J-A15045-17
                            2017 PA Super 308

ROBERTA BRESLIN, EXECUTRIX OF THE :              IN THE SUPERIOR COURT OF
ESTATE OF VINCENT BRESLIN,        :                    PENNSYLVANIA
DECEASED,                         :
                                  :
               Appellant          :
                                  :
          v.                      :
                                  :
MOUNTAIN VIEW NURSING HOME,       :
INC.,                             :                  No. 1961 MDA 2016

              Appeal from the Order entered October 21, 2016
           in the Court of Common Pleas of Lackawanna County,
                     Civil Division, No(s): 2015-05015

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                       FILED SEPTEMBER 28, 2017

     Roberta Breslin (“Breslin”), executrix of the Estate of Vincent Breslin

(“Vincent”), deceased, appeals from the Order sustaining the Preliminary

Objections filed by Mountain View Nursing Home, Inc. (“MVNH”), and

dismissing Breslin’s claims, with prejudice.   We affirm in part, reverse in

part, and remand for further proceedings.

     From October 9, 2013, to October 16, 2014, Vincent was a patient at

MVNH.1 During the year in which he was a patient at the facility, Vincent

developed multiple Grade III and/or Grade IV pressure ulcers in his ischial

areas, sacral area, right foot and left foot. On December 1, 2015, Breslin




1
  The Amended Complaint is silent as to when Vincent died. However,
Breslin does not allege that Vincent died while he was a patient at MVNH.
J-A15045-17


filed a Complaint against MVNH, asserting claims sounding in corporate

negligence and vicarious liability.      On February 16, 2016, MVNH filed

Preliminary Objections to the Complaint in the nature of a demurrer.          On

May 20, 2016, the trial court sustained the Preliminary Objections based on

lack of specificity, and directed Breslin to file an Amended Complaint.       On

June 10, 2016, Breslin filed an Amended Complaint.         On June 23, 2016,

MVNH filed Preliminary Objections in the nature of a demurrer to the

Amended Complaint.       On October 25, 2016, the trial court sustained the

Preliminary   Objections,   and   dismissed   the   Amended    Complaint     with

prejudice.    Breslin filed a timely Notice of Appeal, and a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.

      The issues that Breslin raises on appeal for our review can be

summarized as follows:

      1. Whether the trial court erred when it sustained MVNH’s
         Preliminary Objection to Breslin’s claim for corporate
         negligence?

      2. Whether the trial court erred when it sustained MVNH’s
         Preliminary Objection to Breslin’s claim for vicarious liability?

      3. Whether the trial court erred when it sustained MVNH’s
         Preliminary Objection alleging insufficient specificity regarding
         agency and negligence?

      4. Whether the trial court erred when it sustained MVNH’s
         Preliminary Objection regarding scandalous and impertinent
         matter in the Amended Complaint?

      5. Whether the trial court erred when it sustained MVNH’s
         Preliminary Objection to Breslin’s claim for punitive damages?



                                   -2-
J-A15045-17


See Brief for Appellant at 2-3 (issues renumbered for ease of disposition).

             Our review of a trial court’s sustaining of preliminary
      objections in the nature of a demurrer is plenary.             Such
      preliminary objections should be sustained only if, assuming the
      averments of the complaint to be true, the plaintiff has failed to
      assert a legally cognizable cause of action. We will reverse a
      trial court’s decision to sustain preliminary objections only if the
      trial court has committed an error of law or an abuse of
      discretion.

            All material facts set forth in the complaint as well as all
      inferences reasonably [deducible] therefrom are admitted as
      true for [the purpose of this review]. The question presented by
      the demurrer is whether, on the facts averred, the law says with
      certainty that no recovery is possible. Where a doubt exists as
      to whether a demurrer should be sustained, this doubt should be
      resolved in favor of overruling it.

            Regarding a demurrer, this Court has held:

            A demurrer is an assertion that a complaint does not
            set forth a cause of action or a claim on which relief
            can be granted. A demurrer by a defendant admits
            all relevant facts sufficiently pleaded in the complaint
            and all inferences fairly deducible therefrom, but not
            conclusions of law or unjustified inferences. In ruling
            on a demurrer, the court may consider only such
            matters as arise out of the complaint itself; it cannot
            supply a fact missing in the complaint.


