author: ZULICK, J,

text:
    Kephart Trucking Co. v. Jackson Fiorentino LLC

      C.P. of Monroe County,
    nos. 1400 CV 2007 and 10315 CV 2008.

      Michael F. Nerone and Timothy A. Montgomery, for plaintiff.

      Janet Jackson, for defendant Jackson Fiorentino.

      Stephen G. Bresset, for defendant Marcin.

      JohnJ.AponickJr., for defendant Marshall, Dennehey, Warner, Coleman and Goggin.

      Jason Spak, for TIG Specialty Insurance Company.
    April 9, 2010
   ZULICK, J,

Plaintiff Kephart Trucking Co. filed a complaint on December 7, 2009 seeking damages from the defendants arising from an execution on a judgment later determined to be void. These two actions were consolidated by order of November 2,2009. Defendants Jackson Fiorentino LLC, Janet Jackson, Esquire and Walter Marcin filed preliminary objections to the plaintiff’s complaint on December 23, 2009. The matter was listed for argument on February 1,2010. The parties filed briefs and argued their positions on that date.

DISCUSSION

Defendants Jackson Fiorentino, Janet Jackson, Esquire and Walter Marcin have raised numerous preliminary objections.

1. Lack of Subject Matter Jurisdiction

The Defendants first claim that this court lacks subject matter jurisdiction. “The test for determining whether a court has jurisdiction of the subject matter is the competency of the court to determine controversies of the general class to which the case presented for its consideration belongs, and the controlling question is whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case.” Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, 309, 102 A.2d 170, 172 (1954). The complaint seeks damages for negligence, intentional misrepresentation and abuse of process against these defendants. The Pennsylvania Courts of Common Pleas have broad jurisdiction over tort actions. The Judiciary Act provides in 42 Pa.C.S. §931 as follows:

“(a) General rule. — Except where exclusive original jurisdiction of an action or proceeding is by statute or by general rule adopted pursuant to section 503 (relating to reassignment of matters) vested in another court of this Commonwealth, the courts of common pleas shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas.” 42 Pa.C.S. §931.

The phrase “jurisdiction of the cause of action” means “the competency of the particular court to determine controversies of the general class to which the case then presented for its consideration belongs.” GoodrichAmram 2d §1017(b):7, at 52. (footnotes omitted) There is no question that this court has subject matter jurisdiction over these kinds of torts.

Defendants contend that subject matter jurisdiction is lacking because this dispute arises from an underlying workers’ compensation action which is now final. A review of the rather complicated factual history alleged in this case is necessary. Kephart is a trucking company headquartered in Clearfield County, Pennsylvania. Complaint, ¶1. The complaint alleges that Kephart was a party to an agreement with America’s PEO, under which America’s PEO supplied commercial truck drivers to Kephart. America’s PEO was responsible to provide workers’ compensation benefits for the drivers. America’s PEO then merged with the Cura Group. Walter Marcin drove Kephart’s truck and was injured on January 6, 2001. He retained Janet Jackson, Esquire and her firm, Jackson Fiorentino, to represent him in filing a workers’ compensation claim. After the claim was filed, the parties filed a written stipulation requesting that:

“the workers’ compensation judge grant claimant’s claim petition as against America’s PEO/The Cura Group in accordance with the terms of this stipulation. The parties further request that the workers’ compensation judge deny and dismiss claimant’s claim petition as against Kephart Trucking and TIG/Managed Comp.” Stipulation attached as exhibit A to the complaint.

This stipulation was adopted by order of June 18,2003 by Workers’ Compensation Judge Thomas M. Kutz.

Later in the litigation, Kephart alleges that Attorney Jackson and Marcin improperly included Kephart in a compromise and release agreement between Marcin and the Cura Group. The compromise and release agreement incorrectly identified Kephart as Marcin’s employer, as well as the Cura Group. After the Cura Group defaulted on payments to Marcin, Attorney Jackson filed a series of penalty petitions against Kephart, and later obtained a judgment on those penalty petitions in this court. She then used that judgment to begin execution proceedings against Kephart’s assets. The complaint contends that at the time Attorney Jackson filed the penalty petitions against Kephart, she knew or should have known that Kephart had previously been dismissed from the case. Complaint, ¶57.

The complaint further alleges that Attorney Jackson represented to Attorney Koerber, Kephart’s counsel that the judgment was valid and in reliance on that representation, Kephart paid $75,000 to Marcin as an installment payment on the judgment to avoid a levy on Kephart’s assets. Complaint, ¶¶ 62, 63, 110.

When Kephart’s counsel learned of the June 18,2003 order dismissing Kephart from the workers’ compensation litigation, he petitioned to open the judgment in this court. After a hearing, that request was denied, as the workers’ compensation decision was final and had not been challenged by Kephart. Opinion and order of July 3,2007, no. 8129 Civil 2006, and no. 10416 Civil 2006, Zulick, J.

Kephart then sought to open the workers’ compensation decision. On April 14, 2008, the workers’ compensation appeal board vacated the three penalty awards against Kephart, stating:

“WCJ Kurtz had dismissed the claim petition against Kephart pursuant to a written stipulation entered into with claimant’s counsel and which the parties submitted to the WCJ who adopted it in his June 19,2003 decision and order. As a result, there was no award against Kephart upon which to base a penalty, since Kephart was not responsible for this claim. To hold otherwise would be to say that Kephart and its counsel could not rely on a stipulation from claimant’s counsel that dismissed Kephart from the case.” Decision of the Workers’ Compensation Appeal Board, dated April 14,2008, vacating the penalty petitions against Kephart Trucking Inc., page 8. See exhibit Ato Kephart’s preliminary objections.

