author: COX, J.,

text:
    Young v. Jameson Memorial Hospital

      C.P. of Lawrence County,
    No. 10415 of 2014

      Robert E. Mielnicki, for plaintiffs.

      Ryan J. King, for defendants.
    Nov. 19, 2014
   COX, J.,

— Before the court for disposition are the preliminary objections filed on behalf of the defendants Jameson Memorial Hospital and Sonia K. Panesar, M.D., which raise the following arguments:

I. The plaintiffs complaint lacks specificity as it fails to specifically identify who informed the great-grandmother that the child was stillborn;
II. Counts I, IV, VI and IX are legally insufficient as the plaintiff failed to aver a claim for negligent infliction of emotional distress;
ITT. Counts II, V, VII and X are legally insufficient as the Supreme Court of Pennsylvania has not adopted the tort of intentional infliction of emotional distress and the conduct pleaded in the complaint does not set forth outrageous conduct to support a claim for intentional infliction of emotional distress;
IV. The plaintiff’s claim for punitive damages is legally insufficient as Jameson Memorial Hospital did not have actual knowledge of the statement made to the great-grandmother and the conduct was not so outrageous as to require awarding punitive damages; and
V. Counts III and VIII are legally insufficient as respondeat superior is a legal doctrine by which employers may be held liable for the actions of their employees and is not a separate cause of action.

In response, the plaintiffs filed a praecipe to mark action discontinued as to all defendants on July 21, 2014, dismissing Counts I, IV, VI, VII, VIII, IX and X of the complaint, which included all claims asserted by Stacey Holmes.

On November 3, 2012, Shakira Henley was admitted to Jameson Memorial Hospital (hereinafter “defendant Jameson”) for the purpose of delivering her child. Ms. Henley is the daughter of Stacey Holmes and the granddaughter of Patricia Young. On that same date, Ms. Henley gave birth to a healthy child, whom she named Treylin Demont Henley. Plaintiff Young was present at Jameson Memorial Hospital during the birth of the child and remained in constant contact with Ms. Holmes. According to the complaint, on November 3, 2012, “and/or” November 4, 2012, the staff of Jameson Memorial Hospital “and/or” Sonia K. Panesar, who is an obstetrician, informed plaintiff Young that the child delivered by Ms. Henley was stillborn. Plaintiff Young immediately conveyed that information to Ms. Holmes. The complaint also avers that the employees of defendant Jameson and defendant Panesar knew the child was not stillborn. Plaintiff Young asserts that she suffered severe mental “and/or” emotional distress “and/or” anxiety as a result of that alleged misrepresentation, which required medical attention. On April 22,2014, the plaintiffs filed suit against defendant Jameson and defendant Panesar seeking to recover for claims of intentional infliction of emotional distress, negligent infliction of emotional distress and respondeat superior, in response, the defendants filed preliminary objections on June 24, 2014. The plaintiffs then filed a praecipe to mark action discontinued as to all defendants on July 21, 2014, dismissing Counts I, IV, VI, VII, VIII, IX and X of the complaint, which included dismissing all claims being raised by Ms. Holmes.

The first issue raised by the defendants in their preliminary objections is the plaintiffs complaint lacks specificity as it fails to specifically identify who informed the great-grandmother that the child was stillborn.

The specificity of a pleading is governed by Pa.R.C.P. No. 1019, which states “(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pennsylvania is a fact-pleading jurisdiction, which requires the plaintiff to provide the defendant with notice of what the plaintiff’s claim is and the grounds for the claim. Unified Sportsmen of Pennsylvania v. Pennsylvania Game Com’n (PGC), 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008) (quoting Sevin v. Kelshaw, 417 Pa. Super. 1, 611 A.2d 1232, 1235 (1992)). Additionally, the plaintiff must summarize the facts essential to support the claims. Id. “The rule requires a plaintiff to plead all the facts that he must prove in order to achieve recovery on the alleged cause of action. The pleading must be sufficiently specific so that the defending party will know how to prepare his defense.” Commonwealth ex rel. Pappert v. TAP Pharmaceuticals Products, Inc., 868 A.2d 624, 635 (Pa. Cmwlth. 2005) (citing Department of Transportation v. Shipley Humble Oil Co., 29 Pa. Cmwlth. 171 370 A.2d 438 (1977)). The purpose behind the rules of pleading is to enable parties to ascertain, by utilizing their own professional discretion, the claims and defenses that are asserted in the case. Kraisa v. Keypunch, Inc., 424 Pa. Super. 230, 236, 622 A.2d 355, 357 (1993). “The pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense, and they must be sufficient to convince the court that the averments are not merely subterfuge.” In re Estate of Schofield, 505 Pa. 95, 477 A.2d 473 (1984) (citing Sokoloff v. Strick, 404 Pa. 343, 172 A.2d 302 (1961); Hornsbv v. Lohmever, 364 Pa. 271, 72 A.2d 294 (1950); Rice v. Braden, 243 Pa. 141, 89 A. 877 (1914)). “A more specific complaint will not be required where the details requested are evidentiary in nature.” Hock v. L. B. Smith. Inc., 69 Pa. D. & C. 2d 420, 423 (Pa. Com. Pl. Columbia 1974) (citing General Acceptance Corp. v. Wilson, 40 Northumb. L. N. 54).

In the current case, the plaintiff’s complaint states, “11. On or about November 3, 2012 and/or November 4, 2012, the staff of defendant Jameson Memorial, and/or defendant Panesar, following said childbirth, told plaintiff Young that said child delivered by Shakira Henley was stillborn.” However, the plaintiff fails to state on what date plaintiff Young was informed that the child was stillborn and fails to specifically identify who provided her with that information. Without specifically identifying who spoke with plaintiff Young or, at the very least, providing an adequate description of the individual, the defendants will have a difficult time formulating a defense to the plaintiffs claims. In addition, the specific date that plaintiff Young was informed the child was stillborn is important, so the defendants can examine the appropriate medical, records and determine who was Working at the time the statement was allegedly made. Therefore, the defendants’ first preliminary objection concerning a lack of specificity is granted and the plaintiff is granted leave to amend her complaint.

The next issues before the court are whether a plaintiff can recover for the tort of intentional infliction of emotional distress under the existing Pennsylvania law and whether the plaintiff averred conduct that is outrageous in accordance with Restatement (Second) of Torts §46.

“A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient.” Cooper v. Frankford Health Care System, Inc., 960 A.2d 134, 143 (Pa. Super. 2008) (citing Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001)). A demurrer must be resolved based solely on the pleadings, no testimony or evidence outside of the complaint may be considered to dispose of the legal issue presented. Id. “All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.” Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007) (citing Cardenas, supra.). A demurrer will only be sustained in cases where the complaint fails to set forth a valid cause of action. Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008) (citing McArdle v. Tronetti, 426 Pa. Super. 607, 627 A.2d 1219, 1221 (1993)). If a doubt exists regarding whether a demurrer should be sustained, the doubt must be resolved in favor of overruling the demurrer. R.W. v. Manzek, 585 Pa. 335, 351, 888 A.2d 740, 749(2005) (citations omitted). Fact-based defenses are irrelevant when ruling on a preliminary objection in the nature of a demurrer. Werner v. Plater-Zyberk, 799 A.2d 776, 783 (Pa. Super. 2002) (citing Orner v. Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987)). “A ‘speaking demurrer’ is defined as ‘one which, in order to sustain itself, requires the aid of a fact not appearing on the face of the pleading objected, or in other words, which alleges or assumes the existence of a fact not already pleaded, and which constitutes the ground of objection and is condemned both by the common law and the code system of the pleading.”’ Regal Indus. Corp. v. Crum and Forster, Inc., 890 A.2d 395, 398 (Pa. Super. 2005) (quoting Black’s Law Dictionary 299 (6th ed. 1991)). The court is not permitted to consider a speaking demurrer in rendering its decision on preliminary objections. Id.

The tort of intentional infliction of emotional distress is set forth in Restatement (Second) of Torts § 46, which states as follows:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.