            Where the complaint fails to set forth a valid cause of
      action, a preliminary objection in the nature of a demurrer is
      properly sustained.

Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa. Super. 2008) (internal

citations omitted).

      In her first issue, Breslin contends that the trial court erred by

sustaining MVNH’s preliminary objection to Breslin’s claim for corporate

negligence. Brief for Appellant at 9. Breslin asserts that “the duties alleged


                                  -3-
J-A15045-17


by [Breslin] in the Amended Complaint are legally recognizable non-

delegable duties applicable to [MVNH].”   Id.   Breslin claims that the trial

court erroneously determined that the allegations of corporate negligence

set forth in the Amended Complaint are beyond the non-delegable duties

applicable to a corporate entity as set forth in Thompson v. Nason Hosp.,

591 A.2d 703 (Pa. 1991), and extended to nursing homes in Scampone v.

Highland Park Care Ctr., LLC, 57 A.3d 582, 596 (Pa. 2012).          Brief for

Appellant at 10.     Breslin argues that the allegations in the Amended

Complaint “are built on direct quotes from the Supreme Court’s Opinion in

Thompson.”      Id. at 9, 10.   In support, Breslin cites to the allegations

contained in paragraphs 47-50 of the Amended Complaint, wherein she

asserts the following:

            47. At all relevant times, [MVNH] had a non-delegable
      duty to Vincent [] to use reasonable care in the maintenance of
      safe and adequate facilities and equipment;

            48. At all relevant times, [MVNH] had a non-delegable
      duty to Vincent [] to select and retain competent and qualified
      medical personnel;

            49. At all relevant times, [MVNH] had a non-delegable
      duty to Vincent [] to oversee all persons practicing medicine
      within its walls;

            50. At all relevant times, [MVNH] had a non-delegable
      duty to Vincent [] to formulate, adopt and enforce adequate
      rules and policies to ensure quality patient care.

Id. at 10 (quoting Amended Complaint at ¶¶ 47-50). Breslin also points to

the allegations in the Amended Complaint that MVNH had non-delegable



                                 -4-
J-A15045-17


duties to Vincent to (1) “ensure his safety and well-being while he was

admitted as a patient at [MVNH;]” (2) “exercise reasonable care and skill in

the performance of its duties[;]” (3) “uphold the proper standard of care[;]”

and (4) “use that degree of professional skill and care customarily exercised

by nursing homes in its professional community[,]” and contends that these

duties constitute further non-delegable duties identified by the Thompson

Court. Brief for Appellant at 10-11 (quoting from the Amended Complaint at

¶¶ 43, 45, 46).    Finally, Breslin claims that, even if some of the duties

alleged in the Amended Complaint are not recognizable non-delegable

duties, the trial court erred by dismissing all of the alleged duties. Brief for

Appellant at 11.

      In Thompson, the Supreme Court adopted the theory of corporate

liability, as it relates to hospitals, by holding that the defendant hospital

owed a non-delegable duty of care toward a patient of a doctor with staff

privileges at the hospital.   Thompson, 591 A.2d at 707.       Specifically, the

Thompson Court

      adopted an ostensibly novel theory of liability – “corporate
      negligence” -- under which a hospital operating primarily on a
      fee-for-service basis can be held liable if it breaches the non-
      delegable duty of care owed directly to the patient to ensure “the
      patient’s safety and well-being” while at the hospital. The Court
      surveyed the jurisprudence of other states to identify “four
      general areas” into which a hospital’s responsibilities to its
      patients could be classified: (1) duties to use reasonable care in
      the maintenance of safe and adequate facilities and equipment;
      (2) duties to select and retain competent physicians; (3) duties
      to oversee all persons who practice medicine within the



                                  -5-
J-A15045-17


      hospital’s walls; and (4) duties to formulate, adopt, and enforce
      adequate rules and policies to ensure quality patient care.

