DALE BOUCHON AND/OR MAHAMIA BOUCHON, INDIVIDUALLY AND/OR DALE BOUCHON ADMINISTRATOR OF THE ESTATE OF CHARLES BOUCHON A.K.A. CHUCKIE BOUCHON Appellants
CITIZEN CARE, INC., PARTNERS FOR QUALITY FOUNDATION, INC., PARTNERS FOR QUALITY, INC., LIFEWAYS D.B.A. EXCEPTIONAL ADVENTURES, ALLEGHENY CHILDREN'S INITIATIVE, INC., ERIC LINDEY, MARGARET (PEGGY) NOLAN, KOMLAVI (CLAUDE) (KOMLAIR) VIDZRO, DONALD DEMICHELE, PETRA MUSSI, CINDY KING, GROVE DEMMING, LYDIA TOOMEY, JESSICA DAVIS, JOSEPH A. MANDARINO, AND/OR ROBINSON EMS Appellees
from the Order Entered March 30, 2016 In the Court of Common
Pleas of Allegheny County Civil Division at Docket No:
BEFORE: OLSON, STABILE, and STRASSBURGER, JJ.[*]
Bouchon ("Appellant"), as administrator of the
estate of his brother, Charles Bouchon, appeals from the
March 30, 2016 order entered in the Court of Common Pleas of
Allegheny County sustaining Appellees'preliminary
objections and dismissing Appellant's amended complaint
with prejudice. For the reasons that follow, we affirm in
part, reverse in part, and remand.
on a review of the record, the facts of the case can be
summarized as follows. Charles Bouchon ("Charles")
was a mentally challenged occupant of a group home owned and
operated by Citizen Care. At some point during a pizza dinner
at the group home on August 24, 2013, Charles was
unsupervised. At that time, Charles placed uncut pizza and
some quantity of a soft drink into his mouth and choked.
Efforts by staff to help Charles were unsuccessful as were
efforts by Robinson EMS personnel who were summoned. Charles
was transported to the hospital where he died.
initiated an action against Citizen Care by writ of summons
filed on July 1, 2015. By order entered July 17, 2015, the
trial court acknowledged the parties' agreement to
resolve Citizen Care's motion for protective order and
granted the parties the opportunity to conduct pre-complaint
discovery. On August 18 and 19, 2015, Appellant conducted a
number of videotaped depositions. According to Appellee
Citizen Care, "Appellant obtained over sixteen (16)
hours of deposition testimony during the course of his
pre-Complaint discovery and received hundreds of pages of
documents and records." Citizen Care Brief at 7.
August 24, 2015, Appellant filed a separate action by writ of
summons against all Appellees. By order entered October 19,
2015, the cases were consolidated.
to consolidation, on September 16, 2015, Appellant filed a
61-page, 233-paragraph complaint against all
Appellees. The action was brought by "Dale
Bouchon and/or Mahalia Bouchon, Individually and/or Dale
Bouchon Administrator of the Estate of Charles Bouchon A.K.A.
Chuckie Bouchon." Paragraphs 1 through 183 purported to
identify the parties and summarize the underlying facts.
Paragraphs 184 through 223, Styled "Count One -
Negligence, " included allegations by Appellant against
"Citizen Care, Inc., et al, " and set forth
allegations such as those included in Paragraph 219, which
provided as follows:
The foregoing incident and all of the injuries and damages
set forth hereinafter/heretofore sustained by [Charles] are
the direct and proximate result of the negligent, grossly
negligent conduct, careless, and/or reckless manner and/or
wanton and/or willful misconduct and/or outrageous and/or
intentional conduct in which the Defendant(s) operated and/or
actions and inactions, said negligence, carelessness, and/or
recklessness includes, but is not limited to, the following .
. . .
9/16/15, at ¶ 219. Paragraph 219 continued, listing 56
general allegations of conduct ostensibly attributable to all
Appellees. Id. at ¶ 219 a-ddd. Damages claimed
were "in an amount in excess of $6, 000, 000.00 plus
interest and costs." Id. at 56.
Two, styled "Wrongful Death, " brought on behalf of
Appellant and against "Citizen Care, Inc. et al., "
asserted claims for pecuniary loss suffered by Charles'
survivors, i.e., his brother and sister, Dale and
Mahalia, by reason of his death, id. at ¶ 227,
and again demanded judgment in an amount in excess of $6,
000, 000.00. Id. at 58.
Three, styled "Survival Claim, " again brought on
behalf of Appellant and against "Citizen Care, Inc. et
al., " alleged that Appellees were liable for damages in
excess of $6, 000, 000.00 caused by the "aforesaid acts
of negligence, recklessness, outrageousness, and/or
intentional conduct" resulting in pain and suffering,
loss of earning power and other income, enjoyment of life,
and "punitive damages." Id. at 59.
Appellees filed preliminary objections to the complaint.
Citizen Care, on behalf of itself and all other parties, with
the exception of Nolan, Vidzro, Toomey and Robinson EMS,
filed preliminary objections requesting that the complaint be
stricken in whole or in part for the following reasons:
a. Plaintiffs lack capacity to sue because . . . they are
incapacitated persons as that term is defined by the
Pennsylvania Rules of Civil Procedure;
b. Except for Citizen Care, Inc., Plaintiffs have not alleged
any wrongful conduct on the part of defendants;
c. Plaintiffs have pled general allegations of negligence;
d. Plaintiffs have made irrelevant averments regarding drug
and alcohol testing, criminal background checks and physical
e. Plaintiffs cannot maintain actions in their individual
f. Plaintiffs have no claim for punitive damages;
g. Plaintiffs' complaint does not conform to the
Pennsylvania Rules of Civil Procedure and contains scandalous
and impertinent material and
h. Plaintiffs' claim for damages is improper.
