Medley, S. v. Dynamic Therapy Services, LLC.

J-S74017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHERWOOD MEDLEY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DYNAMIC THERAPY SERVICES, LLC. : No. 2047 EDA 2017
D/B/A DYNAMIC PHYSICAL THERAPY :
AND DYNAMIC PHYSICAL THERAPY :
& REHABILITATION CENTER, INC. :
D/B/A DYNAMIC PHYSICAL THERAPY :
AND DYNAMIC PHYSICAL THERAPY :
OF PENNSYLVANIA, LLC D/B/A :
DYNAMIC PHYSICAL THERAPY AND :
AQUATIC REHABILITATION CENTER :
D/B/A DYNAMIC PHYSICAL THERAPY :
AND PHYSIOHEALTH HOLDINGS, :
LLC D/B/A DYNAMIC PHYSICAL :
THERAPY AND PHYSIOHEALTH, INC. :
IND D/B/A PHYSIOHEALTH :
HOLDINGS, LLC
Appeal from the Order Entered May 25, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): October Term, 2016 No. 3650
BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 17, 2018
Sherwood Medley appeals from the trial court’s order, entered in the
Court of Common Pleas of Philadelphia County, sustaining Dynamic Therapy
Services, LLC, d/b/a Dynamic Physical Therapy and Dynamic Physical Therapy
& Rehabilitation Center, Inc. (individually, “Dynamic”) d/b/a Dynamic Physical
Therapy and Dynamic Physical Therapy of Pennsylvania, LLC d/b/a/ Dynamic
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Physical Therapy and Aquatic Rehabilitation Center d/b/a Dynamic Physical
Therapy and Physiohealth Holdings, LLC d/b/a/ Dynamic Physical Therapy and
Physiohealth, Inc. Ind. d/b/a/ Physiohealth Holdings, LLC’s (collectively
“Defendants”) preliminary objections, transferring venue1 of the underlying
action from Philadelphia County to either Berks or Montgomery Counties,2 and
ordering Medley to incur all costs of transfer.3 After careful review, we affirm.
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1 In Wentzel v. Cammarano, 166 A.3d 1265 (Pa. Super. 2017), our Court
recently reiterated the scope of review of a trial court’s order granting a
transfer of venue:
A trial court’s decision to transfer venue will not be disturbed
absent an abuse of discretion. A plaintiff’s choice of forum is to
be given great weight, and the burden is on the party challenging
the choice to show it was improper. However, a plaintiff’s choice
of venue is not absolute or unassailable. Indeed, if there exists
any proper basis for the trial court’s decision to grant a petition to
transfer venue, the decision must stand.
Id. at 1268, citing Jackson v. Laidlaw Transit, Inc. & Laidlaw Transit PA,
Inc., 822 A.2d 56, 47 (Pa. Super. 2003) (citations, quotations, and quotation
marks omitted).
2 Our Court has subject matter jurisdiction over this appeal pursuant to
Pa.R.A.P. 311(c) (interlocutory appeals as of right; changes of venue).
3 The trial court entered two orders, both dated May 24, 2017, granting
Defendants’ preliminary objections and transferring venue of the underlying
case. The first order, from which Medley has filed his notice of appeal,
indicates that venue is transferred to either Montgomery County or Berks
County, giving Medley the opportunity to choose one of the two stated forums.
The second order indicates that venue is transferred to Berks County.
Pennsylvania Rule of Civil Procedure 236 notice was sent to the parties in the
first order on 5/26/17, and on 6/29/17 in the second order. Thus, we will
confine our review to the first order, which Medley appealed from on June 14,
2017, prior to the entry of the second order. We remind the trial court that
once it enters a final, appealable order and a party files a timely notice of
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On November 10, 2014, Medley, a front-seat passenger in a paratransit
vehicle, was being transported from his then-home in Reading, Berks County4
to a physical therapy appointment at Defendant Dynamic Physical Therapy.
Medley alleges that he was neither restrained nor secured to his seat by the
driver of the vehicle and that the driver, who was speeding, slammed on his
breaks to avoid other traffic after having disregarded a stop sign. On October
26, 2016, Medley filed a complaint against the Defendants alleging negligence
and negligent entrustment, and averring that he was “violently thrown inside
the vehicle[, and] . . . was caused to fly out of his seat and strike his head on
the interior of the vehicle causing him to suffer serious personal injuries . . .
