Jordan, E. v. PSU ( 2022 )


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  • J-A05031-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    ELLISON O. JORDAN                          :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellant               :
    :
    :
    v.                             :
    :
    :
    THE PENNSYLVANIA STATE                     :   No. 76 MDA 2021
    UNIVERSITY, SANDY BARBOUR,                 :
    CHARMELLE GREEN, JAMES                     :
    FRANKLIN, ANDY MUTNAN, RENEE               :
    MESSINA, SCOTT A. LYNCH, M.D.,             :
    PETER H. SEIDENBERG, M.D., JOHN            :
    S. REID, M.D., BRENDAN M. CARR,            :
    TIM BREAM, WES SOHNS, PENN                 :
    STATE HEALTH, MILTON S. HERSHEY            :
    MEDICAL CENTER, PENN STATE                 :
    HERSHEY MEDICAL GROUP, AND                 :
    MOUNT NITTANY HEALTH                       :
    Appeal from the Order Entered December 4, 2020
    in the Court of Common Pleas
    of Centre County Civil Division at No(s): 20-0028
    BEFORE:      OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
    MEMORANDUM BY STEVENS, P.J.E.:                       FILED: APRIL 12, 2022
    Appellant, Ellison O. Jordan, appeals pro se from the December 4,
    20201 order sustaining the preliminary objections filed by Appellees, The
    Pennsylvania State University, Sandy Barbour, Charmelle Green, and James
    Franklin (hereinafter, “University Appellees”); granting the petitions filed by
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    1 Appellant erroneously refers to this order as having been entered on
    December 8, 2020.
    J-A05031-22
    Appellees, Scott A. Lynch, M.D., Mount Nittany Health, Andy Mutnan, Renee
    Messina, Brendan M. Carr, Tim Bream, Wes Sohns, Peter H. Seidenberg, M.D.,
    John S. Reid, M.D., Penn State Health, Milton S. Hershey Medical Center, and
    the Penn State Hershey Medical Group (thereafter, “Healthcare Appellees”),
    to hold Appellant in contempt of court; and dismissing Appellant’s amended
    complaint and supplemental amended complaint with prejudice.           Appellant
    also appeals from the December 23, 2020 order denying his motion to recuse
    President Judge Pamela A. Ruest from this case. For the following reasons,
    we affirm.
    The trial court summarized the relevant facts and lengthy procedural
    history of this case as follows:
    This case arises from injuries [Appellant] allegedly
    sustained during his time as a student-athlete on the
    Penn State University football team between June
    2016 and August 2019. [Appellant’s] cause of action
    specifically focuses on his treatment following a
    December 27, 2017 surgery to repair a right knee
    patellar fracture he suffered while practicing for the
    Fiesta Bowl in Phoenix, Arizona. [Appellant] alleges
    he reinjured his knee on January 8, 2018 while
    receiving treatment from Wes Sohns, which required
    [Appellant] to undergo surgery on January 12, 2018.
    In April 2018, [Appellant] reported feeling pain and
    discomfort in his right knee. In September 2018,
    [Appellant] was evaluated for reported pain and
    swelling in his right knee, which was attributed to
    tendinitis and the prominence of the plate placed
    during surgery, but did not rule out the possibility of
    an infection.
    Between September and November 2018, [Appellant]
    continued to experience right knee pain and
    [Appellant] underwent a right knee arthroscopy on
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    J-A05031-22
    November 21, 2018.         On November 25, 2018,
    [Appellant] and his parents attended a meeting with
    fifteen (15) representatives of Penn State University,
    who asked [Appellant] to sign a document voluntarily
    withdrawing himself from the football team. On
    December 30, 2018, [Appellant] was taken to the
    Emergency Room due to extreme knee pain and
    swelling. [Appellant] informed James Franklin on
    January 5, 2019 that his right knee was infected and
    [Appellant] underwent surgery to address the
    infection on January 8, 2019. On August 19, 2019,
    [Appellant] was removed from the Penn State football
    team.
    [Appellant] originally filed a complaint on January 31,
    2020 based on a theory of medical malpractice.
    University [Appellees] filed preliminary objections on
    February 24, 2020. [Appellant] filed a certificate of
    merit for each [Appellee] on February 28, 2020, but
    failed to file a written statement from an appropriate
    licensed professional with the certificates of merit. All
    of the named [Appellees] other than the University
    [Appellees] filed a Notice of Intention to Enter
    Judgment of Non Pros for Failure to File a Written
    Statement from an Appropriate Licensed Professional
    between March 4 and March 11, 2020. [Appellant]
    filed an Answer to [Appellees’] Notices on April 17,
    2020. On May 12 and May 13, 2020, the Centre
    County Prothonotary’s Office entered Judgment of
    Non Pros in favor of all [Appellees] other than the
    University [Appellees].
    On June 1, 2020, [Appellant] filed a Petition for Relief
    of Judgment of Non Pros requesting the court strike
    the judgments and restore [Appellant’s] complaint in
    its entirety. Between June 12 and June 22, 2020,
    each of the [Appellees] filed a response seeking to
    uphold their Judgment of Non Pros. A hearing was
    held on June 25, 2020. On July 15, 2020, the court
    entered an opinion and order denying [Appellant’s]
    petition for relief, sustaining the University
    [Appellees’] preliminary objections, and dismissing
    [Appellant’s] medical malpractice claims with
    prejudice.     The court dismissed [Appellant’s]
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    J-A05031-22
    complaint and allowed [Appellant] to file an amended
    complaint within twenty (20) days against only the
    University [Appellees] and only raising potential
    claims of intentional or negligent infliction of
    emotional     distress    and    ordinary   negligence.
    [Appellant] filed a petition for reconsideration on July
    24, 2020, which was denied by the court on July 30,
    2020.
    [Appellant] filed an amended complaint on August 3,
    2020, and a supplemental amended complaint on
    August 12, 2020, both of which included claims
    against all of the [Appellees] from [Appellant’s]
    original complaint. Between August 7 and August 14,
    2020, counsel for all of the [Appellees] except for the
    University [Appellees] sent letters to [Appellant]
    requesting that he remove them from his amended
    complaint or they would seek to hold [Appellant] in
    contempt of court. [Appellant] failed to respond and
    [Appellees Scott A. Lynch, M.D., Mount Nittany
    Health, Andy Mutnan, Renee Messina, Brendan M.
    Carr, Tim Bream, Wes Sohns, Peter H. Seidenberg,
    M.D., John S. Reid, M.D., Penn State Health, The
    Milton S. Hershey Medical Center, and the Penn State
    Hershey Medical Group] each filed a petition to hold
    [Appellant] in contempt of court.
    On August 24, 2020, [Appellant] filed notices of
    intention to enter default judgments against each
    [Appellee] because they allegedly failed to enter a
    written appearance and file in writing with the court
    their defenses or objections to [Appellant’s] amended
    complaint.    University [Appellees] file preliminary
    objections and a brief in support on August 31, 2020.
    [Appellant] filed a praecipe for determination on
    September 3, 2020 alleging University [Appellees’]
    preliminary objections were not filed in accordance
    with Pennsylvania law for failing to serve [Appellant]
    a copy of their preliminary objections. [Appellant]
    filed a response in opposition to University
    [Appellees’] preliminary objections on September 16,
    2020, and an answer to order to show cause on
    October 9, 2020. [Appellant] also filed a statement of
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    J-A05031-22
    support on October 19, 2020. A hearing was held on
    October 12, 2020.
    Trial court opinion, 12/4/20 at 2-4 (extraneous capitalization omitted).
    On December 4, 2020, the trial court entered an opinion and order
    sustaining the University Appellees’ preliminary objections; holding Appellant
    in contempt of court; and dismissing Appellant’s amended complaint and
    supplemental amended complaint with prejudice.         On December 15, 2020,
    Appellant filed a motion to recuse P.J. Ruest from this case, which was denied
    by the trial court on December 23, 2020.
    On January 6, 2021, Appellant filed a notice of appeal. Although not
    ordered to do so, Appellant filed an eight-page Pa.R.A.P. 1925(b) statement
    on May 12, 2021. The trial court filed its Rule 1925(a) opinion on May 20,
    2021, indicating that it was relying on the reasoning set forth in its prior
    opinion and orders entered December 4 and 23, 2020.