When this decision was rendered, the Kephart petitions to open the judgments which had been filed in this court were on appeal in the Pennsylvania Superior Court. The case was remanded to this court, which then opened the judgments. During those remanded proceedings, defendants argued that the nunc pro tunc order of the Workers’ Compensation Appeal Board only related to the penalty awards, and not the underlying workers’ compensation judgment in Marcin’s favor.

Defendants now repeat this argument here, contending that Judge Kutz’s decision has never been opened and that this court therefore has no subject matter jurisdiction. However, this is a specious argument. Kephart went back to the WCAB in a second appeal nunc pro tunc after this argument was made in the petition to open proceedings in this court. Kephart sought to appeal nunc pro tunc Judge Kutz’s order following the compromise and release that named Kephart as an employer. The WCAB ruled that:

“The compromise and release agreement adopted by the WCJ on March 2,2005 therefore, was only between Cura and claimant, since Kephart had been dismissed from these proceedings and was no longer a party to the claim at the time of the C&R.” Decision of the Workers’ Compensation Appeal Board, dated December 23,2008; see exhibit B of plaintiff’s response to preliminary objections.

The WCAB then dismissed Kephart’s second nunc pro tunc appeal, because as a dismissed party, Kephart had no standing to appeal the decision against the Cura Group. Id.

These two rulings by the WCAB clearly establish that Kephart’s involvement in the workers’ compensation proceedings came to an end when the agreement dismissing Kephart was approved on June 19,2003. Defendants’ preliminary objection as to subject matter jurisdiction will be denied.

2. Defendants Jackson Fiorentino and Janet Jackson, Esquire s Demurrer

Defendants have raised a demurrer to Kephart’s claims. “A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient. Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001), citing Pa.R.C.P. 1028(a)(4). ‘Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer.’ Id. at 321-22. (citation omitted) All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true. Id. at 321.” Cooper v. Frankford Health Care System Inc. 960 A.2d 134, 143 (Pa. Super. 2008). A preliminary objection in the nature of a demurrer cannot be used to raise substantive defenses against a plaintiff’s right to recover. Goodrich Amram §1017(b):25.

Preliminary objections which result in the dismissal of the suit or the denial of the claim should be sustained only in cases which are clear and free from doubt. 5 Standard Pennsylvania Practice 2d §25.71 at 239-40; see also, D’Elia v. Folino, 933 A.2d 117, 121 (Pa. Super. 2007). Where any doubt exists as to whether a demurrer should be sustained, it must be resolved in favor of overruling the demurrer. Kyle v. McNamara & Criste, 506 Pa. 631, 634, 487 A.2d 814, 816 (1985); Baker v. Magnetic Analysis Corporation, 347 Pa. Super. 188, 192, 500 A.2d 470, 472 (1985); Preiser v. Rosenzweig, 418 Pa. Super. 341, 614 A.2d 303, 305 (1992).

Attorney Jackson and her firm contend that they have a defense of absolute immunity because Attorney Jackson’s actions were undertaken in the course of representing her client in a judicial proceeding. They cite Brown v. Delaware Valley Transplant Program, 372 Pa. Super. 629, 539 A.2d 1372 (1988) in support of this defense. In Brown, an attorney was sued for intentional infliction of emotional distress when he filed a petition on behalf of his client, a hospital, which sought to harvest vital organs from a patient who was brain dead. The petition alleged that the patient’s identity was unknown. His heirs later sued, alleging that the defendants knew the patient’s identity, but failed to disclose it to the court and the next of kin.

The Brown court sustained the demurrer of the defendant attorney. The court found that the only allegation against the attorney was that he had drafted the pleading:

“Contrary to the assertion of appellants, the absolute privilege accorded an attorney in representation of a cli-

ent in judicial proceedings is not limited to protection against defamation actions. The immunity bars actions for tortious behavior by an attorney other than defamation, so long as it was a communication pertinent to any stage of a judicial proceeding. Thus, the privilege barred claims for intentional interference with contractual or prospective contractual relations, as well as defamation. Pelagatti v. Cohen, 370 Pa. Super. 422, 434, 536 A.2d 1337, 1343 (1987). The key is whether the pertinent communication was undertaken in connection with representation of a client in a judicial proceeding, Id.; Smith v. Griffiths, 327 Pa. Super. 418, 423-27, 476 A.2d 22, 24-26 (1984). The trial court correctly applied this standard to bar the claim of civil conspiracy against Attorney Heed, as all Heed’s activities were related to a judicial proceeding. Likewise, the well-pleaded averments of the amended complaint related to mutilation of a corpse and assault and battery fail to state a cause of action against Heed in light of the immunity accorded his activities undertaken in relation to the litigation.” Brown, 372 Pa. Super, at 633-34, 539 A.2d at 1374-75.

However, other cases have allowed claims of abuse of process to proceed against an attorney:

“if [the] attorney’s conduct is motivated by malice or if he commits an intentional tort. [In those situations, the attorney] may become personally liable for damage suffered by a third person. 7 Am.Jur.2d, Attorneys at Law §233. See Worldwide Marine Trading Corp. v. Marine Transport Service Inc., [527 F. Supp. 581 (E.D. Pa. 1981)]; Adelman v. Rosenbaum, 133 Pa. Super. 386, 3 A.2d 15 (1938); Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780, 173 A.L.R. 819 (1947); Roberts v. Ball, Hunt, Hart, Brown & Baerwitz, 57 Cal.App.3d 104, 128 Cal.Rptr. 901 (1976); Annotation, Liability of Attorney for Malicious Prosecution, 27 A.L.R.3d 1113 et seq. See also, Pride v. Pride, 29 Del.Co. 352 (Pa.1939).” Smith v. Griffiths, 327 Pa.Super. 418, 427, 476 A.2d 22, 26-27 (1984).

