J-A05031-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ELLISON O. JORDAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
THE PENNSYLVANIA STATE : No. 76 MDA 2021
UNIVERSITY, SANDY BARBOUR, :
CHARMELLE GREEN, JAMES :
FRANKLIN, ANDY MUTNAN, RENEE :
MESSINA, SCOTT A. LYNCH, M.D., :
PETER H. SEIDENBERG, M.D., JOHN :
S. REID, M.D., BRENDAN M. CARR, :
TIM BREAM, WES SOHNS, PENN :
STATE HEALTH, MILTON S. HERSHEY :
MEDICAL CENTER, PENN STATE :
HERSHEY MEDICAL GROUP, AND :
MOUNT NITTANY HEALTH :
Appeal from the Order Entered December 4, 2020
in the Court of Common Pleas
of Centre County Civil Division at No(s): 20-0028
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: APRIL 12, 2022
Appellant, Ellison O. Jordan, appeals pro se from the December 4,
20201 order sustaining the preliminary objections filed by Appellees, The
Pennsylvania State University, Sandy Barbour, Charmelle Green, and James
Franklin (hereinafter, “University Appellees”); granting the petitions filed by
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Appellant erroneously refers to this order as having been entered on
December 8, 2020.
J-A05031-22
Appellees, Scott A. Lynch, M.D., Mount Nittany Health, Andy Mutnan, Renee
Messina, Brendan M. Carr, Tim Bream, Wes Sohns, Peter H. Seidenberg, M.D.,
John S. Reid, M.D., Penn State Health, Milton S. Hershey Medical Center, and
the Penn State Hershey Medical Group (thereafter, “Healthcare Appellees”),
to hold Appellant in contempt of court; and dismissing Appellant’s amended
complaint and supplemental amended complaint with prejudice. Appellant
also appeals from the December 23, 2020 order denying his motion to recuse
President Judge Pamela A. Ruest from this case. For the following reasons,
we affirm.
The trial court summarized the relevant facts and lengthy procedural
history of this case as follows:
This case arises from injuries [Appellant] allegedly
sustained during his time as a student-athlete on the
Penn State University football team between June
2016 and August 2019. [Appellant’s] cause of action
specifically focuses on his treatment following a
December 27, 2017 surgery to repair a right knee
patellar fracture he suffered while practicing for the
Fiesta Bowl in Phoenix, Arizona. [Appellant] alleges
he reinjured his knee on January 8, 2018 while
receiving treatment from Wes Sohns, which required
[Appellant] to undergo surgery on January 12, 2018.
In April 2018, [Appellant] reported feeling pain and
discomfort in his right knee. In September 2018,
[Appellant] was evaluated for reported pain and
swelling in his right knee, which was attributed to
tendinitis and the prominence of the plate placed
during surgery, but did not rule out the possibility of
an infection.
Between September and November 2018, [Appellant]
continued to experience right knee pain and
[Appellant] underwent a right knee arthroscopy on
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November 21, 2018. On November 25, 2018,
[Appellant] and his parents attended a meeting with
fifteen (15) representatives of Penn State University,
who asked [Appellant] to sign a document voluntarily
withdrawing himself from the football team. On
December 30, 2018, [Appellant] was taken to the
Emergency Room due to extreme knee pain and
swelling. [Appellant] informed James Franklin on
January 5, 2019 that his right knee was infected and
[Appellant] underwent surgery to address the
infection on January 8, 2019. On August 19, 2019,
[Appellant] was removed from the Penn State football
team.
[Appellant] originally filed a complaint on January 31,
2020 based on a theory of medical malpractice.
University [Appellees] filed preliminary objections on
February 24, 2020. [Appellant] filed a certificate of
merit for each [Appellee] on February 28, 2020, but
failed to file a written statement from an appropriate
licensed professional with the certificates of merit. All
of the named [Appellees] other than the University
[Appellees] filed a Notice of Intention to Enter
Judgment of Non Pros for Failure to File a Written
Statement from an Appropriate Licensed Professional
between March 4 and March 11, 2020. [Appellant]
filed an Answer to [Appellees’] Notices on April 17,
2020. On May 12 and May 13, 2020, the Centre
County Prothonotary’s Office entered Judgment of
Non Pros in favor of all [Appellees] other than the
University [Appellees].
On June 1, 2020, [Appellant] filed a Petition for Relief
of Judgment of Non Pros requesting the court strike
the judgments and restore [Appellant’s] complaint in
its entirety. Between June 12 and June 22, 2020,
each of the [Appellees] filed a response seeking to
uphold their Judgment of Non Pros. A hearing was
held on June 25, 2020. On July 15, 2020, the court
entered an opinion and order denying [Appellant’s]
petition for relief, sustaining the University
[Appellees’] preliminary objections, and dismissing
[Appellant’s] medical malpractice claims with
prejudice. The court dismissed [Appellant’s]
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complaint and allowed [Appellant] to file an amended
complaint within twenty (20) days against only the
University [Appellees] and only raising potential
claims of intentional or negligent infliction of
emotional distress and ordinary negligence.
[Appellant] filed a petition for reconsideration on July
24, 2020, which was denied by the court on July 30,
2020.
[Appellant] filed an amended complaint on August 3,
2020, and a supplemental amended complaint on
August 12, 2020, both of which included claims
against all of the [Appellees] from [Appellant’s]
original complaint. Between August 7 and August 14,
2020, counsel for all of the [Appellees] except for the
University [Appellees] sent letters to [Appellant]
requesting that he remove them from his amended
complaint or they would seek to hold [Appellant] in
contempt of court. [Appellant] failed to respond and
[Appellees Scott A. Lynch, M.D., Mount Nittany
Health, Andy Mutnan, Renee Messina, Brendan M.
Carr, Tim Bream, Wes Sohns, Peter H. Seidenberg,
M.D., John S. Reid, M.D., Penn State Health, The
Milton S. Hershey Medical Center, and the Penn State
Hershey Medical Group] each filed a petition to hold
[Appellant] in contempt of court.
On August 24, 2020, [Appellant] filed notices of
intention to enter default judgments against each
[Appellee] because they allegedly failed to enter a
written appearance and file in writing with the court
their defenses or objections to [Appellant’s] amended
complaint. University [Appellees] file preliminary
objections and a brief in support on August 31, 2020.
[Appellant] filed a praecipe for determination on
September 3, 2020 alleging University [Appellees’]
preliminary objections were not filed in accordance
with Pennsylvania law for failing to serve [Appellant]
a copy of their preliminary objections. [Appellant]
filed a response in opposition to University
[Appellees’] preliminary objections on September 16,
2020, and an answer to order to show cause on
October 9, 2020. [Appellant] also filed a statement of
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support on October 19, 2020. A hearing was held on
October 12, 2020.
Trial court opinion, 12/4/20 at 2-4 (extraneous capitalization omitted).
On December 4, 2020, the trial court entered an opinion and order
sustaining the University Appellees’ preliminary objections; holding Appellant
in contempt of court; and dismissing Appellant’s amended complaint and
supplemental amended complaint with prejudice. On December 15, 2020,
Appellant filed a motion to recuse P.J. Ruest from this case, which was denied
by the trial court on December 23, 2020.
On January 6, 2021, Appellant filed a notice of appeal. Although not
ordered to do so, Appellant filed an eight-page Pa.R.A.P. 1925(b) statement
on May 12, 2021. The trial court filed its Rule 1925(a) opinion on May 20,
2021, indicating that it was relying on the reasoning set forth in its prior
opinion and orders entered December 4 and 23, 2020.
Appellant raises the following issues for our review:
1. Did the [trial] court ignore the law, errored [sic]
in applying the law, misinterpreted [sic] the law
and/or abuse its discretion in issuing the
correspondence, in identifying the case as only
medical malpractice, in processing the case on
an “aggressive fast track” without any
established written local procedures, in not
providing definitive goals and objects and
making them know to all parties involved and
denying [Appellant] a right to jury trial as
demanded?
