Tejada, R. v. Lynn Gonzalez Certified Nurse ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICKY TEJADA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LYNN GONZALEZ CERTIFIED NURSE
PRACTITIONER OF SCI SMITHFIELD,
Appellee No. 735 MDA 2015
Appeal from the Order Entered March 25, 2015
In the Court of Common Pleas of Huntingdon County
Civil Division at No(s): 2013-01439
BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 05, 2016
Ricky Tejada appeals from the March 25, 2015 order granting
preliminary objections filed by Appellee, Lynn Gonzalez, and dismissing his
complaint. We affirm.
On October 28, 2013, Ricky Tejada, an inmate at the State
Correctional Institution (“SCI”) in Smithfield, filed this pro se action against
Ms. Gonzalez, who is a nurse practitioner at that institution. Various
documents were presented to institute this case, including a writ of
summons and request to engage in pre-complaint discovery. Appellee
objected to the discovery request and countered with a pracipe seeking a
rule for Appellant to file a complaint. The trial court sustained Appellee’s
*
Former Justice specially assigned to the Superior Court.
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objection to pre-complaint discovery and issued a rule directing Appellant to
file his civil complaint.
Appellant failed to file a formal complaint, but did, on February 6,
2014, present a document wherein he averred that Ms. Gonzalez 1)
fraudulently refused to provide him health care; (2) breached an implied
contract and fiduciary duty owed to Appellant; and (3) inflicted emotional
distress.
The following facts are pertinent. Appellant is currently serving twenty
to forty years in jail after he was convicted of attempted homicide,
aggravated assault, simple assault, and recklessly endangering another
person, for the shooting of Luis Villatoro twice, once in the face and once in
the back of the head. See Commonwealth v. Tejada, 834 A.2d 619(Pa.Super. 2003).
Appellant initially was incarcerated at SCI in Camp Hill and was
transferred to SCI Smithfield. In September 2013, Appellant contacted the
medical staff at SCI Smithfield to obtain multi-vitamins and dandruff
shampoo pursuant to prescriptions that he had been issued while imprisoned
at SCI Camp Hill. The health care administrator at SCI Smithfield
determined that those prescriptions had been discontinued when Appellant
arrived at Smithfield. Appellant also requested that he be tested for HIV and
hepatitis, which the administrator denied. Appellant filed a formal grievance
regarding the administrator’s decisions, and the prison issued a response on
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October 1, 2013, informing Appellant that Nurse Gonzalez reviewed his case
and determined that he had no clinical condition requiring either the
prescriptions for the dandruff shampoo and vitamins or the requested
diagnostic tests.
The present action ensued. Thus, this case revolves around the fact
that Ms. Gonzalez discontinued Mr. Tejada’s right to free dandruff shampoo
and multi-vitamins as not medically necessary, forcing him to purchase them
from the prison commissary. Appellant initially sought to compel medical
testing. Ms. Gonzalez moved for access to Appellant’s medical records for
purposes of determining whether there was a clinical need for the shampoo,
vitamins, and the testing. The trial court granted discovery of the medical
records, and, on appeal, we affirmed. We concluded that, based upon the
allegations in this lawsuit, Appellant waived his privilege against revealing
his confidential medical records. Tejada v. Certified Nurse Practitioner
Gonzalez of SCI Smithfield, 2015 WL 7575702 (filed February 10, 2015).
Ms. Gonzalez thereafter filed preliminary objections in the nature of a
demurrer to the complaint. Before the trial court ruled on the preliminary
objections, Appellant filed an amended complaint that raised the same
essential allegations as those in the first one. On March 25, 2015, the trial
court granted Appellee’s preliminary objections, and dismissed this case.
This appeal followed. Appellant presents these questions for our review:
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[1.] By the action at trial court docket No. 2013-1439 below,
constituting a billing and service violation, which is an
impairment of contract, the defendant took a constitutional oath
not to impair, is the trial courts [sic] order of 3/25/2015 a result
of bias, prejudice or ill will-being an error at law and/or abuse of
discretion?