The case oí Adelman v. Rosenbaum, supra, is instructive. There the defendant attorney executed on a judgment in favor of his client against Samuel Adelman. He directed the sheriff to levy on the assets of Samuel Adelman at 84 Granite Street. When the sheriff went to make the levy, he discovered that the premises were occupied by a different person, George Adelman, not Samuel Adelman, and so advised the plaintiff’s attorney, Rosenbaum. Attorney Rosenbaum nevertheless insisted that the sheriff carry out the levy. George Adelman contacted the attorney personally, and when that was unsuccessful, through his own attorney to advise him that he was not the judgment debtor and that the property in the home belonged to him, not the judgment debtor. The defendant attorney directed the sheriff to make the levy despite these protestations. Following the levy, the attorney was sued for abuse of process.

The Superior Court held that a cause of action for abuse of legal process was properly submitted to the jury over the attorney’s claim of absolute privilege:

“The defendant cannot invoke the plea of privilege as an attorney acting for a client. The plaintiffs’ evidence, accepted by the jury, disclosed malice, and malicious action is not sheltered by any privilege. An attorney is personally liable to a third party when he is guilty of fraud, collusion, or a malicious or tortious act, and he is liable, as anyone else, when he encourages and induces another to commit a trespass. This rule is stated in 1 Am.Jur. p. 189, §31, as follows: ‘An attorney may be held liable for an abuse of process, where the acts complained of are his own personal acts, or the acts of others wholly instigated and carried on by him.’ See also, 6 C J. p. 625; 7 C.J.S. Attorney and Client, page 834, §52; Welsh v. Cooper, 8 Pa. 217; McMurtrie v. Stewart, 21 Pa. 322; Morrison v. Nipple, 39 Pa. Super. 184; Shane v. Gulf Refining Co., 114 Pa. Super. 87, 173 A. 738. When the levy was made upon the goods of the plaintiffs, they lost dominion over their property and a trespass was committed, notwithstanding there was no sale or removal of the goods and the levy was later abandoned. Paxton v. Steckel, 2 Pa. 93; Welsh v. Bell, 32 Pa. 12; Shane v. Gulf Refining Co., supra.” Adelman, 133 Pa. Super, at 391, 3 A.2d at 18.

The allegation here is that Attorney Jackson stipulated that Kephart would be dismissed as a party to the workers’ compensation proceeding. This written stipulation was confirmed by court order. The complaint alleges that she then represented that Kephart was still a party to the proceeding, and obtained penalties against Kephart, which she later converted to judgment and used to levy on Kephart’s assets. The WCAB later determined that the compromise and release and the penalties against Kephart were void. Viewing the complaint in the light most favorable to the plaintiff as I am required to do at this stage of the proceedings, the attorney defendants’ claim of absolute privilege does not defeat Kephart’s claims. The demurrer will be denied.

3. Defendants Mar cin, Jackson and Jackson Fiorentino’s Demurrer Based upon an Estoppel Theory

Defendants again contend that Kephart’s action is precluded by the workers’ compensation decision in Marcin’s favor in the order confirming the compromise and release agreement in the workers’ compensation proceedings. They contend that Kephart is collaterally estopped from proceeding in this case, citing Grant v. GAF Corporation, 415 Pa. Super. 137, 608 A.2d 1047 (1992) for the proposition that “issue preclusion prevents relitigation of an issue where the party against whom it is used ... had a full and fair opportunity to litigate the issue in the prior action.” Id. at 150, 600 A.2d at 1054, citing Hebden v. W.C.A.B. (Bethenergy Mines), 142 Pa. Commw. 176, 188, 597 A.2d 182, 188 (1991).

While this argument would be correct if the original penalty petitions and decision of the workers’ compensation court had remained undisturbed, as has already been discussed, Kephart successfully sought nunc pro tunc relief. The WCAB decided on April 14,2008 that Kephart was dismissed from the workers’ compensation litigation by the June 19, 2003 stipulation and order, and that the penalties assessed against it were void. The WCAB also ruled that Kephart was not a party to the order confirming Marcin’s compromise and release. This was reiterated in the December 23, 2008 decision of the WCAB. Kephart is not prevented from going forward by the decisions of the WCAB.

Defendants also argue that Kephart is estopped from making a claim against the defendants due the agreement the parties reached to stop the levy on Kephart’s assets. The defendants contend that Kephart, through Attorney Koerber, put forth a proposal which resulted in a forebearance by Marcin from further execution on Kephart’s assets. Kephart alleges in the complaint:

“(61) On or about December 26,2006, Attorney Koerber, counsel for plaintiff, being aware that a writ of execution had been filed, was concerned that the execution upon plaintiff’s assets was imminent.

“(110) Additionally, defendant Jackson, by and on behalf of defendants Jackson Fiorentino and Marcin, intentionally misrepresented to Attorney Koerber, counsel for plaintiff, that valid judgments had been obtained against plaintiff for purposes of extracting payments from plaintiff when in fact these defendants knew that there were no valid judgments against plaintiff.” Complaint, ¶¶ 61,110.

The complaint goes on to allege that Attorney Koerber agreed to a payment schedule of the judgments to stop the levy, and Kephart paid Marcin $75,000 on that schedule. Complaint, ¶¶ 63, 64.

Kephart argues that an equitable estoppel defense is not available to the defendants because they acted with unclean hands. The doctrine of unclean hands is available when the plaintiff in an equity suit has been guilty of unconscionable or unlawful conduct respecting the transaction before the court. Comstock v. Thompson, 286 Pa. 457, 461, 133 A. 638 (1926); Walacavage v. Walacavage 168 Pa. Super. 334, 338, 77 A.2d 723, 725 (1951). Accepting the facts as alleged, where Kephart had been threatened with imminent levy on judgments which defendants knew to have been obtained after a party had been dismissed from the litigation, the fact that this agreement and payment were made to stop the levy does not bar the claim to recover damages.