2. Did the [trial] court ignore the law, errored [sic]
in applying the law, misinterpreted [sic] the law
and/or abuse its discretion concerning all
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pleadings, notices, judgments, opinions and
orders concerning the Certificate of Merit of the
original Complaint, Amended Complaint and
Supplemental Amended Complaint?
3. Did the [trial] court ignore the law, errored [sic]
in applying the law, misinterpreted [sic] the law
and/or abuse its discretion concerning the
service of process?
4. Did the [trial] court ignore the law, errored [sic]
in applying the law, misinterpreted [sic] the law
and/or abuse its discretion concerning
Preliminary Objections?
5. Did the [trial] court ignore the law, errored [sic]
in applying the law, misinterpreted [sic] the law
and/or abuse its discretion concerning her
personal interest in the outcome of the case and
potential appearance of conflict of interest and
bias?
6. Did the [trial] court ignore the law, errored [sic]
in applying the law, misinterpreted [sic] the law
and/or abuse its discretion concerning “special
relationship”, “duty of care”, “standard of care”,
“preventative measures”, “heightened duty of
care”, “unreasonable risk of harm”,
“foreseeability of harm”, “duty to convey”, “duty
to exercise reasonable care”, “affirmative duty”,
“an act within scope of employment”,
“nondelegable duty”, “breach of duty”, “breach
of duty was more likely than not (i.e.,
probably”) the cause of the injury” and “proper
medical treatment”[?]
7. Did the [trial] court ignore the law, errored [sic]
in applying the law, misinterpreted [sic] the law
and/or abuse its discretion concerning
processing the civil complaint?
Appellant’s brief at 5-7.
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Our standard of review of a challenge to a trial court’s decision to
grant preliminary objections is as follows:
Our standard of review of an order of the trial court
overruling or granting preliminary objections is to
determine whether the trial court committed an error
of law. When considering the appropriateness of a
ruling on preliminary objections, the appellate court
must apply the same standard as the trial court.
Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa.Super. 2011) (citation
omitted).
This Court has explained our standard of review for a civil contempt
order as follows:
When considering an appeal from an Order holding a
party in contempt for failure to comply with a court
Order, our scope of review is narrow: we will reverse
only upon a showing the court abused its discretion.
The court abuses its discretion if it misapplies the law
or exercises its discretion in a manner lacking reason.
Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa.Super. 2009) (citations omitted).
Preliminarily, we must address whether Appellant has properly
preserved all of his claims on appeal. Our review of the disjointed “Argument”
section in Appellant’s 68-page pro se brief reveals that a number of his claims
take issue with the trial court’s entry of Judgments of Non Pros for Failure to
File Written Statement from Appropriate Licensed Professional. See
Appellant’s brief at 24-37.
As discussed, on May 12 and 13, 2020, Judgments of Non Pros were
entered in favor of all Appellees other than the University Appellees. Appellant
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subsequently filed a petition for relief from the Judgments of Non Pros
requesting the trial court strike the judgments and restore his complaint in its
entirety. Thereafter, each of the Appellees filed a response seeking to uphold
their Judgment of Non Pros. Following a hearing, the trial court entered an
opinion an order on July 15, 2020 denying Appellant’s petition for relief;
dismissing the medical malpractice claims in his complaint with prejudice; and
directing Appellant that his amended complaint could only raise claims against
the University Appellees for intentional or negligent infliction of emotional
distress and ordinary negligence. See “Opinion and Order,” 7/15/20 at 12-
13. Appellant filed a petition for reconsideration which was denied on July 30,
2020.
This Court has long recognized that “[a]ny appeal related to a judgment
of non pros lies not from the judgment itself, but from the denial of a petition
to open or strike.” Cardona v. Buchanan, 230 A.3d 476, 479 (Pa.Super.
2020) (citation omitted). Under Pa.R.A.P. 311(a)(1), an appeal from an
interlocutory order refusing to open, vacate or strike off a judgment is deemed
final and subject to attack on appeal without reference to Pa.R.A.P. 341(c).
Hammel v. Hammel, 636 A.2d. 214, 217 (Pa.Super. 1994) (citation
omitted). Notably, the “[f]ailure to timely appeal from an order denying a
petition to open, vacate, or strike off a judgment renders any attack of that
order untimely and waived.” Blackburn v. King Inv. Grp., LLC, 162 A.3d
461, 464 (Pa.Super. 2017) (citation omitted).
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Instantly, the record reflects that Appellant’s January 6, 2021 notice of
appeal makes no mention of the trial court’s July 15, 2020 order denying his
petition for relief from Judgment of Non Pros, nor the July 30, 2020 order
denying his petition for reconsideration of relief from Judgment of Non Pros.2
Although Appellant baldly contends in his brief that he is seeking “reversal of
all the lower court’s opinions and orders … and judgments,” his notice
of appeal indicates that he is only appealing from the trial court’s December 4
and December 23, 2020 orders. See Appellant’s brief at 1 (emphasis added);
Appellant’s “Notice of Appeal,” 1/6/21.
Appellant’s failure to appeal from the trial court’s July 15, 2020 order
renders his appeal procedurally deficient because neither of the trial court’s
December 2020 orders directly addresses the Judgments of Non Pros
Appellant purports to challenge on appeal.
Pennsylvania Rule of Appellate Procedure 904 requires a petitioner to
specifically identify in his notice of appeal the order from which he wishes to
appeal. Pa.R.A.P. 904(a). Moreover, this Court has long recognized that,
although [we are] willing to liberally construe
materials filed by a pro se litigant, pro se
status confers no special benefit upon the
____________________________________________
2 We note that any attempt by Appellant to appeal from the July 30, 2020
order denying the petition for reconsideration would have nonetheless been
improper. An order denying a motion for reconsideration is not appealable.
See Huntington Nat. Bank v. K–Cor, Inc., 107 A.3d 783, 787 (Pa.Super.
2014) (stating, “Pennsylvania case law is absolutely clear that the refusal of
a trial court to reconsider, rehear, or permit reargument of a final decree is
not reviewable on appeal.”), appeal denied, 117 A.3d 1281 (Pa. 2015).
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appellant. To the contrary, any person choosing
to represent himself in a legal proceeding must,
to a reasonable extent, assume that his lack of
expertise and legal training will be his undoing.”
Wilkins v. Marsico, 903 A.2d 1281, 1284–1285 (Pa.Super. 2006) (citations
and internal quotation marks omitted), appeal denied, 918 A.2d 747 (Pa.
2007).
Accordingly, Appellant’s failure to appeal the trial court’s July 15, 2020
order denying his petition for relief from Judgment of Non Pros renders all his
claims related to this order waived. See Blackburn, 162 A.3d at 464; see
also Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”).
We now turn to Appellant’s claim that the trial court’s December 23,
2020 order denying his motion to recuse P.J. Ruest from this case was
improper because of her “impartiality , bias, and a personal interest in the
outcome of [this] case.” Appellant’s brief at 38-41; see also “Motion to
Recuse,” 12/15/20 at ¶ 1. For the reasons that follow, we find that this claim
is time barred.
It is well settled that “a party may not raise the issue of judicial prejudice
or bias for the first time in post[-]trial proceedings.” Ware v. U.S. Fid. &
Guar. Co., 577 A.2d 902, 905 (Pa.Super. 1990) (citation omitted). On the
contrary, “a party seeking recusal or disqualification on the basis of judicial
bias or impartiality “[is required] to raise the objection at the earliest possible
moment, or that party will suffer the consequence of being time barred.” In
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re Lokuta, 11 A.3d 427, 437 (Pa. 2011) (citations omitted; brackets in
original), cert. denied, 565 U.S. 878 (2011). “The timeliness of such an
application is particularly troubling where a party seeks disqualification only
after receiving adverse judgment.” League of Women Voters of Pa. v.
