source: Caselaw Access Project

author: MINORA, J.,

license: Public Domain

text:
    Menard v. PennyMac Loan Services, LLC

      Jeffrey W. Nepa, for plaintiffs.

      Edward W. Chang and Michael P. Trainor, for defendants.
    March 26, 2013
   MINORA, J.,

— Before the court is defendants’ motion to appeal from discovery order pursuant to Lackawanna County R. C.P. 4000.1. Defendants appeal Special Trial Master (STM) Burke’s order granting plaintiffs’ motion for protective order. The appeal of the defendant is denied.

FACTUAL AND PROCEDURAL HISTORY

This case arises from an action to quiet title filed by the plaintiffs concerning a property located at 13 Marcaby Lane, Clarks Summit, Lackawanna County, Pennsylvania. Specifically plaintiffs brought their complaint against defendant corporations seeking to quiet title as to defendants’ interest in the lien created by that certain mortgage between plaintiffs, as mortgagors, and eHome Credit Corp., as mortgagees, which was recorded in the Lackawanna Recorder of Deeds Office on August 19, 2004 as Instrument Number 200432076 (the “mortgage”). Plaintiffs base their claims on the assertion that defendants are not the appropriate assignees of the mortgage because there has been a break in the chain of title. Therefore, one of the main determinations is whether defendants are the rightful assignee and/or holder of the lien created by the mortgage.

The current dispute stems from defendants questioning during discovery whether plaintiffs entered into the mortgage dated August 10, 2004. In response plaintiffs objected on the grounds that the discovery request sought a conclusion of law which is an improper subject for interrogatories claiming that the word “enter” is a word of art. The plaintiffs, who currently reside in California, also refused deposition requests on the basis of undue cost and burden. Although the parties discussed the possibility of a video deposition to offset the costs of travel, they could not agree on two preconditions insisted upon by defendants. The first precondition would be for plaintiffs to agree not to object to the authenticity of the electronic copies of the note and mortgage that would be used in their video depositions. The second would be for plaintiffs to agree to pay for the additional cost of a video deposition.

As a result of the parties inability to achieve a compromise on these issues defendants served plaintiffs with their combined first requests for admissions and notice of plaintiffs depositions on June 14,2012. Plaintiffs sought a protective order, and on July 12,2012, the special trial master granted plaintiffs’ motion for protective order thereby prohibiting defendants from taking plaintiffs’ deposition, defendants bring their motion to appeal the master’s order on July 20,2012.

LEGAL ANAYLSIS

Defendant requests that the court overrule the special trial master’s order arguing whether plaintiffs willingly entered into the mortgage and note is relevant as a foundational issue in this case. Defendant also claims that the special trial masters conclusion that the court could take judicial notice of the fact that the mortgage was a valid recorded lien upon presentation of a certified copy of the mortgage is in error. Specifically, defendant asserts that there is no precedent wherein a court has taken judicial notice of the validity of a recorded mortgage.

A mortgage is a conveyance or retention of an interest in real property as security for the performance of an obligation. A mortgage is enforceable whether or not any person is personally liable for that performance. Restatement (Third) of Property (Mortgages) §1.1; Stillwater Lakes Civic Ass’n, Inc. v. Krawitz, 772 A.2d 118, 121 (Pa. Cmwlth. 2001). It is in essence a defeasible deed, requiring the grantee to reconvey the property held as security to the grantor upon satisfaction of the underlying debt or fulfillment of established conditions. In comparison, a note is a written promise by one party to pay money to another party. A mortgage note evidences a loan for which real property has been offered as security. Blacks Law Dictionary (9th ed. 2009).

In the present case the plaintiffs have argued that because it was only Jeffery R. Menard who signed the note, and the plaintiffs hold the property as tenants by the entireties, the Menards do not own separate divisible interests in the entireties property, and the property cannot be reached by’the owners’ individual creditors. Plaintiffs are essentially arguing that, Mrs. Menard, not being a joint obligor on the note, cannot be required to contribute under any equitable doctrine part of the underlying debt which she does not owe. However, because both plaintiffs signed the mortgage, the real property to that mortgage may still be foreclosed upon. But if the proceeds from the foreclosure are insufficient and do not satisfy the note, then Mrs. Menard cannot be liable for the insufficiency, paragraph 13 on page 9 of the mortgage provides:

“...any Borrower who co-signs this Security Instrument but does not execute the Note (a “co-signor”): (a) is co-signing this Security Instrument only to mortgage, grant and convey the co-signer’s interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower can agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without the cosigner’s consent.”

Under these terms, the obvious impact of the assigned mortgage is that the wife’s individually owned assets and j oint assets held by husband and wife, other than the subj ect mortgaged premises, would not be liable for claims under the mortgage. While the wife is not personally liable to the mortgagee, the mortgaged real property is subject to the lien of the mortgage. She cannot be required to pay to the mortgagee, but the mortgagee can foreclose on its real property security to collect its mortgage balance. Therefore, as seen above, defendants are correct that whether or not plaintiffs willingly entered into the mortgage and note is relevant as a foundational issue in this case, however, defendants’ means of discovery are in error.

The court affirms the special trial master’s decision because plaintiffs can show good cause for the issuance of a protective order due to the unreasonable expense or harm which would necessitate such an order. Pa. R.C.P. 4011, expressly prohibits discovery that is sought in bad faith; would cause unreasonable annoyance, embarrassment, oppression, burden or expense to a deponent or any person or party; relates to a matter which is privileged; or that would require the making of an unreasonable investigation by the deponent to any party or witness. Under Pa. R.C.P. 4012, “the court, for good cause shown, may issue a protective order which: prohibits discovery; limits discovery to specified terms and conditions; changes the method of discovery selected by a party,” etc. Under this rule, the moving party has the burden of showing “good cause” demonstrating why the court should enter a protective order. Pa.R.C.P. 4012(a).

Defendant argues that plaintiffs cannot show good cause because defendants have previously informed plaintiffs’ counsel that they are willing to agree to the video depositions, subject to their agreement (i) not to object to the authenticity of the original note and mortgage (which would be in the hands of defendants’ counsel) and (ii) to cover the increased cost of a video deposition. However, defendant’s preconditions are invalid, unreasonable and unenforceable. Under Pennsylvania law, the party utilizing videotape depositions must bear the expenses related to such depositions in the absence of a contrary agreement between the parties. Kojeszewski v. Brigantine Castle and Amusement Corp., 302 Pa. Super. 500, 449 A.2d 28 (1982). Furthermore, defendant cannot require plaintiffs to refrain from objecting to the authenticity of the note and mortgage. Under 204 Pa. Code §91.16, participants to a deposition shall have the right of cross-examination, objection and exception.

After reviewing the pleadings, it is evident that plaintiffs have shown good cause for the granting of a protective order under Pa.R.C.P. 4012 due to the burden of travel for a deposition and the unenforceable preconditions defendant has insisted upon and placed upon any video deposition that may be taken. Accordingly, the special trial master’s July 12, 2012 order is affirmed and the plaintiffs’ motion for protective order is granted.

An appropriate order follows.

ORDER

Accordingly, this 26th day of March, 2013 Special Trial Master Burke’s July 12, 2012 order is affirmed.

All responsive pleadings shall be filed by defendants within twenty (20) days of this order.


author: TERESHKO, J.,

text:
    Cubler v. Trumark Financial Credit Union

      Andrew M. Milz, Theodore E. Lorenz and Cary L. Fitter, for appellant.

      Christine Debevec, Sandra A. Girifalco and Michelle C. Orloski, for appellee.
    April 4, 2013
   TERESHKO, J.,

PROCEDURAL HISTORY

Plaintiff, Cody Cubler, appeals from the order dated October 23, 2012, wherein this court granted defendant, Trumark Financial Credit Union’s motion for judgment on the pleadings thereby dismissing plaintiff’s complaint.

FACTUAL BACKGROUND

Plaintiff commenced this consumer class action by filing his complaint on April 16,2012. (See docket). On or about October 28,2008, plaintiff Cody Cubler (hereinafter “Cubler”) purchased a used 2006 Chevrolet Cobalt from Enterprise Car Sales. (Complaint, ¶ 7). Purchase money financing was arranged through defendant Trumark Financial Credit Union (hereinafter “Trumark”). (Complaint, ¶ 7). Plaintiff’s complaint alleges that Cubler’s father, George Cubler co-signed the loan. (Complaint, ¶ 8). However, the retail installment sale contract states that George Cubler was the buyer of the vehicle, and plaintiff was the co-buyer. (Retail installment sale contract attached as Exhibit “B” to defendant’s motion for judgment on the pleadings). Per the terms of the financing arrangement, Trumark was the secured party, and the monthly payments were to be made to Trumark. (Complaint, ¶ 9).

Sometime in the summer of 2009, after plaintiff failed to make the agreed-upon monthly payments, Trumark declared a default. (Complaint, ¶ 10). On or around August 13, 2009, Trumark, the lender and secured party, repossessed the vehicle. (Complaint, ¶ 11). Trumark sent George Cubler a notice of repossession on or about August 14, 2009; however, plaintiff’s complaint alleges that Trumark failed to provide him (Cody Cubler) with notice required by Pennsylvania law pursuant to 13 Pa. C.S. § 9614 and 69 P.S. 623. Plaintiff further claims that the notice sent to George Cubler was defective because it did not state the date and location of the auction or whether the auction sale was to be public or private. (Complaint, ¶¶ 16-17). The notice also failed to advise the borrower of the right to an accounting and the charge to the borrower for such accounting. (Complaint, ¶ 18). The notice also failed to inform the plaintiff that he had the right to redeem the vehicle up until the time of sale. (Complaint, ¶ 26). Plaintiff asserts that these same deficiencies existed in notices sent by Trumark to consumers across the Commonwealth of Pennsylvania, and these deficiencies form the basis of plaintiff’s class action. (Complaint, ¶ 19).

Shortly after the notice was sent to George Cubler, Trumark sold the vehicle at auction; however, a deficiency remained after the sale proceeds were applied to the balance of the loan. (Complaint, ¶¶ 20-21). By letter dated September 18, 2009, Trumark sent a post-sale deficiency notice to George Cubler stating that the car was sold for $4,805.00, resulting in a deficiency of $6,969.40. (Complaint, ¶21). Plaintiff further alleges that this post-sale deficiency notice was never provided to him. (Complaint, ¶ 22).

