Bouchon v. Citizen Care, Inc.

J-A07017-17

2017 PA Super 379

DALE BOUCHON AND/OR MAHAMIA IN THE SUPERIOR COURT OF

BOUCHON, INDIVIDUALLY AND/OR DALE PENNSYLVANIA

BOUCHON ADMINISTRATOR OF THE

ESTATE OF CHARLES BOUCHON A.K.A.

CHUCKIE BOUCHON

Appellants

v.

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 No. 472 WDA 2016

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 BY STABILE, J.: FILED DECEMBER 06, 2017

Dale Bouchon (“Appellant”), as administrator of the estate of his

brother, Charles Bouchon, appeals from the March 30, 2016 order entered in

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

J-A07017-17

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

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1

Appellees, who shall be referred to collectively as “Appellees,” include

Citizen Care, Inc., Partners for Quality, Partners for Quality, Inc., Lifeways

d.b.a. Exceptional Adventure, Allegheny Children’s Initiative, Inc.

(collectively “Citizen Care”), Eric Lindey (“Lindey”), Margaret (Peggy) Nolan

(“Nolan”), Komlavi (Claude) (Komlair) Vidzro (“Vidzro”), Donald DeMichele

(“DeMichele”), Petra Mussi (“Mussi”), Cindy King (“King”), Grove Demming

(“Demming”), Lydia Toomey (“Toomey”), Jessica Davis (“Davis”)

(collectively “Employees”), Joseph Mandarino (“Mandarino”), and Robinson

EMS.

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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

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2

We discuss the allegations of the initial complaint so that a comparison can

be made with the amended complaint under review in this appeal and so

that our discussion of the pleading issues can be considered in context.

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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:

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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

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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);

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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

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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,”

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3

By way of example, Paragraph 59 alleges:

The actions or inactions of Defendant Citizen Care, Inc. and/or

its corporate parent and/or partners and all employees named

herein and/or other workers were negligent, grossly negligent

and/or reckless in light of the actual and/or constructive

knowledge of the extreme danger and risk of choking, pain, fear,

panic, anxiety, and death in failing to adhere to Charles

Bouchon’s [individual service plan (“ISP”)] by negligently,

knowingly, or acting with conscious disregard or reckless

indifference in leaving Charles Bouchon alone with uncut food,

(Footnote Continued Next Page)

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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 general4 and

redundant5 statements regarding breach of duties alleged to be owed to

_______________________

(Footnote Continued)

and in failing to perform or to train its employees and servants

to provide proper maneuvers to remove the lodged bolus of

food.

Appellant’s Amended Complaint at ¶ 59.

4

By way of example, in Paragraph 100, Appellant alleges that “[o]n August

24, 2013 and at all times relevant and material hereto, Defendants owed to

the decedent a duty to have its employees under such control that it could

have prevented injuries to Decedent.” Similarly, in Paragraph 106,

Appellant asserts that “at all times relevant and material hereto, Citizens

Care Inc., and/or all employees stated in paragraph 77 owed to the

Decedent the duty to have policies and procedures in place to be sure its

employees were qualified to follow the regulations that govern its operations

and actions that were to be and/or should have been performed.” The

employees identified in Paragraph 77 include Lindey, DeMichele, Mussi, King,

Demming, Toomey and Davis.

5

Again, in Paragraph 100 Appellant averred that Citizen Care owed a duty to

Charles to have its employees under such control that it could have

prevented injuries to Charles. In Paragraph 103 through 105, he claimed

that Citizen Care owed a duty to Charles to hire only employees who did

their jobs in a reasonably prudent manner, those who would followed

regulations, and those who did not have a history of requiring disciplinary

measures.

Similarly, in Paragraph 106, Appellant averred that Citizen Care owed

Charles a duty to have policies and procedures in place to be sure its

employees were qualified and to follow regulations that govern its

operations. In Paragraphs 109 through 120, Appellant averred that Citizen

Care owed Charles a duty to have and follow written policies and

(Footnote Continued Next Page)

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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 owed to Charles and claims conduct in general and

redundant terms that ranges from negligent to reckless.

_______________________

(Footnote Continued)

procedures, inter alia, to protect Charles; to ensure employees were trained

to perform proper maneuvers for unblocking food from a choking person; to

require employees to review ISPs; to ensure employees had the experience,

training and licensing to perform the job and keep Charles safe; to discover

non-reporting of incidents; and to discover danger.

6

Appellant pled at paragraph 131 that damages sustained by the Decedent

were the "direct and proximate result of the negligent, 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 . . . ”

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In Count Four,7 styled “Negligence,” Appellant sets forth allegations

against Robinson EMS and/or Joseph Mandarino, including 19 subparagraphs

of alleged actionable conduct on the part of these parties without

differentiating any of this alleged misconduct as between them. Id. at ¶ 182

a-r, yy.

Count Three, styled “Damages,” incorporates Paragraphs 1 through

186 of the amended complaint and asserts that Appellant is bringing an

action on behalf of the Estate pursuant to Pennsylvania’s wrongful death and

survival statutes, 42 Pa. C.S.A. §§ 8301, 8302. Id. at ¶ 188. Appellant

purports to bring this “Damages” claim against all Appellees, individually,

and by way of their agents, servants, workmen, employees and/or

ostensible agents. Id. Appellant then alleges all conduct by these

Appellees was performed with reckless indifference to the welfare of Charles.

Id. The Estate further avers that the aforesaid acts all constituted

outrageous conduct resulting in an unreasonable risk of bodily harm to

Charles warranting an award of punitive damages against all Appellees. Id.

at ¶189. The Estate claims damages, including but not limited to economic

damages, pain and suffering, and punitive damages. Id. at ¶ 190. The

amended complaint was verified by counsel, as the initial complaint had

been. All Appellees again filed preliminary objections.

