DO NOT PUBLISH MAY BE PUBLISHED

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1 DO NOT PUBLISH MAY BE PUBLISHED XXX Murray v. Addiction Recovery Sys., et al. No. CI (Code 96) Cullen, J. December 11, 2012 Civil Preliminary Objections: Lack of Specificity Legal Sufficiency Negligent Infliction of Emotional Distress Contemporaneous Observation Wrongful Death Preliminary objections in the form of a motion to strike matters in a complaint under Pennsylvania Rule of Civil Procedure 1028(a)(3) can be asserted for lack of specificity of pleading pursuant to Pennsylvania Rule of Civil Procedure 1019(a), which requires all material facts on which a cause of action or defense is based be stated in a concise and summary form. The Court looks not only to the particular paragraph at issue, but also to the paragraph in the context of other allegations in the complaint. When determining whether the averments of the complaint are sufficient, a court must ensure that the challenged averments present no risk of a future, unexpected amendment to the complaint based upon new facts. In order to sustain a claim for negligent infliction of emotional distress, the plaintiff must have been located near the scene of the injury, have experienced a direct emotional impact from the sensory and contemporaneous observation of the incident rather than learning of the incident after its occurrence, and have had a close relationship with the victim. In order to have contemporaneous observation, the plaintiff must have observed the event that results in the plaintiff s emotional distress. Contemporaneous observance is the plaintiff s degree of the awareness arising from senses and memory. Pennsylvania law recognizes two possible avenues for relief by which heirs can recover damages for the death of another: the wrongful death action and the survival action. There is no common law cause of action to recover for the wrongful death of a relative. IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION DEBRA A. MURRAY and SCOTT B. : MURRAY, SR. as Co-Administrators of the : Estate of SCOTT B. MURRAY, JR., on : Behalf of Said Decedent s Heirs-At-Law : and Next-Of-Kin, and In Their Own Right, : Plaintiffs : : vs. : No. CI : Code 96 ADDICTION RECOVERY SYSTEMS, ARS :

2 OF LANCASTER, LLC, ARS OF : LANCASTER, L.P., A.R.S. OF : LANCASTER, L.P., ADDICTION : RECOVERY SYSTEMS, LLC, DAVID F. : HOFFMAN, M.D., MARK R. HARRIS, D.O., : ABBY BITTLER, M.S., and JODI SKILES, : Defendants : By CULLEN, J. OPINION AND ORDER Pending before the Court are the preliminary objections of Defendant David F. Hoffman, M.D. (Defendant Hoffman), and Defendant Mark R. Harris, D.O. (Defendant Harris), to Plaintiffs amended complaint. Defendants seek to strike the phrase both generally and in paragraphs 102 and 105 of the amended complaint, and dismissal of count VIII. Further, Defendant Hoffman seeks dismissal of count III and Defendant Harris seeks dismissal of count II. For the reasons set forth below, Defendants preliminary objections will be sustained in part and overruled in part. Plaintiffs will be permitted to file a second amended complaint. Procedural and Factual Background Plaintiffs, Debra A. Murray and Scott B. Murray, Sr., initiated this action by filing a praecipe for writ of summons on March 12, A complaint with the required certificates of merit was filed on May 9, Following the filing of preliminary objections by Defendant Hoffman, Plaintiffs amended their complaint on June 8, In the amended complaint, Plaintiffs name Addiction Recovery Systems, ARS of Lancaster, LLC, ARS of Lancaster, L.P., Addiction Recovery Systems, LLC ( ARS, collectively), Defendant Hoffman, Defendant Harris, Abby Bittler, M.S. and Jodi Skiles as defendants. Counts I, II, III, IV, and V allege claims of negligence against ARS, Defendant Harris, Defendant Hoffman, Ms. Bittler and Ms. Skiles, respectively. Count VI is a claim of corporate negligence against ARS. Count VII seeks to recover damages against ARS based on a theory of agency/respondeat superior. Count VIII asserts a cause of action for negligent infliction of emotional distress against all defendants. Counts IX and X are causes of action for wrongful death and survival, respectively, against all defendants. This action arose as a result of the death of Plaintiffs son, Scott B. Murray, Jr. ( Mr. Murray ). On March 16, 2012, Mr. Murray was discharged from the hospital and went to ARS, a methadone maintenance center, for further treatment and care. (Pls. Am. Compl.,

