J-A09018-15

                              2015 PA Super 101

ESTATE OF ARTHUR DENMARK, BY AND :            IN THE SUPERIOR COURT OF
THROUGH       HIS    ADMINISTRATOR, :              PENNSYLVANIA
ANTHONY W. HURST, SR.,              :
                                    :
                 Appellant          :
                                    :
          v.                        :
                                    :
JOSEPH WILLIAMS, M.D., RAVINDRA C. :
HALLUR, M.D., MERCY PHILADELPHIA :
HOSPITAL     AND    MERCY    HEALTH :
SYSTEM,                             :
                                    :
                 Appellees          :         No. 1900 EDA 2014

                   Appeal from the Order May 27, 2014,
                Court of Common Pleas, Philadelphia County,
                         Civil Division at No. 01133

BEFORE: BOWES, DONOHUE and STABILE, JJ.

OPINION BY DONOHUE, J.:                              FILED APRIL 28, 2015

      Appellant, the Estate of Arthur Denmark, by and through its

administrator, Anthony W. Hurst, Sr. (“Hurst”), appeals from the trial court’s

order dated May 27, 2014. On appeal, Hurst contends that the trial court

erred in dismissing his claims for vicarious liability and corporate negligence

against Appellees Mercy Philadelphia Hospital and Mercy Health System

(together, “Mercy” or the “Mercy entities”). For the reasons that follow, we

reverse and remand this case to the trial court so that Hurst may proceed on

his amended complaint against the Mercy entities on his claims for vicarious

liability and corporate negligence.
J-A09018-15


        Hurst commenced this action on June 1, 2012 by filing a complaint

naming four defendants, Ravindra C. Hallur, M.D. (“Dr. Hallur”), Joseph

Williams, M.D. (“Dr. Williams”), and the Mercy entities. Dr. Hallur and the

Mercy entities filed preliminary objections, in response to which Hurst filed

an amended complaint.

        In his amended complaint, Hurst alleged that Arthur Denmark

(“Denmark”) was admitted to Mercy Philadelphia Hospital on March 12, 2010

to undergo a tracheotomy as a result of his emphysema.              Amended

Complaint, ¶¶ 6-7.      Hurst further alleged that after the tracheotomy,

Denmark was alert and responsive until March 18, 2010, when he “was

permitted to either attempt to leave his bed unassisted or fell out of his

bed.”    Id. ¶¶ 8-9.   His fall resulted in the dislocation of a catheter, and

surgery had to be scheduled because the catheter could not be replaced at

bedside. Id. ¶¶ 10-11. According to Hurst, during the surgery, which was

performed by Dr. Williams, Denmark’s bladder was severely lacerated. Id.

¶¶ 12-13. Hurst also alleged that following the surgery, Denmark’s care was

managed by Drs. Williams and Hallur. Id. ¶ 14. Gauze was negligently left

in Denmark’s body after the surgery was complete and the stitches applied,

and blood continued to be present in Denmark’s urine. Id. ¶¶ 15-16. Hurst

contends that as a result of the Defendants’ negligence, Denmark developed

septic shock and died on April 2, 2010. Id. ¶¶ 17-18.




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      Counts I and II of Hurst’s amended complaint set forth causes of

action against Drs. Williams and Hallur, respectively, for negligence. Counts

III and IV stated causes of action against the Mercy entities for vicarious

liability and corporate negligence. Counts V and VI set forth causes of action

for wrongful death and survival against all of the defendants.

      Dr. Hallur and the Mercy entities filed preliminary objections to the

amended complaint. By order dated August 31, 2012, the Honorable Allan

L. Tereshko sustained the preliminary objections, ruling that

            (a)   all claims for punitive damages in Paragraphs
                  26, 33, 46 and 53 are stricken with prejudice;

            (b)   all references to unidentified agents, servants,
                  employees, attending physicians, nursing staff,
                  other support staff, administrators, boards and
                  committees in Count III and Count IV are
                  stricken with prejudice;

            (c)   Paragraphs 24(a)-(c), (e), (h)-(i) and (l)-(p)
                  and Count IV are stricken with prejudice; and

            (d)   Paragraphs 24(e) and (q) are stricken with
                  prejudice.