Commonwealth, 179 A.3d 1080, 1086 (Pa. 2018) (citation omitted).
Instantly, the record reflects that Appellant failed to raise his claim of
judicial bias at the earliest possible opportunity. Appellant’s motion to recuse
was filed on December 15, 2020, more than 7 months after P.J. Ruest entered
her first order in this case on May 12, 2020, and only eleven days after P.J.
Ruest entered an order dismissing Appellant’s amended complaint and
supplemental amended complaint with prejudice. Based on the foregoing,
Appellant’s recusal claim was clearly time-barred and its denial by the trial
court was warranted.
Appellant’s remaining claims concern the trial court’s December 4, 2020
order sustaining the University Appellees’ preliminary objections; granting the
Healthcare Appellees’ petitions to hold Appellant in contempt of court; and
dismissing his amended complaint and supplemental amended complaint with
prejudice. See Appellant’s brief at 38-59.
As best we can discern from his somewhat befuddling and convoluted
appellate brief, Appellant takes issue with the trial court’s rejection of his
claims for negligent or intentional infliction of emotional distress and ordinary
negligence against the University Appellees, as well as the court’s
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determination that he should be held in contempt of court for continuing to
pursue action against the Healthcare Appellees in his supplemental amended
complaint after the trial court explicitly ordered him not to do so.
Following our careful review of the record, including the briefs of all the
parties and the applicable case law, and in light of this court’s scope and
standard of review, it is our determination that there is no merit to Appellant’s
remaining claims on appeal. We agree with the trial court that all of
Appellant’s cognizable issues on appeal were adequately disposed of in its
December 4, 2020 opinion and order. Accordingly, we adopt the well-
reasoned opinion of the Honorable Pamela A. Ruest as our own for purposes
of this appellate review and affirm on the basis of the reasoning stated therein.
Orders affirmed.3
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2022
____________________________________________
3 We note that it is well-settled law that “a pro se litigant must comply with
the procedural rules set forth in the Pennsylvania Rules of the Court.” Ebbert
v. Mest, 2016 WL 5266540, at *1 (Pa.Super. 2016), citing Commonwealth
v. Lyons, 833 A.2d 245, 251-252 (Pa.Super. 2003).
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Circulated
Received 2/8/2021 257.02 PM Superior03/21/2022 11:22
Court Middle AM
District
Filed 2/8/2021 2.57.00 PM Superior Court Middle District
76 MDA 2021
IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
ELLISON 0. JORDAN
Plaintiff
v. No. 2020-0028
THE PENNSYLVANIA STATE
UNIVERSITY, SANDY BARBOUR,
CHARMELLE GREEN, JAMES FRANKLIN,
ANDY MUTNAN, RENEE MESSINA,
SCOTT A. LYNCH, M.D., PETER H.
SEIDENBERG, M.D., JOHN S. REID, M.D.,
BRENDAN M. CARR, TIM BREAM,
WES SOHNS, PENN STA TE HEALTH,
TIE MILTON S. HERSHEY MEDICAL
CENTER, PENN STATE HERSHEY
MEDICAL GROUP, and MOUNT
NITT ANY HEAL TH,
Defendants
Attorney for Plaintiff. Pro Se
Attorney for Defendants PSU, Sandy Barbour, Charmelle
Green, and James Franklin: James P. DeAngelo, Esq.
Attorney for Defendants Andy Mutnan, Renee Messina,
Brendan Carr, Tim Bream, and Wes Sohns: .Joe H. Tucker, Esq.
Attorney for Defendant Scott A. Lynch, M.D.: Wiley P. Parker, Esq.
Attorney for Defendants Peter H. Seidenberg, M.D., John
S. Reid, M.D., Penn State Health, The Milton S. Hershey
Medical Center, and Penn State Hershey Medical Group: April C. Simpson, Esq.
Attorney for Defendant Mount Nittany Health: Brian J. Bluth, Esq.
OPINION and ORDER
Ruest, P.J.
Presently before the Court arc Petitions to Hold Ellison 0. Jordan ("Plaintiff'') in
Contempt of Court filed on August 24, 2020 by Defendant Scott A. Lynch, M.D., Defendants
Andy Mutnan, Renee Messina, Brendan Carr, Tim Bream, and Wes Sohns, and Defendants Peter
H. Seidenberg, M.D., John S. Reid, M.D., Penn State Health, The Milton S. Hershey Medical
IO LJRD LS
Center, and Penn State Hershey Medical Group. Defendant Mount Nittany Health filed a Motion
to Dismiss and Petition for Contempt on August 28, 2020. Also before the Court are Defendants
The Pennsylvania State University, Sandy Barbour, Charmelle Green, and James Franklin's
(collectively, the "University Defendants") Preliminary Objections filed on August 31, 2020 and
Plaintiffs Praecipe for Default Judgment and Praecipe for Determination filed on September 2,
2020 and September 3, 2020, respectively. University Defendants filed a Brief in Support on
August 31, 2020 and Plaintiff filed a Response in Opposition on September 16, 2020. Plaintiff
also filed a Statement of Support on October 19, 2020. A hearing was held on October 12, 2020.
Upon the consideration of the arguments of counsel and the filings, the Court finds as follows:
Background
This case arises from injuries Plaintiff allegedly sustained during his time as a student-
athlete on the Penn State University football team between June 2016 and August 2019.
PlaintifI's cause of action specifically focuses on his treatment following a December 27, 2017
surgery to repair a right knee patellar fracture he suffered while practicing for the Fiesta Bowl in
Phoenix, Arizona. Plaintiff alleges he reinjured his knee on January 8, 2018 while receiving
treatment from Wes Sohns, which required Plaintiff to undergo surgery on January 12, 2018. In
April 2018, Plaintiff reported feeling pain and discomfort in his right knee. In September 2018,
Plaintiff was evaluated for reported pain and swelling in his right knee, which was attributed to
tendinitis and the prominence of the plate placed during surgery, but did not rule out the
possibility of an infection.
Between September and November 2018, Plaintiff continued to experience right knee
pain and Plaintiff underwent a right knee arthroscopy on November 21, 2018. On November 25,
2018, Plaintiff and his parents attended a meeting with fifteen ( 15) representatives of Penn State
2
University, who asked Plaintiff to sign a document voluntarily withdrawing himself from the
football team. On December 30, 2018, Plaintiff was taken to the Emergency Room due to
extreme knee pain and swelling. Plaintiff informed James Franklin on January 5, 2019 that his
right knee was infected and Plaintiff underwent surgery to address the infection on January 8,
2019. On August 19, 2019, Plaintiff was removed from the Penn State football team.
Plaintiff originally filed a Complaint on January 31, 2020 based on a theory of medical
malpractice. University Defendants filed Preliminary Objections on February 24, 2020. Plaintiff
filed a Certificate of Merit for each Defendant on February 28, 2020, but failed to file a written
statement from an appropriate licensed professional with the Certificates of Merit. All of the
named Defendants other than the University Defendants filed a Notice of Intention to Enter
Judgment of Non Pros for Failure to File a Written Statement from an Appropriate Licensed
Professional between March 4 and March 11, 2020. Plaintiff filed an Answer to Defendants'
Notices on April 17, 2020. On May 12 and May 13, 2020, the Centre County Prothonotary's
Office entered Judgment of Non Pros in favor of all of the Defendants other than the University
Defendants.
On June 1, 2020, Plaintiff filed a Petition for Relief of Judgment of Non Pros requesting
the Court strike the judgments and restore Plaintiff's Complaint in its entirety. Between June 12
and June 22, 2020, each of the Defendants filed a Response seeking to uphold their Judgement of
Non Pros. A hearing was held on June 25, 2020. On July 15, 2020, the Cami entered an Opinion
and Order denying Plaintiff's Petition for Relief, sustaining the University Defendants'
Preliminary Objections, and dismissing Plaintiff's medical malpractice claims with prejudice.