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7

Count Four precedes Count Three in the amended complaint.

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Predictably, Citizen Care—on behalf of itself and all individual parties,

excepting Nolan, Vidzro, and Toomey—filed preliminary objections that

assailed Appellant for willfully ignoring the trial court’s directive to set forth

individual and specific allegations against each individual party in separate

counts. Preliminary Objections, 2/9/16. While the amended complaint

attempted in some measure to set forth separate counts as between entities

and individuals, the amended complaint nonetheless did not set forth counts

against each Appellee as instructed by the trial court. Id. In addition,

Appellees claimed once again that, absent sufficient averments that they

engaged in gross negligence or incompetence, they were entitled to

immunity under § 4603 of the MHMR Act. They further contended that any

attempt to plead gross negligence or incompetence in the amended

complaint would introduce new causes of action barred by the statute of

limitations.8 Alternatively, these parties requested that the amended

complaint be stricken in whole or in part because Appellant:

a. failed to properly plead a wrongful death or survival action;

b. failed to properly maintain a cause of action for spoliation;

c. based claims on events that occurred after Charles’ death;

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8

We note that the statute of limitations is an affirmative defense properly

raised in new matter rather than by preliminary objection. See Pa.R.C.P.

1030.

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d. made irrelevant allegations regarding alcohol testing,

criminal background checks, Vidzro’s disciplinary history, and

an alleged failure to inspect Charles’ home;

e. alleged scandalous and improper allegations that defendants

“killed” Charles;

f. included Count Three, which claimed nothing more than

damages;

g. sought punitive damages;

h. asserted general allegations of negligence;

i. provided a defective verification signed by counsel; and

j. failed to amend the caption to delete Dale and Mahalia

Bouchon in their individual capacities.

Citizen Care Preliminary Objections, 2/9/16, at ¶ 16. Finally, Appellees

alleged that Appellant’s counsel engaged in obdurate and vexatious conduct

as defined under 42 Pa.C.S.A. §2503(7), warranting the imposition of

sanctions in the amount of $8,500.00. Id. at ¶¶ 17-21.

Nolan, Toomey and Vidzro also filed preliminary objections assailing

Appellant for not setting forth specific claims against each party as directed

by the trial court in its December 3, 2015 order. They too sought dismissal

of the amended complaint upon several bases, including:

a. as barred under § 4603B of the MHMR Act;

b. failing to allege any facts hinting at any wrongful conduct by

Toomey,

c. pleading a claim for punitive damages without any basis

against any individual party, and

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d. pleading a punitive damages claim in a wrongful death

action.

Nolan, Toomey and Vidzro Preliminary Objections, 1/29/16, at ¶ 9.

Alternatively, these parties requested that the court direct Appellant to

file a more specific pleading with specific allegations in separate counts

against each party; that the court strike numerous identified allegations and

Count Two in its entirety; and that the court strike scandalous and

impertinent matter. Id. at ¶¶ 12-16. Finally, they objected to the amended

complaint naming Dale and Mahalia Bouchon individually as plaintiffs, and to

the verification provided by counsel. Id. at 17-18.

Robinson EMS renewed its preliminary objections seeking dismissal of

the action, claiming immunity under the EMSS Act, absent averments

demonstrating gross negligence or willful misconduct. Robinson EMS

Preliminary Objections, 2/10/16 at ¶¶ 16-26. Noting that the trial court

previously sustained its preliminary objections but permitted Appellant to file

an amended complaint, Robinson EMS pointed out that the amended

complaint, unlike the first complaint, now asserted only vicarious liability

against Robinson EMS for the actions of Robinson EMS’s “employee,” Joseph

A. Mandarino. Citing pre-complaint deposition testimony, Robinson EMS

alleged that Mandarino was not its employee, but rather the chairperson of

the board of directors for Partners for Quality, Inc. Id. at ¶¶ 27-31.

Robinson EMS also asked the court to strike several general allegations

of negligence for violating Pa.R.C.P. 1019, including the use of the phrase

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“includes, but is not limited to” in describing the manner in which Appellant

alleged negligence. Id. at ¶¶ 32-36. Robinson EMS also took issue with

counsel’s verification in violation of Pa.R.C.P. 1024. Id. at ¶¶ 37-45.

Lastly, Robinson EMS attacked Count Three (“Damages”) on several

bases. First, the count attempted to plead a cause of action for “Damages,”

which is not a cognizable cause of action. Second, the count improperly

attempted to assert claims for wrongful death and survival. Third, the count

sought damages under the wrongful death act to which the Appellant is not

entitled. Specifically, Appellant demanded judgment including “loss of

services according to proof” and “loss of economic support according to

proof” despite the lack of a beneficiary eligible to claim those damages.

Finally, the punitive damage claim was legally insufficient. Id. at ¶¶ 46-63.

The trial court scheduled argument on Appellees’ preliminary

objections. On February 29, 2016—prior to argument and 31 days after the

first preliminary objections were filed to the amended complaint, Appellant

filed a second amended complaint but did not seek leave of court or consent

of counsel before doing so. Appellees again filed preliminary objections,

noting the deficiencies in the pleading and the fact that Appellant did not

seek leave of court or consent of counsel before filing the pleading.

Appellees requested that the trial court dismiss the action or, in the

alternative, order Appellant to file a proper pleading. In addition, Citizen

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Care filed a motion to strike the Second Amended Complaint as untimely

under Pa.R.C.P. 1028(c)(1). Citizen Care Motion to Strike, 3/11/16.

