J-A12030-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
RALPH J. REISH, JR., EXECUTOR OF : IN THE SUPERIOR COURT OF THE ESTATE OF ELIZABETH M. : PENNSYLVANIA REISH, DECEASED AND RALPH J. : REISH, JR., EXECUTOR OF THE : ESTATE OF RALPH J. REISH, SR., : DECEASED : : Appellant : : No. 2429 EDA 2022 : v. : : : VISITING ANGELS :
Appeal from the Order Entered August 26, 2022 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2021-19136
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 21, 2023
Appellant Ralph J. Reish, Jr., Executor of the Estates of Elizabeth M.
Reish and Ralph J. Reish, Sr. (collectively, “Decedents”), appeals from the
order sustaining Appellee Visiting Angels’ preliminary objections and
dismissing Appellant’s amended complaint with prejudice. Appellant contends
that the trial court erred in concluding that Appellee did not owe a duty of care
to Decedents and that Appellant failed to plead sufficient facts in support of
his claims. We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
[Appellant] commenced this wrongful death and survival action against [Appellee] by writ [of summons] on September 22, 2021. J-A12030-23
[Appellant] filed a complaint on January 6, 2022, to which [Appellee] preliminarily objected. [Appellant] responded by filing an amended complaint. [Appellee] again filed preliminary objections, which this time were followed by an answer from [Appellant] and a reply from [Appellee].
[Appellant] alleged in the amended complaint that [Appellee] provided non-medical home and personal care services to Decedents in their residence in Pottstown, Montgomery County, between October and December 2020. Ralph J. Reish, Sr., died at the age of 89 on December 20, 2020. Elizabeth M. Reish died on January 2, 2021, at the age of 88. [Appellant] alleged both died from COVID-19[1] because [Appellee] and/or its staff did not take proper COVID-19 precautions, despite being aware of the risks posed to Decedents and the safety protocols necessary to avoid transmission of the disease. The amended complaint demanded compensatory and punitive damages.
Trial Ct. Op., 11/15/22, at 1-2 (citations and footnote omitted).
In his amended complaint, Appellant alleged that Appellee owed
Decedents a “duty to exercise reasonable and ordinary care which a
reasonably prudent person would exercise” to avoid infecting Decedents with
____________________________________________
1 COVID-19 refers to:
A novel coronavirus [that] began infecting humans in China in December 2019. As of March 11, 2020, the World Health Organization (“WHO”) announced that the coronavirus, which had spread into at least 144 countries including the United States, had infected at least 118,000 people, and had killed more than 4,000 people, was officially a pandemic.
Friends of Danny DeVito v. Wolf, 227 A.3d 872, 877 (Pa. 2020) (citation omitted); see also Ungarean v. CNA, 286 A.3d 353, 357 (Pa. Super. 2022) (stating that “COVID-19 is a novel contagious virus that can cause severe acute respiratory illness. In the first three months of the pandemic, it killed thousands of Pennsylvanians, and over 100,000 people nationwide”), appeal granted, --- A.3d ---, 313 WAL 2022, 2023 WL 4530116 (Pa. filed July 13, 2023).
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COVID-19. Am. Compl., 2/10/22, at 8-9, R.R. at 12a-13a.2 Appellant
asserted that Appellee and its employees breached that duty because Appellee
and its employees failed to take measures such as wearing masks when in
Decedents’ home, promptly and/or routinely testing employees for COVID-19,
monitoring employees’ body temperature and checking for other symptoms of
COVID-19, or following the COVID-19 protocols set forth by the Centers for
Disease Control and Prevention (CDC) and the Pennsylvania Department of
Health. R.R. at 8a-12a. Appellant specifically claims that Appellee’s
employees infected Decedents with COVID-19. R.R. at 9a-10a. Appellant also
alleged that as “a direct and proximate result of” the alleged breaches,
Appellee “increased the risk of harm to Decedents, who thus became infected
with COVID-19 and died as a result thereof.” R.R. at 13a.
After Appellant filed the amended complaint, the trial court explained:
[Appellee filed] preliminary objections to the amended complaint [asserting] that [Appellant] failed to plead the breach [of] a legal duty. Alternatively, [Appellee] argued [that] the gist of the action doctrine barred [Appellant’s] tort claims because the relationship [Appellee] had with Decedents was contractual[,] and [that] the allegations in the amended complaint did not support a demand for punitive damages.
Trial Ct. Op. at 2 (some formatting altered).
On August 26, 2022, the trial court sustained Appellee’s preliminary
objections and dismissed Appellant’s amended complaint with prejudice.
Appellant filed a timely appeal. The trial court did not order Appellant to ____________________________________________
2 We may cite to the reproduced record for the parties’ convenience.
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comply with Pa.R.A.P. 1925(b), but the trial court filed a Rule 1925(a) opinion
concluding that Appellant’s issues were meritless. See Trial Ct. Op. at 2-6.
On appeal, Appellant raises the following issues for our review:
1. Whether the trial court erred and abused its discretion in concluding that [Appellee], a non-medical in-home personal care agency, did not owe a duty of care to take reasonable steps to prevent transmission of COVID-19 to its customers, the Decedents, and granting [Appellee’s] preliminary objections to [Appellant’s] amended complaint with prejudice?