Scampone, 57 A.3d at 601. Additionally, the Thompson Court ruled that

the hospital owed a non-delegable duty directly to the patient to observe,

supervise, or control his/her treatment approved by multiple physicians; to

apply and enforce its consultation and monitoring procedures; and to ensure

the patient’s safety and well-being while at the hospital. See Thompson,

591 A.2d at 705, 707.

      In Scampone, our Supreme Court rejected the argument that nursing

homes and related entities should be categorically immune or exempt from

direct liability claims, such as corporate negligence.      See Scampone, 57

A.3d at 600. Instead, the Scampone Court held that “a nursing home and

affiliated entities are subject to potential direct liability for negligence, where

the requisite resident-entity relationship exists to establish that the entity

owes the resident a duty of care....”     Id. at 584. The Court further ruled

that, to determine the existence of such a duty, a trial court must undertake

the five-prong analysis set forth in Althaus v. Cohen, 756 A.2d 1166, 1169

(Pa. 2000) by considering: “(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.”

Scampone, 57 A.3d at 600; see also Sokolsky v. Eidelman, 93 A.3d 858,

870 (Pa. Super. 2014) (concluding Scampone requires a trial court to


                                   -6-
J-A15045-17


analyze the five Althaus factors in order to extend corporate liability to a

skilled nursing facility).2 None of the five Althaus factors is dispositive, and

a court may find a duty where the balance of these factors weighs in favor of

placing such a burden on a defendant. See Dittman v. UPMC, 154 A.3d

318, 323 (Pa. Super. 2017).

      In this case, the trial court determined that

      [t]he specific allegations concerning the corporate duties which
      [Breslin] alleges were the responsibility of [MVNH], such as
      “placing profits over adequate patient care” are in fact not
      recognizable non-delegable duties applicable to a corporate
      entity such as [MVNH] under Thompson [], nor does the
      doctrine of res ipsa loquitor support said allegations.

Trial Court Opinion, 10/25/16, at 2. On this basis, the trial court determined




2
 As Thompson was decided prior to Althaus, the Thompson Court did not
have the benefit of the Althaus factors. Instead, in adopting the theory of
corporate negligence as related to hospitals, the Thompson Court relied on
the Restatement (Second) of Torts § 323, which provides:
      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.



                                  -7-
J-A15045-17


that Breslin’s claim for corporate negligence was legally insufficient. Id.3

      Notably, although the trial court acknowledged its need to consider the

Althaus   factors,   and   indeed   specifically   identified   those   factors,   it

nevertheless failed to analyze or apply those factors to the facts alleged in

the Amended Complaint. See Trial Court Opinion, 10/25/16, at 2.

      We conclude that application of the Althaus factors to the facts

averred in the Amended Complaint weighs in favor of imposing on MVNH the

non-delegable duties identified by the Thompson Court.           Here, under the

first Althaus factor, we conclude that there was a special relationship

between MVNH and Vincent, which began when Vincent began residing as a

patient at MVNH.     See Althaus, 756 A.2d at 1169 (holding that duty is

predicated upon the relationship existing between the parties at the relevant

time). Breslin alleges that Vincent was “sick, elderly and frail,” and that he

“relied completely and exclusively on [MVNH] to provide all of his medical

care, daily care and personal needs.” See Amended Complaint, at ¶¶ 8, 19.

Breslin further alleges that MVNH exercised compete and exclusive control

over Vincent’s medical care during his stay as a patient at MVNH.              See

Amended Complaint, at ¶¶ 19, 20.            These facts create the type of

relationship between MVNH and Vincent to support the imposition of a duty


3
  Contrary to the trial court’s determination otherwise, our review discloses
that Breslin’s allegations of corporate negligence, as set forth in Count I of
the Amended Complaint, bear striking resemblance to the non-delegable
duties identified by the Thompson Court. See Amended Complaint, ¶¶ 46-
54(a)-(x).


                                    -8-
J-A15045-17


of care. Thus, the first Althaus factor weighs in favor of imposing the non-

delegable duties on MVNH.

      As to the second Althaus factor, we must weigh the social utility of

MVNH’s conduct against the nature of the risk and foreseeability of harm.

