J-A07013-16
2016 PA Super 160
THOMAS D. WALTERS AND CLARA M. IN THE SUPERIOR COURT OF
WALTERS, HIS WIFE PENNSYLVANIA
Appellants
v.
UPMC PRESBYTERIAN SHADYSIDE;
MAXIM HEALTHCARE SERVICES, INC.,
AND MEDICAL SOLUTIONS L.L.C. D/B/A
MEDICAL SOLUTIONS,
Appellees No. 309 WDA 2015
Appeal from the Order Entered February 6, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-12-018339
LINDA FICKEN AND WILLIAM FICKEN, IN THE SUPERIOR COURT OF
HER HUSBAND, PENNSYLVANIA
Appellants
v.
UPMC PRESBYTERIAN SHADYSIDE;
MAXIM HEALTHCARE SERVICES, INC.,
AND MEDICAL SOLUTIONS L.L.C. D/B/A
MEDICAL SOLUTIONS,
Appellees No. 310 WDA 2015
Appeal from the Order Entered February 6, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-12-016165
WANDA J. BRAUN AND EDWIN J. BRAUN, IN THE SUPERIOR COURT OF
HER HUSBAND, PENNSYLVANIA
Appellants
J-A07013-16
v.
UPMC PRESBYTERIAN SHADYSIDE;
MAXIM HEALTHCARE SERVICES, INC.,
AND MEDICAL SOLUTIONS L.L.C. D/B/A
MEDICAL SOLUTIONS,
Appellees No. 311 WDA 2015
Appeal from the Order Entered February 6, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-12-024324
RONNIE D. MURPHY AND CONNIE E. IN THE SUPERIOR COURT OF
MCNEAL, INDIVIDUALLY, AND AS CO- PENNSYLVANIA
EXECUTORS OF THE ESTATE OF
ELEANOR Y. MURPHY,
Appellants
v.
UPMC PRESBYTERIAN SHADYSIDE;
MAXIM HEALTHCARE SERVICES, INC.,
AND MEDICAL SOLUTIONS L.L.C. D/B/A
MEDICAL SOLUTIONS,
Appellees No. 312 WDA 2015
Appeal from the Order Entered February 6, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-14-000899
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
DISSENTING OPINION BY JENKINS, J.: FILED JULY 21, 2016
I respectfully dissent. While I agree with the majority that Appellants
have sufficiently pled a cause of action against UPMC for negligence, I
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disagree that they have sufficiently pled a negligence cause of action against
Maxim. In addition, in my view, Appellants have sufficiently pled a cause of
action against UPMC for negligence per se.
I would therefore affirm the trial court’s order sustaining the demurrer
of Maxim, but reverse the order sustaining UPMC’s demurrer to claims of
both negligence and negligence per se.
In my view, Appellants did not sufficiently plead the elements of
negligence against Maxim necessary to survive Maxim’s preliminary
objections. Appellants filed complaints against Appellees in September of
2012, and amended complaints in November of 2012. In relevant part, the
amended complaints averred:
11. From approximately March of 2008 to May of 2008,
David Kwiatkowski (“Kwiatkowski”) worked at UPMC
Presbyterian Hospital as a radiologic technician.
12. At that time, Kwiatkowski’s employer was defendant
Maxim, a staffing agency that placed Kwiatowski at UMPC
(sic); in the alternative, Kwiatowski was employed by
defendant UPMC, which had and exercised the ability to
control and direct Kwiatkowski’s job performance.
13. On or about May 7, 2008, a UPMC hospital employee
observed Kwiatowski enter an operating room, lift his shirt,
put a syringe in his pants, and exit the room. UPMC
determined that a syringe containing fentanyl, a Schedule
II narcotic, was missing, having been replaced by a
syringe containing a different liquid.
14. UPMC personnel confronted Kwiatkowski and found
three empty syringes with fentanyl labels were found on
him. (sic) An empty morphine syringe was found in his
locker. Fentanyl and opiates were found in Kwiatowski’s
urine.
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15. Beginning on or around May 7, 2008, as a result of
the above-described incident, defendant UPMC no longer
allowed Kwiatowski to work at UPMC.
* * *
25. Defendant Maxim did not report Kwiatkowski’s theft,
use and/or diversion of controlled substances to any state,
federal, or other governmental agency, or to any law
enforcement agency.
26. Defendant Maxim, as a provider of staffing to
healthcare facilities, knew or should have known that
Kwiatowski was addicted to controlled substances and in
all likelihood had a drug problem and/or was a drug addict.