The Court dismissed Plaintiffs Complaint and allowed Plaintiff to file an Amended Complaint
within twenty (20) days against only the University Defendants and only raising potential claims
3
of intentional or negligent infliction of emotional distress and ordinary negligence. Plaintiff filed
a Petition for Reconsideration on July 24, 2020, which was denied by the Court on July 30, 2020.
Plaintiff filed an Amended Complaint on August 3, 2020, and a Supplemental Amended
Complaint on August 12, 2020, both of which included claims against all of the Defendants from
Plaintiffs original Complaint. Between August 7, 2020 and August 14, 2020, counsel for a11 of
the Defendants except for the University Defendants sent letters to Plaintiff requesting that he
remove them from his Amended Complaint or they would seek to hold Plaintiff in contempt of
court. Plaintiff failed to respond and Defendant Lynch, Defendant Mount Nittany Health,
Defendants Mutnan, Messina, Carr, Bream, and Sohns, and Defendants Seidenberg, Reid, Penn
State Health, The Milton S. Hershey Medical Center, and Penn State Ilershey Medical Group
( collectively, "Petitioners") each filed a Petition to II old Plaintiff in Contempt of Court.
On August 24, 2020, Plaintiff filed Notices of Intention to Enter Default Judgments
against each of the Defendants because they allegedly failed to enter a written appearance and
file in writing with the Court their defenses or objections to Plaintiff's Amended Complaint.
University Defendants filed Preliminary Objections and a Brief in Support on August 31, 2020.
Plaintiff filed a Praecipe for Default Judgment on September 2, 2020 against University
Defendants for their alleged failure to enter a written appearance and file their defenses or
objections. Plaintiff also filed a Praecipe for Determination on September 3, 2020 alleging
University Defendants' Preliminary Objections were not filed in accordance with Pennsylvania
law for failing to serve Plaintiff a copy of their Preliminary Objections. Plaintiff filed a Response
in Opposition to University Defendant's Preliminary Objections on September 16, 2020, and an
Answer to Order to Show Cause on October 9, 2020. Plaintiff also filed a Statement of Support
on October 19, 2020. A hearing was held on October 12, 2020.
4
Discussion
I. Petitions for Contempt
In order for a party to be held in contempt, "the moving party must prove that: (1) the
contemnor had notice of the specific order or decree that he disobeyed; (2) the act constituting
the violation was volitional; and (3) the contemnor acted with wrongful intent." Gunther v.
Bolus, 2004 PA Super 8, 853 A.2d 1014, 1017 (citing Marian Shop, Inc. v. Baird, 448
Pa.Super. 52, 670 A.2d 671,673 (1996)). Petitioners' Petitions for Contempt are requesting that
the Court hold Plaintiff in civil contempt for failing to comply with the Court's Orders of July
15, 2020 and July 30, 2020."The purpose of civil contempt is to compel performance of lawful
orders, and in some instances, to compensate the complainant for the loss sustained, Gunther,
853 A.2d at 1018 (citing Cecil Township v. Klements, 821 A.2d 670, 675 (Pa.Commw.2003)).
Here, Petitioners are seeking to compel performance and receive compensation for the losses
Petitioners sustained in legal fees and expenses they incurred in pursuing a contempt order and
their removal from the instant litigation.
"[I]n civil contempt proceedings the burden is on the complaining party to prove
noncompliance by a preponderance of the evidence..." Barrett v. Barrett, 470 Pa. 253,263,368
A.2d 616, 621. Petitioners must show by a preponderance of the evidence that Plaintiff had
notice of the Court's July 15and July 30" Orders, purposely chose to violate the Orders, and
acted with wrongful intent in violating the Orders. It is clear from the record that Plaintiff had
actual notice of the July 15 Order as he filed a Petition for Reconsideration of the Order on July
24, 2020. Plaintiff also had actual notice of the July 30" Order as Plaintiff admits in his
Supplemental Amended Complaint and in his Answer to Order to Show Cause that the
Supplemental Amended Complaint was submitted in response to the July 30" Order in an
5
attempt to comply with that Order. As such, Plaintiff possessed actual knowledge of both of the
Orders at issue here.
Petitioners allege Plaintiff declined to comply with the Court's July 15" and July 30
Orders when Plaintiff filed an Amended Complaint on August 3, 2020 naming Petitioners as
defendants and asserting claims against Petitioners. Petitioners argue Plaintiff further refused to
comply with the Court's Orders by filing a Supplemental Amended Complaint on August 12,
2020 with claims against Petitioners. Petitioners claim Plaintiff filed his Supplemental Amended
Complaint even after receiving letters from counsel for Petitioners requesting Plaintiff remove
Petitioners as defendants in compliance with the Court's Orders and informing Plaintiff that
Petitioners would petition the Court to have Plaintiff held in contempt if Petitioners were not
removed.
The Court's July 15, 2020 Order dismissed Plaintiff's Complaint and stated Plaintiff had
twenty (20) days to file an Amended Complaint against only the University Defendants and only
raising potential claims of intentional or negligent infliction of emotional distress and ordinary
negligence. The rest of the claims in Plaintiff s Complaint, including medical malpractice claims,
were dismissed with prejudice. The University Defendants were explicitly identified in the Order
as The Pennsylvania State University, Sandy Barbour, Charmelle Green, and James Franklin.
The Court's July 30, 2020 Order denied Plaintiff s Petition for Reconsideration and again stated
Plaintiff could file an Amended Complaint raising claims of intentional or negligent infliction of
emotional distress and ordinary negligence against only the University Defendants. The Court
believes these were clear and concise orders stating Plaintiff could only raise particular claims
against particular defendants, and instructing Plaintiff that he was permitted to bring claims
against only the University Defendants, and not Petitioners.
6
In Plaintiffs Answer to Order to Show Cause, Plaintiff claims the Supplemental
Amended Complaint complies with the Court's Orders. Plaintiff states he did not receive the
Court's July 30, 2020 Order until August 6, 2020 so he filed the Amended Complaint before
receiving the July 30 Order and filed the Supplemental Amended Complaint in response.
Plaintiff argues the Supplemental Amended Complaint complies with the Court's Orders because
it is a "Civil Action of Negligence and Vicarious Liability" against The Pennsylvania State
University and The Pennsylvania State University -Known and Unknown Defendants, which
Plaintiff identifies as the "University Defendants." Plaintiff states it was his understanding that
"Known Defendants" must be identified by name in a complaint and Plaintiff named all of the
Petitioners because at all relevant times Petitioners held multiple positions which made them
agents, servants, employees, subsidiaries, affiliates, and/or independent contractors to/of the
Pennsylvania State University. Plaintiff asserts the Court's Orders did not instruct Plaintiff to
remove the names of specific defendants or the names of individuals alleged to have been
negligent, but only ordered that Plaintiff could not pursue medical malpractice claims.
Plaintiff has attempted to expand the definition of the "University Defendants" identified
by the Court in its Orders to include all of the named defendants from Plaintiffs original
complaint. Plaintiff cannot bring claims against Petitioners simply by calling them "University
Defendants" based on their connections to the Pennsylvania State University. The Court
explicitly stated Plaintiff could bring specific claims against only the University Defendants and
expressly identified the University Defendants as The Pennsylvania State University, Sandy
Barbour, Charmelle Green, and James Franklin. The Court's Orders were clear and
unambiguous. Plaintiff's interpretation does not conform to the plain meaning of the Orders. The
Amended Complaint and the Supplemental Amended Complaint are both in violation of the
7
Court's Orders. Therefore, the second element required for a finding of contempt is satisfied as
Plaintiff voluntarily filed the Amended Complaint and the Supplemental Amended Complaint in
violation of the Court's Orders.
