DaSilva, A. v. Abington Memorial Hospital

• Court: Superior Court of Pennsylvania
• Decided: June 2, 2026
• Docket: 1707 EDA 2025
• Status: Unpublished
• Author: Kunselman

Opinion

J-A05007-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

ALEXANDRO ALVES DASILVA AND : IN THE SUPERIOR COURT OF MEIRIVAM DASILVA : PENNSYLVANIA : Appellants : : : v. : : : No. 1707 EDA 2025 ABINGTON MEMORIAL HOSPITAL : D/B/A JEFFERSON ABINGTON : HOSPITAL, JOHN DOE AND/OR JOHN : DOE COMPANY :

Appeal from the Order Entered June 17, 2025 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 241203207

BEFORE: KUNSELMAN, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 2, 2026

In this medical malpractice case, Appellants, Alexandro DaSilva and his

wife, Meirivam DaSilva, (“the DaSilvas”) appeal from the order sustaining the

preliminary objections of Abington Memorial Hospital d/b/a/ Jefferson

Abington Hospital, John Doe and /or John Doe Company (“the Hospital”) and

dismissing the DaSilvas’ second amended complaint with prejudice. The

DaSilvas argue that the complaint was sufficient and/or that they should be

allowed to amend. Upon review, we reverse.

On January 5, 2024, Alexandro went to the emergency room at the

Hospital and stayed into the next day. The nursing staff evaluated him. They

noted:

36-year old male presenting with unusual behavior and not sleeping for 48 hours. Patient making very odd statements, J-A05007-26

running on the treadmill in the middle of the night, extremely stressed out acting odd. He had not had any auditory visual hallucination, no active SI or HI. On physical exam patient has an odd [effect] but otherwise normal exam. Normal neurologic exam. Patient’s symptoms consistent with a psychotic break however will rule out organic causes. Patient care transitioned to oncoming team pending final disposition crisis evaluation.

And fever. The headache resolved after 1 day, the fever after 2 days. His cough continues. As the cough continues, his wife notices that he has not been sleeping well but yesterday he did not sleep at all and was talking throughout the entire night. The patient admits that for the past couple of nights he runs on the treadmill in the middle of the night. He was making strange statements like, “I’m dying and I need to say goodbye to the kids.” He repeatedly made statements that he was going to die. He had an appointment with the family doctor today and in the car ride there, he was having increasingly unusual behavior such as getting undressed completely while in the passenger seat . . .

Second Amended Complaint, ¶ 9 (emphasis added). When Alexandro’s nurse

left him to care for another patient, Alexandro walked out of the Hospital and

was hit by a car. He was seriously injured.

On December 30, 2024, the DaSilvas filed a complaint. They alleged

that Alexandro was suffering from a psychiatric episode when he came to the

Hospital for medical care. They further claimed that the Hospital was

negligent, directly and vicariously, in caring for Alexandro and allowing him to

leave Hospital while still in that state, and, as a result he was hit by a car and

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injured. Additionally, the DaSilvas claimed the Hospital violated the

Emergency Medical Treatment and Labor Act (“EMTALA”), 52 U.S.C. 1395dd. 1

On January 17, 2025, the Hospital filed a notice of removal to federal

court. On February 18, 2025, the parties stipulated to the withdrawal of the

federal EMTALA claims and transferred the case back to the Philadelphia Court

of Common Pleas.

On February 27, 2025, the DaSilvas filed a first amended complaint.

Again, the DaSilvas alleged that Alexandro was suffering from a psychiatric

episode when he went to the Hospital for medical care. They further alleged

that the Hospital medical and nursing staff saw Alexandro in the emergency

room. According to Alexandro’s medical chart, Alexandro’s nurse left him to

care for another patient. The DaSilvas claimed that the Hospital and its

employees, agents, and apparent agents were negligent in failing to follow

various standards of care and allowing him to leave the hospital in such state,

which caused his injuries. The DaSilvas averred that Hospital was negligent

as to screening, stabilizing, monitoring, and triaging Alexandro but did not

reference the EMTALA or claim of discrimination.

