Kevin C v. Foundations Behavioral Health

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 21-2771

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KEVIN C.; THERESA C., INDIVIDUALLY AND AS PARENTS

AND NATURAL GUARDIANS OF B. C.

v.

FOUNDATIONS BEHAVIORAL HEALTH, a/k/a UHS of Doylestown, LLC;

GINA M FUSCO, PSY. D.; MOHAMMED YUSUF MODAN, M.D.;

JON LYFORD; ANTHONY CUSATE; WENDY MONTE; DANA BACHMAN;

DONNA NEWTON-PUTIGNANO; AMY DOLLINGER; TIM (LAST NAME

UNKNOWN); BERNARD OTABIL; UNKNOWN EMPLOYEES;

UHS OF DELAWARE, INC.; UNIVERSAL HEALTH SERVICES, INC.,

FOUNDATIONS BEHAVIORAL HEALTH, a/k/a UHS of Doylestown, LLC;

GINA M FUSCO, PSY. D.; ANTHONY CUSATE; WENDY MONTE; DANA

BACHMAN; DONNA NEWTON-PUTIGNANO; AMY DOLLINGER;

UHS OF DELAWARE, INC.; UNIVERSAL HEALTH SERVICES, INC.,

Appellants

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On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. No. 2-20-cv-06431)

District Judge: Honorable Wendy Beetlestone

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Submitted Under Third Circuit L.A.R. 34.1(a)

January 9, 2023

Before: JORDAN, PHIPPS and ROTH, Circuit Judges

(Filed: May 4, 2023)

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OPINION

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JORDAN, Circuit Judge.

The Appellants seek review of the District Court’s order denying their claim to

immunity under Pennsylvania’s Mental Health Procedures Act (“MHPA”), 50 P.S.

§§ 7101, et seq.1 Because the Appellants have not met their burden to demonstrate that

we have appellate jurisdiction, we will dismiss their appeal.

I. BACKGROUND2

B.C. is an adult with severe autism spectrum disorder who is unable to

communicate verbally. He was allegedly abused during his inpatient stay at Foundations

Behavioral Health (“FBH”), a psychiatric hospital in Pennsylvania. That abuse was

allegedly perpetrated by Bernard Otabil, an FBH employee who was previously

implicated in the abuse of another patient at FBH. Otabil’s abuse of B.C. allegedly took

place in view of other FBH employees, with some of the abuse being captured on video.

His parents, Kevin C. and Theresa C. (the “Plaintiffs”), brought suit, individually and as

B.C.’s parents and guardians, against multiple defendants, including Otabil and FBH,



This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,

does not constitute binding precedent.

1

The Appellants are UHS of Doylestown, LLC d/b/a Foundations Behavioral

Health, UHS of Delaware, Inc., Universal Health Services, Inc., Gina M. Fusco, Psy. D,

Anthony Cusate, Wendy Monte, Dana Bachman, Donna Newton-Putignano, and Amy

Dollinger.

2

The factual background is drawn from the allegations in the Amended

Complaint.

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asserting claims under federal and state law. They allege that B.C. suffered severe

physical and emotional trauma as a result of the abuse at FBH.

As relevant here, the Appellants moved to dismiss the state law claims in Count I

(negligence, gross negligence, and recklessness), Count IV (breach of fiduciary duty),

and Count V (negligent infliction of emotional distress) of the Amended Complaint,

arguing that the MHPA grants them immunity.3 Specifically, the Appellants argued that

the Plaintiffs failed to plead facts sufficient to show that the allegedly tortious conduct

amounted to gross negligence or involved willful misconduct and so they are entitled to

immunity under the MHPA as to those tort claims. The District Court disagreed, holding

that the Appellants were not entitled to immunity at the motion-to-dismiss stage.4

This appeal followed.

3

Defendant Otabil did not move to dismiss the claims against him, and he is not

an Appellant in this action. One of the other defendants, Dr. Mohammed Modan, filed a

separate motion to dismiss, which the District Court granted The rest of the defendants,

including the Appellants, filed a joint motion to dismiss, which the District Court granted

in part and denied in part.

4

The District Court concluded that the allegations of gross negligence were

insufficient with respect to one of the other defendants, Jon Lyford, and it dismissed him

from the case. The joint motion to dismiss was denied in all other respects. As the

appeal challenges only the District Court’s denial of immunity under the MHPA, nothing

more needs to be said as to the remainder of the District Court’s Order and Memorandum

Opinion or any of the other claims in the Amended Complaint.