2. Whether the trial court erred and abused its discretion in concluding that the [Appellant’s] amended complaint lacked specificity as to when and how [Appellee] infected the Decedents with COVID-19, and relied on speculation and coincidence in alleging that [Appellee’s] conduct caused Decedents to contract the disease?
Appellant’s Brief at 4 (some formatting altered).
In his first issue, Appellant presents two alternative theories in support
of his claim that Appellee owed a duty of care to Decedents. Id. at 13-30.
We address these theories separately.
Whether Pennsylvania Already Recognizes a Duty of Care to Avoid Transmitting a Contagious Disease
In his first theory regarding Appellee’s duty of care, Appellant argues
that because Appellee had taken affirmative steps to perform services for
Decedents, Appellee had a duty to exercise reasonable care when performing
those services. Id. at 13-15 (citing, inter alia, Restatement (Second) of Torts
§§ 302, 323 (1965)). Appellant contends that Pennsylvania law recognizes a
duty of care to avoid the transmission of a communicable disease. Id. at 16-
19 (citing Billo v. Allegheny Steel Co., 195 A. 110, 111-14 (Pa. 1937);
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Smith v. Walker, 11 Pa. D. & C. 4th 663, 663-65 (C.C.P. Cumberland 1991)).
Therefore, Appellant concludes that Appellee’s duty to exercise reasonable
care when performing services on behalf of Decedents included a duty to
employ reasonable precautions to prevent the spread of COVID-19, and that
Appellant has pled a cause of action in negligence for Appellee’s breach of that
duty. Appellant’s Brief at 16, 19.
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.
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.
Am. Interior Const. & Blinds Inc. v. Benjamin’s Desk, LLC, 206 A.3d
509, 512 (Pa. Super. 2019) (citation omitted). “To be clear and free from
doubt that dismissal is appropriate, it must appear with certainty that the law
would not permit recovery by the plaintiff upon the facts averred.” McGuire
v. Shubert, 722 A.2d 1087, 1090 (Pa. Super. 1998) (citation omitted).
It is well-established:
Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar
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circumstances. . . . To establish a prima facie case of negligence, a plaintiff must plead that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage.
Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214, 221 (Pa. 2018)
(citations and quotation marks omitted).
“Whether a duty exists under a particular set of facts is a question of
law.” Herczeg v. Hampton Twp. Mun. Auth., 766 A.2d 866, 871 (Pa.
Super. 2001) (citations and quotation marks omitted). “In scenarios involving
an actor’s affirmative conduct, he is generally under a duty to others to
exercise the care of a reasonable man to protect them against an
unreasonable risk of harm to them arising out of the act.” Seebold v. Prison
Health Servs., Inc., 57 A.3d 1232, 1246 (Pa. 2012) (citing, inter alia,
Restatement (Second) of Torts § 302, cmt. a (1965)) (quotation marks
omitted). However, “Section 302 [of the Restatement] does not in itself create
a duty. Rather, it defines what acts may constitute negligence, assuming that
a duty is independently established.” Moore v. Commonwealth, Dep’t of
Justice, 538 A.2d 111, 118 (Pa. Cmwlth. 1988) (citation omitted).3
Further, our Supreme Court has accepted the Restatement (Second) of
Torts § 323 as an accurate statement of Pennsylvania law. See, e.g., Gradel
v. Inouye, 421 A.2d 674, 677-78 (Pa. 1980).
3 Although decisions of the Commonwealth Court are not binding on this Court,
they may provide persuasive authority. See Maryland Cas. Co. v. Odyssey Contracting Corp., 894 A.2d 750, 756 n.2 (Pa. Super. 2006).
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Section 323 states:
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 (1965). However, Section 323 does not
“change the burden of a plaintiff to establish the underlying elements of an
action in negligence nor can it be invoked to create a duty where one
does not exist.” Gardner by Gardner v. Consol. Rail Corp., 573 A.2d
1016, 1020 (Pa. 1990) (citations omitted and emphasis in original).
In Billo, our Supreme Court addressed whether the Workmen’s
Compensation Act of 1915 barred the plaintiff’s negligence claim against the
defendant-employer. Billo, 195 A. at 112. In that case, the plaintiff alleged
in his complaint that he had “contracted the occupational disease of silicosis
as a result of inhaling” various kinds of toxic dust while working in the
defendant’s steel mill and the defendant had been negligent in failing to
provide sufficient exhaust fans and ventilation to remove the dust. Id. at
111-12. The Billo Court concluded that the plaintiff’s claim was not within
the scope of the Workmen’s Compensation Act because that act applied “to all
accidents occurring within this Commonwealth” and the plaintiff’s claim did
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not arise from an “accident.” Id. at 114. The Court also observed that if “a
man contracted smallpox through another’s negligence, he would have a right
of action against the tort-feasor. To be stricken with disease through
another’s negligence is in legal contemplation as it often is in the seriousness
of consequences, no different from being struck with an automobile
through another’s negligence.” Id. (emphases in original).
In Smith, the plaintiff sued the defendant for negligence, fraud and
deceit, intentional infliction of emotional distress, and battery, alleging that
she and the defendant had been in a romantic relationship, the defendant
represented that he did not have any sexually transmissible diseases, and that
the plaintiff was subsequently diagnosed with a sexually transmissible disease.