Plaintiff commenced this action, individually and on behalf of all others similarly situated, by filing his complaint on April 16, 2012. (See docket). Plaintiff relies on 13 Pa. C.S. § 9625(c)(2) and 13 Pa. C.S. § 9625(e)(2) set forth below to supply the measure of damages for the deficiencies in the pre- and post-repossession notices sent by Trumark. (Complaint, ¶¶ 32, 36):

(c) Persons entitled to recover damages; statutory damages in consumer-goods transaction. — Except as otherwise provided in section 9628 (relating to nonliability and limitation on liability of secured party; liability of secondary obligor):
(2) if the collateral is consumer goods, a person that was a debtor or a secondary obligor at the time a secured party failed to comply with this chapter may recover for that failure in any event an amount not less than the credit service charge plus 10% of the principal amount of the obligation or the time price differential plus 10% of the cash price.
(e) Statutory damages: noncompliance with specified provisions. — In addition to. any damages recoverable under subsection (b), the debtor, consumer obligor or person named as a debtor in a filed record, as applicable, may recover $ 500 from a person that:
(5) fails to comply with section 9616(b)(1) (relating to explanation of calculation of surplus or deficiency), and the failure is part of a pattern or consistent with a practice of noncompliance;

Trumark filed an answer with new matter and counterclaim to Plaintiff’s complaint on May 21, 2012. (See docket). Plaintiff filed preliminary objections to defendant’s class counterclaim on June 11, 2012. (See docket). Trumark filed an amended answer with new matter and counterclaim on July 2, 2012, and plaintiff filed preliminary objections to defendant’s amended class counterclaim on July 20, 2012. (See docket).

Trumark filed a motion for judgment on the pleadings on July 30,2012 and a motion for protective order and stay of discovery on August 1, 2012. (See docket). Trumark answered plaintiff’s preliminary objections on August 14, 2012. (See docket). Plaintiff filed a memorandum in opposition to Trumarlc’s motion for judgment on the pleadings on August 20, 2012 and a memorandum in opposition to the motion for protective order and stay of discovery on August 21, 2012. (See docket). Trumark filed a reply in support of the motion for judgment on the pleadings as well as a reply in support of the motion for protective order and stay of discovery on August 31,2012.

(See docket).

On October 1, 2012, this court granted Trumark’s motion for protective order and stay of discovery and ordered all discovery stayed until this court ruled upon the motion for judgment on the pleadings. (See docket). In a separate order, this court overruled plaintiff’s preliminary objections to defendant’s amended class counterclaim and further ordered plaintiff to respond to Trumark’s new matter and amended class certification within twenty (20) days. (See docket). On October 2, 2012, this court scheduled oral argument on the motion for judgment on the pleadings. (See docket).

On October 23, 2012, this court granted Trumark’s motion for judgment on the pleadings on the basis that the relevant sections of the Pennsylvania Uniform Commercial Code, 42 Pa. C.S.A. § 9625(c)(2) and (e), are punitive in nature and therefore governed by a two-year statute of limitations, thus plaintiff’s claims were untimely filed. (See docket).

On October 31, 2012, plaintiff appealed this court’s dispositive order to Superior Court. (See docket). This court ordered plaintiff to file his 1925(b) statement of errors complained of on appeal on November 5,2012 and plaintiff did so on November 19,2012. (See docket).

Plaintiff raises the following issue on appeal:

1) Whether this court erred in concluding that the relevant sections of the Pennsylvania Uniform Commercial Code, 42 Pa. C.S.A. § 9625(c)(2) and (e), are punitive in nature and therefore governed by a two-year statute of limitations as opposed to the six year statute of limitations set forth at 42 Pa. C.S. § 5527(b), thus barring plaintiff’s claims as untimely.

LEGAL ANALYSIS

Pennsylvania Rule of Civil Procedure 1034 provides, “After the pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for judgment on the pleadings.” Pa.R.C.P. 1034(a). Amotion for judgment on the pleadings may be entered where “there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law.” Consolidation Coal Co. v. White, 2005 Pa. Super. 155, P13, 875 A.2d 318, 325 (2005).

The standard of review on appeal is plenary. Meehan v. Archdiocese of Philadelphia, 2005 Pa. Super. 91, P4, 870 A.2d 912, 917 (2005). The appellate court must accept as true all well-pleaded allegations in the complaint. Id.

A reviewing court must confine its inquiry to the pleadings and may not consider inadmissible evidence. Consolidation Coal Co. v. White, 2005 Pa. Super. 155, P14, 875 A.2d 318, 326 (2005).

On appeal, the appellate court must “determine whether the trial court’s ruling was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly be tried before a jury or by a judge sitting without a jury.” Id. at P14, 325.

The determinative question here is which statute of limitations governs plaintiff’s claims. Article 9 of the Uniform Commercial Code, which provides the repossession notice requirements as well as the measure of damages for noncompliance, does not contain a statute of limitations; therefore, the court must be guided by Chapter 55 of Title 42 of the Pennsylvania Consolidated Statutes. For the reasons that follow, this court determined that plaintiff’s claims are governed by the two-year statute of limitations supplied by 42 Pa. C.S. §5524 for an action upon a statute for a civil penalty or forfeiture.

As used in 42 Pa. Cons. Stat. Ann. § 5524(5), an ‘action upon a statute for a civil penalty or forfeiture’ encompasses statutory civil actions that are penal, deterrent, punitive, and non-compensatory in nature.” Cohen v. Zarwin & Baum, P.C., CA No. 93-2145, 1993 U.S. Dist. LEXIS 18055, *6-*7 (E.D. Pa. Dec. 22, 1993), concluding that because 29 U.S.C. § 1132(a)(1) (A) provided a monetary penalty when the administrator of an ERISA-covered plan failed to comply with a participant’s request for information, in the absence of a statute of limitations period for such breach of fiduciary duty claims in ERISA itself, § 5524(5) should be applied.

Cecil Twp. Mun. Auth. v. North Am. Specialty Sur. Co., 836 F. Supp.2d 367, 383 (W.D. Pa. 2011).

Plaintiff claims damages pursuant to 42 Pa. C.S. §9625(c)(2) and (e)(5), which are as follows:

(c) Persons entitled to recover damages; statutory damages in consumer-goods transaction. — Except as otherwise provided in section 9628 (relating to nonliability and limitation on liability of secured party; liability of secondary obligor):
(2) if the collateral is consumer goods, a person that was a debtor or a secondary obligor at the time a secured party failed to comply with this chapter may recover for that failure in any event an amount not less than the credit service charge plus 10% of the principal amount of the obligation or the time price differential plus 10% of the cash price.
(e) Statutory damages: noncompliance with specified provisions. — In addition to any damages recoverable under subsection (b), the debtor, consumer obligor or person named as a debtor in a filed record, as applicable, may recover $ 500 from a person that:
(5) fails to comply with section 9616(b)(1) (relating to explanation of calculation of surplus or deficiency), and the failure is part of a pattern or consistent with a practice of noncompliance;

These sections permit recovery by a debtor or secondaiy obligor regardless of actual injury in order to penalize the secured party for noncompliance and deter future violations. The Official Comments to 13 Pa. C.S. § 9625 provide:

Section (c)(2) provides a minimum, statutory, damage recovery for a debtor and secondary obligor in a consumer-goods transaction. It is patterned on former Section 9-507(1) and is designed to ensure that every noncompliance with the requirement of Part 6 in a consumer-goods transaction results in liability, regardless of any injury that may have resulted.

Official Comment 4 to 13 Pa. C.S.A. §9625.

Subsection (e) imposes an additional $500 liability upon a person who fails to comply with the provisions specified in that subsection.

Official Comment 5 to 13 Pa. C.S.A. § 9625.

In contrast to the damages provisions at issue here quoted above, a statute that is remedial in nature provides “redress of an injury or loss suffered by an individual.” 82 C.J.S. Statute § 529. Here, the relevant sections of the Pennsylvania Uniform Commercial Code provide for recovery regardless of whether any injury or actual loss resulted. The goal of the damages provisions utilized by plaintiff in the instant matter is to prevent future violations rather than to make the complaining party whole.

If this court accepts plaintiff’s contention that the statute was intended to be compensatory, awarding plaintiff damages would produce an illogical result because plaintiff did not suffer any actual injury. Plaintiff’s vehicle sold at auction for $4805.00, which was slightly higher than the vehicle’s listed trade in value. (Complaint, ¶ 21). A deficiency of $6969.40 remained after the proceeds were applied to the balance of the loan. Id. Neither plaintiff nor his father had to pay this deficiency. Plaintiff has not suffered any injury or out of pocket loss as a result of Trumark’s alleged violations.

In re: Koresko, 91 B.R. 689,699 (Bankr. E.D. Pa. 1988), discussed the purpose of the notices required under the Pennsylvania Uniform Commercial Code in connection with the repossession of a vehicle and defended the statutory damage calculation for failure to comply with the notice requirements pursuant to 13 Pa. C.S. §9507, the precursor to 13 Pa. C.S. §9625, stating:

This figure may seem excessive, in light of the apparent inability of the Debtors, one of which was a presumptively knowledgeable attorney, to do much to forestall the sale even had they known about it or to prove actual damages as a result of the failure to provide the requisite notice. However, the purpose of the notice of disposition of collateral is not merely to advise the buyers of the termination of their title (and, we hold, their redemption rights in the motor vehicle), but also to protect them from unfair imposition of a deficiency claim by allowing them to attend or bring other potential buyers to the sale and thus prevent a disposition of the collateral for less than its fair market value.

In re: Koresko, 91 B.R. 689, 699 (Bankr. E.D. Pa. 1988).

The court noted that the vehicle was sold for $1500.00 less than fair and reasonable value, and a deficiency in excess of $6000.00 remained. Id. In support of their award of statutory damages, the court reasoned further,

Even more to the point is the observation that statutory damages such as are provided in § 9507(a) are fixed by the legislature as a means of encouraging strict compliance with that law and not allowing the party violating the law to be extricated by the difficult prospect of the victim’s proving actual damages.

Id.

This is consistent with this court’s conclusion that damages pursuant to Pa. C.S. § 9625 constitute a statutory penalty in that they are penal, deterrent, punitive, and non-compensatory in nature; Plaintiff is not required to prove any injury or loss in order to recover (emphasis supplied).

While not binding on this court, a Tennessee district court also concluded in a case of first impression that Term. Code Ann. § 47-9-625, which mirrors Pa. C.S. § 9625 and awards damages based upon a statutory formula for noncompliance with Uniform Commercial Code notice provisions, was subject to the one year statute of limitations applicable to statutory penalties. Beard v. Vanderbilt Mortg. and Finance, 2008 U.S. Dist. LEXIS 43519, P12 (2008). The court expressly disagreed with plaintiff’s argument that § 47-9-325 was primarily remedial in nature. Id. at 11.

