Harris, S. v. Harker, A.

• Court: Superior Court of Pennsylvania
• Decided: March 11, 2025
• Docket: 2718 EDA 2023
• Status: Unpublished

Opinion

J-A01006-25, J-A01007-25, J-A01046-25 & J-A01047-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

STEPHENIE HARRIS, : IN THE SUPERIOR COURT OF ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA T.G : : : v. : : : ASHLEY MARIE HARKER, JOY L. : No. 2718 EDA 2023 ALFONSI, AND COLUMBIA/WEGMAN, : LLC D/B/A THE LANDING OF : SOUTHAMPTON : : : APPEAL OF: COLUMBIA/WEGMAN, : LLC D/B/A THE LANDING OF : SOUTHAMPTON AND LEISURE CARE, : LLC :

Appeal from the Order Entered September 21, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 220801442

STEPHENIE HARRIS, : IN THE SUPERIOR COURT OF ADMINISTRATRIX OF THE ESTATE : PENNSYLVANIA AND PERSON OF T.G., AN : INCAPACITATED PERSON, : STEPHENIE HARRIS, MELISSA : FRIEDMAN, EXECUTRIX OF THE : ESTATE OF L.F. AND TERRI ETKIN : GOLDMAN AND MARC ETKIN, CO- : ADMINISTRATORS OF THE ESTATE : No. 2744 EDA 2023 OF P.E. : : : v. : : : ASHLEY MARIE HARKER, JOY L. : ALFONSI, COLUMBIA/WEGMAN, LLC : J-A01006-25, J-A01007-25, J-A01046-25 & J-A01047-25

D/B/A THE LANDING OF : SOUTHAMPTON AND LEISURE CARE, : LLC : : : APPEAL OF: COLUMBIA/WEGMAN, : LLC D/B/A THE LANDING OF : SOUTHAMPTON AND LEISURE CARE, : LLC

Appeal from the Order Entered September 21, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 230701951

STEPHENIE HARRIS, : IN THE SUPERIOR COURT OF ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA T.G. : : : v. : : : ASHLEY MARIE HARKER, JOY L. : No. 41 EDA 2024 ALFONSI, COLUMBIA/WEGMAN, LLC : D/B/A THE LANDING OF : SOUTHAMPTON : : : APPEAL OF: COLUMBIA/WEGMAN, : LLC D/B/A THE LANDING OF : SOUTHAMPTON AND LEISURE CARE, : LLC :

Appeal from the Order Entered December 1, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 220801442

STEPHENIE HARRIS, : IN THE SUPERIOR COURT OF ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA T.G., STEPHENIE HARRIS, MELISSA : FRIEDMAN, EXECUTRIX OF THE : ESTATE OF L.F. AND TERRI ETKIN : GOLDMAN AND MARC ETKIN, CO- :

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ADMINISTRATORS OF THE ESTATE : OF P.E. : : No. 360 EDA 2024 : v. : : : ASHLEY MARIE HARKER, JOY L. : ALFONSI, COLUMBIA/WEGMAN, LLC : D/B/A THE LANDING OF : SOUTHAMPTON AND LEISURE CARE, : LLC : : : APPEAL OF: COLUMBIA/WEGMAN, : LLC D/B/A THE LANDING OF : SOUTHAMPTON AND LEISURE CARE, : LLC :

Appeal from the Order Entered December 1, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 230701951

BEFORE: DUBOW, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY DUBOW, J.: FILED MARCH 11, 2025

In these four appeals, which we have consolidated sua sponte,

Appellants, Columbia/Wegman LLC d/b/a The Landing of Southampton (“The

Landing”), and Leisure Care, LLC (“Leisure Care”) (collectively, “Appellants”)

appeal from the September 21, 2023 order entered in the Philadelphia County

Court of Common Pleas overruling the preliminary objections to Appellees’

seventh amended complaint and the December 1, 2023 order determining

that Appellees’ “Motion for a Determination that the Filing of a Certificate of

Merit is not Required” is moot. After careful review, we affirm both orders.

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The relevant facts and procedural history are as follows. Appellees are

family members of former residents (the “victims”) of the memory care unit

at The Landing, an independent living, personal care, and memory care

facility. On May 19, 2023, Appellees, in their own right and on behalf of the

victims L.F. and T.G., filed at Case No. 220801442 a 12-count seventh

amended complaint (the “Seventh Amended Complaint”) alleging that a male

resident of The Landing sexually assaulted the victims, causing them to suffer

trauma and emotional distress. On July 20, 2023, Appellees, on behalf of

themselves, L.F., T.G., and a newly-identified third victim, P.G., initiated a

second action at Case No. 230701951 raising the same claims and adding

Leisure Care, The Landing’s parent company, as a defendant. 1

In the complaints, Appellees specifically claimed that the individual

defendants, Ashley Marie Harker and Joy L. Alfonsi, 2 negligently failed to

prevent and report the sexual assaults. They also raised claims of Negligence

against The Landing and Leisure Care and of Intentional Infliction of Emotional

Distress claims against all defendants. In addition to the claims asserted on

behalf of the victims, Appellee Harris sought damages for loss of consortium

and Appellee Friedman sought damages for loss of enjoyment of life. In the

____________________________________________

1 On November 13, 2023, Appellees amended this complaint for a third time

and the operative complaint for purposes of this appeal is this third amended complaint (the “Third Amended Complaint”).