[2.] Is a contract a valid agreement, when both parties agree to
it’s [sic] terms and conditions and by the defendant being under
constitutional oath not to impair any contract, was defendant
bound by it’s [sic] terms under agency law?
[3.] By the complainant, being placed under duress to file a
complaint, designed so that the complaint wasn’t capable of
surviving a demurrer?
[4.] Was [the] trial court required to rule on the March 6, 2015
amended complaint?
Appellant’s brief at 4.
We first examine our standard of review from an order sustaining a
preliminary objection in the nature of a demurrer:
Our 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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Estate of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 305
(Pa.Super. 2015).
While Appellant’s averments in his brief are barely decipherable, the
thrust of this action is that Ms. Gonzalez was obligated to provide Appellant
with dandruff shampoo and multi-vitamins. Appellant has abandoned his
request for medical testing for HIV and hepatitis. On appeal, Appellant
premises his right to relief on breach of a contract by Ms. Gonzalez that she
was constitutionally required to fulfill. Fatal to Appellant’s claim is the fact
that he totally fails to articulate any facts upon which this court can find the
existence of a contractual obligation on the part of Ms. Gonzalez. “A breach
of contract action involves: (1) the existence of a contract; (2) a breach of a
duty imposed by the contract; and (3) damages.” Braun v. Wal-Mart
Stores, Inc., 24 A.3d 875, 896 (Pa.Super. 2011) aff'd, 106 A.3d 656 (Pa.
2014). A contract can be “manifested orally, in writing, or as an inference
from the acts and conduct of the parties.” Id. Herein, Appellant fails to set
forth any legal basis upon which we can conclude Ms. Gonzalez was
contractually obligated to prescribe him shampoo and vitamins.
In his complaint, Appellant also averred the existence of fraud.
[F]raud must be averred with “particularity.” Pa.R.Civ.P. Rule
1019(b). This Court has stated that although it is impossible to
establish precise standards as to the degree of particularity
required under this rule, two conditions must be met to fulfill the
requirement: (1) the pleadings must adequately explain the
nature of the claim to the opposing party so as to permit the
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preparation of a defense, and (2) they must be sufficient to
convince the court that the averments are not merely
subterfuge. Bata v. Central-Penn National Bank, 423 Pa.
373, 380, 224 A.2d 174, 179 (1966), cert. denied, 386 U.S.
1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967).
....
A cause of action for fraudulent misrepresentation is comprised
of the following elements: “(1) a misrepresentation, (2) a
fraudulent utterance thereof, (3) an intention by the maker that
the recipient will thereby be induced to act, (4) justifiable
reliance by the recipient upon the misrepresentation and (5)
damage to the recipient as the proximate result.” Scaife Co. v.
Rockwell-Standard Corp., 446 Pa. 280, 285, 285 A.2d 451,
454 (1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2459, 32
L.Ed.2d 806 (1972).
Martin v. Lancaster Battery Co., 606 A.2d 444, 448 (Pa. 1992).
Herein, the complaint did not set forth that Ms. Gonzalez made a
fraudulent misrepresentation. She consistently maintained that Appellant
had no clinical need for dandruff shampoo and vitamins. Hence, Appellant’s
complaint did not contain a viable cause of action for fraud.
Appellant also complains that he should have been permitted to amend
his complaint.
Even where a trial court sustains preliminary objections on
their merits, it is generally an abuse of discretion to dismiss a
complaint without leave to amend. There may, of course, be
cases where it is clear that amendment is impossible and where
to extend leave to amend would be futile. However, the right to
amend should not be withheld where there is some reasonable
possibility that amendment can be accomplished successfully.
In the event a demurrer is sustained because a complaint is
defective in stating a cause of action, if it is evident that the
pleading can be cured by amendment, a court may not enter a
final judgment, but must give the pleader an opportunity to file
an amended pleading.
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Hill v. Ofalt, 85 A.3d 540, 557 (Pa.Super. 2014) (emphasis in original;
citation omitted).
After review, we conclude that there was no reasonable possibility that
the complaint could have been amended to state a viable cause of action,
and, on appeal, Appellant certainly provides no facts to support a contrary
conclusion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2016
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