3 18-21). The hospital transmitted Mr. Murray s records to ARS and also provided him with a five day supply of prescriptions for his medications. (Id. at 22-23). On admission to ARS s methadone maintenance treatment program, he was observed as having mild withdrawal symptoms and was given 30 mg of methadone. (Id. at 25, 27, 30). In his initial treatment plan, Mr. Murray was not listed as being on any prescription medications, despite the five day supply of prescriptions provided by the hospital, and despite ARS regulations requiring staff to document the medications in the patient s record and contact the prescribing physician if necessary. (Id. at 22, 34, 36). Mr. Murray returned to his father s home on March 16, and Plaintiff Scott Murray noticed that his son appeared tired and nauseous. (Id. at 42). The next day, Mr. Murray returned to ARS with symptoms including sweating, restlessness, dilated pupils, aches and pains, tremors, and vomiting. (Id. at 43, 46). Defendant Harris verbally ordered an increase in Mr. Murray s methadone dosage, from 30 mg to 40 mg, but did not observe him for thirty minutes as required by ARS regulations. (Id. at 36, 47-50). When Mr. Murray returned home that evening, Plaintiff Scott Murray noticed his son appeared drunk and not right. (Id. at 51). Mr. Murray returned to ARS on March 18, 2010, and reported symptoms similar to those of the previous day, and Defendant Hoffman ordered another increase in his methadone dosage, from 40 mg to 50 mg, but did not observe him for the required thirty minutes. (Id. at 56-57). Mr. Murray requested that his dosage be reduced, but was told he would get used to the side effects. (Id. at 61-62). When he returned home that day, his father noticed a significant deterioration in his condition, and that his speech was slow, he was sleepy, vomiting and suffering from a migraine. (Id. at 63). Mr. Murray returned to ARS on March 19, 2010, displaying generally the same symptoms, and Defendant Harris again ordered an increase in the methadone dosage, from 50 mg to 60 mg. (Id. at 64-67). Mr. Murray went home, where his symptoms worsened. (Id. at 71). Later that evening, Plaintiff Scott Murray found his son foaming at the mouth and unresponsive. (Id. at 72, 74). Mr. Murray was taken to the hospital where he passed away. (Id. at 76-78). An autopsy revealed the cause of death was acute methadone toxicity (id. at 84), and toxicology results showed a mix of methadone and his prescription drugs in his body. (Id. at 88-89). Plaintiffs claim Defendants negligent medical treatment of Mr. Murray caused his death and specifically cite twelve particulars, including failure to follow ARS policies and procedures regarding intake and observation, failing to verify medications prescribed to Mr. 3

4 Murray, failing to recognize the signs of methadone toxicity and failing to keep proper records. (Id. at 102(a)-(l), 105(a)-(l)). Plaintiffs also allege that Defendants negligent conduct caused them to suffer emotional distress. (Id. at ). Defendant Harris filed preliminary objections to the amended complaint on June 19, 2012, and Plaintiffs responded on July 9, Defendant Hoffman filed his preliminary objections on July 2, 2012, and Plaintiffs filed a response on July 20, Both Defendants challenge the use of the phrase both generally and in the negligence claims against them, claiming this wording is too vague to permit them to prepare a defense. (Def. Hoffman Am. P.O.s, 9-16; Def. Harris Am. P.O.s, 9-14). Each Defendant seeks to dismiss Plaintiffs claim for negligent infliction of emotional distress (count VIII) asserting that it is legally insufficient. (Def. Hoffman Am. P.O.s, 18; Def. Harris Am. P.O.s, 25). Lastly, Defendants challenge the legal sufficiency of Plaintiffs cause of action for negligence against each, on the ground that an action for common law negligence for the wrongful death of another does not exist in Pennsylvania. (Def. Hoffman Am. P.O.s, 34-36; Def. Harris Am. P.O.s, 15-20). Because both Defendants voiced identical objections to Plaintiffs amended complaint, the Court will consider the preliminary objections together. All parties have submitted briefs in support of their respective positions, and the issues presented are ready for disposition. Discussion Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:... failure of a pleading to conform to law or rule of court... insufficient specificity in a pleading; legal insufficiency of a pleading (demurrer).... Pa. R.C.P. 1028(a)(2)-(4). Pennsylvania is a fact pleading state in which the complaint must provide the defendant notice of the basis of the claim and a summary of the facts essential to support the claim. Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008) (citing Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa. Super. 293, 298, 464 A.2d 4

