J-A15045-17
2017 PA Super 308
ROBERTA BRESLIN, EXECUTRIX OF THE : IN THE SUPERIOR COURT OF
ESTATE OF VINCENT BRESLIN, : PENNSYLVANIA
DECEASED, :
:
Appellant :
:
v. :
:
MOUNTAIN VIEW NURSING HOME, :
INC., : No. 1961 MDA 2016
Appeal from the Order entered October 21, 2016
in the Court of Common Pleas of Lackawanna County,
Civil Division, No(s): 2015-05015
BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.
OPINION BY MUSMANNO, J.: FILED SEPTEMBER 28, 2017
Roberta Breslin (“Breslin”), executrix of the Estate of Vincent Breslin
(“Vincent”), deceased, appeals from the Order sustaining the Preliminary
Objections filed by Mountain View Nursing Home, Inc. (“MVNH”), and
dismissing Breslin’s claims, with prejudice. We affirm in part, reverse in
part, and remand for further proceedings.
From October 9, 2013, to October 16, 2014, Vincent was a patient at
MVNH.1 During the year in which he was a patient at the facility, Vincent
developed multiple Grade III and/or Grade IV pressure ulcers in his ischial
areas, sacral area, right foot and left foot. On December 1, 2015, Breslin
1
The Amended Complaint is silent as to when Vincent died. However,
Breslin does not allege that Vincent died while he was a patient at MVNH.
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filed a Complaint against MVNH, asserting claims sounding in corporate
negligence and vicarious liability. On February 16, 2016, MVNH filed
Preliminary Objections to the Complaint in the nature of a demurrer. On
May 20, 2016, the trial court sustained the Preliminary Objections based on
lack of specificity, and directed Breslin to file an Amended Complaint. On
June 10, 2016, Breslin filed an Amended Complaint. On June 23, 2016,
MVNH filed Preliminary Objections in the nature of a demurrer to the
Amended Complaint. On October 25, 2016, the trial court sustained the
Preliminary Objections, and dismissed the Amended Complaint with
prejudice. Breslin filed a timely Notice of Appeal, and a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
The issues that Breslin raises on appeal for our review can be
summarized as follows:
1. Whether the trial court erred when it sustained MVNH’s
Preliminary Objection to Breslin’s claim for corporate
negligence?
2. Whether the trial court erred when it sustained MVNH’s
Preliminary Objection to Breslin’s claim for vicarious liability?
3. Whether the trial court erred when it sustained MVNH’s
Preliminary Objection alleging insufficient specificity regarding
agency and negligence?
4. Whether the trial court erred when it sustained MVNH’s
Preliminary Objection regarding scandalous and impertinent
matter in the Amended Complaint?
5. Whether the trial court erred when it sustained MVNH’s
Preliminary Objection to Breslin’s claim for punitive damages?
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See Brief for Appellant at 2-3 (issues renumbered for ease of disposition).
Our review of a trial court’s sustaining of preliminary
objections in the nature of a demurrer is plenary. Such
preliminary objections should be sustained only if, assuming the
averments of the complaint to be true, the plaintiff has failed to
assert a legally cognizable cause of action. We will reverse a
trial court’s decision to sustain preliminary objections only if the
trial court has committed an error of law or an abuse of
discretion.
All material facts set forth in the complaint as well as all
inferences reasonably [deducible] therefrom are admitted as
true for [the purpose of this review]. The question presented by
the demurrer is whether, on the facts averred, the law says with
certainty that no recovery is possible. Where a doubt exists as
to whether a demurrer should be sustained, this doubt should be
resolved in favor of overruling it.
Regarding a demurrer, this Court has held:
A demurrer is an assertion that a complaint does not
set forth a cause of action or a claim on which relief
can be granted. A demurrer by a defendant admits
all relevant facts sufficiently pleaded in the complaint
and all inferences fairly deducible therefrom, but not
conclusions of law or unjustified inferences. In ruling
on a demurrer, the court may consider only such
matters as arise out of the complaint itself; it cannot
supply a fact missing in the complaint.
Where the complaint fails to set forth a valid cause of
action, a preliminary objection in the nature of a demurrer is
properly sustained.
Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa. Super. 2008) (internal
citations omitted).