Trial Court Order, 8/31/2012, at 1.

      On January 24, 2014, the trial court granted Dr. Williams’ unopposed

motion for summary judgment, dismissing all claims against him.          Trial

Court Order, 1/24/2014, at 1. On the date set for trial, May 23, 2014, Dr.

Hallur and the Mercy entities moved in limine to preclude all evidence and

testimony against Dr. Hallur because his work was not criticized in Hurst’s




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expert report. N.T., 5/23/2014, at 3. Based upon the “law of the case as

established by the order of Judge Tereshko,” counsel for Hurst took no

position on the motion in limine. Id. at 3-4. The Honorable Shelley Robins

New granted the motion in limine. Id. at 4.

      Counsel for Dr. Hallur and the Mercy entities then moved for a “nolle

pros,” which counsel for Hurst did not oppose. Id. at 4-5. Instead, counsel

for Hurst indicated that he was preserving his right to appeal Judge

Tereshko’s August 31, 2012 order.       Id. at 5.   Judge Robins New then

indicated that she would grant “the nolle pros requested by the defense, and

all issues in regards to Judge Tereshko’s orders on preliminary objections are

preserved for purposes of appeal.”     Id.   On May 27, 2014, Judge Robins

New entered an order that stated, “Non Pros entered.”      Trial Court Order,

5/27/2014, at 1.   On June 3, 2014, counsel for Hurst filed a praecipe for

entry of judgment on Judge Robins New’s May 27, 2014 order.

      Hurst appeals subsections (b) and (c) of Judge Tereshko’s August 31,

2012 order granting preliminary objections, as these two subsections

effectively dismissed his claims against the Mercy entities for vicarious

liability and corporate negligence.   With respect to his claim for vicarious

liability, Hurst contends that striking all of the allegations relating to

unidentified agents in subsection (b) of his order was error, as Pennsylvania

appellate courts have held that employees may be unnamed or referred to

as a group in a complaint alleging vicarious liability.   With respect to his



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claim for corporate negligence, Hurst contends that the trial court erred in

striking/dismissing this claim in subsection (c) of its order because the

amended complaint contained sufficient allegations to sustain this claim as a

matter of law.

      Before we address the issues raised on appeal by Hurst, we must first

determine whether this appeal is properly before the Court.           In their

appellate brief, Dr. Hallur and the Mercy entities contend that Hurst failed to

preserve any issues for appeal because he did not file a petition to open the

judgment of non pros pursuant to Rule 3051 of the Pennsylvania Rules of

Civil Procedure. See Pa.R.C.P. 3051. In addition, this Court issued two per

curium orders directing Hurst to show cause why this appeal should not be

quashed, either because of the failure to petition the trial court to open the

judgment of non pros pursuant to Rule 3051, Per Curium Order, 7/30/2014,

at 1, or because a nolle pros is akin to the entry of a compulsory nonsuit,

which is generally appealable only after the denial of a motion to remove

nonsuit pursuant to Pa.R.C.P. 227.1. See Billig v. Skvaria, 853 A.2d 1042,

1048 (Pa. Super. 2004).

      These circumstances present something of a procedural morass, as

Judge Robins New’s order dated May 27, 2014 may not properly be

categorized as either a nolle pros or a non pros.     It was not a nolle pros

because our rules of civil procedure do not recognize “nolle pros” in the civil

context. Under Pennsylvania law, the appellation “nolle pros” is now used



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only in the criminal context, referring to a voluntary withdrawal by a

prosecuting attorney of proceedings on a particular bill or information. See,

e.g., Commonwealth v. Totaro, 106 A.3d 120, 121-22 (Pa. Super. 2014).