    Appellant raises the following issues for our review:
    1.    Did the [trial] court ignore the law, errored [sic]
    in applying the law, misinterpreted [sic] the law
    and/or abuse its discretion in issuing the
    correspondence, in identifying the case as only
    medical malpractice, in processing the case on
    an “aggressive fast track” without any
    established written local procedures, in not
    providing definitive goals and objects and
    making them know to all parties involved and
    denying [Appellant] a right to jury trial as
    demanded?
    2.    Did the [trial] court ignore the law, errored [sic]
    in applying the law, misinterpreted [sic] the law
    and/or abuse its discretion concerning all
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    J-A05031-22
    pleadings, notices, judgments, opinions and
    orders concerning the Certificate of Merit of the
    original Complaint, Amended Complaint and
    Supplemental Amended Complaint?
    3.    Did the [trial] court ignore the law, errored [sic]
    in applying the law, misinterpreted [sic] the law
    and/or abuse its discretion concerning the
    service of process?
    4.    Did the [trial] court ignore the law, errored [sic]
    in applying the law, misinterpreted [sic] the law
    and/or    abuse     its   discretion   concerning
    Preliminary Objections?
    5.    Did the [trial] court ignore the law, errored [sic]
    in applying the law, misinterpreted [sic] the law
    and/or abuse its discretion concerning her
    personal interest in the outcome of the case and
    potential appearance of conflict of interest and
    bias?
    6.    Did the [trial] court ignore the law, errored [sic]
    in applying the law, misinterpreted [sic] the law
    and/or abuse its discretion concerning “special
    relationship”, “duty of care”, “standard of care”,
    “preventative measures”, “heightened duty of
    care”,    “unreasonable       risk    of    harm”,
    “foreseeability of harm”, “duty to convey”, “duty
    to exercise reasonable care”, “affirmative duty”,
    “an act within scope of employment”,
    “nondelegable duty”, “breach of duty”, “breach
    of duty was more likely than not (i.e.,
    probably”) the cause of the injury” and “proper
    medical treatment”[?]
    7.    Did the [trial] court ignore the law, errored [sic]
    in applying the law, misinterpreted [sic] the law
    and/or    abuse     its   discretion   concerning
    processing the civil complaint?
    Appellant’s brief at 5-7.
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    J-A05031-22
    Our standard of review of a challenge to a trial court’s decision to
    grant preliminary objections is as follows:
    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.
    Feingold v. Hendrzak, 
    15 A.3d 937
    , 941 (Pa.Super. 2011) (citation
    omitted).
    This Court has explained our standard of review for a civil contempt
    order as follows:
    When considering an appeal from an Order holding a
    party in contempt for failure to comply with a court
    Order, our scope of review is narrow: we will reverse
    only upon a showing the court abused its discretion.
    The court abuses its discretion if it misapplies the law
    or exercises its discretion in a manner lacking reason.
    Harcar v. Harcar, 
    982 A.2d 1230
    , 1234 (Pa.Super. 2009) (citations omitted).
    Preliminarily, we must address whether Appellant has properly
    preserved all of his claims on appeal. Our review of the disjointed “Argument”
    section in Appellant’s 68-page pro se brief reveals that a number of his claims
    take issue with the trial court’s entry of Judgments of Non Pros for Failure to
    File Written Statement from Appropriate Licensed Professional.             See
    Appellant’s brief at 24-37.
    As discussed, on May 12 and 13, 2020, Judgments of Non Pros were
    entered in favor of all Appellees other than the University Appellees. Appellant
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    J-A05031-22
    subsequently filed a petition for relief from the Judgments of Non Pros
    requesting the trial court strike the judgments and restore his complaint in its
    entirety. Thereafter, each of the Appellees filed a response seeking to uphold
    their Judgment of Non Pros. Following a hearing, the trial court entered an
    opinion an order on July 15, 2020 denying Appellant’s petition for relief;
    dismissing the medical malpractice claims in his complaint with prejudice; and
    directing Appellant that his amended complaint could only raise claims against
    the University Appellees for intentional or negligent infliction of emotional
    distress and ordinary negligence. See “Opinion and Order,” 7/15/20 at 12-
    13. Appellant filed a petition for reconsideration which was denied on July 30,
    2020.
    This Court has long recognized that “[a]ny appeal related to a judgment
    of non pros lies not from the judgment itself, but from the denial of a petition
    to open or strike.” Cardona v. Buchanan, 
    230 A.3d 476
    , 479 (Pa.Super.
    2020) (citation omitted).     Under Pa.R.A.P. 311(a)(1), an appeal from an
    interlocutory order refusing to open, vacate or strike off a judgment is deemed
    final and subject to attack on appeal without reference to Pa.R.A.P. 341(c).
    Hammel v. Hammel, 636 A.2d. 214, 217 (Pa.Super. 1994) (citation
    omitted). Notably, the “[f]ailure to timely appeal from an order denying a
    petition to open, vacate, or strike off a judgment renders any attack of that
    order untimely and waived.” Blackburn v. King Inv. Grp., LLC, 
    162 A.3d 461
    , 464 (Pa.Super. 2017) (citation omitted).
    -8-
    J-A05031-22
    Instantly, the record reflects that Appellant’s January 6, 2021 notice of
    appeal makes no mention of the trial court’s July 15, 2020 order denying his
    petition for relief from Judgment of Non Pros, nor the July 30, 2020 order
    denying his petition for reconsideration of relief from Judgment of Non Pros.2
    Although Appellant baldly contends in his brief that he is seeking “reversal of
    all the lower court’s opinions and orders … and judgments,” his notice
    of appeal indicates that he is only appealing from the trial court’s December 4
    and December 23, 2020 orders. See Appellant’s brief at 1 (emphasis added);
    Appellant’s “Notice of Appeal,” 1/6/21.
    Appellant’s failure to appeal from the trial court’s July 15, 2020 order
    renders his appeal procedurally deficient because neither of the trial court’s
    December 2020 orders directly addresses the Judgments of Non Pros
    Appellant purports to challenge on appeal.
    Pennsylvania Rule of Appellate Procedure 904 requires a petitioner to
    specifically identify in his notice of appeal the order from which he wishes to
    appeal. Pa.R.A.P. 904(a). Moreover, this Court has long recognized that,
    although [we are] willing to liberally construe
    materials filed by a pro se litigant, pro se
    status confers no special benefit upon the
    ____________________________________________
    2 We note that any attempt by Appellant to appeal from the July 30, 2020
    order denying the petition for reconsideration would have nonetheless been
    improper. An order denying a motion for reconsideration is not appealable.
    See Huntington Nat. Bank v. K–Cor, Inc., 
    107 A.3d 783
    , 787 (Pa.Super.
    2014) (stating, “Pennsylvania case law is absolutely clear that the refusal of
    a trial court to reconsider, rehear, or permit reargument of a final decree is
    not reviewable on appeal.”), appeal denied, 
    117 A.3d 1281
     (Pa. 2015).
    -9-
    J-A05031-22
    appellant. To the contrary, any person choosing
    to represent himself in a legal proceeding must,
    to a reasonable extent, assume that his lack of
    expertise and legal training will be his undoing.”
    Wilkins v. Marsico, 
    903 A.2d 1281
    , 1284–1285 (Pa.Super. 2006) (citations
    and internal quotation marks omitted), appeal denied, 
    918 A.2d 747
     (Pa.
    2007).
    Accordingly, Appellant’s failure to appeal the trial court’s July 15, 2020
    order denying his petition for relief from Judgment of Non Pros renders all his
    claims related to this order waived. See Blackburn, 
    162 A.3d at 464
    ; see
    also Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court are
    waived and cannot be raised for the first time on appeal.”).
    We now turn to Appellant’s claim that the trial court’s December 23,
    2020 order denying his motion to recuse P.J. Ruest from this case was
    improper because of her “impartiality , bias, and a personal interest in the
    outcome of [this] case.”     Appellant’s brief at 38-41; see also “Motion to
    Recuse,” 12/15/20 at ¶ 1. For the reasons that follow, we find that this claim
    is time barred.