The trial court conducted a hearing and issued its order on March 30,

2016, granting Citizen Care’s motion to strike the second amended

complaint, sustaining Appellees’ preliminary objections to Appellant’s

amended complaint, denying leave to amend, and dismissing the action with

prejudice. The trial court explained:

We note that [Appellant has] disregarded the prior order of this

court, dated December 3, 2015, which was intended to facilitate

the drafting of an understandable and sufficiently pled complaint

under the Rules of Court.

We also note that leave to amend further was denied because

there is no amendment that can convert the underlying

averments of negligence into gross negligence, which is a

pleading requirement here for all defendants with the possible

exception of Robinson EMS. The Second Amended Complaint

(which was stricken because it was filed without leave of court or

the consent of opposing counsel) corrects none of the

deficiencies as to Robinson EMS, and only demonstrates the

inability of [Appellant] to properly plead [his] various claims

against each [Appellee]. Neither the [c]ourt nor counsel should

be required to spend any more time addressing [Appellant’s]

unsuccessful attempts to state in a clear and concise manner the

duties each [Appellee] had to [Appellant’s] decedent and how

those duties were violated by each.

It is further ordered that the Oral Motion of [Appellees] for

Sanctions in the form of counsel fees is denied without prejudice

to re-assert this claim in the future.

Trial Court Order, 3/30/16, at 1-2.

Appellant filed a timely appeal from the March 30, 2016 order. The

trial court directed Appellant to file a concise statement of errors complained

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of on appeal in accordance with Pa.R.A.P. 1925(b). On April 8, 2016,

Appellant filed a nine-page statement that presented ten alleged errors,

eight of which included sub-parts. The trial court issued its Rule 1925(a)

opinion on September 14, 2016, explaining that the reasons for dismissal of

Appellant’s complaint were set forth in its March 30, 2016 order and that no

further opinion would be filed.

In its brief filed with this Court, Appellant asks us to consider the

following five issues:

A. Whether the trial court erred in sustaining [Appellees’]

demurrers where taking the well-pleaded facts as true,

[Appellant] demonstrated a valid claim for which relief can be

granted to the Estate of Charles Bouchon?

B. Whether the trial court erred by striking the Second Amended

Complaint that was filed twenty days after the last set of

preliminary objections and the objecting party lacked

standing to raise a timing issue?

C. Whether the trial court erred in sustaining “all preliminary

objections to the First Amended Complaint” when the

Complaint was proper in all or most respects rather than

striking paragraphs or removing [Appellees] when the

Complaint properly alleged negligence against all [Appellees]?

D. Whether the trial court erred in ruling that [Appellant] failed

to comply with an order of court when [Appellant] correctly

addressed the cognizable portions of the order by filing the

First Amended Complaint?

E. Whether the trial court erred in ruling that [Appellant] is not

permitted to amend the Complaint because there is no

amendment that can amount to “gross negligence” which is a

factual determination to be made by a jury?

Appellant’s Brief at 5-6.

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Before addressing Appellant’s issues, we note that our ability to

conduct review is somewhat confounded by the very broad manner in which

Appellant and the trial court addressed the multitude of preliminary

objections raised by Appellees to both the initial and amended complaints.9

Much of this, we assume, is explained by the trial court’s attempt to address

in a succinct manner the morass of issues created by Appellant’s inability to

draft a pleading that Appellees could answer. When confronted a second

time with preliminary objections, the trial court, with an understandable and

palpable degree of frustration due to Appellant’s failure to conform to basic

rules of pleading, dismissed this action.

Our ability to address Appellant’s issues is made more difficult by the

trial court’s March 30, 2016 order, submitted in lieu of a more detailed

1925(a) opinion, that summarily dismissed this action with prejudice. The

order disposed of all issues with three general statements. First, that

Appellant disregarded the trial court’s December 3, 2015 order to draft an

understandable and sufficiently pled complaint compliant with the rules of

court. Second, without saying so, but in obvious response to the immunity

defenses raised by Appellees, that Appellant was unable to convert

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9

By our count, Appellees filed more than twenty preliminary objections to

each of these complaints, many of which were not duplicative of each other

and many of which are not addressed in this Opinion. As noted below, the

fact we have not addressed some of the objections is not a reflection of this

Court’s determination that they are without merit.

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averments of negligence into gross negligence. Third, that Appellant was

not entitled to another attempt to file a complaint that set forth allegations

in a clear and concise manner after demonstrating the inability to do so

twice before. Despite the generalizations contained in Appellant’s issues and

the trial court’s order, we find that given the fundamental errors in the

pleadings and the succinct reasons given by the trial court, appellate review

is not impeded. Therefore, we will proceed to address Appellant’s issues.

With respect to demurrers and our review of a trial court’s order

sustaining preliminary objections, this Court has explained:

A preliminary objection in the nature of a demurrer is properly

granted where the contested pleading is legally insufficient.

Preliminary objections in the nature of a demurrer require the

court to resolve the issues solely on the basis of the pleadings;

no testimony or other evidence outside of the complaint may be

considered to dispose of the legal issues presented by the

demurrer. All material facts set forth in the pleading and all

inferences reasonably deducible therefrom must be admitted as

true.