Likewise, Judge Robins New’s order was not a non pros since it was not a

judgment entered terminating Hurst’s action due to any failure to properly

and/or promptly prosecute the case.       See Dombrowski v. Cherkassky,

691 A.2d 976, 977 (Pa. Super. 1997). Our rules of civil procedure recognize

the entry of a judgment of non pros in four situations:         (1) under Rule

1037(a) for failure to file a complaint after the issuance of a rule to do so;

(2) under Rule 1042.7 for failure to file a certificate of merit; (3) under Rule

218 on the trial court’s own motion for failure to be ready at the start of

trial; and (4) under Rule 4019 as a discovery sanction.1 Judge Robins New’s

order was not entered in accordance with any of these rules.

      For purposes of determining the issue of appealability, we look for

guidance to our Supreme Court’s decision in Lewis v. United Hospitals,

Inc., 547 A.2d 626 (Pa. 1997), a case with close factual and procedural

similarities to the case presently before us.       In Lewis, also a medical

malpractice action, the trial court granted the doctor/defendant’s motion in

limine to preclude the plaintiffs’ medical expert from testifying at trial, and


1
  For purposes of completeness, we note that non pros may also be entered
for inactivity if there is a lack of due diligence in prosecuting the case on the
part of the plaintiff, no compelling reason for the delay, and actual prejudice
to the defendant. See, e.g., Jacobs v. Halloran, 710 A.2d 1098, 1103
(Pa. 1998); Pa.R.J.A. 1901.


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J-A09018-15


denied the plaintiffs’ motion to introduce a revised expert report.     Id. at

628.    The trial court then granted the doctor/defendant’s motion for a

compulsory nonsuit, from which the plaintiffs appealed without filing a post-

trial motion pursuant to Rule 227.1 to remove the nonsuit. Id. at 629. Our

Supreme Court held that the trial court erred in granting a compulsory

nonsuit, since pursuant to Rule 230.1, a nonsuit should not be granted prior

to the close of a plaintiff’s presentation of evidence at trial.   Id. at 630.

Following prior precedent from this Court, however, including Gallagher v.

Harleysville Mutual Insurance Company, 618 A.2d 790 (Pa. Super.

1992), appeal denied, 629 A.2d 1381 (Pa. 1993), the Lewis Court ruled that

the trial court should have treated the doctor/defendant’s motion for

compulsory nonsuit as a pre-trial motion for either summary judgment or

judgment on the pleadings.     Id.   Treating the trial court’s order as one

granting a motion for summary judgment, the Supreme Court concluded

that the plaintiffs had no obligation to move to remove the nonsuit pursuant

to Rule 227.1, and the trial court’s order was therefore immediately

appealable.   Id. at 631-32; see also Valles v. Albert Einstein Medical

Center, 758 A.2d 1238, 1243 (Pa. Super. 2000), aff’d, 805 A.2d 1232 (Pa.

2002); Wujcik v. Yorktowne Dental Associates, Inc., 701 A.2d 581,

583-84 (Pa. Super. 1997).

       In accordance with Lewis, we will treat Judge Robins New’s May 27,

2014 order as one granting summary judgment against Hurst, and was thus



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final and appealable. We will now proceed to consider the substantive issues

raised on appeal. For his first issue on appeal, Hurst contends that the trial

court (Judge Tereshko) erred in striking all allegations of vicarious liability

against the Mercy entities for the acts of “unidentified agents, servants,

employees,     attending   physicians,    nursing   staff,   other   support   staff,

administrators, boards and committees.”        Trial Court Order, 8/31/2012, at

1(b).    In Count III of his amended complaint, Hurst asserted a claim for

vicarious liability against the Mercy entities for the negligence of “nursing

staff, attending physicians and other attending personnel” acting within the

scope of their employment “as agents, servants, or employees” of the Mercy

entities. Amended Complaint, ¶¶ 28-31. In their preliminary objections, the

Mercy entities argued that these allegations of agency did not satisfy the

pleading requirements for an agency relationship, citing to Alumni Ass’n,

Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 535 A.2d

1095, 1100 (Pa. Super. 1987).

