Pipe, E. v. Shepherd, W. ( 2016 )

J. A06015/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ELIZABETH PIPE, INDIVIDUALLY AND AS : IN THE SUPERIOR COURT OF
ADMINISTRATRIX FOR THE ESTATE OF : PENNSYLVANIA
JASON PIPE :
:
Appellant :
:
v. :
:
WILLIAM C. SHEPHERD, M.D., CARSON :
THOMPSON, M.D., ROBERT PACKER :
HOSPITAL, CORNING HOSPITAL T/D/B/A :
GUTHRIE CORNING DEVELOPMENT :
HOSPITAL, INC. GUTHRIE CLINIC LTD :
T/D/B/A GUTHRIE CLINIC, A :
PROFESSIONAL CORPORATION T/D/B/A :
GUTHRIE CLINICS GROUP PRACTICE :
PARTNERSHIP, LLP :
: No. 948 MDA 2015
Appeal from the Order Entered April 27, 2015
In the Court of Common Pleas of Bradford County
Civil Division No(s).: 11 MM 000285
BEFORE: LAZARUS, J., STABILE ,J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 03, 2016
Appellant, Elizabeth Pipe, individually and as administratrix for the
estate of Jason Pipe (“Decedent”), appeals from the Order entered in the
Bradford County Court of Common Pleas on April 27, 2015. The Order
sustained the Preliminary Objections regarding improper venue filed by
Appellee Corning Hospital, sustained the Preliminary Objections regarding
personal jurisdiction filed by Appellee William C. Shepherd, M.D., and
dismissed Appellant’s claims against Appellees. We affirm.
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We summarize the facts and procedural history of this medical
malpractice case as follows. On February 25, 2009, Decedent underwent
benign brain tumor surgery at Robert Packer Hospital in Bradford County,
Pennsylvania. Decedent reported headaches and hallucinations following the
surgery, but the hospital discharged him on March 3, 2009.
Over the next two days, Decedent’s symptoms worsened and a
physician at Robert Packer Hospital instructed him to report to Appellee
Corning Hospital in Corning, New York for a cranial CT scan. Appellee
William C. Shepherd, M.D. and other medical support staff cared for
Decedent.
Several days later, after Appellee Corning Hospital had discharged
Decedent, Decedent’s condition worsened; he was delirious, incoherent, and
not ambulatory. Decedent presented to the emergency room at Robert
Packer Hospital on March 9, 2009, wherein he underwent a spinal tap.
Doctors at Robert Packer Hospital diagnosed Decedent with meningitis.
Decedent spent almost 11 weeks in Robert Packer Hospital before being
released. On February 15, 2010, Decedent died due to complications from
meningitis.
On March 4, 2011, Appellant commenced a civil action against five
defendants, including Appellees herein, for medical malpractice in the United
States District Court for the Middle District of Pennsylvania. With respect to
the parties to the instant appeal, Appellant specifically claimed that Appellee
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Corning Hospital is vicariously liable as a result of the care provided by its
agent Appellee Shepherd. On June 21, 2011, Appellees filed a motion to
dismiss the action asserting lack of complete diversity between the parties.
On June 23, 2011, Appellant filed a Notice of Voluntary Dismissal with
the federal court. On July 20, 2011, Appellant filed a “Praecipe to Enter a
Foreign Judgment,” along with the pleadings he filed in federal court, in the
Bradford County Court of Common Pleas.
On January 26, 2012, Appellee Shepherd, a doctor who resides in New
York and exclusively practices medicine in New York, filed Preliminary
Objections alleging that Pennsylvania lacked both general and specific
jurisdiction over him and that venue was not proper in Bradford County. On
January 30, 2012, Appellee Corning Hospital also filed Preliminary Objections
on the basis of improper venue.
On February 16, 2012, defendants Carson Thompson, M.D., Robert
Packer Hospital, and Guthrie Clinic, Ltd., and Appellee Corning Hospital filed
a Motion to Strike Appellant’s Praecipe to Enter Foreign Judgment. Appellant
filed a response and the trial court held a hearing on the matter, after which
it granted Appellees’ motion and struck Appellant’s Praecipe to Enter Foreign
Judgment on December 14, 2012.
