Henry, M.J. v. Colangelo, N.

J-A16021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARYJANE HENRY, EXECUTRIX OF : IN THE SUPERIOR COURT OF
THE ESTATE OF SCOTT E. HENRY : PENNSYLVANIA
:
:
v. :
:
:
NICHOLAS F. COLANGELO, PH.D., :
CLEARBROOK FOUNDATION, INC., : No. 1579 MDA 2020
ALBERT D. JANERICH, M.D., ALBERT :
D. JANERICH & ASSOCIATES, :
MATTHEW A. BERGER, M.D., :
MATTHEW A. BERGER, M.D., P.C. :
:
:
APPEAL OF: NICHOLAS F. :
COLANGELO, PH.D. AND :
CLEARBROOK FOUNDATION, INC. :
Appeal from the Order Entered October 7, 2020
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2019-CV-14101
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: AUGUST 24, 2021
In this interlocutory appeal by permission, Nicholas F. Colangelo, Ph.D.
(Colangelo) and Clearbrook Foundation, Inc. (Clearbrook) appeal the order
entered October 7, 2020 in the Court of Common Pleas of Luzerne County
overruling their preliminary objections to dismiss the complaint against them.
The trial court provides the following summary:
* Former Justice specially assigned to the Superior Court.
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Plaintiff [Maryjane Henry, Executrix of the Estate of Scott E.
Henry (the Henry Estate)] is the surviving spouse of Scott E.
Henry . . . and filed the instant action as executrix of the estate
of Decedent. Defendant Colangelo is an adult individual who held
himself out as a licensed mental health professional and/or
qualified mental health counselor to the community, Decedent,
and the family of Decedent. Defendant Colangelo represented in
words or substance, to Decedent and Decedent’s family that he
was experienced and sufficiently qualified to manage the mental
health crisis being experienced by Decedent and that he could do
so safely and with all requisite experience. At all times material
to the instant matter, Defendant Colangelo was an employee of
Defendant Clearbrook, a professional corporation or other
similarly-configured business entity. Defendant Janerich, at all
times material hereto, was a physician licensed to practice
medicine in Pennsylvania, specializing in psychiatry, and was an
employee of Defendant Berger Corporation.
Decedent was sixty years old and had a medical history that
was significant for drug and alcohol addiction, depression, anxiety,
mood disorder, and impulse control problems. Decedent had been
sober for over eighteen years and attended various treatment
programs and supportive services including Alcoholics
Anonymous, at which Decedent became acquainted with
Defendant Colangelo. Defendant Colangelo had no education,
training, or experience with respect to the counseling and/or
treatment of mental health patients. Defendant Colangelo held
himself out, nonetheless, as “Dr. Colangelo,” and represented in
his professional biography and elsewhere that he had significant
clinical expertise in mental health counseling and treatment.
Defendant Colangelo undertook to provide mental health
counseling and treatment to Decedent.
In October of 2018, Decedent experienced a drastic
worsening of his mental health which included persistent
insomnia, anxiety, depression, thoughts of self-harm, and
thoughts of suicide. Between October and December 13, 2018,
Decedent repeatedly reported his mental health symptoms,
including thoughts of self-harm and suicide, to Defendant
Colangelo, and despite a lack of any training, experience,
certifications, or licenses as a mental health professional,
Defendant Colangelo provided mental health counseling and
therapy to Decedent during this time frame. Upon receiving
Decedent’s complaints, Defendant Colangelo expressly told
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Decedent and Decedent’s family that Defendant Colangelo would
help Decedent and guide him through this difficult time[;] in that
regard, Defendant Colangelo arranged medical appointments for
Decedent, discussed his treatment and prescriptions with
physicians who wrote those prescriptions, and generally acted as
a healthcare professional coordinating the care and management
of Decedent’s mental health treatment. During this time period,
Defendant Colangelo learned that Decedent was suicidal, had
guns in his home, and had a plan to harm himself, but Defendant
Colangelo failed to inform the legal authorities, mental health
professionals, or Decedent’s family about Decedent’s plan for self-
harm. Defendant Colangelo communicated assurances to
Decedent’s son that Defendant Colangelo had a treatment plan in
place for Decedent’s condition and was coordinating care with
other professionals.