    It is well settled that “a party may not raise the issue of judicial prejudice
    or bias for the first time in post[-]trial proceedings.” Ware v. U.S. Fid. &
    Guar. Co., 
    577 A.2d 902
    , 905 (Pa.Super. 1990) (citation omitted). On the
    contrary, “a party seeking recusal or disqualification on the basis of judicial
    bias or impartiality “[is required] to raise the objection at the earliest possible
    moment, or that party will suffer the consequence of being time barred.” In
    - 10 -
    J-A05031-22
    re Lokuta, 
    11 A.3d 427
    , 437 (Pa. 2011) (citations omitted; brackets in
    original), cert. denied, 
    565 U.S. 878
     (2011).       “The timeliness of such an
    application is particularly troubling where a party seeks disqualification only
    after receiving adverse judgment.”        League of Women Voters of Pa. v.
    Commonwealth, 
    179 A.3d 1080
    , 1086 (Pa. 2018) (citation omitted).
    Instantly, the record reflects that Appellant failed to raise his claim of
    judicial bias at the earliest possible opportunity. Appellant’s motion to recuse
    was filed on December 15, 2020, more than 7 months after P.J. Ruest entered
    her first order in this case on May 12, 2020, and only eleven days after P.J.
    Ruest entered an order dismissing Appellant’s amended complaint and
    supplemental amended complaint with prejudice.         Based on the foregoing,
    Appellant’s recusal claim was clearly time-barred and its denial by the trial
    court was warranted.
    Appellant’s remaining claims concern the trial court’s December 4, 2020
    order sustaining the University Appellees’ preliminary objections; granting the
    Healthcare Appellees’ petitions to hold Appellant in contempt of court; and
    dismissing his amended complaint and supplemental amended complaint with
    prejudice. See Appellant’s brief at 38-59.
    As best we can discern from his somewhat befuddling and convoluted
    appellate brief, Appellant takes issue with the trial court’s rejection of his
    claims for negligent or intentional infliction of emotional distress and ordinary
    negligence   against   the   University   Appellees, as well    as the   court’s
    - 11 -
    J-A05031-22
    determination that he should be held in contempt of court for continuing to
    pursue action against the Healthcare Appellees in his supplemental amended
    complaint after the trial court explicitly ordered him not to do so.
    Following our careful review of the record, including the briefs of all the
    parties and the applicable case law, and in light of this court’s scope and
    standard of review, it is our determination that there is no merit to Appellant’s
    remaining claims on appeal.            We agree with the trial court that all of
    Appellant’s cognizable issues on appeal were adequately disposed of in its
    December 4, 2020 opinion and order.                Accordingly, we adopt the well-
    reasoned opinion of the Honorable Pamela A. Ruest as our own for purposes
    of this appellate review and affirm on the basis of the reasoning stated therein.
    Orders affirmed.3
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 4/12/2022
    ____________________________________________
    3 We note that it is well-settled law that “a pro se litigant must comply with
    the procedural rules set forth in the Pennsylvania Rules of the Court.” Ebbert
    v. Mest, 
    2016 WL 5266540
    , at *1 (Pa.Super. 2016), citing Commonwealth
    v. Lyons, 
    833 A.2d 245
    , 251-252 (Pa.Super. 2003).
    - 12 -
    Circulated
    Received 2/8/2021 257.02 PM  Superior03/21/2022 11:22
    Court Middle    AM
    District
    Filed 2/8/2021 2.57.00 PM Superior Court Middle District
    76 MDA 2021
    IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
    CIVIL ACTION-LAW
    ELLISON 0. JORDAN
    Plaintiff
    v.                                                     No. 2020-0028
    THE PENNSYLVANIA STATE
    UNIVERSITY, SANDY BARBOUR,
    CHARMELLE GREEN, JAMES FRANKLIN,
    ANDY MUTNAN, RENEE MESSINA,
    SCOTT A. LYNCH, M.D., PETER H.
    SEIDENBERG, M.D., JOHN S. REID, M.D.,
    BRENDAN M. CARR, TIM BREAM,
    WES SOHNS, PENN STA TE HEALTH,
    TIE MILTON S. HERSHEY MEDICAL
    CENTER, PENN STATE HERSHEY
    MEDICAL GROUP, and MOUNT
    NITT ANY HEAL TH,
    Defendants
    Attorney for Plaintiff.                                                Pro Se
    Attorney for Defendants PSU, Sandy Barbour, Charmelle
    Green, and James Franklin:                                           James P. DeAngelo, Esq.
    Attorney for Defendants Andy Mutnan, Renee Messina,
    Brendan Carr, Tim Bream, and Wes Sohns:                              .Joe H. Tucker, Esq.
    Attorney for Defendant Scott A. Lynch, M.D.:                           Wiley P. Parker, Esq.
    Attorney for Defendants Peter H. Seidenberg, M.D., John
    S. Reid, M.D., Penn State Health, The Milton S. Hershey
    Medical Center, and Penn State Hershey Medical Group:                April C. Simpson, Esq.
    Attorney for Defendant Mount Nittany Health:                           Brian J. Bluth, Esq.
    OPINION and ORDER
    Ruest, P.J.
    Presently before the Court arc Petitions to Hold Ellison 0. Jordan ("Plaintiff'') in
    Contempt of Court filed on August 24, 2020 by Defendant Scott A. Lynch, M.D., Defendants
    Andy Mutnan, Renee Messina, Brendan Carr, Tim Bream, and Wes Sohns, and Defendants Peter
    H. Seidenberg, M.D., John S. Reid, M.D., Penn State Health, The Milton S. Hershey Medical
    IO LJRD LS
    Center, and Penn State Hershey Medical Group. Defendant Mount Nittany Health filed a Motion
    to Dismiss and Petition for Contempt on August 28, 2020. Also before the Court are Defendants
    The Pennsylvania State University, Sandy Barbour, Charmelle Green, and James Franklin's
    (collectively, the "University Defendants") Preliminary Objections filed on August 31, 2020 and
    Plaintiffs Praecipe for Default Judgment and Praecipe for Determination filed on September 2,
    2020 and September 3, 2020, respectively. University Defendants filed a Brief in Support on
    August 31, 2020 and Plaintiff filed a Response in Opposition on September 16, 2020. Plaintiff
    also filed a Statement of Support on October 19, 2020. A hearing was held on October 12, 2020.
    Upon the consideration of the arguments of counsel and the filings, the Court finds as follows:
    Background
    This case arises from injuries Plaintiff allegedly sustained during his time as a student-
    athlete on the Penn State University football team between June 2016 and August 2019.
    PlaintifI's cause of action specifically focuses on his treatment following a December 27, 2017
    surgery to repair a right knee patellar fracture he suffered while practicing for the Fiesta Bowl in
    Phoenix, Arizona. Plaintiff alleges he reinjured his knee on January 8, 2018 while receiving
    treatment from Wes Sohns, which required Plaintiff to undergo surgery on January 12, 2018. In
    April 2018, Plaintiff reported feeling pain and discomfort in his right knee. In September 2018,
    Plaintiff was evaluated for reported pain and swelling in his right knee, which was attributed to
    tendinitis and the prominence of the plate placed during surgery, but did not rule out the
    possibility of an infection.
    Between September and November 2018, Plaintiff continued to experience right knee
    pain and Plaintiff underwent a right knee arthroscopy on November 21, 2018. On November 25,
    2018, Plaintiff and his parents attended a meeting with fifteen ( 15) representatives of Penn State
    2
    University, who asked Plaintiff to sign a document voluntarily withdrawing himself from the
    football team. On December 30, 2018, Plaintiff was taken to the Emergency Room due to
    extreme knee pain and swelling. Plaintiff informed James Franklin on January 5, 2019 that his
    right knee was infected and Plaintiff underwent surgery to address the infection on January 8,
    2019. On August 19, 2019, Plaintiff was removed from the Penn State football team.
    Plaintiff originally filed a Complaint on January 31, 2020 based on a theory of medical
    malpractice. University Defendants filed Preliminary Objections on February 24, 2020. Plaintiff
    filed a Certificate of Merit for each Defendant on February 28, 2020, but failed to file a written
    statement from an appropriate licensed professional with the Certificates of Merit. All of the
    named Defendants other than the University Defendants filed a Notice of Intention to Enter
    Judgment of Non Pros for Failure to File a Written Statement from an Appropriate Licensed
    Professional between March 4 and March 11, 2020. Plaintiff filed an Answer to Defendants'
    Notices on April 17, 2020. On May 12 and May 13, 2020, the Centre County Prothonotary's
    Office entered Judgment of Non Pros in favor of all of the Defendants other than the University
    Defendants.