Appellant filed a timely appeal from the trial court’s December 14,
2012 Order. On May 7, 2014, this Court reversed the trial court’s order,
concluding that, although Appellant had incorrectly captioned its pleading
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“[P]raecipe to [E]nter [F]oreign [J]udgment” instead of “Complaint,” the
“sum and substance of the pleading and its practical effect was to transfer
the action from federal court to state court.” See Pipe v. Shepherd, No.
118 MDA 2013 (unpublished memorandum) (filed May 7, 2014). 1
Following remand, the trial court held a hearing on Appellees’
outstanding Preliminary Objections. On April 3, 2015, the trial court
sustained Appellees’ Preliminary Objections and dismissed Appellant’s claims
against them. The trial court concluded that Pennsylvania’s Long Arm
Statute, 42 Pa.C.S. § 5322(a)(4), did not provide a basis for specific
jurisdiction over Appellees. Trial Ct. Op., 9/15/15, at 5 (unpaginated). The
trial court also determined that the version of Pa.R.C.P. 1006 in effect at the
time Appellant filed her Complaint did not establish the basis for venue for a
cause of action arising out of state. Consequently, Bradford County was an
inappropriate venue for claims against Appellee Corning Hospital.
Appellant filed an Emergency Application for an Express Determination
of Finality pursuant to Pa.R.A.P. 341(c),2 which the trial court granted on
April 27, 2015.
1
Henceforth, Appellant’s “Praceipe to Enter Foreign Judgment” is treated as
a Complaint.
2
Pa.R.A.P. 341(c) provides in relevant part: “Where more than one claim for
relief is presented in an action . . . or where multiple parties are involved,
the trial court . . . may enter a final order as to one or more but fewer than
all of the claims and parties upon an express determination that an
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Appellant filed a timely notice of appeal on May 28, 2015. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following two issues on appeal:
1. Whether the trial court erred when it sustained
[Appellee’s] Preliminary objection regarding proper venue
for [Appellee] Corning Hospital, when this claim was
properly transferred from the Middle District of
Pennsylvania to the Bradford County Court of Common
Pleas pursuant to Pa.R.C.P. 1006(a.1) and 1006(c)(2),
applicable on July 20, 2011, and therefore Bradford County
is the proper venue for [Appellee] Corning Hospital?
2. Whether the trial court erred with it sustained
[Appellee’s] Preliminary Objection regarding jurisdiction for
[Appellee] Shepherd, when the Bradford County Court of
Common Pleas has personal jurisdiction over [Appellee]
Shepherd because [Appellee] Shepherd is an agent of
[Appellee] Corning Hospital, and, by way of the
Pennsylvania Long Arm Statute, minimum contacts
analysis, and admission of [Appellee] Corning Hospital, the
Bradford County Court of Common Pleas has jurisdiction
over [Appellee] Corning Hospital and therefore jurisdiction
over [Appellee] Shepherd?
Appellant’s Brief at 2.
Appellant first claims that the trial court erred in sustaining Appellee
Corning Hospital’s Preliminary Objections and dismissing Appellant’s claims
against the hospital. Appellant argues that, under the version of Pa.R.C.P.
1006(a.1) and 1006(c)(2) in effect at the time she filed her Complaint, the
immediate appeal would facilitate resolution of the entire case.” Pa.R.A.P.
341(c).
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Bradford County Court of Common Pleas was the proper venue for an action
against Appellee Corning Hospital.3
Appellant’s issue requires us to interpret and apply the Pennsylvania
Rules of Civil Procedure. This raises a question of law. Barrick v. Holy
Spirit Hosp. of the Sisters of Christian Charity, 32 A.3d 800, 808 (Pa.
Super. 2011). Therefore, “our standard of review is de novo and our scope
of review is plenary.” Id. (citation omitted).
The version of Pa.R.C.P. 1006(a.1) in effect on July 20, 2011, the day
Appellant filed her Complaint in the Bradford County Court of Common
Pleas, provided for proper venue of a medical professional liability claim
only in the county in which the plaintiff’s cause of action arose. See
Pa.R.A.P. 1006(a.1). Rule 1006(c)(1) required that, in a medical
professional liability claim seeking to enforce joint and several liability
against two or more defendants, the action be brought in any county in
which venue was proper against any defendant. See Pa.R.A.P. 1006(c)(1).
Effective August 1, 2011, 12 days after Appellant commenced her
action in Bradford County, Rule 1006 was amended. The Explanatory
Comment published at the time of the amendment explained that:
Currently a lawsuit based on medical treatment
furnished in another state cannot be brought in
Pennsylvania even if the defendants have substantial
3
Both of the subsections of Rule 1006 at issue in the instant matter were
amended effective August 1, 2011, 12 days after Appellant filed her
Complaint.