2 Ms. Harker was The Landing’s General Manager and Ms. Alfonsi its Director

of Health and Wellness.

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complaint, Appellees expressly stated that they were not asserting any

medical or other professional liability claims.

The Landing filed preliminary objections to the Seventh Amended

Complaint alleging, inter alia, that, contrary to Appellees’ representations,

Appellees’ claims sounded in professional negligence pursuant to Pa.R.Civ.P.

1042.2(b), and not ordinary negligence, and, therefore, the Rule required

Appellees to file a Rule 1042.3 certificate of merit. 3

Following a hearing, on September 21, 2023, the trial court overruled

The Landing’s preliminary objections to the Seventh Amended Complaint,

finding that Appellees’ action was not a professional negligence action. 4, 5

On October 20, 2023, The Landing filed two notices of appeal from the

trial court’s September 21, 2023, order: one challenging the court’s

determination that Appellees did not need to file a certificate of merit and one

overruling its preliminary objections as to venue (the “First Appeal”). 6 ____________________________________________

3 In the preliminary objections, The Landing also objected to venue in Philadelphia County. On August 22, 2023, however, the parties stipulated that if the trial court found that this was not a professional negligence action, venue was proper in Philadelphia County. On November 16, 2023, the trial court approved the stipulation. 4 The court overruled the remaining preliminary objections in the nature of a

demurrer on December 8, 2023.

5 On October 5, 2023, the trial court consolidated Case No. 220801442 with

Case No. 230701957.

6 This non-final order is immediately appealable as a collateral order. Kelly Sys., Inc. v. Leonard S. Fiore, Inc., 198 A.3d 1087, 1091 (Pa. Super. 2018). We docketed these appeals at Nos. 2718 EDA 2023 and 2744 EDA 2023.

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Notwithstanding the court’s order determining that Appellees did not

need to file a certificate of merit, Appellants filed a notice of intent to enter

judgment of non pros for failure to file a certificate of merit. In response, on

November 8, 2023, Appellees filed a “Motion for Determination that the Filing

of a Certificate of Merit is Not Required” (“Motion for Determination”). On

December 1, 2023, the trial court entered an order finding Appellees’ motion

moot. As a result, Appellants filed a set of notices of appeal from the

December 1, 2023 order which this Court docketed at Nos. 41 and 360 EDA

2024 (the “Second Appeal”).7

Appellants raise the following issue in each of their four appeals: 8

Whether the trial court erred in refusing to designate this lawsuit as an action sounding in professional negligence, pursuant to ____________________________________________

7 The trial court did not order Appellant to file a Pa.R.A.P. 1295(b) statement.

8 Appellants have indicated that their briefs for the appeals pending at Nos.

2718 and 2744 EDA 2023 are identical to each other and that those filed at Nos. 41 and 360 EDA 2024 are identical to each other. Thus, to the extent we must refer separately to Appellants’ briefs, we have labeled them the “First Appeal Brief” and “Second Appeal Brief,” respectively. In addition, our review of the First Appeal Brief and Second Appeal Brief reveals that Appellants have raised a singular issue for our review in each appeal. The argument presented in support of this issue in the Second Appeal Brief appears to differ from the First Appeal Brief only in that, in the Second Appeal Brief, Appellants also argue that the trial court erroneously consolidated the cases and erred in determining that the September 20, 2023 order was the “law of the case” and rendered the Motion for Determination moot. Second Appeal Brief at 26-28. Because Appellants did not raise this issue in their Statement of Questions Involved and it is not fairly suggested thereby, we decline to address it. See Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”). We, thus, confine our review to the court’s determination that Appellees’ claims sound in ordinary negligence and not professional negligence.

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Pa.R.C.P. 1042.2 and 1042.3, which would require [Appellees] to file a certificate of merit?

First Appeal Brief at 2; Second Appeal Brief at 2.

Appellants claim that the trial court erred in finding that Appellees pled

an ordinary negligence claim against Appellants and not a professional

negligence claim that would necessitate filing a certificate of merit. To

determine which theory of liability a plaintiff has asserted in his or her

complaint, we must examine the averments set forth therein. Ditch v.

Waynesboro Hosp., 917 A.2d 317, 321 (Pa. Super. 2007). This claim

presents a question of law over which our standard of review is de novo, and

our scope of review is plenary. Id.