The conduct to support recovery for intentional infliction of emotional distress must be so outrageous in character that it goes beyond all bounds of decency, and it has not been enough to demonstrate that the defendant acted with intent which is tortious or even criminal or with malice to a degree that would entitle the plaintiff to punitive damages for another tort. Toney v. Chester County Hosp., 961 A.2d 192, 202 (Pa. Super. 2008) (quoting Reardon v. Allegheny College, 926 A.2d 477, 488 (Pa. Super. 2007)).

However, this claim has not been explicitly accepted or rejected by the Pennsylvania Supreme Court. Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987). In Kazatsky, the appellants filed a complaint asserting, among other claims, a cause of action for intentional infliction of emotional distress against a cemetery concerning the burial of their infant son and daughter, who died after being bom prematurely. The appellant’s son passed away on June 30, 1981, and the daughter passed away on July 7, 1981. The appellants were referred to the cemetery by their rabbi and, upon speaking with a representative for the cemetery, were informed that the total cost for a burial plot was $180.00 in the children’s portion of the cemetery, which did not permit standing tombstones. The appellants purchased the gravesite and paid in full on the date of their infant son’s funeral. The same was done when the appellants’ daughter passed away. The appellants soon became dissatisfied with the location of the burial plots as it was in a remote area of the cemetery and it became muddy when wet. They also wanted a standing headstone as they noticed there were adult graves with standing headstones. The appellants purchased a gravemarker from a monuments company. The cemetery then charged the appellants an additional fee of $100.00 for perpetual care and $43.00 for sodding the burial plots. Upon completion of the gravemarker, the monument company sent a card to the appellants informing them that the gravemarker had been installed. However, there was no marker on the children’s grave-sites. The appellants contacted the cemetery and were informed that there was an outstanding balance for the perpetual maintenance fee and the sodding and the marker had to be installed by an employee of the cemetery as the monument company only delivers the same. The appellants were upset, but offered to bring the necessary payment to the scheduled unveiling. The cemetery rejected that arrangement and demanded payment prior to installation. The appellants then spoke with the owner of the cemetery, who stated that he would investigate the matter. Three days later, the owner contacted the appellants and informed them the marker would be installed and they could proceed with their unveiling, but there would be no care or maintenance to the grave-sites unless the bill was paid. The unveiling took place as scheduled. As the appellants and their attendees were leaving the grave-sites, they were approached by the owner’s wife, who expressed her condolences. She also reiterated that there would be no care or maintenance unless the appellants paid the bill of $ 143.00. The appellants presented their evidence at trial and the appellee filed for a compulsory nonsuit, which was granted by the trial court. On appeal, the Superior Court of Pennsylvania affirmed the opinion of the trial court and the Pennsylvania Supreme Court granted the appellants’ petition for allowance of appeal.

The Kazatsky Court cited to Section 46 of the Restatement and its commentary that explained the term extreme and outrageous conduct, which stated as follows:

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort liability has been found only where the conduct has been so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average, member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” Id., 515 Pa. at 190-191, 527 A.2d at 991 (citing Restatement

(Second) of Torts §46 commentary).

The law will not intervene in every case where someone’s feelings are hurt by insults, threats, petty oppressions or rough language. Id., 515 Pa. at 191, 527 A.2d at 992 (citing Restatement (Second) of Torts §46 commentary). The court noted that the appellants failed to present any evidence that the cemetery’s conduct reached a level of outrageousness that would support recovery of damages as there was no expert testimony or evidence of any kind outside of the unsubstantiated averments of the appellants. Id. Moreover, Pennsylvania law follows the impact rule, “which barred recovery for fright, nervous shock or mental or emotional distress unless it was accompanied by a physical injury or impact upon the complaining party.” Id., 515 Pa. at 191-192, 527 A.2d at 992 (citations omitted). However, a limited exception to the impact rule was created and physical impact was not a precondition for recovery where the plaintiff was in personal danger of physical impact from the negligent conduct of the defendant and actually feared physical impact. Id. (citing Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970)). That became known as the zone of danger theory, Id. That theory does not extend to close relatives who are not at the accident scene as the emotional distress is more of a result of the emotional makeup of the observer than from the nature of the defendants’ actions. Id. (citing Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986)). The Kazatshy Court found that the concerns over proof of causation were unjustified in the area of a by stander recovery for emotional distress, but there are concerns regarding causation in the tort of intentional infliction of emotional distress. Id. The court then turned, its attention to the term outrageous as set forth in the commentary to Section 46 by stating, “The term outrageous’ is neither value-free nor exacting. It does not objectively describe an act or series of acts; rather, it represents an evaluation of behavior. The concept thus fails to provide clear guidance either to those whose conduct it purports to regulate, or to those who must evaluate the conduct.” Id., 515 Pa. at 195, 527 A.2d. at 994. “The restatement tells us that what is prohibited is conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Id., 515 Pa. at 195-196, 527 A.2d at 994 (quoting Restatement (Second) of Torts commentary). The Kazatsky Court ruled that injury is a necessary element of every basic tort, including intentional infliction of emotional distress, which requires some objective proof of severe emotional distress. Id. However, the court did not fully adopt Section 46 as a recoverable tort in Pennsylvania by stating, “We therefore conclude that if Section 46 of the Restatement is to be accepted in this Commonwealth, at the very least, existence of the alleged emotional distress must be supported by competent medical evidence. In this case no such evidence was presented and the record further reflects that neither [of the appellants] sought medical assistance.” Id. Therefore, the court affirmed the Superior Court’s order sustaining the ruling of the trial court. Id.

Again, in Taylor v. Albert Einstein Medical Center, 562 Pa. 176, 754 A.2d 650 (2000), the Pennsylvania Supreme Court addressed the tort of intentional infliction of emotional distress. The Taylor Court explained that the tort of intentional infliction of emotional distress has never been expressly recognized in Pennsylvania and Section 46 has merely been cited to set forth the minimum elements necessaiy to sustain such a cause of action. Id., 562 Pa. at 181, 754 A.2d at 652. In that case, the basis for recovery was Section 46(2), which requires a family member to be present at the time when the extreme or outrageous conduct occurred. Id., In that case, the tortious conduct being complained of by the appellants is that they suffered emotional distress due to providing consent for a medical procedure to be performed on their daughter to one doctor and the procedure was actually performed by another doctor, who did so in a negligent manner and caused the child’s death. The Taylor Court determined that the appellants did not have a claim for intentional infliction of emotional distress as they were not present at the time of the tortious conduct and did not have to prepare for the immediate emotional impact of that conduct. Id, 562 Pa. at 183, 754 A.2d at 653.

However, the Superior Court of Pennsylvania has permitted a plaintiff to properly plead and prove a claim for intentional infliction of emotional distress in Field v. Philadelphia Electric Company, 388 Pa. Super. 400, 565 A.2d 1170 (1989). In that case, the appellant was employed to work at a nuclear power plant as a health physics technician. The appellant was ordered to enter a pipe tunnel at the nuclear power plant, where he observed standing water on the . floor of the tunnel and he radioed to other personnel informing them that he believed that it was unsafe to remain in the tunnel. He was then ordered to test for radiation, which he did. The appellant advised his employer that the water problem should not be resolved while the plant was in operation because it would be too dangerous to be in the tunnel. Despite the warnings, the employer ordered the appellant and other personnel into the tunnel to resolve the standing-water problem. While the appellant was in the tunnel, the employer vented radioactive gases into the tunnel to continue operating the nuclear reactor, even though they were aware the appellant was working there. The appellant possessed a survey meter, which indicated that the level of radiation surpassed the levels permitted by the Nuclear Regulatory Commission (hereinafter “NRC”). He immediately ordered everyone to exit the tunnel. Additionally, two radiation detectors at the tunnel entrance and the control point for the tunnel alerted when the appellant passed through them, which indicated that radiation exposure was in excess of the levels permitted by the NRC regulations. Subsequently, the appellant discovered that the reactor operators deliberately ordered the radioactive steam to be bypassed from the regular system and vented into the tunnel where he was located. The appellant filed suit asserting claims of intentional exposure to radiation, wrongful discharge and intentional infliction of emotional distress. The appellee filed preliminary objections in the nature of a demurrer and the trial court granted those preliminary objections stating that federal law preempts the tort of intentional exposure to radiation, there is no common law action for intentional exposure to radiation, appellant failed to state a claim for wrongful discharge, there was no egregious conduct to support the claim of intentional infliction of emotional distress and punitive damages were not recoverable based upon the allegations in the complaint. The appellant then filed an appeal with the Superior Court.