For Plaintiff to be held in contempt, Petitioners must show Plaintiff acted with wrongful
intent. Petitioners did not offer any direct evidence that Plaintiff acted with wrongful intent,
however, a party's wrongful intent can often be "inferred from circumstantial evidence." Waggle
v. Woodland Hills Ass'n, Inc., 213 A,34 397, 403 (Pa.CmwIth. 2019). Plaintiff's wrongful intent
"can be inferred where it is clear from the language of the court order that the conduct in
question violates the court order and the evidence shows that the contemnor knowingly failed to
comply." Id. at 404. "[W]hen making a determination regarding whether a defendant acted with
wrongful intent, the court should use common sense and consider context, and wrongful intent
can be imputed to a defendant by virtue of the substantial certainty that his actions will violate
the court order." Commonwealth • Reese, 2017 PA Super 47, 156 A.3d 1250, 1258
Here, Plaintiffs wrongful intent can be inferred based on the circumstances of Plaintiffs
actions. It is clear from the language of the Court's Orders that Plaintiffs filings would violate
the Court's Order. There was a substantial certainty that Plaintiffs actions in filing claims
against the Petitioners would violate the Court's Orders. Not only did the Court's Orders
expressly state Plaintiff could only file claims against University Defendants, but Plaintiff also
received multiple letters from Petitioners informing him his Amended Complaint was in
violation of the Court's July 15, 2020 Order. Even after the Court's Orders of July 15, 2020 and
July 30, 2020 and the letters from Petitioners, Plaintiff still filed a Supplemental Amended
Complaint stating claims against Petitioners. Based on the evidence, Plaintiff knowingly failed to
comply with the Court's Orders and acted with wrongful intent.
8
Plaintiff had actual notice of the Court's Orders he disobeyed, Plaintiffs acts constituting
the violations were volitional, and Plaintiff acted with wrongful intent. Therefore, the Court
concludes that Plaintiffs conduct in filing the Amended Complaint and the Supplemental
Amended Complaint was in violation of the clear mandates of the aforementioned Orders.
Accordingly, Petitioner's Petitions to Hold Plaintiff in Contempt of Court are GRANTED.
However, the Court will not award sanctions and attorney's fees to Petitioners, but will
DISMISS Plaintiffs claims against Petitioners in his Amended Complaint and Supplemental
Amended Complaint.
II. Plaintiff's Praecipe for Default Judgment and Praecipe for Determination
Plaintiff filed a Praecipe for Default Judgment on September 2, 2020 and a Praecipe for
Determination on September 3, 2020. In Plaintiffs Praecipe for Default Judgment, Plaintiff
requested the Court enter judgment in favor of Plaintiff and against the University Defendants
for failure to enter a written appearance and file in writing with the Court their defenses or
objections to the claims set forth in Plaintiffs Supplemental Amended Complaint. In Plaintiff's
Praecipe for Determination, Plaintiff requested the Court dismiss University Defendants'
Preliminary Objections and Brief in Support and enter default judgment in Plaintiffs favor
because University Defendants' Preliminary Objections were not filed or served in accordance
with Pennsylvania law. Plaintiff claims the Preliminary Objections were not properly served on
Plaintiff and University Defendants failed to state the date of service and certify the date and
manner of service. Plaintiff alleges University Defendants failed to file within the required time
and did not provide Plaintiff with a notice to defend.
University Defendants filed their Preliminary Objections with the Court on August 31,
2020, within the time required for filing. In their Preliminary Objections, University Defendants
9
included a Notice to Plead and a Certificate of Service stating the Preliminary Objections had
been served upon Plaintiff via Electronic Mail and first Class U.S. Mail. University Defendants'
filing of their Preliminary Objections and Brief in Support did not violate the Pennsylvania Rules
of Civil Procedure or any other Pennsylvania law. University Defendants' service of process was
proper under Pa.R.C.P. 403 and 404. Plaintiff resides outside of the Commonwealth and likely
had yet to receive a copy of the filings in the mail at the time Plaintiff filed his Praecipe for
Default Judgment and Praecipe for Determination.
Accordingly, Plaintiff's Praecipe for Default Judgment and Praecipe for Determination
are DENIED.
IJJ. The University Defendants' Preliminary Objections
The University Defendants raise preliminary objections seeking to dismiss Plaintiffs
Supplemental Amended Complaint because of improper service of a writ of summons and a
complaint pursuant to Pa.R.C.P. 1028(a)(1); failure to conform to law or rule of court pursuant to
Pa.R.C.P. 1028(a)(2); and legal insufficiency of a pleading ( demurrer) pursuant to Pa.R.C.P.
1028(a)(49).
A. Improper Service
The Pennsylvania Rules of Civil Procedure require services of process on a corporation
or similar entity be made by a sheriff, by handing a copy of the writ to an officer, person-in-
charge, or authorized agent. See Pa.R.C.P. 424. The Pennsylvania Rules of Civil Procedure also
require service of process on an individual be made by a sheriff, by handing a copy to the
individual, an adult residing at the individual's residence, or to an agent or person-in-charge of
the individual's usual place of business. See Pa.R.C.P. 402. In this case, Plaintiff has served the
Writ of Summons on the University Defendants via certified mail and the Supplemental
10
Amended Complaint via email. Plaintiff has failed to effectuate proper service of process on the
University Defendants. Accordingly, the University Defendants' Preliminary Objection based on
improper service pursuant to Pa.R.C.P. 1028(a)(l) is SUSTAINED.
B. Failure to Conform to Law or Rule of Court
Pa.R.C.P. 1028(a)(2) provides for preliminary objections when a pleading fails to
confonn to law or rule of court. University Defendants argue most of the claims raised in
Plaintiff's Supplemental Amended Complaint are impermissible claims and claims already
dismissed with prejudice. University Defendants assert these claims violate the Court's July 15,
2020 Order, which dismissed a number of Plaintiffs claims and stated Plaintiff could only raise
claims for intentional or negligent infliction of emotional distress and ordinary negligence in any
amended complaint. University Defendants allege eighteen (18) of Plaintiffs twenty-one (21)
claims raised in the Supplemental Amended Complaint are precluded by the Court's Order.
Plaintiff also challenges these claims as legally insufficient pursuant to Pa.R.C.P. 1028(a)(4).
University Defendants assert Plaintiff's claims of Violation of Pennsylvania Law of
Negligent Performance (Count II), Negligence Ostensible Agency/Restatement (Second) Tort
(Count IV), Negligence - Informed Consent (Count V), Negligence -- Misrepresentation (Count
VI), Negligence Hospital-Acquired Infection (Count VII), Misfeasance/Malfeasance (Count
VIII), Loss of Chance (Count IX), Negligence - Entity/Physician-Patient Relationship (Count X),
Negligence --Supervision (Count XI), Negligence- Failure to Pay Medical Expenses (Count
XII), Fraud (Count XV), Negligence- Professional (Count XVI), and Negligence Per Se (Count
XXI) are all attempts by Plaintiff to couch his medical malpractice claims as some type of
negligence claim. In addition to the aforementioned claims, University Defendants also maintain
that Plaintiffs claims of Rreach of Duty/Fiduciary Duty (Count I), Rattery (Count XVII), False
11
Imprisonment (Count XVIII), Concerted Tortious Conduet (Count XIX), and Violation of
Pennsylvania Ant-Hazing Law (Count XX) are barred by the Court's Order. This Court agrees.
Counts 11, IV, V, VI, VII, VIII, IX, X, XI, XII, XV, XVI, and XXI are all based on
Plaintiff's medical care and treatment. Each claim mentions and accuses one of the dismissed
parties of negligence in Plaintiffs medical treatment. Claims of negligent medical care and
treatment are medical malpractice claims, All of Plaintiffs medical malpractice claims were
dismissed in the Court's July 15, 2020 Order. Plaintiff cannot now assert medical malpractice
claims by simply referring to them as negligence claims. Many of these claims are variations of
claims already dismissed by the Court or are not standalone causes of actions recognized in the
Commonwealth.