Care Preliminary Objections, 10/26/16, at ¶ 8.
and Toomey filed preliminary objections asking the trial
court to dismiss the complaint for the following reasons:
a. Plaintiffs' Complaint fails to allege facts necessary
to support a finding of gross negligence, as required in
light of the qualified immunity under the Mental Health and
Mental Retardation Act ["MHMR Act"], 50 Pa.C.S.A
b. As to Defendant Toomey, plaintiff fails to allege any
facts even hinting at wrongful conduct on her behalf.
c. While generally pleading a claim for punitive damages,
there is nothing in the complaint that identifies any basis
for such a claim against the individual defendants.
Pennsylvania law only permits punitive damages in rare cases
where there is outrageous conduct. Plaintiffs'
allegations against the individual defendants fail to come
anywhere close to the level necessary to support a claim for
punitive damages. Punitive damages cannot be recovered in a
wrongful death claim.
Preliminary Objections, 10/29/15, at ¶ 7.
Nolan and Toomey requested that if the court did not dismiss
the complaint in its entirety, Appellant should be required
to file a more specific pleading in a concise and summary
form as required by Pennsylvania Rule of Civil Procedure
1019. Id. at ¶ 8. They further requested that
Appellant be directed to comply with the specificity
requirements of Rule 1028(a)(3) and to plead claims against
each individual specifically. They also requested a more
specific pleading for numerous additional paragraphs of the
complaint and asked that other specific paragraphs be
stricken as "scandalous and impertinent."
Id. at ¶¶ 10, 11. Finally, Nolan and
Toomey requested that the ad damnum clause be
stricken for impermissibly seeking damages in excess of $6,
000, 000, contrary to Rule 1020(b).
filed preliminary objections duplicative of those filed by
Citizen Care and Nolan and Toomey. Vidzro Preliminary
EMS filed preliminary objections seeking to have the
complaint dismissed for legal insufficiency claiming that:
a. Robinson EMS was entitled to immunity under the Emergency
Medical Services System Act (the "EMSS Act"), which
it claims only permits suit against an emergency medical
service provider for gross negligence or willful misconduct
b. Dale and Mahalia Bouchon may not seek damages individually
c. Any claims for negligence are duplicative of the wrongful
death and survival actions (¶¶ 32-34);
d. The complaint fails for lack of specificity as required
under Rule 1028(a)(3) as it does not contain facts for
plaintiffs to recover, and is not specific enough for an
opposing party to be able to prepare a defense. Further,
Plaintiffs have not pled separate counts against each
individual defendant (¶¶ 35-39); and
e. The complaint was not properly verified (¶¶
EMS Preliminary Objections, 11/9/15.
Robinson EMS requested that certain of the damages claimed
under the wrongful death act be stricken as not permissible;
that the claim for punitive damages be stricken as legally
insufficient; that Appellant's prayer for an apology and
for Appellees to agree to change the way they do business be
stricken as scandalous and impertinent; that the demand for
$6, 000, 000.00 be stricken; and that a multitude of the
complaint's paragraphs alleging only vague, catch-all
allegations of negligence be stricken for failure to satisfy
Rule 1019 and failure to apprise Robinson EMS of the conduct
alleged to be improper or negligent. Id.
response to the multitude of preliminary objections filed by
Appellees, Appellant filed answers denying all objections by
simply stating the preliminary objections are conclusions of
law to which no response is necessary. To the extent a
response was required, Appellant denied the averments or,
alternatively, claimed the complaint was a matter of record
that speaks for itself. Answer to Preliminary Objections,
11/13/16, 11/16/16, and 11/20/16.
argument, the trial court issued a December 3, 2015 order
The preliminary objections based on lack of capacity to sue
are overruled. The preliminary objections of Robinson EMS are
sustained, and plaintiff is granted leave to amend. The
preliminary objections of all defendants for a more specific
complaint and to strike irrelevant allegations are granted,
however, plaintiff is given leave to file an amended
complaint. The amended complaint must include individual and
specific allegations as to each defendant in separate counts.
Plaintiff is granted leave to file an amended complaint
within 45 days. Judge Friedman retains jurisdiction in the
event preliminary objections are raised to the amended
Trial Court Order, 12/3/15, at 1 (emphasis added).
January 18, 2016, Appellant filed an amended complaint, this
time spanning 55 pages and including 193 paragraphs, the
first 97 of which identified the parties and set forth
factual allegations as well as various and numerous
conclusory allegations. In Count One, styled "Negligence,
" brought only in the name of Appellant "Dale
Bouchon as Administrator of the Estate of Charles
Bouchon" (sometimes "the Estate"), Appellant
asserted claims against only the Citizen Care entities. The
count included a total of 38 paragraphs, 29 of which were
devoted to setting forth general and redundant statements
regarding breach of duties alleged to be owed to Charles by
Citizen Care. In addition, paragraph 131 contained 51
subparagraphs setting forth general statements of conduct,
ranging from negligence to recklessness, alleged to be
actionable and committed by Citizen Care. Amended Complaint
at ¶ 131 a-yy. The amended complaint further alleged
that "Citizen Care [is] vicariously liable for the
negligent, reckless, outrageous, and grossly negligent
actions of its corporate subsidiaries and/or partner
corporations or entities." Id. at ¶ 21.
Count Two, Appellant set forth claims of negligence against
all Employees. In the event they were acting outside their
employment, then those claims were asserted against them in
their individual capacities. Paragraph 153 includes 26
subparagraphs alleging actionable conduct on the part of
these individuals. Id. at ¶ 153 a-w, ww-yy.
Appellant again sets forth duties allegedly ...