5 1349,1352 (1983)). Preliminary objections in the form of a motion to strike matters in a complaint under Pennsylvania Rule of Civil Procedure 1028(a)(3) can be asserted for lack of specificity of pleading pursuant to Pennsylvania Rule of Civil Procedure 1019(a), which requires all material facts on which a cause of action or defense is based be stated in a concise and summary form. Yacoub v. Lehigh Valley Medical Associates P.C., 805 A.2d 579, (Pa. Super. 2002). The complaint must be sufficiently clear to enable the defendant to prepare his defense or... [inform] the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense. McNeil v. Jordan, 814 A.2d 234, (Pa. Super. 2002). The court looks not only to the particular paragraph at issue, but also to the paragraph in the context of the other allegations in the complaint. Yacoub, 805 A.2d at 589. When determining whether the averments of the complaint are sufficient, a court must ensure that the challenged averments present no risk of a future, unexpected amendment to the complaint based upon new facts. Connor v. Allegheny General Hospital, 501 Pa. 306, 310, 461 A.2d 600, 602 (1983) (citations omitted). Phrases such as including, but not limited to and generally are too vague to permit a defendant to prepare a defense, and allow a plaintiff to assert a completely new theory of recovery up until trial. Id. Plaintiffs argue that Pennsylvania courts give litigants broad latitude to amend and amplify causes of action, especially in medical malpractice cases when the defendant is in control of relevant information. (Pls. Res. in Opp. to Def. Hoffman Am. P.O.s, 9-11; Pls. Res. in Opp. to Def. Harris Am. P.O.s, 7-9). In support of their position, Plaintiffs 5

6 cite several cases in which trial courts permitted plaintiffs to proceed with general claims of negligence where the plaintiffs claimed they did not have an opportunity to examine medical records prior to filing their medical malpractice complaints. Id. In the present case, Plaintiffs assert that Mr. Murray s injuries were proximately caused by the negligence and carelessness of [Defendants] both generally and in the following particular respects:... (Pls. Am. Compl., 102, 105). The amended complaint then lists twelve particulars in which Plaintiffs allege Defendants were negligent. While Defendants are on notice and may prepare a defense to the twelve separate allegations of negligence listed in paragraphs 102 and 105, the allegation of general negligence is too vague and gives Plaintiffs too much latitude to amend the complaint at any time to include new theories which Defendants would have no opportunity to adequately address. Plaintiffs are not required to plead specifically matters about which the defendants have much greater knowledge. Foster v. Health Mkt. Inc., 146 Pa. Commw. 156, 162, 604 A.2d 1198, 1201 (1992). However, in the present case, Plaintiffs had access to Mr. Murray s medical records through the release signed in favor of Plaintiff Scott Murray, (Pls. Am. Compl., 32), and a review of the amended complaint makes clear that Plaintiffs have made extensive use of these records in setting out facts in support of their claims for relief. Plaintiffs have also submitted certificates of merit with respect to the claims against the objecting Defendants which demonstrates that Plaintiffs possess sufficient information to plead this cause of action. Therefore, Plaintiffs, unlike those in the cases to which they cite, had access to much of the same information as Defendants 6

7 prior to filing their certificates of merit and amended complaint. 1 Accordingly, Defendants preliminary objection to the language of paragraphs 102 and 105, both generally and, based upon a lack of specificity will be sustained. 1 Certain cases relied on by Plaintiffs were decided prior to the time a certificate of merit was required for a professional liability action. This factor alone makes such cases readily distinguishable. 7