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contact with the state whereas Pennsylvania defendants
can be sued in any state in which they have at least
minimum contacts. The amendment to this rule would
eliminate this discrepancy.
Pa.R.C.P. 1006 Venue. Change of Venue, Explanatory Comment—2011
(emphasis added). The amended version of Rule 1006 is not applicable in
the instant case.
In Searles v. Estrada, 856 A.2d 85 (Pa. Super. 2004), this Court
considered the same pre-amendment version of Rule 1006 in an analogous
circumstance. There, the plaintiffs filed a medical professional liability action
in Northampton County against the defendant doctor arising from a surgical
procedure that took place in New Jersey. Id. at 87, 89. The doctor filed
Preliminary Objections in the nature of a Motion to Dismiss for improper
venue, pursuant to Pa.R.C.P. 1006(a.1), which the trial court overruled. Id.
at 87. On appeal, this Court reversed, holding that Northampton County
was not the proper venue for a medical professional liability action where the
cause of action arose in New Jersey. Id. at 92-93. This Court concluded
that, “the venue rules permit a trial court to dismiss a medical professional
liability action when the cause of action arose outside of Pennsylvania.” Id.
at 92.
In the instant matter, the trial court concluded that “any failure to
diagnose and treat by [Appellee] Shepherd [at Appellee Corning Hospital]
originated in New York State[]” and thus, Appellant’s cause of action against
Appellees Corning Hospital and Shepherd arose from “out of state medical
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treatment.” Trial Court Op. at 5, 7 (unpaginated). Appellant baldly states,
however, that her cause of action arose in Bradford County. Appellant’s
Brief at 10. We disagree with Appellant and agree with the trial court’s
conclusion that Appellant’s cause of action against Appellees Corning
Hospital and Shepherd arose in New York.
To determine where Appellant’s cause of action arose, we must look to
the facts alleged in her Complaint. Searles, 856 A.2d 85. In the Complaint,
Appellant alleged that on March 5, 2009, Decedent presented to Appellee
Corning Hospital in Corning, New York, for a head CT scan. At the time of
the head CT scan, Decedent was in such severe pain that he presented to
Appellee Corning Hospital’s emergency room for treatment. Upon
examination, Appellee Shepherd noted that Decedent had had a headache
for several days and an elevated temperature. Appellee Shepherd ordered
Decedent an injection of Dilaudid, and injection of Phenogram, started him
on Percocet, and discharged him with prescriptions for Percocet and Flexeril.
Appellant claims that Appellee Shepherd, as an agent of Appellee Corning
Hospital, failed to diagnose and treat Decedent’s meningitis and negligently
discharged Decedent from Appellees Shepherd and Corning Hospital’s care.
See Complaint, 7/20/11, at ¶ 7, 21, 23-24, 26-28, 50-52, 57-58. Appellant
does not aver that Appellee Shepherd treated Decedent in Pennsylvania, and
does not claim that Appellee Shepherd’s actions or omissions took place
anywhere other than in New York.
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This Court recently considered the situs of a cause of action for
purposes of medical professional liability actions in Mendel v. Williams, 53
A.3d 810 (Pa. Super. 2012). In Mendel, the plaintiff patient alleged in her
Complaint, filed in the Philadelphia County Court of Common Pleas, that a
New Jersey doctor working in a New Jersey facility failed to timely diagnose
and treat her for an infection that arose following back surgery that took
place in a Pennsylvania hospital, and that this negligence resulted in her
paralysis. Id. at 815. The Mendel court affirmed the trial court’s order
dismissing the plaintiff’s action against the New Jersey hospital, reasoning
that, “the mere fact that [plaintiff’s] paralysis was discovered in
Pennsylvania, or that it manifested in Pennsylvania, does not necessarily
mean it was caused in Pennsylvania.” Id. at 823 (emphasis in original).
Further, this Court concluded that any harm resulting from the defendant
doctor and hospital’s delay in diagnosing and treating the plaintiff began
when the plaintiff was a patient in the New Jersey hospital. Id. at 823-24.
The Court opined, “[t]hat the harm may have continued in Pennsylvania and
was ultimately discovered in Pennsylvania does not alter the fact that it
originated in New Jersey.” Id. at 824 (citation omitted).
