J-A20024-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
OLIVIA H. STONER, ESQUIRE, IN THE SUPERIOR COURT OF
ADMINISTRATRIX, D.B.N. FOR THE PENNSYLVANIA
ESTATE OF CHRISTINE PERKINS,
DECEASED,
Appellant
v.
MARK QUINLAN, DONNA BROWN, RNC,
BSN, ALBERT EINSTEIN MEDICAL
CENTER D/B/A WILLOWCREST, WILLOW
CREST, JEFFERSON HEALTH SYSTEM,
ALBERT EINSTEIN HEALTHCARE
NETWORK,
Appellees No. 3064 EDA 2014
Appeal from the Order Entered September 16, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 00019 November Term, 2009
BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 29, 2015
Appellant, Olivia H. Stoner, Esquire, administratrix de bonis non for
the estate of Christine Perkins, deceased, appeals from the order entered on
September 16, 2014, denying class certification.1 We affirm.
____________________________________________
1
An order denying class action certification is separate from and ancillary to
the main cause of action, and, therefore, appealable as a collateral order
pursuant to Pa.R.A.P. 313. Niemiec v. Allstate Ins. Co., 721 A.2d 807,
810 (Pa. Super. 1998).
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The record reveals that on August 5, 2014, the trial court held a
hearing on Appellant’s motion for class certification in an action against
Appellees Mark Quinlan, Donna Brown, Albert Einstein Medical Center D/B/A
Willowcrest, Willowcrest, Albert Einstein Healthcare Network, and Jefferson
Health System, Inc. (collectively “Appellees” or “Defendants”). In an order
filed on September 16, 2014, the trial court denied Appellant’s motion
concluding that the evidence presented by Appellant failed to establish the
necessary elements to obtain class status under Pa.R.C.P. 1702.
In its September 16, 2014 opinion, the trial court made the following
relevant findings of fact:
1. After several amended pleadings, [Appellant] filed a Th[ir]d
Amended Complaint on November 21, 2012, which is now the
operative Complaint. (Exh. “C”, Third Amended Complaint).
2. Although [Appellant] asserted a variety of different causes of
action in the Third Amended Complaint, this action is, at heart, a
professional negligence case.
3. These allegations of substandard medical care underlie each
and every one of [Appellant’s] causes of action.
4. [Appellant] alleges that [Appellant’s] Decedent, Christine
Perkins, was a resident of Willowcrest from October 2007 until
June 2008. See [Appellant’s] Third Amended Complaint, ¶ 3.
5. [Appellant] further alleges that the Einstein Defendants failed
to adequately care for Perkins during her time at Willowcrest. Id.
6. Based on this alleged inadequate care, [Appellant’s] Third
Amended Complaint asserts thirteen separate claims on behalf of
the putative class: Negligence (First Claim); Corporate
Negligence (Second Claim); Vicarious Negligent Liability (Third
Claim); the Wrongful Death statute (Fourth Claim); the Survival
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Act (Fifth Claim); the Medicare as Secondary Payer Act (Sixth
Claim); Breach of Written Agreement (Seventh Claim); Breach of
Contract Oral Agreement (Eighth Claim); Breach of Contract
Third Party Beneficiary (Ninth Claim); Fraud and Negligent
Misrepresentation (Tenth Claim); Violation of Pennsylvania’s
Unfair Trade Practices and Consumer Protection Law (Eleventh
Claim); Breach of the Implied Covenant of Good Faith and Fair
Dealing (Twelfth Claim); and Unjust Enrichment/Restitution
(Thirteenth Claim).
7. The Third Amended Complaint includes two exhibits. Exhibit
“A” is a computer printout of a webpage providing information
relating to the Willowcrest facility. (Exh. “C”, Third Am. Compl.
at Exh. “A”).
8. Exhibit “B” is an August 18, 2009 “Settlement Agreement”
between various federal government departments and
“Willowcrest Nursing Home.” (Exh. “C”, Third Am. Compl. at Exh.
“B”).
9. [Appellant’s] vicarious and corporate negligence claims assert
that the medical care provided to Decedent during her stay at
Willowcrest deviated from the standard of care by failing to
properly treat Decedent’s pressure ulcers and failing to provide
Decedent with appropriate nutrition and hydration, purportedly
as required by various statutes and regulations. (Exh. “C”, Third
Am. Compl. at ¶¶115-160).