    On June 1, 2020, Plaintiff filed a Petition for Relief of Judgment of Non Pros requesting
    the Court strike the judgments and restore Plaintiff's Complaint in its entirety. Between June 12
    and June 22, 2020, each of the Defendants filed a Response seeking to uphold their Judgement of
    Non Pros. A hearing was held on June 25, 2020. On July 15, 2020, the Cami entered an Opinion
    and Order denying Plaintiff's Petition for Relief, sustaining the University Defendants'
    Preliminary Objections, and dismissing Plaintiff's medical malpractice claims with prejudice.
    The Court dismissed Plaintiffs Complaint and allowed Plaintiff to file an Amended Complaint
    within twenty (20) days against only the University Defendants and only raising potential claims
    3
    of intentional or negligent infliction of emotional distress and ordinary negligence. Plaintiff filed
    a Petition for Reconsideration on July 24, 2020, which was denied by the Court on July 30, 2020.
    Plaintiff filed an Amended Complaint on August 3, 2020, and a Supplemental Amended
    Complaint on August 12, 2020, both of which included claims against all of the Defendants from
    Plaintiffs original Complaint. Between August 7, 2020 and August 14, 2020, counsel for a11 of
    the Defendants except for the University Defendants sent letters to Plaintiff requesting that he
    remove them from his Amended Complaint or they would seek to hold Plaintiff in contempt of
    court. Plaintiff failed to respond and Defendant Lynch, Defendant Mount Nittany Health,
    Defendants Mutnan, Messina, Carr, Bream, and Sohns, and Defendants Seidenberg, Reid, Penn
    State Health, The Milton S. Hershey Medical Center, and Penn State Ilershey Medical Group
    ( collectively, "Petitioners") each filed a Petition to II old Plaintiff in Contempt of Court.
    On August 24, 2020, Plaintiff filed Notices of Intention to Enter Default Judgments
    against each of the Defendants because they allegedly failed to enter a written appearance and
    file in writing with the Court their defenses or objections to Plaintiff's Amended Complaint.
    University Defendants filed Preliminary Objections and a Brief in Support on August 31, 2020.
    Plaintiff filed a Praecipe for Default Judgment on September 2, 2020 against University
    Defendants for their alleged failure to enter a written appearance and file their defenses or
    objections. Plaintiff also filed a Praecipe for Determination on September 3, 2020 alleging
    University Defendants' Preliminary Objections were not filed in accordance with Pennsylvania
    law for failing to serve Plaintiff a copy of their Preliminary Objections. Plaintiff filed a Response
    in Opposition to University Defendant's Preliminary Objections on September 16, 2020, and an
    Answer to Order to Show Cause on October 9, 2020. Plaintiff also filed a Statement of Support
    on October 19, 2020. A hearing was held on October 12, 2020.
    4
    Discussion
    I. Petitions for Contempt
    In order for a party to be held in contempt, "the moving party must prove that: (1) the
    contemnor had notice of the specific order or decree that he disobeyed; (2) the act constituting
    the violation was volitional; and (3) the contemnor acted with wrongful intent." Gunther v.
    Bolus, 
    2004 PA Super 8
    , 
    853 A.2d 1014
    , 1017 (citing Marian Shop, Inc. v. Baird, 
    448 Pa.Super. 52
    , 
    670 A.2d 671
    ,673 (1996)). Petitioners' Petitions for Contempt are requesting that
    the Court hold Plaintiff in civil contempt for failing to comply with the Court's Orders of July
    15, 2020 and July 30, 2020."The purpose of civil contempt is to compel performance of lawful
    orders, and in some instances, to compensate the complainant for the loss sustained, Gunther,
    853 A.2d at 1018 (citing Cecil Township v. Klements, 
    821 A.2d 670
    , 675 (Pa.Commw.2003)).
    Here, Petitioners are seeking to compel performance and receive compensation for the losses
    Petitioners sustained in legal fees and expenses they incurred in pursuing a contempt order and
    their removal from the instant litigation.
    "[I]n civil contempt proceedings the burden is on the complaining party to prove
    noncompliance by a preponderance of the evidence..." Barrett v. Barrett, 
    470 Pa. 253
    ,263,
    368 A.2d 616
    , 621. Petitioners must show by a preponderance of the evidence that Plaintiff had
    notice of the Court's July 15and July 30" Orders, purposely chose to violate the Orders, and
    acted with wrongful intent in violating the Orders. It is clear from the record that Plaintiff had
    actual notice of the July 15 Order as he filed a Petition for Reconsideration of the Order on July
    24, 2020. Plaintiff also had actual notice of the July 30" Order as Plaintiff admits in his
    Supplemental Amended Complaint and in his Answer to Order to Show Cause that the
    Supplemental Amended Complaint was submitted in response to the July 30" Order in an
    5
    attempt to comply with that Order. As such, Plaintiff possessed actual knowledge of both of the
    Orders at issue here.
    Petitioners allege Plaintiff declined to comply with the Court's July 15" and July   30
    Orders when Plaintiff filed an Amended Complaint on August 3, 2020 naming Petitioners as
    defendants and asserting claims against Petitioners. Petitioners argue Plaintiff further refused to
    comply with the Court's Orders by filing a Supplemental Amended Complaint on August 12,
    2020 with claims against Petitioners. Petitioners claim Plaintiff filed his Supplemental Amended
    Complaint even after receiving letters from counsel for Petitioners requesting Plaintiff remove
    Petitioners as defendants in compliance with the Court's Orders and informing Plaintiff that
    Petitioners would petition the Court to have Plaintiff held in contempt if Petitioners were not
    removed.
    The Court's July 15, 2020 Order dismissed Plaintiff's Complaint and stated Plaintiff had
    twenty (20) days to file an Amended Complaint against only the University Defendants and only
    raising potential claims of intentional or negligent infliction of emotional distress and ordinary
    negligence. The rest of the claims in Plaintiff s Complaint, including medical malpractice claims,
    were dismissed with prejudice. The University Defendants were explicitly identified in the Order
    as The Pennsylvania State University, Sandy Barbour, Charmelle Green, and James Franklin.
    The Court's July 30, 2020 Order denied Plaintiff s Petition for Reconsideration and again stated
    Plaintiff could file an Amended Complaint raising claims of intentional or negligent infliction of
    emotional distress and ordinary negligence against only the University Defendants. The Court
    believes these were clear and concise orders stating Plaintiff could only raise particular claims
    against particular defendants, and instructing Plaintiff that he was permitted to bring claims
    against only the University Defendants, and not Petitioners.
    6
    In Plaintiffs Answer to Order to Show Cause, Plaintiff claims the Supplemental
    Amended Complaint complies with the Court's Orders. Plaintiff states he did not receive the
    Court's July 30, 2020 Order until August 6, 2020 so he filed the Amended Complaint before
    receiving the July 30 Order and filed the Supplemental Amended Complaint in response.
    Plaintiff argues the Supplemental Amended Complaint complies with the Court's Orders because
    it is a "Civil Action of Negligence and Vicarious Liability" against The Pennsylvania State
    University and The Pennsylvania State University -Known and Unknown Defendants, which
    Plaintiff identifies as the "University Defendants." Plaintiff states it was his understanding that
    "Known Defendants" must be identified by name in a complaint and Plaintiff named all of the
    Petitioners because at all relevant times Petitioners held multiple positions which made them
    agents, servants, employees, subsidiaries, affiliates, and/or independent contractors to/of the
    Pennsylvania State University. Plaintiff asserts the Court's Orders did not instruct Plaintiff to
    remove the names of specific defendants or the names of individuals alleged to have been
    negligent, but only ordered that Plaintiff could not pursue medical malpractice claims.
    Plaintiff has attempted to expand the definition of the "University Defendants" identified
    by the Court in its Orders to include all of the named defendants from Plaintiffs original
    complaint. Plaintiff cannot bring claims against Petitioners simply by calling them "University
    Defendants" based on their connections to the Pennsylvania State University. The Court
    explicitly stated Plaintiff could bring specific claims against only the University Defendants and
    expressly identified the University Defendants as The Pennsylvania State University, Sandy
    Barbour, Charmelle Green, and James Franklin. The Court's Orders were clear and
    unambiguous. Plaintiff's interpretation does not conform to the plain meaning of the Orders. The
    Amended Complaint and the Supplemental Amended Complaint are both in violation of the
    7
    Court's Orders. Therefore, the second element required for a finding of contempt is satisfied as
    Plaintiff voluntarily filed the Amended Complaint and the Supplemental Amended Complaint in
    violation of the Court's Orders.