3. Defendants Marcin, Jackson and Jackson Fiorentino’s Motion To Strike

Defendants contend that Kephart has failed to attach writings to the complaint as required by Pa.R.C.P. 1019(h) and (i). Defendants list 10 paragraphs of the complaint which refer to writings. Pa.R.C.P. 1019(h) provides as follows:

“(h) When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written.”

This action is based upon tort, not contract, and Kephart is not relying upon an agreement as the basis for the suit. The parties’ written stipulation in the workers’ compensation action and the workers’ compensation judges and WCAB orders have been referenced or attached as exhibits to the complaint.

Pa.R.C.P. 1019 (i) provides:

“(i) when any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.”

The referenced paragraphs generally relate to evidence in the case, which may be obtained through discovery. For instance, defendants object to paragraph seven of the complaint, which states that “(°)n or before January 16, 2001, plaintiff was a party to an agreement with America’s PEO, a professional employment organization, by which America’s PEO supplied commercial truck drivers to plaintiff.” The reference to an agreement was part of the factual background of the dispute, not an agreement that Kephart relies upon for relief in this case. The other paragraphs complained of likewise contain references to facts. This objection will be denied.

Defendants also object to the fact that Counts IV, (V is missing) VI and VII of the complaint are improper because they include claims against Attorney Jackson, Jackson Fiorentino and Marcin. They cite Pa.R.C.P. 1020(a), which provides that: “(a) The plaintiff may state in the complaint more than one cause of action cognizable in a civil action against the same defendant.”

There is nothing improper about the inclusion of all three defendants in these counts. The complaint sets forth the claims against Attorney Jackson and seeks to impose vicarious liability upon her firm and Marcin for those actions. This objection will be denied.

4. Defendants ’ Motion for More Specific Pleading

Defendants contend that the complaint is not sufficiently specific as to damages. The complaint seeks the following damages:

“a. The payment of $75,000 under duress, to stop the enforcement of the writ of execution which was in the process of being levied upon four of plaintiff’s tractors.

“b. Remedial legal fees that have accrued and are continuing to accrue with respect to the ongoing litigation with Martin.”

Pa.R.C.R 1019(f) provides that “averments of... items of special damage shall be specifically stated.” Here plaintiff has specifically identified the $75,000 payment it seeks, but has not identified the attorneys’ fees it claims to have incurred. While Kephart asserts that its fees are ongoing, the amount of fees it claims to date is a liquidated amount and should be specifically stated. “Special damages” are damages that are the “actual, but not the necessary, result of the injury complained of, and which, in fact, follow it as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions.” See Aerospace Finance Leasing Inc. v. New Hampshire Insurance Co., 696 A.2d 810, 811 n.5 (Pa. Super. 1997). (citation omitted) Morin v. Brassington, 871 A.2d 844, 848-49 (Pa. Super. 2005). Kephart has been involved in litigation related to this claim for years and defendants are entitled to know what damages it is actually claiming to date. To the extent that this claim for fees is ongoing, that may be alleged and those later fees determined by discovery. This objection will be sustained.

5. Defendants ’ Objection That a Necessary Party Has Not Been Joined

Defendants contend that Attorney Koerber is a necessary party in this litigation because he negotiated the settlement with Attorney Jackson, memorialized the settlement and Kephart paid “the first of three installments owed to Janet Jackson’s client under the terms of the settlement.” Defendants contend that Kephart has a claim against Attorney Koerber for negligent representation.

Necessary parties are those whose presence, while not indispensable, is essential if the court is to completely resolve the controversy before it and render relief. York-Adams County Constables Association v. Court of Common Pleas of York County, 81 Pa. Commw. 566, 474 A.2d 79 (1984). Pa. R.C.P. 2229 provides:

“Rule 2229. Permissive Joinder

“b) A plaintiff may join as defendants persons against whom he asserts any right to relief jointly, severally, separately or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences if any common question of law or fact affecting the liabilities of all such persons will arise in the action.”

That provision of Rule 2229(b) allows a plaintiff to join as defendants persons against whom he may assert any right to relief jointly, severally, separately, or in the alternative. Cummins v. Firestone Tire & Rubber Co., 344 Pa. Super. 9, 18 n.3, 495 A.2d 963, 968 n.3 (1985). The rule is permissive, and a plaintiff may recover fully from a single joint tortfeasor. Baker v. AC&S Inc. 729 A.2d 1140 (Pa. Super. 1999).

ORDER

And now, April 9, 2010, following argument on defendants Janet Jackson, Esquire, Jackson Fiorentino and Walter Marcin’s preliminary objections, and consideration of the parties’ briefs, it is ordered as follows:

(1) Defendant’s preliminary objection seeking a more specific complaint is granted. Plaintiff is given leave to file an amended complaint, itemizing the attorneys’ fees and costs it has incurred to date, which it claims as damages. Plaintiff may aver that these fees and costs are ongoing.

(2) Defendants’ remaining preliminary objections are denied.

(3) Plaintiff shall file its amended complaint within twenty days.


source: Caselaw Access Project

author: MILLER, J.,

license: Public Domain

text:
    MacLeod v. Russo

      C.P. of Monroe County,
    no. 11689 CIVIL 2008.
    Anthony S. Cimini, for plaintiff.
    Steven D. Costello, for defendant Russo.
    Desiree Wilson, for Defendant Mehta.
    James A. Doherty Jr., for defendant Monroe County Surgical Associates.
    Joseph T. Healey, for defendants Pocono Medical Center and Pocono Health System.
    May 6, 2010
   MILLER, J.,

On December 8, 2006 defendant David P. Russo M.D. performed a laparoscopic cholecystectomy on plaintiff’s decedent Douglas MacLeod at Pocono Medical Center. He was assisted by defendant Mukesh J. Mehta M.D. After the procedure, defendant Russo immediately left for his vacation home in Cape May, New Jersey without securing surgical coverage in his place. Complications arose the next day. Plaintiff alleges this resulted from defendant Russo failing to properly identify and clip decedent’s cystic artery during surgery. Decedent was transferred to Lehigh Valley Hospital where he was treated for cystic artery bleeding, and then discharged to Good Shepherd Specialty Hospital where he remained until March 23,2007. Over the course of the next 11 months decedent had numerous hospitalizations. He died on March 3,2008. At a subsequent date, defendant Russo admitted to a drug and alcohol addiction. Decedent’s wife filed this medical negligence action on August 18, 2009.