10. [Appellant’s] contract claims allege that Decedent had
written and oral contracts with each of the Defendants to provide
Decedent with medical care, and that Defendants’ breached
those alleged contracts with her by providing her “worthless”
medical care as outlined in [Appellant’s] negligence claims. (Exh.
“C”, Third Am. Compl. at ¶¶160-194; 208-214).
11. [Appellant’s] fraud-based claims allege that all of the
Defendants made misrepresentations to the Decedent regarding
the quality of care that she would be provided at Willowcrest
because her medical care was “worthless” as outlined in
[Appellant’s] negligence claims. (Exh. “C”, Third Am. Compl. at
¶¶195-207).
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12. Finally, [Appellant’s] unjust enrichment claim alleges that all
of the Defendants were unjustly enriched by third party
payments for medical care provided to the Decedent because her
medical care was “worthless” as outlined in [Appellant’s]
negligence claims. (Exh. “C”, Third Am. Compl. at ¶¶215-219).
13. In support of her Motion for Class Certification and her
corporate liability claim against Jefferson Health System,
[Appellant] argues that, based on various corporate documents
and financial statements, Jefferson Health System purportedly
exerted “control” over its member Albert Einstein Medical Center
and the medical care provided at its institutions.
14. In an attempt to bolster that claim and support her Motion
for Class Certification, [Appellant] identifies an accountant,
Bruce R. Engstrom, as an expert witness to testify about the
corporate relationships between Jefferson Health System and the
other corporate defendants. ([Appellant’s] Proposed Findings at
Exh. “C”).
15. Specifically, Mr. Engstrom opined that, based on corporate
structure and various corporate documents and financial
statements produced in a prior litigation, Jefferson Health
System purportedly exerted “control” over its member Albert
Einstein Medical Center and the medical care provided at its
institutions. Id.
16. [Appellant] asserts these claims on behalf of herself as well
as a putative class.
17. [Appellant’s] proposed class definition attempts to define the
class as all residents of Willowcrest between 2005 and 2009 that
were harmed either physically or financially by Defendants’
actions:
The Class consists of all individuals who are
residents, family members, and their legal
representatives of the Willowcrest Nursing Home
from 2005 to 2009 who received deficient wound
care; nursing care; deficient nutrition and hydration;
inadequate diabetic care; inadequate physician and
nursing care; inadequate infection control; sepsis;
urinary tract infections, acute renal failure due to
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dehydration and anemia and were injured as a result
thereof.
See [Appellant’s] Motion for Class Certification at ¶ 65.
18. [Appellant] further attempts to define the class as:
The proposed class presently includes all residents of
Willowcrest from 2005 - 2009 who were harmed
either financially or physically by the Defendants’
actions. Specifically, the class includes persons with
the following deficient claims: diabetes
management; management of medication; nutrition
management; infection control; pain management;
skin integrity; ulcer care, and physician care.
See [Appellant’s] Motion for Class Certification at ¶ 66.
19. Still further, [Appellant] attempts to define subclasses as
follows:
The proposed class also contains from 2005 to 2007
all persons who had a financial or contractual claim
and from 2007 to 2009 all persons who had a
financial or contract; fraud and/or negligent
representation; breach of the consumer protection
laws and pain and suffering claims.
See [Appellant’s] Motion for Class Certification at ¶ 67.
B. [APPELLANT], OLIVIA STONER, ESQ.
20. [Appellant], as the proposed representative of the putative
class, is the administratrix of the estate of Selma Jessup who
was related to the Decedent, Christine Perkins.
21. [Appellant], as the proposed representative of the putative
class, is the administratrix, d.b.n, of the estate of Christine
Perkins. See [Appellant’s] Proposed FF/CL at ¶ 2.
22. [Appellant] admitted that she was appointed as the
administratrix of the Perkins estate for the sole purpose of
perpetuating this litigation. See Dep. O. Stoner at 54.
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23. At deposition, [Appellant] also testified that she was not
responsible for any of the financial costs and expenses involved
with maintaining this litigation and that those expenses were
instead being borne by [Appellant’s] counsel, Rhonda Hill Wilson,
Esquire. See Dep. O. Stoner at 71. Additionally, in the event that
damages were awarded in this case, they would go to the
Perkins Estate, of which [Appellant] is not a beneficiary. Id.