In determining whether the trial court properly sustained

preliminary objections, the appellate court must examine the

averments in the complaint, together with the documents and

exhibits attached thereto, in order to evaluate the sufficiency of

the facts averred. The impetus of our inquiry is to determine the

legal sufficiency of the complaint and whether the pleading

would permit recovery if ultimately proven. This Court will

reverse the trial court’s decision regarding preliminary

objections only where there has been an error of law or

abuse of discretion. When sustaining the trial court’s

ruling will result in the denial of claim or a dismissal of

suit, preliminary objections will be sustained only where

the case is free and clear of doubt. Thus, the question

presented by the demurrer is whether, on the facts

averred, the law says with certainty that no recovery is

possible. Where a doubt exists as to whether a demurrer

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should be sustained, this doubt should be resolved in

favor of overruling it.

Hill v. Slippery Rock Univ., 138 A.3d 673, 676–77 (Pa. Super. 2016)

(citation omitted) (emphasis added).

Appellant first contends that the trial court erred in sustaining

Appellees’ preliminary objections where, “taking the well-pleaded facts as

true, [Appellant] demonstrated a valid claim for which relief can be granted

to the Estate of Charles Bouchon[.]” Appellant’s Brief at 5. As stated, while

we can appreciate the trial court’s reasons for granting Appellees’ demurrers

and striking off a complaint that can be most politely described as prolix, we

also recognize that we are charged with determining whether Pennsylvania

law could provide a tort recovery under the facts alleged in Appellant’s

amended complaint. Although not necessarily an exhaustive listing, we offer

the following as examples of allegations from Appellant’s amended complaint

that, if proven, collectively might support a recovery in this wrongful death

and survival action.

Appellant initiated this suit in his capacity as administrator of the

estate of his brother Charles. Amended Complaint at ¶ 4. As of August 24,

2013, Charles was a resident at Citizen Care’s facility in Allegheny County.

Id. at ¶ 5. Citizen Care offered residential and other services to persons in

Allegheny County, including Charles. Id. at ¶ 14. Robinson EMS offered

medical and/or EMT services to persons in Allegheny County, including

Charles. Id. at ¶ 16. Margaret Nolan and Komlavi Vidzro were acting in the

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course and scope of their employment with Citizen Care on August 24, 2013.

Id. at ¶ 19.

As of August 24, 2013, Citizen Care had an individual service plan

(ISP) specifically created for Charles, identifying him as a person at risk of

choking if left alone while eating and/or not being provided bite-sized food.

Id. at ¶¶ 37, 40. While unsupervised, Charles began to choke on uncut

pizza. Id. at ¶ 52. Employees Nolan and Vidzro failed to perform adequate

maneuvers to clear Charles’ throat. Id. at ¶ 60. Charles died of “affixiation

of acute aspiration on food, upper airway blocked by bolus of food.” 10 Id. at

¶ 65.

Citizen Care owed a duty of care to Charles. Id. at ¶¶ 111, 121.

Citizen Care failed to take proper precautions so that Charles would not

choke. Id. at ¶ 131 e, q, ee, ll. As a result of Citizen Care’s breach of duty,

Charles suffered harm and resultant damages. Id. at ¶ 132.

Upon arrival at Citizen Care on August 24, 2013, Robinson EMS failed

to obtain full and accurate information regarding Charles’ condition before

attempting to administer care to him. Id. at ¶ 170. Robinson EMS failed to

perform appropriate and adequate maneuvers to clear Charles’ throat. Id.

at ¶ 172. Robison EMS owed a duty to Charles to render reasonable care

and a duty not to cause him harm. Id. at ¶¶ 177, 181. Robinson EMS was

____________________________________________

10

We suspect Appellant is alleging asphyxiation as the cause of death.

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grossly negligent in failing to attempt to check for a bolus, failing to attempt

to clear Charles’ throat, and in failing to perform or attempt to perform the

Heimlich maneuver on Charles, a choking victim. Id. at ¶¶ 178, 179, 182 j,

l. As a result of the acts and omissions of Robinson EMS, Charles suffered

harm and resultant damages. Id. at ¶ 183.

Based upon the above averments, we conclude Appellant has alleged

sufficient facts that, if ultimately proven, could permit recovery. We now

address whether the trial court erred in granting Appellees’ demurrers to

dismiss the amended complaint in its entirety.

All Appellees, with the exception of Robinson EMS, demurred to the

amended complaint on the basis that they are immune from suit under §

4603 of the MHMR Act. That section provides, in pertinent part:

No person and no governmental or recognized nonprofit health

or welfare organization or agency shall be held civilly or

criminally liable for any diagnosis, opinion, report or anything

done pursuant to the provisions of this act if he acted in good

faith and not falsely, corruptly, maliciously or without reasonable

cause; provided however, that causes of action based

upon gross negligence or incompetence shall not be

affected by the immunities granted by this section.

50 P.S. § 4603 (emphasis added). Although the trial court in its March 30,

2016 order did not specifically reference the immunity demurrer asserted by

Appellees, it presumably granted it. The court stated that leave to amend

was denied because no amendment could convert the underlying averments

of negligence into gross negligence, which it believed was a pleading

requirement for all Appellees with the possible exception of Robinson EMS.

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Limiting ourselves, as we must, to the facts pled in the amended complaint,

it is not clear whether any Appellees are governmental or recognized

nonprofit health or welfare organizations or agencies entitled to immunity

under this statute. Further, it is not clear from either the arguments

presented or the facts pled in the amended complaint whether any of the

individuals or entities were engaged in any activities to which the immunity

provisions of the MHMR Act would apply.