On or about October 27, 2018, Defendant Colangelo began
communicating about Decedent with Defendant Janerich, at which
time Defendant Janerich began providing medical treatment to
Decedent, despite his areas of expertise being physiatry and
addiction medicine.[1] On October 27, 2018, Decedent received
sleeping medication prescribed by Defendant Janerich, and on
November 1, 2018, Decedent received additional medications that
were prescribed by Defendant Janerich. On November 7, 2018,
Decedent was first evaluated by Defendant Janerich “after
[Defendant Janerich] communicat[ed] with Nick Colangelo.”
Defendant Janerich diagnosed Decedent with an “unspecified
mood (affective) disorder” and prescribed Naproxen (pain
medication), Trazadone (sleeping/anti-anxiety medication), and
Melatonin. On November 8th, 20th, and 30th of 2018, Decedent
presented to Defendant Janerich, reporting depression, and on the
second of these visits also reporting thoughts of self-harm.
On or before December 10, 2018, Defendant Colangelo
began communicating about Decedent with Defendant Berger, a
licensed psychiatrist. On that date, Decedent was evaluated by
Defendant Berger at the request of Defendant Colangelo, at which
time Decedent reported to Defendant Berger he had been
1 Physiatry is a branch of medicine concerned with restoring and enhancing
functional ability and quality of life for people with physical impairments or
disabilities, such as stroke, brain injury, or muscle or nerve damage.
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experiencing increased anxiety, increased depression, impaired
concentration, ruminations, poor sleep, anergia, inability to
function, inability to work, and being overwhelmed. Defendant
Berger diagnosed Decedent with generalized anxiety disorder and
major depressive disorder and prescribed two new medications.
On December 12, 2018, Decedent called the office of Defendant
Berger to report that his medications were not working, but the
phone call was not returned.
On the morning of December 13, 2018, Decedent was
found, presumably deceased, in his home with a self-inflicted
gunshot wound to the head.
Trial Ct. Op., 1/27/21, at 3-7.
The Henry Estate filed the present action, sounding in negligence and
arising under the Wrongful Death Act and the Survival Act.2 This interlocutory
appeal arises from the overruling of the defendants’ preliminary objections.
On October 7, 2020, the trial court denied a requested stay pending appeal,
but granted a defense request to amend the orders overruling preliminary
objections such that those orders would be immediately appealable under 42
Pa.C.S. § 702(b), which governs interlocutory appeals by permission. Trial
Ct. Op. at 3. On December 30, 2020, this Court granted permissive appeal.3
Colangelo and Clearbrook frame the question presented thusly:
Whether, in a negligence action, no duty arises to prevent the
suicide of an acquaintance when a person, who is not a licensed
healthcare professional, counsels that acquaintance and refers
him to licensed doctors, including a psychiatrist who then treats
2 42 Pa.C.S. §§ 8301 and 8302.
3Codefendants Albert D. Janerich, M.D., Albert D. Janerich & Associates,
Matthew A. Berger, M.D., Matthew A. Berger, M.D., P.C. also appeal; see
Henry v. Colangelo, et al., 1580 MDA 2020.
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the acquaintance on a voluntary, outpatient basis, and neither the
doctor nor person exercise any custody or control over the
acquaintance?
Colangelo and Clearbrook Brief at 3.
[O]ur standard of review of an order of the trial court
overruling or [sustaining] preliminary objections is to determine
whether the trial court committed an error of law. When
considering the appropriateness of a ruling on preliminary
objections, the appellate court must apply the same standard as
the trial court.