Smith, 11 Pa. D. & C. 4th at 663. The defendant filed preliminary objections
in the form of a demurrer arguing, among others, that the plaintiff had not
established that he breached a legal duty. Id. at 663-64 The trial court in
Smith observed that the Billo Court’s pronouncement regarding a cause of
action in negligence for spreading smallpox to be dicta. Id. at 664-65 (citing
Billo, 195 A. at 114). Instead, the trial court relied on the decisions of courts
of other states, explaining that “[m]any jurisdictions recognize a cause of
action for negligence involving the transmission of a sexual disease.” Id. at
664 (citing, inter alia, B.N. v. K.E., 538 A.2d 1175 (Md. 1989)). Therefore,
the trial court dismissed the defendant’s preliminary objections. Id. at 665-
66.
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In DiMarco v. Lynch Homes-Chester Cnty., Inc., 583 A.2d 422 (Pa.
1990), our Supreme Court examined “whether a physician owes a duty of care
to a third party where the physician fails to properly advise a patient who has
been exposed to a communicable disease, and the patient, relying upon the
advice, spreads the disease to the third party.” DiMarco, 583 A.2d at 423.
The DiMarco Court explained that
[the plaintiff] averred in his complaint that he contracted hepatitis after he had intimate relations with a woman who had been exposed to hepatitis eight weeks prior to the sexual relations; that this woman had been told by her doctors, [the defendants], that if she remained symptom free for six weeks, she would not have been infected by the hepatitis virus; that in reliance upon that advice, the woman abstained from sexual relations for eight weeks; and that the advice of the [defendants] was wrong in that the waiting period should have been twenty-six weeks.
* * *
When a physician treats a patient who has been exposed to or who has contracted a communicable and/or contagious disease, it is imperative that the physician give his or her patient the proper advice about preventing the spread of the disease. Communicable diseases are so named because they are readily spread from person to person. Physicians are the first line of defense against the spread of communicable diseases, because physicians know what measures must be taken to prevent the infection of others. The patient must be advised to take certain sanitary measures, or to remain quarantined for a period of time, or to practice sexual abstinence or what is commonly referred to as “safe sex.”
Such precautions are taken not to protect the health of the patient, whose well-being has already been compromised, rather such precautions are taken to safeguard the health of others. Thus, the duty of a physician in such circumstances extends to those “within the foreseeable orbit of risk of harm.” If a third person is in that class of persons whose health is likely to be threatened by the patient, and if erroneous advice is given to that patient to the ultimate detriment of the third person, the third person has a cause of action against the physician, because the
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physician should recognize that the services rendered to the patient are necessary for the protection of the third person.
Id. at 424-25 (citation and footnote omitted and emphases in original). The
DiMarco Court further held that “the class of persons whose health is likely
to be threatened by the patient includes any one who is physically intimate
with the patient[,]” and concluded that the plaintiff’s complaint stated a cause
of action in negligence against the defendants. Id. at 425 (emphasis in
original).
It is well-established that “decisions are to be read against their facts,”
and that this axiom “prevents the wooden application of abstract principles to
circumstances in which different considerations may pertain.” Maloney v.
Valley Med. Facilities, Inc., 984 A.2d 478, 485-86 (Pa. 2009) (citation
omitted). Further, “dicta is an opinion by a court on a question that is directly
involved, briefed, and argued by counsel, and even passed on by the court,
but that is not essential to the decision. Dicta has no precedential value.”
Castellani v. Scranton Times, L.P., 124 A.3d 1229, 1243 n.11 (Pa. 2015)
(citation and quotation marks omitted)).
Additionally, this Court has explained that “decisions of the Court of
Common Pleas are not binding precedent; however, they may be considered
for their persuasive authority.” Hirsch v. EPL Techs., Inc., 910 A.2d 84, 89
n.6 (Pa. Super. 2006) (citation omitted). Similarly, the decisions of federal
district courts and of courts in other states are not binding on this Court, but
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we may rely on them for their persuasive value. See Umbelina v. Adams,
34 A.3d 151, 159-60 nn.2-3 (Pa. Super. 2011).
Here, the trial court explained:
Pennsylvania does not impose “a general, all encompassing common law duty not to transmit a ubiquitous, communicable virus to another person.” Preliminary Objections to Amended Complaint, ¶ 24[, R.R. at 26a]. Indeed, the cases relied upon by [Appellant] — Billo v. Allegheny Steel Co., 195 A. 110 (Pa. 1937); and Smith v. Walker, 11 Pa. D. & C. 4th 663 (Cumberland Cty. 1991) — only confirm [Appellee’s] argument.
Billo is an occupational exposure case where our Supreme Court considered:
Where there is nothing in the pleadings or in the evidence to remove either party from the provisions of the Workmen’s Compensation Act of 1915 . . . , is not the action barred by the employee’s voluntary and contractual surrender of his right to any form or amount of compensation or damages for any injury or death occurring in the course of his employment other than as provided by article 3 of said act ...?
Billo, 195 A. at 112. In addressing that larger question, then- Justice George W. Maxey posited that a person who contracts smallpox from another would have a right of action in negligence. Id. at 114. That passage, which [Appellant] seizes upon to support his duty analysis, is dicta and not binding precedent on the issue before this court.