Violation of Pennsylvania Law of Negligent Performance (Count II) avers multiple
alleged violations of Restatement (Second) of Torts based on the conduct of Defendant Sohns,
but does not specify how any actions by the University Defendants violated any section of the
Restatement. Violations of the Restatement can be alleged in an attempt to establish negligence
generally, but there is no separate cause of action for violation of Pennsylvania law of negligent
performance. Negligence - Ostensible Agency/Restatement (Second) Tort (Count IV) is also
based on medical care and treatment Plaintiff received from the dismissed defendants. Count IV
states University Defendants had a duty to exercise reasonable care to select a contractor and a
duty to ensure the safe performance of medical related services, but does not state how
University Defendants breached these duties. Count IV is essentially alleging vicarious liability
against University Defendants for Plaintiff's medical treatment by dismissed defendants.
Negligence- Supervision (Count XI) asserts University Defendants failed to provide proper
supervision while Plaintiff was being treated, failed to properly instruct and warn of possible
12
risks, and, therefore, University Defendants are vicariously liable for negligent acts by dismissed
defendants during Plaintiffs treatment. Counts II, IV, and XI are not recognized causes of
action, but may go towards establishing elements of Plaintiff's ordinary negligence claim (Count
Ill).
Negligence Informed Consent (Count V), Negligence Hospital-Acquired Infection
(Count VII), and Negligence - Entity/Physician-Patient Relationship (Count X) are plainly claims
of medical malpractice being restated as negligence claims. Loss of Chance (Count IX) is
typically applied in medical malpractice cases. Here, the Loss of Chance claim alleges Plaintiff
would have had a substantial opportunity of avoiding additional injury and treatment if
University Defendants had correctly diagnosed and treated the infection. Plaintiffs diagnosis is
an issue directly related to Plaintiff's medical treatment. University Defendants were not
involved in the diagnosis or treatment of Plaintiff. Plaintiff cannot bring medical malpractice
claims against University Defendants.
Negligence -Misrepresentation (Count VI) and Fraud (Count XV) allege University
Defendants misrepresented, concealed, and interfered with medical information provided to
Plaintiff. Both of these claims are medical malpractice claims dealing with Plaintiffs reliance on
medical information received from dismissed defendants and are similar to Plaintiffs previously
dismissed civil conspiracy claim. Negligence-Professional (Count XVI) is the same claim as
the professional malpractice and professional misconduct claims the Court already dismissed.
Plaintiff's Negligence Per Se claim (Count XXI) fails to identify which statute University
Defendants allegedly violated and simply states their actions were inherently negligent.
Misfeasance/Malfeasance (Count VII) is not :recognized in Pennsylvania as a cause of action. See
Greco • Senchak, CIV.A. 3:12-2576, 2013 WL 4520847, at 6 (M.D. Pa. Aug. 26, 2013),
13
amended on reconsideration in part, CIV.A. 3:12-2576, 2013 WL 5755214 (M.D. Pa. Oct. 23,
2013) (stating "Pennsylvania law does not recognize such a [Misfeasance/Malfeasance] claim, it
appears that plaintiff is merely using these words as synonyms for negligence...")
Concerted Tortious Conduct (Count XIX) is essentially a civil conspiracy claim which
was previously dismissed with prejudice by the Court's Order. There is no factual basis to
support Counts l, XVll, XVIII, and XX. Breach of Duty would go toward establishing
negligence, but is not its own cause of action. Breach of Fiduciary Duty has not been established
by Plaintiff. Plaintiff also failed to establish causes of action based on battery, false
imprisonment, and violation of Pennsylvania's Anti-Hazing Law, 18 Pa.C.S.A. § 2801, et seq.
These claims are also outside of the claims Plaintiff was specifically told he could bring in an
amended complaint in the Court's July 15, 2020 Order.
Plaintiff did not aver facts establishing there was an offensive contact by any of the
University Defendants which would constitute battery. See Restatement (Second) of Torts§ 18
(1965). Plaintiff also failed to aver facts establishing false imprisonment as University
Defendants did not confine Plaintiff within boundaries fixed by the University Defendants
simply because they did not provide Plaintiff with transportation to a medical appointment. See
Restatement (Second) of Torts § 35 (1965). University Defendants told Plaintiff that he could see
any medical professional he chose, but he would have to transport himself to those appointments.
University Defendants offered to reimburse any transportation costs. There is also insufficient
facts alleged to establish a violation of Pennsylvania's anti-hazing law as University Defendants
did not cause, coerce or force Plaintiff to violate federal or state criminal law, to consume
anything, or to endure brutality of a physical, mental, or sexual nature for the purpose of
initiating or continuing Plaintiffs membership in an organization. See 18 Pa.C.S.A. $ 2802.
14
All of the aforementioned claims violate the Court's July 15, 2020 Order which stated
Plaintiff was only permitted to bring claims based on intentional and negligent infliction of
emotional distress as well as ordinary negligence. Other than Plaintiffs claims for negligence,
intentional infliction of emotional distress, and negligent infliction of emotional distress, all of
the claims contained in the Supplemental Amended Complaint are claims previously dismissed
with prejudice by the Court. Plaintiff s Supplemental Amended Complaint fails to conform to the
Court's Order. Accordingly, the University Defendants' Preliminary Objection based on failure
to conform to law or rule of court pursuant to Pa.R.C.P. 1028(a)(2) is SUSTAINED.
C. Legal Insufficiency (Demurrer)
Pa.R.C.P. 1028(a)(4) provides for preliminary objections when a pleading is legally
insufficient. A demurrer tests whether, based on the facts averred, recovery is possible under the
law. Bilt-Rite Contractors, Inc, , The Architectural Studio, 581 Pa. 454, 866 A.2d 270, 274
(2005). In considering preliminary objections based on demurrer, "all material facts set forth in
the challenged pleadings are admitted as true, as well as all inferences reasonably deducible
therefrom." Albert • Erie Ins. Exchange, 2013 PA Super 59, 65 A.3d 923, 930-31 (citing
Feingold • Hendrak, 2011 PA Super 34, 15 A.3d 937, 941). A court is not required to accept
conclusions oflaw, unwarranted inferences, allegations, or expressions of opinion set forth in the
pleadings when ruling on preliminary objections. Bayada Nurses, Inc. v. Com., Dept. of Labor
and Industry, 607 Pa. 527, 8 A.3d 866 (2010). A court must view all evidence and facts in a
light most favorable to the non-moving party. Nutrition Mgmt. Servs. Co. v. Hinchcliff, 2007
PA Super 167, 926 A.2d 531, 535. If there is any doubt as to whether a demurrer is appropriate,
the doubt must be resolved in favor of overruling the demurrer. Theodore v. Delaware Valley
School Dist., 575 Pa. 321, 836 A.24 76 (2003).
15
University Defendants argue Plaintiffs claims of negligence, negligent infliction of
emotional distress and intentional infliction of emotional distress fail as a matter of law.
University Defendants allege Plaintiff's claims are either insufficiently pied or inapplicable to
the University Defendants. University Defendants assert Plaintiff s claim for ordinary negligence
fails because it is nothing more than a medical malpractice claim, Plaintiff cannot maintain a
vicarious liability action against Penn State, and Plaintiff cannot establish the necessary elements
for any negligence claim. University Defendants allege Plaintiff's inability to establish a
negligence claim means Plaintiff cannot establish a claim for negligent infliction of emotional
distress. Finally, University Defendants claim Plaintiff's cause of action for intentional infliction
of emotional distress also fails because Plaintiff did not allege sufficiently outrageous and
extreme conduct which would allow him to recover.