8 Defendants also challenge the legal sufficiency of Plaintiffs claims for negligent infliction of emotional distress and common law negligence as each applies to him. When ruling on such preliminary objections, the court must generally accept as true all well and clearly pleaded facts, together with such reasonable inferences as may be drawn from those facts, but not the pleader s conclusions or averments of law. Santiago v. Pennsylvania Nat l Mut. Ins. Co., 418 Pa. Super. 178, , 613 A.2d 1235, (1992) (citations omitted). Preliminary objections calling for dismissal of a cause of action should be sustained only in cases that are clear and free from doubt. Alston v. PW-Philadelphia Weekly, 980 A.2d 215, 219 (Pa. Commw. 2009). The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Santiago, 418 Pa. Super. at , 613 A.2d at Any doubt as to whether a demurrer should be sustained should be resolved in favor of overruling the demurrer. Id. In order to sustain a claim for negligent infliction of emotional distress, the plaintiff must have been located near the scene of the injury, have experienced a direct emotional impact from the sensory and contemporaneous observation of the incident rather than learning of the incident after its occurrence, and have had a close relationship with the victim. Sinn v. Burd, 486 Pa. 146, , 404 A.2d 672, 685 (1979). Plaintiffs with a close relationship to the victim include parents. See, e.g., id. at 173, 404 A.2d at 686 (permitting a parent to proceed with her negligent infliction of emotional distress claim against the driver of a vehicle which struck and killed her child). 8

9 In order to have contemporaneous observation, the plaintiff must have observed the event that results in the plaintiff s emotional distress. Bloom v. Dubois Regional Medical Center, 409 Pa. Super. 83, 105, 597 A.2d 671, 682 (1991). It is not necessary for the plaintiff to visually observe the negligent act, but the plaintiff must have a contemporaneous sensory observance of events. Krysmalski v. Tarasovich, 424 Pa. Super. 121, 130, 622 A.2d 298, 303 (1993). Contemporaneous observance is the plaintiff s degree of the awareness arising from all... senses and memory. Neff v. Lasso, 382 Pa. Super. 487, 506, 555 A.2d 1304, 1314 (1989). The Superior Court has denied recovery to plaintiffs claiming emotional distress after watching the slow progression of a disease suffered by a close relative, but who did not contemporaneously observe the allegedly negligent act committed by the defendant. Cathcart v. Keene Industrial Insulation, 324 Pa. Super. 123, 471 A.2d 493 (1984); Halliday v. Beltz, 356 Pa. Super. 375, 379, 514 A.2d 906, 909 (1986) (denying recovery for negligent infliction of emotional distress in a medical malpractice case). When a plaintiff has seen only the aftermath of the alleged negligent act, but not the act itself, he cannot recover for negligent infliction of emotional distress because he lacked a contemporaneous observance of the traumatic injury inflicted upon the close relative. Bloom, 409 Pa. Super. at , 597 A.2d at 683. Plaintiffs are Mr. Murray s parents and, therefore, have a close relationship to him. At issue is whether Plaintiffs contemporaneously observed the alleged injury to their son sufficient to sustain a claim for negligent infliction of emotional distress. In count VIII of the amended complaint, Plaintiffs state that they were physically present with their son 9

10 and in close proximity to him while he was being treated and at home. (Pls. Am. Compl., 126). When ruling on preliminary objections, the Court must accept these facts as true. Having pled that they were physically present at the time of the alleged negligent treatment by Defendants at the ARS facility, Plaintiffs have pled sufficient facts to support a prima facie case of negligent infliction of emotional distress. 2 Therefore, Defendants preliminary objection challenging the legal sufficiency of Plaintiffs claim for negligent infliction of emotional distress will be overruled. 3 Lastly, Defendants challenge the legal sufficiency of Plaintiffs claim for common law negligence causing Mr. Murray s death as it applies to them. Defendants claim Plaintiffs failed to comply with Rule 1020(a) in that they cannot bring a common law negligence claim premised upon their son s death as well as wrongful death and survival claims. (Def. Hoffman Am. P.O.s, 34-37; Def. Harris Am. P.O.s, 15-24). Pennsylvania Rule of Civil Procedure 1020(a) provides [t]he plaintiff may state in the complaint more than one cause of action cognizable in a civil action against the same defendant While the Court must accept the facts pled in the amended complaint as true for the purpose of ruling on preliminary objections, Plaintiffs argument in their response would lead one to a different conclusion. In their response, Plaintiffs state that ARS regulations prohibited patients family members from attending appointments. (Pls. Res. in Opp. to Def. Harris Am. P.O.s, 28, n.7; Pls. Res. in Opp. to Def. Hoffman P.O.s, 21, n.6). Additionally, there are no other allegations in the amended complaint, other than those in paragraph 126, that Plaintiff Debra Murray was with Mr. Murray at any time during his treatment and immediately preceding his death. Likewise, there are no specific averments that Plaintiff Scott Murray was present when methadone was provided to his son. 3 This finding does not preclude Defendants from filing a well-supported motion for summary judgment at the appropriate time. 10