Smith is readily distinguishable because that case involved an alleged knowing transmission of a sexual disease by an identifiable defendant who misrepresented to the plaintiff prior to a sexual encounter that he did not have the disease. Id., 11 Pa. D. & C. 4th at 664. Notably, while the trial court in Smith overruled the defendant’s preliminary objections, it expressly characterized the above-referenced passage from Billo as dicta but noted that many jurisdictions recognize a cause of action for transmitting a sexual disease. Id. (emphasis added). In any event, the trial court decision from Cumberland County is not binding precedent and does not compel a finding that [Appellant] has asserted a recognized theory of liability here. Thus, this court properly
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concluded that a recognized duty of care does not exist under the circumstances alleged in the amended complaint and leave to amend further would have been futile.
Trial Ct. Op. at 4-5 (some citations and some footnotes omitted).
Based on our review of the record, we agree with the trial court’s
analysis that Pennsylvania law does not recognize a cause of action in
negligence for the transmission of a communicable disease.
First, Billo did not address whether the plaintiff had a cause of action
for negligence against his employer for contracting an occupational disease;
rather, the issue before our Supreme Court was whether the Workmen’s
Compensation Act of 1915 precluded the plaintiff’s suit. See Billo, 195 A. at
111-14. Although the Billo Court remarked that a person would have a cause
of action against a tortfeasor who negligently caused a person to contract the
disease, that statement is dicta because that question was not before the Billo
Court. See Castellani, 124 A.3d at 1243 n.11; Maloney, 984 A.2d at 485-
86. Further, the facts of Billo are readily distinguishable from those of this
case because this case involves COVID-19, a viral disease, while the plaintiff
in Billo claimed that his health condition was caused by the toxic dust that he
inhaled while working at the defendant’s steel mill. See Billo, 195 A. at 111-
12.
We do not find Smith to be controlling here. First, Smith is a Court of
Common Pleas decision, therefore, it is not binding on this Court. See Hirsch,
910 A.2d at 89 n.6. Further, the Smith decision did not apply Pennsylvania
law. Instead, the Smith Court acknowledged that the Billo Court’s
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pronouncement regarding a cause of action for contracting a disease was
dicta, and relied on out-of-state decisions to conclude that the plaintiff could
maintain a cause of action for negligence involving the transmission of a
sexual disease. See Smith, 11 Pa. D. & C. 4th at 664. While the courts of
this Commonwealth may rely on the decisions of the courts of other states for
their persuasive value, they are not binding on our courts. See Umbelina,
34 A.3d at 160 n.3. Additionally, Smith is factually dissimilar and
distinguishable from the instant case which involves allegations of the
negligent transmission of COVID-19, a respiratory illness from a caregiver to
a customer, in contrast to Smith which deals with a sexually transmitted
disease in a romantic relationship. For these reasons, we conclude that Smith
is neither controlling nor persuasive authority.
In the instant case, Appellant alleged in the amended complaint that
Appellee provided “non-medical, home[,] and personal care services and
assistance to Decedents[.]” R.R. at 6a. Based on the foregoing, we conclude
that although Pennsylvania recognizes that a physician owes a duty of care
to certain third parties to advise a patient to take precautions against the
spread of a communicable disease, no Pennsylvania appellate court has held
that a layperson has a duty of care to take such precautions.4 See DiMarco,
4 We note that in his reply brief, Appellant argues, for the first time, that Appellee owed Decedents a duty of care because Appellee had a special relationship to Decedents pursuant to Restatement (Second) of Torts § 314 (1965). Appellant’s Reply Brief at 1-3. First, our Supreme Court has (Footnote Continued Next Page)
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583 A.2d at 424-25. Further, although Appellee’s employees provided
services to Decedents, neither Section 302 nor Section 323 of the Restatement
(Second) of Torts can be used to create a duty where one does not exist. See
Gardner, 573 A.2d at 1020; Moore, 538 A.2d at 118. For these reasons,
Appellant is not entitled to relief on this claim.
Whether the Courts Should Impose a Duty of Care to Avoid Transmitting a Contagious Disease
Appellant alternatively argues that even if Pennsylvania does not
currently recognize a duty to avoid transmitting a contagious disease, this
Court should conclude that Appellee owed such a duty to Decedents based on
the five-factor test set forth in Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000).
Appellant’s Brief at 19-30.
“The determination whether to impose affirmative common-law duties
as a predicate to civil liability is a matter of law; accordingly, our review is
plenary.” Seebold, 57 A.3d at 1243 (citation omitted). Further, because this
is an appeal from an order sustaining preliminary objections in the nature of
a demurrer, we take the averments of Appellant’s complaint as true and view
them in the light most favorable to Appellant. Id.
explained that “an appellant is prohibited from raising new issues in a reply brief.” Reginelli v. Boggs, 181 A.3d 293, 307 n.15 (Pa. 2018) (citation omitted)). Additionally, this issue is waived because Appellant did not raise this issue before the trial court. See PCS Chadaga v. Torres, 252 A.3d 1154, 1158 (Pa. Super. 2021) (stating that “[a] new and different theory of relief may not be successfully advanced for the first time on appeal” (citations omitted)); see also Pa.R.A.P. 302(a).
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In Walters, our Supreme Court stated:
We have characterized the duty inquiry as the “primary” inquiry in negligence. To assist us in identifying a previously unrecognized duty, we rely upon five factors: “(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.
Walters, 187 A.3d at 222 (footnote and some citations omitted).
