The opinion
J-A04010-26
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
ANDREA OZOVEK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILKES BARRE HOSPITAL COMPANY, :
LLC D/B/A WILKES-BARRE GENERAL :
HOSPITAL; DAVID GRASSO, M.D., : No. 1441 MDA 2024
AMANDA MORAN, NP, DR. ALAN L. :
BOONIN, DEVON WOOLFOLK, PA, :
INTERMOUNTAIN MEDICAL GROUP, :
INC., PATRICK KILDUFF, DO AND :
CHARLES IDE :
:
:
v. :
:
:
PENNSYLVANIA PHYSICIAN :
SERVICES, LLC, :
:
Additional :
Defendant :
Appeal from the Order Entered September 12, 2024
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 2018-08894
ANDREA OZOVEK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILKES BARRE HOSPITAL COMPANY, :
LLC D/B/A WILKES-BARRE GENERAL :
HOSPITAL; DAVID GRASSO, M.D., : No. 1442 MDA 2024
AMANDA MORAN, NP, DR. ALAN L. :
BOONIN, DEVON WOOLFOLK, PA, :
INTERMOUNTAIN MEDICAL GROUP, :
INC., PATRICK KILDUFF, DO AND :
CHARLES IDE :
J-A04010-26
:
:
v. :
:
:
PENNSYLVANIA PHYSICIAN :
SERVICES, LLC, :
:
Additional :
Defendant :
Appeal from the Order Entered September 12, 2024
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 2019-02671
BEFORE: PANELLA, P.J.E., KING, J., and LANE, J.
MEMORANDUM BY PANELLA, P.J.E.: FILED: APRIL 2, 2026
Andrea Ozovek appeals from the September 12, 2024 order granting
Wilkes-Barre Hospital Company, LLC, d/b/a Wilkes-Barre General Hospital’s
(“Wilkes-Barre Hospital”) motion for judgment on the pleadings and Amanda
Moran, N.P., and David Grasso, M.D.’s joinder motion for judgment on the
pleadings. After careful and deliberate review of this procedurally confusing
case, we affirm on the basis of the well-written trial court opinion.
This action was initiated by Ozovek filing a praecipe for writ of summons
on August 3, 2018, to docket No. 2018-00894. Another action was initiated
by Ozovek filing a praecipe for writ of summons on March 8, 2019, to docket
No. 2019-02671. The civil cover sheet accompanying the writ of summons on
both actions categorized the actions as “MED MAL.” On May 17, 2019, the trial
court consolidated the cases with the lead case docketed to No. 2019-02671.
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The operative complaint in this matter is the Amended Complaint filed
on January 17, 2020. The Amended Complaint sets forth three claims of
negligence and one claim of corporate negligence as follows:
Count I—Negligence, against Intermountain Medical Group, Inc.,
Alan L. Bonnin MD, Patrick Kilduff DO and Devon Woolfolk PA
Count II—Negligence, against Wilkes-Barre Hospital, Crisis
Response and Recovery Center of NEPA, Community Counseling
Services, David Grasso MD and Amanda Moran, NP
Count III—Corporate Negligence, against Wilkes-Barre Hospital,
Crisis Response and Recovery Center of NEPA, Community
Counseling Services
Count IV—Negligence, against Charles Ide
See Amended Complaint, 1/17/20.
The trial court briefly summarized the facts as plead by Ozovek in the
Amended Complaint as follows:
The facts as plead allege that [Ozovek]’s son and co-defendant,
Charles Ide (“[] Ide”), was treated, inter alia, by [the remaining
d]efendants, predominantly reporting with complaints of
confusion, on or around March 10, 2017. The Amended Complaint
avers facts indicating that [] Ide was never evaluated as to his
psychiatric symptoms as a risk to himself or others and was only
medically evaluated. [Ozovek]’s Amended Complaint contained
various allegations as to [] Ide being improperly or inadequately
treated. [Ozovek]’s Amended Complaint avers that [] Ide brutally
attacked and injured [Ozovek, and killed the family dog], which
was the result of [] Ide’s treatment, or lack of, with [the remaining
d]efendants.
Trial Court Opinion, 1/30/25, at 7-8 (citations omitted).
On June 30, 2020, the trial court sustained the preliminary objections
of Wilkes-Barre Hospital and Community Counseling Service as to Count III of
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the Amended Complaint, and therefore dismissed Count III. The trial court
thereafter approved a stipulation which dismissed Community Counseling
Services from the action.
On August 1, 2024, the trial court granted summary judgment in favor
of Devon Woolfolk, PA-C, Intermountain Medical Group, Inc., Alan L. Boonin,
M.D., and Patrick Kilduff D.O., dismissing those parties from the action. This
action effectively dismissed Count I of the Amended Complaint.
The jury trial was then scheduled to commence on September 9, 2024.