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II. DISCUSSION5

A. Legal Standard

We have an obligation to examine our jurisdiction sua sponte, “[e]ven if the

parties have not raised the issue[.]”6 Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d

392, 395 (3d Cir. 2004). The Appellants, as the parties invoking our jurisdiction, have

the burden of demonstrating that the case is properly before us. See id. at 396 (“The

party asserting jurisdiction bears the burden of showing that at all stages of the litigation

the case is properly before the federal court.”). In determining whether that burden is

satisfied, we recall the admonition that “it is improper [for a federal court] to ‘resolve

contested questions of law when its jurisdiction is in doubt.’” Neale v. Volvo Cars of N.

Am., LLC, 794 F.3d 353, 360 (3d Cir. 2015) (quoting Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 101 (1998)). In that same vein, “we are mindful that statutes

conferring jurisdiction on federal courts are to be strictly construed, and doubts resolved

5

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. For the

reasons discussed herein, we conclude that the Appellants have not demonstrated that we

have jurisdiction under 28 U.S.C. § 1291. “We necessarily exercise de novo review over

an argument alleging a lack of appellate jurisdiction.” Reilly v. City of Atlantic City, 532

F.3d 216, 223 (3d Cir. 2008).

6

The Appellants’ Notice of Appeal indicates they are appealing the District

Court’s Memorandum Opinion and Order insofar as it constituted “a denial of a state

conferred immunity[.]” (J.A. at 0001a-02a.) They believe this appeal is permissible

pursuant to 28 U.S.C. § 1291 under the collateral order doctrine. Shortly thereafter, we

advised the parties that “[t]he order on appeal may not be final within the meaning of 28

U.S.C. § 1291 and may not be otherwise appealable at this time” and, accordingly, we

required the parties to address that issue in written responses. (3d Cir. D.I. 5.) After the

parties filed the requested responses, we then ordered them to address our jurisdiction in

their briefing.

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against federal jurisdiction.” United States v. Merlino, 785 F.3d 79, 87 (3d Cir. 2015)

(internal quotation marks omitted).

We are generally limited to reviewing the “final decisions” of federal district

courts. 28 U.S.C. § 1291. Nevertheless, “we may also review a ‘small class’ of non-final

orders under the collateral order doctrine.” Doe v. Coll. of N.J., 997 F.3d 489, 493 (3d

Cir. 2021) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)).

An order qualifies for review under that doctrine if three requirements are met: “the order

must (1) conclusively determine the disputed issue, (2) resolve an important issue

separate from the merits of the action, and (3) be ‘effectively unreviewable’ on appeal

from a final judgment.” Id. (quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,

106 (2009)).

Whether denial of immunity conferred by state law is immediately appealable at

the motion-to-dismiss stage under the collateral order doctrine turns on whether, under

applicable state law, the immunity in question is immunity from liability or immunity

from suit. See Saint-Jean v. Palisades Interstate Park Comm’n, 49 F.4th 830, 834 (3d

Cir. 2022) (finding “dispositive” in the context of a collateral order doctrine question that

“New Jersey’s Tort Claims Act does not provide immunity from suit”).

As we have explained,

An immunity from suit generally is grounded in the need to free parties from

the costs, burdens, and consequences of having to be party to an action and

to defend one’s self. Such a right will be forfeited if not vindicated prior to

trial, … and its denial should be subject to immediate review.

5

Bell Atl.-Pa., Inc. v. Pa. Pub. Util. Comm’n, 273 F.3d 337, 345 (3d Cir. 2001) (citation

omitted). “[A] defense against liability,” as opposed to a “guarantee against having to

face a suit[,]” is not immediately appealable if denied, even if that defense can be decided

as a matter of law on a motion to dismiss or a motion for summary judgment. Id.

B. Nature of Immunity Under the Mental Health Procedures Act

The relevant text of the MHPA’s immunity provision speaks in terms of immunity

from liability:

In the absence of willful misconduct or gross negligence, a county

administrator, a director of a facility, a physician, a peace officer or any other

authorized person who participates in a decision that a person be examined

or treated under this act, or that a person be discharged, or placed under

partial hospitalization, outpatient care or leave of absence, or that the restraint

upon such person be otherwise reduced, or a county administrator or other

authorized person who denies an application for voluntary treatment or for

involuntary emergency examination and treatment, shall not be civilly or

criminally liable for such decision or for any of its consequences.