____________________________________________

1 This federal statute places obligations of screening and stabilization upon hospitals and emergency rooms that receive patients suffering from an “emergency medical condition.” Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 250 (1999). “EMTALA requires hospitals to provide medical screening and stabilizing treatment to individuals seeking medical care in a nondiscriminatory manner.” Torretti v. Main Line Hosps., Inc., 580 F.3d 168, 173 (3d Cir. 2009).

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On March 20, 2025, the Hospital filed preliminary objections again

maintaining that: the DaSilvas failed to plead any material factual allegations

in support of their negligence claims, their allegations of negligence and

agency were vague/insufficiently specific, and they asserted EMTALA claims

in violation of the stipulation.

In response, the DaSilvas filed a second amended complaint on April 9,

2025. In this complaint, the DaSilvas added the excerpt referenced above

from Alexandro’s medical chart, that included his unusual behavior upon his

initial evaluation.

On April 24, 2025, the Hospital again filed preliminary objections

seeking dismissal of this complaint for failure to set forth material facts, lack

of specificity, and inclusion of scandalous and impertinent matter. The

Hospital maintained that the second amended complaint was the same as the

first, except that it included an incomplete excerpt from Alexandro’s medical

record, which did not clarify or support the specific theories of liability.

On June 16, 2025, the trial court entered an order sustaining the

Hospital’s preliminary objections and dismissed the DaSilvas’ second amended

complaint with prejudice. Specifically, the court concluded that the DaSilvas:

1) failed to plead any material factual allegations in support of their claims of

negligence; (2) set forth vague allegations of negligence and unidentified

agency; and (3) asserted claims under the EMTALA, in violation of the consent

order and stipulation.

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The DaSilvas filed this timely appeal. They and the trial court complied

with Appellate Rule 1925.

Initially, we observe that the DaSilvas’ appellate brief does not include

a statement of questions involved, as required by Pa.R.A.P. 2111(4).

Appellate Rule 2116(a) provides as follows:

(a) General rule. The statement of the questions involved must state concisely the issues to be resolved, expressed in the terms and circumstances of the case but without unnecessary detail. The statement will be deemed to include every subsidiary question fairly comprised therein. No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.

Pa.R.A.P. 2116(a) (emphasis added). “We will not ordinarily consider any

issue if it has not been set forth in or suggested by an appellate brief's

statement of questions involved, Pa.R.A.P. 2116(a), and any issue not raised

in a statement of matters complained of on appeal is deemed waived.” Krebs

v. United Ref. Co., 893 A.2d 776, 797 (Pa. Super. 2006). “This Court

possesses discretionary authority to quash, dismiss, or deny allowance of

appeal based upon the substantial defects of [an] appellant's brief.”

Commonwealth v. Maris, 629 A.2d 1014, 1017 (Pa. Super. 1993) (citing

Pa.R.A.P. 2101).

Because the DaSilvas failed to include a statement of questions involved

in their brief, we could deem their issues waived. Here, however, we decline

to do so, as we can easily ascertain their issues.

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On appeal, the DaSilvas generally claim that the trial court erred when

it sustained the Hospital’s preliminary objections and dismissed their

complaint with prejudice.

Rule 1028 provides in relevant part:

(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:

***

2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter;

(3) insufficient specificity in a pleading[.]

Pa.R.C.P. 1028(a)(2) and (3).

“In determining whether the trial court properly sustained preliminary

objections, the appellate court must examine the averments in the complaint,

together with the documents and exhibits attached thereto, in order to

evaluate the sufficiency of the facts averred.” Rambo v. Greene, 906 A.2d

1232, 1235 (Pa. Super. 2006). If the appellate court affirms the trial court's

ruling that will result in the denial of a claim or dismissal of the suit, the case

must be free and clear from doubt; this Court will reverse the trial court's

decision regarding preliminary objections only where there has been an error

of law or abuse of discretion. Id.

First, the DaSilvas argue that the trial court erred when it concluded

that they failed to plead any material facts to support their negligence claims.

They further argue that the court erred in determining that their allegations

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of negligence and their identity of the Hospital’s agents were insufficiently

specific. Therefore, according to the DaSilvas, this Court should reverse the

trial court’s order. DaSilvas’ Brief at 9, 13, 20. We agree the second amended

complaint was sufficient.