On August 26, 2024, Wilkes-Barre Hospital filed a motion for judgment on the
pleadings.
On Wednesday, September 4, 2024, oral argument was held on
numerous motions in limine. Wilkes-Barre Hospital attempted to also argue
the motion for judgment on the pleadings. However, Ozovek argued she did
not have time to respond to the motion, and requested more time to respond
pursuant to the applicable rules of court. The court agreed that Ozovek needed
the opportunity to respond to the motion for judgment on the pleadings, and
accordingly gave Ozovek until Monday of the next week to file a response, and
scheduled oral argument on the motion for the same day. Amanda Moran,
N.P., and David Grasso, M.D. subsequently filed a joinder motion for judgment
on the pleadings on September 5, 2024.
On September 9, 2024, oral argument was held on the motion for
judgment on the pleadings. The trial court noted it had received Ozovek’s brief
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in opposition to the motion that morning. Wilkes-Barre Hospital first argued
that throughout the course of the proceedings and in the pleadings
themselves, Ozovek labeled this case as a medical malpractice case, and that
Ozovek lacked standing to bring such a case because she had no patient
relationship with any physician or hospital in this matter. Accordingly, there
was no duty, breach, causation, or damages that flowed from the relationship
between the parties. In addition, Wilkes-Barre Hospital argued that to the
extent Ozovek argues a triggering of the Mental Health Procedures Act
(“MHPA”),1 the MHPA was never pled in the complaint. In any event, even if
the MHPA were to apply, Wilkes-Barre Hospital argued there was no specific
pleading or averment in the complaint that indicates a specific threat was
made to Ozovek, nor that any such threat was communicated to a provider of
Ide. Accordingly, the MHPA was never pled, nor triggered. Wilkes-Barre
Hospital also noted it had raised the MHPA as an affirmative defense in its new
matter, and Ozovek had specifically denied its application in her response to
the new matter.
Ozovek acknowledged the MHPA was not plead in her complaint, but
argued that “the elements of the claims for anything under the Mental Health
Procedures Act or the Emerich line of cases, while not explicitly stating it
there, the elements have all been met and set forth within [] our argument.”
____________________________________________
1 50 P.S. § 7101, et seq.
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N.T., Motions Hearing, 9/9/24, at 12. Ozovek further contended that her
denial of the MHPA’s applicability in her response to the new matter, was solely
to the MHPA’s immunity provision.
The court emphasized that Ozovek plead this case solely as a medical
malpractice case and that the pleadings did not raise the MHPA, highlighting
that the argument for judgment on the pleadings is that the hospital and its
physicians owe no duty to Ozovek because of how the pleadings are plead.
Following the oral argument, the trial court ruled on the record,
sustaining the motion for judgment on the pleadings in regard to the medical
malpractice claims. The court then turned to the sole cause of action of
negligence/duty to warn, asking “where is any testimony, any depositions,
any reports, any evidence that any member of the Defendants who are listed
had direct knowledge from the words and actions—and, it has to be specific
that [Ide] was going to harm his mom or the dog.” Id. at 34. The court
permitted the parties to submit briefs on that sole issue by the end of the next
day. The court noted that it was still a judgment on the pleadings, but that,
even looking at the record as a whole, the case law was clear that a specific
threat about a specific person or place had not been plead.
Wilkes-Barre Hospital submitted a supplemental brief, and Amanda
Moran, N.P. and David Grasso, M.D. also filed a trial brief addressing the duty
to warn. Ozovek did not submit any additional legal filings, and instead filed a
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letter indicating she was resting on their earlier responsive brief and
arguments made on the record.
On September 12, 2024, the trial court issued an order stating:
the Defendant, Wilkes-Barre Hospital Company, LLC d/b/a Wilkes-
Bane General Hospital’s Motion for Judgment on the Pleadings and
the Joinder Motion for Judgment on the Pleadings of Defendants,
Amanda Moran, N.P. and David Grasso, M.D is GRANTED and the
case is DISMISSED.
Order, 9/12/24 (emphasis in original). Ozovek subsequently filed timely
notices of appeal under both of the above dockets.
Because there were numerous discrepancies between the parties to
these appeals and the parties listed on the trial court dockets, this Court
entered show-cause orders on December 13, 2024, and January 3, 2025,
directing Ozovek and the trial court to provide clarification regarding party
statuses.
Because Ozovek and the trial court both indicated in responses that the
underlying actions were fully consolidated and that the case captions for both
matters were amended pursuant to the trial court’s September 29, 2020
order, this Court entered a show-cause order on February 13, 2025, noting
this Court’s intention to direct our Prothonotary to update the appeal captions
as follows: “Andrea Ozovek v. Wilkes Barre Hospital Company, LLC d/b/a
Wilkes-Barre General Hospital; David Grasso, M.D., Amanda Moran, NP, Dr.