50 P.S. § 7114(a) (emphasis added). The same is true of the title of § 7114 (“Immunity

from civil and criminal liability”).

The MHPA’s immunity provision differs from the text of Pennsylvania’s statutory

reaffirmation of sovereign immunity, which provides that the Commonwealth and its

officials “remain immune from suit” absent a specific waiver. 1 PA. CONS. STAT. § 2310

(2021). The Pennsylvania Supreme Court cited that language to support its conclusion

that § 2310’s “protection [wa]s from a lawsuit itself not simply a mere shield from

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judgment or liability” for purposes of Pennsylvania’s collateral order doctrine.7 Brooks v.

Ewing Cole, Inc., 259 A.3d 359, 372 (Pa. 2021); see also id. at 376 (rejecting a reading

that “transform[ed sovereign immunity] from a protection from suit” as being “against

the express intention of the legislature as stated in” § 2310).

The Pennsylvania Supreme Court has described the MHPA immunity provision as

immunity from liability on multiple occasions over the course of decades, albeit not in

connection with the collateral order doctrine. See, e.g., Farago v. Sacred Heart Gen.

Hosp., 562 A.2d 300, 302 (Pa. 1989) (describing the MHPA’s immunity provision as “a

limited immunity provision from civil and criminal liability for specific decisions

regarding the treatment of the patient”) (emphasis added); Albright v. Abington Mem’l

Hosp., 696 A.2d 1159, 1167 (Pa. 1997) (“The granting of summary judgment is

particularly appropriate here in light of the intent of the Act to provide limited immunity

from civil and criminal liability to mental health personnel and their employers in

rendering treatment[.]” (quoting Farago, 562 A.2d at 304) (emphasis added)); Dean v.

Bowling Green-Brandywine, 225 A.3d 859, 869 (Pa. 2020) (Section 7114 “protects from

civil and criminal liability those individuals and institutions that provide treatment to

mentally ill patients, and thus promotes the statutory goal of ensuring such treatment

7

Pennsylvania’s collateral order doctrine was originally drawn from Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), and is substantially similar to the one

applied in federal courts. See Brooks v. Ewing Cole, Inc., 259 A.3d 359, 369-70 (Pa.

2021) (explaining that Pennsylvania adopted, first, by case law, and, then, by rule “the

three-part collateral order doctrine first formulated by the United States Supreme Court in

Cohen,” and that it “continue[s] to look to that Court’s decisions for guidance in defining

the contours of” its rule).

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remains available.”) (emphasis added); Leight v. Univ. of Pittsburgh Physicians, 243

A.3d 126, 130 (Pa. 2020) (“Specifically, 50 P.S. § 7114 protects from civil and criminal

liability those individuals and institutions that provide treatment to mentally ill patients,

and, thus, promotes the statutory goal of ensuring such treatment remains available.”)

(emphasis added).

All that said, we can find no instance where the Pennsylvania Supreme Court has

squarely addressed whether the statutory immunity conferred by the MHPA’s immunity

provision would satisfy the Commonwealth’s own collateral order doctrine rule, and the

parties have identified none. For that reason, we have looked to see whether either the

Pennsylvania Supreme Court or Pennsylvania’s intermediate appellate courts – the

Superior Court and Commonwealth Court – have reviewed the denial of immunity under

the MHPA in a circumstance where the order under review would have needed to satisfy

Pennsylvania’s collateral order doctrine for appellate jurisdiction to lie. See Brown v.

Grabowski, 922 F.2d 1097, 1107-09 (3d Cir. 1990) (engaging in analysis of state court

practice in determining whether denial of immunity under New Jersey’s Tort Claims Act

was immediately appealable); Africa v. City of Philadelphia, 49 F.3d 945, 957-59 (3d Cir.

1995) (engaging in analysis of state court practice in connection with Pennsylvania’s

Political Subdivision Tort Claims Act). Such an occurrence might imply that MHPA

immunity was understood to be immunity from suit. But we have found no such

occurrence, despite those three courts having examined the MHPA’s immunity provision

on dozens of occasions going back decades. Nor have the Appellants come forward with

any such example.