All defendants have filed preliminary objections which were argued April 5, 2010. We will discuss each separately in this opinion.

I. PRELIMINARY OBJECTIONS OF DAVID P. RUSSO M.D. AND MONROE COUNTY SURGICAL ASSOCIATES

Defendant Russo and defendant Monroe County Surgical Associates P.C. both raise preliminary objections to the complaint on five grounds: (1) a motion to strike scandalous and impertinent matters; (2) a demurrer to plaintiff’s punitive damage claims; (3) insufficient specificity; (4) a demurrer to plaintiff’s Survival Act claim and; (5) a demurrer to plaintiff’s Wrongful Death Act claims.

Defendants first argue the allegations referencing addictions and conspiratorial methods of procuring prescription drugs in paragraphs 25-32, 42, 58, 59, 64(n), 64(p), 64(q), 91-93, 99, 100(d) and 104 of plaintiff’s amended complaint must be stricken for containing impertinent or scandalous material. Pennsylvania Rule of Civil Procedure 1028(a)(2) permits a party to file preliminary objections to strike impertinent or scandalous matter included in a pleading. Our Pennsylvania Commonwealth Court held in Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115 (Pa. Commw. 1998) that scandalous and impertinent allegations are immaterial and inappropriate to the cause of action.

Plaintiff argues that both defendant Russo’s drug use and the steps taken to procure drugs are relevant to the cause of action. Plaintiff believes these allegations are necessary in establishing a breach of standard of care and reckless behavior. However, we agree that many of plaintiff’s allegations referencing defendant Russo’s drug addiction are immaterial to establishing a cause of action or claims for punitive damages. These allegations do not serve as established facts in the cause of action but merely add unnecessary emotional weight. Plaintiff’s detailing the conspiratorial means defendant Russo employed to obtain prescription drugs are also not relevant to the underlying medical malpractice cause of action. Further, several references to defendant Russo’s drug addiction allege events outside of decedent’s treatment dates. These allegations are also not relevant in establishing defendant Russo’s behavior for the purpose of a punitive damages request. Rather they serve only to support defendant Russo’s admitted drug abuse and addiction. Thus, they are immaterial to plaintiff’s cause of action.

Conversely, factual allegations of defendant Russo’s drug addiction establishing impairment and state of mind at the time of decedent’s treatment are relevant to plaintiff’s cause of action and claims for punitive damages. Factual allegations related to knowledge of defendant Russo’s employers are also relevant to plaintiff’s cause of action. We are not prepared to find all allegations immaterial at this early stage. As such we find paragraphs 25, 26, 27, 31, 32, 42, 58, 64(p), 92, and 93 to contain impertinent and scandalous material and will sustain defendants’ preliminary objection to strike these paragraphs.

Next, moving defendants raise a preliminary objection in the form of a demurrer to plaintiff’s claims for punitive damages. Preliminary objections in the nature of a demurrer assert that a complaint fails to state a claim upon which relief can be granted. Sutton v. Miller, 405 Pa. Super. 213, 592 A.2d 83 (1991). A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint and all inferences fairly deducible. Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa. Super. 2008). A demurrer does not admit conclusions of law or unjustified inferences. Id. Preliminary objections may only be granted in cases that are free from doubt. McCullough v. Clark, 784 A.2d 156, 157 (Pa. Super. 2001).

Our Pennsylvania Legislature codified punitive damages as to healthcare providers in Pennsylvania’s Medical Care Availability and Reduction of Error Act (MCARE). 40 P.S. §1303.505(a). Punitive damages may be awarded where harm resulting from the healthcare provider’s conduct is willful or wanton conduct or reckless indifference to the rights of others. Id. Punitive damages may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake and errors of judgment. McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 623, 533 A.2d 436, 447 (1987). Under MCARE, even gross negligence is not insufficient to support punitive damages against a healthcare provider. 40 P.S. §1303.505(b). Arequest for punitive damages does not constitute a cause of action but is merely incidental to a cause of action. Nix v. Temple University of Commonwealth System of Higher Education, 408 Pa. Super. 369, 380, 596 A.2d 1132, 1138 (1991). Our sister court held in Doe v. Curran, 45 D.& C.4th 544, 552-54 (Lacka. Cty. 2000), that the requisite mindset to support punitive damages may be found through the commission of a similar act at a different time. MCARE also addresses a healthcare provider’s vicarious liability in pertinent part:

“Punitive damages shall not be awarded against a healthcare provider who is only vicariously liable for the actions of its agent that caused the injury unless it can be shown by a preponderance of the evidence that the party knew of and allowed the conduct by its agent that resulted in the award of punitive damages.” 40 P.S. §1303.505(c).

Instantly, plaintiff bases a request for punitive damages on defendant Russo’s admitted addiction to prescription drugs, the steps he took to procure drugs and defendant Russo’s failure to obtain surgical coverage to support the punitive damage claim. After striking the impertinent paragraphs and accepting as true plaintiff’s well-pled facts, we find that plaintiff does allege impairment at the time of the conduct giving rise to this cause of action. Plaintiff pleads facts establishing defendant Russo’s knowledge of impairment and defendant Surgical Associates’ knowledge of this impairment. Similarly, plaintiff also pleads facts establishing lack of coverage after surgery. From these facts plaintiff then pleads an indifference to the rights of others. We find that plaintiff has pled more than mere conclusions of law. We therefore find that plaintiff’s request for punitive damages has been pled sufficiently and overrule moving defendants’ demurrer.

