Loading...
HomeMy WebLinkAbout2009-6741 MICHELLE COXEN GLOVER, : IN THE COURT OF COMMON PLEAS ADMINISTRATRIX OF THE ESTATE : OF CUMBERLAND COUNTY, PENNSYLVANIA OF JOAN TAYLOR, DECEASED, : PLAINTIFF : : V. : : UNITED CHURCH OF CHRIST : HOMES, INC. d/b/a THORNWALD : HOME, : DEFENDANT : 09-6741 CIVIL TERM IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS TO PLAINTIFF’S AMENDED COMPLAINT BEFORE HESS, P.J., OLER, J. AND MASLAND, J. OPINION AND ORDER OF COURT Masland, J., November 4, 2010:-- Defendant requests that this court sustain its preliminary objections to plaintiff’s amended complaint and pursuant thereto, direct that plaintiff’s claims for direct corporate negligence and negligent hiring, supervision and retention be dismissed with prejudice. Defendant also requests that we direct plaintiff to file an amended complaint regarding its claim for vicarious liability, that we strike plaintiff’s claim for punitive damages and all underlying/support allegations with prejudice, and, finally, defendant requests that subparagraphs 91(e), (f), (k), (l), (m), (q), (r), (z), (aa), (bb), and (cc), be stricken from the complaint with prejudice. For the reasons summarized below, we decline to take the action requested by defendant. Facts and brief Procedural History Defendant’s preliminary objections in this case arise out of an action commenced by plaintiff alleging that plaintiff’s decedent, Joan Taylor, while a resident of United Church of Christ, Inc. d/b/a Thornwald Home (UCC Homes), from August 14, 2002, through the date of her death on November 30, 2007, suffered three falls from her wheelchair which resulted in a 09-6741 CIVIL TERM decline in her condition, and ultimately her death. The procedural history pertinent to this action started with plaintiff filing a praecipe for a writ of summons on October 8, 2009. On March 22, 2010, plaintiff filed a complaint to which defendant, UCC Homes, filed preliminary objections on April 8, 2010. Plaintiff filed an amended compliant on April 27, 2010, to which UCC Homes filed preliminary objections under consideration now on May 25, 2010. Discussion I. General Law When ruling on preliminary objections in the nature of a demurrer, a court accepts as true all well-pled material facts set forth in the complaint along with all reasonably deducible inferences from those facts. Schuylkill Navy v. Langbord, 725 A.2d 964, 968 (Pa. Super. 1999), (citing Turner v. Medical Center, Beaver PA, Inc., 686 A.2d 830 (Pa. Super. 1986)). Preliminary objections in the nature of a demurrer will be sustained only if a court finds that, upon the facts cited, the law will not allow recovery. Id. (citing Smith v. McDougal, 529 A.2d 20 (Pa. Super. 1987)). With respect to plaintiff’s claims for direct corporate negligence and negligent hiring, supervision and retention, defendant requests the grant of a demurrer which is an assertion that the complaint fails to set forth a cause of action or claim on which relief can be granted. Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa. Super. 2008). Citing Binswanger v. Levy, 457 A.2d 103, 104 (Pa. Super. 1983). If there is any doubt as to whether a demurrer should be sustained, the doubt should be resolved in favor of overruling it. Lerner, 954 A.2d at 1234, citing Wawa, Inc. v. Alexander J. Litwornia & Assocs., 817 A.2d 543, 544 (Pa. Super. 2003). Therefore, a preliminary objection in the nature of a demurrer may be properly granted only where the contested pleading is legally insufficient. Hess v. Fox Rothschild, LLP, 925 A.2d -2- 09-6741 CIVIL TERM 798, 806 (Pa. Super. 2007). II. Discussion At oral argument, defense counsel remarked that plaintiff had used the “worst shotgun approach I’ve ever seen.” Although hyperbole is often used and is sometimes appropriate during argument, it is not always effective. Given the early procedural status of this case, to claim that plaintiff cannot plead in the alternative is not supported by law or reason. To be sure, not all of plaintiff’s allegations are replete with detailed facts. Nevertheless, contrary to defendant’s assertion that they are “bald legal conclusions,” the court finds that the hair may be fine or thin in parts, but there is sufficient cover at this early stage of development to allow plaintiff to proceed to the next stage of maturity. With respect to plaintiff’s alleged shotgun approach, although defendant may have felt compelled to respond in kind, the court declines to resolve the numerous issues raised by defendant in like fashion. Rather, we will follow the model of the Warren Commission and use a “single bullet” approach. Although the Commission has been much maligned for this approach, it has not been definitively disproven, and offers us a similarly facile way to target the core issues, allowing the extraneous to fall indirectly from the impact. In short, the court is satisfied that the preliminary objections can be substantially, if not completely, resolved by relying on the recent Superior Court opinion in Scampone v. Grane Heathcare Company, A.2d 2010 Pa. Super. 