Breslin alleges that MVNH “mismanaged and/or reduced staffing levels below

the level necessary to provide adequate care and supervision to its patients

like Vincent[,]” resulting in the development of several pressure ulcers on

his body. See Amended Complaint, at ¶¶ 31, 32. The need for prevention

of nursing home mismanagement and understaffing is unquestionable, as is

the importance of proper care and treatment of nursing home patients.

MVNH provides health care services to patients such as Vincent, as well as

the necessary staffing to perform those services.         Imposing the non-

delegable duties identified by the Thompson Court will not unduly hinder

MVNH from performing its vital functions, and in fact, would operate to

MVNH’s benefit in protecting it from deficiencies in the care provided to its

patients. Here, social utility favors imposing a duty of care on MVNH, as it

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. Thus, the second Althaus factor weighs in favor of

imposing the non-delegable duties on MVNH.

      The third Althaus factor, the nature of the risk imposed and

foreseeability of the harm incurred, weighs heavily in favor of imposing the



                                  -9-
J-A15045-17


non-delegable duties identified by the Thompson Court. Under this factor,

we must determine whether MVNH either created or foresaw the possibility

of harm to Vincent. See Althaus, 756 A.2d at 1170. Breslin alleges that,

due to the failure of MVNH to properly staff its facility, Vincent received

substandard health care, resulting in the formation of pressure ulcers on his

body.    See Amended Complaint, at ¶¶ 17, 18.         The risk that substandard

health care would be rendered to a sick, elderly and frail patient due to

mismanagement and understaffing was a serious and foreseeable risk to

MVNH. Therefore, the third Althaus factor weighs in favor of imposing the

non-delegable duties on MVNH.

        The fourth Althaus factor requires us to consider the consequence of

imposing the non-delegable duties identified by the Thompson Court on

MVNH. Breslin alleges that MVNH “had a duty to maintain and manage its

facility with adequate staff and sufficient resources to ensure the timely

recognition and proper treatment of medical conditions suffered by persons

at its facility, such as Vincent [].”        Amended Complaint, at ¶ 52.        We

conclude    that   imposing   the   non-delegable    duties   identified   by   the

Thompson Court on MVNH is not unduly onerous. Indeed, imposing such

duties will not alter the relationship between MVNH and its patients in any

manner, and will merely vindicate MVNH’s existing obligations to provide

proper care and treatment to its patients. Thus, the fourth Althaus factor

weighs in favor of imposing the non-delegable duties on MVNH.



                                    - 10 -
J-A15045-17


      Finally, we conclude that the fifth Althaus factor, consideration of the

overall public interest, favors imposing on MVNH the non-delegable duties

identified by the Thompson Court.          Breslin alleges that MVNH (1) “held

itself out to the public as a competent and skillful health care provider[;]”

(2) “through advertising, promotion and marketing, held itself out to the

public, including Vincent [] and his family, as being able to provide

competent medical care, rehabilitation, and nursing care to sick, elderly and

frail individuals, including Vincent[;]” and (3) “held itself out to the public as

capable of providing adequate care to persons like Vincent [], including but

not limited to total health care, skin care, the provision of medication,

medical care and treatment, nursing care, nutrition, hydration and hygiene.”

Amended Complaint, at ¶¶ 5, 8, 9. We conclude that the societal interest

lies in in encouraging proper health care and treatment of nursing home

residents.   Thus, the fifth Althaus factor weighs in favor of imposing the

non-delegable duties on MVNH.

      Accepting as true the facts of the Amended Complaint and all

inferences drawn therefrom, as we must, we conclude that Breslin has

stated sufficient facts to establish that MVNH owed Vincent a duty of care

under an Althaus analysis.      See Scampone, 2017 PA Super 257 *43-44

(Pa. Super. 2017) (agreeing with the trial court’s determination that the

nursing home “had a non-delegable duty to render proper care to [Ms.

Scampone] by virtue of its direct contractual relationship with her, the fact



                                  - 11 -
J-A15045-17


that it was the licensed owner of the nursing home facility, and due to its

direct rendition of care services to its residents.”). Whether these facts will

survive discovery and a motion for summary judgment, or whether Breslin

can meet her burden before a jury and obtain recovery, is for another day.