Defendants next argue that paragraphs 11, 13, 58, 64(e), 64(h), 64(j), 64(k) and 64(o) must be stricken as not sufficiently pled. Pa.R.C.P. 1028(a)(3) allows preliminary objections on the basis of insufficient specificity in pleadings. Pa.R.C.P. 1019(a) requires parties to plead all material facts on which a cause of action is based. The Pennsylvania Superior Court has held that the pertinent question under Rule 1028(a)(3) is whether the complaint sufficiently informs of the specific basis on which recovery is sought such that the defendant may know on what grounds to make a defense. Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006); Ammlung v. Platt, 224 Pa. Super. 47, 59, 302 A.2d 491, 498 (1973). Paragraph 58 has been stricken on other grounds. We thus limit our discussion to the remaining paragraphs.

Moving defendants argue that paragraphs 64(e), 64(h), 64(j), 64(k) and 64(o) are merely boilerplate claims claiming unspecified acts of negligence. Moving defendants thus argue these claims are overly broad and leave them vulnerable to a number of unknown theories. Plaintiff counters in response that moving defendants are fully capable of preparing a response based on these pleadings. Further, plaintiff contends that moving defendants have greater information as the holder of medical records. As these paragraphs do not detail the behavior falling below the standard of care, we find that paragraphs 64(e), 64(h), 64(j) and 64(o) are overly vague and do not provide sufficient factual basis on which to form a defense. As such we find those paragraphs to be pled with insufficient specificity. However, we find paragraph 64(k) does provide a factual basis on which moving defendants can respond. We therefore sustain moving defendants’ preliminary objection to strike paragraphs 64(e), 64(h), 64(j) and 64(o).

Defendant Surgical Associates also argues that paragraphs 11 and 13 are overly vague. This defendant argues that these paragraphs do not give sufficient detail as to the nature and scope of the agency relationship being asserted by plaintiff. In particular, moving defendant argues that plaintiff has failed to argue alleged agent’s authority and what tortious acts of agents fell within that authority. We agree. Paragraphs 11 and 13 fail to describe the individuals plaintiff seeks to hold responsible, let alone identify. As such we find plaintiff has not pled these paragraphs with specificity and will therefore sustain defendant MCSA’s preliminary objection for more specific pleading.

Moving defendants also raise a preliminary objection to plaintiff’s claim under the Survival Act. Pennsylvania’s Survival Act permits a decedent’s claims to continue after their death. 42 Pa.C.S. §8302. The decedent’s action continues in their personal representative. Salvadia v. Ashbrook, 923 A.2d 436, 439-40 (Pa. Super. 2007). The measure of damages in a survivor action includes pain and suffering. Kiser v. Schulte, 538 Pa. 219, 226, 648 A.2d 1, 4 (1994). Punitive damages are permitted, but only if decedent would be able to recover them had he survived. Harvey v. Hassinger, 315 Pa. Super. 97, 102, 461 A.2d 814, 816 (1983). A plaintiff may also recover for the inconvenience their decedent endured. Hyrcza v. West Penn Allegheny Health System Inc., 978 A.2d 961, 979 (Pa. Super. 2009). However, loss of life’s pleasure is not a separate element of damage in survival claims, but rather a component of the pain and suffering endured from the time between the accident until death. Willinger v. Mercy Catholic Medical Center of Southeastern Pennsylvania, Fitzgerald Mercy Division, 482 Pa. 441, 447, 393 A.2d 1188, 1191 (1978).

Plaintiff’s claim under the Survival Act seeks a remedy based on a negligence theory for the pain, suffering, inconvenience, punitive damages, and loss of life’s pleasure decedent endured from the time of injury until death. Plaintiff brings these claims on behalf of her decedent’s estate. Pain and suffering are clearly permitted damages under the Survival Act. Similarly, the plaintiff would be permitted to recover for decedent’s inconvenience prior to death. Without delving into the underlying merits of the instant case, claims for punitive damages are likewise permissible under the Survival Act. However, we find plaintiff’s damage claim for loss of life’s pleasure as a separate element of damages to be impermissible under Pennsylvania law. As such, we will sustain moving defendants’ preliminary objection and strike this request.

Moving defendants have also filed preliminary objections to plaintiff’s claim under the Wrongful Death Act. In contrast to claims under the Survival Act, Pennsylvania law permits recovery for a decedent’s wrongful death as a separate cause of action. 42 Pa.C.S. §8301(a). The Wrongful Death Act permits statutory beneficiaries to recover for the pecuniary loss suffered as a result of the decedent’s death. Kiser, 538 Pa at 226, 648 A.2d at 4. This action may only be brought if the decedent did not make a claim for the same damages during his lifetime and any prior actions for the injuries are consolidated into the wrongful death action. Id. This right to bring this action is statutorily limited to the spouse, parents, and children ofthe deceased. 42 Pa.C.S. §8301(b). Aplaintiff in a wrongful death action “shall be entitled to recover, in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.” 42 Pa.C.S. §8301(c). These damages include loss of services the deceased would have rendered to the family. Kiser, 538 Pa. at 226, 648 A.2d at 1. However, punitive damages are not permitted in a wrongful death action. Harvey v. Hassinger, 315 Pa. Super. 97, 100, 461 A.2d 814, 815 (1983).