Additionally, our Supreme Court has emphasized that “neither
foreseeability nor any other single consideration of policy is ‘alone
determinative of the duty question.’ Rather, we must afford such weight to
each factor as is warranted by ‘the particularized nature of the asserted duty
at hand and context.’” Id. at 229-30 (citation omitted); cf. Atcovitz v. Gulph
Mills Tennis Club, Inc., 812 A.2d 1218, 1223 (Pa. 2002) (explaining that
the Supreme Court’s conclusion in that case rested on its analysis of the fifth
Althaus factor).
Finally, our Supreme Court has cautioned:
Although our Althaus analysis applies principles well-rooted in the common law, we long have recognized that determining whether to impose a duty of care in novel circumstances can prove difficult, requiring policy judgments generally reserved for legislative action. In Althaus, and in several other cases, we have quoted Dean William Prosser’s influential comments:
These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make of it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. . . . The word serves a useful purpose in directing attention to
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the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: the hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.
William L. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953). Thus, determining whether to impose a duty often requires us to weigh amorphous public policy considerations, which may include our perception of history, morals, justice and society.
Our concern for the hazards of judicial policy-making has prompted our continuing restraint.
The adjudicatory process does not translate readily into the field of broad-scale policymaking. For this reason, and because the Legislature possesses superior policymaking tools and resources and serves as the political branch, we took the position . . . that we would not direct the substantive common law away from well- established general norms in the absence of some clear predominance of policy justifications.
Walters, 187 A.3d at 222-23 (footnotes and some citations omitted and
formatting altered); see also id. at 229 (explaining that regarding the
Althaus factors our “default position that, unless the justifications for and
consequences of judicial policy-making are reasonably clear with the balance
of factors favorably predominating, we will not impose new affirmative duties”
(citation omitted and formatting altered)); Seebold, 57 A.3d at 1245 & n.19
(noting that “it is the Legislature’s chief function to set public policy and the
courts’ role to enforce that policy, subject to constitutional limitations” and
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“before a change in the law is made, a court, if it is to act responsibly must
be able to see with reasonable clarity the results of its decision and to say with
reasonable certainty that the change will serve the best interests of society”
(citations omitted and formatting altered)).
Lastly, we note that “[i]t is not the prerogative of an intermediate
appellate court to enunciate new precepts of law or to expand existing legal
doctrines. Such is a province reserved to the Supreme Court.” Bell v. Willis,
80 A.3d 476, 479 (Pa. Super. 2013) (citation omitted).
Addressing th[e Althaus] factors seriatim, this court first concluded that the relationship between Decedents and [Appellee], which involved the provision of non-medical personal care services, does not weigh in favor of creating the duty of care advanced by [Appellant]. Rather, and in conjunction with factors two and four,[FN6] to impose such a duty would diminish the care and services available to the elderly and infirm, permit recovery on the basis of mere speculation and lead to an explosion of litigation against individuals and businesses. Finally, this court concluded that the overall public interest would not be served by endorsing the broad duty of care [Appellant] has attempted to plead. [FN6][Appellee] conceded for purposes of its preliminary objections that factor three - the nature of the risk imposed and foreseeability of the harm incurred - weighed in [Appellant’s] favor.
Trial Ct. Op. at 6.
The Relationship Between the Parties
Appellant claims that Appellant contends that the first Althaus factor,
the relationship between the parties, weighs in favor of recognizing that
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Appellee had a duty because Appellee was providing “in-home personal care
services” to Decedents and the purpose of Appellee’s business is to “provide
care and services for” elderly and at-risk customers, such as Decedents.
Appellant’s Brief at 22-26 (citing, inter alia, Walters, 187 A.3d at 232).
Regarding the first factor, it is well established that
Duty, in any given situation, is predicated upon the relationship existing between the parties at the relevant time. Where the parties are strangers to each other, such a relationship may be inferred from the general duty imposed on all persons not to place others at risk of harm through their actions.
The relationship between the parties, therefore, does not have to be a specific, legally defined relationship, e.g., bailor-bailee, licensor-licensee, or business invitee.
Charlie v. Erie Ins. Exch., 100 A.3d 244, 252 (Pa. Super. 2014) (citations
omitted and formatting altered).
On this record, it is clear that Appellee had a contractual relationship
with Decedents to provide in-home personal care services, but Appellee is not
a medical provider. See R.R. at 6a. As discussed above, a medical provider
has a duty of care to advise an infected patient about how to prevent the
spread of their disease. See DiMarco, 583 A.2d at 424-25. Our research
has not uncovered legal authority under current Pennsylvania law for this
Court to impose the higher duty of care that medical providers owe to their
patients upon parties that do not provide medical services. Therefore, we
conclude that this factor does not weigh in favor of imposing a duty on
Appellee, who is not a medical provider.
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The Social Utility of the Actor’s Conduct
Appellant argues that the second factor, the social utility of Appellee’s
conduct, weighs in his favor because of the risk of serious illness and death
that elderly and at-risk individuals face if they become infected with COVID-
19. Appellant’s Brief at 25-27.
In Walters, the plaintiffs sued the University of Pittsburgh Medical
Center (UPMC) and several others, alleging that UPMC had been negligent in
failing to report a former radiology technician to law enforcement after UPMC
terminated his employment for stealing fentanyl. Walters, 187 A.3d at 221.
