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Rehrer v. Youst

Superior Court of Pennsylvania

April 29, 2014


Appeal from the Order Entered October 3, 2012 In the Court of Common Pleas of Philadelphia County. Civil Division at No(s): No. 001004 June Term 2010. Before Di VITO, J.

James J. McCarthy, Conshohocken, for appellant.

Cecil J. Jones, Jr., Philadelphia, for Loving Care, appellee.



Page 184


Stephanie Rehrer, individually and for the minor, B.L., appeals the order appointing a guardian ad litem to represent B.L.'s interest during pending civil litigation against Tiffany Youst, Daniel Youst, and Loving Care Agency, Inc. (" Loving Care" ), collectively the Appellees. We reverse.

Page 185

The trial court succinctly summarized the underlying facts as follows:

Plaintiff [B.L.] is a 15 year old, suffering from Global Development Delay Syndrome as well as a seizure disorder, bilateral hearing deficits, and the necessity of taking nutrients through a feeding tube. [B.L.] lives with her mother, Plaintiff Rehrer, step-father, and step-brothers in Royersford, PA. Due to the nature of her disabilities, [B.L.] requires extra care in the form of nursing assistance, which was being provided previously by Loving Care Agency, Inc. [(" Defendant" )] at the time of the incident underlying this litigation. . . .
. . . Despite being against the policy of the Defendant company and the previous injury suffered by her daughter while receiving care in the home of another, Plaintiff came to an agreement with Defendant's employee Tiffany Youst (" Youst" ) that [B.L.'s] care would be done at the home owned by Youst and her then husband, Daniel Youst, instead of the Rehrer home as required by the Defendant company. In order to assist in skirting the rules, Rehrer and Youst would arrange schedules so that on days when Youst's supervisor was to conduct an evaluation, Youst would provide care in the Rehrer home instead of her own. On Thursday February 19, 2009, while being cared for at the Youst home, [B.L.] was bitten by a dog owned by the Yousts. The bite caused several serious injuries to [B.L.] including her eye, which necessitated surgery. Plaintiff, however, never contacted the Defendant company in regard to the injury and even continued to utilize their services until September 2010. This instant action was file[d] against all defendants on June 11, 2010.

Trial Court Opinion, 5/14/13, at 1-2.

Appellant filed the instant action individually and on behalf of her minor daughter pursuant to Pa.R.C.P. 2228.[1] She has

Page 186

been represented by litigation counsel throughout these proceedings. The civil complaint leveled two theories of liability against Loving Care: (1) vicarious liability for the negligence of Nurse Youst and her immediate supervisor; and (2) corporate liability for negligent supervision. Additionally, Appellant asserted a separate count of professional negligence against Mrs. Youst. Appellant's individual claim against the Appellees sought compensation for B.L.'s medical expenses. On B.L.'s behalf, Appellant claimed damages for emotional and physical pain and suffering. On March 2 and 5, 2012, Loving Care filed motions for summary judgment on Appellant's claims of vicarious liability and corporate liability, respectively. Both motions were denied on April 13, 2012. Despite the shadowy allegations of Appellant's collusion with Mrs. Youst and her complicity in the dog-biting incident, Appellees never joined her as an additional defendant.

The ensuing settlement conference was unproductive, as were further negotiations. Appellant rejected a structured settlement totaling $600,000 with a $50,000 allowance for an accessible vehicle. The cash payments under that proposal, which was crafted by a third-party settlement advisor on Loving Care's behalf, were structured as a single guaranteed payment of $260,000, and a $75,000 deposit to fund a trust that Loving Care envisioned maturing at two percent per year over B.L.'s life span. According to the structured proposal, B.L. would receive the lump sum of $260,000 and $6,900 annually per year, with the first 30 payments guaranteed. See Motion for Reconsideration, 10/8/12, at Exhibit L. By its express terms, that structured offer expired on September 21, 2012. Nevertheless, on October 2, 2012, Loving Care subsequently mailed Appellant's counsel a letter discussing " the offer Plaintiff rejected last week[,]" which shaped a revisionist interpretation of the structured settlement but failed to renew it.[2] Response to Motion for Reconsideration, 10/18/12, Exhibit P.

As the parties failed to reach an accord, the trial court entered an order scheduling jury selection for September 28, 2012, a hearing to address seventeen outstanding motions in limine on Monday, October 1, 2012, and the commencement of the jury trial on Tuesday, October 2, 2012. The jury was empaneled as scheduled; however, rather than confront the motions in limine the following Monday, the trial court addressed a motion for the appointment of a guardian ad litem that Loving Care submitted directly to the bench.[3]

Page 187

The trial court failed to issue formal notice of the hearing on that motion or a rule to show cause why the motion should not be granted. Following a brief argument, the trial court entered the above-referenced order appointing Craig G. Lord, Esquire, as guardian ad litem to represent B.L. during the pending litigation.[4] The order provided that Attorney Lord would be paid from the proceeds of any recovery, or " should there be no recovery, [costs and fees] shall be paid by [Appellant]." Trial Court Order, 10/1/12. Having appointed the guardian ad litem on the eve of the jury trial, the trial court passed on the seventeen outstanding motions in limine and remanded the matter for trial at an undisclosed date. This timely appeal followed.[5]

Appellant complied with the trial court's order to file a concise statement of errors complained of on appeal, and the trial court issued a Rule 1925(a) opinion explaining its rationale. Appellant presents the following questions for our review:

[1.] Did the trial court improperly interpret and apply 20 Pa.C.S. 712(3) by deciding a Motion to Appoint a Guardian Ad Litem which was never filed with the Court, no notice of hearing or Rule to Show Cause was ever issued, and the minor was already represented in the civil action by a parent?
[2.] Did the trial court commit an error of law by appointing a Guardian Ad Litem for a minor already represented by her mother because the trial judge disagreed with the minor's mother concerning the value of the case?
[3.] Did the trial court commit an error of law by failing to have an evidentiary hearing with the mother of the minor present after proper notice, and instead decided to appoint a Guardian Ad Litem based upon false, unsworn statements of defense counsel?
[4.] Did the trial court commit an error of law and/or abused its discretion by its appointment of a Guardian Ad Litem when the trial court based its decision to appoint the guardian on the belief that the Plaintiff could not recover against the Defendant, Loving Care Agency, Inc., completely ignoring the likelihood of recovering against the other Defendants, the denial of the Defendant's Motions for Summary Judgment, the Plaintiff's expert report of Deana Kilmer, R.N. setting forth a direct claim against the Defendant, and the value of the claim in light of the horrific injuries suffered by the minor Plaintiff in a vicious pit bull attack?

Appellant's brief at 4-5.

As a preliminary jurisdictional matter, we must address whether this appeal is proper. The trial court order appointing a guardian ad litem in the civil litigation is not a final order under Pa.R.A.P. 341 or an interlocutory order appealable by right or permission, pursuant to Pa.R.A.P. 311. Consequently, in order to confront the merits of the instant appeal, we must first determine whether the order is reviewable as a collateral order.

We previously outlined the collateral order doctrine as follows:

Our High Court has delineated three requirements that must ...

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