1. Negligence
To establish a negligence claim, Plaintiff must prove there is a "breach of a legally
recognized duty or obligation that is causally connected to the damages suffered by the
complainant." Bilt-Rite Contractors, Inc., 866 A.2d at 280 (quoting Sharpe • St. Luke's
Hospital, 573 Pa. 90, 821 A.2d 1215, 1218 (2003)); see Wittrien • Burkholder, 2009 PA Super
23, 965 A.2 1229, 1232 (ln any negligence case, the plaintiff must prove duty, breach,
causation and damages."). Plaintiff asserts University Defendants assumed a duty to Plaintiff
when they entered into an agreement for him to join the Penn State football program on an
athletic scholarship. Plaintiff argues University Defendants' affirmative conduct made them
responsible for the health and safety of Plaintiff and established a fiduciary duty owed to
Plaintiff. Plaintiff alleges University Defendants had a duty to care for and protect Plaintiff as
well as provide a safe environment and implement precautions to reduce risks of hmm. Plaintiff
16
contends University Defendants breached their duty owed to Plaintiff by recklessly ignoring their
duty and this caused Plaintiffs medical and financial damages.
The Court finds that Plaintiffs negligence claim is nothing more than a medical
malpractice claim against University Defendants. All of Plaintiffs allegations against University
Defendants concern alleged damages Plaintiff suffered in connection to his medical treatment
and care, Count III specifically alleges University Defendants' negligence includes the failure to
examine properly and diagnose his medical condition, failure to provide, recommend, and refer
Plaintiff for appropriate diagnostic study, care, consultation, and treatment, failure to properly
recommend appropriate follow-up with patient, and failure to properly monitor Plaintiffs
progress. The alleged damages include the delay in the diagnosis and treatment of the infection
in Plaintiff's knee which rendered him no longer able to participate in football. As the Court
stated in its July 15, 2020 Opinion and Order, University Defendants are not medical providers
and cannot be held liable for medical malpractice. Plaintiff cannot maintain his ordinary
negligence claim against University Defendants since it is, in fact, a medical malpractice claim.
Plaintiff claims the Pennsylvania State University is vicariously liable for negligence
because its agents, servants, employees, subsidiaries, affiliates, and/or independent contractors
were negligent in providing medical treatment. Plaintiff asserts the Pennsylvania State University
does business as Penn State Health, the Milton S. Hershey Medical Center, and Penn State
Hershey Medical Group as well as affiliates with Mount Nittany Health. However, all of
Plaintiff's medical malpractice claims against those other entities and agents were dismissed for
failure to file a proper certificate of merit so the Penn State University cannot be held vicariously
liable for their alleged malpractice.
17
"[A]bsent any showing of an affirmative act, or failure to act when required to do so, by
the principal, termination of the claim against the agent extinguishes the derivative claim against
the principal." Mamalis v. Atlas Van Lines, Inc., 522 Pa. 214, 221, 560 A.2 1380, 1383 (1989).
"A claim of vicarious liability is inseparable from the claim against the agent since any cause of
action is based on the acts of only one tortfeasor." Id. Here, Plaintiff failed to aver facts showing
an affirmative act or failure to act on the part of the University Defendants which would support
his negligence claim. The termination of the claims against the other defendants in this case
extinguishes the vicarious liability claim against University Defendants.
Even if Plaintiffs claims were actually negligence claims and not medical malpractice
claims, Plaintiff has failed to aver facts which could establish University Defendants are liable
under a negligence claim directly. Plaintiff argues there is a "special relationship" between
University Defendants and Plaintiff due to the fact that Plaintiff is a student-athlete recruited by
the University and given a scholarship to play football. Plaintiff claims the University
Defendants have an in loco parentis duty. University Defendants assert there is no "special
relationship" or in loco parentis duty imposed on them, and, therefore, they cannot be held liable
under a negligence claim.
·The phrase 'in loco parentis' refers to a person who puts oneself [sic] in the situation of
a lawful parent by assuming the obligations incident to the parental relationship without going
through the formality of a legal adoption." Peters v. Costello, 586 Pa. 102, 110-11, 891 A.2d
705, 710 (2005). In the past, Pennsylvania courts were willing to impose an in loco parentis duty
on colleges and universities; however, "in modem times, it would be inappropriate to impose an
in loco parentis duty upon a university." Alummi Ass'n • Sullivan, 524 Pa. 356, 364, 572 A.2d
1209, 1213 (1990). "[T]he modern American college is not an insurer of the safety of its student.
18
Whatever may have been its responsibility in an earlier era, the authoritarian role of today's
college administrations has been notably diluted in recent decades." Bradshaw • Rawlings, 612
F.2d 135, 138 (3d Cir. 1979). "[T]he principle of in loco parentis appears no longer to apply to
college students." Am. Future Sys., Inc. v. Pennsylvania State Univ., 553 F.Supp. 1268, 1282
(M.D. Pa. 1982). Although there is no in loco parentis duty, that does not mean there is no duty
on universities whatsoever, especially in cases involving student-athletes recruited by the
university to play intercollegiate sports.
In Kleinknecht • Gettysburg College, the Third Circuit found a "College owed [plaintiff]
a duty of care in his capacity as an intercollegiate athlete engaged in school-sponsored
intercollegiate athletic activity for which he had been recruited." Kleinknecht • Gettysburg
Colt,, 989 F,2d 1360, 1369 (3d Cir. 1993). The court stated "a special relationship existed
between the College and [plaintiffj that was sufficient to impose a duty of reasonable care on the
College." Id. at 1367. "[T]he College had a duty to provide prompt and adequate emergency
medical services to [plaintiff], one of its intercollegiate athletes, while he was engaged in a
school-sponsored athletic activity for which he had been recruited. Id, at 1371. The Pennsylvania
Supreme Court has also held that universities have a "duty of care to its intercollegiate student
athletes ... to have qualified medical personnel available at [intercollegiate athletic events], and
to provide adequate treatment in the event that an intercollegiate student athlete suffered a
medical emergency." Feleccia • Lackawanna Coll, 215 A.3d 3, 10 (Pa. 2019).
University Defendants had a duty to exercise reasonable care to protect Plaintiff against
unreasonable risk of harm. This included a duty "to provide duly licensed athletic trainers for the
purpose of rendering treatment to its student athletes participating in athletic events." Id. at 15.
Although the Court finds University Defendants owed a duty to Plaintiff by virtue of his status as
19
a student-athlete who was recruited by Penn State University and participated in intercollegiate
athletic events on behalf of Penn State University, Plaintiffs negligence still fails to survive
University Defendants' Preliminary Objections.
Plaintiff has failed to aver facts evidencing a breach of the duty owed by University
Defendants. In Kleinknecht, the college failed to have prompt and adequate medical services
available at a school-sponsored athletic event when plaintiff suffered a fatal heart attack at
lacrosse practice with no athletic trainers present or means of quickly obtaining emergency
services. See Kleinknecht, 989 F.2d 1360. In Fe!eccia, the college failed to have qualified
medical personnel ( certified or licensed athletic trainers) available to provide medical treatment
at a football practice. See Feleccia, 215 A.3d 3. In both cases, the colleges breached their duty by
failing to ensure qualified medical personnel was available to provide medical treatment during
athletic events,
Here, University Defendants exercised reasonable care in ensuring Plaintiff received
proper medical treatment. Plaintiff has not alleged University Defendants failed to provide
prompt and adequate medical services at athletic events or failed to have qualified medical
personnel available to provide medical treatment. In fact, the medical history averred by Plaintiff
shows University Defendants had multiple qualified and licensed medical professionals and
athletic trainers tend to Plaintiffs medical needs. University Defendants did not fail to have
qualified medical personnel available, deny Plaintiff medical care or interfere with his treatment.
University Defendants referred Plaintiff to qualified physicians, athletic trainers, and medical
providers.
There is no special relationship in this case which would impose a duty greater than
reasonable care. University Defendants did not breach their duty to ensure qualified medical
20
personnel were available to render medical assistance and Plaintiff failed to aver facts showing
University Defendants failed to exercise reasonable care. There were very few factual allegations
pertaining to University Defendants as Sandy Barbour, Channelle Green, and James Franklin are
hardly mentioned in Plaintiffs Supplemental Amended Complaint. Instead, the great majority of
Plaintiffs pleadings focus solely on the actions of the defendants already dismissed from this
action. Plaintiffs pleadings fail to establish a breach of the duty University Defendants owed to
Plaintiff, and, therefore, Plaintiffs negligence claim against University Defendants is insufficient
as a matter of law.