Our Supreme Court has explained:

Pennsylvania is a fact-pleading jurisdiction; as such, a complaint must provide notice of the nature of the plaintiff's claims and also summarize the facts upon which the claims are based. Rule of Civil Procedure 1019(a) and (b) encapsulate this theory. Rule 1019(a) provides that in pleadings, “the material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019(a) . . . . The purpose . . . is to require the pleader to disclose material facts sufficient to notify the adverse party of the claims it will have to defend against. [Material facts are ultimate facts, i.e., those facts essential to support the claim. Baker v. Rangos, 324 A.2d 498, 505-06 (Pa. Super. 1974)].

While our rules require the pleading of all material facts upon which claims are based, there is no requirement to plead the evidence upon which the pleader will rely to establish those facts. Unified Sportsmen of Pa. v. Pa. Game Comm'n, 950 A.2d 1120, 1134 (Pa. Commw. 2008) (holding that to be sufficiently specific, “the complaint need not cite evidence but only those facts necessary for the defendant to prepare a defense”). We have long recognized that the line between pleading facts and evidence is not always bright, but distilled the specificity requirement into two conditions that must always be met: the pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense and they must be sufficient to convince the court that the averments are not merely subterfuge. To assess whether a claim has been pled with the requisite specificity, the allegations must be viewed in the context of the pleading as a whole.

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Commonwealth by Shapiro v. Golden Gate Nat'l Senior Care LLC, 194

A.3d 1010, 1029-1030 (Pa. 2018) (brackets and some quotation marks and

citations omitted).

Again, the trial court opined that the DaSilvas’ second amended

complaint lacked the requested specificity. We find this was error. See

Rambo. Reading the allegations in the context of the entire complaint, we

conclude that the DaSilvas complied with our pleading requirements. In their

second amended complaint, the DaSilvas set forth material facts as required

under Rule 1019. In this medical malpractice action the DaSilvas alleged the

following: on January 5, 2024, Alexandro came to Hospital for medical care

and help; he was having a psychiatric episode, the details of which are

highlighted in his medical chart from the Hospital; the Hospital improperly and

negligently cared for Alexandro in various ways, which, notably, included

leaving him unattended given his mental and physical state and allowing him

to walk out of the Hospital in that condition; and as a result, he was hit by a

car, injured, and disfigured. These material facts put the Hospital on notice

of the claims it will have to defend against. See Shapiro, supra.

Additionally, the DaSilvas pled these facts with sufficient specificity and

were not mere subterfuge. The DaSilvas allege numerous negligent acts

and/or omissions by the Hospital in caring for Alexandro, who was

experiencing mental health issues. The DaSilvas further specified the

circumstances surrounding Hospital’s negligent acts and/or omission by

adding the excerpt from Alexandro’s medical chart. This excerpt detailed

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Alexandro’s mental and physical condition when he came to the Hospital. It

specifically described Alexandro’s symptoms, complaints, and behaviors and

provided context for the DaSilvas allegations of negligence.

This information also alleged that the medical and nursing staff was

aware that Alexandro was having a mental health crisis and were awaiting an

evaluation. Nonetheless, they left Alexandro unattended, and he was able to

walk out of the hospital in that state, and, as a result, a car hit and injured

him.

Furthermore, the DaSilvas’ allegations of agency were sufficiently

specific. Here, the DaSilvas generally alleged that the Hospital acted

negligently “through its employees/agents” and that “[t]he nurses and

medical providers, including the Emergency Room nurse and Doctors who

cared for [Alexandro] were the agents, apparent agents, ostensible agents,

servants, workmen, or employees, or were otherwise associated with,

[Hospital], . . .”

This Court has concluded that “it is not necessary for a plaintiff to

establish a right to recover on a claim for vicarious liability based upon the

negligence of a specific named employee.” Est. of Denmark ex rel. Hurst

v. Williams, 117 A.3d 300, 306 (Pa. Super. 2015). “‘Simply because

employees are unnamed within a complaint or referred to as a unit, i.e., the

staff, does not preclude one’s claim against their employer under vicarious

liability if the employees acted negligently during the course and with the

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scope of their employment.’” Id. (quoting Sokolsky v. Eidelman, 93 A.3d

858 (Pa. Super. 2014) (emphasis removed).