Moving defendants’ preliminary objection to plaintiff’s wrongful death claim argues it improperly pleads vague remedies not permitted under the Wrongful Death Act and has not established parties entitled to recovery. In particular, moving defendants take issue with the “other damages” requested in paragraph 110 of the complaint. However, plaintiff’s request for damages in paragraph 110 almost entirely mirrors the statutory language in the Wrongful Death Act, including the request for “other damages.” In addition, paragraph 108 of plaintiff’s complaint clearly identifies individuals entitled to recover, decedent’s wife and his two children. Unfortunately, paragraph 110 of the amended complaint improperly asserts a right for “plaintiff’s survivors” rather than “decedent’s survivors.” Similarly, paragraph 113(e) asserts on behalf of plaintiff’s surviving children, rather than decedent’s surviving children. These seeming technical errors result in an insufficient pleading of plaintiff’s wrongful death claim as only decedent’s statutory survivors are beneficiaries under the Wrongful Death Act. In light of this and other typographical errors, we therefore sustain moving defendants’ preliminary objection to the wrongful death, claim but will allow plaintiff to again amend her complaint.

II. PRELIMINARY OBJECTIONS OF DEFENDANT MUKESH J. MEHTA M.D.

On September 11, 2009 this court entered an order reflecting a stipulation between plaintiff and defendant Mehta withdrawing claims of punitive damages against defendant Mehta while preserving plaintiff’s right to reinstate punitive damage claims in an amended complaint. On January 22,2010, plaintiff amended her complaint. Defendant Mehta now raises preliminary objections in the form of a demurrer to plaintiff’s renewed claims of punitive damages, Survival Act and Wrongful Death Act claims. Plaintiff has again agreed to withdraw the punitive damages claims against defendant Mehta. We therefore limit our discussion to defendant Mehta’s remaining preliminary objections.

Pa.R.C.P. 1028(a)(4) permits a party to file a demurrer to strike insufficient pleadings. Preliminary objections in the nature of a demurrer assert that a complaint fails to state a claim upon which relief can be granted. Sutton v. Miller, 405 Pa. Super. 213, 592 A.2d 83 (1991). A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint and all inferences fairly deducible. Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa. Super. 2008). A demurrer does not admit conclusions of law or unjustified inferences. Id. Preliminary objections may only be granted in cases that are free from doubt. McCullough v. Clark, 784 A.2d 156, 157 (Pa. Super. 2001).

Pennsylvania’s Survival Act permits the claims a decedent would have been able to bring had they survived to continue after their death. 42 Pa.C.S. §8302. The decedent’s action continues in their personal representative. Salvadia v. Ashbrook, 923 A.2d 436, 439-40 (Pa. Super. 2007). The measure of damages in a survival action includes pain and suffering. Kiser v. Schulte, 538 Pa. 219, 226, 648 A.2d 1, 4 (1994). A plaintiff may also recover for the inconvenience their decedent endured. Hyrcza v. West Penn Allegheny Health System Inc., 978 A.2d 961, 979 (Pa. Super. 2009). However, loss of life’s pleasure is not a separate element of damage in survival claims, but rather a component of the pain and suffering endured from the time between the accident until death. Willinger v. Mercy Catholic Medical Center of Southeastern Pennsylvania, Fitzgerald Mercy Division, 482 Pa. 441, 447, 393 A.2d 1188, 1191 (1978).

Defendant objects to plaintiff’s Survival Act claim arguing it asserts damages outside those recoverable by statute. As discussed above, plaintiff has already agreed to withdraw the punitive damage claim. Plaintiff’s remaining claims seek a remedy based on a negligence theory for the pain, suffering, inconvenience, and loss of life’s pleasure decedent endured from the time of injury until death. Plaintiff brings these claims on behalf of her decedent’s estate. Pain and suffering are clearly permitted damages under the Survival Act. Similarly, the plaintiff would be permitted to recover for decedent’s inconvenience prior to death. However, we find plaintiff’s damage claim for loss of life’s pleasure as a separate element of damages to be impermissible under Pennsylvania law. As such, we will sustain defendant’s preliminary objection as to the damage claim for decedent’s loss of life’s pleasure and permit plaintiff to amend their complaint to conform accordingly.

In contrast, Pennsylvania law permits recovery for a decedent’s wrongful death as a separate cause of action. 42 Pa.C.S. §8301(a). The Wrongful Death Act permits statutory beneficiaries to recover for the pecuniary loss suffered as a result of the decedent’s death. Kiser, 538 Pa. at 226, 648 A.2d at 4 (1994). This action may only be brought if the decedent did not make a claim for the same damages during their lifetime and any prior actions for the injuries are consolidated into the wrongful death action. Id. This right to bring this action is statutorily limited to the spouse, parents, and children of the deceased. 42 Pa.C.S. §8301(b). A plaintiff in a wrongful death action “shall be entitled to recover, in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.” 42 Pa.C.S. §8301(c). These damages include loss of services the deceased would have rendered to the family. Kiser, 538 Pa. at 226, 648 A.2d at 4. However, punitive damages are not permitted in a wrongful death action. Harvey v. Hassinger, 315 Pa. Super. 97, 100, 461 A.2d 814, 815 (1983).

Defendant’s preliminary objection to plaintiff’s wrongful death claim argues it improperly pleads vague remedies not permitted under the Wrongful Death Act and has not established parties entitled to recovery. In particular, defendant takes issue with the “other damages” requested in paragraph 110 of the complaint. However, plaintiff’s request for damages in paragraph 110 almost entirely mirrors the statutory language in the Wrongful Death Act, including the request for “other damages.” In addition, paragraph 108 of plaintiff’s complaint clearly identifies individuals entitled to recover, decedent’s wife and his two children. Unfortunately, paragraph 110 of the amended complaint improperly asserts a right for “plaintiff’s survivors” rather than “decedent’s survivors.” Similarly, paragraph 113(e) asserts on behalf of plaintiff’s surviving children, rather than decedent’s surviving children. These seeming technical errors result in an insufficient pleading of plaintiff’s wrongful death claim as only decedent’s statutory survivors are beneficiaries under the Wrongful Death Act. In light of this and other typographical errors, we therefore sustain defendants’ preliminary objection to the wrongful death claim but will allow plaintiff to again amend her complaint.