The plaintiffs alleged that the radiology technician had been fired from UPMC
for stealing intravenous fentanyl, injecting himself with the fentanyl, and
returning the used syringes to where the syringes could be used by others to
inject patients. Id. at 219-20. The plaintiffs argued that UPMC was negligent
because the radiology technician was subsequently hired by another hospital
where he continued stealing fentanyl and the syringes he contaminated were
later used on the plaintiffs, who contracted hepatitis C. Id. Our Supreme
Court granted allowance of appeal to consider whether UPMC had a duty of
care to its patients to report the technician’s theft of the fentanyl. Id. at 221
n.8.
In applying the Althaus factors, the Walters Court explained that there
was social utility in defendant UPMC providing health care, but that its failure
to report the technician’s theft of the fentanyl to law enforcement and take
additional steps to ensure that the technician “did not repeat his dangerous
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and criminal conduct while employed with other health care providers . . .
lacks all social utility.” Walters, 187 A.3d at 234-35; see also Breslin v.
Mountain View Nursing Home, Inc., 171 A.3d 818, 825 (Pa. Super. 2017)
(explaining that with respect to the social utility factor “[t]he need for
prevention of nursing home mismanagement and understaffing is
unquestionable, as is the importance of proper care and treatment of nursing
home patients[,]” and concluding that this factor favored imposing a duty of
care on the defendant nursing home towards its patients because the
defendant “was in the best position to ensure the non-negligent care of its
patients, and thus, it possessed the ability to limit its liability by acting
reasonably with respect to its patients”).
Here, Appellee’s conduct consisted of providing personal care services
to Decedents in their residence. See R.R. at 6a, 12a-13a. The social utility
of Appellee’s conduct weighs in favor of imposing a duty because their services
assist those who need personal care while residing in their homes. Further,
allowing Appellee’s employees to spread communicable illnesses to their
clients does not serve that purpose. Accord Walters, 187 A.3d at 234-35;
Breslin, 171 A.3d at 825. Therefore, we conclude that the social utility factor
weighs in favor of imposing a duty on Appellee.
The Nature of the Risk Imposed and Foreseeability of the Harm
Appellant and Appellee agree that the third factor weighs in favor of
imposing a duty. Appellant’s Brief at 27 (citing R.R. at 49a); Appellee’s Brief
at 24.
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“Regarding the third factor, duty arises only when one engages in
conduct which foreseeably creates an unreasonable risk of harm to others.”
R.W. v. Manzek, 888 A.2d 740, 747 (Pa. 2005) (citations omitted). Our
Supreme Court has described this factor as the “most elusive Althaus factor,
both in its definition and in determining the weight it should be afforded.”
Walters, 187 A.3d at 236.
Both government health authorities and the courts have recognized that
older individuals have a higher risk of developing severe symptoms and dying
from COVID-19. See, e.g., United States v. Smith, 482 F.Supp.3d 1218,
1224-25 (M.D. Fla. 2020); Thakker v. Doll, 451 F.Supp.3d 358, 365 (M.D.
Pa. 2020); CDC, “Factors That Affect Your Risk of Getting Very Sick from
COVID-19,” https://www.cdc.gov/coronavirus/2019-ncov/your-health/risks-
getting-very-sick.html (last visited Aug. 31, 2023).
Both Decedents were in their eighties, and consequently COVID-19
posed a higher risk to their health than to younger individuals. Appellee
provided personal care services to Decedents in their home. Therefore, we
agree with the parties that the foreseeability factor weighs in favor of imposing
a duty on Appellee. Accord Walters, 187 A.3d at 236-37 (concluding that
the nature of the risk and foreseeability of harm factor weighed in favor of
imposing a duty where the theft of injectable medication both deprived
patients of their prescribed medication and placed them at risk of contracting
a disease via the previously used syringes, in that case hepatitis C).
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The Consequences of Imposing a Duty Upon the Actor
Appellant asserts that the fourth factor, the consequences of imposing
a duty upon Appellee, weighs in favor of finding a duty exists because the
additional burden of taking reasonable precautions to avoid spreading COVID-
19 is not prohibitively expensive. Appellant’s Brief at 27-29 (citing, inter alia,
Estate of Madden v. Southwest Airlines, Co., 2021 WL 2580119, at *6 (D.
Md. filed June 23, 2021) (unpublished mem.)). In support, Appellant notes
that the District Court in Estate of Madden explained that the consequences
of imposing a duty would require employers to follow best practices to protect
their employees from COVID-19 but ultimately found against imposing a new
duty because the plaintiff was a third party to the employer-employee
relationship. Id. at 28.
The plaintiffs in Estate of Madden were a Southwest Airlines flight
attendant and the estate of her late husband. Estate of Madden, 2021 WL
2580119, at *1. The complaint alleged that the flight attendant participated
in Southwest’s mandatory training, during which she was exposed to COVID-
19. Id. Within two weeks of the training both plaintiffs experienced
symptoms of COVID-19, the husband-decedent tested positive for COVID-19,
and he subsequently died due to complications from COVID-19. Id. The
plaintiffs alleged that defendant Southwest allegedly failed to implement
reasonable safety and health protocols to prevent its employees who were
participating in mandatory training from contracting or spreading COVID-19.
Id. The District Court applied the Maryland courts’ seven-factor test to
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determine if Southwest owed a duty of care to the husband of its employee.
Id. at *4 (citing Kiriakos v. Phillips, 139 A.3d 1006, 1033-34 (Md. 2016)).