In her first issue, Breslin contends that the trial court erred by
sustaining MVNH’s preliminary objection to Breslin’s claim for corporate
negligence. Brief for Appellant at 9. Breslin asserts that “the duties alleged
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by [Breslin] in the Amended Complaint are legally recognizable non-
delegable duties applicable to [MVNH].” Id. Breslin claims that the trial
court erroneously determined that the allegations of corporate negligence
set forth in the Amended Complaint are beyond the non-delegable duties
applicable to a corporate entity as set forth in Thompson v. Nason Hosp.,
591 A.2d 703 (Pa. 1991), and extended to nursing homes in Scampone v.
Highland Park Care Ctr., LLC, 57 A.3d 582, 596 (Pa. 2012). Brief for
Appellant at 10. Breslin argues that the allegations in the Amended
Complaint “are built on direct quotes from the Supreme Court’s Opinion in
Thompson.” Id. at 9, 10. In support, Breslin cites to the allegations
contained in paragraphs 47-50 of the Amended Complaint, wherein she
asserts the following:
47. At all relevant times, [MVNH] had a non-delegable
duty to Vincent [] to use reasonable care in the maintenance of
safe and adequate facilities and equipment;
48. At all relevant times, [MVNH] had a non-delegable
duty to Vincent [] to select and retain competent and qualified
medical personnel;
49. At all relevant times, [MVNH] had a non-delegable
duty to Vincent [] to oversee all persons practicing medicine
within its walls;
50. At all relevant times, [MVNH] had a non-delegable
duty to Vincent [] to formulate, adopt and enforce adequate
rules and policies to ensure quality patient care.
Id. at 10 (quoting Amended Complaint at ¶¶ 47-50). Breslin also points to
the allegations in the Amended Complaint that MVNH had non-delegable
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duties to Vincent to (1) “ensure his safety and well-being while he was
admitted as a patient at [MVNH;]” (2) “exercise reasonable care and skill in
the performance of its duties[;]” (3) “uphold the proper standard of care[;]”
and (4) “use that degree of professional skill and care customarily exercised
by nursing homes in its professional community[,]” and contends that these
duties constitute further non-delegable duties identified by the Thompson
Court. Brief for Appellant at 10-11 (quoting from the Amended Complaint at
¶¶ 43, 45, 46). Finally, Breslin claims that, even if some of the duties
alleged in the Amended Complaint are not recognizable non-delegable
duties, the trial court erred by dismissing all of the alleged duties. Brief for
Appellant at 11.
In Thompson, the Supreme Court adopted the theory of corporate
liability, as it relates to hospitals, by holding that the defendant hospital
owed a non-delegable duty of care toward a patient of a doctor with staff
privileges at the hospital. Thompson, 591 A.2d at 707. Specifically, the
Thompson Court
adopted an ostensibly novel theory of liability – “corporate
negligence” -- under which a hospital operating primarily on a
fee-for-service basis can be held liable if it breaches the non-
delegable duty of care owed directly to the patient to ensure “the
patient’s safety and well-being” while at the hospital. The Court
surveyed the jurisprudence of other states to identify “four
general areas” into which a hospital’s responsibilities to its
patients could be classified: (1) duties to use reasonable care in
the maintenance of safe and adequate facilities and equipment;
(2) duties to select and retain competent physicians; (3) duties
to oversee all persons who practice medicine within the
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hospital’s walls; and (4) duties to formulate, adopt, and enforce
adequate rules and policies to ensure quality patient care.
Scampone, 57 A.3d at 601. Additionally, the Thompson Court ruled that
the hospital owed a non-delegable duty directly to the patient to observe,
supervise, or control his/her treatment approved by multiple physicians; to
apply and enforce its consultation and monitoring procedures; and to ensure
the patient’s safety and well-being while at the hospital. See Thompson,
591 A.2d at 705, 707.
In Scampone, our Supreme Court rejected the argument that nursing
homes and related entities should be categorically immune or exempt from
direct liability claims, such as corporate negligence. See Scampone, 57
A.3d at 600. Instead, the Scampone Court held that “a nursing home and
affiliated entities are subject to potential direct liability for negligence, where
the requisite resident-entity relationship exists to establish that the entity
owes the resident a duty of care....” Id. at 584. The Court further ruled
that, to determine the existence of such a duty, a trial court must undertake
the five-prong analysis set forth in Althaus v. Cohen, 756 A.2d 1166, 1169
(Pa. 2000) by considering: “(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.”