    For Plaintiff to be held in contempt, Petitioners must show Plaintiff acted with wrongful
    intent. Petitioners did not offer any direct evidence that Plaintiff acted with wrongful intent,
    however, a party's wrongful intent can often be "inferred from circumstantial evidence." Waggle
    v. Woodland Hills Ass'n, Inc., 213 A,34 397, 403 (Pa.CmwIth. 2019). Plaintiff's wrongful intent
    "can be inferred where it is clear from the language of the court order that the conduct in
    question violates the court order and the evidence shows that the contemnor knowingly failed to
    comply." Id. at 404. "[W]hen making a determination regarding whether a defendant acted with
    wrongful intent, the court should use common sense and consider context, and wrongful intent
    can be imputed to a defendant by virtue of the substantial certainty that his actions will violate
    the court order." Commonwealth • Reese, 
    2017 PA Super 47
    , 
    156 A.3d 1250
    , 1258
    Here, Plaintiffs wrongful intent can be inferred based on the circumstances of Plaintiffs
    actions. It is clear from the language of the Court's Orders that Plaintiffs filings would violate
    the Court's Order. There was a substantial certainty that Plaintiffs actions in filing claims
    against the Petitioners would violate the Court's Orders. Not only did the Court's Orders
    expressly state Plaintiff could only file claims against University Defendants, but Plaintiff also
    received multiple letters from Petitioners informing him his Amended Complaint was in
    violation of the Court's July 15, 2020 Order. Even after the Court's Orders of July 15, 2020 and
    July 30, 2020 and the letters from Petitioners, Plaintiff still filed a Supplemental Amended
    Complaint stating claims against Petitioners. Based on the evidence, Plaintiff knowingly failed to
    comply with the Court's Orders and acted with wrongful intent.
    8
    Plaintiff had actual notice of the Court's Orders he disobeyed, Plaintiffs acts constituting
    the violations were volitional, and Plaintiff acted with wrongful intent. Therefore, the Court
    concludes that Plaintiffs conduct in filing the Amended Complaint and the Supplemental
    Amended Complaint was in violation of the clear mandates of the aforementioned Orders.
    Accordingly, Petitioner's Petitions to Hold Plaintiff in Contempt of Court are GRANTED.
    However, the Court will not award sanctions and attorney's fees to Petitioners, but will
    DISMISS Plaintiffs claims against Petitioners in his Amended Complaint and Supplemental
    Amended Complaint.
    II. Plaintiff's Praecipe for Default Judgment and Praecipe for Determination
    Plaintiff filed a Praecipe for Default Judgment on September 2, 2020 and a Praecipe for
    Determination on September 3, 2020. In Plaintiffs Praecipe for Default Judgment, Plaintiff
    requested the Court enter judgment in favor of Plaintiff and against the University Defendants
    for failure to enter a written appearance and file in writing with the Court their defenses or
    objections to the claims set forth in Plaintiffs Supplemental Amended Complaint. In Plaintiff's
    Praecipe for Determination, Plaintiff requested the Court dismiss University Defendants'
    Preliminary Objections and Brief in Support and enter default judgment in Plaintiffs favor
    because University Defendants' Preliminary Objections were not filed or served in accordance
    with Pennsylvania law. Plaintiff claims the Preliminary Objections were not properly served on
    Plaintiff and University Defendants failed to state the date of service and certify the date and
    manner of service. Plaintiff alleges University Defendants failed to file within the required time
    and did not provide Plaintiff with a notice to defend.
    University Defendants filed their Preliminary Objections with the Court on August 31,
    2020, within the time required for filing. In their Preliminary Objections, University Defendants
    9
    included a Notice to Plead and a Certificate of Service stating the Preliminary Objections had
    been served upon Plaintiff via Electronic Mail and first Class U.S. Mail. University Defendants'
    filing of their Preliminary Objections and Brief in Support did not violate the Pennsylvania Rules
    of Civil Procedure or any other Pennsylvania law. University Defendants' service of process was
    proper under Pa.R.C.P. 403 and 404. Plaintiff resides outside of the Commonwealth and likely
    had yet to receive a copy of the filings in the mail at the time Plaintiff filed his Praecipe for
    Default Judgment and Praecipe for Determination.
    Accordingly, Plaintiff's Praecipe for Default Judgment and Praecipe for Determination
    are DENIED.
    IJJ. The University Defendants' Preliminary Objections
    The University Defendants raise preliminary objections seeking to dismiss Plaintiffs
    Supplemental Amended Complaint because of improper service of a writ of summons and a
    complaint pursuant to Pa.R.C.P. 1028(a)(1); failure to conform to law or rule of court pursuant to
    Pa.R.C.P. 1028(a)(2); and legal insufficiency of a pleading ( demurrer) pursuant to Pa.R.C.P.
    1028(a)(49).
    A. Improper Service
    The Pennsylvania Rules of Civil Procedure require services of process on a corporation
    or similar entity be made by a sheriff, by handing a copy of the writ to an officer, person-in-
    charge, or authorized agent. See Pa.R.C.P. 424. The Pennsylvania Rules of Civil Procedure also
    require service of process on an individual be made by a sheriff, by handing a copy to the
    individual, an adult residing at the individual's residence, or to an agent or person-in-charge of
    the individual's usual place of business. See Pa.R.C.P. 402. In this case, Plaintiff has served the
    Writ of Summons on the University Defendants via certified mail and the Supplemental
    10
    Amended Complaint via email. Plaintiff has failed to effectuate proper service of process on the
    University Defendants. Accordingly, the University Defendants' Preliminary Objection based on
    improper service pursuant to Pa.R.C.P. 1028(a)(l) is SUSTAINED.
    B. Failure to Conform to Law or Rule of Court
    Pa.R.C.P. 1028(a)(2) provides for preliminary objections when a pleading fails to
    confonn to law or rule of court. University Defendants argue most of the claims raised in
    Plaintiff's Supplemental Amended Complaint are impermissible claims and claims already
    dismissed with prejudice. University Defendants assert these claims violate the Court's July 15,
    2020 Order, which dismissed a number of Plaintiffs claims and stated Plaintiff could only raise
    claims for intentional or negligent infliction of emotional distress and ordinary negligence in any
    amended complaint. University Defendants allege eighteen (18) of Plaintiffs twenty-one (21)
    claims raised in the Supplemental Amended Complaint are precluded by the Court's Order.
    Plaintiff also challenges these claims as legally insufficient pursuant to Pa.R.C.P. 1028(a)(4).
    University Defendants assert Plaintiff's claims of Violation of Pennsylvania Law of
    Negligent Performance (Count II), Negligence Ostensible Agency/Restatement (Second) Tort
    (Count IV), Negligence - Informed Consent (Count V), Negligence -- Misrepresentation (Count
    VI), Negligence Hospital-Acquired Infection (Count VII), Misfeasance/Malfeasance (Count
    VIII), Loss of Chance (Count IX), Negligence - Entity/Physician-Patient Relationship (Count X),
    Negligence --Supervision (Count XI), Negligence- Failure to Pay Medical Expenses (Count
    XII), Fraud (Count XV), Negligence- Professional (Count XVI), and Negligence Per Se (Count
    XXI) are all attempts by Plaintiff to couch his medical malpractice claims as some type of
    negligence claim. In addition to the aforementioned claims, University Defendants also maintain
    that Plaintiffs claims of Rreach of Duty/Fiduciary Duty (Count I), Rattery (Count XVII), False
    11
    Imprisonment (Count XVIII), Concerted Tortious Conduet (Count XIX), and Violation of
    Pennsylvania Ant-Hazing Law (Count XX) are barred by the Court's Order. This Court agrees.
    Counts 11, IV, V, VI, VII, VIII, IX, X, XI, XII, XV, XVI, and XXI are all based on
    Plaintiff's medical care and treatment. Each claim mentions and accuses one of the dismissed
    parties of negligence in Plaintiffs medical treatment. Claims of negligent medical care and
    treatment are medical malpractice claims, All of Plaintiffs medical malpractice claims were
    dismissed in the Court's July 15, 2020 Order. Plaintiff cannot now assert medical malpractice
    claims by simply referring to them as negligence claims. Many of these claims are variations of
    claims already dismissed by the Court or are not standalone causes of actions recognized in the
    Commonwealth.