[which included] aggravation of his degenerative disc disease[,] a severe
shock to his nerves and nervous system, great physical pain and mental
anguish and was prevented from attending to his usual duties, activities, and
avocations[.]” Plaintiff’s Complaint, 10/26/16, at ¶¶ 13-18. Medley claims
that he will need to undergo continuing medical care and incur various
expenses to treat the long-term injuries suffered from the accident.5
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appeal from that order, it no longer has jurisdiction to act in the case. See
42 Pa.C.S. § 5505 (“Except as otherwise provided or prescribed by law, a
court upon notice to the parties may modify or rescind any order within 30
days after its entry, notwithstanding the prior termination of any term of court,
if no appeal from such order has been taken or allowed.”) (emphasis added).
4 While Medley resided in Berks County at the time of the accident, the
complaint indicates that he is currently a resident of Philadelphia County.
5 Medley assessed his current costs and expenses from medical care and
treatment necessitated by the accident at $33,507.42.
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On November 29, 2016, Defendants filed preliminary objections
challenging venue in Philadelphia, pursuant to Pennsylvania Rules of Civil
Procedure 1028(a)(1) and 2179(a), asserting that none of the Defendants
maintain business offices in Philadelphia, the automobile accident took place
in Berks County, Medley resided in Berks County, Medley was transported by
Berks County Ambulance to a Reading, Berks County Hospital, was treated at
Berks County Orthopedics for his injuries sustained from the accident, and “no
defendant resides in or regularly conducts business in Philadelphia.”
Defendants’ Preliminary Objections, 11/29/16, at ¶¶ 2, 4-6, & 8. After a
hearing,6 the trial court entered an order sustaining the Defendants’
preliminary objections and transferred the case to either Montgomery or Berks
County. This appeal follows.
On appeal, Medley presents the following issues for our consideration:
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6 We note, with disapproval, Medley’s failure to have the notes from the April
19, 2017 venue hearing transcribed. See Thomas Bruno, Esquire’s Statement
of No Transcript, 6/14/17. We remind counsel that pursuant to Pa.R.A.P.
1911(a), “The appellant shall request any transcript required under this
chapter in the manner and make any necessary payment or deposit therefor
in the amount and within the time prescribed by [the] Rules[.]” Moreover,
failure to comply with Rule 1911(a), may result in “dismissal of the appeal.”
Pa.R.A.P. 1911(d). Absent a transcript of proceedings relevant to the issues
raised on appeal, our Court may be without an adequate record to decide
whether those issues have merit. See Stumpf v. Nye, 950 A.2d 1032 (Pa.
2008) (where plaintiff did not provide Superior Court with transcription of
charging conference, Court had no basis upon which to review plaintiff’s
objection to jury instruction and found issue waived). We also note that
counsel could have provided this Court with a statement in absence of
transcript pursuant to Pa.R.A.P. 1923.
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(1) Did the trial court misapply the law and hence abuse its
discretion/commit an error of law when it held that
[Medley’s] compliant alleged a claim for medical malpractice
and therefore venue was only proper in Bucks County?
(2) Did [Medley] introduce sufficient evidence establishing that
Defendant Dynamic Therapy Services, LLC d/b/a Dynamic
Physical Therapy regularly conducts business in Philadelphia
County thereby making venue proper in Philadelphia
County?
First, Medley contends that the trial court improperly classified his case
as one of medical or professional malpractice, rather than ordinary negligence.
Under 42 Pa.C.S. § 5101.1 of the Judicial Code, venue in medical
professional liability actions is proper only in the county where the incident
giving rise to the matter occurred. See 42 Pa.C.S. § 5101.1(b); see also
Pa.R.C.P. 1006. Thus, we must determine whether the trial court correctly
classified Medley’s action as one of professional negligence; if this case is a
medical professional liability action, venue properly lies in Berks County, the
county where the accident occurred.
Although the basic elements of both ordinary negligence and
medical malpractice are the same, medical malpractice has
distinguishing characteristics. Medical malpractice is further
defined as the “unwarranted departure from generally accepted
standards of medical practice resulting in injury to a patient,
including all liability-producing conduct arising from the rendition
of professional medical services.” Toogood[ v. Owen J. Rogal,
D.D.S., P.C.], 824 A.2d [1140,] 1145 [(Pa. 2003)]. The
underlying elements of negligence in a medical malpractice claim,
mirroring those of a basic negligence claim, see Estate of Swift
[by Swift v. Northeastern Hosp.], 690 A.2d [719,] 722 [(Pa.