Scampone, 57 A.3d at 600; see also Sokolsky v. Eidelman, 93 A.3d 858,
870 (Pa. Super. 2014) (concluding Scampone requires a trial court to
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analyze the five Althaus factors in order to extend corporate liability to a
skilled nursing facility).2 None of the five Althaus factors is dispositive, and
a court may find a duty where the balance of these factors weighs in favor of
placing such a burden on a defendant. See Dittman v. UPMC, 154 A.3d
318, 323 (Pa. Super. 2017).
In this case, the trial court determined that
[t]he specific allegations concerning the corporate duties which
[Breslin] alleges were the responsibility of [MVNH], such as
“placing profits over adequate patient care” are in fact not
recognizable non-delegable duties applicable to a corporate
entity such as [MVNH] under Thompson [], nor does the
doctrine of res ipsa loquitor support said allegations.
Trial Court Opinion, 10/25/16, at 2. On this basis, the trial court determined
2
As Thompson was decided prior to Althaus, the Thompson Court did not
have the benefit of the Althaus factors. Instead, in adopting the theory of
corporate negligence as related to hospitals, the Thompson Court relied on
the Restatement (Second) of Torts § 323, which provides:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for
the protection of the other's person or things, is subject to
liability to the other for physical harm resulting from his failure
to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such
harm, or
(b) the harm is suffered because of the other's reliance upon the
undertaking.
Restatement (Second) of Torts § 323.
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that Breslin’s claim for corporate negligence was legally insufficient. Id.3
Notably, although the trial court acknowledged its need to consider the
Althaus factors, and indeed specifically identified those factors, it
nevertheless failed to analyze or apply those factors to the facts alleged in
the Amended Complaint. See Trial Court Opinion, 10/25/16, at 2.
We conclude that application of the Althaus factors to the facts
averred in the Amended Complaint weighs in favor of imposing on MVNH the
non-delegable duties identified by the Thompson Court. Here, under the
first Althaus factor, we conclude that there was a special relationship
between MVNH and Vincent, which began when Vincent began residing as a
patient at MVNH. See Althaus, 756 A.2d at 1169 (holding that duty is
predicated upon the relationship existing between the parties at the relevant
time). Breslin alleges that Vincent was “sick, elderly and frail,” and that he
“relied completely and exclusively on [MVNH] to provide all of his medical
care, daily care and personal needs.” See Amended Complaint, at ¶¶ 8, 19.
Breslin further alleges that MVNH exercised compete and exclusive control
over Vincent’s medical care during his stay as a patient at MVNH. See
Amended Complaint, at ¶¶ 19, 20. These facts create the type of
relationship between MVNH and Vincent to support the imposition of a duty
3
Contrary to the trial court’s determination otherwise, our review discloses
that Breslin’s allegations of corporate negligence, as set forth in Count I of
the Amended Complaint, bear striking resemblance to the non-delegable
duties identified by the Thompson Court. See Amended Complaint, ¶¶ 46-
54(a)-(x).
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of care. Thus, the first Althaus factor weighs in favor of imposing the non-
delegable duties on MVNH.
As to the second Althaus factor, we must weigh the social utility of
MVNH’s conduct against the nature of the risk and foreseeability of harm.
Breslin alleges that MVNH “mismanaged and/or reduced staffing levels below
the level necessary to provide adequate care and supervision to its patients
like Vincent[,]” resulting in the development of several pressure ulcers on
his body. See Amended Complaint, at ¶¶ 31, 32. The need for prevention
of nursing home mismanagement and understaffing is unquestionable, as is
the importance of proper care and treatment of nursing home patients.
