiffs Complaint, para. 17. 24 Plaintiffs Complaint, para. 21. 25 Plaintiffs Complaint, para. 23. 26 Plaintiffs Complaint, Ex. E; Act of July 9, 1976, P.L. 817, ~302, as amended, 70 Pa. c.s. ~~7302-7303. 27 Plaintiffs Complaint, para. 25. 5 family member of a former client/patient are prohibited for at least 2 years following the termination of the professional relationship, and then only under very limited circumstances. (b) Following the passage of the 2-year period, psychologists who engage in sexual intimacies with a former client/patient, or an immediate family member of a former client/patient shall have the burden of demonstrating that there has been no exploitation of the client/patient in light of all relevant factors, including: (1) The amount of time that has passed since the professional relationship terminated. (2) The nature and duration of the therapy. (3) The circumstances of termination. (4) The client/patient's personal history, for example, unique vulnerabilities. (5) The client/patient's current mental status. (6) Statements or actions made by the psychologist during the course of therapy suggesting or inviting the possibility of a post-termination sexual or romantic relationship with the client/patient. (7) The likelihood of adverse impact on the client/patient and immediate family members of the client/patient. 28 Plaintiff s complaint further alleges that the romantic relationship between Plaintiff and Defendant Zehring represented a breach of a supervisory duty on the part of Defendant Youth Advocate Program in the following respect: 28. Section 41.32 of Title 49 of the Pennsylvania Code, regulating the practice of Psychology, establishes requirements for the supervision of employees providing counseling to clients/patients and reads in relevant part as follows: 9 41.32. Standards for supervisors. 28 Plaintiffs Complaint, para. 27. 6 To insure the quality of supervised experience, the Board requires that supervisors and those to whom supervisory responsibilities are delegated. . .comply with the standards in paragraphs (1)-(19). * * * (5) The supervisor shall be responsible for the supervisee's services to each client/patient. ( 6) The supervisor shall be empowered to interrupt or terminate the supervisee's activities in providing services to a client/patient and, if necessary, to terminate the supervisory relationship. * * * (10) The supervisor shall review issues of practice and ethics with the supervisee. (11) The supervisor shall maintain notes or records of scheduled supervisory sessions. (12) The supervisor shall observe client/patient sessions of the supervisee or review verbatim recordings of these sessions on a regular basis. (13) In regularly scheduled supervisory meetings, the supervisor shall discuss the supervisee's level of work - for example, the supervisee's areas of competence and areas of needed improvement. (14) The supervisor shall provide to the supervisee recommendations bearing on further development, shall encourage the supervisee to read widely in the professional literature and shall help the supervisee gain a level of skill necessary for independent practice. (15) The supervisor shall prepare written evaluations or reports of progress which shall delineate the supervisee's strengths and weaknesses. These evaluations or reports shall 7 be discussed with the supervIsee on at least a quarterly basis?9 Finally, Plaintiff s complaint asserts the following with respect to ethical considerations: 29. Under Section 41.58(c) of Title 49 of the Pennsylvania Code, which regulates the State Board of Psychology, "the [psychologist] supervisor shall acquaint the employee with the Code of Ethics found in 9 41.61 (relating to Code of Ethics) and shall, under that section, be accountable for ethical violations by the employee." (Emphasis supplied). 30. The Code of Ethics found at Section 41.61 of Title 49 of the Pennsylvania Code provides that "[a]s owners or participants in ownership of a professional corporation, psychologists retain full professional liability to persons who, in the course of a professional relationship, suffer personal injury by reason of their actions or omissions." 31. The Code of Ethics set forth in Section 41. 61 of Title 49 of the Pennsylvania Code states clearly that "[p ]sychologists are continually cognizant of their own needs and their inherently powerful position vis a vis clients, students and subordinates, in order to avoid exploiting their trust and dependency. Psychologists make every effort to avoid dual relationships with clients or relationships which might impair their professional judgment or increase the risk of exploitation. Examples of dual relationships include treating employees, supervisees, close friends or relatives. Sexual intimacies with clients are unethical. ,,30 DISCUSSION Demurrers in general. Under Pennsylvania Rule of Civil Procedure 1028(a)(4), a pleading which is legally insufficient to set forth a cause of action is susceptible to a preliminary objection. A demurrer "is properly sustained. . . when, accepting as true all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences from it, and resolving all doubt in favor of overruling the demurrer, the law states with 29 Plaintiffs Complaint, para. 28. 30 Plaintiffs Complaint, paras. 29-31. 8 certainty that no recovery is possible. Filippi v. Kwitowski, 880 A.2d 711, 713 (Pa. Commw. Ct. 2005). In this regard, it is well settled that "[p ]leadings will be construed against a pleader on the theory that he or she has stated his or her case as best he or she can[.]" 