Likewise, a Virginia district court found,

This court is persuaded that the drafters of the Uniform Commercial Code did not intend to place a burden upon debtors, but instead intended to police lenders under Article 9. See Merchandise Nat’l Bank of Chicago v. Scanlon, 86 III. App. 3d 719, 408 N.E.2d 248, 251, 41 III. Dec. 826 (III. App. Ct. 1980) (“The purpose of imposing [9-507(1) statutory minimum] civil liability upon creditors is to force compliance with the protective provisions of section 9-504(3).”)

Chisolm v. TranSouth Fin. Corp., 194 F.R.D. 538, 551 (E.D. Va. 2000).

In characterizing the minimum statutory penalty available under section 9-625 of the Uniform Commercial Code, Barkley and Barbara Clark, leading commentators on Article 9, stated, “This minimum civil penalty, quietly tucked away in a comer of the statute, is probably the most glittering nugget of consumer protection found in all of Article 9.” CLARK & CLARK, Law of Secured Transaction under the UCC § 4.12[4].

Thus, for the aforementioned reasons, this court found that plaintiff’s claims were subject to a two year statute of limitations because the intended purpose of the statute is not to compensate plaintiff, but to punish the offending entity and deter future violations.

Plaintiff asserts that his claims are subject to the catch all six year statute of limitations, which provides:

Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years.

42 Pa. C.S. § 5527(b).

However, because the damages sought by plaintiff are directly analogous to a civil penalty or forfeiture, plaintiff’s claims are not subject to the catch all limitations period.

Plaintiff cites Pantuso Motors, Inc. v. CoreStates Bank, N.A., 568 Pa. 601, 798 A.2d 1277 (2002), in support of the application of a six year statute of limitations However, Pantuso Motors is not applicable because it specifically addressed the limitations period applicable to a liquidated damages provision, which is not at issue here, 42 Pa. C.S. § 8104(b).

The Restatement (Second) of Contracts provides “Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.” Restatement (Second) of Contracts § 356(1). A provision for liquidated damages is generally employed where the amount of damages would be difficult to quantify; whereas, the statute at issue here is intended to deter future noncompliance regardless of whether or not damages exist. See generally Geisinger Clinic v. Di Cuccio, 414 Pa. Super. 85, 606 A.2d 509 (1992)(differentiating a liquidated damages provision from a penalty or forfeiture). Furthermore, the amount of liquidated damages must be reasonable because an award of liquidated damages is specifically prohibited from functioning as a penalty. Therefore, because the purpose of the statute here varies widely from a liquidated damages provision, plaintiff’s argument that this court should employ a six year limitations period based upon the reasoning in Pantuso must fail.

Thus, for the reasons stated above, a two year limitations period is applicable to plaintiff’s claims. Plaintiff commenced this action against Tramark on April 16, 2012, more than two and a half years after Tramark repossessed and sold his vehicle during the summer of 2009. Therefore, plaintiff’s claims are barred by the statute of limitations.

CONCLUSION

For the foregoing reasons, this court respectfully requests that the October 23,2012 order granting defendant Tramark Financial Credit Union’s motion for judgment on the pleadings be affirmed.

      . § 9614. Contents and form of notification before disposition of collateral: consumer-goods transaction. In a consumer-goods transaction, the following rules apply:
      (1) A notification of disposition must provide the following information:
      (i) the information specified in section 9613(1) (relating to contents and form of notification before disposition of collateral: general);
      (ii) a description of any liability for a deficiency of the person to which the notification is sent;
      (iii) a telephone number from which the amount which must be paid to the secured party to redeem the collateral under section 9623 (relating to right to redeem collateral) is available; and
      (iv) a telephone number or mailing address from which additional information concerning the disposition and the obligation secured is available.

      . § 623. Repossession
      D. When repossession of a motor vehicle, which is the subject of an installment sale contract, is effected otherwise than by legal process, the holder shall immediately furnish the buyer with a written “notice of repossession” delivered in person, or sent by registered or certified mail directed to the last known address of the buyer. Such notice shall set forth the buyer’s right as to reinstatement of the contract, if the holder extends the privilege of reinstatement and redemption of the motor vehicle, shall contain an itemized statement of the total amount required to redeem the motor vehicle by reinstatement or payment of the contract in full, shall give notice to the buyer of the holder’s intent to re-sell the motor vehicle at the expiration of fifteen (15) days from the date of mailing such notice, shall disclose the place at which the motor vehicle is stored, and shall designate the name and address of the person to whom the buyer shall make payment, or upon whom he may serve notice. The holder’s notice shall also state that any personal property left in the repossessed vehicle will be held for thirty (30) days from the date of the notice’s mailing. The personal property may be reclaimed within the thirty (30) day time period. Thereafter the property may be disposed of in the same manner as the motor vehicle and other collateral.

      . “If a statute does not provide a limitations period and the Pennsylvania Supreme Court has not ruled on the question, other courts will generally apply ‘the most closely analogous limitations period.’” Woody v. State Farm Fire and Cas. Co., 965 F.Supp. 691, 693 (E.D. Pa. 1997).


author: DIVITO, J.,

text:
    Green v. Pennsylvania Hospital

      James W. Sutton, III, for plaintiff.

      Gary M. Samms and Ryan L. Leonard, for defendant Steven A. Glasser.

      Michael O. Pitt, Brian M. Crosby and Trade A. Vizza, for defendant Eugene M. Lugano.

      Kathleen M. Chancier, for defendants James Kearney, Kelly A. Carr, Lori Yakish, Silvia Aquino, Stella Barber, Contributors to Pennsylvania Hospital, Pennsylvania Hospital, Bora Lim and John D. Sprandio.
    April 15, 2013
   DIVITO, J.,

— This is based upon an appeal by Ronald Green as Executor of the Estate of Joseph Fusco (“plaintiff’) from the court’s order entered on August 12, 2012 denying Plaintiff’s Motion for post-trial relief pursuant to Pa.R.C.P. 227.1 (“motion for post-trial relief’). For the reasons that follow, the order by the court denying the motion should be affirmed and the non suit verdicts in favor of defendants Pennsylvania Hospital, et al. (“defendants”) should be affirmed.

I. Background

Decedent plaintiff, Joseph Fusco (“decedent”), was taken to the Emergency Department of Pennsylvania Hospital on December 30, 2008 with complaints of shortness of breath, rapid breathing, and wheezing. Decedent was admitted to the intensive care unit of the hospital due to his symptoms and, after medication failed to ease the symptoms, he was intubated. He remained in critical condition due to serious preexisting medical that included circulatory failure, respiratory failure, and an infection overwhelming his system. After being unable to be weaned from the ventilator, on January 9, 2009 a feeding tube and tracheostomy were performed on the decedent.

Following the tracheostomy, bleeding was observed from the site of the procedure, and emergency steps were taken to address the issue, including bronchoscopy, repeat intubation, and placement of chest tubes due to the development of subcutaneous emphysema. Despite these measures, on January 10, 2009. Decedent arrested and after several attempts to resuscitate him, he was declared dead at 6:36 P.M. of that day. The cause of death on his certificate of death noted the immediate causes as cardiac arrest due to chronic obstructive pulmonary disease and pneumonia, and airway obstruction.

Plaintiffs Ronald Green and Peter Fusco, brother of the decedent, filed suit in Philadelphia County in June of 2009, with the trial commencing in June of 2012. Prior to trial both plaintiff and defendants filed several motions in limine, which after oral argument on June 4,2012 resulted in the effective claims being whittled down to a survival claim for damages due to pain and suffering during the approximate one and a half hour time period of resuscitation on January 10, 2009. On June 7, 2012 the court heard arguments on defendants’ motion in limine to preclude the testimony of Kathleen Fleming, an expert witness proffered by the plaintiffs as an “informatics” expert, and the motion was granted. At the close of plaintiff’s case that day, defendants moved for non suit. The plaintiff agreed that non suits should be entered on behalf of nurses Sylvia Aquino and Anthony Giorgio, and after hearing arguments from both sides, the court then also granted non suit as to the other defendants, except Nurse Lori Yakish. On June 8, 2012 the court heard arguments regarding the defense counsel motion for Nurse Yakish to be granted non suit, which was granted. Subsequently, plaintiff filed a motion for post-trial relief which was denied on August 21, 2012.

Plaintiff then filed with the appellate court its statement of errors, discussed hereafter.

II. Plaintiffs Matters Complained of upon Appeal

1. Non Suit as to the Vicarious Liability of Defendant Pennsylvania Hospital

Plaintiff complains that the court erred in granting non suit as to defendant Pennsylvania Hospital because of the negligent acts of doctor Nora Malaraise and other individuals. However, at trial the plaintiffs failed to adduce evidence that Dr. Malaraise was an agent of the hospital at the time of the incident. Though plaintiff’s expert. Doctor Peter Salgo, opined that Dr. Malaraise deviated from the standard of care for the decedent, at no point did plaintiff present evidence that Dr. Malaraise was an agent of the hospital other than showing that she treated the decedent in the hospital’s facilities. At all times before and during the trial, however, the Hospital denied that Dr. Malaraise was its agent.

The MCARE Act specifically covers the standards to be demonstrated in medical staff is the agent and/or employee of a hospital. Hospitals may be held vicariously liable for the acts of other health care providers through agency principles only if the evidence shows that, “a reasonably prudent person in the patient’s position would be justified in the belief that the care in question was being rendered by the hospital or its agents.” MCARE Act. 40 RS. § 1303.516 (a)(1). The Act further holds that “Evidence that a physician holds staff privileges at a hospital shall be insufficient to establish vicarious liability through principles of ostensible agency unless the claimant meets the requirements of subsection (a)(1)...” MCARE Act, 40 P.S. § 1303.516(b).