Super. 1997)], are more specifically described as a “duty owed by
the physician to the patient, a breach of that duty by the
physician, that the breach was the proximate cause of the harm
suffered, and the damages suffered were a direct result of the
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harm.” Toogood, 824 A.2d at 1145 (quoting Hightower-
Warren v. Silk, [] 698 A.2d 52, 54 [(Pa.] 1997)).
Grossman v. Barke, 868 A.2d 561, 566 (Pa Super. 2005) (emphasis added).
In Grossman, the plaintiff’s decedent was injured when she fell from
an examining table while her doctor was out of the examination room. The
trial court determined that the claim was one of medical malpractice, not
ordinary negligence, where it was alleged that the plaintiff’s injuries were the
result of the doctor’s negligence and his “failure to provide medical assistance
. . . within a reasonably expected standard of care.” Id. Also relevant to the
court’s determination were the following facts: (1) the injured party had been
the doctor’s patient for a substantial period of time; (2) the injured party was
at the hospital for medical services (pre-examination for a knee replacement);
(3) the injured party was under the “professional care and control” of the
doctor at the time of the incident; and (4) the doctor had instructed the injured
party to climb on the examining table without any assistance, despite her age,
weight, lack of dexterity and mobility, and likelihood of losing balance due to
her diabetes and/or other physical ailments known by the doctor. Id. at 570-
71. In sum, our Court found that the plaintiff’s theory of liability “was
premised on the physician-patient relationship and, in fact, [the doctor’s] duty
is defined by Plaintiff within the context of the physician-patient relationship.”
Id. at 571.
In the instant case, the trial court concluded that Medley’s complaint
alleged medical malpractice because: (1) Medley was injured in an automobile
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accident while being transported by Defendants from his home to Defendants’
physical therapy business; (2) Medley avers the injuries were sustained
because he was not properly strapped into the automobile seat; (3) Medley
was under the care of Defendants acting as medical providers; and (4) a
medical expert will be required to testify regarding the standard of care for
transporting a patient with Medley’s particular maladies. Trial Court Opinion,
8/15/17, at 4-5.7
A medical professional liability action is defined as “[a]ny proceeding in
which a medical professional liability claim is asserted.” 42 Pa.C.S. §
5101.1(c). Moreover, a medical professional liability claim is “[a]ny claim
seeking the recovery of damages or loss from a health care provider arising
out of any tort . . . causing injury . . . resulting from the furnishing of health
care services which were or should have been provided.” Id. (emphasis
added). Specifically, claims of medical malpractice necessarily raise questions
involving medical judgment. Grossman, 868 A.2d at 567.
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7 The trial court cites to Ditch v .Wynesborough Hospital, 917 A.2d 317(Pa. Super. 2007), to supports its conclusion that this case is one of medical
malpractice, not ordinary negligence. Specifically, the trial court likens that
case in which a “patient fell out of a hospital bed because she was not strapped
down,” Trial Court Opinion, 8/15/17, at 4, to the instant case. Ditch,
however, is clearly factually distinguishable from this case. In Ditch, the
decedent had a stroke, was taken to the emergency room of the hospital and,
while being moved to a hospital room, fell from her bed and suffered fatal
head injuries. There, the decedent-patient clearly sustained her fatal injuries
during the furnishing of health care services from a healthcare provider.
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Medley argues that the conduct at issue did not concern the rendering
of medical care. Rather, he asserts it involves facts attendant to a personal
injury action stemming from an automobile accident. Thus, he contends this
is an ordinary negligence action, not subject to section 5101.1 venue rules.
We agree.
In Grossman, our Court looked to the Michigan Supreme Court’s
explanation of the distinction between ordinary negligence and medical
malpractice as follows:
A medical malpractice claim is distinguished by two defining
characteristics. First, medical malpractice can occur only within
the course of a professional relationship. Second, claims of
medical malpractice necessarily raise questions involving
medical judgment. Claims of ordinary negligence, by contrast,
raise issues that are within the common knowledge and
experience of the [fact-finder]. Therefore, a court must ask two
fundamental questions in determining whether a claim sounds in
ordinary negligence or medical malpractice: (1) whether the claim
pertains to an action that occurred within the course of a
professional relationship; and (2) whether the claim raises
questions of medical judgment beyond the realm of common
knowledge and experience. If both these questions are answered
in the affirmative, the action is subject to the procedural and
substantive requirements that govern medical malpractice
actions.