The appellant argued that he suffered severe emotional distress from learning of his overexposure to radiation and from the appellees’ misrepresentations concerning his exposure. The Field Court explained that the appellant was required to establish that the appellees’ conduct was both extreme and outrageous to set forth a claim for intentional infliction of emotional distress. Id., 388 Pa. Super, at 427, 565 A.2d at 1183. The court then quoted Comment d to Restatement (Second) of Torts § 46, as stating the following:

Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” Id., 388 Pa. Super, at 427-428, 565 A.2d at 1183-1184.

The Field Court emphasized that the alleged conduct of placing the appellant in a situation to be exposed to radiation and making false statements to conceal the exposure from the appellant were clearly outrageous and extreme in degree that it went beyond all bounds of decency. Id., 388 Pa. Super, at 428-429, 565 A.2d at 1184. Moreover, the Field Court distinguished its case from that of Kazatsky as the plaintiffs in Kazatsky had the opportunity to present evidence that they received medical assistance for their alleged emotional distress and the appellant in Field did not have that opportunity as the demurrer was asserted in preliminary objections. Id., 388 Pa. Super, at 428, 565 A.2d at 1184. thus, the Field Court determined that the appellant’s claim of intentional infliction of emotional distress was not legally insufficient as he averred conduct that was sufficiently outrageous to support that cause of action and the appellant was entitled to the opportunity to establish that he sought medical treatment for his alleged emotional distress, Id.

This issue was also addressed in Banyas v. Lower Bucks Hospital, 293 Pa. Super. 122, 437 A.2d 1236 (1981). In that case, the victim was admitted to the appellee’s hospital complaining of facial and jaw injuries, which resulted from an altercation with the appellant. He was admitted for surgeiy for a fractured jaw and died as a result of the negligence of the surgeons and not due to the injuries caused by the appellant. The appellee indicated in their records that the victim’s death was caused by the injuries inflicted by the appellant, who was charged with various criminal charges as a result. The appellant sought recovery for mental anguish arising from the aforementioned criminal charges and the trial court granted the appellee’s preliminary objections in the nature of a demurrer concerning all of the appellant’s claims. He then appealed to the Superior Court of Pennsylvania. The Banyas Court cited to Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979) for the proposition that intolerable professional conduct, such as knowingly providing false medical information, is sufficient to permit a claim of intentional infliction of emotional distress to survive summary judgment. Id., 293 Pa. Super, at 127, 437 A.2d at 1239. In Banyas, the court stated, “If the appellees...in fact intentionally propagated a falsehood when they wrote that [the victim’s] death was attributable solely to [the appellant], we believe that they could also be found liable for the emotional distress suffered by [the appellant].” Id., 293 Pa. Super, at 127, 437 A.2d at 1239. The court further explained, “We would find an intentional misstatement of the cause of death to be intolerable professional conduct and extreme and outrageous.” Id. Therefore, the Banyas Court determined that, if the allegations in the complaint were proven, the appellant would be entitled to relief. Id., 293 Pa. Super, at 128, 437 A.2d at 1239.

In the Chuy case, Don Chuy was a professional football player for the Philadelphia Eagles (hereinafter “the Eagles”), who suffered a serious shoulder injury in his first season with the team. Pursuant to his contract, he was entitled to his salary for the term of the contract if he was injured in the performance of his service. Mr. Chuy was hospitalized and it was discovered that he had a pulmonary embolism, which ended his athletic career and he retired consistent with advice of his physician. The Eagles requested that he submit to a physical examination by Dr. Dick D. Harrell, who concluded that he suffered from an abnormal cell condition, which made him predisposed to the formation of blood clots and he should retire from football. The Eagles general manager then informed a sports columnist that Mr. Chuy had to retire due to a blood clot and he contacted the Eagles’ team physician for further information. The Eagles’ team physician informed the columnist that Mr. Chuy had Polycythemia Vera, which is a life threatening condition. Mr. Chuy then panicked and contacted his personal physician, who informed him that he did not have Polycythemia Vera. Mr. Chuy’s personal physician conducted several tests to ensure that Mr. Chuy did not have the condition, yet Mr. Chuy was apprehensive and emotionally broke down due to the frightening prospect of imminent death. He also refused to submit to any further tests. Mr. Chuy then filed suit against the Eagles and the National Football League for antitrust violations, breach of contract, intentional infliction of emotional distress and defamation. The district court dismissed the antitrust claims and the rest of the claims were submitted to the jury by special interrogatories and a verdict was awarded to Mr. Chuy. Post-trial motions were filed by both parties seeking judgment notwithstanding the verdict, which were denied and both parties appealed. The Eagles argued that the actions of the team physician did not constitute extreme and outrageous conduct.

The Chuy Court set forth the following elements of intentional infliction of emotional distress: “(1) the conduct must be extreme and outrageous; (2) the conduct must be intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be severe.” Chuy, 595 F.2d at 1273. The court also noted that the Pennsylvania Supreme Court has not specifically adopted this tort, but the decisions have signaled their acceptance of the same. Id. (citing Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970); Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963); Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa. Super. 377, 368 A.2d 770 (1976)). The Chuy Court reasoned as follows:

Accepting as we must at this stage Chuy’s version of the events, we have a statement to the press by a physician assumed to know the facts that a person is suffering from a potentially fatal disease, even though the physician was aware that the person was not stricken with that condition. This, of course, constituted intolerable professional conduct. Disseminating the falsehood through the national press compounded the harm. Surely Dr. Nixon’s statements, as understood by the jury, went beyond the “mere insults, indignities...or annoyances” which people are prepared to withstand, Id., 595 F.2d at 1275.

Furthermore, the Eagles contended that there was no evidence that the physician’s comments were intended to cause Mr. Chuy’s emotional distress and were recklessly provided to the sports columnist. However, the court stated that the physician did not have to be aware that his statements would cause Mr. Chuy’s emotional distress as his emotional distress was substantially certain to follow. Id. “Intentionally to propagate a falsehood, the natural and probable consequences of which will be to cause the plaintiff emotional distress, is equivalent, in the language of the Restatement’s comment I, to the deliberate disregard of a high degree of probability that the emotional distress will follow.’” Id. Thus, the Chuy Court concluded that the district court properly rendered a verdict against the Eagles on Mr. Chuy’s claim for intentional infliction of emotional distress. Id., 595 F.2d at 1276,

In the case sub judice, the defendants assert that the tort of intentional infliction of emotional distress has not been adopted by the Pennsylvania Supreme Court. Although, the Pennsylvania Supreme Court has not officially adopted Restatement (Second) of Torts § 46, the courts have consistently addressed those claims on the merits. There is no indication by the courts that a plaintiff asserting a claim of intentional infliction of emotional distress has been precluded from recovering, other than an inability to adequately prove their claims. The Superior Court of Pennsylvania in Field and Banyas have overturned trial court decisions to grant demurrers on claims of intentional infliction of emotional distress, which permitted the plaintiffs to proceed further on those claims. Thus, there is no indication that plaintiff Young is precluded from asserting her claim of intentional infliction of emotional distress.

As a result, the court must now address whether plaintiff Young has properly pleaded a cause of action for intentional infliction of emotional distress. On November 3, 2012, Ms. Henley was admitted to Jameson Memorial Hospital to give birth to her child. Plaintiff Young accompanied her to the hospital and waited during the child birth. She remained in constant contact with Ms. Holmes. Ms. Henley gave birth to a healthy child. According to the complaint, on November 3, 2012, “and/or” November 4, 2012, the staff of Jameson Memorial Hospital “and/or” defendant Panesar, who is an obstetrician, informed plaintiff Young that the child delivered by Ms. Henley was stillborn. Plaintiff Young immediately conveyed that information to Ms. Holmes. The complaint also avers that the employees of defendant Jameson and defendant Panesar knew the child was not stillborn. Plaintiff Young asserts that she suffered severe mental or emotional distress and anxiety as a result of that alleged misrepresentation, which required medical attention.

