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Richard Scampone, As Executor v. Grane Healthcare Company

July 15, 2010

RICHARD SCAMPONE, AS EXECUTOR
OF THE ESTATE OF MADELINE
SCAMPONE,
APPELLANT
v.
GRANE HEALTHCARE COMPANY, GRANE
ASSOCIATES, L.P., HIGHLAND PARK
CARE CENTER, LLC, D/B/A
HIGHLAND PARK CARE CENTER, TREBRO INC.,
APPELLEES



Appeal from the Judgment Entered November 8, 2007, in the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. No. 2005-24806.

The opinion of the court was delivered by: Bowes, J.:

Appeal from the Judgment Entered November 8, 2007, in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 2005-24806.

IN THE SUPERIOR COURT OF PENNSYLVANIA

RICHARD SCAMPONE, EXECUTOR OF ESTATE OF MADELINE SCAMPONE, Appellee v. GRANE HEALTHCARE COMPANY, GRANE ASSOCIATES, L.P., HIGHLAND PARK CARE CENTER, LLC, D/B/A HIGHLAND PARK CARE CENTER, TREBRO INC., APPEAL OF: HIGHLAND PARK CARE CENTER, LLC, D/B/A HIGHLAND PARK CARE CENTER, AND GRANE HEALTHCARE COMPANY, Appellants

BEFORE: BOWES, DONOHUE and POPOVICH, JJ.

***Petition for Reargument Filed August 16, 2010***

OPINION BY

***Petition for Reargument Denied September 24, 2010***

¶ 1 This is an appeal and cross appeal from judgment entered on a $193,500 jury verdict rendered in favor of the plaintiff, Richard Scampone in his capacity as executor of the estate of Madeline Scampone ("Plaintiff"), in this action involving nursing home liability. We find that the evidence was sufficient to support a cause of action for corporate liability and that such liability can be imposed upon a nursing home. We also conclude that the trial court improperly granted nonsuit in favor of Grane Healthcare Company during the course of trial and that there was sufficient evidence of misconduct in this case to warrant submission of the issue of punitive damages to the jury. We reverse and remand for a new trial.

¶ 2 On September 22, 2005, Plaintiff instituted this action by praecipe for writ of summons against Grane Healthcare Company ("Grane"), Grane Associates, L.P., Highland Park Care Center, LLC d/b/a/ Highland Park Care Center ("Highland"), Trebro, Inc., and Ross J. Ness, who was the general partner of Grane Associates, L.P. Mr. Ross was dismissed by stipulation and order of court entered on March 27, 2006. The complaint was filed on November 15, 2005, and amended on December 7, 2005. From February 5, 1998, through January 30, 2004, Madeline Scampone ("Madeline"), was a resident of Highland Park Care Center, which is a nursing home facility owned by Highland Park Care Center, LLC. We will sometimes refer to Highland generically as the nursing home or the facility. Grane managed the nursing home. Grane Associates, L.P., and Trebro, Incorporated have an ownership interest in Highland Park Care Center.

¶ 3 The general factual background follows. When Madeline, aged eighty- eight, entered the nursing home in February 1998, she was in need of skilled nursing care and had a medical history that included senile dementia, depression, hypertension, atrial fibrillation, chronic obstructive pulmonary disease, diverticulosis, osteoporosis, diverticulitis, thoracic compression fracture, and a left hip replacement. The events that precipitated her death began in December 2003. On December 15, 2003, Madeline was diagnosed with a urinary tract infection ("UI"), and she was hospitalized, treated, and returned to the nursing home in good condition on December 18, 2003. Madeline was re-admitted to the hospital on January 30, 2004, and was diagnosed with another UI as well as dehydration, malnutrition, and bed sores. Madeline died of a heart attack at the age of ninety-four on February 9, 2004.

¶ 4 Plaintiff instituted this action and alleged that the UI, dehydration, and malnutrition caused Madeline's heart attack and that the defendants rendered substandard care. Plaintiff asserted that defendants were liable based both upon vicarious and corporate liability, the latter of which was premised upon the existence of chronic understaffing at the facility such that the employees were incapable of performing appropriate care to the nursing home residents, including Madeline. Plaintiff claimed that the defendants' substandard care caused the UI, dehydration, and malnutrition that led to Madeline's death. Punitive damages were also demanded.

¶ 5 The case proceeded to a jury trial, where Grane Healthcare Company, Grane Associates, L.P., and Trebro, Inc., were granted a compulsory nonsuit. In addition, the trial court concluded that the evidence was insufficient to submit the question of punitive damages to the jury. Thus, the case as to Highland was sent to the jury based upon both corporate and vicarious liability. The jurors returned the following verdict:

QUESTION 1: Do you find that the defendant itself failed to oversee its nursing staff as to plaintiff's care? ANSWER: Yes.

QUESTION 2: Do you find that the defendant itself had actual or constructive knowledge of the failure you found in Question 1?

ANSWER: Yes.

QUESTION 3: Do you find that the conduct of the defendant's employees fell below the applicable standard of care? In other words, were the employees of the defendant negligent?

ANSWER: Yes. QUESTION 4: Was the defendant's negligence a factual cause of any harm to the plaintiff? ANSWER: Yes. QUESTION 5: State the amount of damages sustained by the plaintiff as a result of the negligence of the defendant. Wrongful death damages: $52,666.67. Survival Act damages: One hundred forty thousand -- excuse me, $140,833.33 Total: $193,500. N.T. Trial Vol. V, 5/31/07-6/1/07, at 208-09. The jury therefore specifically determined that Highland was both corporately and vicariously liable for Madeline's death.