Despite these clear standards as to how vicarious liability of a hospital should be established as to the agency of treating medical personnel in the hospital setting, the plaintiff failed to offer any evidence with which to meet the standard. No staff of the hospital were called as witnesses to testify at trial as to how the agency structure of the hospital was set up regarding ENT physicians, such as Dr. Malaraise, in the hospital’s facilities. Nor was Peter Fusco, decedent’s brother, asked any questions or offered any testimony as to how Dr. Malaraise presented herself as to agency, or whether a reasonable patient would believe she was an agent of the hospital. Though the plaintiff argued that the testimony presented by witnesses Dr. Salgo, Nurse Pierce, and Dr. Glasser established vicarious liability, those witnesses only served to demonstrate that Dr. Malaraise was present and treating patients at the hospital, not that the type of agency relationship existed between her and the hospital that would give rise to it being vicariously liable. Further. Dr. Glasser’s testimony actually highlighted the ambiguity of the relationship between the hospital and medical staff working therein, as it was the plaintiff, not the defendants, that specifically elicited testimony from Dr. Glasser that though he provided care at the hospital, he was employed by an entirely distinct entity and was not its agent. (N.T. 6/6/12 5:15-25,6:1-21).

Given that plaintiff elicited no testimony as to the actual substance of the relationship between Dr. Malaraise and the hospital, that the hospital denied an agency relationship throughout the course of the trial, the plaintiff’s failure to elicit any testimony as to whether a reasonable person in the decedent’s position would have though Dr. Malaraise was an agent of the hospital, and plaintiff’s own presentation of evidence that doctors and nurses at the hospital were, at least in some cases, agents of other entities, the court correctly granted non suit as to Pennsylvania hospital as plaintiff had failed to establish any basis on which to conclude that Dr. Malaraise or other medical personnel were employed by or agents of the hospital.

2. Non Suit as to Nurse Lori Yakish

In order to establish liability in a medical malpractice case, proving causation that the failure to provide the requisite standard of care was the cause in fact of the injury or death is necessary. Plaintiff failed to demonstrate that any action taken by or attributable to Nurse Yakish was the cause of decedent’s death, a non suit was thus granted as to Yakish.

Testimony elicited from Dr. Peter Salgo, while stating that the bleeding of decedent after the tracheostomy demonstrated that the tracheostomy cuff needed to be inflated, never stated whose duty it was to inflated, never stated whose duty it was to inflate that cuff to prevent further bleeding. Plaintiff did elicit testimony from Dr. Salgo that given the bleeding, the standard of care would have been to inflate the cuff, however, as directly cited by the plaintiff in its brief in support of motion for post-trial relief, the notes of testimony explicitly show that whose duty it was to inflate the cuff was never asked and never stated by Dr. Salgo. (N.T. 6/6/12 53:21-25, 54:1-5). Further, though Dr. Salgo was questioned regarding these deviations by Yalcish, at no point did plaintiff’s counsel ask and at no point did Dr. Salgo offer as testimony that Yakish’s deviation were the cause for decedent’s death.

Accordingly, since Dr. Glasser also never testified as to Yakish’s actions creating the causation for decedent’s death, and Nurse Pierce was precluded from testifying as to causation, there was no evidence or testimony that Nurse Yakish’s action were the cause in fact of decedent’s death. Since all of the necessary elements were not met, the court had no choice but to grant non suit as to Nurse Yakish as plaintiff had failed to establish a right to relief.

3. Non Suit as to Dr. John Sprandio

Next plaintiff argues that the non suit as to Dr. John Sprandio, an intern doctor, was incorrect. However, plaintiff failed to adduce any evidence from an expert witness that Dr. Sprandio breached any duty to the decedent or failed to provide an adequate standard of care.

For liability to be found as to Dr. Sprandio, a qualified expert witness was required to testify that he had deviated from the proper standard of care — testimony which could have potentially have been provided by Dr. Peter Salgo. In arguments over the initial motion for non suit as to Dr. Sprandio, however, plaintiff’s counsel admitted in no uncertain terms that “I have the transcript...and even from my recollection. I do not believe that Dr. Salgo states that Dr. Sprandio did not reinflate the cuff in a timely fashion.” (N.T. 6/7/12 143:22-25, 144:1).

Given that the transcript clearly evidences that no expert testimony was given regarding a failure to adequately meet the standard of care by Dr. Sprandio to the decedent, and plaintiff’s own admission that such testimony was never provided, the court cannot find s basis for this complaint of error. Counsel for plaintiff did argue that from the hospital records it was difficult to see what had been done at what times by whom, however, providing an excuse that events around the decedent’s death were confusing, thus making it difficult to pinpoint liability, does not serve as a replacement for the expert testimony that would be necessary for liability to have been found as to Dr. Sprandio. Accordingly, non suit was correctly granted, since, as fully admitted by the plaintiff, its expert did not find a breach of the standard of care by Dr. Sprandio.

4. Preclusion of Testimony from Informatics Expert Kathleen Fleming

Plaintiff claims error in the preclusion of testimony by Kathleen Fleming as being an informatics expert regarding alleged spoliation issues as to hospital records. Fleming was properly precluded as the issue was a technical one as to dates and times of certain reports alleged to have been altered or deleted from the system used by the hospital. However, Fleming specifically stated that she had never before worked with the particular system used by the hospital (known as VISICU) as a nurse, had never analyzed or worked with it before in her capacity as an informatics consulting expert, and had never before seen the audit logs generated by VISICU. (N.T. 6/7/12 84:2-19). Likewise, when asked by the court as to what actually led her to believe that records had been altered, her answer was essentially that her belief was based upon pure speculation that seemed to have no relation to with the field of informatics. When asked what she meant as to the records being “altered.” she stated, “I can’t give you specifically what was altered, nor by whom. I can only look at what the audit trail shows as people having documented and then trying to track it back to the medical record and not being able to find entries that support that notation in the audit log.” (N.T. 6/7/12 90:1-7). In other words, some documents were missing and based solely on that, she assumed that the records had been targeted for destruction and/or alteration with the express intention of preventing them from being used by a party seeking to hold the hospital liable.

Based on this voir dire hearing the court found it appropriate to preclude her as an expert. In the first instance, the court was troubled that, as an expert, she was completely unfamiliar with the complex system in which she was supposed to apply her abilities as an expert on. While the court understands that knowledge of such systems may be be supplemented to an expert’s preexisting knowledge in a relatively short time, considering that plaintiff was making arguments regarding minutiae of an extremely complex system of reporting procedures, time keeping, and entry of records, the court found that a passing entry level knowledge of the system by Fleming was not enough given the seriousness of the conclusions she was alleging.

More troubling were those conclusions that Fleming stated she was going to testify to. Based on her answers to the court’s questions, she had concluded based merely on the fact that of a few records out of many hundreds of pages of hospital records being missing, that the record had surreptitiously been altered. This leap in logic took it from the domain of expert testimony to pure unsupported assumption. Hence, given the fact that Fleming had no experience with the system she would be testifying regarding and no evidence other than assumptions based on misplaced records that someone at the Hospital was altering records, the court properly precluded her testimony.

5. Preclusion of Factual Causation Testimony by Dr. Peter Salgo

The court finds no record of the preclusion of factual causation testimony of Dr. Peter Salgo. Indeed, in arguments before the court after Dr. Salgo’s testimony. Plaintiff’s counsel spoke at length about the causation testimony offered by Dr. Salgo before the jury and his unsuccessful attempts to link causation regarding the decedent’s death to the actions of the Defendants. (N.T. 6/8/12 7:7-25, 8:1-25, 9:1). As such, The court finds no basis for this complaint.

6. Preclusion of Factual Causation Testimony by Nurse William Pierce

Though Nurse William Pierce was allowed to testify regarding the conduct of nurses present during decedent’s time at the hospital, the court precluded his testimony as an expert regarding causation, which plaintiff complains of as error. The MCARE Act, however, specifically states, “Medical testimony, — An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must meet the following qualifications: (1) Possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia.” MCARE Act. 40 P.S. § 1303.512(b)(1).

Plaintiff had argued that Freed v. Geisinger Medical Center, 971 A.2d 1202 (Pa. 2009) allowed Pierce to testify as to causation, however, Freed merely gives the court more leeway in determining whether a nurse may testify as an expert in regards to causation, with our Supreme Court specifically stating courts “should assess the competency of any expert witness under the standards [of] the MCARE Act, if applicable.” Freed, 971 A.2d at 1214. Though the ruling specifically allowed that a nurse may be capable of testifying regarding causation, it did not specifically give a nursing experts blanket approval in all situations, else the court would not have specifically held that a nursing expert should be assessed under the MCARE’s standards if proper.

Accordingly, because this was a medical professional liability actions against a physician and Pierce did not possess an unrestricted physician’s license, he was properly precluded under the MCARE Act’s requirements under § 1303.512(b)(1). If this had been a case, such as Freed, involving the causation of bedsores and whether poor nursing was a the cause of the bedsores. Pierce would have been free testify as an expert as to causation, However, since it involved liability against multiple physicians and nurses, it would have created an anomalous result to allow Pierce to testify as to causation as to the nurses, but claim he was incompetent to testify against the physicians for care that was in many places indivisible as to who was providing it. As this was the case, Pierce was properly allowed to testify regarding his expert opinion of the quality of care provided by the defendant nurses but not as to causation of decedent’s death.

7. Preclusion of Peter Fusco Testimony Regarding Condition of Decedent

Due to the various motions and orders granted before trial commenced, at the time of testimony, the only issue of damages remaining was pain and suffering. Accordingly, witness Peter Fusco was allowed to testify regarding his brother’s care at the Hospital during the day of his death on January 10,2009. Beyond those observations, however, given the scope of damages, the court found that testimony as to the state of the decedent’s body after his death was unnecessary, irrelevant, and potentially prejudicial. Fusco’s testimony was, thus, correctly precluded as, not being an expert, his lay opinion of what decedent’s body looked like after death would have not addressed any pertinent issue in the trial as to decedent’s prior pain and suffering

8. Preclusion of Video Animation of Medical Treatment Given to Decedent

The court properly excluded the presentation of video animation alleging to represent the two hours prior to the decedent’s death in 34 seconds as redundant, irrelevant, and speculative. Pennsylvania Rule of Evidence 403 states, “The court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Based on it, the court precluded the evidence since its redundancy wasted time and the speculative nature of the video had the potential to confuse the issues and/or mislead the jury.

The court determined the video was redundant and irrelevant as the plaintiff had already been allowed to present multiple pieces of demonstrative evidence in the form of actual medical equipment as actually used on the decedent, including a tracheal collar, an inflatable tracheal cuff, and two different sizes of endotracheal tubes. Given that these had been presented to the jury and a demonstration of their use and function already allowed, computer generated images crudely approximating those same devices and their function would have added nothing to the jury’s knowledge and instead would have been merely less illustrative repeats of the same information.

