Bouchon v. Citizen Care, Inc.

         Appeal from the Order Entered March 30, 2016 In the Court of Common Pleas of Allegheny County Civil Division at Docket No: GD-15-014481

          BEFORE: OLSON, STABILE, and STRASSBURGER, JJ.^[*]

          OPINION

          STABILE, J.

         Dale 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'^[1]preliminary objections and dismissing Appellant's amended complaint with prejudice. For the reasons that follow, we affirm in part, reverse in part, and remand.

         Based 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.

         Appellant 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.

         On 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.

         Prior to consolidation, on September 16, 2015, Appellant filed a 61-page, 233-paragraph complaint against all Appellees.^[2] 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 . . . .

         Complaint, 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.

         Count 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.

         Count 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.

         All 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 examinations;

e. Plaintiffs cannot maintain actions in their individual capacities;

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.

         Citizen Care Preliminary Objections, 10/26/16, at ¶ 8.

         Nolan 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 § 4603B.

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.

         Nolan/Toomey Preliminary Objections, 10/29/15, at ¶ 7.

         Alternatively, 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).

         Vidzro filed preliminary objections duplicative of those filed by Citizen Care and Nolan and Toomey. Vidzro Preliminary Objections, 11/10/15.

         Robinson 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 (¶¶ 11-20);

b. Dale and Mahalia Bouchon may not seek damages individually (¶¶21-31, 40-42);

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 (¶¶ 43-51).

         Robinson EMS Preliminary Objections, 11/9/15.

         Additionally, 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.

         In 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.

         Following argument, the trial court issued a December 3, 2015 order providing:

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 complaint.

Trial Court Order, 12/3/15, at 1 (emphasis added).

         On 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.^[3] 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^[4] and redundant^[5] 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.^[6] 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.

         In 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 ...