At this stage of the proceeding, all the material facts set forth in the complaint must be admitted as being true. Utilizing this standard, the court is constrained to overrule the defendants’ preliminary objections as plaintiff Young averred sufficient facts, if proven, that may sustain a claim for intentional infliction of emotional distress and could allow a jury to enter a verdict in their favor. Plaintiff Young avers that employees of defendant Jameson “and/ or” defendant Panesar informed plaintiff Young that Ms. Henley gave birth to a child that was stillborn when the employees “and/or” defendant Panesar knew that was false. Plaintiff Young then immediately informed Ms. Holmes concerning that statement. Plaintiff Young then averred that she had to receive medical attention because of her emotional distress. Informing a close family member that a child was stillborn, when that is untrue, is the type of outrageous statement that may cause a person extreme emotional distress. It has been determined that a medical professional knowingly providing false information concerning medical conditions is intolerable professional conduct giving rise to a claim of intentional infliction of emotional distress as stated in Banyas and Chuy. Similarly, plaintiff Young averred that defendant Jameson’s employees and/or defendant Panesar informed plaintiff Young, who then notified Ms. Holmes, that the child was stillborn even though they were aware that the child was alive and healthy. It has clearly been established that providing that type of false information concerning a medical condition is sufficient to permit a claim for intentional infliction of emotional distress to survive a preliminary objection in the nature of demurrer. Moreover, plaintiff Young averred that she suffered harm as a result of the defendants’ actions as she suffered severe emotional distress, which required her to seek medical treatment. Therefore, the defendants’ preliminary objection in the nature of a demurrer is overruled as plaintiff Young averred a legally sufficient claim for intentional infliction of emotional distress.

The defendants’ fourth preliminary objection contends that the plaintiff’s request for punitive damages is legally insufficient as Jameson Memorial Hospital did not have actual knowledge of the statement made to the great-grandmother and the conduct was not so outrageous as to require awarding punitive damages

Punitive damages are awarded, in addition to compensatory damages, to punish a defendant for outrageous conduct and to deter others from engaging in similar conduct. DiGregorio v. Keystone Health Plan East, 840 A.2d 361, 396-370 (Pa. Super. 2003) (citing Reading Radio, Inc. v. Fink, 833 A.2d 199 (Pa. Super. 2003)). Punitive damages are penal in nature, not compensatory, and are appropriate if the actor’s conduct was malicious, willful, oppressive, or exhibited reckless indifference to the rights of others. Hart v. O’Malley, 781 A.2d 1211, 1217 (Pa. Super. 2001) (citing G.J.D. by G.J.D. v. Johnson, 552 Pa. 169, 713 A.2d 1127 (1998); Costa v. Roxborough Memorial Hospital, 708 A.2d 490 (Pa. Super. 1998)). It should be assumed that compensatory damages make the plaintiff whole and punitive damages should only be awarded if the defendant’s culpability is so reprehensible that it warrants additional sanctions to punish the defendant’s conduct or deter future conduct. State Farm Mut. Auto., Ins. v. Campbell, 538 U.S. 408, 416, 123 S. Ct. 1513, 1519 (2003) (citations omitted). “Punitive damages are appropriate when an individual’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.” Slappo v. J’s Development Associates, Inc., 791 A.2d 409, 417 (Pa. Super. 2002) (quoting Bannar v. Miller, 701 A.2d 232, 242 (Pa. Super. 1997)). However, punitive damages are not awarded for ordinary or gross negligence. Id. (citations omitted). “It should be presumed a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S.Ct. 1513, 1521 (2003) (citing BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589 (1996)). As a result, the trial court must determine whether the plaintiff has presented sufficient evidence from which a jury could reasonably conclude that the defendant acted outrageously. Id. (citing Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1098 (1985). The court must take into account the egregious conduct, the circumstances surrounding the conduct and the relationship between the parties. Rubin Quinn Moss Heanev & Patterson, P.C. v. Kennel, 832 F. Supp. 922, 936 (E.D. Pa. 1993) (citing Brooks ex rel. Stanton v. Astra Pharmaceutical Prods., Inc., 718 F.2d 553, 580 (3d Cir. 1983)).

As discussed previously, the conduct necessary to support a claim of intentional infliction of emotional distress is beyond that which would entitle a plaintiff to punitive damages for other torts. See Reardon, supra. In the current case, the plaintiff has averred that defendant Panesar or an employee of defendant Jameson has informed plaintiff Young that her great-grandchild was stillborn, which was false. Providing that type of false information to a close family member is sufficiently outrageous to support a claim for intentional infliction of emotional distress, which is a more stringent standard than the requirements for punitive damages. As a result, the plaintiff has averred sufficient facts at this stage of proceedings to set forth a claim for punitive damages and the defendants’ fourth preliminary objection is overruled.

The defendants’ fifth preliminary objection asserts that Counts III and VIII are legally in sufficient as respondeat superior is a legal doctrine by which employers may be held liable for the actions of their employees and is not a separate cause of action. Initially, it must be noted that Count VIII was dismissed pursuant to the praecipe to mark action discontinued as to all defendants filed on July 21, 2014. Moreover, respondeat superior is not a separate cause of action, but a means of imposing vicarious liability upon an employer for the actions of its employee that are committed during the course of and within the scope of employment. Brezenski v. World Truck Transfer, Inc., 755 A.2d 36 (2000) (citing Fitzgerald v. McCutcheon, 270 Pa. Super. 102, 410 A.2d 1270 (1979)). Count III of the plaintiff’s complaint is legally insufficient as it asserts a separate claim for respondeat superior attempting to impose vicarious liability upon defendant Jameson for the actions of its employees; however, that is the basis for plaintiff Young’s claim in Count II. All allegations to establish that defendant Jameson should be held liable for the actions of its employees through the doctrine of respondeat superior shall be asserted within Count II of the complaint, which is the claim by plaintiff Young against defendant Jameson for intentional infliction of emotional distress. Thus, the court sustains the defendants’ fifth preliminary objection and Count III of the complaint is dismissed. Plaintiff Young is granted leave to amend Count II of her complaint to include allegations demonstrating that the doctrine of respondeat superior applies to her claim of intentional infliction of emotional distress against defendant Jameson.

For the reasons set forth in this opinion, the defendants’ preliminary objections are sustained in part and overruled in part. The defendant preliminary objections are sustained to the extent that the plaintiffs filed a praecipe to mark action discontinued as to all defendants on July 21, 2014, dismissing Counts I, IV, VI, VII, VIII, IX and X of the complaint. Additionally, the defendants’ first preliminary objection concerning lack of specificity is sustained. However, the defendants’ remaining preliminary obj ections for legal insufficiency concerning the plaintiffs’ claims for intentional infliction of emotional distress are overruled. Moreover, the defendants’ fourth preliminary objection is overruled. The court also sustains the defendants’ fifth preliminary objection and Count III of the complaint is dismissed. The plaintiffs are granted leave to amend their complaint.

ORDER OF COURT

Now this 19th day of November, 2014, this case was before the court on September 29,2014, for oral argument on the preliminary objections to plaintiffs’ complaint filed by the defendants, with both parties appearing through counsel, the plaintiff, Patricia Young, represented through counsel, Robert E. Mielnicki, Esquire, and the defendants, Jameson Memorial Hospital and Sonia K. Panesar, M.D., represented through counsel, Ryan J. King, Esquire, and after consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order, and it is hereby ordered, adjudged and decreed as follows:

1. The court notes that plaintiffs have filed a praecipe to mark action discontinued as to all defendants as to Counts I, IV, VI, VII, VIII, IX, and X, so therefore those Counts of the complaint are discontinued without prejudice.

2. The praecipe to discontinue filed by the plaintiffs strikes Stacey Holmes as a plaintiff in the above captioned case and all future pleadings and orders shall reflect that the only plaintiff is Patricia Young.

3. In accordance with the attached opinion, the preliminary objection in the nature of insufficient specificity for Count II of the complaint is sustained.