Id. at 570 (emphasis added).
The question boils down to whether Defendants were furnishing Medley
health care services at the time he was being transported from his home to
physical therapy. We conclude that Medley was not in the care of a medical
provider when he was being transported by an independent paratransit
company to his physical therapy appointment at Defendant’s place of
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business; simply put, he was not in the course of treatment as he rode in the
vehicle. Thus, his cause of action sounds in ordinary negligence as a result of
the negligent conduct of the driver of the vehicle. Here, the professional
relationship between Medley and the physical therapist(s) had not yet
occurred. Moreover, while Medley may have a medical condition that requires
special assistance when he rides in a vehicle, the standard of that care is a
negligence question that can be addressed by a witness who transports
paratransit clients, not by a medical expert who opines on medical malpractice
claims. The negligence issues are clearly within the common knowledge and
experience of a fact-finder. The case does not raise questions involving
medical judgment. Grossman, supra. Simply put, the matter “is so simple,
and the lack of skill or want to care [is] so obvious, as to be within the range
of the ordinary experience and comprehension of even nonprofessional
persons.” Chandler v. Cook, 265 A.2d 794, 796 n.1 (Pa. 1970).
Medley next contends that the trial court erred in not finding that he
presented sufficient evidence that Defendants regularly conducted business in
Philadelphia.
In the present case, Medley alleged that Defendants were liable under
negligence and negligent entrustment theories when he was seriously injured
in the paratransit automobile owned, controlled and operated by Defendants.
Medley served Defendants in Montgomery County at their Limerick business
address, but filed his personal injury complaint in Philadelphia County alleging
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that all Defendants do business in Philadelphia. See Plaintiff’s Complaint,
10/26/16, at ¶¶ 2-7. Medley also alleged that “[a]t all times relevant hereto,
all defendants jointly and/or severally were a common carrier for hire,
operating paratransit vehicles for transportation of passengers, for hire, over
and along certain streets in the Commonwealth, including Philadelphia, for the
mutual benefit of all defendants. Id. at ¶ 10.
Venue is the place in which a particular action is to be brought and
determined; it is a matter for the convenience of the litigants. County
Constr. Co. v. Livengood Constr. Co., 142 A.2d 9 (Pa. 1958). Venue over
an action involving a corporation is governed by Pa.R.C.P. 1006 and Pa.R.C.P.
2179, which state, in pertinent part:
Rule 1006. Venue. Change of Venue
***
(b) Actions against the following defendants, except as
otherwise provided in subdivision (c), may be brought in and
only in the counties designated by the following rules:
political subdivisions, Rule 2103; partnerships, Rule 2130;
unincorporated associations, Rule 2156; corporations and
similar entities, Rule 2179.
Pa.R.C.P. 1006 (emphasis added). Rule 2179 states:
(a) Except as otherwise provided by an Act of Assembly, by Rule
1006(a.1) or by subdivision (b) of this rule, a personal action
against a corporation or similar entity may be brought in and only
in
(1) the county where its registered office or principle place
of business is located;
(2) a county where it regularly conducts business;
(3) the county where the cause of action arose; or
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(4) a county where a transaction or occurrence took place
out of which the cause of action arose.
Pa.R.C.P. 2179.
In determining whether a corporation regularly conducts business in a
county, our courts “employ a quality-quantity analysis.” Zampana-Berry v.
Donaghue, 921 A.2d 500, 503 (Pa. Super. 2007). A business entity must
perform acts in a county of sufficient quality and quantity before venue in that
county will be established. Id. Only direct acts are included in the “regularly
conducted business” analysis.; a single act is not enough. Purcell v. Bryn
Mawr Hosp., 579 A.2d 1282, 1285 (Pa. 1990). Each case rests on its own
facts, which are derived from the parties’ pleadings and any other evidence of
record. Id. at 1286; Pa.R.C.P. No. 1028(c)(2) (allowing court to consider
evidence by depositions or otherwise).8
“Quality of acts” means “those directly, furthering or essential to,
corporate objects; they do not include incidental acts.” Purcell, 579 A.2d at
1285. Quantity means those acts which are “so continuous and sufficient to
be general or habitual.” Id. Instantly, we agree with the trial court that
Medley has failed to provide sufficient evidence to show that Defendants
regularly conduct business in Philadelphia County.