2. Negligent Infliction of Emotional Distress
University Defendants' Preliminary Objections argue Plaintiffs negligent infliction of
emotional distress ("NIED") claims are insufficient as a matter of law and must be dismissed.
Pennsylvania courts have limited a cause of action based on NIED to four theories of recovery.
In order to recover, a plaintiff must prove one of four theories: (1) situations where the defendant
owed the plaintiff a pre-existing contractual or fiduciary duty (the special relationship rule); (2)
the plaintiff suffered a physical impact (the impact rule); (3) the plaintiff was in a "zone of
danger" and reasonably experienced a fear of immediate physical injury (the zone of danger
rule); or ( 4) the plaintiff observed a tortious injury to a close relative (the bystander rule). See
Doe v. Philadelphia Cmty. Health Alternatives AIDS Task Force, 2000 PA Super 6, 745 A.2d
25, 27, aff'd, 564 Pa. 264, 767 A.2d 548 (2001). In this case, Plaintiff has failed to establish a
right to recovery under any of these theories of liability.
"A lbsent a finding of negligence, [a] negligent: infliction of emotional distress claim
cannot survive." Brezenski • World Truck Transfer, Inc., 755 A.2d 36, 45 (Pa. Super. Ct
2000) (citing J,E.J. v, Tri-Cly. Big Bros./Big Sisters, Inc., 692 A.2 582, 586 (Pa. Super. Ct.
21
1997)). Given that Plaintiff has failed to establish a claim of negligence, Plaintiffs negligent
infliction of emotional distress also fails. Plaintiff cannot recover under the bystander theory as
he did not observe a tortious injury to a close relative. Plaintiff cannot recover under the zone of
danger theory as he did not aver facts alleging he experienced a fear of immediate physical
impact, rather Plaintiff alleges a special relationship existed between the parties and he suffered a
physical impact due to University Defendants' negligence.
Plaintiff cannot recover under the special relationship theory because it requires him to
establish University Defendants acted negligently by breaching a duty owed to Plaintiff. Plaintiff
would also have to show negligence to recover under the impact rule. Recovery is available
under the impact rule only "where a plaintiff sustains bodily injuries... accompanied by fright or
mental suffering directly traceable to the peril in which the defendant's negligence placed the
plaintiff..." Brown • Philadelphia Coll. of Osteopathic Med., 449 Pa.Super. 667, 679, 674 A.2d
1130, 1135--36 (1996). Plaintiff has failed to establish University Defendants' negligence as he
cannot show that University Defendants breached a duty they owed to Plaintiff. As a result of
Plaintiffs failure to establish a negligence claim against University Defendants, Plaintiffs claim
for negligent infliction of emotional distress is insufficient as a matter of law.
3. Intentional Infliction of Emotional Distress
Count XIV of Plaintiff's Supplemental Amended Complaint is based on a cause of action
of intentional infliction of emotional distress ("IIED"). The four elements Plaintiff must show to
establish this claim are: "() the conduct must be extreme and outrageous; (2) the conduct must
be intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be
severe." Madreperla , Williard Co., 606 F.Supp. 874, 879 80 (E.D. Pa. 1985) (citing Chuy •
Philadelphia Eagles Football Cub, 595 F.2d 1265, 1273 (3d Cir.1979)). For an IIED claim to
22
survive a preliminary objection, a "court must determine, as a matter of law, whether there is
sufficient evidence for reasonable persons to find extreme or outrageous conduct." Id. The
conduct must be "so outrageous in character and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community." Rinehimer v. Luzerne Cty. Cmty. Coll., 372 Pa.Super. 480, 494-95, 539 A.2d
1298, 1305 (1988); see Restatement (Second) of Torts $ 46, comment d (1965).
Plaintiff claims University Defendants' extreme and outrageous conduct was that they
knew or should have known oftortious conduct yet allowed it to happen or did nothing about it
in reckless disregard of Plaintiff's health and rights. During the hearing on October 12, 2020,
Plaintiff pointed to the failure to correctly diagnose the infection in his knee after the CT scan in
September 2018 as extreme and outrageous conduct. University Defendants argue Plaintiff has
barely alleged any conduct by the University Defendants, let alone conduct which could rise to
the level of outrageous or extreme conduct. University Defendants assert Plaintiff failed to allege
how any actions by the University Defendants caused his injuries. University Defendants claim
all the charged actions which caused his injuries relate to his medical care and are wholly
unrelated to University Defendants.
While Pennsylvania recognizes the cause of action for IIED, courts "have allowed
recovery in only very egregious cases" Hoy • Angelone, 456 Pa.Super. 596, 610, 691 A.2d 476,
482 (1997), as modified, 456 Pa.Super. 615, 691 A.2d 485 (1997), and affd, 554 Pa. 134, 720
A.2d 745 (1998), and aft'd, 554 Pa. 134, 720 A.24 745 (1998). Based on the facts averred by
Plaintiff in this case, University Defendants' conduct does not rise to the level necessary to allow
for recovery under a claim ofIIED. Defendant Barbour was only brought up in Plaintiff's factual
allegations once when a coach mentioned her name. The only factual allegations against
23
Defendant Green relate to her denial of the University transporting Plaintiff to a physical therapy
session, but offering to reimburse the costs of an Uber if Plaintiffs parents were unable to
transport him. There were also very few factual allegations against Defendant Franklin and those
centered around the University's offer of a scholarship, emails from Plaintiffs parents to
Defendant Franklin, and Plaintiff's withdrawal from and return to the football team. None of
these allegations aver facts establishing University Defendants' conduct was extreme or
outrageous. No factual allegations show University Defendants were involved in medical
diagnoses, medical decisions, or medical treatment.
Plaintiff has failed to allege sufficient facts to show University Defendants' conduct was
extreme and outrageous. Plaintiff cannot satisfy all of the elements necessary to establish a claim
of intentional infliction of emotional distress, and, therefore, Plaintiffs intentional infliction of
emotional distress claim is legally insufficient.
Accordingly, University Defendants' Preliminary Objections to Plaintiffs claims of
negligence, negligent infliction of emotional distress, and intentional infliction of emotional
distress pursuant to Pa.R.C.P. 1028(a)(4) are SUSTAINED.
ORDER
AND NOW, this "day of December, 2020, the Court ORDERS as follows:
1. Defendant Scott A. Lynch, Defendants Andy Mutnan, Renee Messina, Brendan Carr,
Tim Bream, and Wes Sohns, Defendants Peter H. Seidenberg, M.D., John S. Reid,
M.D., Penn State Health, The Milton S. Hershey Medical Center, and Penn State
Hershey Medical Group, and Defendant Mount Nittany Health's ("Pettoners")
Petitions to Hold Plaintiff in Contempt of Court are GRANTED and all of Plaintiffs
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claims against Petitioners in his Amended Complaint and Supplemental Amended
Complaint are DISMISSED with prejudice.
2. Plaintiffs Praecipe for Default Judgment and Praecipe for Determination are
DENIED.
3. Defendants The Penn State University, Sandy Barbour, Charmelle Green, and James
Franklin's ("University Defendants") Preliminary Objections to Plaintiff's
Supplemental Amended Complaint pursuant to Pa.R.C.P 1028(a)(l ), 1028(a)02), and
1028(a)(4) are SUSTAINED.
4. Counts I through XXI are DISMISSED with prejudice.
5. Plaintiffs Supplemental Amended Complaint is DISMISSED with prejudice.
BY THE COURT:
Pamela A. Ruest, President Judge
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Jordan, E. v. PSU
Combined Opinion