Preliminary objections in the nature of a demurrer test the
legal sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable
to prove facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be sustained, it
should be resolved in favor of overruling the preliminary
objections.
Haun v. Community Health Systems, Inc., 14 A.3d 120, 123 (Pa. Super.
2011) (citations omitted).
We first note that the parties characterize the crucial relationship
between decedent and Colangelo differently. From the Henry Estate’s
perspective, this is a story about a charlatan holding himself out as a mental
health professional, thereby courting the worst risk in mental health
treatment. Henry Brief at 2. In Colangelo’s telling, the decedent was an
acquaintance whom he (perhaps) met while both attended meetings of
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Alcoholics Anonymous.4 Colangelo Brief at 3-4. At this early stage, the trial
court is tasked with accepting all well-pled material allegations in the
complaint as true, as well as all reasonable inferences therefrom. Bayada
Nurses, Inc. v. Com., Dep’t of Labor & Indus., 8 A.3d 866, 884 (Pa. 2010).
After reciting and applying the appropriate standard, the trial court
concluded that it is “unable to rule with certainty that the demurrer should be
sustained, as the existence of a duty of care in the instant scenario is: A) not
foreclosed by [McPeake v. William T. Cannan, Esq., P.C., 553 A.2d 439(Pa. Super. 1989)]; and B) favored by the duty analysis set forth [in Althaus
v. Cohen, 756 A.2d 1166 (Pa. 2000)].” Trial Ct. Op. at 8-9. In McPeake,
this Court held that a decedent’s suicide abrogates a prospective tortfeasor’s
duty of care for purposes of wrongful death and survivorship. McPeake is a
legal malpractice action in which this Court affirmed the order sustaining
preliminary objections where the attorney defendant had undertaken to
defend the decedent in a criminal trial; the decedent reacted to the jury verdict
of guilty by jumping from a courthouse window to his death. McPeake, 553
A.2d at 440. McPeake stands for the principle that there can be no duty to
prevent suicide where the risk is not reasonably foreseeable, as “it would be
unfair to impose a duty upon persons to prevent a harm that they could not
foresee or avoid.” McPeake, 553 A.2d at 442.
4 Colangelo’s Brief describes Colangelo as having spent “years as President,
CEO, and/or Director of various addiction and mental health facilities.”
Colangelo’s Brief at 39.
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An attorney . . . is responsible only for the loss proximately caused
his client by his negligence. Suicide has been recognized as an
act that is so extraordinary as not to be reasonably foreseeable
and thus courts have held that it is not the type of harm that can
proximately result from ordinary negligence.
Id. (footnote omitted). The McPeake Court also recognized that, although
the general rule is against liability for suicide, there are “limited exceptions”
including one for claims “involving hospitals, mental health institutions and
mental health professionals, where there is a custodial relationship and the
defendant has a recognized duty of care towards the decedent.” Id. at 441.
In Althaus, our Supreme Court determined that a therapist who treats
a child for alleged sexual abuse owes no duty of care to the child’s parents
where the child allegedly has been abused by the parents. Althaus ex rel.
Althaus v. Cohen, 756 A.2d 1166, 1167 (Pa. 2000). The trial court relied on
the duty analysis set forth in Althaus:
The determination of whether a duty exists in a particular case
involves the weighing of several discrete factors which include:
(1) the relationship between the parties; (2) the social utility of
the actor’s conduct; (3) the nature of the risk imposed and
foreseeability of the harm incurred; (4) the consequences of
imposing a duty upon the actor; and (5) the overall public interest
in the proposed solution.
Althaus, 756 A.2d at 1169 (citations omitted).