27. Defendant Maxim, as a provider of staffing to
healthcare facilities, knew or should have known that
medical staff such as Kwiatkowski, without intervention,
will continue to engage in conduct, including theft of
controlled substances in order to satisfy an individual’s
addiction and such conduct would be detrimental to the
health and well-being of patients who come into contact
with addicted individuals, such as Kwiatkowski, at
healthcare facilities.
Amended Complaint, filed November 30, 2012.
The majority states:
As their premise for imposing a legal duty, Plaintiffs have
pled that both UPMC and Maxim were Kwiatkowski’s
employers, and each knew of Kwiatkowski’s diversion and
substitution of controlled substances at UPMC and the risk
presented.
* * *
Kwiatkowski injected himself, replaced the drugs with
saline, and placed the contaminated needles and syringes
back on the shelf to be used on unsuspecting patients.
UPMC communicated the nature of Kwiatkowski’s
criminal conduct to Maxim, and banned him from its
facilities. While Kwiatkowski was in the charge of UPMC
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and Maxim, both entities knew he was dangerous and
likely to cause bodily harm to others if not controlled.
Majority Opinion, at 13, note 7, 28 (emphasis added).
Appellants, however, do not state anywhere in their amended
complaints that UPMC told Maxim of Kwiatkowski’s conduct. Further, the
amended complaints do not allege that Maxim placed Kwiatowski at UPMC or
any other healthcare facilities while it was aware of Kwiatkowski’s
misconduct, nor do they allege Maxim placed Kwiatkowsi anywhere other
than with UPMC. The amended complaints merely aver that “Kwiatkowski’s
employer was defendant Maxim, a staffing agency that placed Kwiatowski at
U[PM]C” and that “Maxim, as a provider of staffing to healthcare facilities,
knew or should have known that Kwiatowski was addicted to controlled
substances and in all likelihood had a drug problem and/or was a drug
addict.” Amended Complaints at 12, 26 (emphasis added).
On December 20, 2012, Maxim filed preliminary objections to the
amended complaint that asserted:
Unlike Plaintiff’s claims proffered against both UPMC and
Medical Solutions, Plaintiffs failed to set forth, with even
the slightest particularity, any duty that Maxim allegedly
owed to Wife-Plaintiff or the manner in which Maxim
allegedly breached such duty. Plaintiffs’ Amended
Complaint does not allege that UPMC, at any time,
informed Maxim of the alleged malfeasance of
Kwiatkowski, or that Maxim was otherwise aware of the
allegations set forth against Kwiatkowski, as asserted
within Plaintiff’s Amended Complaint. In addition, Plaintiffs
did not claim that Maxim had any affirmative duty under
Pennsylvania law, federal law, or any other rule of law, to
report the acts of malfeasance of Kwiatkowski, as was set
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forth within their Amended Complaint. Plaintiffs merely
asserted that Kwiatkowski may have been an employee of
Maxim, and that Maxim placed Kwiatkowski at UPMC[.]
Maxim’s Brief in Support of Preliminary Objections to Amended Complaint,
filed December 20, 2012, at 13.
Pennsylvania is a fact pleading state. Foster v. UPMC South Side
HILsz, 2 A.3d 655, 666 (Pa.Super.2010). Complaints must be pled with the
factual specificity to “not only give the defendant notice of what the
plaintiff’s claim is and the grounds upon which it rests, but…also formulate
the issues by summarizing those facts essential to support the claim.” Id.
(citing Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa.Super.2008)). A
defendant may challenge the sufficiency of a pleading through preliminary
objections in the nature of a demurrer. Pa.R.Civ.P. 1028(a)(4).
This Court reviews a trial court’s decision sustaining or overruling
preliminary objections for an error of law. O'Donnell v. Hovnanian
Enterprises, Inc., 29 A.3d 1183, 1186 (Pa.Super.2011). “In so doing, [this
Court] employ[s] the same standard as the trial court, to wit, all material
facts set forth in the Amended Complaint and inferences reasonably drawn
therefrom are admitted as true.” Knight v. Springfield Hyundai, 81 A.3d
940 (Pa.Super.2013). “Preliminary objections which seek the dismissal of a
cause of action should be sustained only in cases in which it is clear and free
from doubt that the pleader will be unable to prove facts legally sufficient to
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establish the right to relief.” Richmond v. McHale, 35 A.3d 779, 783
(Pa.Super.2012).
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine
the averments in the complaint, together with the
documents and exhibits attached thereto, in order to
evaluate the sufficiency of the facts averred. The impetus
of our inquiry is to determine the legal sufficiency of the
complaint and whether the pleading would permit recovery
if ultimately proven. This Court will reverse the trial court’s
decision regarding preliminary objections only where there
has been an error of law or abuse of discretion. When
sustaining the trial court’s ruling will result in the denial of
claim or a dismissal of suit, preliminary objections will be
sustained only where the case i[s] free and clear of doubt.
Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202, 208 (Pa.Super.2012)
(quoting Brosovic v. Nationwide Mutual Insurance Co., 841 A.2d 1071,
1073 (Pa.Super.2004)).
To determine whether the trial court erred in granting Maxim’s
preliminary objections to Appellants’ amended complaints, we must
determine the legal sufficiency of the complaints and whether the facts
alleged would permit recovery if ultimately proven. Specifically, we must
determine whether Appellants pled facts in support of the elements of
negligence against Maxim.
“Negligence is not actionable unless it involves the invasion of a legally
protected interest, the violation of a right. Proof of negligence in the air, so
to speak, will not do.” Palsgraf v. Long Island R. Co., 248 N.Y. 339, 341,
162 N.E. 99, 99 (1928).
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The elements of a cause of action based on negligence are
a duty, a breach of that duty, a causal relationship
between the breach and the resulting injury, and actual
loss. Burman v. Golay & Co., Inc., 616 A.2d 657
([Pa.Super.]1992); Casey v. Geiger, 499 A.2d 606
([Pa.Super.]1985). When considering the question of duty,
it is necessary to determine “whether a defendant is under
any obligation for the benefit of the particular plaintiff ...
and, unless there is a duty upon the defendant in favor of
the plaintiff which has been breached, there can be no
cause of action based upon negligence.” Hoffman v. Sun
Pipe Line Co., 575 A.2d 122, 125 ([Pa.Super.]1990).
J.E.J. v. Tri-Cty. Big Bros./Big Sisters, Inc., 692 A.2d 582, 584-85
(Pa.Super.1997).
The determination of whether a duty exists in a particular
case involves the weighing of several discrete factors
which include: (1) the relationship between the parties;
(2) the social utility of the actor’s conduct; (3) the nature
of the risk imposed and foreseeability of the harm
incurred; (4) the consequences of imposing a duty upon
the actor; and (5) the overall public interest in the
proposed solution. See generally Dumanski v. City of
Erie, 34 A.2d 508, 509 ([Pa.]1943) (relationship between
the parties), Forster v. Manchester, 189 A.2d 147, 150
([Pa.]1963) (social utility), Clewell v. Pummer, 121 A.2d
459, 463 ([Pa.]1956) (nature of risk), Witthoeft v.
Kiskaddon, 733 A.2d 623, 630 ([Pa.]1999) (foreseeability
of harm), Cruet v. Certain-Teed Corp., 639 A.2d 478,
479 ([Pa.Super.]1994) (relationship, nature of risk and
public interest in the proposed solution). See also Bird v.
W.C.W., 868 S.W.2d 767, 769 (Texas 1994)(“In
determining whether to impose a duty, this Court must
consider the risk, foreseeability, and likelihood of injury
weighed against the social utility of the actor’s conduct,
the magnitude of the burden of guarding against the injury
and the consequences of placing that burden on the
actor.”).
Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa.2000).
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The majority finds that the “allegation that Maxim knew of
Kwiatkowski’s addiction and diversion of drugs suffices for our purposes of
finding a duty.” I disagree. I do not believe Appellants pled sufficient facts
in their amended complaints1 to support their claim for negligence
against Maxim, because I do not think the complaints, standing alone,
without reference to material neither in the complaints nor in the exhibits
attached thereto, established that Maxim owed a duty to Appellants.
First, Appellants allege no facts to support the allegation that Maxim
“knew or should have known that Kwiatowski was addicted to controlled
substances and in all likelihood had a drug problem and/or was a drug
addict.” Amended Complaint at ¶ 26 (emphasis added). Further, without
alleging Maxim had any continuing relationship with Kwiatkowski or placed
him at another facility following his termination by UPMC, I do not find
Maxim could have had any duty to Appellants.
When examining the Althaus duty factors, the facts in the complaint
do not weigh in favor of imposing a duty on Maxim. I agree with the
majority that the second, third and fifth factors weigh in favor of imposing a
duty, however, I find that the first and fourth factors do not weigh in favor of
imposing a duty on Maxim and that these factors are controlling.
____________________________________________
1
Again, an appellate court’s examination is limited to the averments in the
complaint, together with the documents and exhibits attached thereto, in
order to evaluate the sufficiency of the facts averred. Weiley, supra.
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Considering the first factor, there is little, if any, relationship between
Maxim and Appellants. According to the complaint, Maxim is an agency that
specializes in placing temporary and permanent personnel in healthcare jobs
and placed Kwiatkowski with UPMC. The complaint does not allege UPMC
apprised Maxim of Kwiatkowski’s drug diversion or that Maxim placed
Kwiatkowski in any other facility after UPMC terminated his employment.