4. In accordance with the attached opinion, the preliminary objection in the nature of a demurrer to Count III of the complaint regarding respondeat superior is sustained and Count III of the complaint is hereby dismissed with the plaintiff to incorporate said doctrine into Count II of the complaint.

5. In accordance with the attached opinion, all remaining preliminary objections in the nature of a demurrer to the claims for intentional infliction of emotional distress and punitive damages are overruled.

6. Plaintiff is granted relief to file an amended complaint within thirty (30) days after notice of this order of court.

7. The prothonotary shall serve a copy of this order of court upon counsel of record, Robert E. Mielnicki, Esquire, and Ryan J. King, Esquire.


source: Caselaw Access Project

author: MCINERNEY, J.,

license: Public Domain

text:
    NNN 1818 Market Street LLC v. Kogan, Trichon & Wertheimer P.C.

      Kierstin M. Lange, for plaintiffs.

      Timothy P. Creech and Agostino Cammisa, for defendant.
    Nov. 25, 2014
   MCINERNEY, J.,

— The motion for summary judgment requires this court to determine whether the landlord of a commercial property breached its duty of good faith and fair dealing toward tenant by allegedly withholding consent to sublease the premises, and by failing to negotiate a lease extension. The motion also requires this court to determine whether tenant breached the commercial lease agreements by vacating the premises before expiration of the lease period, and by failing to pay rents thereafter. For the reasons below, landlord did not breach its duty of good faith and fair dealing, whereas tenant did breach the lease agreements.

Background

Plaintiffs NNN 1818 Market Street, LLC et al. (“Landlord”), are Delaware entities that own commercial real estate located at 1818 Market Street, in Philadelphia, Pennsylvania. Defendant Kogan, Trichon & Wertheimer, P.C. (“Tenant”), is a Pennsylvania law firm with an address in Philadelphia, Pennsylvania. The law firm of Marion, Saltzberg, Trichon, Kogan & Wertheimer, P.C. (“MSTK&W”), a non-party in this action, was at all times relevant hereto a predecessor-in-interest of KT&W as a leasehold tenant.

On June 23,1999, Landlord or its predecessor-in-interest entered into a lease agreement (the “lease agreement”), with MSTK&W. Pursuant to the lease agreement, MSTK&W rented 10,691 square feet of Landlord’s office space situated on the 30th floor of the property. During the term of the lease, possibly between the years 2000-2003, defendant KT&W succeeded to MSTK&W as Tenant. Also, the Lease Agreement contained an acceleration clause which stated:

If Landlord shall not elect to terminate this Lease [upon default by Tenant]...Tenant shall be and remain liable to Landlord in an amount computed as follows: (a) an amount equal to the sum of all Rent then in arrears plus the aggregate of all Rent which is payable under this lease for the balance of the Term, computed as if no event of default had occurred....

OnAugust 19,2009, Landlord and KT&W, as successor-in-interest to MSTK&W, executed a “first amendment to the lease.” Whenever required, the lease agreement and the first amendment to the lease shall be identified as the “lease documents.” Under the first amendment to the lease, tenant’s new leasehold was set for a period of ten years, beginning on December 1,2009 and ending on November 30, 2019. During the term of the new leasehold, Tenant subleased between thirteen and fifteen offices to a number of sub-lessees. Tenant however was not able to fully sublease all of its unused office space.

In 2010, a shareholder of KT&W retired, another shareholder announced his upcoming retirement, and KT&W lost a major client which accounted for a sizable amount of its business. Facing a significant decline in revenues, KT&W decreased its operations, terminated a number of employees, and was left with rented space far in excess of its new financial circumstances. In September 2012, Mr. Martin Trichon, Esquire (“Trichon”), on behalf of tenant, began negotiations with landlord in an attempt to reduce tenant’s leased square footage. According to Trichon, the reduction was necessary because under the existing arrangement, there “was far more space than [tenant] would ever need.” Trichon also informed landlord that if the negotiations failed, KT&W “would not remain as tenants.” The negotiations broke down in the early part of 2013: no agreement was ever reached.

On June 19, 2013, landlord commenced the instant action against tenant; on September 6,2013, landlord filed its third amended complaint which asserts the claims of breach of contract and accelerated rent. In the course of the instant litigation, tenant has admitted that it vacated the premises in April 2013, and has failed to pay rent since May 2013. In addition, tenant has admitted that the parties never entered into a new agreement supplanting the existing lease documents. On August 18, 2014, landlord filed the instant motion for summary judgment; on September 24, 2014, tenant filed a response in opposition thereto. The motion is now ripe for a decision.

Discussion

The Pennsylvania Rules of Civil Procedure allow disposition of a case on summary judgment only where the record demonstrates an absence of factual questions material to the elements of the disputed causes of action.
Under the Rules, a motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. For purposes of summary judgment, the record includes any pleadings, interrogatory answers, depositions, admissions, and affidavits.

I. Tenant breached the terms contained in the Lease Documents.

In the motion for summary judgment, Landlord asserts that no questions of fact exist as to prevent entry of judgment in its favor. Landlord notes that tenant has admitted vacating the leased premises in April 2013 and failing to pay rent since May 2103.

In Pennsylvania, to successfully maintain a cause of action for breach of contract, the plaintiff must establish: “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages.” In this case, landlord and tenant engaged in a business relationship under the terms of the above-mentioned lease documents; moreover, Tenant has admitted that the parties never entered into a new agreement supplanting the existing agreements as embodied by the lease documents. This evidence demonstrates the existence of a contract between landlord and tenant, and landlord has satisfied the first requirement necessary to maintain the claim of breach of contract.

Plaintiff has also established a breach of tenant’s duties under the contract. Specifically, the lease documents states in pertinent part that —

[t]he term of the Lease is hereby extended for a period of one hundred twenty (120) months... commencing on December 1, 2009 ... and continuing until... November 30, 2019.
The occurrence of any one of the following shall constitute an “event of default” ...
Tenant does not pay in full when due any installment of rent or any other charge or payment... and such failure to pay is not cured within ten (10) days following tenant’s receipt of notice from landlord...

This language shows that tenant owed a duty to make timely rent payments and to remain in possession of the leased premises until November 30, 2019. Tenant, however, has admitted vacating the leased premises in April 2013, and stopping rent payments since May of that year. Tenant explains this conduct by asserting that when its revenues fell, landlord unreasonably withheld consent to sublease the premises as contemplated under the lease documents. Specifically, tenant asserts that landlord breached a duty owed to tenant to negotiate in good faith the possibility of subleasing a portion of the leased premises, which subleasing would have resulted in a mitigation of landlord’s damages.

In Pennsylvania, “every contract imposes on each party a duty of good faith and fair dealing in its performance and its enforcement.... Good faith has been defined as honesty in fact in the conduct or transaction concerned.” In this case, tenant has pointed to no evidence showing that a third party was willing to sublease a portion of the premises, or that landlord undermined any efforts to secure a new sublease or assignment. In addition, tenant has asserted in its answer with new matter to the third amended complaint that landlord breached a duty of good faith and fair dealing by failing to negotiate an extension of the lease period — an extension which would have resulted in landlord’s mitigation of its damage through recovery of “most, all, or even more money than it would have received under the amended lease.” However, at this stage of the litigation, tenant has offered no proof that an extension of the lease period would have enabled landlord to recoup “most, all, or even more money than it would have received under the amended lease.” Thus, tenant has not shown that landlord breached its duty of good faith and fair dealing under the lease documents; instead, landlord has established the existence of a contract, tenant’s duties thereunder, and a breach thereof. For these reasons, the court grants the motion for summary judgment of landlord.

The court shall issue a simultaneous order consistent with this memorandum opinion.

ORDER

And now, this 25 day of November, 2014, upon consideration of the motion for summary judgment of plaintiffs, the response in opposition of defendant, and the respective memoranda of law, it is ordered that the motion is granted and judgment is entered in favor of plaintiffs and against defendant. The amount of judgment against defendant shall include all due, unpaid monthly rents from May 2014, plus accelerated rent through the remainder of the lease term, plus interest, fees and costs, as required under the terms of the lease agreement and subsequent amendment to the lease.