See R.W. v. Manzek, 888 A.2d 740, 751 (Pa. 2005).              It was, however,

error to dismiss her claim for corporate negligence on preliminary objections.

See id.      We therefore reverse the trial court’s Order granting MVNH’s

preliminary objection with regard to Breslin’s claim for corporate negligence

based on the non-delegable duties identified by the Thompson Court.

       As Breslin’s second and third issues are related, we will address them

together. In her second issue, Breslin contends that the trial court erred by

sustaining MVNH’s preliminary objection to Breslin’s claim for vicarious

liability.   Brief for Appellant at 11-12.   Breslin asserts that the trial court

“appeared to base its ruling on old, inapplicable case law provided … by

[MVNH] in its Preliminary Objections.” Id. at 12. Specifically, Breslin points

to the trial court’s determination that Breslin had failed “to identify a single

individual by name or title who would have treated [Vincent] during his

year-long stay at [MVNH],” Brief for Appellant at 12 (citing Trial Court

Opinion, 10/25/16, at 3), and claims that she was not required to identify

individual or specific members of MVNH’s staff in order for vicarious liability

to attach. Brief for Appellant at 12 (citing Estate of Denmark v. Williams,

117 A.3d 300 (Pa. Super. 2015) and Sokolsky, supra). Breslin argues that



                                   - 12 -
J-A15045-17


the Amended Complaint describes the specific dates of Vincent’s admission

at MVNH, during which multiple pressure ulcers formed on his body. Brief

for Appellant at 14.      Breslin contends that the remaining information

regarding Vincent’s care, and the names of the personnel who provided it, is

in the sole possession of MVNH, and can be ascertained during discovery.

Id. at 14-15.

      In her third issue, Breslin contends that the Amended Complaint

pleaded agency and negligence4 with sufficient specificity pursuant to

Sokolsky and Estate of Denmark.           Id. at 20-21.   Breslin points to the

averments in the Amended Complaint which describe “doctors, nurses and

persons providing health care, medical services, rehabilitation services, and

assisted living/personal care/skilled nursing to Vincent [] during his

admission at [MVNH].”      Id. at 21 (quoting Amended Complaint, ¶ 6).

Breslin further points to the references in the Amended Complaint to

“nurses, physicians, resident physicians, fellows, attending physicians,

therapists,     agents,   servants,    workers,     employees,     contractors,


4
  In its Opinion, the trial court determined that the Amended Complaint
failed to plead negligence with sufficient specificity. See Trial Court Opinion,
10/25/16, at 5. For the reasons expressed in our discussion of Breslin’s first
issue, we conclude that her claim for corporate negligence was pleaded with
sufficient specificity in the Amended Complaint.          The trial court also
determined that Breslin had failed to plead fraud with sufficient specificity,
and struck all references thereto in the Amended Complaint. See id.
However, the trial court further indicated that Breslin had voluntarily agreed
to strike the references to fraud from the Amended Complaint. See id. at 4.
Breslin makes no argument regarding the fraud allegations in her brief.
Accordingly, we need not address those allegations.


                                 - 13 -
J-A15045-17


subcontractors, and/or staff, all of whom were acting within the course and

scope of their employment and under the direct and exclusive control of

[MVNH].” Id. (quoting Amended Complaint, ¶ 60). Breslin also claims that

the Amended Complaint “describes the specific dates during which [MVNH]

exercised ‘complete and exclusive control over [Vincent’s] medical care,’ and

during which multiple pressure ulcers formed on [Vincent’s] body.” Brief for

Appellant at 22 (quoting Amended Complaint, ¶¶ 11, 13, 14, 15, 20, 22).

Breslin argues that the names of the individuals who provided care to

Vincent are in the sole possession of MVNH, and can be ascertained through

discovery. Brief for Appellant at 22.

      In Scampone, our Supreme Court explained the difference between

direct and vicarious liability as follows:

      To prove negligence, a plaintiff may proceed against a defendant
      on theories 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, 57 A.3d at 597 (citations and internal quotation marks

omitted); see also Hall v. Episcopal Long Term Care, 54 A.3d 381, 402


                                   - 14 -
J-A15045-17


(Pa. Super. 2012).     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.” Estate of

Denmark, 117 A.3d at 306 (citations omitted).