It also is not clear whether Appellant failed to plead sufficient facts to

establish gross negligence or incompetence by Appellees. The amended

complaint avers that all Appellees failed to employ appropriate medical

and/or trained staff, Amended Complaint at ¶ 26; were aware of the

specialized needs of residents but had only a skeleton crew to care for them,

id. at ¶ 27; ignored complaints by employees regarding staffing needs, id.

at ¶ 29, 36; ignored pleas for increased resources, id. at ¶ 30; forced

employees to work long hours, including overtime that impaired their ability

to provide adequate care, id. at ¶ 31; allowed Charles to eat or access food

without supervision, despite specific knowledge of the choking hazard, id. at

¶ 33; consciously disregarded Charles’ ISP despite being warned of the high

probability of choking to death, id. at ¶ 42; knew that, on the day in

question, Charles was hungry, id. at ¶ 46; knew pizza was Charles’ favorite

food but refused to provide him food for an extended period of time, id. at ¶

48; denied Charles food for an extended period of time to punish him for

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spilling his drink, thereby increasing the probability Charles would eat too

fast and choke when eventually provided food, id. at ¶ 49; proceeded to

give Charles food and failed to stay with him to keep him safe despite

knowing the requirements of his ISP, id. at ¶ 51; failed to contact EMS

and/or paramedics within a reasonable time, id. at ¶ 55; failed to provide

appropriate information to responders to prevent the Charles’ death, id. at ¶

57; failed to provide employees the proper training to remove the lodged

bolus of food, id. at ¶ 59; failed to provide training for assisting a choking

individual, id. at ¶ 62; continued to employ Vidzro despite at least eleven

disciplinary infractions, id. at ¶ 91; and failed to have a working defibrillator

available when medical providers arrived at the scene, id. at ¶ 96.

Thus, as will be discussed, while Appellant has failed to set forth the

material averments of his amended complaint in a concise and summary

fashion, from sifting through the amended complaint, it appears there are

sufficient factual averments that could constitute gross negligence, rendering

the grant of an immunity demurrer improper. The trial court, therefore,

erred in granting a demurrer based on immunity under the MHMR Act.

Robinson EMS also demurred to the amended complaint claiming

immunity under the EMSS Act. Section 8151(2) of the EMSS Act provides,

in pertinent part, as follows:

No EMS agency, EMS agency medical director or EMS provider

who in good faith attempts to render or facilitate emergency

medical care authorized by this chapter shall be liable for civil

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damages as a result of an act or omission, absent a showing of

gross negligence or willful misconduct.

35 Pa. C.S.A. § 8151(2). From the trial court’s March 30, 2016 order, it

does not appear that the trial court granted Robinson’s demurrer. The trial

court commented that gross negligence was “a pleading requirement here

for all defendants with the possible exception of Robinson EMS.” Trial Court

Order, 3/30/16, at 2. However, to the contrary, pleading gross negligence

under both the MHMR Act and the EMSS Act is one avenue by which a

plaintiff may overcome statutory immunity under both statutes. While these

statutes both preclude immunity for gross negligence, they differ in that the

MHMR Act also precludes immunity for incompetence, while the EMSS Act

also precludes immunity for willful misconduct. Nonetheless, to the extent

the trial court’s order can be construed as granting Robinson EMS’s

demurrer upon the immunity conferred by the EMSS Act, we cannot say that

it is clear that Appellant did not sufficiently aver facts that could establish

gross negligence on the part of Robinson EMS. Appellant avers that

Robinson EMS acted recklessly and in a grossly negligent fashion by failing

to obtain full and accurate information prior to attempting to administer CPR

to the Decedent. Amended Complaint at ¶¶ 170, 180. Appellant alleges

that Robinson EMS also failed to administer the Heimlich maneuver, id. at

¶179, and that, instead of first clearing Charles’ throat, began chest

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compressions with additional breaths, forcing the food bolus further into

Charles’ airway, leading to his death. Id. at ¶¶ 171, 172, 178, 180.11 While

we cannot say that these averments suffice to allege willful misconduct,

Appellant has alleged fundamental mistakes on the part of Robinson EMS

that could constitute gross negligence. Therefore, we find the trial court

erred to the extent it granted Robinson EMS’s demurrer based on immunity

under the EMSS Act.12

In his second issue, Appellant contends the trial court erred by striking

his second amended complaint filed 20 days after the last set of preliminary

objections and argues the objecting party lacked standing to raise this

timing issue. We find no need to address the timing issue, as our review of

the second amended complaint leads us to conclude that the trial court did

not err in striking this complaint. We agree with the trial court’s observation

that this complaint fails also to properly plead its various claims against each

Appellee. Trial Court Order, 3/30/16, at 2. Because the trial court struck

the second amended complaint on procedural grounds and we find that the

____________________________________________

11

Since these averments arguably bear upon the standard of care for

providing medical care, proof as to whether gross negligence was committed

may require expert testimony. However, that issue is not presently before

this Court.

12

Alleging facts and proving facts are not the same. Although Appellant

may survive a demurrer at this time, our decision in no manner is meant to

offer any opinion as to the merits of any gross negligence claims.

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complaint suffers from many of the same infirmities as the amended

complaint, as discussed in detail, infra, we decline to address this issue

further.

In his third issue, Appellant contends the trial court erred in sustaining

all preliminary objections to his amended complaint because the complaint

was proper in all respects. In his fourth issue, he asserts the trial court

erred in ruling he failed to comply with the trial court’s order, claiming he

addressed the “cognizable” portions of the order in his amended complaint.

As these issues are intertwined, we address them together.13

Initially, we must state that we find it disingenuous at best for

Appellant to claim that his amended complaint was proper in all or most

respects and that he addressed the “cognizable” portions of the trial court’s

order in his amended complaint. The pleading defects in the amended

complaint are many. Appellant’s inability to set forth, as ordered, the simple

facts of this case (as he has done in his brief to this Court), unencumbered

in almost every paragraph by every contingency of liability, and in a manner

that enables each Appellee to discern the alleged tortious conduct

attributable to that party, raises the temerity of these arguments to an

____________________________________________

13

It is not necessary for us to address Appellant’s fifth and final issue, that

the trial court would not permit further amendment to plead gross

negligence, as we previously held with regard to Appellant’s first issue that

the amended complaint pled sufficient allegations for gross negligence.