Secondly, the video was speculative as it dramatically condensed the events into a tiny fraction of the time. In doing so the video both omitted numerous acts of medical treatment performed on the decedent as part of the medical care providers’ attempts to keep him alive, and emphasized the acts seized on by the plaintiff as being the primary, if not only acts, that occurred during the time leading up to the decedent’s death. Likewise, the video depicts various treatments enacted by the care providers as causing bleeding of the decedent. However, no autopsy was allowed to be performed on the decedent, thus, there was absolutely no basis other than speculation that such bleeding occurred. The video, thus, also had the potential to mislead the jury as it clearly showed bleeding and injuries completely unsupported by the evidence.

The plaintiff made much ado about how such computer generated videos have been ruled to be admissible as evidence. The court did and does completely agree that such videos may be admissible — the issue was whether this specific video was admissible. Based on the foregoing it was not and the court correctly precluded the video animation as it both repeated a less useful example of evidence already allowed to be presented to the jury, as well as containing material of questionable, if nonexistent, factual and evidentiary basis.

9. Court’s Behavior

The court, both now and at the time in which it reviewed. plaintiff’s brief in support of post trial relief, was unable to discover a single objection in the transcript in which any such objection was ever made on record during the course of the trial by the plaintiff regarding the court making the alleged gestures. Unhelpfully, plaintiff also failed to cite a single instance of it objecting to any alleged inappropriate gestures made by the court during the course of the trial in its brief in support of post trial relief, nor did it otherwise direct attention in the transcripts to where such alleged improprieties were supposed to have occurred. As plaintiff failed to offer any support to its complaint of error, the court had no choice but to deny the plaintiff’s request for post-trial relief on the point.

10. Preclusion of Testimony Regarding Decedent’s Prior Condition

As discussed under complaint 7, damages in the trial were limited to pain and suffering regarding the approximately one and a half hours before decedent’s expiration. As decedent’s physical state after his death as observed by a non-expert layperson was irrelevant to the issues to be charged to the jury, the decedent’s condition prior to his hospitalization as observed by a non-expert layperson was irrelevant. Being a non-expert. Fusco could have provided no new or relevant testimony as to whether his prior condition would have affected his pain and suffering in the final hours of decedent’s life. Accordingly, Fusco’s testimony on that issue was properly denied.

III. Conclusion

For these reasons, the order of August 21,2012 denying the plaintiff’s motion for post-trial relief pursuant to Pa.R.C.P. 227.1 should be affirmed.


text:
    Martin v. Rite Aid of Pennsylvania, Inc.

      Stephen A. Corbman, for appellant.

      Stephen J. Alexander, for appellees.
    April 16, 2013
   TERESHKO, J.,

PROCEDURAL HISTORY

Plaintiff, Joseph Martin, appeals an order dated September, 27, 2012, wherein this court sustained defendants Rite Aid of Pennsylvania, Inc. and North Broad Development Company’s preliminary objections and dismissed plaintiff’s complaint for failing to join an indispensible party.

FACTUAL BACKGROUND

On May 16, 2010, plaintiff Joseph Martin (hereinafter called “Martin”) was a patron/business invitee of a Rite Aid store located at 2131N. Broad Street Philadelphia, PA 19141 (hereinafter called the “property.”) (See complaint at ¶ 4). At all times material to this action, North Broad Development Company (hereinafter called “NBDC”) owned and controlled the property, and acted as landlord/ lessor for Rite Aid. Id. at ¶ 3. On the aforementioned date, plaintiff Martin was allegedly robbed and assaulted by three males on the property and suffered bodily injury. Id. at ¶¶ 5 and 8.

Plaintiff commenced this action against Rite Aid of Pennsylvania, Inc. (hereinafter called “Rite Aid, Inc.”) and NBDC when he filed his complaint on July 11, 2012; however, plaintiff did not name his alleged attackers as defendants. (See docket). Plaintiff brings three counts in his complaint: count I is for negligence against Rite Aid, Inc.; count II is for negligence against NBDC; count III is for punitive damages against both defendants. (See complaint at ¶¶ 6-23).

Defendants Rite Aid, Inc. and NBDC filed preliminary objections to plaintiff’s complaint on August 14, 2012. (See docket). Defendants asserted that the plaintiff’s complaint should be dismissed for failing to join the three males who allegedly assaulted and robbed the plaintiff per Pa.R.C.P. 1028(a)(5). (See defendant’s preliminary objections at ¶ 64). Defendants asserted that without the assailants, at least two of whom have been identified, there would have been no injury and thus there could be no negligence claims against Rite Aid, Inc. and NBDC. Id. at ¶ 70.

On August 31, 2012, plaintiff filed his answer to the preliminary objections. (See docket). Plaintiff contended that the police apprehended two alleged assailants, one of whom was arrested but not charged. The third individual was apprehended and charged but not tried, nor convicted nor did he plead. (See plaintiff’s answer to preliminary objections, memorandum of law at pg. 1). Plaintiff asserted that he is not compelled to join or sue unidentified or presumably innocent individuals. Id.

On September 27, 2012, this court issued an order sustaining defendant’s preliminary objections and dismissing plaintiff’s complaint with prejudice for failing to join an indispensible party under Pa.R.C.P. 1028(a)(5). (,See docket). On October 24, 2012, plaintiff appealed this order to the Superior Court of Pennsylvania. Id. Plaintiff was ordered to file his concise statement of errors complained of on appeal on November 5, 2012. Id. Plaintiff filed his 1925(b) statement on November 20, 2012. Id.

The sole issue to be addressed on appeal is whether this court committed an error by dismissing plaintiff’s complaint when he failed to join essential parties per Pa.R.C.P. 1028(a)(5).

LEGAL ANALYSIS

Pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(5), failure to join anecessary party may be raised by preliminary objection. A party is considered indispensable to a law suit “when its rights are so connected with the claims of the litigants that no decree can be made without impairing its rights, and it must be made party to protect such rights.” Grimme Combustion, Inc. v. Mergentime Corp., 406 Pa. Super. 620, 629, 595 A.2d 77, 81 (1991). “The absence of an indispensible party renders any decree or order in the matter void for lack of jurisdiction.” Hubert v. Greenwald, 1999 Pa. Super. 328, 743 A.2d 977, 979-80 (1999). “The basic inquiry in determining whether a party is indispensible concerns whether justice can be done in the absence of a third party.” Id. For an accurate analysis, the court must “refer to the nature of the claim and the relief sought.” Id.

The Pennsylvania appellate courts have outlined the following guidelines for determining whether a party is indispensible:

(1) Do absent parties have a right or interest related to the claim?
(2) If so, what is the nature of the right or interest?
(3) Is that right or interest essential to the merits of the issue?
(4) Can justice be afforded without violating due process rights of the absent parties?

Hubert v. Greenwald, 1999 Pa. Super. 328, 743 A.2d 980 (1999). See also E-Z Parks, Inc. v. Philadelphia Parking Authority, 103 Pa. Cmwlth. 627, 631, 521 A.2d 71, 73 (1987) and Mechanicsburg Area School Dist. v. Kline, 494 Pa. 476, 481 (1981).

In Hubert v. Greenwald, 1999 Pa. Super. 328, 743 A.2d 977 (1999), plaintiff/appellant Hubert sustained injury in a slip and fall accident on the premises of a restaurant. Hubert commenced legal action against Barry and Virginia Greenwald alleging that they were liable as the owners of the restaurant at the time of the accident. Id. at 978-979. Defendants/appellees the Greenwalds filed preliminary objections alleging that the Huberts failed to join an indispensible party, Mr. Albert Bonavita, Jr.. Id. at 979. The Greenwalds asserted that per a prior agreement, Mr. Bonavita had assumed control and possession of the restaurant. Id. The trial court found this to be accurate. After numerous motions from the parties involved, the trial court sustained the preliminary objections holding in part that Hubert failed to join an indispensible party. Id.

In conducting its indispensible party analysis, the Superior Court adopted the rationale of the trial court. Id. at 980. The court reasoned that Mr. Bonavita held a direct and substantial interest in the litigation because he was the solely liable party and his assets were subject to judgment should Hubert prevail. Id. Therefore, the trial court properly granted defendant’s preliminary objections for failure to join an indispensible party.

In Cry, Inc. v. Mill Service, Inc. 536 Pa. 462, 640 A.2d 372 (1994), the Pennsylvania Supreme Court addressed the issue of indispensible parties. The concerned Residents of Yukon, Inc. (CRY) brought suit against Mill Services, Inc., alleging harm caused by the operation of Mill Services’ Yukon plant, which treats and stores hazardous waste. Id. at 464 and 373. The trial court in Westmoreland County issued an order requiring CRY to file an amended complaint joining the Department of Environmental Resources (DER). Id. at 465 and 373. The trial court held that DER was an indispensible party because “some of the relief necessarily involves DER.” Id. at 467 and 375. Furthermore, the trial court opined that “there could be a duplication of the requirement to defend and, more importantly, a confusing and incomplete disposition which would prejudice the defendant.” Id. The Commonwealth Court reversed this holding. Id.

The Commonwealth Court applied the following test to determine what constitutes an indispensible party; “An indispensible party’s rights must be so closely connected to those of the litigants that an order or decree cannot be made without impairing those rights.” Mill Serv. v. Cry, Inc., 153 Pa. Commw. 13, 18; 619 A.2d 807, 810 (Pa. Commw. Ct. 1992). The Commonwealth Court opined that a “Commonwealth agency should not be declared an indispensible party unless meaningful relief cannot conceivably be afforded without the sovereign itself becoming involved.” Id. The Commonwealth Court averred that “DER is only tangentially involved in this lawsuit; it is neither necessary nor indispensible to a fair and complete resolution of the parties’ rights and responsibilities. Id. at 19 and 810.

The Pennsylvania Supreme Court revisited some of its prior holdings in order to demonstrate the evolution of the test employed by the Commonwealth Court in determining whether a party is indispensible.