        Our standard of review from an order granting a preliminary objection

in the nature of a demurrer2 is as follows:



2
   In their appellate brief, the Mercy entities note that Judge Tereshko did
not dismiss the claims against them but rather struck allegations of Hurst’s
amended complaint. Appellees’ Brief at 11. While technically true, we note
that in their preliminary objections, the Mercy entities specifically referenced
Rule 1027(a)(4) and indicated their motion to strike all allegations of agency
was “in the nature of a demurrer based upon the legal insufficiency of a
pleading.” Preliminary Objections, 7/10/2012, ¶ 25. Moreover, subsection
(b) of Judge Tereshko’s August 31, 2012 order effectively dismissed as


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J-A09018-15


             [O]ur 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.

Durst v. Milroy Gen. Contracting, Inc., 2012 179, 52 A.3d 357, 359-60

(Pa. Super 2012) (quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa.

Super. 2011)).

       In Sokolsky v. Eidelman, 93 A.3d 858 (Pa. Super. 2014), this Court

recently reviewed the basic requirements for a cause of action for vicarious

liability:

             Our Supreme Court has recently opined on the
             differences between direct and vicarious liability.

                   To prove negligence, a plaintiff may
                   proceed against a defendant on theories

legally insufficient Hurst’s cause of action for vicarious liability for the acts of
unnamed agents, servants, and employees of the Mercy entities.                    A
demurrer is an assertion that a complaint does not set forth a cause of
action upon which relief may be granted. Desanctis v. Prichard, 803 A.2d
230, 232 (Pa. Super. 2002).


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J-A09018-15


               of direct and vicarious liability, asserted
               either concomitantly or alternatively.
               Liability for negligent injury is direct
               when the plaintiff seeks to hold the
               defendant responsible for harm the
               defendant caused by the breach of duty
               owing directly to the plaintiff.          By
               comparison, vicarious liability is a policy-
               based allocation of risk.          Vicarious
               liability, sometimes referred to as
               imputed negligence, means in its
               simplest form that, by reason of some
               relation existing between A and B, the
               negligence of A is to be charged against
               B although B has played no part in it, has
               done nothing whatever to aid or
               encourage it, or indeed has done all that
               [it] possibly can to prevent it. Once the
               requisite relationship (i.e., employment,
               agency) is demonstrated, the innocent
               victim has recourse against the principal,
               even if the ultimately responsible agent
               is unavailable or lacks the availability to
               pay.

          Scampone v. Highland Park Care Center, LLC,
          618 Pa. 363, 57 A.3d 582, 597 (2012) (citations and
          internal quotation marks omitted); see also Hall v.
          Episcopal Long Term Care, 54 A.3d 381, 402 (Pa.
          Super. 2012), appeal denied, 620 Pa. 715, 69 A.3d
          243 (2013).

          Accordingly, in order to hold an employer vicariously
          liable for the negligent acts of its employee, these
          acts must be “committed during the course of and
          within the scope of the employment.” Sutherland
          v. Monongahela Valley Hosp., 856 A.2d 55, 62
          (Pa. Super. 2004), citing R.A. v. First Church of
          Christ, 748 A.2d 692, 699 (Pa. Super. 2000)
          (concluding that the sexual assault of a child was not
          committed within the scope of a minister's
          employment), appeal denied, 563 Pa. 689, 760 A.2d
          855 (2000).



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J-A09018-15



                  The conduct of an employee is
                  considered       within    the    scope    of
                  employment for purposes of vicarious
                  liability if: (1) it is of a kind and nature
                  that the employee is employed to
                  perform; (2) it occurs substantially
                  within the authorized time and space
                  limits; (3) it is actuated, at least in part,
                  by a purpose to serve the employer; and
                  (4) if force is intentionally used by the
                  employee against another, the use of
                  force is not unexpected by the employer.