    Violation of Pennsylvania Law of Negligent Performance (Count II) avers multiple
    alleged violations of Restatement (Second) of Torts based on the conduct of Defendant Sohns,
    but does not specify how any actions by the University Defendants violated any section of the
    Restatement. Violations of the Restatement can be alleged in an attempt to establish negligence
    generally, but there is no separate cause of action for violation of Pennsylvania law of negligent
    performance. Negligence - Ostensible Agency/Restatement (Second) Tort (Count IV) is also
    based on medical care and treatment Plaintiff received from the dismissed defendants. Count IV
    states University Defendants had a duty to exercise reasonable care to select a contractor and a
    duty to ensure the safe performance of medical related services, but does not state how
    University Defendants breached these duties. Count IV is essentially alleging vicarious liability
    against University Defendants for Plaintiff's medical treatment by dismissed defendants.
    Negligence- Supervision (Count XI) asserts University Defendants failed to provide proper
    supervision while Plaintiff was being treated, failed to properly instruct and warn of possible
    12
    risks, and, therefore, University Defendants are vicariously liable for negligent acts by dismissed
    defendants during Plaintiffs treatment. Counts II, IV, and XI are not recognized causes of
    action, but may go towards establishing elements of Plaintiff's ordinary negligence claim (Count
    Ill).
    Negligence Informed Consent (Count V), Negligence Hospital-Acquired Infection
    (Count VII), and Negligence - Entity/Physician-Patient Relationship (Count X) are plainly claims
    of medical malpractice being restated as negligence claims. Loss of Chance (Count IX) is
    typically applied in medical malpractice cases. Here, the Loss of Chance claim alleges Plaintiff
    would have had a substantial opportunity of avoiding additional injury and treatment if
    University Defendants had correctly diagnosed and treated the infection. Plaintiffs diagnosis is
    an issue directly related to Plaintiff's medical treatment. University Defendants were not
    involved in the diagnosis or treatment of Plaintiff. Plaintiff cannot bring medical malpractice
    claims against University Defendants.
    Negligence -Misrepresentation (Count VI) and Fraud (Count XV) allege University
    Defendants misrepresented, concealed, and interfered with medical information provided to
    Plaintiff. Both of these claims are medical malpractice claims dealing with Plaintiffs reliance on
    medical information received from dismissed defendants and are similar to Plaintiffs previously
    dismissed civil conspiracy claim. Negligence-Professional (Count XVI) is the same claim as
    the professional malpractice and professional misconduct claims the Court already dismissed.
    Plaintiff's Negligence Per Se claim (Count XXI) fails to identify which statute University
    Defendants allegedly violated and simply states their actions were inherently negligent.
    Misfeasance/Malfeasance (Count VII) is not :recognized in Pennsylvania as a cause of action. See
    Greco • Senchak, CIV.A. 3:12-2576, 
    2013 WL 4520847
    , at 6 (M.D. Pa. Aug. 26, 2013),
    13
    amended on reconsideration in part, CIV.A. 3:12-2576, 
    2013 WL 5755214
     (M.D. Pa. Oct. 23,
    2013) (stating "Pennsylvania law does not recognize such a [Misfeasance/Malfeasance] claim, it
    appears that plaintiff is merely using these words as synonyms for negligence...")
    Concerted Tortious Conduct (Count XIX) is essentially a civil conspiracy claim which
    was previously dismissed with prejudice by the Court's Order. There is no factual basis to
    support Counts l, XVll, XVIII, and XX. Breach of Duty would go toward establishing
    negligence, but is not its own cause of action. Breach of Fiduciary Duty has not been established
    by Plaintiff. Plaintiff also failed to establish causes of action based on battery, false
    imprisonment, and violation of Pennsylvania's Anti-Hazing Law, 18 Pa.C.S.A. § 2801, et seq.
    These claims are also outside of the claims Plaintiff was specifically told he could bring in an
    amended complaint in the Court's July 15, 2020 Order.
    Plaintiff did not aver facts establishing there was an offensive contact by any of the
    University Defendants which would constitute battery. See Restatement (Second) of Torts§ 18
    (1965). Plaintiff also failed to aver facts establishing false imprisonment as University
    Defendants did not confine Plaintiff within boundaries fixed by the University Defendants
    simply because they did not provide Plaintiff with transportation to a medical appointment. See
    Restatement (Second) of Torts § 35 (1965). University Defendants told Plaintiff that he could see
    any medical professional he chose, but he would have to transport himself to those appointments.
    University Defendants offered to reimburse any transportation costs. There is also insufficient
    facts alleged to establish a violation of Pennsylvania's anti-hazing law as University Defendants
    did not cause, coerce or force Plaintiff to violate federal or state criminal law, to consume
    anything, or to endure brutality of a physical, mental, or sexual nature for the purpose of
    initiating or continuing Plaintiffs membership in an organization. See 18 Pa.C.S.A. $ 2802.
    14
    All of the aforementioned claims violate the Court's July 15, 2020 Order which stated
    Plaintiff was only permitted to bring claims based on intentional and negligent infliction of
    emotional distress as well as ordinary negligence. Other than Plaintiffs claims for negligence,
    intentional infliction of emotional distress, and negligent infliction of emotional distress, all of
    the claims contained in the Supplemental Amended Complaint are claims previously dismissed
    with prejudice by the Court. Plaintiff s Supplemental Amended Complaint fails to conform to the
    Court's Order. Accordingly, the University Defendants' Preliminary Objection based on failure
    to conform to law or rule of court pursuant to Pa.R.C.P. 1028(a)(2) is SUSTAINED.
    C. Legal Insufficiency (Demurrer)
    Pa.R.C.P. 1028(a)(4) provides for preliminary objections when a pleading is legally
    insufficient. A demurrer tests whether, based on the facts averred, recovery is possible under the
    law. Bilt-Rite Contractors, Inc, , The Architectural Studio, 
    581 Pa. 454
    , 
    866 A.2d 270
    , 274
    (2005). In considering preliminary objections based on demurrer, "all material facts set forth in
    the challenged pleadings are admitted as true, as well as all inferences reasonably deducible
    therefrom." Albert • Erie Ins. Exchange, 
    2013 PA Super 59
    , 
    65 A.3d 923
    , 930-31 (citing
    Feingold • Hendrak, 
    2011 PA Super 34
    , 
    15 A.3d 937
    , 941). A court is not required to accept
    conclusions oflaw, unwarranted inferences, allegations, or expressions of opinion set forth in the
    pleadings when ruling on preliminary objections. Bayada Nurses, Inc. v. Com., Dept. of Labor
    and Industry, 
    607 Pa. 527
    , 
    8 A.3d 866
     (2010). A court must view all evidence and facts in a
    light most favorable to the non-moving party. Nutrition Mgmt. Servs. Co. v. Hinchcliff, 
    2007 PA Super 167
    , 
    926 A.2d 531
    , 535. If there is any doubt as to whether a demurrer is appropriate,
    the doubt must be resolved in favor of overruling the demurrer. Theodore v. Delaware Valley
    School Dist., 
    575 Pa. 321
    , 836 A.24 76 (2003).
    15
    University Defendants argue Plaintiffs claims of negligence, negligent infliction of
    emotional distress and intentional infliction of emotional distress fail as a matter of law.
    University Defendants allege Plaintiff's claims are either insufficiently pied or inapplicable to
    the University Defendants. University Defendants assert Plaintiff s claim for ordinary negligence
    fails because it is nothing more than a medical malpractice claim, Plaintiff cannot maintain a
    vicarious liability action against Penn State, and Plaintiff cannot establish the necessary elements
    for any negligence claim. University Defendants allege Plaintiff's inability to establish a
    negligence claim means Plaintiff cannot establish a claim for negligent infliction of emotional
    distress. Finally, University Defendants claim Plaintiff's cause of action for intentional infliction
    of emotional distress also fails because Plaintiff did not allege sufficiently outrageous and
    extreme conduct which would allow him to recover.