¶ 6 Following denial of post-trial motions and supplemental post-trial motions, Plaintiff filed the appeal at 2180 WDA 2007, and Highland filed the cross-appeal at 2301 WDA 2007. Plaintiff raises these issues for our review: I. Did the trial court commit reversible error when it granted a motion for compulsory non-suit in favor of Defendant/Appellee Highland Park Care Center, LLC, d/b/a Highland Park Care Center ("Highland Park") on Plaintiff's claim for punitive damages? II. Did the trial court commit reversible error when it granted a motion for compulsory non-suit in favor of

Defendant/Appellee Grane Healthcare Company ("Grane Healthcare") on all of Plaintiff's claims, including his claim for punitive damages? III. Did the trial court commit reversible error when it prohibited Plaintiff from presenting evidence and testimony that could have been used to support her claim for punitive damages, including statements of deficiencies by the Pennsylvania Department of Health, resident council meeting minutes, testimony that the director of nursing stole narcotic pain medication from residents and operated the facility while under the influence of the same, and testimony from various witnesses indicating that a high turnover of facility management negatively impacted resident care? IV. Should the trial court be required to explain how the second question (above) was resolved, so that this issue may be properly briefed by the parties and analyzed by this court? V. Should the trial court rule on Plaintiff's first supplemental motion for post-trial relief regarding evidence that Grane Healthcare wrongfully withheld during the trial, so that this issue can be properly raised in this appeal? Appellant's brief at 6. ¶ 7 The following contentions are presented in the cross-appeal: A. Pennsylvania's appellate courts have consistently limited corporate negligence claims to hospitals and HMOs, not nursing homes, such as Highland Park Care Center. B. There is no case law permitting a corporate negligence claim to be founded upon allegations of "understaffing."

C. Even if a corporate negligence claim founded upon allegations of understaffing may be brought against a nursing home, expert testimony is required to establish both that: (1) the facility breached the industry standard of care by not having sufficient staff to meet the needs of the resident; and (2) the alleged understaffing in fact caused harm to the resident.

D. A retrial of Plaintiff's vicarious liability claim is warranted due to the expansive, prejudicial, and misleading nature of the testimony, evidence, and argument that was presented in support of Plaintiff's corporate negligence claim.

Brief of Appellees and Cross-Appellants at i-ii.

¶ 8 We will discuss a few preliminary issues. Initially, we note that in this appeal, as clearly indicated in the above statement of issues presented on appeal, Plaintiff has not raised any allegations pertaining to the propriety of the nonsuit granted in favor of Grane Associates, L.P., and Trebro, Inc. Plaintiff challenges the grant of nonsuit only with respect to Grane Healthcare Company, which, as noted, we will refer to as Grane in this adjudication.

¶ 9 We also can readily dispose of Plaintiff's fourth and fifth issues. In his fourth question raised on appeal, Plaintiff assails the sufficiency of the Pa.R.A.P. 1925(a) opinion prepared by the trial court. Specifically, Plaintiff maintains that we should remand so that the trial court can prepare a supplemental adjudication to explain its decision to grant nonsuit in favor of Grane. In Cooke v. Equitable Life Assurance Society of U.S., 723 A.2d 723, 727 (Pa.Super. 1999), we explained that ordinarily if a trial court has failed to address an issue raised in a Pa.R.A.P. 1925(b) statement, the remedy is "a remand to the trial court with directions that an opinion be prepared and returned to the appellate court." We continued that remand is unnecessary as long as the lack of an opinion does not impact upon our ability to conduct appellate review.

¶ 10 In the present case, we can resolve the issue of the propriety of the grant of nonsuit in favor of Grane without the necessity of explanation from the trial court. Our review of the evidence, which is conducted infra in connection with our discussion of whether Highland is entitled to judgment notwithstanding the verdict as to corporate liability, reveals that nonsuit should not have been entered in favor of Grane. Thus, we find it unnecessary to remand to the trial court to explain its ruling in this respect.

¶ 11 Plaintiff's fifth issue, concerning the trial court's failure to rule upon his supplemental post-trial motion raising an after-discovered evidence claim, was not included in Plaintiff's Pa.R.A.P. 1925(b) statement. That document contains only the first four issues raised on appeal. Thus, the averment that the trial court improperly neglected to rule upon Plaintiff's supplemental post-trial motion is waived. Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement . . . are waived."). Furthermore, it is rendered moot since we will be granting Plaintiff a new trial due to the improper grant of nonsuit in favor of Grane.

¶ 12 Hence, three questions remain to be resolved in connection with Plaintiff's appeal: 1) did the court err in granting Grane a nonsuit; 2) should the question of punitive damages have been submitted to the jury; and 3) whether the trial court committed error in refusing to admit certain evidence that was relevant to the issue of punitive damages.

ΒΆ 13 Prior to reaching the merits of Plaintiff's first averment, we must address Highland's position that it has been waived. As noted, Plaintiff assails the trial court's determination that he failed to provide sufficient evidence to support his position that Grane was involved in the staffing and care failures leading to Madeline's death. However, Plaintiff wholly fails to set forth in his initial brief the evidence detailing the extent to which Grane was responsible for these conditions upon which Plaintiff premised liability in this matter. Instead, Plaintiff devotes two paragraphs in his brief arguing his position, Appellant's brief at 44, and rather than setting forth the evidence that he presented ...


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