Among the factors that the District Court considered was the burden on
Southwest and the consequences of imposing a duty. Id. at *6. The Court
concluded that
insofar as Southwest specifically is concerned, there appears little “additional” burden that imposition of a duty here would create. Employers like Southwest would be required to take reasonable steps to ensure the safety of foreseeable third parties like Mr. Madden from contracting COVID-19 as a result of Southwest’s activities. To do so, employers would simply be required to follow best practices like social distancing, contact tracing, and regular sanitation protocols to protect their own employees, so that those employees do not become conduits to their cohabitants. Southwest already embraced such practices with regard to its customers—in fact, one might reasonably expect that ensuring flight attendants’ safety would be a natural corollary of Southwest’s promise to protect its customers.
Id. (citation omitted). However, the District Court found that “the broader
societal consequences of the imposition of that duty” weighed against the
finding of a duty, particularly with respect to the expansion of potential liability
for employers to claims by third parties alleging that employees had exposed
the third parties to COVID-19. Id. Therefore, the District Court concluded
that “[t]he ‘floodgates’ consequence of imposing a duty here therefore weighs
against such an imposition[]” and that Southwest did not owe a duty to the
husband as a third party. Id. at *7-8.
In Seebold, a corrections officer alleged that she became infected with
methicillin-resistant staphylococcus aureus (MRSA) after conducting searches
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of twelve inmates infected with MRSA. Seebold, 57 A.3d at 1234. The
plaintiff argued that the prison’s medical staff were negligent because they
owed a duty of care to prison staff and inmates “to warn them of and protect
them from acquiring an MRSA infection from those inmates known to be
carrying the bacteria in a communicable state.” Id. (citation and quotation
marks omitted). Our Supreme Court observed that the assessment of whether
a duty exists is “a matter for the courts, not juries. Consistent with this
allocation of responsibility, we will not impose on physicians some non-
specified affirmative obligation to third-party non-patients relative to
communicable diseases, with juries deciding in each individual case just what
the duty might be.” Id. at 1247.
The Seebold Court further explained that “the default duties are
administered in a fashion in which the duty is couched in general terms (e.g.,
to use reasonable care in affirmative conduct which creates risk of harm to
others), and juries frequently determine when such obligation is breached
relative to particularized circumstances presented in each case.” Id.
However, the Court explained that “affirmative obligations above and beyond
the default duties are most often considered and determined on a more
specific basis, particularly where they are superimposed onto highly regulated
professional undertakings.” Id. at 1247-48.
Here, in his amended complaint, Appellant identifies forty-one acts or
omissions by Appellee and its employees which Appellant claims were a breach
of Appellee’s duty to prevent the transmission of COVID-19 to Decedents.
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See R.R. at 8a-12a. Although some of these alleged acts or omissions
overlap, they cover a broad range of activity including wearing masks, regular
COVID-19 testing, social distancing, and quarantining. See id. 8a-11a.
We conclude that Estate of Madden is not applicable to the facts of the
instant case, as Estate of Madden involved an employer’s duty of care to the
husband of one its employees, while this case concerns whether Appellee
owed a duty of care to take precautions against spreading COVID-19 to
customers receiving in-home personal care services. Further, the District
Court in Estate of Madden applied Maryland law, which is not binding on this
Court. See Umbelina, 34 A.3d at 160 n.3.
As stated above, Appellant has alleged numerous omissions on the part
of Appellee that Appellant claims are part of the proposed duty not to spread
COVID-19 to customers. See R.R. at 8a-12a. Applying Maryland law, the
District Court in Estate of Madden concluded that requiring businesses to
“follow best practices like social distancing, contact tracing, and regular
sanitation protocols to protect their own employees” from COVID-19 weighed
in favor of imposing a duty of care, but declined to impose such a duty on
Southwest for other reasons.5 See Estate of Madden, 2021 WL 2580119,
at *6-7.
5 Additionally, the District Court noted that Southwest had already adopted
such practices regarding its customers. Estate of Madden, 2021 WL 2580119, at *6. Here, there is nothing in the record to indicate that Appellee had adopted some or all of the measures Appellant raised in his amended complaint.
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Although harsh, this factor as applied to the instant case, weighs against
imposing the duty to take precautions against spreading COVID-19 to
customers receiving personal care services upon Appellee, a non-medical
provider, because of the myriad of precautions that Appellee might have had
to take without clear guidance because no such affirmative common-law duty
in tort currently exists under Pennsylvania law. Although the Seebold Court
did not expressly discuss this factor, its admonitions that a court must be able
to see with reasonable clarity the results of its decision and that it should have
an adequately specific basis before imposing new law that creates an
affirmative duty, applies here. Accord Seebold, 57 A.3d at 1245, 1247-48.
Instantly, the lack of a clearly defined common-law duty under current
Pennsylvania law mandating non-medical providers of personal care services
to implement precautions not to spread COVID-19 to those in their care
weighs against our imposition of such a requirement.
Overall Public Interest in the Proposed Solution
Lastly, Appellant argues that the fifth factor, the overall public interest,
favors imposing a duty because it would preserve and protect the health of
elderly and vulnerable citizens. Appellant’s Brief at 30.
In Atcovitz, one of the plaintiffs suffered a non-fatal heart attack and
stroke while at the defendant tennis club. Atcovitz, 812 A.2d at 1220. The
plaintiffs sued the defendant club for negligence, arguing that the defendant
owed its members a duty of care to acquire and maintain an automated
external defibrillator (AED) on its premises for medical emergencies. Id. After
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examining legislation and regulations pertaining to emergency medical
services and AEDs, our Supreme Court held that the overall public interest in
the proposed solution did not support imposing a duty on the defendant to
acquire, maintain, and use an AED in emergencies. Id. at 1223-24.