Alan L. Boonin, Devon Woolfolk, PA, Intermountain Medical Group, Inc.,
Patrick Kilduff, DO and Charles Ide v. Pennsylvania Physician Services, LLC,
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Additional Defendant.” The order directed that this Court was still considering
whether to consolidate these appeals.
The parties responded that the appeals should be consolidated. This
Court agreed where Ozovek is the appellant in both appeals and the order on
appeal is the same in both appeals. The appeals have subsequently been
consolidated, and the caption updated accordingly.
Finally, we reach the issues before this Court. Ozovek raises the
following issues on appeal:
1. Whether the trial court erred in their September 12, 2024, order
dismissing [Ozovek]’s entire case, or granting moving
defendants’, Wilkes-Barre Hospital Company, LLC d/b/a Wilkes-
Barre General Hospital, David Grasso, M.D., and Amanda Moran,
NP, (“Moving Defendants”) motion for judgment on the pleadings,
when Moving Defendants had a duty to [] Ozovek under, but not
limited to, the Emerich v. Philadelphia Center for Human
Development. Inc., 720 A.2d 1032 (Pa. 1998) line of cases,
when a specific and immediate threat of serious bodily injury to a
readily indefinable victim, or [] Ozovek, was conveyed to Moving
Defendants?
2. Whether the trial court erred in their September 12, 2024, order
granting Moving Defendants’ motion for judgment on the
pleadings on the issue of a duty, despite previously denying
Moving Defendants’ motion for summary judgment on the same
issue of a duty?
3. Whether the trial court erred in their September 12, 2024, order
dismissing the case against a non-moving Defendant, Charles Ide,
sua sponte?
4. Whether the trial court erred in their September 12, 2024, order
granting Moving Defendants’ motion for judgment on the
pleadings filed on the eve of trial that caused an unreasonable
delay when trial was continued, and did not provide [Ozovek] a
fair opportunity to respond to?
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5. Whether the trial court erred in their June 30, 2020, order
granting Defendants’, Wilkes-Barre Hospital Company, LLC d/b/a
Wilkes-Barre General Hospital, preliminary objections, and
dismissing a claim of corporate negligence, when [Ozovek]’s
Amended Complaint is factually, and legally, sufficient pleading all
facts necessary in support of a claim under Thompson v. Nason
Hospital, 591 A.2d 703 (Pa. 1991)?
Appellant’s Brief, at 10-11 (unnecessary capitalization and suggested answers
omitted).
Before addressing Ozovek’s issues on appeal, we must determine if this
appeal is properly before us. “Jurisdiction is purely a question of law; the
appellate standard of review is de novo and the scope of review plenary.”
Barak v. Karolizki, 196 A.3d 208, 215 (Pa. Super. 2018) (citation omitted).
An “appeal will lie only from a final order unless otherwise permitted by
statute.” Funk v. Empfield, 281 A.3d 315, 318 (Pa. Super. 2022) (citation
omitted). A final order is an order that disposes of all claims and of all parties.
See Pa.R.A.P. 341(b)(1). By contrast, an interlocutory order is any order that
“does not dispose of all claims and all parties.” Barak, 196 A.3d at 215
(citation omitted). “Basically, final orders end a case. Interlocutory orders do
not.” Id. With very limited exceptions not applicable here, interlocutory orders
are not immediately appealable. See Pa.R.A.P. 311 (listing interlocutory
orders appealable as of right); Pa.R.A.P. 312, 1311 (relating to interlocutory
appeals by permission).
On December 13, 2024, this Court directed Ozovek to show cause as to
why the order appealed from was final. Ozovek filed a letter in response
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explaining the order was final based on its text. Specifically, Ozovek indicates
she read the order as dismissing the case in total because of the court’s use
of the language “… and the case is DISMISSED.” Order, 9/12/24 (emphasis
in original). Ozovek stated that she wrote the trial court to confirm the case
was dismissed. The record, however, does not reflect any response from the
trial court.
It is clear from the record that the trial was in fact canceled due to the
instant order. As such, whether or not the wording may have been inartful, it
had the practical effect of ending the instant action in the trial court as to all
claims and all parties. Accordingly, we find the appeal proper as taken from a
final order.
A majority of Ozovek’s issues challenge the trial court’s grant of
judgment on the pleadings. The well-established scope and standard of review
regarding the grant of a motion for judgment on the pleadings is as follows:
Our scope of review on an appeal from the grant of judgment on
the pleadings is plenary. Entry of judgment on the pleadings is
permitted under Pennsylvania Rule of Civil Procedure 1034, which
provides that “after the pleadings are closed, but within such time
as not to unreasonably delay trial, any party may move for
judgment on the pleadings.” Pa.R.C.P. 1034(a). A motion for
judgment on the pleadings is similar to a demurrer. It may be
entered when there are no disputed issues of fact and the moving
party is entitled to judgment as a matter of law. In determining if
there is a dispute as to facts, the court must confine its
consideration to the pleadings and relevant documents. On
appeal, we accept as true all well-pleaded allegations in the
complaint.