In Scherbick v. Community College of Allegheny County, 479 Pa. 216, 220, 387 A.2d 1301, 1303 (1978), this court stated: In Pennsylvania, an indispensable party is one whose rights are so directly connected with and affected by litigation that he must be a party of record to protect such rights, and his absence renders any order or decree of court null and void for want of jurisdiction. Cry, 536 Pa. 462, 468; 640 A.2d 372, 375 (1994).
The traditional indispensable party rule as requiring that “a court should not adjudicate a case if an absentee was so closely related to the matters in dispute that further litigation would probably be required to define the position of the absentee or to protect the defendant.” It was suggested that the best way to determine whether an absentee is so closely related is to balance the interests of the plaintiff, the defendant, the absentee and society’s interest in the orderly and efficient administration of justice. Cry quoting Action Coalition v. Allegheny County Institution District, 493 Pa. 302, 311, 426 A.2d 560 (1981)

Five months after Action Coalition, this court decided Mechanicsburg Area School District v. Kline, 494 Pa. 476, 431 A.2d 953 (1981). Id. The Supreme Court concluded its analysis stating:

It is apparent that the basic inquiry in determining whether a party is indispensable concerns whether justice can be done in the absence of a third party, and further, that this issue can be formulated in several different ways. Since this court’s latest formulation appears in Mechanicsburg, that formulation defines the appropriate analysis. Id. at 469 and 376.

The Pennsylvania Supreme Court, in reversing the Commonwealth Court, and affirming the trial court, reiterated its support for the Mechanicsburg criteria. Id. In applying the criteria, the Supreme Court opined that DER, an absent party, had a right or interest related to claim because “DER is the agency of government responsible for regulating harmful pollution of the kind alleged in the lawsuit.” Id. at 469 and 376. Second, DER’s “regulatory activity and authority may be affected by the adjudication of this lawsuit.” Id. Third, when determining if DER’s interest was essential to the merits of the issue, the court opined “because DER’s regulatory activity may be affected by an order entered in this case, and because compliance with that order may require the cooperation of DER, its interest is essential.” Id. Finally, as to the question of whether justice could be afforded without DER’s presence, the court determined that “if DER were not party to this suit, it may withhold permits necessary to carry out remedies which may be ordered or it may seek to commence a multiplicity of actions in which in which the same or related matters are at issue.” Id. Therefore, the court concluded DER was an indispensible party. Id.

In applying the Mechanicsburg criteria to the underlying action, it becomes readily apparent that the three males that attacked the plaintiff are indispensible parties. The first question is whether the absent parties have a right or interest related to the claim. The answer is in the affirmative. The three assailant’s actions in attacking the plaintiff created the dangerous condition resulting in the injury for which plaintiff seeks relief. In a simplistic form, without the three assailants, there would have been no injury. The three males have a right or interest in the claim.

Second, we must inquire as to the nature of the right or interest of the absent party. Without the actions of the three assailants, the plaintiff would not have sustained injury. Furthermore, the defendants would be unable to seek contribution or indemnification if these three males were not parties to the suit. Because of the nature of the absent individuals’ involvement in the attack, their presence is essential to the merits of the case and the establishment of a timeline for the case.

Finally, justice cannot be afforded without violating the due process rights of the absent parties. As in Hubert, supra. 743 A.2d 980, the absent party held a direct and substantial interest in the litigation because he was the solely liable party and his assets were subject to judgment should the plaintiff prevail. Likewise, the absent parties here have a direct and substantial interest because they caused plaintiff’s injuries and their assets could be subject to judgment should plaintiff Martin prevail. Thus, this court determined plaintiff failed to join indispensible parties. As a result, the court may order joinder of the indispensible party or grant defendant’s preliminary objections if the applicable statute of limitations has passed.

Pa.R.C.P. 2232 (c) dictates that at “any stage of an action, the court may order the joinder of any additional person who could have joined or who could have been joined in the action and may stay all proceedings until such person has been joined.” Flowever, “this general authorization is subject to the limitation that a party defendant cannot be joined after plaintiff’s action against said defendant has been barred by the statute of limitations.” Paden v. Baker Concrete Constr., 437 Pa. Super. 59, 61 (Pa. Super. Ct. 1994) citing to Goodrich-Amram 2d § 2232(c):3: “The power granted in subdivision (c) or Rule 2232 is necessarily limited by the statute of limitations. A person cannot be joined as a plaintiff, regardless of how indispensable he might be, if the statute would bar him from bringing an independent suit. If a person is truly indispensable, his nonjoinder is a fatal defect. If he is not indispensable, the action may proceed without him.”

In Pennsylvania, a cause of action for negligence is controlled by a two year statute of limitations. 42 Pa. C.S.A. § 5524 reads as follows: The following actions and proceedings must be commenced within two years:

(1) An action for assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process.
(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

The statute of limitations begins to run as soon as the right to institute and maintain a suit arises. Id. Citing Cappelli v. York Operating, 711 A.2d 481, 484 (Pa. Super. 1998).

Plaintiff Martin was allegedly robbed and assaulted by three males on the Rite Aid property on May 16, 2010, suffering bodily injury. {See complaint at ¶ 5). Per 42 Pa. C.S.A. §5524, he was required to commence his action against the three assailants by May 16,2012; therefore the statute of limitations for his claims against the three males has lapsed and they cannot be joined in the underlying action.

Plaintiff’s failure to join the three males as indispensible parties under Pa.R.C.P. 1028(a)(5) was a fatal flaw. They cannot be joined as the statute of limitations has lapsed. Therefore, plaintiff’s claim was dismissed with prejudice.

CONCLUSION

For the forgoing reasons, this court respectfully requests its decision sustaining defendant’s preliminary objections and dismissing plaintiff’s complaint with prejudice be affirmed.

      . These guidelines are commonly referred to as the Mechanicsburg criteria, Mechanicsburg Area School Dist. v. Kline, 494 Pa. 476 (1981).

      . Plaintiff avers that the four pronged test is only applicable in Equity Actions. (See plaintiff’s answer to defendant’s preliminary objections ¶¶ 72-79). This statement is in error. The appellate courts have utilized this test in non-equity actions, such as Hubert, supra. Hubert was a personal injury case sounding in negligence, similar to the underlying action.

      . Plaintiff’s underlying legal basis for his claims against defendants Rite Aid, Inc. and NBDC comes from T.A. v. Allen, 447 Pa. Super. 302 (1995). In T.A., the court determined that a possessor of land who holds his land open to the public for entry for business purposes is generally liable for the injuries suffered by those invitees caused by the harmful acts of third parties.


author: JACKSON, J.,

text:
    Williams v. Willow Terrace

      Ruben J. Krisztal, Peter, D. Giglione, Bennie Lazzara, Jr. and Stephen Trzcinski, for plaintiff.

      Michael G. Sabo, JohnJ. Snyder and Arthur B. Keppel, for defendants.
    April 8, 2013
   JACKSON, J.,

SUMMARY OF FACTS AND PROCEDURAL HISTORY

This case is a wrongful death and survival action under 42 Pa.C.S.A. §§ 8301, 8302, brought by the plaintiff, Camay Williams, administratrix of the estate of Marcel Mackey (herein, appellee), who died after being cared for by the defendants Willow Terrace and Albert Einstein Health Network (herein, appellants). The procedural history of the case is as follows:

The suit was initiated by the appellee in the Court of Common Pleas, Philadelphia County, Civil Division, March, 2009 (No. 03774). While it is impossible to adequately summarize a complaint of over 100 pages, in general, the appellee alleged that the various health care providers were negligent in their care and treatment of the decedent, Marcel Mackey thereby causing him harm. At the time of trial there were 10 named defendants: Willow Terrace; Albert Einstein Medical Center; Albert Einstein Health Network; Methodist Hospital; Thomas Jefferson University Hospitals; St. Agnes Continuing Care Center; St. Agnes Long Term Care, LLP; Mercy Health System; Hahnemann University Hospital; and Tenet HealthSystem Hahnemann, LCC.

The testimony revealed that the decedent was bom on October 8, 1939. He had a medical history of bilateral above the knee amputations, diabetes mellitus, multiple strokes, transient ischemic attacks, Bells Palsy, dementia, depression, hypertension, incontinence, anemia, peripheral vascular disease, and malabsorption. On March 3, 2007, at the age of 67 the decedent was admitted to Hahnemann University Hospital having not felt well for four to five days. His immediate complaints consisted of thirst and incontinence. Medical records indicate that the decedent had decreased movement on the right side resulting in a diagnosis of left middle cerebral artery stroke with aphasia. Moreover, a percutaneous endoscopic gastrostomy (PEG) tube was placed as the decedent could not swallow or eat. His chart reveals right pneumothorax, aspiration pneumonia, and episodes of diabetic ketoacidosis. Lab work on March 20, 2007 indicated an albumin level of 1.8, indicating protein malnutrition. Finally, during the decedent’s stay at Hahnemann University Hospital, he developed a stage II pressure ulcer on his sacrum.

On March 21, 2007, the decedent was transferred to St. Agnes Long Term Acute Care Hospital. His medical charts show total right hemiparesis as well an MRSA infection pseudomonas on the stage II ulcer. Treatment for the ulcer consisted of debridement and IV antibiotics. The decedent also received occupational therapy, speech pathology, consultation from a dietician, NPH insulin, antidepressants, and dietary supplements. On April 23, 2007, the decedent was transferred to St. Agnes Skilled Nursing Facility where he received a similar course of treatment. During this time his prealbumin levels were on a downward trend and his albumin levels were not within normal limits.

On May 11, 2007, the decedent entered Methodist Hospital. He had an elevated white blood cell count of more than 30,000, acute incident of sepsis, hypertension, dehydration, protein malnutrition, a UTI, as well as right upper and middle lobe aspiration pneumonia. Likewise, his sacral decubitus ulcer continued to be a problem. The decedent was deemed stable for discharge on June 4, 2007. While his family expressed an interest in taking the decedent home, they did not appear for training and directed the hospital to transfer the decedent to Willow Terrace, a skilled nursing facility.

From June 4, 2007 to January 29, 2008, the decedent was a resident of Willow Terrace, with several brief admissions to Albert Einstein Medical Center. From January 29,2008 to March 6,2008, he remained at Albert Einstein Medical Center. While under the care of the Albert Einstein Healthcare Network, the decedent’s chart reveals dehydration, protein malnutrition, recurrent aspiration with sequelae of aspiration pneumonia, the worsening of the pressure ulcers to the sacrum, poor hygiene, and infections.

The decedent was transferred to Montgomery Hospital on March 6, 2008 where he remained until his death on May 5, 2008. His death certificate lists the immediate cause of death as a severe end stage decubitus ulcer, skin breakdown, sepsis, failure to thrive, and metabolic encephalopathy. Other factors listed were hypertension and ventilator dependant respiratory failure.