Informed by the factual averments in Appellant’s Complaint and this
Court’s reasoning in Mendel, supra, we conclude Appellant’s cause of action
against Appellees arose in New York. Reading Rules 1006(a.1) and
1006(c)(1) together, and guided by the Rule’s Explanatory Comment, we
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further conclude that the trial court did not err in determining that the
Bradford County Court of Common Pleas is not the proper venue for
Appellant’s claims against Appellee Corning Hospital, and in dismissing
Appellant’s Complaint. See Searles, 865 A.2d at 92.
Appellant next claims that the trial court erred in sustaining Appellee
Shepherd’s Preliminary Objections and dismissing Appellant’s claims against
the doctor. Appellant argues that the Bradford County Court of Common
Pleas has jurisdiction over Appellee Shepherd because Appellee Shepherd is
an agent of Appellee Corning Hospital over whom the Bradford County Court
of Common Pleas has jurisdiction under Pennsylvania’s Long Arm Statute, 42
Pa.C.S. § 5322(b), the minimum contacts test,4 and Appellee Corning
Hospital’s own admission. Appellant’s Brief at 13-16. Specifically, Appellant
claims that, because Appellee Corning Hospital did not contest jurisdiction,
Appellee Shepherd, as Corning Hospital’s agent, is also subject to the
jurisdiction of the Pennsylvania courts. Id. at 15-16.
Appellee Shepherd argues that Appellant’s conclusion is flawed
because Appellant “improperly inverted the agency relationship to impute
4
To satisfy the Due Process Clause, it must be shown that the defendant has
purposefully established minimum contacts with the forum state. “Where a
defendant has established no meaningful contacts, ties or relations with the
forum, the Due Process Clause prohibits the exercise of personal jurisdiction.
However where a defendant has purposefully directed his activities at the
residents of the forum, he is presumed to have fair warning that he may be
called to suit there.” Mendel, 53 A.3d at 817 (citation and quotation
omitted).
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[Appellee Corning Hospital’s minimum] contacts upon [Appellee] Shepherd.”
Appellee Shepherd’s Brief at 4.
When reviewing a trial court’s order sustaining preliminary objections
challenging personal jurisdiction we will reverse the trial court’s decision only
where there has been an error of law or abuse of discretion. Mendel, 53
A.3d at 816.
We agree with the trial court that Pennsylvania lacks jurisdiction over
Appellee Shepherd, albeit on grounds other than that found by the trial
court.5 See Liberty Mutual Ins. Co. v. Domtar Paper Co., 77 A.3d
1282, 1286 (Pa. Super. 2013) (“It is well settled that this Court may affirm
the decision of the trial court if it is correct on any grounds.”).
Appellant’s sole basis for asserting her claim that Appellee Shepherd is
subject to Pennsylvania jurisdiction is that Shepherd is an agent of Appellee
Corning Hospital, who Appellant avers is itself subject to Pennsylvania
jurisdiction based on its minimum contacts with Pennsylvania. However,
Appellant fails to cite to any controlling authority to support her claim that,
as an employee of Appellee Corning Hospital, Pennsylvania’s jurisdiction over
Corning Hospital can be imputed to Appellee Shepherd. Accordingly, we
find Appellant’s argument waived. See Pa.R.A.P. 2119(a); In re Estate of
5
Relying on the rationale in Mendel, supra, the trial court in the instant
matter concluded that Pennsylvania’s Long Arm Statute, 42 Pa.C.S. §
5322(b), did not provide a basis for specific personal jurisdiction over
Appellee Shepherd or Appellee Corning Hospital. Trial Ct. Op. at 5
(unpaginated).
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Whitley, 50 A.3d 203, 209-10 (Pa. Super. 2012) (“Failure to cite relevant
legal authority constitutes waiver of the claim on appeal.”).6
Because Appellant has not argued on appeal that Pennsylvania has an
independent basis through which it may exercise jurisdiction over Appellee
Shepherd, we conclude that the trial court properly sustained Appellee
Shepherd’s preliminary objections and dismissed Appellant’s claims against
him.
Order affirmed. Jurisdiction relinquished. Case remanded.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2016
6
This court also could not find any legal basis to support Appellant’s
argument that because the trial court has jurisdiction over Appellee Corning
Hospital, it has jurisdiction over the hospital’s agent, Appellee Shepherd.
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