124, which applied the seminal case of Thompson v. Nason Hospital, 591 A.2d 703 (Pa. 1991) to claims against nursing home facilities. As in the case sub judice, in Scampone, plaintiff raised claims based upon vicarious and corporate liability. In holding that a nursing home could be found liable under a corporate negligence theory, the court noted: Herein, we conclude that a nursing home is analogous to a hospital in the level in its involvement in a patient’s overall heath care. Except for the hiring of -3- 09-6741 CIVIL TERM doctors, a nursing home provides comprehensive and continual care for its patients. A nursing home is akin to a hospital rather than a physician’s office, and the doctrine of corporate liability was appropriately applied in this case. Plaintiff’s decedent was full-time resident of the nursing home, and with the exception of occasional visits from her own doctor, [defendant] oversaw her care twenty-four hours a day, seven days a week . . . clearly, the degree of involvement in the care of patients in skilled nursing home facilities is markedly similar to that of a hospital and bears little resemblance to the sporadic care offered on an outpatient basis in a physician’s office. Id. at ¶ 21. The court then addressed one of the four requirements for a corporate liability case as enumerated in Thompson v. Nason, which is to formulate, adopt and enforce adequate rules and policies to ensure quality care for patients. With respect to the issue of corporate negligence, the Scampone court found that the “alleged staffing deficiency was sufficient to establish a prima facie claim of corporate negligence against the hospital for failure to formulate and enforce policies to ensure quality care.” Id. at ¶ 22. Finally, the Scampone court addressed the issue of alternate theories of recovery: To state the obvious, merely because an entity can be held vicariously liable for the negligence of its employees does not obviate its liability for corporate negligence based upon its failure to formulate, adopt, and enforce adequate rules and policies to ensure quality care for patients. Id. at ¶ 25. Just as the Scampone court observed that the plaintiff adequately pled and supported both corporate and vicarious liability causes of action, we find that plaintiff’s amended complaint successfully states a cause of action for both claims. With respect to the issue of liability, we must address Defendant’s contention that this honorable court, through former President Judge Edgar B. Bayley, expressly concurs in defendant’s reasoning that a plaintiff cannot concurrently assert claims for vicarious liability and negligent hiring, supervision and/or retention, citing the opinion in Lykes v. Yates, No. 05-5869 (Cumb. Co. Dec. 15, 2006). This court is chary to disagree with the Honorable -4- 09-6741 CIVIL TERM Edgar B. Bayley and, fortunately, we need note that the Lykes decision predated Scampone by four years. Judge Bayley did not have the benefit of our Superior Court’s decision in Scampone. Thus, we need not rely on Lykes because it addressed the law as it was not as it is now post- Scampone. In conclusion, we find as follows: (1) Plaintiff’s claims based on defendant’s failure to (1) hire and retain only appropriately trained staff who could properly care for decedent, (2) appropriately train staff members in order to properly care for the decedent and (3) oversee and supervise all persons who practice nursing and/or skilled healthcare within its facility are proper. (2) Plaintiff has properly pled a valid cause of action against UCC Homes on a theory of direct corporate negligence. (3) Plaintiff’s amended complaint is sufficiently specific to apprise defendant of the precise allegations against it in that it has adequately identified defendant agents, servants and employees and does not contain only general allegations of negligence but contains sufficiently detailed allegations against the defendant. (4) Plaintiff’s amended complaint properly sets forth multiple causes of action sounding in corporate negligence and vicarious liability. (5) Plaintiff’s claim for punitive damages as well as the underlying allegations of recklessness and conduct that may have been intentional, outrageous, willful, wonton or recklessly indifferent, are sufficiently pled. (6) Plaintiff is not precluded from recovering wrongful death damages on behalf of decedent’s emancipated adult surviving children for loss of companionship, comfort, age, assistance, and society. -5- 09-6741 CIVIL TERM ORDER OF COURT AND NOW, this day of November, 2010, upon consideration of defendant's preliminary objections, the plaintiff's response thereto, the briefs filed by the parties, and after ARE OVERRULED argument in this matter, defendant’s preliminary objections . By the Court, Albert H. Masland, J. Lee S. Cohen Esquire For Plaintiff Craig A. Stone, Esquire Michael C. Mongiello, Esquire For Defendant :saa -6- MICHELLE COXEN GLOVER, : IN THE COURT OF COMMON PLEAS ADMINISTRATRIX OF THE ESTATE : OF CUMBERLAND COUNTY, PENNSYLVANIA OF JOAN TAYLOR, DECEASED, : PLAINTIFF : : V. : : UNITED CHURCH OF CHRIST : HOMES, INC. d/b/a THORNWALD : HOME, : DEFENDANT : 09-6741 CIVIL TERM IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS TO PLAINTIFF’S AMENDED COMPLAINT BEFORE HESS, P.J., OLER, J. AND MASLAND, J. ORDER OF COURT AND NOW, this day of November, 2010, upon consideration of defendant's preliminary objections, the plaintiff's response thereto, the briefs filed by the parties, and after ARE OVERRULED argument in this matter, defendant’s preliminary objections . By the Court, Albert H. Masland, J. Lee S. Cohen Esquire For Plaintiff Craig A. Stone, Esquire Michael C. Mongiello, Esquire For Defendant :saa