The appellee argued at trial that the originally 10 named defendants were substandard in: care, staffing, assessments, oversight, and administration. Other than Methodist Hospital and Thomas Jefferson University Hospital, the jury found that all originally named defendants were negligent in the care and treatment of the decedent. On August 12, 2011, the jury found that only Willow Terrace (80%) and Albert Einstein Healthcare Network (20%) were the factual cause of harm. The jury awarded $1,500,000 in wrongful death damages (as well as $287,601 in stipulated past medical expenses under the wrongful death act) and $500,000 under the survival damages. 42 Pa.C.S.A. §§ 8301, 8302. Likewise, the jury found that the conduct of Willow Terrace and Albert Einstein Healthcare Network was “willful or wanton, or exhibited reckless indifference to the rights of the decedent.”

On September 21, 2011, the jury awarded $400,000 in punitive damages against Willow Terrace and $100,000 in punitive damages against Albert Einstein Healthcare Network. On June 20, 2012, the caption was amended to its current form and the appellant’s motions for a new trial or judgment notwithstanding the verdict were denied by this court. That same day, the appellee’s “precautionary post trial motion” was marked as moot as the appellant’s post trial motions were denied. By order docketed on August 7, 2012, this court found that delay damages were warranted in the amount of $114,000. As a result, the verdict was molded to $2,901,602 by the Honorable Sandra M. Moss on August 21, 2012 to reflect the above amounts. Judgment on the molded verdict was entered by the appellee on August 27, 2012. Both parties appealed that entry of judgment.

On September 19, 2012, the appellants filed a notice of appeal to the Superior Court under 2856 EDA 2012, while on October 1, 2012 the appellee filed a notice of appeal under 2857 EDA 2012. These cross appeals were consolidated by the Superior Court.

THE APPELLEE’S APPEAL IS UNTIMELY

Pa. R.A.P. 903(a) demands that “notice of appeal... shall be filed within 30 days after the entry of the order from which the appeal is taken.” Here, the appellee filed a “precautionary appeal” on October 1, 2012, from an order docketed on August 27, 2012; The August 27, 2012 order is compliant with Pa. R.A.P. 108. Even giving any mathematical benefit of the doubt, the appellee has failed to meet the 30 day requirement of Pa. R.A.P. 903(a). As a result, the appellee’s “precautionary appeal” should be quashed as untimely.

THE APPELLANT’S APPEAL

In response to this court’s Pa.R.A.P. § 1925(b) order for a concise statement of matters complained of on appeal, appellants delineated three matters for review. The first two matters address the punitive damages award and will be consolidated for the purposes of this opinion. The third matter complains of six separate trial errors. This court will address the appellant’s complaints as follows:

1. Punitive Damages: “There is no question that the finding of liability for punitive damages is so against the weight of the evidence as to constitute a miscarriage of justice that shocks the conscience. The evidence presented during the Plaintiff’s case-in-chief, even when viewed in a light most favorable to Plaintiff, falls short of the minimum required to warrant consideration of punitive damages as to compel the granting of a new trial so that right may be given another opportunity to prevail.”

As a preliminary matter, this court finds that this issue was preserved for appeal as the appellants moved for a non-suit and directed verdict on the issue of punitive damages; both were denied by this court. Likewise, this court denied the appellant’s judgment notwithstanding the verdict and motion for a new trial at the post trial stage.

The appellants argue that viewing the evidence in the light most favorable to the appellee, the appellee failed to show that the appellants acted in an outrageous fashion with reckless indifference to the rights of the deceased.

In reviewing a trial court’s decision whether or not to grant judgment in favor of one of the parties, we must consider the evidence, together with all favorable inferences drawn therefrom, in the light most favorable to the verdict winner. Our standard[s] of review when considering the motions for a directed verdict and judgment notwithstanding the verdict [JNOV] are identical. We will reverse a trial court’s grant or denial of a [directed verdict or JNOV] only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.
There are two bases upon which a [directed verdict or JNOV] can be entered; one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that, even with all factual inferences decided adverse to the movant, the law nonetheless requires a verdict in his favor. Whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

Campisi v. Acme Markets, Inc., 2006 Pa. Super. 368, 915 A.2d 117, 119 (2006) (quotation omitted). See Berg v. Nationwide Mutual Insurance Co., Inc., 2012 Pa. Super. 88, 44 A.3d 1164 (2012).

Here, the appellee called numerous employees of Willow Terrace and Albert Einstein Healthcare Network. Sharron Tull, CNA, former an employee of Willow Terrace testified that dependant patients such as the decedent should be turned every two hours and that the repositioning should be recorded. N.T. 7/21/11 at 127-138. Ms. Tull went on to testify that there were portions of the decedent’s chart which were completely void of any notation of repositioning. N.T. 7/21/11 at 143-146. Specifically, there were 33 eight hour shifts in August of 2007 in which there are no notations of repositioning. N.T. 7/21/11 at 144-146. Ms. Tull explained that she would complain of understaffing and that she would be pulled off of her floor without replacement. N.T. 7/21/11 at 148. Moreover, even with all staff present, it wasn’t possible to reposition patients every two hours. N.T. 7/21/11 at 149. Finally, Ms. Tull testified that when State Inspectors visited Willow Terrace the nurses were notified and there was always more staff present. N.T. 7/21/11 at 151.

Next the appellee called Gail Clark, LPN, another former employee of Willow Terrace. Ms. Tull testified that the decedent appeared to be in a lot pain and that his ulcer was “so bad they were unstagable.” N.T. 7/21/11 at 174. She described the ulcer as the size of a “place plate” and that it was infected, with a foul smell, and pus drainage. N.T. 7/21/11 at 177-180. Ms. Clark echoed that it was known that the decedent had to be repositioned every two hours or his wound worsen. N.T. 7/21/11 at 181. At Willow Terrace she was responsible for 30 patients a shift and would receive complaints from nursing aids and patient’s families that there was not enough help. N.T. 7/21/11 at 185-188. Like Ms. Tull, Ms. Clark testified that when the state inspectors came to Willow Terrace there would be more staff present. N.T. 7/21/11 at 193. When it came to wound care, Ms. Clark testified that when she would change the decedent’s bandages, that it was evident the bandages were not be changed every shift as ordered by the doctor. N.T. 7/21/11 at 196.

Zenobia Teel, RN, formerly a Director of Nursing at Willow Terrace also testified that residents, families, and nurses complained of understaffing. N.T. 7/22/11 at 46. Ms. Teel testified that range of motion was required twice a day for the decedent, but it only happened three times total on the 3pm-llpm shift from July 1, 2007 to July 23, 2007. N.T. 7/22/11 at 71. Moreover, during the month of July, the decedent was documented as being repositioned only six times during the 3pm-11pm shift. N.T. 7/22/11 at 73-74. The decedent’s Willow Terrace chart shows he was repositioned on October 23, 2007 and October 24, 2007 though, at that time he was at Albert Einstein Medical Center, not Willow Terrace. Ms. Teel agreed that there were incomplete chart entries revealing a lack of catheter care, showers, and skin assessments for the decedent. N.T. 7/22/11 at 81-84. Finally Ms. Teel detailed numerous deficiency citations Willow Terrace received from State Inspectors. N.T. 7/22/11 at 90-105.

Miriam Medina, RN, another former employee of Willow Terrance echoed complaints concerning understaffing, elaborating that they couldn’t get everything done with four CNAs on the floor; at times one CNA would be pulled leaving only three. N.T. 7/22/11 at 158-162. She also testified that whenever state inspectors were present there were was more staff. N.T. 7/22/11 at 162. Randy Crowder, a former Administrator of Willow Terrace testified that Willow Terrace received a citation from state inspectors on May 17, 2007 for failing to follow doctor’s orders; the decedent arrived one month after the citation. N.T. 7/25/11 at 25-26.

The appellee also called Marquella White, RN, a former Restorative Manager at Willow Terrace as a hostile witness. N.T. 7/25/11 at 60. After cross examination, she recalled testifying during her deposition that nurses, residents, as well as resident’s families complained of understaffing. Ms. White admitted that she passed those complaints onto the Director of Nursing, Ms. Teel. N.T. 7/25/11 at 72-74.

Beth Ann Lopresti, NP, worked for mobile wound consultants and visited Willow Terrace. N.T. 7/25/11 at 87-90. With the assistance of the decedent’s charts Ms. Lopresti detailed how his ulcer got progressively worse from June 20, 2007 to January 23, 2008. N.T. 7/25/11 at 108-158. Specifically, the ulcer was 3.8 cm x 5.1 cm with a depth of 1mm on June 20, 2007. N.T. 7/25/11 at 108. At each assessment, the wound was bigger, while more purple, black, and/or brown tissue had developed; this included a foul odor, infection, and yellow exude. N.T. 7/25/11 at 117-123. On November 28, 2007 she found a new wound at the base of his penis. N.T. 7/25/11 at 152. On December 12, 2007 the ulcer was 23 cm x 21cm with a depth of 3cm, she noted that “Sacral wound continues with copious drainage and foul odor. Wound continues to deteriorate and increase in size. Debridement, large amount of loose, foul smelling slough, with sterile scissors.” N.T. 7/25/11 at 154-156. At her last assessment, on January 23, 2008, the ulcer had grown from 3.8 cm x 5.1 cm to 25cm x 28cm with a depth of more than 4.5cm. N.T. 7/25/11 at 158.

The appellee also called Dr. Loren Lipson who was accepted by this court as an expert in geriatrics; geriatric medicine; diabetes; internal medicine; long-term and nursing home care; nutrition; and federal and state regulations applicable to nursing homes. N.T. 7/26/11 at 17-19. Dr. Lipson testified that in his opinion both Willow Terrace and Albert Einstein Medical Center were “woefully below the standard of care.” N.T. 7/27/11 at 53. Dr. Lipson also interpreted the death certificate, explaining that the ulcer, the ulcer’s infection, failure to thrive, and delirium were the cause of death. Moreover, he opined that Willow Terrace and Albert Einstein Medical Center were the facilities which played a substantial role in the death of the decedent. N.T. 7/27/11 at 54-56.

Finally, Suzanne Frederick, RN, testified as an expert in nursing standards of care in hospitals, nursing homes, and home administration. She testified that Willow Terrace failed to assess and treat the decedent’s pain, even though doctors had ordered premedication. N.T. 8/01/2011 at 93-98. In her review of the records she found that the real failure of Willow Terrace was the lack of turning and repositioning as well as lack of Foley catheter maintenance and range of motion tests. N.T. 8/01/2011 at 111-112. Ms. Frederick opined that repositioning is basic nursing care which was simply being ignored along with auditing their records and charts; not doing either was reckless and outrageous. N.T. 8/01/2011 at 22. Also outrageous was the fact that charts were filled out for the decedent at Willow Terrace while he was at Albert Einstein Medical Center. N.T. 8/01/2011 at 126. Likewise, she testified that there appeared to be a lack of communication and supervision in regards to the worsening wound. N.T. 8/01/2011 at 135-136. Finally Ms. Frederick clarified that the various state and federal surveys (or deficiency notices) put Willow Terrace on notice that they were not meeting the standard of care. N.T. 8/02/2011 at 124.