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incomprehensible level. We are hard-pressed to understand Appellant’s

inability to specifically identify parties and their roles in this matter when

counsel had the benefit of some 16 to 20 hours of pre-complaint discovery.

Further, we cannot fathom how Appellant can suggest that he addressed the

“cognizable” portions of the trial court’s order when he failed to set forth

specific allegations as to each Appellee in separate counts as the trial court

unambiguously ordered him to do.

While it is true that a complaint should not be dismissed without leave

to amend unless, on the facts averred, the law can say with certainty no

recovery is possible, Hill, supra, our Supreme Court has recognized that the

“Rules of Civil Procedure are essential to the orderly administration and

efficient functioning of the courts.” Womer v. Hilliker, 908 A.2d 269, 276

(Pa. 2006)). “[W]e expect that litigants will adhere to procedural rules as

written, and take a dim view of litigants who flout them.” Id. (citing Wood

v. Garrett, 46 A.2d 321, 323 (Pa. 1946)).

Rule of Civil Procedure 1019(a) requires that the material facts on

which a cause of action or defense is based be stated in a concise and

summary form. “[A] pleader must set forth concisely the facts upon which

his cause of action is based. The complaint must not only apprise the

defendant of the claim being asserted, but it must also summarize the

essential facts to support the claim.” Donaldson v. Davidson Bros.,

Inc., 144 A.3d 93, 103 (Pa. Super. 2016) (emphasis in original). A

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complaint also “must apprise the defendant of the nature and extent of the

plaintiff's claim so that the defendant has notice of what the plaintiff intends

to prove at trial and may prepare to meet such proof with his own evidence."

Discover Bank v. Stucka, 33 A.3d 82, 86-87 (Pa. Super. 2011) (citation

omitted). Rule 1020 (a) permits a plaintiff to state more than one cause of

action against a defendant, but each cause of action and any special

damages related thereto must be stated in a separate count containing a

demand for relief. While there is some authority that a single cause of

action may be pled against two or more defendants who are alleged to be

jointly and severally liable, that cannot be the case where the factual

background underlying each defendant’s liability is different. See General

State Authority v. Lawrie and Green, 356 A.2d 851, 854 (Pa. Cmwlth.

1976). With these basic principles in mind, we now address why we reject

Appellant’s contentions the amended complaint was proper in most respects

and complied with the trial court’s December 3, 2015 order.

At common law, an action for personal injury did not survive a

person’s death. To counter this, our legislature enacted a survival statute

providing that “all causes of action or proceedings, real or personal, shall

survive the death of a plaintiff.” Salvadia v. Ashbrook, 923 A.2d 436, 439

(Pa. Super. 2007) (citing 42 Pa.C.S.A. § 8302). All actions that survive the

decedent, however, must be brought by or against the personal

representative of the decedent’s estate. Id. Likewise, Pennsylvania law

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provides that an action may be brought, under procedures prescribed by

general rules, to recover damages for the death of an individual caused by

the wrongful act, neglect, unlawful violence or negligence of another. 42

Pa.C.S.A. § 8301. This wrongful death action exists only for the benefit of a

decedent’s spouse, children or parents. Id. As with survival actions, an

action for wrongful death may only be brought by the personal

representative of a decedent for the benefit of those persons entitled by law

to recover damages for the decedent’s wrongful death. Id.; Pa.R.C.P.

2202.14 Thus, an individual, even if he or she qualifies as a wrongful death

beneficiary, may not institute an action individually on his or her own behalf.

A decedent’s personal representative must bring all causes of action that

arise by virtue of the decedent’s wrongful death. In short, attempts to

assert causes of action to recover damages for the death of an individual

caused by the wrongful act of another—other than those brought by a

decedent’s personal representative for wrongful death and/or survival—are

not permitted.

Here, the initial complaint improperly identified Dale and Mahalia

Bouchon individually as Plaintiffs, in addition to correctly identifying Dale as

____________________________________________

14

In addition, under Rule 2202(b), if no action for wrongful death has been

brought within six months after a decedent's death, an action may be

brought by the personal representative or any person entitled by law to

recover damages in such action as trustee ad litem on behalf of all persons

entitled to share in the damages.

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the Administrator of Charles’s estate. This error was corrected in the body

of the amended complaint, but the caption still improperly referred to Dale

and Mahalia individually as Plaintiffs. We presume this was mere oversight.

However, in his amended complaint, Dale, as Administrator of the Charles’

estate, alleged a single count of “Negligence” against Citizen Care, a single

count of “Negligence” against individual Appellees, a single count of

“Negligence” against Robinson EMS and/or Mandarino, and a fourth count

entitled “Damages,” in which he did not name any parties but averred, in a

single paragraph, that this action was brought on behalf of Charles’ estate

under Pennsylvania’s wrongful death and survival statutes. In this count,

Appellant failed to identify those persons entitled to recover wrongful death

damages. Appellant has failed to properly plead his wrongful death and

survival actions in a number of significant ways.