    1. Negligence
    To establish a negligence claim, Plaintiff must prove there is a "breach of a legally
    recognized duty or obligation that is causally connected to the damages suffered by the
    complainant." Bilt-Rite Contractors, Inc., 866 A.2d at 280 (quoting Sharpe • St. Luke's
    Hospital, 
    573 Pa. 90
    , 
    821 A.2d 1215
    , 1218 (2003)); see Wittrien • Burkholder, 
    2009 PA Super 23
    , 965 A.2 1229, 1232 (ln any negligence case, the plaintiff must prove duty, breach,
    causation and damages."). Plaintiff asserts University Defendants assumed a duty to Plaintiff
    when they entered into an agreement for him to join the Penn State football program on an
    athletic scholarship. Plaintiff argues University Defendants' affirmative conduct made them
    responsible for the health and safety of Plaintiff and established a fiduciary duty owed to
    Plaintiff. Plaintiff alleges University Defendants had a duty to care for and protect Plaintiff as
    well as provide a safe environment and implement precautions to reduce risks of hmm. Plaintiff
    16
    contends University Defendants breached their duty owed to Plaintiff by recklessly ignoring their
    duty and this caused Plaintiffs medical and financial damages.
    The Court finds that Plaintiffs negligence claim is nothing more than a medical
    malpractice claim against University Defendants. All of Plaintiffs allegations against University
    Defendants concern alleged damages Plaintiff suffered in connection to his medical treatment
    and care, Count III specifically alleges University Defendants' negligence includes the failure to
    examine properly and diagnose his medical condition, failure to provide, recommend, and refer
    Plaintiff for appropriate diagnostic study, care, consultation, and treatment, failure to properly
    recommend appropriate follow-up with patient, and failure to properly monitor Plaintiffs
    progress. The alleged damages include the delay in the diagnosis and treatment of the infection
    in Plaintiff's knee which rendered him no longer able to participate in football. As the Court
    stated in its July 15, 2020 Opinion and Order, University Defendants are not medical providers
    and cannot be held liable for medical malpractice. Plaintiff cannot maintain his ordinary
    negligence claim against University Defendants since it is, in fact, a medical malpractice claim.
    Plaintiff claims the Pennsylvania State University is vicariously liable for negligence
    because its agents, servants, employees, subsidiaries, affiliates, and/or independent contractors
    were negligent in providing medical treatment. Plaintiff asserts the Pennsylvania State University
    does business as Penn State Health, the Milton S. Hershey Medical Center, and Penn State
    Hershey Medical Group as well as affiliates with Mount Nittany Health. However, all of
    Plaintiff's medical malpractice claims against those other entities and agents were dismissed for
    failure to file a proper certificate of merit so the Penn State University cannot be held vicariously
    liable for their alleged malpractice.
    17
    "[A]bsent any showing of an affirmative act, or failure to act when required to do so, by
    the principal, termination of the claim against the agent extinguishes the derivative claim against
    the principal." Mamalis v. Atlas Van Lines, Inc., 
    522 Pa. 214
    , 221, 560 A.2 1380, 1383 (1989).
    "A claim of vicarious liability is inseparable from the claim against the agent since any cause of
    action is based on the acts of only one tortfeasor." 
    Id.
     Here, Plaintiff failed to aver facts showing
    an affirmative act or failure to act on the part of the University Defendants which would support
    his negligence claim. The termination of the claims against the other defendants in this case
    extinguishes the vicarious liability claim against University Defendants.
    Even if Plaintiffs claims were actually negligence claims and not medical malpractice
    claims, Plaintiff has failed to aver facts which could establish University Defendants are liable
    under a negligence claim directly. Plaintiff argues there is a "special relationship" between
    University Defendants and Plaintiff due to the fact that Plaintiff is a student-athlete recruited by
    the University and given a scholarship to play football. Plaintiff claims the University
    Defendants have an in loco parentis duty. University Defendants assert there is no "special
    relationship" or in loco parentis duty imposed on them, and, therefore, they cannot be held liable
    under a negligence claim.
    ·The phrase 'in loco parentis' refers to a person who puts oneself [sic] in the situation of
    a lawful parent by assuming the obligations incident to the parental relationship without going
    through the formality of a legal adoption." Peters v. Costello, 
    586 Pa. 102
    , 110-11, 
    891 A.2d 705
    , 710 (2005). In the past, Pennsylvania courts were willing to impose an in loco parentis duty
    on colleges and universities; however, "in modem times, it would be inappropriate to impose an
    in loco parentis duty upon a university." Alummi Ass'n • Sullivan, 
    524 Pa. 356
    , 364, 
    572 A.2d 1209
    , 1213 (1990). "[T]he modern American college is not an insurer of the safety of its student.
    18
    Whatever may have been its responsibility in an earlier era, the authoritarian role of today's
    college administrations has been notably diluted in recent decades." Bradshaw • Rawlings, 
    612 F.2d 135
    , 138 (3d Cir. 1979). "[T]he principle of in loco parentis appears no longer to apply to
    college students." Am. Future Sys., Inc. v. Pennsylvania State Univ., 
    553 F.Supp. 1268
    , 1282
    (M.D. Pa. 1982). Although there is no in loco parentis duty, that does not mean there is no duty
    on universities whatsoever, especially in cases involving student-athletes recruited by the
    university to play intercollegiate sports.
    In Kleinknecht • Gettysburg College, the Third Circuit found a "College owed [plaintiff]
    a duty of care in his capacity as an intercollegiate athlete engaged in school-sponsored
    intercollegiate athletic activity for which he had been recruited." Kleinknecht • Gettysburg
    Colt,, 989 F,2d 1360, 1369 (3d Cir. 1993). The court stated "a special relationship existed
    between the College and [plaintiffj that was sufficient to impose a duty of reasonable care on the
    College." Id. at 1367. "[T]he College had a duty to provide prompt and adequate emergency
    medical services to [plaintiff], one of its intercollegiate athletes, while he was engaged in a
    school-sponsored athletic activity for which he had been recruited. Id, at 1371. The Pennsylvania
    Supreme Court has also held that universities have a "duty of care to its intercollegiate student
    athletes ... to have qualified medical personnel available at [intercollegiate athletic events], and
    to provide adequate treatment in the event that an intercollegiate student athlete suffered a
    medical emergency." Feleccia • Lackawanna Coll, 
    215 A.3d 3
    , 10 (Pa. 2019).
    University Defendants had a duty to exercise reasonable care to protect Plaintiff against
    unreasonable risk of harm. This included a duty "to provide duly licensed athletic trainers for the
    purpose of rendering treatment to its student athletes participating in athletic events." Id. at 15.
    Although the Court finds University Defendants owed a duty to Plaintiff by virtue of his status as
    19
    a student-athlete who was recruited by Penn State University and participated in intercollegiate
    athletic events on behalf of Penn State University, Plaintiffs negligence still fails to survive
    University Defendants' Preliminary Objections.
    Plaintiff has failed to aver facts evidencing a breach of the duty owed by University
    Defendants. In Kleinknecht, the college failed to have prompt and adequate medical services
    available at a school-sponsored athletic event when plaintiff suffered a fatal heart attack at
    lacrosse practice with no athletic trainers present or means of quickly obtaining emergency
    services. See Kleinknecht, 
    989 F.2d 1360
    . In Fe!eccia, the college failed to have qualified
    medical personnel ( certified or licensed athletic trainers) available to provide medical treatment
    at a football practice. See Feleccia, 
    215 A.3d 3
    . In both cases, the colleges breached their duty by
    failing to ensure qualified medical personnel was available to provide medical treatment during
    athletic events,
    Here, University Defendants exercised reasonable care in ensuring Plaintiff received
    proper medical treatment. Plaintiff has not alleged University Defendants failed to provide
    prompt and adequate medical services at athletic events or failed to have qualified medical
    personnel available to provide medical treatment. In fact, the medical history averred by Plaintiff
    shows University Defendants had multiple qualified and licensed medical professionals and
    athletic trainers tend to Plaintiffs medical needs. University Defendants did not fail to have
    qualified medical personnel available, deny Plaintiff medical care or interfere with his treatment.
    University Defendants referred Plaintiff to qualified physicians, athletic trainers, and medical
    providers.