Punitive damages are regarded as an extreme remedy which should be reserved for the most exceptional matters. Martin v. Johns-Manville Corp., 508 Pa. 154, 194 A.2d 1088 (1985). In such cases, the plaintiff is required to establish that the defendants acted in an outrageous fashion via “evil motive or reckless indifference to the rights others.” Id. More specifically, the plaintiff must show that the conduct of the defendant was “so outrageous as to demonstrate willful, wanton or reckless conduct.” Hutchinson v. Luddy, 582 Pa. 114, 870 A.2d 766, 770 (2005). A defendant acts recklessly when “his conduct creates an unreasonable risk of physical harm to another.. . substantially greater than that which is necessary to make his conduct negligent.” Id. at 771; see also SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702, 704 (1991) (finding that even gross negligence will not suffice to establish punitive damages are warranted).

In Scampone v. Grane Healthcare Co., our Superior Court found that the issue of punitive damages should have been submitted to the jury because the defendant’s “acted with a reckless disregard to the right of others and created an unreasonable risk of harm.” 2010 Pa. Super. 124, 11 A.3d 967 (2010), aff’d on other grounds 57 A.3d 582 (2012). There, the Superior Court panel cited the following:

The record was replete with evidence that the facility was chronically understaffed and complaints from staff continually went unheeded. Grane and Highland employees not only were aware of the understaffing that was leading to improper patient care, they deliberately altered records to hide that substandard care by altering ADLs that actually established certain care was not rendered. Records concerning the administration of medications were falsified. Staffing levels were increased during state inspections and then reduced after the inspection was concluded. Deliberately altering patient records to show care was rendered that was actually not is outrageous and warrants submission of the question of punitive damages to the jury. Other evidence supporting an award of punitive damages included Madeline’s lack of nursing care for a critical nineteen days prior to her death and her deplorable condition on January 30, 2004.

Id. at P75; see also Hall v. Episcopal Long Term Care, 2012 Pa. Super. 205, 54 A.3d 381 (2012) (Also finding evidence of understaffing, increased staffing for state inspections, evidence of falsified logs, and lack of care justified submitting the question of punitive damages to the jury.)

Here, viewing the evidence in the light most favorable to the appellee, while accepting as true all evidence which supports the appellee’s claim for punitive damages, the appellee established that the appellants acted in an outrageous fashion in reckless disregard to the rights of their patients and created an unreasonable risk of physical harm to the decedent. Scampone, supra. In the case at hand, a constant in the record is evidence of chronic understaffing which was complained about by nurses, patients, and there families. Testimony revealed that this understaffing lead to an inability to properly care for patients. This is evidenced by the decedent’s chart, which shows countless examples of him not being repositioned every two hours as medically required. For instance the decedent’s medical charts showed countless instances of entire shifts where he was not repositioned. Specifically, testimony revealed 58 eight-hour shifts in which the decedent was never repositioned. That said, there was evidence in the charting that the decedent was “repositioned” at Willow Terrace when he was not present at the facility. The record reflects that the decedent’s ulcer continually grew (3.8 cm x 5.1 cm to 25cm x 28cm with a depth of more than 4.5cm) while he was a patient at Willow Terrace; this ulcer was eventually listed as a cause of his death.

Based on the aforementioned there was more than enough evidence in the record to submit the question of punitive damages to the jury.

2. There were no Trial Errors

The appellants list six separate trial errors based on evidentiary rulings and request a new trial. A trial court’s decisions on evidentiary rulings are controlled by its sound discretion and shall not be disturbed unless a clear abuse of discretion is demonstrated. Sutherland v. Monongahela Valley Hospital, 2004 Pa. Super. 245, 856 A.2d 55, 59 (2004). The standard of review for a trial court’s evidentiary rulings are “extremely narrow” and may only be reversed upon a showing of a manifest abuse of discretion. King v. Stefenelli, 2004 Pa. Super. 438, 862 A.2d 666, 675 (2004). Even with a showing of an erroneous ruling constituting a manifest abuse of discretion, the aggrieved party must also show the ruling was “harmful or prejudicial . . . For evidence to be admissible, it must be competent and relevant. Evidence is competent if it is material to the issue to be determined at trial. Evidence is relevant if it tends to prove or disprove a material fact.” American Future Systems, Inc. v. BBB, 2005 Pa. Super. 103, 872 A.2d 1202, 1212 (2005).

In this case, there was no abuse of discretion committed by the trial court. The appellants have raised six separate objections which are discussed below in five categories.

This court properly barred reference to the appellant’s not-for-profit status.

The appellants state that this court granted the appellee’s motion in Limine (#11062036) to prevent appellants from informing the jury that they are not-for-profit entities. Appellant’s 1925(b) response at 2. Here, this court determined that until the punitive damages stage of the trial that non-profit status was not relevant to the question of negligence. This evidence was not relevant to the issue of liability and would have had the potential to confuse the jury. Pa.R.E. 401-403. While this court originally stated the appellee’s motion was denied, it clarified the opposite on the record. N.T. 7/20/2011 at 21. Further, the order in relation to this motion improperly states that the motion was denied.

All witnesses were sequestered

This court sequestered all witnesses at the beginning of trial. The appellant’s appeal the instance when their expert was sequestered during the testimony of the appellee’s nursing expert Suzanne Frederick. N.T. 8/1/2011 at 5-7; appellant’s 1925(b) response at 3. Pennsylvania Rule of Evidence 615 provides that “the court may order witnesses sequestered so that they cannot learn of the testimony of other witnesses.” The trial court’s decision to deny or grant a motion to sequester witnesses can only be overturned if there is a clear abuse of discretion. Commonwealth v. Fant, 480 Pa. 586, 391 A.2d 1040 (1978). Here, this court made a ruling to sequester all witnesses within its sound discretion.

Experts are permitted to testify within the scope of their knowledge

Appellee’s experts, Dr. Loren Lipson and Suzanne Frederick, RN, testified that within their respective professions standard of care, that the conduct of the appellants was both reckless and outrageous. At no time did these experts testify as to punitive damages. Moreover, the appellants take issue with the fact that Ms. Frederick was allowed to testify that in reviewing the records, the deviations of Willow Terrace and Albert Einstein Healthcare Network resulted in an increased risk of harm to the decedent.

The admission of expert testimony is within the trial court’s sound discretion and we will not disturb that decision without a showing of manifest abuse of discretion. An expert’s testimony on direct examination is to be limited to the fair scope of the expert’s pretrial report. In applying the fair scope rule, we focus on the word “fair.” Departure from the expert’s report becomes a concern if the trial testimony “would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the response.” Therefore, the opposing party must be prejudiced as a result of the testimony going beyond the fair scope of the expert’s report before admission of the testimony is considered reversible error.

Coffey v. Minwax Company, Inc., 2000 Pa. Super. 395, 764 A.2d 616, 620-621 (2000). Here, the decision to allow the expert testimony as to standard of care was well within the sound discretion of this court.

Dr. Robert Perkel was not qualified to testify about nursing home standards of care

Dr. Robert Perkel was called as a appellant’s expert and accepted as an expert in “primary care of medicine, both hospital-based and outpatient based, and geriatric medicine.” N.T. 8/4/2011 at 98. On voir dire, Dr. Perkel testified that he had never been a medical director at a nursing home or long-term care facility; has never had any privileges to treat in a nursing home; and had not seen a patient in a nursing home in more than 20 years. N.T. 8/4/2011 at 100. Further, Dr. Perkel was not familiar with nursing home regulations and requirements. N.T. 8/4/2011 at 100-101.

A witness is qualified to testify as an expert in aparticular field if they have the knowledge, skill, expertise, training, or education. Pa.R.E. 702. Here, Dr. Perkel had none of the aforementioned requirements to be accepted as an expert in nursing home standard of care. Like above, this determination was in the sound discretion of this court. Coffey v. Minwax Company, supra.

Stipulated medical expenses as part of wrongful death

The parties stipulated that the amount of past medical expenses was $287,601. N.T. 8/8/11 at 161-162. There was a disagreement as to how that should be reflected on the verdict sheet. N.T. 8/8/11 at 160-170. After hearing argument at the start of the charging conference, this court stated “. . . you work it out by tomorrow, because I am going back and forth with you. We are never going to get anything done this afternoon. So when you leave court today work it out and bring me what is an agreed upon verdict sheet. N.T. 8/8/11 at 170. The record does not contain any further discussion regarding the issue or an objection. The verdict sheet had a blank section for “wrongful death” and below it “past medical expenses under wrongful death act: $287,601”.

A timely objection is required to preserve an issue for appeal, as the trial court must be given an opportunity to correct possible error prior to post-trial remedies. Samuel-Bassett v. Kia Motors Am., Inc., 2011 Pa. LEXIS 2896, 34 A.3d 1 (Pa. 2011); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Pa.R.C.P. 227.1(b). The Supreme Court of Pennsylvania found that a post-trial challenge to a jury’s answers to special interrogatories was waived because it was not preserved by the required objection. City of Philadelphia v. Gray, 534 Pa. 467, 633 A.2d 1090 (1993). Here the record does not contain an objection and as such the issue was waived. That said, even if the appellant’s had properly preserved the issue for appeal, the decision to include the “past medical expenses under wrongful death act” was within the sound discretion of this court and done so for the benefit of the jury. Sutherland v. Monongahela Valley Hospital, 2004 Pa. Super. 245, 856 A.2d 55, 59 (2004)

CONCLUSION

For all of the above reasons, this court respectfully requests that the August 27, 2012 order, the decisions of this court, and jury, be affirmed.

      . Following a jury verdict against Willow Terrace and Albert Einstein Healthcare Network, the caption was amended by the court at the request of the parties found not liable on June 20,2012.

      . Willow Terrace was under the control of Albert Einstein Medical Center, a tertiary acute care hospital. Both of these facilities are part of the Albert Einstein Health Network.

      . The Honorable Sandra M. Moss handled the matter during a brief period in which this writer was not certified as a senior judge.

      . The appellee’s 1925(b) statement refers to this as a “precautionary appeal”

      . Appellant’s 1925(b) statement.