11 Pennsylvania law recognizes two possible avenues for relief by which heirs can recover damages for the death of another: the wrongful death action and the survival action. 42 Pa. C.S ; Hodge v. Loveland, 456 Pa. Super. 188, , 690 A.2d 243, 245 (1997). See also Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384, 390 (Pa. Super. 2002) aff d 576 Pa. 22, 838 A.2d 662 (2003) (stating The purpose of our present Wrongful Death Act is to compensate certain enumerated relatives of the deceased for the pecuniary loss occasioned to them through deprivation of the part of the earnings of the deceased which they would have received from him had he lived. ). Wrongful death and survival actions are statutory causes of action under sections 8301 and There is no common law cause of action to recover for the wrongful death of a relative. Hodge, 456 Pa. Super. at , 690 A.2d at 245. Plaintiffs pled a claim for common law negligence against Defendants arising as a result of the death of their son in addition to wrongful death and survival claims. Since a common law negligence claim to recover for the wrongful death of a relative is not a cause of action recognized in this Commonwealth, Defendants preliminary objection to the legal sufficiency of Plaintiffs negligence claim will be sustained. 4 For the foregoing reasons, the Court enters the following: 4 Plaintiffs evidently concede that their argument lacks merit as they have cited no appellate authority in support of their position and have not included this cause of action in their proposed second amended complaint. 11

12 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION DEBRA A. MURRAY and SCOTT B. : MURRAY, SR. as Co-Administrators of the : Estate of SCOTT B. MURRAY, JR., on : Behalf of Said Decedent s Heirs-At-Law : and Next-Of-Kin, and In Their Own Right, : Plaintiffs : : vs. : No. CI : Code 96 ADDICTION RECOVERY SYSTEMS, ARS : OF LANCASTER, LLC, ARS OF : LANCASTER, L.P., A.R.S. OF : LANCASTER, L.P., ADDICTION : RECOVERY SYSTEMS, LLC, DAVID F. : HOFFMAN, M.D., MARK R. HARRIS, D.O., : ABBY BITTLER, M.S., and JODI SKILES, : Defendants : O R D E R AND NOW, this 11 th day of December, 2012, upon consideration of the preliminary objections filed by Defendants, David F. Hoffman, M.D. and Mark R. Harris, D.O., and the response of Plaintiffs, it is ordered that Defendants preliminary objections are sustained in part and overruled in part. The preliminary objections to count VIII are overruled. The remaining preliminary objections are sustained. Plaintiffs may file a second amended complaint within thirty (30) days of the date of this order. BY THE COURT: Attest: JAMES P. CULLEN, JUDGE Copies to: Robert J. Mongeluzzi, Esquire Lauralee Baker, Esquire George M. Nace, III, Esquire Francis J. Deasey, Esquire

13 ROBERT J MONGELUZZI ESQUIRE SALTZ MONGELUZZI BARRETT & BENDESKY PC 1650 MARKET STREET 52 ND FLOOR PHILADELPHIA PA LAURALEE BAKER ESQUIRE BARLEY SNYDER 126 EAST KING STREET LANCASTER PA GEORGE M NACE III ESQUIRE POST & SCHELL PC 1245 SOUTH CEDAR CREST BLVD #300 ALLENTOWN PA FRANCIS J DEASEY ESQUIRE DEASEY MAHONEY VALENTINI & NORTH LTC 1601 MARKET STREET 34 TH FLOOR PHILADELPHIA PA 19103