8

While we need not definitively opine on whether denial of the immunity conferred

by the MHPA would satisfy the collateral order doctrine, we can say that the text of that

provision, the Pennsylvania Supreme Court’s characterization of it, and the absence of

decisions reviewing denials of such immunity under the Pennsylvania collateral order

doctrine, all create a grave doubt as to our jurisdiction such that we cannot proceed to the

merits.

Still, three points raised by the Appellants warrant brief discussion. First, in a

footnote, the Appellants cite a Pennsylvania Superior Court decision and two unpublished

federal district court decisions for the proposition that “[m]any Pennsylvania court

decisions describe the MHPA as referring to ‘immunity from suit.’” (Opening Br. at 20

n.9.) Putting aside that none of those cases dealt with whether denial of immunity

conferred by the MHPA would satisfy the collateral order doctrine (and the Appellants do

not argue otherwise),8 elsewhere in that same brief, the Appellants cite the four decisions

8

The Pennsylvania Superior Court was neither reviewing the denial of MHPA

immunity nor purporting to be drawing a distinction between immunity from suit and

immunity from liability for purposes of the collateral order doctrine. Bloom v. Dubois

Reg’l Med. Ctr., 597 A.2d 671, 673, 676-77 (Pa. Super. Ct. 1991). And while Bloom

does use the phrase “immune from suit” in more than one instance, id. at 677-78, it also

uses the phrase “immune from liability under Section 7114(a) of the Mental Health

Procedures Act,” when summarizing the Pennsylvania Supreme Court’s decision in

Farago. Id. at 678. Not surprisingly, the two federal district court decisions had no

occasion to consider the collateral order doctrine and do not purport to draw a distinction

between immunity from suit and immunity from liability for purposes of appellate

jurisdiction. Ray v. Abington Twp., CIV.A. 02-4382, 2004 WL 1175737, at *7 (E.D. Pa.

May 25, 2004), order vacated in part on reconsideration on other grounds; Scherer v.

Pennsylvania Dep’t of Corr., CIV.A. 3:2004-191, 2007 WL 4111412, at *48 (W.D. Pa.

Nov. 16, 2007).

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(Farago, Albright, Leight, and Dean) we listed earlier as examples of the Pennsylvania

Supreme Court characterizing the MHPA as conferring immunity from liability. Indeed,

the Appellants go so far as to quote some of that same text. They do not, however, make

any effort to explain why those statements are not fatal to their argument in favor of our

jurisdiction.

Second, they assert that their characterization of the immunity in question as

“broad” immunity from suit is consonant with the purpose of the MHPA. (Opening Br.

at 21.) But the Pennsylvania Supreme Court has stated: “One of the purposes of the

Mental Health Procedures Act is to provide limited protection from civil and criminal

liability to mental health personnel and their employers in rendering treatment[.]”

Farago, 562 A.2d at 304 (emphasis added); see also Albright, 696 A.2d at 1167 (stating

the “intent of the Act” was to provide “limited immunity from civil … liability”).

Third, the Appellants suggest a strained reading of the phrase “shall not be civilly

or criminally liable for such decision or for any of its consequences.” 50 P.S. § 7114(a).

Specifically, they assert the “provision for immunity from civil liability ‘or for any of its

consequences’ necessarily includes immunity from suit and the other ‘consequences’ of

civil liability such as the burden of being party, to defend one’s self in litigation, to

undergo discovery and other pre-trial burdens.” (Opening Br. at 20 (emphasis retained).)

Yet both the Pennsylvania Supreme Court and the Pennsylvania Commonwealth Court

have signaled that “any of its consequences” refers back to “decision.” See Werner by

Werner v. Dep’t of Pub. Welfare, 530 A.2d 1004, 1007 (Pa. Commw. Ct. 1987) (“Also,

the words ‘or for any of its consequences’ indicate that the legislature intended no

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distinction between situations where the decision results in harm to the patient and harm

to a third party. We decline to create this distinction.”); see also Goryeb v. Dep’t of Pub.

Welfare, 575 A.2d 545, 549 (Pa. 1990) (“Clearly, the words ‘any of its consequences’

indicate the legislative recognition that discharging a severely mentally disabled person,

especially an involuntary admittee who has been classified, by statutory definition, as a

clear and present danger to himself or others, is a potential serious danger not only to the

patient himself but to ‘others.’”) (footnote omitted). That more natural reading does not

support the Appellants’ argument in favor of jurisdiction.

III. CONCLUSION

For the foregoing reasons, we will dismiss the appeal.

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