MVNH provides health care services to patients such as Vincent, as well as
the necessary staffing to perform those services. Imposing the non-
delegable duties identified by the Thompson Court will not unduly hinder
MVNH from performing its vital functions, and in fact, would operate to
MVNH’s benefit in protecting it from deficiencies in the care provided to its
patients. Here, social utility favors imposing a duty of care on MVNH, as it
was in the best position to ensure the non-negligent care of its patients, and
thus, it possessed the ability to limit its liability by acting reasonably with
respect to its patients. Thus, the second Althaus factor weighs in favor of
imposing the non-delegable duties on MVNH.
The third Althaus factor, the nature of the risk imposed and
foreseeability of the harm incurred, weighs heavily in favor of imposing the
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non-delegable duties identified by the Thompson Court. Under this factor,
we must determine whether MVNH either created or foresaw the possibility
of harm to Vincent. See Althaus, 756 A.2d at 1170. Breslin alleges that,
due to the failure of MVNH to properly staff its facility, Vincent received
substandard health care, resulting in the formation of pressure ulcers on his
body. See Amended Complaint, at ¶¶ 17, 18. The risk that substandard
health care would be rendered to a sick, elderly and frail patient due to
mismanagement and understaffing was a serious and foreseeable risk to
MVNH. Therefore, the third Althaus factor weighs in favor of imposing the
non-delegable duties on MVNH.
The fourth Althaus factor requires us to consider the consequence of
imposing the non-delegable duties identified by the Thompson Court on
MVNH. Breslin alleges that MVNH “had a duty to maintain and manage its
facility with adequate staff and sufficient resources to ensure the timely
recognition and proper treatment of medical conditions suffered by persons
at its facility, such as Vincent [].” Amended Complaint, at ¶ 52. We
conclude that imposing the non-delegable duties identified by the
Thompson Court on MVNH is not unduly onerous. Indeed, imposing such
duties will not alter the relationship between MVNH and its patients in any
manner, and will merely vindicate MVNH’s existing obligations to provide
proper care and treatment to its patients. Thus, the fourth Althaus factor
weighs in favor of imposing the non-delegable duties on MVNH.
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Finally, we conclude that the fifth Althaus factor, consideration of the
overall public interest, favors imposing on MVNH the non-delegable duties
identified by the Thompson Court. Breslin alleges that MVNH (1) “held
itself out to the public as a competent and skillful health care provider[;]”
(2) “through advertising, promotion and marketing, held itself out to the
public, including Vincent [] and his family, as being able to provide
competent medical care, rehabilitation, and nursing care to sick, elderly and
frail individuals, including Vincent[;]” and (3) “held itself out to the public as
capable of providing adequate care to persons like Vincent [], including but
not limited to total health care, skin care, the provision of medication,
medical care and treatment, nursing care, nutrition, hydration and hygiene.”
Amended Complaint, at ¶¶ 5, 8, 9. We conclude that the societal interest
lies in in encouraging proper health care and treatment of nursing home
residents. Thus, the fifth Althaus factor weighs in favor of imposing the
non-delegable duties on MVNH.
Accepting as true the facts of the Amended Complaint and all
inferences drawn therefrom, as we must, we conclude that Breslin has
stated sufficient facts to establish that MVNH owed Vincent a duty of care
under an Althaus analysis. See Scampone, 2017 PA Super 257 *43-44
(Pa. Super. 2017) (agreeing with the trial court’s determination that the
nursing home “had a non-delegable duty to render proper care to [Ms.
Scampone] by virtue of its direct contractual relationship with her, the fact
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that it was the licensed owner of the nursing home facility, and due to its
direct rendition of care services to its residents.”). Whether these facts will
survive discovery and a motion for summary judgment, or whether Breslin
can meet her burden before a jury and obtain recovery, is for another day.
See R.W. v. Manzek, 888 A.2d 740, 751 (Pa. 2005). It was, however,
error to dismiss her claim for corporate negligence on preliminary objections.
See id. We therefore reverse the trial court’s Order granting MVNH’s
preliminary objection with regard to Breslin’s claim for corporate negligence
based on the non-delegable duties identified by the Thompson Court.