Our Supreme Court has defined medical malpractice 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). “[T]he basic

elements of medical malpractice and ordinary negligence are the same,

although medical malpractice has some distinguishing characteristics.” Ditch,

917 A.2d at 322.

Medical malpractice has two defining features: (1) it can only occur

within the course of a professional relationship and (2) it raises questions of

medical judgment. Id. Thus, to determine whether a plaintiff has pled a

medical malpractice claim, we must consider whether the plaintiff’s claim

“pertains to an action that occurred within the course of a professional

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relationship [and] whether the claim raises questions of medical judgment

beyond the realm of common knowledge and experience.” Id. (citation

omitted, emphasis added). Critically, “where a complaint is predicated upon

facts constituting medical treatment, that is, when it involves diagnosis,

care[,] and treatment, by licensed professionals, the action must be

characterized as a professional negligence action.” Yee v. Roberts, 878 A.2d

906, 912 (Pa. Super. 2005) (internal citations and quotation marks omitted);

Smith v. Friends Hosp., 928 A.2d 1072, 1076 (Pa. Super. 2007) (explaining

that because “nothing in [the] complaint is predicated upon substandard

medical treatment, that is, acts involving diagnosis, care[,] and treatment by

licensed professionals,” the complaint “does not allege professional negligence

or a deviation from an acceptable professional standard.”).

Appellants acknowledge that Appellees’ complaints raised ordinary

negligence claims pertaining to Ms. Harker’s and Ms. Alfonsi’s cover-up of the

assaults of the victims. First Appeal Brief at 18-19, Second Appeal Brief at

23-24. Appellants assert, however, that Appellees also raised medical

professional negligence claims regarding “the possibility of whether The

Landing failed to take appropriate steps that possibly could have prevented

the assaults from occurring at all, steps which involve medical treatments and

judgments.” First Appeal Brief at 19 (citing Seventh Amended Complaint at

Exh. 5); Second Appeal Brief at 24 (citing Third Amended Complaint at Exh.

7). In particular, Appellants contend that a grand jury report issued following

criminal investigation of Ms. Alfonsi and Ms. Harker arising from these

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incidents and Appellees’ exhibits appended to both of the operative complaints

mention that Ms. Alfonsi “made a note in the perpetrator’s file that he ‘remains

sexually inappropriate,’ and that, as a result, she ordered increases in the

dosages of certain medication to be given to him.” First Appeal Brief at 19

(citing Seventh Amended Complaint at Exh. 5); Second Appeal Brief at 24

(citing Third Amended Complaint at Exh. 7). Appellants infer from the

inclusion of the grand jury report and the report’s notation regarding post-

assault adjustments made to the perpetrator’s medications, that Appellees

intend to advance a theory that, had Appellants properly exercised its medical

judgment when determining how much medicine to give the perpetrator,

Appellants could have prevented the assaults against the victims. First

Appellate Brief at 19, Second Appellate Brief at 25. Appellants conclude that

the complaints’ “generalized allegations averring that The Landing failed to

prevent any assaults from occurring take this lawsuit out of the realm of

‘ordinary’ negligence and into the realm of professional negligence, thereby

requiring [Appellees] to have submitted a [c]ertificate of [m]erit.” Second

Appellate Brief at 25.

We disagree with Appellants’ characterization of Appellees’ claim—that

Appellants failed to prevent the assaults—as a medical professional negligence

claim. We find this Court’s decision in Smith, supra, instructive in

determining whether these allegations give rise to ordinary negligence or

medical professional negligence claims.

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In Smith, the plaintiff alleged that she had been sexually assaulted and

beaten by hospital employees. She asserted claims against the hospital for

failing to properly employ and supervise its employees who allegedly

perpetrated the assaults and for failing to create an environment where such

acts could not occur. In evaluating the nature of the plaintiff’s claims and

concluding that the claims sounded in ordinary negligence, this Court

determined that, not only did claims of this nature “not raise questions

involving medical judgment beyond the realm of common knowledge and

experience[,] they did not raise questions of medical judgment at all.” Smith,

928 A.2d at 1076. This Court further found that because nothing in the

plaintiff’s complaint involved substandard diagnosis, care, and treatment by

licensed professionals, the “complaint does not allege professional negligence

or a deviation from an acceptable professional standard.” Id.

Our review of the Seventh Amended Complaint and the Third Amended

Complaint indicates that the claims in the complaints are based upon

Appellees’ allegations that Appellants concealed and failed protect against and

to report the sexual assaults against the victims to the victims’ families and

the appropriate authorities, as well as general allegations that Appellants

negligently failed to prevent the assaults from occurring. Appellees did not

set forth any allegations that called into question medical treatment,

diagnosis, or care provided by Appellants. Thus, following our de novo review

and considering the averments made by Appellees as a whole, we conclude

that, like in Smith, because Appellees’ action arose from unreported sexual

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assaults on the victims, and not from questions involving Appellants’ medical

judgment, Appellees raised only ordinary negligence claims. The trial court,

therefore, properly determined that Appellees were not required to file

certificates of merit, and we affirm the court’s orders.

We affirm the orders on appeal at Nos. 2718 EDA 2023, 2744 EDA 2023,

41 EDA 2024, and 360 EDA 2024 affirmed. Case remanded. Jurisdiction

relinquished.

Date: 3/11/2025

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