    There is no special relationship in this case which would impose a duty greater than
    reasonable care. University Defendants did not breach their duty to ensure qualified medical
    20
    personnel were available to render medical assistance and Plaintiff failed to aver facts showing
    University Defendants failed to exercise reasonable care. There were very few factual allegations
    pertaining to University Defendants as Sandy Barbour, Channelle Green, and James Franklin are
    hardly mentioned in Plaintiffs Supplemental Amended Complaint. Instead, the great majority of
    Plaintiffs pleadings focus solely on the actions of the defendants already dismissed from this
    action. Plaintiffs pleadings fail to establish a breach of the duty University Defendants owed to
    Plaintiff, and, therefore, Plaintiffs negligence claim against University Defendants is insufficient
    as a matter of law.
    2. Negligent Infliction of Emotional Distress
    University Defendants' Preliminary Objections argue Plaintiffs negligent infliction of
    emotional distress ("NIED") claims are insufficient as a matter of law and must be dismissed.
    Pennsylvania courts have limited a cause of action based on NIED to four theories of recovery.
    In order to recover, a plaintiff must prove one of four theories: (1) situations where the defendant
    owed the plaintiff a pre-existing contractual or fiduciary duty (the special relationship rule); (2)
    the plaintiff suffered a physical impact (the impact rule); (3) the plaintiff was in a "zone of
    danger" and reasonably experienced a fear of immediate physical injury (the zone of danger
    rule); or ( 4) the plaintiff observed a tortious injury to a close relative (the bystander rule). See
    Doe v. Philadelphia Cmty. Health Alternatives AIDS Task Force, 
    2000 PA Super 6
    , 
    745 A.2d 25
    , 27, aff'd, 
    564 Pa. 264
    , 
    767 A.2d 548
     (2001). In this case, Plaintiff has failed to establish a
    right to recovery under any of these theories of liability.
    "A lbsent a finding of negligence, [a] negligent: infliction of emotional distress claim
    cannot survive." Brezenski • World Truck Transfer, Inc., 
    755 A.2d 36
    , 45 (Pa. Super. Ct
    2000) (citing J,E.J. v, Tri-Cly. Big Bros./Big Sisters, Inc., 692 A.2 582, 586 (Pa. Super. Ct.
    21
    1997)). Given that Plaintiff has failed to establish a claim of negligence, Plaintiffs negligent
    infliction of emotional distress also fails. Plaintiff cannot recover under the bystander theory as
    he did not observe a tortious injury to a close relative. Plaintiff cannot recover under the zone of
    danger theory as he did not aver facts alleging he experienced a fear of immediate physical
    impact, rather Plaintiff alleges a special relationship existed between the parties and he suffered a
    physical impact due to University Defendants' negligence.
    Plaintiff cannot recover under the special relationship theory because it requires him to
    establish University Defendants acted negligently by breaching a duty owed to Plaintiff. Plaintiff
    would also have to show negligence to recover under the impact rule. Recovery is available
    under the impact rule only "where a plaintiff sustains bodily injuries... accompanied by fright or
    mental suffering directly traceable to the peril in which the defendant's negligence placed the
    plaintiff..." Brown • Philadelphia Coll. of Osteopathic Med., 
    449 Pa.Super. 667
    , 679, 
    674 A.2d 1130
    , 1135--36 (1996). Plaintiff has failed to establish University Defendants' negligence as he
    cannot show that University Defendants breached a duty they owed to Plaintiff. As a result of
    Plaintiffs failure to establish a negligence claim against University Defendants, Plaintiffs claim
    for negligent infliction of emotional distress is insufficient as a matter of law.
    3. Intentional Infliction of Emotional Distress
    Count XIV of Plaintiff's Supplemental Amended Complaint is based on a cause of action
    of intentional infliction of emotional distress ("IIED"). The four elements Plaintiff must show to
    establish this claim are: "() the conduct must be extreme and outrageous; (2) the conduct must
    be intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be
    severe." Madreperla , Williard Co., 
    606 F.Supp. 874
    , 879 80 (E.D. Pa. 1985) (citing Chuy •
    Philadelphia Eagles Football Cub, 
    595 F.2d 1265
    , 1273 (3d Cir.1979)). For an IIED claim to
    22
    survive a preliminary objection, a "court must determine, as a matter of law, whether there is
    sufficient evidence for reasonable persons to find extreme or outrageous conduct." 
    Id.
     The
    conduct must be "so outrageous in character and so extreme in degree, as to go beyond all
    possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
    community." Rinehimer v. Luzerne Cty. Cmty. Coll., 
    372 Pa.Super. 480
    , 494-95, 
    539 A.2d 1298
    , 1305 (1988); see Restatement (Second) of Torts $ 46, comment d (1965).
    Plaintiff claims University Defendants' extreme and outrageous conduct was that they
    knew or should have known oftortious conduct yet allowed it to happen or did nothing about it
    in reckless disregard of Plaintiff's health and rights. During the hearing on October 12, 2020,
    Plaintiff pointed to the failure to correctly diagnose the infection in his knee after the CT scan in
    September 2018 as extreme and outrageous conduct. University Defendants argue Plaintiff has
    barely alleged any conduct by the University Defendants, let alone conduct which could rise to
    the level of outrageous or extreme conduct. University Defendants assert Plaintiff failed to allege
    how any actions by the University Defendants caused his injuries. University Defendants claim
    all the charged actions which caused his injuries relate to his medical care and are wholly
    unrelated to University Defendants.
    While Pennsylvania recognizes the cause of action for IIED, courts "have allowed
    recovery in only very egregious cases" Hoy • Angelone, 
    456 Pa.Super. 596
    , 610, 
    691 A.2d 476
    ,
    482 (1997), as modified, 
    456 Pa.Super. 615
    , 
    691 A.2d 485
     (1997), and affd, 
    554 Pa. 134
    , 
    720 A.2d 745
     (1998), and aft'd, 
    554 Pa. 134
    , 720 A.24 745 (1998). Based on the facts averred by
    Plaintiff in this case, University Defendants' conduct does not rise to the level necessary to allow
    for recovery under a claim ofIIED. Defendant Barbour was only brought up in Plaintiff's factual
    allegations once when a coach mentioned her name. The only factual allegations against
    23
    Defendant Green relate to her denial of the University transporting Plaintiff to a physical therapy
    session, but offering to reimburse the costs of an Uber if Plaintiffs parents were unable to
    transport him. There were also very few factual allegations against Defendant Franklin and those
    centered around the University's offer of a scholarship, emails from Plaintiffs parents to
    Defendant Franklin, and Plaintiff's withdrawal from and return to the football team. None of
    these allegations aver facts establishing University Defendants' conduct was extreme or
    outrageous. No factual allegations show University Defendants were involved in medical
    diagnoses, medical decisions, or medical treatment.
    Plaintiff has failed to allege sufficient facts to show University Defendants' conduct was
    extreme and outrageous. Plaintiff cannot satisfy all of the elements necessary to establish a claim
    of intentional infliction of emotional distress, and, therefore, Plaintiffs intentional infliction of
    emotional distress claim is legally insufficient.
    Accordingly, University Defendants' Preliminary Objections to Plaintiffs claims of
    negligence, negligent infliction of emotional distress, and intentional infliction of emotional
    distress pursuant to Pa.R.C.P. 1028(a)(4) are SUSTAINED.
    ORDER
    AND NOW, this "day of December, 2020, the Court ORDERS as follows:
    1. Defendant Scott A. Lynch, Defendants Andy Mutnan, Renee Messina, Brendan Carr,
    Tim Bream, and Wes Sohns, Defendants Peter H. Seidenberg, M.D., John S. Reid,
    M.D., Penn State Health, The Milton S. Hershey Medical Center, and Penn State
    Hershey Medical Group, and Defendant Mount Nittany Health's ("Pettoners")
    Petitions to Hold Plaintiff in Contempt of Court are GRANTED and all of Plaintiffs
    24
    claims against Petitioners in his Amended Complaint and Supplemental Amended
    Complaint are DISMISSED with prejudice.
    2. Plaintiffs Praecipe for Default Judgment and Praecipe for Determination are
    DENIED.
    3. Defendants The Penn State University, Sandy Barbour, Charmelle Green, and James
    Franklin's ("University Defendants") Preliminary Objections to Plaintiff's
    Supplemental Amended Complaint pursuant to Pa.R.C.P 1028(a)(l ), 1028(a)02), and
    1028(a)(4) are SUSTAINED.
    4. Counts I through XXI are DISMISSED with prejudice.
    5. Plaintiffs Supplemental Amended Complaint is DISMISSED with prejudice.
    BY THE COURT:
    Pamela A. Ruest, President Judge
    25