III. PRELIMINARY OBJECTIONS OF POCONO MEDICAL CENTER AND POCONO HEALTH SYSTEM

These defendants raise preliminary objections in the form of a demurrer to plaintiff’s punitive damage claims contained in Counts IV and V of the amended complaint based on vicarious liability for defendant Russo’s actions and its own negligence and corporate liability respectively.

Insufficient pleadings may be struck by way of a preliminary objection in the nature of a demurrer pursuant to Pa.R.C.P. 1028(a)(4). A demurrer asserts that a complaint fails to state a claim upon which relief can be granted. Sutton v. Miller, 405 Pa. Super. 213, 592 A.2d 83 (1991). A defendant’s demurrer admits all relevant facts sufficiently pled in the complaint and all inferences fairly deducible. Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa. Super. 2008). However, a demurrer does not admit conclusions of law or unjustified inferences. Id. Preliminary objections may only be sustained in cases that are free from doubt. McCullough v. Clark, 784 A.2d 156, 157 (Pa. Super. 2001). Under Pa.R.C.P. 1019(a) parties must plead all material facts on which a cause of action is based.

A request for punitive damages does not constitute a cause of action but is merely incidental to a cause of action. Nix v. Temple University of Commonwealth System of Higher Education, 408 Pa. Super. 369, 380, 596 A.2d 1132, 1138 (1991). Our Pennsylvania Legislature codified punitive damages as to healthcare providers in Pennsylvania’s Medical Care Availability and Reduction of Error Act (MCARE). 40 P.S. §1303.505(a). Punitive damages may be awarded where harm resulting from healthcare provider’s conduct is willful, wanton or reckless indifference to the rights of others. Id. However, punitive damages may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake and errors of judgment. McDaniel v. Merck, Sharp & Dohme, 361 Pa. Super. 600, 623, 533 A.2d 436, 447 (1987). Under MCARE, even gross negligence is also insufficient to support punitive damages against a healthcare provider. 40 P.S. §1303.505(b). MCARE also addresses a healthcare provider’s vicarious liability in pertinent part:

“Punitive damages shall not be awarded against a healthcare provider who is only vicariously liable for the actions of its agent that caused the injury unless it can be shown by a preponderance of the evidence that the party knew of and allowed the conduct by its agent that resulted in the award of punitive damages.” 40 P.S. §1303.505(c).

Moving defendants argue that Count IV of the amended complaint does not allege grounds for awarding punitive damages based on vicarious liability. Plaintiff alleges an agency relationship has been created by moving defendants’ employment of defendant Russo. Count IV of the amended complaint alleges that moving defendant knew and permitted the addictions which gives rise to the claim of punitive damages against defendant Russo. Accepting all facts pled as true, Count IV of the amended complaint does allege that moving defendants knew of and permitted defendant Russo’s conduct. This preliminary objection is dismissed.

Moving defendants also argue that Count V of the amended complaint’s request for punitive damages is not sufficiently pled. Corporate negligence is a separate claim for liability based on a hospital’s own policies, actions or inactions, rather than vicariously through an agent. Brodowski v. Ryave, 885 A.2d 1045, 1056-57 (Pa. Super. 2005). A hospital is directly liable for corporate negligence if it fails to (1) use reasonable care in maintaining facilities and equipment; (2) select and retain competent physicians; (3) oversee all medical practitioners; or (4) create, adopt, and enforce policies to ensure quality patient care. Id. (citation omitted) As held by our sister court in Krout v. Martin, 50 D.&C.3d 472, 478 (York Cty. 1989), it therefore follows that a plaintiff seeking punitive damages for a hospital’s corporate liability must allege facts constituting bad motive or reckless indifference directly by the hospital, not by the agent.

Accepting all facts contained in Count V of the amended complaint as true, plaintiff argues that moving defendants had knowledge of defendant Russo’s drug addiction and failure to procure surgical coverage. Although this may be sufficient to support a claim of corporate liability, it fails to plead facts demonstrating conduct of the hospital directly that is willful, wanton, or recklessly indifferent to the rights of others. As such we find the request for punitive damages has not been sufficiently pled. We sustain moving defendants’ preliminary objection as to Count V.

In light of the foregoing, we enter the following order.

ORDER

And now, May 6, 2010, after oral argument held in this matter and a review of the parties’ briefs, it is ordered as follows:

(1) The preliminary objections of defendants, David R Russo M.D. and Monroe County Surgical Associates, are dismissed as to plaintiff’s punitive damages claims and sustained as to plaintiff’s Survival Act claim, wrongful death claim and paragraphs 11,13,25,26,27,31,32, 42, 58, 64(e), 64(h), 64(j), 64(o), 64(p), 92 and 93.

(2) The preliminary objections of defendant, Mukesh J. Mehta M.D., are sustained as to plaintiff’s claim under the Wrongful Death Act and for loss of life’s pleasures under the Survival Act.

(3) The preliminary objections of defendants, Pocono Medical Center and Pocono Health System, to plaintiff’s Count IV are dismissed and sustained as to Count V.

(4) Plaintiff shall have 20 days from the date of this order to file a second amended complaint.

      . We note at the onset that plaintiff’s amended complaint contains many typographical errors. These errors both create confusion and greatly alter the substantive content of the complaint. For example, paragraph 26 asserts decedent’s date of death being March 3, 2006, nine months before he was admitted to Pocono Hospital. Additional typos in plaintiff’s timeline create further confusion. We therefore will use dates gleaned from the original complaint and defendants’ responsive pleadings.