Understanding that agents do not have to be named, when reading this

language in the context of the whole complaint, the DaSilvas claims are

apparent. First, the DaSilvas alleged that Alexandro sought care at Hospital’s

emergency room. In fact, they reference emergency room providers. Thus,

these allegations clearly call into question the Hospital's actions in relation to

and through its emergency room staff.

Additionally, the DaSilvas averred that Alexandro was at the Hospital’s

emergency room on January 5th and 6th, which provides a specific time frame

and limits those who could allegedly be responsible for his care. Because he

was experiencing mental health issues, this further narrows the class of

employees who potentially were involved in his care.

Moreover, this Court has concluded that where a plaintiff does not

identify the nurses or doctors, or other agents for that matter, allegedly

responsible, the names of those who performed services for the plaintiff are

known to the defendant or can be ascertained during discovery. Denmark,

117 A.3d at 307.

Thus, we conclude that the trial court erred when it sustained Hospital’s

preliminary objections for failure to plead material facts and insufficient

specificity.

The DaSilvas also argue that the trial court erred when it determined

that their second amended complaint included scandalous and impertinent

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material. They maintain that, although they agreed to withdraw the EMTALA-

based claims, the state law negligence claims based on the same operative

facts remain viable and properly plead. DaSilvas’ Brief at 20. We agree.

Pennsylvania Rule of Civil Procedure 1028(a)(2) provides for preliminary

objections to be filed when pleadings include a scandalous or impertinent

matter. To be scandalous or impertinent, “‘the allegation must be immaterial

and inappropriate to the proof of the cause of action.’” Breslin v. Mountain

View Nursing Home, Inc., 171 A.3d 818, 829 (Pa. Super. 2017) (quoting

Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115

(Pa. Commw. 1998)). The right to strike impertinent matter, however,

“‘should be sparingly exercised and only when a party can affirmatively show

prejudice.’” Id. (quoting Commonwealth Dep't of Envtl. Res. v. Hartford

Accident and Indem. Co., 396 A.2d 885, 888 (Pa. Commw. 1979)).

Here, the trial court struck as “scandalous or impertinent” the

allegations of the second amended complaint which it found related to the

DaSilvas’ EMTALA claims because they agreed to withdraw those claims.

However, as the DaSilvas argue, the allegations pertaining to triaging,

screening, stabilizing, and monitoring, etc., which may serve as a basis for an

EMTALA discrimination claim, may also serve as the basis for a general

negligence claim under state law.

The EMTALA “is not a malpractice statute” and “cannot be used to

challenge the quality of medical care.” Nartey v. Franciscan Health Hosp.,

2 F.4th 1020, 1025 (7th Cir. 2021). “‘EMTALA was not intended to establish

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guidelines for patient care, [to] replace available state remedies, or to provide

a federal remedy for medical negligence.’” Munoz v. Children's Hosp. of

Philadelphia, 265 A.3d 801, 807 n.6 (Pa. Super. 2021) (quoting Harry v.

Marchant, 291 F.3d 767, 773 (11th Cir. 2002) (citations omitted).

Thus, the allegations pertaining to how Hospital triaged, screened,

stabilized, and monitored Alexandro relate to the DaSilvas’ malpractice claim

and therefore were not encompassed by the parties’ stipulation to withdraw

the EMTALA claims. The DaSilvas only agreed to withdraw their EMTALA

discrimination claim. We therefore conclude these allegations were not

“immaterial and inappropriate” and the trial court erred in sustaining

Hospital’s preliminary objection on this basis.

Accordingly, we reverse the trial court's order sustaining Hospital’s

preliminary objections.2

Order reversed. Case remanded for defendant to file an answer to the

second amended complaint. Jurisdiction relinquished.

2 Given this disposition, we need not address the DaSilvas remaining issue as

to whether it should be permitted to amend. Even if we had found the allegations insufficient, we note that our Supreme Court has granted leave to amend even when the appellant did not request this remedy with the trial court so long as the amendment would not be futile. See Otto v. American Mutual Ins. Co., 393 A.2d 450, 451 (Pa. 1978). Here, again, we conclude no amendment is necessary.

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Date: 6/2/2026

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