            R.A., supra (internal quotation marks omitted).

Sokolsky, 93 A.3d at 863-64.

      In Sokolsky, we 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.

            Upon review, we conclude that the trial court erred
            as a matter of law when it ruled Sokolsky could not
            establish her right to recovery on her vicarious
            liability claim solely because she did not base that
            claim on an individual staff member's actions. The
            trial court's interpretation of vicarious liability rebuffs
            both the intent and the purpose underlying this
            theory of recovery. 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 within the scope of their
            employment. Herein, both Manor Care and Lehigh
            Valley may be subject to vicarious liability for the
            negligent acts and omissions of its staff regarding
            the quality of care it rendered to Sokolsky. This
            vicarious liability attaches to Manor Care and Lehigh




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J-A09018-15


           Valley regardless of Sokolsky's attack of an
           individual member of either entity's nursing staff.

Id. at 865-66 (emphasis added) (citations omitted).

     The purpose of pleadings is to put a defendant on notice of the claims

upon which it will have to defend.          Yacoub v. Lehigh Valley Med.

Associates, P.C., 805 A.2d 579, 588-89 (Pa. Super. 2002) (citing

McClellan v. Health Maintenance Organization of Pennsylvania, 604

A.2d 1053 (Pa. Super. 1992), appeal denied, 616 A.2d 985 (Pa. 1992)). A

complaint must give a defendant fair notice of the plaintiff's claims and a

summary of the material facts that support those claims. Pa.R.C.P. 1019(a).

In assessing whether particular paragraphs in a complaint satisfy this

requirement, they must be read in context with all other allegations in the

complaint to determine whether the defendant has been provided adequate

notice of the claim against which it must defend. Yacoub, 805 A.2d at 589.

     In the present case, as detailed hereinabove, Hurst’s amended

complaint set forth the material allegations of negligence upon which his

claims for vicarious liability against the Mercy entities were based --

including Denmark’s fall causing the dislocation of a catheter, the surgery

during which his bladder was severely lacerated, the gauze left in the wound

after the stitches had been applied -- all allegedly resulting in the

development of septic shock causing Denmark’s death. Amended Complaint,

¶¶ 6-18.   While Hurst did not identify the nurses or doctors allegedly




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J-A09018-15


responsible (except for Drs. Williams and Hallur), the names of those who

performed services in connection with Denmark’s care (as described) are

either known to the Mercy entities or could have been ascertained during

discovery. Accordingly, when read in the context of the allegations of the

amended    complaint,   Hurst’s   references   to   “nursing   staff,   attending

physicians and other attending personnel” and “agents, servants, or

employees” were not lacking in sufficient specificity and did not fail to plead

a cause of action against the Mercy entities for vicarious liability. As such,

subsection (b) of Judge Tereshko’s August 31, 2012 order was error.

      For his second issue on appeal, Hurst argues that Judge Tereshko

erred in striking/dismissing his claim for corporate negligence against the

Mercy entities.   Our Supreme Court recognized a cause of action for

corporate negligence by a hospital in Thompson v. Nason Hosp., 591 A.2d

703 (Pa. 1991).

            Corporate negligence is a doctrine under which the
            hospital is liable if it fails to uphold the proper
            standard of care owed the patient, which is to ensure
            the patient’s safety and well-being while at the
            hospital.     This theory of liability creates a
            nondelegable duty which the hospital owes directly
            to a patient. Therefore, an injured party does not
            have to rely on and establish the negligence of a
            third party.

            The hospital’s duties have been classified into four
            general areas: (1) a duty to use reasonable care in
            the maintenance of safe and adequate facilities and
            equipment; (2) a duty to select and retain only
            competent physicians; (3) a duty to oversee all



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              persons who practice medicine within its walls as to
              patient care; and (4) a duty to formulate, adopt and
              enforce adequate rules and policies to ensure quality
              care for the patients….