As Breslin’s second and third issues are related, we will address them
together. In her second issue, Breslin contends that the trial court erred by
sustaining MVNH’s preliminary objection to Breslin’s claim for vicarious
liability. Brief for Appellant at 11-12. Breslin asserts that the trial court
“appeared to base its ruling on old, inapplicable case law provided … by
[MVNH] in its Preliminary Objections.” Id. at 12. Specifically, Breslin points
to the trial court’s determination that Breslin had failed “to identify a single
individual by name or title who would have treated [Vincent] during his
year-long stay at [MVNH],” Brief for Appellant at 12 (citing Trial Court
Opinion, 10/25/16, at 3), and claims that she was not required to identify
individual or specific members of MVNH’s staff in order for vicarious liability
to attach. Brief for Appellant at 12 (citing Estate of Denmark v. Williams,
117 A.3d 300 (Pa. Super. 2015) and Sokolsky, supra). Breslin argues that
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the Amended Complaint describes the specific dates of Vincent’s admission
at MVNH, during which multiple pressure ulcers formed on his body. Brief
for Appellant at 14. Breslin contends that the remaining information
regarding Vincent’s care, and the names of the personnel who provided it, is
in the sole possession of MVNH, and can be ascertained during discovery.
Id. at 14-15.
In her third issue, Breslin contends that the Amended Complaint
pleaded agency and negligence4 with sufficient specificity pursuant to
Sokolsky and Estate of Denmark. Id. at 20-21. Breslin points to the
averments in the Amended Complaint which describe “doctors, nurses and
persons providing health care, medical services, rehabilitation services, and
assisted living/personal care/skilled nursing to Vincent [] during his
admission at [MVNH].” Id. at 21 (quoting Amended Complaint, ¶ 6).
Breslin further points to the references in the Amended Complaint to
“nurses, physicians, resident physicians, fellows, attending physicians,
therapists, agents, servants, workers, employees, contractors,
4
In its Opinion, the trial court determined that the Amended Complaint
failed to plead negligence with sufficient specificity. See Trial Court Opinion,
10/25/16, at 5. For the reasons expressed in our discussion of Breslin’s first
issue, we conclude that her claim for corporate negligence was pleaded with
sufficient specificity in the Amended Complaint. The trial court also
determined that Breslin had failed to plead fraud with sufficient specificity,
and struck all references thereto in the Amended Complaint. See id.
However, the trial court further indicated that Breslin had voluntarily agreed
to strike the references to fraud from the Amended Complaint. See id. at 4.
Breslin makes no argument regarding the fraud allegations in her brief.
Accordingly, we need not address those allegations.
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subcontractors, and/or staff, all of whom were acting within the course and
scope of their employment and under the direct and exclusive control of
[MVNH].” Id. (quoting Amended Complaint, ¶ 60). Breslin also claims that
the Amended Complaint “describes the specific dates during which [MVNH]
exercised ‘complete and exclusive control over [Vincent’s] medical care,’ and
during which multiple pressure ulcers formed on [Vincent’s] body.” Brief for
Appellant at 22 (quoting Amended Complaint, ¶¶ 11, 13, 14, 15, 20, 22).
Breslin argues that the names of the individuals who provided care to
Vincent are in the sole possession of MVNH, and can be ascertained through
discovery. Brief for Appellant at 22.
In Scampone, our Supreme Court explained the difference between
direct and vicarious liability as follows:
To prove negligence, a plaintiff may proceed against a defendant
on theories of direct and vicarious liability, asserted either
concomitantly or alternatively. Liability for negligent injury is
direct when the plaintiff seeks to hold the defendant responsible
for harm the defendant caused by the breach of duty owing
directly to the plaintiff. By comparison, vicarious liability is a
policy[-]based allocation of risk. Vicarious liability, sometimes
referred to as imputed negligence, means in its simplest form
that, by reason of some relation existing between A and B, the
negligence of A is to be charged against B although B has played
no part in it, has done nothing whatever to aid or encourage it,
or indeed has done all that [it] possibly can to prevent it. Once
the requisite relationship (i.e., employment, agency) is
demonstrated, the innocent victim has recourse against the
principal, even if the ultimately responsible agent is unavailable
or lacks the availability to pay.
Scampone, 57 A.3d at 597 (citations and internal quotation marks
omitted); see also Hall v. Episcopal Long Term Care, 54 A.3d 381, 402
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(Pa. Super. 2012). Accordingly, in order to hold an employer vicariously
liable for the negligent acts of its employee, these acts must be “committed
during the course of and within the scope of the employment.” Estate of
Denmark, 117 A.3d at 306 (citations omitted).