In claiming that venue in Philadelphia County is appropriate, Medley
asserts that “one of Dynamic’s sister corporations, Progress Physical Therapy,
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8 In fact, the trial court indicated that it would accept affidavits or deposition
evidence and, upon application for good cause shown, live testimony, relevant
to the issue of venue. Trial Court’s Rule to Show Cause, 12/27/16.
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treated one of [Plaintiff’s counsel’s] clients at a Philadelphia facility located at
3400 Aramingo Avenue, Suite 11, Philadelphia, PA.” Plaintiff’s Answer to
Defendants’ Preliminary Objections, 2/7/17, at ¶ 2. To support this averment,
Medley attached a copy of office notes and medical records (an initial patient
evaluation, and an invoice for services for this patient) to his supplemental
memorandum of law in opposition to Defendants’ preliminary objections. The
services to this patient were rendered in February 2015, after Medley’s
November 2014 accident; the alleged patient and services rendered are
unrelated to the instant action.
To challenge venue in Philadelphia County, Defendants attached an
affidavit from Daniel Bianco, President of Dynamic Therapy Services, LLC., to
their preliminary objections. In the affidavit, Bianco avers:
I . . . am intimately familiar with the business operations of
[Defendants]. Now and historically, the above entities have
provided physical therapy services to the public primarily in the
State of Delaware, and in several suburban counties outside of
P[hiladelphia]. These services sometimes included transportation
of patients to and from therapy facilities all outside Philadelphia.
None of these entities own property in, advertise in, or regularly
conduct business in Philadelphia.
Affidavit of Daniel Bianco, 11/30/16.
Defendants also deposed Bianco on April 7, 2017. At his deposition,
Bianco explained that he became the president of Dynamic in 2013 and was
in that role until the company was sold in February 2017. Deposition of Daniel
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Bianco, 11/30/16, at 6-7.9 Bianco testified that, at the time of Medley’s
accident, Dynamic had locations in Maryland, Delaware, Delaware County,
Pennsylvania, Berks County, Pennsylvania and Chester County, Pennsylvania.
Id. at 8. Until it was bought by Pivot, Dynamic was owned by Lake Capital,
a private equity firm from Chicago. Id. at 9. As president of Dynamic, Bianco
ran all the day-to-day non-clinical operations and expansion, as well as the
Human Resources Department. Id. at 10. Bianco testified that Dynamic’s
corporate office, located in Linwood, Delaware County, Pennsylvania, handles
the company’s billing, collections and administrative functions. Id. at 11. At
its medical locations, Dynamic performs outpatient physical therapy, aquatic
therapy, and hand therapy. Id. In 2013, Dynamic sold Progress Physical
Therapy (“Progress”) because it no longer wanted to do business in
Philadelphia. Id. at 14-15. Pursuant to a transaction service agreement that
expires in October 2018, Dynamic continues to do the billing, collection and
record requests for Progress on a shared-documentation network. Id. 14, 16.
Progress reimburses Dynamic for their services and hours. Id. at 17.
Dynamic has no employees that work at Progress; all Progress administrative
work is done through Dynamic’s Linwood, PA office. Id. at 21.
Based on the evidence of record, the trial court correctly concluded that
Defendants’ contacts with Philadelphia were insufficient to establish venue in
that county. At most, Dynamic’s relationship with Progress consisted of
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9At the time of his deposition, Bianco was the president of sales and marketing
development for Pivot Physical Therapy (“Pivot”). Id. at 7.
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tangential, incidental acts that were far from continuous or habitual. Purcell,
supra. Defendants’ association with Philadelphia was sufficient neither
qualitatively or quantitatively to show that they regularly conduct business in
Philadelphia County. Zampana-Berry, supra. Thus, the trial court correctly
determined that venue properly lies in either Montgomery County (where
Defendants regularly conduct business) or Berks County (where the accident
occurred). See Pa.R.C.P. 1006; Pa.R.C.P. 2179. See also Defendants’
Memorandum of Law in Support of Preliminary Objections, 11/29/16, at 3
(“Defendants maintain a regular place of business in Montgomery County, and
were served process in Montgomery County. Venue clearly lies in either Berks
or Montgomery County, not Philadelphia.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/17/18
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