              [W]e adopt as a theory of hospital liability the
              doctrine of corporate negligence or corporate liability
              under which the hospital is liable if it fails to uphold
              the proper standard of care owed its patient. In
              addition, we fully embrace the aforementioned four
              categories of the hospital's duties. It is important to
              note that for a hospital to be charged with
              negligence, it is necessary to show that the hospital
              had actual or constructive knowledge of the defect or
              procedures which created the harm. Furthermore,
              the hospital's negligence must have been a
              substantial factor in bringing about the harm to the
              injured party.

Id. at 707-08.

     In her written opinion pursuant to Rule 1925(a) of the Pennsylvania

Rules of Appellate Procedure,3 Judge Robins New concluded that Hurst’s

amended complaint sufficiently alleged a cause of action for corporate

negligence:

              Taking all of [Hurst’s] factual allegations as true (as
              a trial court must when ruling on a preliminary
              objection), [Denmark’s] urinary catheter was
              dislodged and [Mercy’s] agent physicians performed
              surgery to reinsert it. In that surgery, [Mercy’s]
              agents “severely lacerated” [Denmark’s] bladder and
              subsequently left a piece of gauze inside [Denmark]
              upon the completion of the procedure. These acts
              then allegedly resulted in [Denmark’s] death from
              septic shock.


3
   Judge Robins New indicated that she offered Judge Tereshko the
opportunity to author the Rule 1925(a) opinion, but that he declined. Trial
Court Opinion, 10/7/2014, at 3 n.1.


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            The facts as averred by [Hurst] successfully allege
            violations of the duties owed by [Mercy] to [Hurst]
            under corporate negligence liability. The fact that
            the catheter became dislodged may be construed as
            a violation of the duty to maintain adequate
            equipment. A physician stitching a piece of gauze
            inside a patient may be sufficient for a factfinder to
            decide that physician was of questionable skill,
            violating the hospital’s duty to retain only competent
            medical personnel. Thus, the facts as alleged by
            [Hurst] provide an adequate ground upon which
            relief can be granted under multiple theories of
            corporate negligence.

Trial Court Opinion, 10/7/2014, at 6-7.

      Based upon our review of Hurst’s amended complaint, we agree with

Judge Robins New’s analysis. We further note that Hurst also alleged that

the Mercy entities “had actual or constructive knowledge of the defect [in]

procedure which led to [Denmark’s] injuries” and that their negligence was a

“direct and proximate” cause of said injuries and death.                   Amended

Complaint, ¶¶ 43, 45. For these reasons, we conclude that Hurst’s amended

complaint sufficiently pled a cause of action for corporate negligence, and as

a result, the portion of subsection (c) of Judge Tereshko’s August 31, 2012

order striking Count IV of Hurst’s amended complaint was in error.

      Hurst has not appealed subsection (a) of the August 31, 2012 order

striking all claims for punitive damages.       Hurst has also not appealed the

striking of paragraphs 24(a)-(c), (e), (h)-(i), (l)-(p), and (q) of the amended

complaint in subsections (c) and (d) of Judge Tereshko’s order, or Judge

Robins   New’s   grant   of   the   motion     in   limine   regarding   Dr.   Hallur.


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Accordingly, our decision here is limited to a determination that Hurst

successfully pled causes of action against the Mercy entities for vicarious

liability and corporate negligence.    Because Judge Tereshko’s August 31,

2012 order granting preliminary objections effectively dismissed these

causes of action at the pleadings stage, Judge Robins New’s May 27, 2014

order did not constitute an adjudication of these claims on their merits. All

claims against Drs. Williams and Hallur were properly dismissed and Hurst

has not appealed those decisions.

      The order dated August 31, 2012 is hereby reversed in part as

specified herein.   The case is remanded to the trial court for further

proceedings consistent with this opinion. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/28/2015




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