However, in Sokolsky, this Court concluded that it is not necessary
for a plaintiff to establish a right to recover on a claim for vicarious liability
based upon the negligence of a specifically named employee. See
Sokolsky, 93 A.3d at 866 (concluding that the trial court erred by ruling
that the plaintiff could not establish her right to recovery on her vicarious
liability claim solely because she did not base that claim on an individual
staff member’s actions); id. (stating that “[s]imply because employees are
unnamed within a complaint or referred to as a unit, i.e., the staff, does not
preclude one’s claim against their employer under vicarious liability if the
employees acted negligently during the course and within the scope of their
employment.”); see also Estate of Denmark, 117 A.3d at 307 (concluding
that, “when read in the context of the allegations of the amended complaint,
[plaintiff’s] references to [‘]nursing staff, attending physicians and other
attending personnel[’] and [‘]agents, servants, or employees[’] were not
lacking in sufficient specificity and did not fail to plead a cause of action
against the [hospital] entities for vicarious liability.”).
Here, the trial court determined that Breslin “is required to identify by
name or appropriate description each professional who was allegedly
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negligent in treating [Vincent] during his stay at [MVNH],” and that Breslin
had “failed to set forth facts adequate to state a claim for vicarious liability
against [MVNH].” Trial Court Opinion, 10/25/16, at 4. The trial court
further determined that the Amended Complaint “merely and generally
maintains that [MVNH] acted through its agents, employees, contractors,
staff subcontractors, and/or representatives, and … fails to specify with the
required definiteness the individuals whose negligence is being attributed to
[MVNH].” Id. at 5.
Based on our review, we conclude that the Amended Complaint
properly set forth the material allegations of negligence upon which Breslin’s
claim for vicarious liability against MVNH was based, including Vincent’s
inability to care for himself, his complete reliance upon the staff of MVNH “to
provide all of his medical care, daily care, and personal needs[,]” and that,
while under the care of MVNH’s staff, Vincent developed several pressure
ulcers on his body. See Amended Complaint, ¶¶ 17, 19. While Breslin did
not identify by name the nurses, doctors or other staff allegedly responsible,
the names of those who performed services in connection with Vincent’s care
are either known to MVNH, or could be ascertained during discovery. See
Estate of Denmark, 117 A.3d at 307. When read in the context of the
allegations of the Amended Complaint, Breslin’s references to “nurses,
physicians, resident physicians, fellows, attending physicians, therapists,
agents, servants, workers, employees, contractors, subcontractors, and/or
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staff” were not lacking in sufficient specificity, and pled a cause of action
against MVNH for vicarious liability. See id. Thus, we reverse the trial
court’s Order granting MVNH’s preliminary objections with regard to (1)
Breslin’s claim for vicarious liability; and (2) insufficient specificity.
In her fourth issue, Breslin contends that the trial court erred by
sustaining MVNH’s preliminary objection regarding “scandalous and
impertinent” matter in the Amended Complaint. Brief for Appellant at 15.
Breslin asserts that each of the factual allegations deemed by the trial court
to be scandalous and impertinent pertained to either (1) “decri[ptions of] the
injuries that occurred [to Vincent] in terms used by Medicare[;]” or (2)
“allegations indicating that [MVNH] operated its facility in a way to maximize
profits over patient care.” Id. at 15-16. Breslin claims that the trial court
did not provide any basis for sustaining MVNH’s preliminary objections
related to scandalous and impertinent matter. Id. at 16. Breslin contends
that the allegations in question were both material and appropriate to the
claims asserted, and caused no prejudice to MVNH. Id. at 17. Specifically,
Breslin asserts that “proof as to why [MVNH] was content to provide a
deplorable level of care to one of its patients—because it valued maximizing
profits over providing patient care—is both material to proving [Breslin’s]
claims and appropriate for doing so.” Id. Breslin claims that these
allegations are especially material and appropriate to her claim for punitive
damages. Id.