C. [APPELLANT’S] DECEDENT, CHRISTINE PERKINS
24. Christine Perkins was a resident of Willowcrest from October
9, 2007 through May 20, 2008, with the exception of hospital
stays during that time. See [Appellant’s] Medical Records at 171,
3266.
25. Perkins was 79 years old during the time she was a resident
at Willowcrest. Id.
26. Perkins was admitted to Albert Einstein Medical Center on
October 3, 2007, due to a fall she suffered at her home. Id. at
15, 18, 171.
27. After discharge from the hospital, she transferred to
Willowcrest for rehabilitation and other follow-up care. Id. at 5,
6, 66, 68, 69, 72, 10-03 171.
28. Over the course of the next 8 months, Perkins’ condition
gradually worsened.
29. Perkins died while in the hospital on June 7, 2008. Id. at
3588.
30. Her cause of death is listed as sepsis, secondary to decubitus
ulcers, secondary to dementia. Id. at 3589.
Trial Court Opinion, 9/16/14, at 2-6.
As noted above, the trial court denied Appellant’s motion for class
certification on September 16, 2014. Appellant filed a timely appeal, and
both the trial court and Appellant have complied with Pa.R.A.P. 1925.
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On appeal, Appellant argues that the trial court abused its discretion in
denying class action certification. Appellant’s Brief at 4. Our standard of
review in this matter is well settled, and the trial court’s order denying class
certification will not be disturbed on appeal unless the court neglected to
consider the requirements of the rules governing class certification, or the
court abused its discretion in applying the class certification rules.
Baldassari v. Suburban Cable TV Co., 808 A.2d 184, 189 (Pa. Super.
2002). Additionally:
At a class certification hearing, the burden of proof lies with the
proponent but, this being a preliminary hearing, it is not a heavy
burden. The proponent need only present evidence sufficient to
make out a prima facie case from which the court can conclude
that the five class certification requirements are met. It is clear
in Pennsylvania that Appellant’s burden to establish the
prerequisites for class certification is not a heavy one. It is the
strong and oft-repeated policy of this Commonwealth that, in
applying the rules for class certification, decisions should be
made liberally and in favor of maintaining a class action.
Id. (internal citations and quotation marks omitted). However, in order to
obtain class certification, the proponent of the class must meet all five of the
following requirements set forth in Pa.R.C.P. 1702:
One or more members of a class may sue or be sued as
representative parties on behalf of all members in a class action
only if
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class;
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(4) the representative parties will fairly and adequately assert
and protect the interests of the class under the criteria set forth
in Rule 1709; and
(5) a class action provides a fair and efficient method for
adjudication of the controversy under the criteria set forth in
Rule 1708.
Pa.R.C.P. 1702. Additionally, we note that “[a] trial court’s decision
concerning class certification is a mixed finding of law and fact.” Weismer
by Weismer v. Beech-Nut Nutrition Corp., 615 A.2d 428, 430 (Pa.
Super. 1992) (citation omitted).
In the instant case, the trial court concluded that Appellant failed to
satisfy three of the required elements set forth in Pa.R.C.P. 1702, namely
commonality, typicality, and that class certification would be a fair and
efficient method of adjudicating the controversy. Trial Court Opinion,
9/16/14, at 6. Because Appellant was required to satisfy all five
requirements, failing to meet any one of the factors is fatal to her claim.
Pa.R.C.P. 1702; see Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1,
22 (Pa. 2011) (stating that each distinct prerequisite for class certification
must be established by the class proponent).
In the class-action context, commonality is described as follows:
Common questions of law and fact will generally exist if the class
members’ legal grievances are directly traceable to the same
practice or course of conduct on the part of the class opponent.
The common question of fact [requirement] means precisely that
the facts must be substantially the same so that proof as
to one claimant would be proof as to all. This is what gives
the class action its legal viability. While the existence of
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individual questions of fact is not necessarily fatal, it is essential
that there be a predominance of common issues, shared by all
the class members, which can be justly resolved in a single
proceeding.
Clark v. Pfizer Inc., 990 A.2d 17, 24 (Pa. Super. 2010) (emphasis added)
(citations and quotation marks omitted).