      . Office Lease, ¶ 2.1, Exhibit C to the motion for summary judgment of Landlord,

      . Deposition of Martin Trichon, Esquire, on behalf of defendant KT&W, Exhibit E to the motion for summary judgment of Landlord, pp.22-23.

      . Lease Agreement, ¶17.3.1, attached as Exhibit C. to the motion for summary judgment of Landlord.

      . First Amendment to the Lease, ¶ 2, Exhibit D to the motion for summary judgment of Landlord.

      . Deposition of Martin Trichon, Esquire, on behalf of defendant KT&W, Exhibit E to the motion for summary judgment of Landlord, pp. 24-27.

      . Id. Pp. 29, 33.

      . Affidavit of Martin Trichon, Esquire, ¶ 5, attached as Exhibit A to the response in opposition of Tenant to the motion for summary judgment of Landlord.

      . Id. ¶ 6.

      . Tenant’s answer to the Third Amended Complaint, ¶ 7; responses to Landlord’s request for admissions, ¶¶ 5-15,21, Exhibit F to the motion for summary judgment of Landlord.

      . Tenant’s responses to Landlord’s request for admissions, ¶ 49, Exhibit F to the motion for summary judgment of Landlord.

      . Shipley Fuels Mktg., LLC v. Medrow, 2012 Pa. Super. 37 A.3d 1215, 1217 (Pa. Super. 2012).

      . Scalice v. Pennsylvania Employees Benefit Trust Fund, 584 Pa. 161, 171, 883 A.2d 429, 435 (Pa. Super. 2005).

      . McShea v. City of Philadelphia, 606 Pa. 88, 97, 995 A.2d 334, 340 (Pa. 2010).

      . First Amendment to the Lease, ¶ 2, attached as Exhibit C to the motion for summary judgment of Landlord.

      . Office Lease, ¶ 17.1-17.1.1 attached as Exhibit C to the motion for summary judgment of Landlord.

      . Memorandum of law filed by Tenant in opposition to the motion for summary judgment of Landlord, IV. B., p. 9. Paragraph 12.11 of the Lease Agreement states: “Landlord’s consent to any proposed sublease or assignment shall not be unreasonably withheld...

      . Id.

      . Donahue v. Fed. Exp. Corp., 2000 Pa. Super. 146, 753 A.2d 238, 242 (Pa. Super. 2000).

      . New Matter, ¶¶ 28-31.


author: MOTTO, P.J.,

text:
    In re Schmidt

      C.P. of Lawrence County,
    Nos. 84 of 2014, JV; 85 of 2014, JV

      Diane Shaffer, for Commonwealth.

      Aaron M. Cangey, for defendant.
    Dec. 2, 2014
   MOTTO, P.J.,

— Before the court for disposition is the petition of the Commonwealth to transfer the above captioned proceedings to adult criminal court. For the reasons hereinafter set forth, the court finds that the Commonwealth has met its burden to prove by a preponderance of the evidence that the public interest is served by the transfer of this case to criminal court and that the child is not amenable to treatment, supervision or rehabilitation as a juvenile and that the requirements of 42 Pa.C.S.A. §6355(a) are satisfied.

At Case No. 84 of 2014, the child is charged with possession of a controlled substance with intent to deliver, an unclassified felony, in violation of §13(a)(30) of the Controlled Substance, Drug Device and Cosmetic Act and possession of a controlled substance, an unclassified misdemeanor, in violation of §13(a)(16) of the Controlled Substance, Drug Device and Cosmetic Act. At Case No. 85 of 2014, the juvenile is charged with corrupt organizations, a felony of the first degree, in violation of §911(b)(2) of the Crimes Code; delivery of a controlled substance, an unclassified felony, in violation of §13(a)(30) of the Controlled Substance, Drug Device and Cosmetic Act (three counts); criminal conspiracy to deliver a controlled substance, an unclassified felony, in violation of §903(a) (1) of the Crimes Code (four counts); and criminal use of a communication device, a felony of the 2nd degree, in violation of §7512(a) of the Crimes Code, (two counts).

The transfer of juvenile proceedings to criminal proceedings is governed by 42 Pa.C.S.A. §6355. That section provides that after a petition has been filed alleging delinquency based on conduct which is designated a crime under the laws of this commonwealth, the court may rule that this chapter (relating to juvenile proceedings) is not applicable and that the offense should be prosecuted, and transfer the offense to the criminal division of the court. Transfer is appropriate if the child was fourteen or more years of age at the time of the alleged conduct, and that after a hearing, the court finds that there is a prima facie case that the child committed the delinquent act alleged, that the delinquent act would be considered a felony if committed by an adult and that there are reasonable grounds to believe that the public interest is served by the transfer of the case for criminal prosecution. In determining whether the public interest can be served by a transfer, the court shall consider the factors that are set forth in §6355(a)(4)(iii)(A) through (G)(I-IX).

The burden of establishing by a preponderance of evidence that the public interest is served by a transfer of the case to criminal court and that the child is not amenable to treatment, supervision, or rehabilitation as a juvenile rests with the commonwealth. 42 Pa.C.S.A.§6355(g).

At Case No. 84 of 2014, the Commonwealth presented a prima facie case that the child committed the offenses of possession of a controlled substance with intent to deliver as well as simple possession. On June 16, 2014, New Castle Police Officer Brandon Hallowich conducted a traffic stop of a motor vehicle occupied by the juvenile. The driver of the vehicle was one Jamal Hill, a paramour of the juvenile’s mother and Stacy Heaney, the juvenile’s mother. The juvenile M.R.S. was seated in the back seat of the vehicle together with another female juvenile and an infant. A search of the vehicle yielded a can of what appeared to be Sprite, which contained a hidden compartment. Located therein was a baggie containing eight Xanax pills and eight grams of heroin. A search of the juvenile’s person yielded $3,550 in cash. The amount of $1,086 in cash was located on the person of Jamal Hill, once taken into custody,, the juvenile immediately stated that the heroin and the “xannies” were his.

At Case No. 85 of 2014, the commonwealth established a prima facie case as' to the charges of corrupt organizations, delivery of a controlled substance, criminal conspiracy and criminal use of a communication facility. The Commonwealth proved that over a period of at least one year, the juvenile was part of a organization involved in the distribution of heroin known as the “Schmidt Heroin organization” and that the juvenile himself was the second largest supplier of Heroin for distribution within the organization answering directly to his father as the head of the organization M.R.S. supplied heroin on a regular basis, twice a week or more, to mother’s paramour, Jamal Hill and to others. On February 21, 2014, the juvenile delivered and sold .5 grams of heroin to a confidential informant, on February 21, 2014, the juvenile entered into an illegal criminal conspiracy with one Mark Ortiz to deliver .5 grams of heroin. On February 21, 2014, the juvenile utilized a telephone as a communication facility in order to arrange and accomplish the delivery of .5 grams of heroin to a confidential informant. On April 22, 2014, the juvenile conspired with his mother’s paramour, Jamal Hill, and his mother, Stacy Heaney, to accomplish the delivery of 3.8 grams of heroin to a confidential informant. On April 28, 2014, the juvenile did deliver 5.1 grams of heroin to a confidential informant. On April 28, 2014, the juvenile conspired and agreed with one Jamie Clobus and his mother, Stacey Heaney, to deliver 5.1 grams of heroin to a confidential informant. On April 28, 2014, the juvenile utilized a communication facility, specifically a telephone, to arrange a delivery of 5.1 grams of heroin to a confidential informant. On May 21, 2014, the juvenile delivered 9.8 grams of heroin to a confidential informant, on May 21, 2014, the juvenile entered into an agreement with one Michael Lee Schmidt and did conspire with him to accomplish the delivery of 9.8 grams of heroin, on May 30, 2014, the defendant and Michael Lee Schmidt, Anthony Schmidt and Patrick Sinibaldi did meet at the residence of Michael Lee Schmidt as members of the above described corrupt organization, at which time the organization had been resupplied with a quantity of heroin in order to enter into a conspiracy and agreement for the distribution and delivery of the supply of heroin.