First, it is impossible to tell whether Appellant’s first three “Negligence”

counts are wrongful death and/or survival actions. None of these counts

identifies either cause of action. They merely assert negligence claims by

Appellant as the Administrator of Charles’s estate. If Appellant intended to

assert negligence claims outside the wrongful death and survival statutes,

these causes of action are clearly improper. If Appellant intended to plead

any of these counts as wrongful death and/or survival actions, then

Appellant violated Rule 1019(a), which requires specificity as to the nature

of the claims. Second, Appellant’s “Damages” count violated Rule 1020(a)

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by appearing to plead both wrongful death and survival actions in the same

count. Rule 1020(a) clearly directs that wrongful death and survival causes

of action must be set forth in separate counts. Third, to the extent the

“Damages” count can be considered a claim for wrongful death, Appellant

has failed to comply with Rule 2204 in its entirety. Rule 2204 requires that

the plaintiff “state the plaintiff’s relationship to the decedent, the plaintiff’s

right to bring the action, the names and last known residence addresses of

all persons entitled to recover damages, their relationship to the decedent

and that the action was brought on their behalf.” Pa.R.C.P. 2204. Finally,

as Appellees correctly recognize, a count for “Damages” is not a cause of

action.

We next conclude Appellant was in clear violation of the trial court’s

December 3, 2015 order with respect to his failure to set forth separate

causes of action against each defendant. In his first count, Appellant names

as defendants “Citizen Care, Inc. and/or Partners for Quality Foundation,

Inc. and/or Partners for Quality, Inc. and/or Exceptional Adventures and/or

Allegheny Children’s Initiative,” or, collectively, “Citizen Care, Inc.”

Paragraph 21 of the amended complaint avers that the “Defendants Citizen

Care, Inc., are all vicariously liable for the negligent, reckless, outrageous,

and grossly negligent actions of its corporate subsidiaries and/or partner

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corporations or entities.”15 The paragraphs that constitute the first count,

Paragraphs 98 through 135, including the 51 subparagraphs of Paragraph

131, speak collectively to the Citizen Care, Inc. entities without

differentiating any conduct or claims as between or among them. Moreover,

because Appellant groups these entities together and asserts that each is

vicariously liable for the actions of each other’s corporate subsidiaries,

partner corporations or entities, it is impossible for any of these entities to

discern for whom they are responsible or the conduct for which each entity is

allegedly vicariously liable.

The averments contained within Paragraph 131 allege negligence,

corporate negligence, and/or conduct for which a principal may be found to

be vicariously liable. As pled, Appellant flatly violates Rule 1020(a), as this

count attempts to assert several causes of action against numerous parties

for conduct undefined as to each party named. Claims based upon

negligence, corporate negligence, and vicarious liability are separate causes

____________________________________________

15

Appellant’s use of “vicarious liability” to describe conduct as between

separate legal entities appears to be without precedent. Vicarious liability is

a policy-based allocation of risk sometimes referred to as imputed

negligence, which in its simplest form, is imposed by reason of some relation

existing between two parties, such as in an employer-employee relationship.

See Estate of Denmark Ex. Rel. Hurst v. Williams, 117 A.3d 300, 305

(Pa. Super. 2015). To hold an employer vicariously liable for the negligent

acts of its employee, the acts must be committed “during the course of and

within the scope of the employment.” Id. (citation omitted). The amended

complaint does not identify relationships between or among the various legal

entities named that would impute the negligence of one to another.

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of action.16 In addition, the summary manner in which Appellant named

these entities, and alleged all causes of action against them in a single

count, clearly violates the requirements of Rule 1019(a) to concisely state

claims in a manner that advises a defendant of the claims asserted against

him and enables him to prepare a proper defense. At a minimum, each of

these entities is entitled to be apprised of the capacity in which the entity is

being sued in this action and to be informed of the specific conduct that

Appellant believes is actionable as to each of them.

In his second count, Appellant alleges negligence against “Margaret

(Peggy) Noonan and/or, Komlavi (Komlair) (Claude) Vidzro and/or Petra

Mussi and/or Eric Lindey and/or Donald DeMichele and/or Grove Demming

and/or Lydia Toomey and/or Jessica Davis.” Like Appellant’s first count, this

count encompasses Paragraphs 136 through 156, with Paragraph 153

containing 26 subparagraphs that allege the manner in which these

individuals were either negligent, careless, or reckless, or engaged in

wanton, willful, outrageous, or intentional conduct toward Charles. Once

again, this count fails to comply with Rules 1019(a) and 1020(a), as it is

impossible for any of these named individuals to ascertain which allegations

of conduct are directed to each of them. Certainly, since it cannot be

alleged that all of these parties committed the same conduct, Rule 1020(a)

____________________________________________

16

The argument also may be made that claims asserting negligence and

intentional conduct likewise are separate causes of action.

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requires—at a minimum—that separate causes of action be pled against all

those who are not jointly and severally liable.

In his third count, Appellant names Robinson EMS and/or Joseph

Mandarino as defendants. He alleges that Robinson EMS is a corporation

and Mandarino is a competent adult.17 Amended Complaint at ¶¶ 159, 160.

Appellant then obfuscates who the parties are. Paragraph 164 pleads the

“respective employer(s) of their respective employees, named in this

Complaint are vicariously liable for the negligent, reckless, outrageous, and

grossly negligent conduct of their/its respective employees.” Id. at ¶ 164

(emphasis added). Appellant then pleads that “Defendants Robinson

EMS, are all vicariously liable for the negligent, reckless, outrageous, and

grossly negligent actions of its corporate subsidiaries and/or partner

corporations or entities.” Id. at ¶ 165 (emphasis added).