On appeal, Appellant argues that “the corporate decision for
understaffing in Willowcrest; the failure to adhere to federal and state
nursing home laws and regulations; the use of unqualified and unlicensed
personnel for the resident population at Willowcrest and the corporate goal
of budgetary gain led to the myriad harms caused to the Appellant’s
decedent and the members of the proposed class.” Appellant’s Brief at 28.
While Appellant’s claims against Appellees regarding harm to the proposed
class members stem from a common characteristic, i.e., they were residents
at Willowcrest who allegedly suffered deficient care, it does not alter the fact
that each one of those more than 300 claimants in the proposed class is
unique. The proposed class members necessarily received individualized
care and were treated separately over a period of years, and therefore, the
cause of any harm could have originated from numerous sources. Thus, any
treatment, care, or injury was distinct as to each individual resident. Simply
stated, proof as to one is not proof as to all. As the trial court explained:
49. “If, as here, each question of disputed fact has a different
origin, a different manner of proof and to which there are
different defenses, we cannot consider them to be common
questions of fact within the meaning of Pa. R. Civ. P. 1702.”
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Allegheny Cty. Hous. Auth. v. Berry, 487 A.2d 995, 997 (Pa.
Super. 1985).
50. Likewise, “... where the challenged conduct affects the
potential class members in different ways, commonality may not
exist.” Helo v. Encompass Ins., 2008 Phila.Ct.Com.Pl. LEXIS
129, at 10 (Pa.Ct.Com.Pl. 2008)[, affirmed, 970 A.2d 487 (Pa.
Super. Ct. filed January 12, 2009) (unpublished memorandum)].
51. In addition, where “there exists intervening and possibly
superseding causes of damage ... , liability cannot be determined
on a class-wide basis.” Id. at 11.
52. [Here, Appellant] has failed to demonstrate which former
patients are class members; [Appellant’s] evidence is unable to
establish that this Court would not be required to evaluate the
individual facts and circumstances of every resident of
Willowcrest between 2005 and 2009 to determine both that the
resident suffered financial or physical harm and that they
suffered such harm as a result of the conduct of [Appellees].
53. The need for mini-trials that might be required to determine
such individualized questions is antithetical to the purpose of
class actions. See, e.g., Sanneman v. Chrysler Corp., 191
F.R.D. 441, 446 (E.D. Pa. 2000) (finding that class certification is
inappropriate in cases in which “[d]etermining a membership in
the class would essentially require a mini-hearing on the merits
of each class member’s case” because such “administrative
burdens are incongruous with the efficiencies expected in a class
action”); Mike v. Safeco Ins. Co. of Am., 223 F.R.D. 50, 53
(D. Conn. 2004) (finding that the proposed class, as defined,
was “untenable because the court would have to conduct an
individual inquiry regarding the merits of each proposed
plaintiff’s claim in order to determine class membership”);
White v. Williams, 208 F.R.D. 123, 129-30 (D. N.J. 2002)
(finding that class certification was not proper because adoption
of the proposed class definition “would require the Court to
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conduct a number of mini-hearings or to employ some other
screening mechanism prior to defining the class”).[2]
54. [Appellant] has not provided sufficient evidence to meet her
burden of showing commonality for any of the class claims.
Trial Court Opinion, 9/16/14, at 10-11.3 We agree with the trial court’s
analysis. The vast number of proposed class members, with disparate
treatment histories, medical backgrounds, and alleged injuries would
necessitate a profuse number of “mini-trials” in order to ultimately define
the class. As such, we conclude that Appellant has failed to establish
commonality pursuant to Pa.R.C.P. 1702.4
After careful review, we discern no error of law or abuse of discretion
in the trial court’s decision to deny class certification in this matter.
Accordingly, we affirm the order entered on September 16, 2014.
Order affirmed.
____________________________________________
2
“Federal precedent is instructive in construing Pennsylvania’s class action
rules.” Janicik v. Prudential Ins. Co. of Am., 451 A.2d 451, 454 n.3 (Pa.
Super. 1982).
3
Additionally, we note that where the issue of damages requires separate
mini-trials of a large number of individual claims, courts have found that the
determination of damages becomes the predominate issue and renders the
class unmanageable as a class action. State of Alabama v. Blue Bird
Body Co., Inc., 573 F.2d 309 (5th Cir.1978).
4
Because we conclude that Appellant failed to establish the commonality
requirement, we need not address the other factors set forth under Pa.R.C.P.
1702. Samuel-Bassett, 34 A.3d at 22.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2015
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