In Seebold, our Supreme Court acknowledged that corrections officers
“are exposed to occupational risks in the institutional environment, not the
least of which is the potential for contracting certain communicable diseases
such as MRSA. Certainly, it is vital that their safety be maintained as a high
priority in institutional management.” Seebold, 57 A.3d at 1249. However,
the Court declined to recognize a new duty of care for prison medical
providers, explaining that the plaintiff’s “request for the imposition of a new,
affirmative, common-law duty in tort on the part of physicians to undertake
third-party interventions in a prison setting required a broader policy
assessment.” Id. at 1250; see also id. at 1251 (stating that “the present
appeal does not afford an adequate foundation to make an informed social
policy assessment which would support the imposition of a new affirmative
duty on physicians to make third-party interventions”).
On March 6, 2020, then-Governor Tom Wolf issued a proclamation
declaring a state of disaster emergency related to the COVID-19 pandemic.
DeVito, 227 A.3d at 877. To prevent the spread of COVID-19 via person-to-
person interactions, Governor Wolf subsequently issued an executive order
directing all businesses that the Governor deemed to be non-life-sustaining to
close. Id. at 878-80. Additionally, Governor Wolf authorized “then-Secretary
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of Health Rachel L. Levine, in her sole discretion, to suspend or waive any
provision of law or regulation which the Pennsylvania Department of Health is
authorized by law to administer or enforce, for such length of time as may be
necessary to respond to this emergency.” Corman v. Acting Sec’y of
Pennsylvania Dep’t of Health, 266 A.3d 452, 456 (Pa. 2021) (footnote and
quotation marks omitted). Secretary Levine directed those businesses which
had not been closed pursuant Governor Wolf’s executive order to implement
“stringent COVID-19 mitigation protocols, including a requirement that
employees and patrons alike wear face coverings while on business premises.”
Id. (footnote omitted). On or about July 1, 2020, Secretary Levine expanded
this mandate “to require all individuals to wear masks while outdoors and
unable to consistently maintain a distance of six feet from individuals who are
not members of their household” and in a variety of indoor settings open to
the public. Id. at 456-57, 457 n.7 (quotation marks omitted).
The General Assembly terminated Governor Wolf’s disaster
proclamation on June 10, 2021, and the Department of Health lifted its
masking order on June 28, 2021. Id. at 457 n.7, 458. Subsequently,
Secretary Levine’s successor, Acting Secretary of Health Alison Beam, issued
an order directing that teachers, students, staff, and other persons entering a
school to wear face coverings while inside any school. Id. at 458-59. Our
Supreme Court held that the Acting Secretary’s order was void ab initio
because the Acting Secretary lacked the authority to issue that order without
following the rulemaking procedures of the Regulatory Review Act. Id. at
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486-87. However, our Supreme Court explained that it was not “question[ing]
the efficacy of masking as a means by which to curb the incidence and spread
of aerosolized communicable diseases like COVID-19.” Id. at 487. The Court
further explained that
it is not our prerogative to substitute our views for those of the policy-making branches of our Commonwealth’s government, especially on an issue as fraught with uncertainty as how best to respond to an evolving public health emergency. We leave that solemn duty to the people’s elected representatives and their lawful designees.
Id.
In this case, similar to Atcovitz, it would be improper for this Court to
treat COVID-19-related mask mandates as establishing personal liability. See
Atcovitz, 812 at 1223-24. Further, as stated above, policy determinations in
this context are generally not within the purview of the judiciary and are best
determined by other branches of government. See Corman, 266 A.3d at
487. Indeed, our Supreme Court has stated that changes in legal standards
involving the applicable duties of care should originate from the Legislature,
which “possesses superior policymaking tools and resources and serves as the
political branch[]” of government. See Walters, 187 A.3d at 223; see also
Seebold, 57 A.3d at 1245 n.19. To the extent that the judicial branch can
recognize a new duty of care at common law, such a pronouncement must
come from our Supreme Court, not this Court. See Bell, 80 A.3d at 479. For
these reasons, we conclude that that the overall public interest factor weighs
against recognizing a new duty of care.
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After considering and weighing all of the Althaus factors, we conclude
that the balance of factors does not weigh in favor of recognizing a new duty
of care at common law for personal care providers to take precautions against
spreading COVID-19 to customers. See Walters, 187 A.3d at 229.
Therefore, Appellant is not entitled to relief on this claim.
Conclusion
We certainly empathize with the family of Decedents in this tragic case.
We share the sentiments expressed by Justice Wecht, “for far too many, the
pain and loss wrought by this dreadful virus is incalculable. We do not intend
to diminish the weight of that anguish.” Corman, 266 A.3d at 487. However,
on this record and based on current legal authority, we are constrained to
conclude that Appellee did not owe a duty of care to take precautions against
spreading COVID-19 to Decedents, its customers. Because Appellant cannot
establish a duty of care, his second issue regarding whether his complaint pled
facts with sufficient specificity is moot. For these reasons we affirm the trial
court’s order sustaining Appellee’s preliminary objections and dismissing
Appellant’s amended complaint with prejudice.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/21/2023
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