In order to effectuate a transfer to criminal prosecution, the court must find that there are reasonable grounds to believe that the public interest is served by the transfer for criminal prosecution considering the factors hereinafter set forth, which will be addressed seriatim.

(A) The Impact of the Offense on the Victim or Victims

No evidence was submitted on this factor.

(B) The Impact of the Offense on the Community

Prior to the arrest of the juvenile and his co-defendants, investigating officers had noticed a dramatic increase in heroin distribution in the city of New Castle as well as an increase in heroin overdoses. The investigation revealed a structured organization which is now referred to as the Schmidt Heroin Organization. The investigation revealed that the criminal enterprise introduced into the city of New Castle and Lawrence County area large quantities of heroin each week. On the specific day of arrest of all defendants, $50,000.00 in cash was seized. The juvenile was the second highest distributor of heroin in this organization. The highest distributor was the juvenile’s father as head of the organization.

(C) The Threat to the Safety of the Public or Any Individual posed by the Child

In addition to the juvenile’s role in the Schmidt Heroin Organization, evidence showed that the juvenile regularly carried a firearm. At the time of the juvenile’s arrest, he was under supervision in the office of Juvenile Probation of Lawrence County as the result of having been charged as a juvenile with the offense of Reckless Endangerment, such offense having involved the use of a firearm.

(D) The Nature and Circumstances of the Offense Allegedly Committed by the Child

In determining that a prima facie case existed and in addressing the impact of the offense on the community, the courthas already described the nature and circumstances of the offenses charged. The level of a juvenile’s involvement in the organization was such that he would obtain from his father approximately 100 grams of heroin at least twice per week, or more, which he would then distribute.

(E) The Degree of the Child’s Culpability

The courthas already determined thatthe commonwealth proved a prima facie case as to each of the offenses with which the juvenile is charged. The evidence indicated that the juvenile committed these acts with the full knowledge of the illegality of the acts. The juvenile’s age and mental state, including level of intelligence, requires a finding that he knowingly engaged in the acquisition and distribution of large amounts of heroin for financial gain, and. for a period of time himself traveled to Youngstown, Ohio to obtain the supply of heroin for the organization until his father directed him not to do so any further.

(F) The Adequacy and Duration of Dispositional Alternatives in the Juvenile and Criminal Justice Systems

Both the Juvenile system and the criminal system have facilities that address the needs of the juvenile particularly with respect the juvenile’s drug addiction. However, jurisdiction over the juvenile would end once he obtained the age of 21. Thus, juvenile jurisdiction would end over the defendant in approximately two years and seven and one-half months from now, and even less time available for rehabilitation considering that juvenile procedure would still require time to address the adjudicatory and dispositional procedures before placement of the juvenile would take place.

(G) Whether the Child is Amenable to Treatment, Supervision or Rehabilitation as a Juvenile

(I) Age

The juvenile is eighteen years of age having been bom on July 17, 1996.

(II) Mental Capacity

The juvenile has been assessed by two mental health experts for the commonwealth and by one for the juvenile. All of these experts have indicated that the juvenile is highly intelligent. The juvenile suffers from anti-social personality disorder.

(III) Maturity

The juvenile exhibits a level of maturity well beyond his years. At age seventeen, he maintained a relationship with a twenty-eight year old female drug addict as his girlfriend. Since his parents have been separated for a considerable length of time and both involved in illegal drug activity, the juvenile for most of his life had to fend for himself, taking up residence with different relatives, including his maternal grandfather, his mother, or his father at various times. He is mature in the sense that he is highly sophisticated and does not think and act as a child but as someone who is comfortable with a criminal lifestyle involving drug addiction and the financial reward that comes from distribution of large quantities of controlled substances.

(IV) The Degree of Criminal Sophistication Exhibited by the Child

The juvenile’s criminal sophistication is evident from his high level of placement in the hierarchy of the heroin distribution organization. He was able to engage in a conspiracy with adult individuals and maintain higher placement in the organization over adult individuals much older than he.

The juvenile also exhibited criminal sophistication in the manner in which he accomplished deliveries of controlled substances, it was his habit when arranging a delivery to identify a location where the delivery was to occur, and then, in order to further avoid detection, change the location at the last minute. It has been above noted that when he was found in possession of the Xanax pills and the eight grams of 'heroin, they were found hidden in a Sprite can that contained a false compartment.

The juvenile further exhibited criminal sophistication in the manner in which he was able to conceal his criminal involvement while under supervision in the juvenile justice system, while engaged in his criminal enterprise, he was able to manipulate his juvenile probation officer to the degree that his probation officer considered him to be a perfectly compliant juvenile on probation. The juvenile probation office of Lawrence County never suspected that the juvenile had any issue with addiction or that he was engaged in any criminal enterprise involving drugs. It was never felt that there was any need to drug test him or to have him assessed for any drug or alcohol issue. The juvenile always maintained close contact with his probation officer, taking every precaution not to arouse any suspicion in himself while under supervision.

(V) Previous Records

No previous records were introduced into evidence that were noteworthy. No school records exist as juvenile left school at an early age.

(VI) Prior Delinquent History and Previous Attempts of Rehabilitation

The juvenile’s first contact with the Juvenile Probation Office of Lawrence County occurred in August of 2011 in order to address his truancy. He was assessed and referred to the community resource program. Although the assessment of him at that time did not indicate any problems with drugs and no reason to drug test him were discovered, efforts to keep him enrolled in school ultimately failed. The assessment was incorrect as M.R.S. was involved in drugs at that time.

In May of 2012, the juvenile was again subject to an informal process in the office of Juvenile probation for contempt for failure to pay and to participate in the amends program. His participation in the amends program was for not attending school for which he was to perform fifty hours of community service and an additional twenty hours of community service for involvement in the juvenile system for driving without a license and failure to pay the costs and fines.

In November of 2013, the juvenile was charged with various offenses that ultimately resulted in him coming under supervision on a charge of Reckless Endangering. His assessment indicated no indication of drug use. The assessment was again incorrect. By this time he had withdrawn from school and his management plan included working on a G.E.D. He reported living with his grandfather. No drug problem was ever reported or discovered by the juvenile probation office. He was never drug tested until after he was arrested on the pending charges at which time he was discovered to be positive for Oxycontin, Marijuana and opiates, as well as other drugs.

During the entire time that he was in contact with the juvenile probation office of Lawrence County, he was in fact addicted and involved with the selling drugs, at least during the time that he was on formal probation. All efforts to rehabilitate the juvenile by the Lawrence County Juvenile probation office were ineffective to identify his problem and otherwise unsuccessful.

It is also worth noting that while he was under supervision by the juvenile probation office, he was also under supervision in Ohio as a result of which, the Ohio juvenile justice system directed that he undergo treatment for drug abuse. He was able to conceal from the Lawrence county juvenile probation office his involvement in Ohio and further, the Ohio probation office had no awareness of any involvement of the juvenile in the Lawrence County juvenile probation office. The juvenile’s rehabilitation counselor had no awareness of the juvenile’s involvement with the Lawrence county juvenile probation office.

What is noteworthy is that with all of the juvenile’s interaction with the aforesaid agencies, Lawrence County juvenile probation, Ohio juvenile probation and the rehabilitation agency, the juvenile was able to convince all of these entities that he was following the rules laid down for him, while in reality he was involved in the use and delivery of controlled substances as part of a criminal enterprise in which he was the second largest supplier.

(VII) Whether the Child Can Be Rehabilitated Prior to the Expiration of the Juvenile Court Jurisdiction

The Commonwealth and the defendant each provided expert testimony regarding this issue. The commonwealth presented the testimony of Jeffrey Sunderman, a counselor with Clover Psychological Association, as well as the testimony of psychologist Cathy Clover. The testimony done by Mr. Sunderman was done under the supervision of Cathy Clover. The report that was generated as the result of the evaluation by Mr. Sunderman and Ms. Clover was co-authored by them. Clover Psychological opined that the juvenile is at high risk for future substance abuse, antisocial activities and failed treatment experiences and that as such, the juvenile is not amenable to treatment or intervention as afforded by the juvenile justice system. This opinion was arrived at after the juvenile was subject to a number of assessment tools including the adolescent attitudes, beliefs and myths inventory; the Buss-Durkey hostility inventory; the opioid risk tool, the trauma symptom checklist for children; the behavioral rating inventory of executive function; the problem orientated screening instrument for teenagers; the event drawing series; the hare psychopathy checklist-screening version; the structured assessment of violence risk in youth; and the risk sophistication treatment inventory.