On appeal, our task is to determine whether the trial court’s ruling
was based on a clear error of law or whether there were facts
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disclosed by the pleadings which should properly be tried before
a jury or by a judge sitting without a jury.
Neither party can be deemed to have admitted either
conclusions of law or unjustified inferences. Moreover,
conducting its inquiry, the court should confine itself to the
pleadings themselves and any documents or exhibits
properly attached to them. It may not consider inadmissible
evidence in determining a motion for judgment on the
pleadings. Only when the moving party’s case is clear and
free from doubt such that a trial would prove fruitless will
an appellate court affirm a motion for judgment on the
pleadings.
Rubin v. CBS Broadcasting Inc., 170 A.3d 560, 564 (Pa. Super. 2017)
(citations omitted).
Ozovek also challenges the trial court’s grant of Wilkes-Barre Hospital’s
preliminary objections and coinciding dismissal of Ozovek’s claim of corporate
negligence (Count III of the Amended Complaint). Our review of a trial court’s
grant of preliminary objections in the nature of a demurrer is as follows:
[o]ur standard of review of an order of the trial court overruling
or granting preliminary objections is to determine whether the
trial court committed an error of law. When considering the
appropriateness of a ruling on preliminary objections, the
appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable
to prove facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be sustained, it
should be resolved in favor of overruling the preliminary
objections.
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Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (citation
omitted).
After a thorough review of the record, the parties’ briefs, and the
Honorable Tina Polachek Gartley’s well-reasoned Pa.R.A.P. 1925(a) opinion,
we conclude the trial court did not err in granting judgment on the pleadings
in favor of Wilkes-Barre Hospital, David Grasso, M.D., and Amanda Moran, NP
or in granting the preliminary objections of Wilkes-Barre Hospital, thereby
dismissing Count III of the Amended Complaint.
Judge Gartley’s opinion effectively addresses all of the questions
presented on appeal. See Trial Court Opinion, 1/30/2025, at 7-14. The trial
court made the following findings:
• Ozovek’s averments in the Amended Complaint, even when taken
as true, fail to properly allege the defendants knew or should have
known of a specific immediate threat to a readily identifiable
victim in accordance with Emerich;
• The pleadings fail to allege the MHPA and/or clearly allege the
elements required to pursue a claim under the act;2
____________________________________________
2 In her appellate brief, Ozovek notes that pursuant to the judgment on the
pleadings standard, she cites only to the pleadings in her statement of the
case section. See Appellant’s Brief, at FN1. However, she contends the trial
court applied a summary judgment standard, by going outside the four
corners of the pleadings, as the basis for its decision. See id. Accordingly,
Ozovek includes further facts from the record, outside of the pleadings, in the
argument section of her brief.
(Footnote Continued Next Page)
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• A single claim of negligence remains outstanding against Ide and
this claim should not have been dismissed pursuant to the court’s
September 12, 2024 order;
• Ozovek was afforded a fair and full opportunity to respond to and
argue against the motion for judgment on the pleadings where the
court, in its discretion, considered the motion, responses thereto,
and two oral arguments, and Ozovek was given additional time to
respond and trial was only continued by one week due to the
second oral argument;
• And lastly, critically fatal to Ozovek’s pleadings, is the absence of
allegations that at any time she was a patient of the hospital which
would trigger duties owed to her, under the corporate negligence
doctrine, see Thompson, which creates a duty between a
hospital and a patient directly.
In summary, based on the trial court’s well-reasoned and thorough
opinion, we agree that it properly sustained the preliminary objections of
Wilkes-Barre Hospital as to Count III of the Amended Complaint and granted
____________________________________________
While it does appear from the record that the court inquired as to facts outside
of the pleadings that would support Ozovek’s argument, a review of the trial
court opinion reveals its ultimate decision was based fully on the pleadings
themselves. It seems the court was attempting to find that Ozovek’s claims
would not hold up under either standard. As we only have an order granting
judgment on the pleadings in front of us, we do not consider any facts or
averments outside of the pleadings.
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the motions for judgment on the pleadings of Wilkes Barre Hospital, Amanda
Moran, N.P., and David Grasso, M.D. We also agree that the court should not
have dismissed Ide on the basis of motions for judgment on the pleadings to
which he was not a party. Therefore, we vacate the order only as it pertains
to Ide and remand for further proceedings as to the remaining claim of
negligence against him. We otherwise affirm the order on the basis of the trial
court’s January 30, 2025 opinion.
Order affirmed in part and vacated in part. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 4/2/2026
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