Thus, there is really no relationship between this agency and Kwiatkowski’s
victims, who were infected in another state, years after Maxim placed
Kwiatkowski at UPMC.
Further, upon examination of the fourth Althaus factor, it would be a
significant burden on agencies that place employees in healthcare jobs to
require that they follow up on the reasons for termination of each employee
from each position. Moreover, the gain to be realized from imposing the
burden is questionable, because there is no statute that requires agencies
such as Maxim to take any action if they discover a former, placed employee
has been diverting drugs.
Although it may benefit society if all employers were required to follow
up on employees they had placed in any establishment to see if they were
diverting drugs and report them to drug enforcement agencies, our statutory
framework currently imposes no such burden. Considering Maxim’s
relationship with Appellants, or the lack thereof, and the burden the
imposition of this duty would create, without quantifiable benefit, I do not
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find the Althaus factors weigh in favor of imposing a duty on Maxim. I
believe the trial court properly granted Maxim’s preliminary objections, and
would affirm the order as it relates to Maxim.
I also disagree with the majority’s determination that Appellants failed
to allege facts to support their claim for negligence per se against UPMC.
The concept of negligence per se establishes the elements
of duty and breach of duty where an individual violates an
applicable statute, ordinance, or regulation designed to
prevent a public harm. However, a plaintiff, having proven
negligence per se cannot recover unless it can be proven
that such negligence was the proximate cause of the injury
suffered.
* * *
In order to prove a claim based on negligence per se, the
following four requirements must be met:
(1) The purpose of the statute must be, at least in
part, to protect the interest of a group of individuals,
as opposed to the public generally;
(2) The statute or regulation must clearly apply to
the conduct of the defendant;
(3) The defendant must violate the statute or
regulation;
(4) The violation of the statute or regulation must be
the proximate cause of the plaintiff's injuries.
Schemberg v. Smicherko, 85 A.3d 1071, 1074 (Pa.Super.2014) (quoting
Mahan v. Am–Gard, Inc., 841 A.2d 1052, 1058–1059 (Pa.Super.2003))
(citations and quotations omitted).
Appellants allege UPMC violated the following statute:
§ 1301.76 Other security controls for practitioners.
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(a) The registrant shall not employ, as an agent or
employee who has access to controlled substances, any
person who has been convicted of a felony offense relating
to controlled substances or who, at any time, had an
application for registration with the DEA denied, had a DEA
registration revoked or has surrendered a DEA registration
for cause. For purposes of this subsection, the term “for
cause” means a surrender in lieu of, or as a consequence
of, any federal or state administrative, civil or criminal
action resulting from an investigation of the individual's
handling of controlled substances.
(b) The registrant shall notify the Field Division Office of
the Administration in his area, in writing, of the theft or
significant loss of any controlled substances within one
business day of discovery of such loss or theft. The
registrant shall also complete, and submit to the Field
Division Office in his area, DEA Form 106 regarding the
loss or theft. When determining whether a loss is
significant, a registrant should consider, among others, the
following factors:
(1) The actual quantity of controlled substances lost in
relation to the type of business;
(2) The specific controlled substances lost;
(3) Whether the loss of the controlled substances can be
associated with access to those controlled substances by
specific individuals, or whether the loss can be attributed
to unique activities that may take place involving the
controlled substances;
(4) A pattern of losses over a specific time period, whether
the losses appear to be random, and the results of efforts
taken to resolve the losses; and, if known,
(5) Whether the specific controlled substances are likely
candidates for diversion;
(6) Local trends and other indicators of the diversion
potential of the missing controlled substance.
21 C.F.R. § 1301.76.
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I agree with the majority’s determination that Appellants’ complaint
sufficiently pled that, as a registrant under the act, UPMC was required to
report to the DEA Kwiatkowski’s known diversion and substitution of
controlled substances, and that its failure to do so resulted in harm to
Appellants. I disagree, however, with the majority’s conclusion that the
statute was designed to protect the public at large, and not to protect a
particular group to which Appellants belonged.
Here, the statute governed the behavior of registrants. It forbade
them from hiring employees who had been convicted of a felony offense
related to controlled substances, and required them to report the theft of
controlled substances within one business day. Thus, it seems the statute
was designed, at least in part, to protect patients of registrants from
employees who divert drugs or who are likely to do so. Appellants were
patients of registrants. Therefore, I think Appellants successfully pled a
cause of action in negligence per se against UPMC, and I would vacate the
trial court’s order as it pertained to that claim.
Accordingly, I dissent.
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