Clover Psychological determined that the juvenile is intelligent, capable of learning and understands cause and effect; and acknowledges his deception while on probation; Clover Psychological concluded that the juvenile failed to benefit from supervised intervention and prior treatment opportunities; that he does not see a need for addiction therapies and that he minimizes the impact of his actions and effect on others; his substance abuse addiction is significant; that he does not have positive family support; that he acknowledges that he is a skilled manipulator and that he is not self-motivated.

Clover Psychological further opined that his risk of recidivism is evident by the fact that he is addicted to heroin and opioids and is- a multi-substance abuser and that, although he is clean and sober at present, heroin and opioid addiction has one of the highest incidents for repeated relapse; that his propensity for violence has escalated as he has aged; that he has engaged in illegal behavior across state lines; has engaged in repeated acts of violence of antisocial behavior and that he has not demonstrated a willingness or need to comply with social boundaries and institutions, i.e. school dropout, multiple arrests, failed drug and alcohol treatment and violation of probation. Further, the juvenile’s antisocial behaviors and thinking/cognitive distortions are significant; that he has few or no relationships that are positive and healthy and that he is impulsive.

The court finds that Clover Psychological has based its opinions on established practices and evaluation methods that have been empirically supported by research and that the evaluations used are consistent with the current best practice standards. Cathy Clover in her testimony meticulously described each testing tool and assessment method used by her office and how each testing tool was empirically-driven and research replicated as an assessment tool.

Cathy Clover concluded that she did not see the juvenile as amenable to services available to the juvenile court primarily because of the length of the issues he has experienced, and the level of antisocial psychopathy present in him. His adjustment disorder and antisocial personality is the product of a long and pervasive pattern that he has displayed since a very early age, at least since age eleven. Most of the juvenile settings that he could be placed in usually hold juveniles only until the age of eighteen and if they do hold individuals beyond the age of eighteen usually encounter the individual before age eighteen. The court finds the opinions of clover psychological to be credible and compelling.

(VIII) Probation or Institutional Reports

The juvenile is currently in shelter care at Keystone Adolescent. William Fraley supervises the juvenile and deals with him on a daily basis. Mr. Fraley describes the juvenile as doing well in shelter care, helps other juveniles, helps his teacher, is respectful, his grades are excellent and he is doing well is shelter care. The juvenile has had no issues since being in shelter care. He is described as a “good kid” with a “good head on his shoulders”, very intelligent and in a bad situation. Mr. Fraley states from his personal perspective, the juvenile appears to be taking what’s coming to him in his placement situation with sincerity.

(IX) Discussion

The juvenile court must consider all the factors set forth in the juvenile act when determining whether to certify a youth for adult prosecution. Commonwealth v. Jackson, 555 Pa. 37, 722 A.2d 1030 (1999). In order to properly certify a juvenile to be tried as an adult, the court must make a record which accurately reflects the basis for its decision to transfer the case and demonstrates the court’s careful consideration to the certification petition. Commonwealth v. Menzer, 698 A.2d 87 (Pa. Super. 1997). The certification judge enjoys broad discretion in making a determination on whether to certify a juvenile for adult prosecution. The certification decision must be supported by the record and boilerplate recitation of the statutory factors is insufficient to permit meaningful appellate review of a certification decision. Commonwealth v. Jackson, Supra. The certification of a juvenile for trial as an adult depends upon complex balancing of numerous factors. Commonwealth v. McDonald, 399 Pa. Super. 250, 582 A.2d 328.

In the case of In Re: Kline, 15 Pa. D.& C.3d 436 (1980) where a juvenile accused of various offenses was almost age eighteen, had maturity more nearly that of an adult than a child, and had not been impressed by prior juvenile probation services with the consequences of his criminal conduct, a petition to transfer the case to criminal division was granted.

The court here concludes that the Commonwealth’s petition to transfer this case to the criminal division of this court should be granted.

The juvenile here was nearly eighteen years of age at the time of the criminal conducted complained of and attained the age of eighteen shortly after his arrest. He has been found to be highly intelligent and his maturity level is more nearly that of an adult than that of a child. He has exhibited a high degree of criminal sophistication both in the ability to commit the crimes with which he is charged and in his ability to conceal his criminal activity both from law enforcement and from those having supervision over him. He has had significant prior involvement in the juvenile justice system which was not only unsuccessful in its efforts to rehabilitate him but also a failure in terms of the ability to even detect the level of his criminal activity or even that he suffered from extreme opioid addiction.

The progression of these proceedings in juvenile court, if resulting in an adjudication and eventual disposition, would leave only approximately two years in which the juvenile could potentially be rehabilitated. The court does not believe that two years is enough to address behaviors that have been ingrained in this juvenile since at least the age of eleven. He suffers from an antisocial personality diagnosis, it is not reasonable to think that with the level of his addiction and his antisocial nature and with length of time that he has considered criminal activity to be a normal part of his life that rehabilitation in the juvenile system can occur in two or two and one-half years.

The juvenile was subjected to an intensive evaluation by Clover Psychological. The battery of tests to which he was subject were evidence and research based and consisted of the best practices available in the area of forensic psychology. The opinions afforded by Clover Psychological are consistent not only with the results of the testing afforded to the juvenile but also consistent with his age, maturity level and degree of criminal sophistication that he has exhibited.

The court has carefully considered the testimony of Dr. Douglas Bogdan who concluded that M.R.S. is amenable to treatment in the juvenile division. Although Dr. Bogdan performed a thorough evaluation, and has significant experience in dealing with juveniles, the court finds that the actual facts of the case, as the court finds them, provide greater support to the opinion of Clover Psychological.

The court has carefully considered the well-reasoned argument presented by counsel for the juvenile, significantly that he is a product of an environment where he had no parental supervision and was induced to' enter this life of criminal activity by his own parents and family members, while such circumstance is clearly a mitigating factor, it does not change the fact that the behaviors that are criminal in nature have been ingrained in him since an early age. The juvenile argues that taking him away from the criminal influences of his parents and other relatives will remove him from the opportunity to engage in criminal activity and that he should have the further opportunity to show that he can leave a crime free life when subject to positive influences. The juvenile further points to the fact that he is doing well in shelter care since he is away from the influences of his parents. However, the juvenile has shown a remarkable ability to appease by manipulation those who exercise authority over him and to conceal his proclivity to engage in criminal behavior. Although the court may believe that he would be able to demonstrate positive behavior while in juvenile confinement, this factor would not provide him with the specific rehabilitation and treatment that he would need in order to change his behavior once released from placement. In fact, the greater likelihood is that once he is away from supervision given his present level of addiction and proclivity to criminal conduct, he would in fact return to criminal conduct and addiction without the proper steps taken to rehabilitate him. The court further finds that these steps require a longer period of treatment and supervision than is currently available under the jurisdiction of the juvenile act. Therefore, the court will grant the petition of the commonwealth and transfer and certify this case to the criminal division of this court.

ORDER OF COURT

And now, this 24th day of December, 2014, after consideration of the Commonwealth’s petition to transfer proceedings to adult criminal court, and after hearings held thereon, and in accordance with the accompanying opinion of even date herewith, it is ordered and decreed that the Commonwealth’s petition to transfer proceedings to adult criminal court is granted and the above captioned case is hereby transferred from the juvenile division of this court to the criminal division of this court.

' A hearing to determine bail is hereby scheduled for the 5th day of December, 2014 at 9:00 o’clock a.m. in Courtroom #1.

The defendant shall remain detained at Keystone Adolescent pending the determination of bail and further order of court pursuant to 42 Pa.C.S.A. §6327(d).

The Commonwealth shall file a criminal information within ten (10) days of the date of this order, and shall place this case on the arraignment list for January, 2015.