The trial court applied these factors to the facts as pled, determining
that Colangelo “held himself out to Decedent and Decedent’s family as
qualified to provide mental health treatment to Decedent, then undertook to
provide such care to Decedent.” Trial Ct. Op. at 16. The trial court found no
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social utility in “misrepresenting one’s qualifications in the attempted provision
of specialized care to an individual suffering from potentially grave
psychological issues.” Id. The trial court found the risk courted here to be
both self-evident and grave. Id. at 17. In considering the consequences of
imposing a duty here, the trial court considered that such imposition “would
operate to ensure 1) that unqualified individuals do not undertake to provide
mental health treatment [ ] which they are not qualified to render” and “2)
that other qualified medical or mental health professionals should not act at
the direction of or in accordance with treatment schemes devised by
unqualified individuals.” Id. at 18. Finally, the trial court concluded that
imposition of a duty here would be consistent with the public’s interest in
“ensuring that 1) mental health treatment is provided by, and only by, those
qualified to render such care; and 2) only such qualified professionals may
develop actionable treatment plans” to implement such care. Id. at 19.
“Were an individual to have lost a leg due to having placed their trust in the
surgical care of an unqualified person who held themselves out to have been
qualified . . . the public interest in ensuring the prevention of such unqualified
surgery through the imposition of liability would be unquestioned.” Id.
Colangelo argues that the trial court misapplied McPeake, as in
Colangelo’s reading, it forecloses recovery. Colangelo’s Brief at 17-20.
Further, Colangelo characterizes some of the factors relied upon by the trial
court as “conclusions of law” as opposed to “well pleaded material allegations”
and “reasonable inferences therefrom.” Id. at 24-27. Specifically, Colangelo
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asserts that the allegation “[Appellant] Colangelo, as an employee of
[Appellant Clearbrook], undertook to provide mental health treatment and
services to Decedent” is a legal conclusion and therefore not subject to the
general rule for preliminary objections that averments in the complaint must
be taken as true. See id. at 25. Finally, Colangelo reweighs the factors
outlined in Althaus, reaching very different conclusions as to what those
factors say about the present matter. Id. at 27-52.5
The stringent standard for preliminary objections seeking dismissal
requires that they be sustained only where it is free from doubt that the
plaintiff cannot establish facts sufficient to establish the right to relief. Haun,
14 A.3d at 123. This matter arguably falls within an explicit exception to the
general rule against wrongful death liability for death by suicide. McPeake,
553 A.2d at 441. Whether Colangelo is a mental health professional or took
on the duty appropriate to such a professional will be for the jury to determine.
Certainly, it would be contrary to public policy to allow Colangelo to escape
liability if it is true that he was merely masquerading as such a professional
when he, as alleged in the pleadings, reassured the decedent’s family that he
was capable of shepherding the decedent through the mental health crisis that
ultimately claimed his life. See Trial Ct. Op. at 5. Status as a layperson will
not serve as a shield to liability where the layperson in question undertakes
5 This Court reviewed Henry’s Brief, as well as an amicus brief filed by the
Pennsylvania Association of Justice. Both briefs largely agree with the trial
court’s cogent discussion of the relevant legal considerations.
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to act as a professional and induces others to rely on their course of care (and
thereby to eschew treatment elsewhere), to their detriment.
This Court has applied the following section of the Restatement (Second)
which has been adopted in Pennsylvania:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for
the protection of the other's person or things, is subject to liability
to the other for physical harm resulting from his failure to exercise
reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such
harm, or
(b) the harm is suffered because of the other's reliance upon the
undertaking.
Restatement (Second) of Torts § 323 (see Scampone v. Grane Healthcare
Co., 169 A.3d 600, 617 (Pa. Super. 2017)).6
Though Colangelo sees a parade of horribles in the trial court’s ruling,
this is a ruling on preliminary objections, not a verdict. Too much remains
uncertain to deny a well-pled claim the process due. Because we discern no
error of law in the well-reasoned trial court opinion, we affirm.
Order affirmed.
6 Scampone also confirms that Section 324A of the Restatement (Second) of
Torts, entitled “Liability to Third Person for Negligent Performance of
Undertaking,” has also been adopted in Pennsylvania. See Id.- 10 -
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2021
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