2 Goodrich-Amram 2d 1019:7, at 249 (2001). False imprisonment. The process for involuntary commitment under the Mental Health Procedures Act has been summarized as follows: Any person. . . who is mentally ill to a degree describable as severely mentally disabled and who is in need of treatment may be subjected to involuntary examination and treatlnent . . . . Emergency involuntary commitment for up to 120 hours is available without court involvement at the instance of a physician or county administrator, among others, for one in need of immediate treatment; seizure of the individual for purposes of examination at a facility may be effected with or without a warrant. The l20-hour period may be extended for up to twenty days [pursuant to Section 303 of the Act] upon (a) an application filed by the treatment facility with the court of common pleas, (b) appointment of counsel in the case of an indigent, (c) an informal hearing within twenty-four hours of the application's filing, conducted by the court or a mental health review officer, and (d) a certification by the court or officer for extended involuntary treatment. A certification by a mental health review officer is reviewable by the court upon .. 31 petItIOn. "The elements of false imprisonment are (1) the detention of another person, and (2) the unlawfulness of such detention." Renk v. City of Pittsburgh, 537 Pa. 68, 76, 641 A.2d 289, 293 (1994). In the present case, the complaint contains no averments from which it could be concluded that the alleged subjection of Plaintiff to involuntary treatment under Section 303 of the Mental Health Procedures Act was procedurally 31 Oler, Pennsylvania Criminal Law: Defendant's Mental State ~4.4, at 58-62 (Michie Co. 1986) (footnotes omitted); see also Act ofJuly 9, 1976, P.L. 817, ~~30l-302, as amended, 70 Pa. C.S. ~~730l-7303. 9 defective or In any way incompatible with the applicable law. Accordingly, Defendants' demurrers with respect to Plaintiff s false imprisonment claims must be sustained. Negligence per se. Negligence per se is "conduct that may be treated as negligence without further argument or proof as to the particular surrounding circumstances." Gravlin v. Fredavid Builders & Developers, 450 Pa. Super. 655, 661, 677 A.2d 1235, 1238 (1996). As a general rule, codes of ethics are not seen as providing private causes of action against those professionals who are subject to them. See, e.g., Heimbecker v. Esteve, 49 Lehigh Co. L.1. 217, 223 (Lehigh Co. August 14, 2000) (Wallitsch, 1.). Violations of such codes normally are punishable by disciplinary measures, including loss of professional licensure. Id Furthermore, in the present case, the ethics provisions, relating to romantic relationships, relied upon by Plaintiff do not by their terms govern the behavior of individuals who are not psychologists. Finally, the class of persons intended to be protected by the provisions in question would appear to be patients treated by the psychologist, not members of his or her family. Under these circumstances, the court finds itself in agreement with Defendants' position that Plaintiff s complaint can not be sustained to the extent that it asserts claims based upon a theory of negligence per se. F or the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 10th day of February, 2006, upon consideration of Defendant's preliminary objections to Plaintiffs complaint at No. 05-2906 Civil Term, and for the reasons stated in the accompanying opinion, the preliminary objections are sustained to the extent that Plaintiff s claims for negligence per se arising out of an alleged breach of the Code of Ethics contained in 49 Pa. Code 941.1 et seq., and out of the alleged false imprisonment of Plaintiff pursuant to the Mental Health Procedures Act, are stricken. 10 BY THE COURT, 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. Steven R. Snyder, Esq. 3029 North Front Street Suite 300 Harrisburg, P A 17110 Attorney for Plaintiff Jarad W. Handleman, Esq. 134 Sipe Avenue Hershey, P A 17033 Attorney for Defendant Valerie Zehring Brit D. Russell, Esq. 600 Centerview Drive Suite 5103 Hershey, P A 17033 Attorney for Defendant Valerie Zehring Michael D. Pipa, Esq. 4200 Crums Mill Road Suite B Harrisburg, P A 17112 Attorney for Defendant Youth Advocacy Program, Inc. 11 12 JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW YOUTH ADVOCATE PROGRAM, INC., VALERIE LOUISE ZEHRING, Defendants NO. 05-2906 CIVIL TERM JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - EQUITY VALERIE L. ZEHRING, Defendant NO. 04-983 EQUITY TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this 10th day of February, 2006, upon consideration of Defendant's preliminary objections to Plaintiffs complaint at No. 05-2906 Civil Term, and for the reasons stated in the accompanying opinion, the preliminary objections are sustained to the extent that Plaintiff s claims for negligence per se arising out of an alleged breach of the Code of Ethics contained in 49 Pa. Code 41.1 et seq., and out of the alleged false imprisonment of Plaintiff pursuant to the Mental Health Procedures Act, are stricken. BY THE COURT, 1. Wesley Oler, Jr., 1. :rc 14 15 Steven R. Snyder, Esq. 3029 North Front Street Suite 300 Harrisburg, P A 17110 Attorney for Plaintiff Jarad W. Handleman, Esq. 134 Sipe Avenue Hershey, P A 17033 Attorney for Defendant Valerie Zehring Brit D. Russell, Esq. 600 Centerview Drive Suite 5103 Hershey, P A 17033-2903 Attorney for Defendant Valerie Zehring Michael D. Pipa, Esq. 4200 Crums Mill Road Suite B Harrisburg, P A 17112 Attorney for Defendant Youth Advocacy Program, Inc.