It is unclear whether the entity is “Robinson EMS,” or multiple entities,

since Appellant refers to “employer(s),” “Defendant Robinson EMS,” and

____________________________________________

17

Robinson EMS also raised preliminary objections asserting that the third

count should be dismissed because it incorrectly asserts that it is vicariously

liable for Mandarino, as pre-complaint discovery revealed that Mandarino is

the chairperson of the Board of Directors of Partners for Quality, and is not

an employee of Robinson EMS. Since we cannot go outside the averments

of the complaint filed, and this claim would require that we consider matters

outside the complaint under review, we are precluded from addressing this

objection at this time. Nonetheless, we remind counsel that counsel’s

signature upon a pleading certifies that the factual allegations have

evidentiary support. Pa.R.C.P. 1023.1(c)(3). The filing of claims without

such support may subject counsel to sanctions. See Pa.R.C.P. 1023.1

through 1023.4.

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“Defendants Robinson EMS.” Id. at ¶¶ 159, 164, 165, 166, 167, 168, 169,

171. While one might assume that the plural would refer to both parties

named in the caption, “Robinson EMS and Joseph Mandarino,” this

assumption cannot be made, as Appellant also alleges that the Robinson

EMS entities are all vicariously liable for their corporate subsidiaries and/or

partner corporations or entities and their co-defendants. Id. at ¶¶ 165, 166.

In light of our previous discussion, we need not count the many ways

that this pleading violates Rules 1019(a) and 1020(a). Nor do we once

again have to explain the requirement to set forth separate causes of action

under Rule 1020(a).

As for lack of specificity, we need only reference Paragraph 182 and its

18 subparagraphs as representative of how that paragraph and many others

in this count violate Rules 1019(a) and 1020(a). Paragraph 182 alleges that

Charles’ injuries and damages were the proximate result of the “grossly

negligent, 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 gross negligence,

carelessness, and/or recklessness includes, but is not limited to . . .”

Subparagraphs a through r and yy18 then proceed to set forth in very

general terms the wrongful manner in which the parties acted, so much so

____________________________________________

18

We assume the reference to "yy" is a typographical mistake.

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that it is impossible to discern what conduct may be attributed to any of the

parties. To be certain that this confusion is complete, Appellant’s prayer for

relief then demands judgment against all “Defendants.”

The trial court unambiguously directed in its December 3, 2015 order

that Appellant was to include individual and specific allegations as to each

party in separate counts. Appellant’s claim that its amended complaint was

proper in all or most respects, or that he addressed the “cognizable” portions

of the trial court’s December 3, 2015 order, simply does not hold any

weight. Appellant’s violations of the basic pleading requirements under

Rules 1019(a) and 1020(a) are astounding.

We agree with Appellees Nolan and Vidzro that, “[s]tripped of the

hyperbole that pervaded each Complaint, the underlying facts were rather

simple and non-dramatic.” Brief of Appellees Nolan and Vidzro at 7. Most of

Appellant’s averments of the facts giving rise to this action are unnecessarily

encumbered by conclusory and all-encompassing language. Despite the fact

this case may be understood in very simple terms, this case has not even

reached the point of having an answerable complaint, yet it has amassed a

substantial certified record, as reflected by the reproduced record that itself

exceeds 1,000 pages. The reason we are in this position is Appellant’s

seeming refusal, or inability, to draft a complaint that sets forth “in a concise

and summary form” the material facts upon which his cause of action is

based. Pa.R.C.P. 1019(a).

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In summary, we are reversing the trial court’s grant of demurrers, as

it cannot be said with certainty that no recovery is possible based upon what

we can discern are the averments of Appellant’s amended complaint. See

Hill, supra. We affirm fully the trial court’s order dismissing the amended

complaint for failure to present an understandable and sufficiently pled

complaint under the rules of court. We reverse the trial court’s order

denying further leave to amend because we have found error in some of the

reasons given for dismissing this action with prejudice. We, therefore, are

remanding this matter to the trial court to afford Appellant the opportunity

to plead his causes of action properly. In doing so, we are by no means

suggesting that any of Appellees’ remaining preliminary objections raised,

but not addressed by the trial court or herein, are meritless. Appellant’s

counsel would be well advised to consider and take seriously the objections

previously asserted. We are making clear that we have decided in this

appeal only the five issues preserved and presented by Appellant before this

Court.

Accordingly, we remand to the trial court with the directive that

Appellant be given the opportunity, within 45 days of the date of this

decision, to file an amended complaint in conformance with our rules of

procedure, the directives of the trial court’s December 3, 2015 order, and

this decision. Further, should Appellant’s counsel wish to avoid another set

of preliminary objections and possible dismissal of this case, it is imperative

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that any amended complaint clearly set forth proper causes of action and

address the basic elements of any asserted cause of action identifying the

proper parties against whom those claims might legitimately lie. In the

event Appellant files an amended complaint following remand and that

pleading does not comport with the procedural rules—including but not

limited to Pennsylvania Rules of Civil Procedure 1019(a), 1020(a) and 2204,

as well as the statutory requirements of 42 Pa.C.S.A. §§ 8301 and 8302, the

trial court’s December 3, 2015 order, and this decision, Appellees would be

well within their rights to file preliminary objections again to have the trial

court address those objections, or to seek the imposition of sanctions and

counsel fees, a claim the trial court denied without prejudice to reassert in

the future. See Trial Court Order, 3/30/16.

In sum, we affirm the trial court’s December 3, 2015 order as to

striking Appellant’s second amended complaint and as to striking the

amended complaint for lack of conformity with Rules 1019(a) and 1020(a).

We reverse the order as to the grant of demurrers and dismissal of

Appellant’s amended complaint with prejudice. Further, we remand for

further proceedings consistent with this decision.

Order affirmed in part and reversed in part. Case remanded.

Jurisdiction relinquished.

Judgment Entered.

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Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/17

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