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Pennsylvania Rule of Civil Procedure 1028(a)(2) provides for
preliminary objections to be filed when pleadings include a scandalous or
impertinent matter. In order to be scandalous or impertinent, “the
allegation must be immaterial and inappropriate to the proof of the cause of
action.” Common Cause/Pennsylvania v. Commonwealth, 710 A.2d
108, 115 (Pa. Cmwth. 1998). The right to strike an impertinent matter,
however, “should be sparingly exercised and only when a party can
affirmatively show prejudice.” Commonwealth Dep't of Envtl. Res. v.
Hartford Accident and Indem. Co., 396 A.2d 885, 888 (Pa. 1979).
Here, the trial court struck as “scandalous or impertinent” the
allegations of the Amended Complaint in which Breslin claimed that pressure
ulcers are “never” events, or events which do not occur in the absence of
substandard medical care. See Trial Court Opinion, 10/25/16, at 4
(referencing Amended Complaint, ¶¶ 10, 37, 54(o), and 71(g)). The trial
court also struck as “scandalous or impertinent” the allegations of the
Amended Complaint in which Breslin claimed that MVNH had operated its
facility “‘to maximize profits and/or excess revenues’ to the peril of facility
residents.” See Trial Court Opinion, 10/25/16, at 4 (referencing Amended
Complaint, ¶¶ 30, 31, 54(q), 71(c) and 71(i)).
Based on our review, we cannot say that the allegations in question
are “immaterial and inappropriate” to Breslin’s claims. See Common
Cause/Pennsylvania, 710 A.2d at 115. Nor has MVNH affirmatively shown
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any prejudice resulting from these allegations. See Hartford Accident and
Indem. Co., 396 A.2d at 888. Indeed, the references that the trial court
struck may bear upon MVNH’s non-delegable duties, as identified by the
Thompson Court, to select and retain competent physicians; oversee all
persons who practice medicine within its walls; formulate, adopt, and
enforce adequate rules and policies to ensure quality patient care; observe,
supervise, or control the patient’s treatment approved by multiple
physicians; apply and enforce its consultation and monitoring procedures;
and ensure the patient’s safety and well-being while at the hospital. See
Thompson, 591 A.2d at 705, 707. Accordingly, we reverse the trial court’s
Order sustaining MVNH’s preliminary objection regarding scandalous and
impertinent matter.
In her final issue, Breslin contends that the Amended Complaint pled
sufficient facts to maintain a claim for punitive damages. Brief for Appellant
at 18. Breslin asserts that the Amended Complaint includes allegations
[MVNH] “affirmatively chose to operate its facility so as to
maximize profits and/or excess revenues at the expense of the
care required to be provided to its patients, including Vincent …,”
and that “in their effort to maximize profits, [MVNH] negligently,
intentionally and recklessly mismanaged and/or reduced staffing
levels below the level necessary to provide adequate care and
supervision of its patients, including Vincent ….”
Id. at 19-20. Breslin claims that the Amended Complaint is “replete with
allegations of willful or wanton conduct and reckless indifference to the
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rights of others on the part of [MVNH,]” and that Breslin has “alleged more
than enough facts to support [a] claim[] for punitive damages.” Id.
Here, Breslin alleges that MVNH, motivated by a desire to increase
profits, knowingly mismanaged and/or reduced staffing levels below the
level needed to provide adequate care and supervision to its patients,
including Vincent. See Amended Complaint, ¶¶ 31, 32. Breslin has averred
facts that establish MVNH knew, or should have known, its understaffing
“created recklessly high patient-to-staff ratios, including high patient[-]to
[-]nurse ratios.” Id., ¶ 36. This Court cannot say with certainty that, upon
the facts averred, no reasonable inference from those facts supports a
punitive damages award. Accordingly, we reverse the trial court’s Order
sustaining MVNH’s preliminary objection to Breslin’s claim for punitive
damages.
In sum, the facts averred in the Amended Complaint sufficiently set
forth causes of action against MVNH for corporate negligence and vicarious
liability pursuant to Pennsylvania law. Accordingly, we affirm the trial
court’s Order as it relates to the references to fraud in the Amended
Complaint, which Breslin voluntarily agreed to strike, and reverse the
remainder of the Order as it relates to the other preliminary objections filed
by MVNH.
Order affirmed in part, reversed in part; case remanded for further
proceedings. Superior Court jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2017
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