      However, in Sokolsky, this Court 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 specifically named employee.                  See

Sokolsky, 93 A.3d at 866 (concluding that the trial court erred by ruling

that the plaintiff 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); id. (stating that “[s]imply 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.”); see also Estate of Denmark, 117 A.3d at 307 (concluding

that, “when read in the context of the allegations of the amended complaint,

[plaintiff’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 [hospital] entities for vicarious liability.”).

      Here, the trial court determined that Breslin “is required to identify by

name or appropriate description each professional who was allegedly



                                    - 15 -
J-A15045-17


negligent in treating [Vincent] during his stay at [MVNH],” and that Breslin

had “failed to set forth facts adequate to state a claim for vicarious liability

against [MVNH].”     Trial Court Opinion, 10/25/16, at 4.       The trial court

further determined that the Amended Complaint “merely and generally

maintains that [MVNH] acted through its agents, employees, contractors,

staff subcontractors, and/or representatives, and … fails to specify with the

required definiteness the individuals whose negligence is being attributed to

[MVNH].” Id. at 5.

      Based on our review, we conclude that the Amended Complaint

properly set forth the material allegations of negligence upon which Breslin’s

claim for vicarious liability against MVNH was based, including Vincent’s

inability to care for himself, his complete reliance upon the staff of MVNH “to

provide all of his medical care, daily care, and personal needs[,]” and that,

while under the care of MVNH’s staff, Vincent developed several pressure

ulcers on his body. See Amended Complaint, ¶¶ 17, 19. While Breslin did

not identify by name the nurses, doctors or other staff allegedly responsible,

the names of those who performed services in connection with Vincent’s care

are either known to MVNH, or could be ascertained during discovery. See

Estate of Denmark, 117 A.3d at 307.         When read in the context of the

allegations of the Amended Complaint, Breslin’s references to “nurses,

physicians, resident physicians, fellows, attending physicians, therapists,

agents, servants, workers, employees, contractors, subcontractors, and/or



                                  - 16 -
J-A15045-17


staff” were not lacking in sufficient specificity, and pled a cause of action

against MVNH for vicarious liability.        See id.    Thus, we reverse the trial

court’s Order granting MVNH’s preliminary objections with regard to (1)

Breslin’s claim for vicarious liability; and (2) insufficient specificity.

      In her fourth issue, Breslin contends that the trial court erred by

sustaining   MVNH’s     preliminary    objection      regarding   “scandalous   and

impertinent” matter in the Amended Complaint.            Brief for Appellant at 15.

Breslin asserts that each of the factual allegations deemed by the trial court

to be scandalous and impertinent pertained to either (1) “decri[ptions of] the

injuries that occurred [to Vincent] in terms used by Medicare[;]” or (2)

“allegations indicating that [MVNH] operated its facility in a way to maximize

profits over patient care.” Id. at 15-16. Breslin claims that the trial court

did not provide any basis for sustaining MVNH’s preliminary objections

related to scandalous and impertinent matter. Id. at 16. Breslin contends

that the allegations in question were both material and appropriate to the

claims asserted, and caused no prejudice to MVNH. Id. at 17. Specifically,

Breslin asserts that “proof as to why [MVNH] was content to provide a

deplorable level of care to one of its patients—because it valued maximizing

profits over providing patient care—is both material to proving [Breslin’s]

claims and appropriate for doing so.”           Id.     Breslin claims that these

allegations are especially material and appropriate to her claim for punitive

damages. Id.



                                    - 17 -
J-A15045-17


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

preliminary objections to be filed when pleadings include a scandalous or

impertinent matter.     In order to be scandalous or impertinent, “the

allegation must be immaterial and inappropriate to the proof of the cause of

action.”   Common Cause/Pennsylvania v. Commonwealth, 710 A.2d

108, 115 (Pa. Cmwth. 1998).        The right to strike an impertinent matter,

however, “should be sparingly exercised and only when a party can

affirmatively show prejudice.”     Commonwealth Dep't of Envtl. Res. v.

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

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

allegations of the Amended Complaint in which Breslin claimed that pressure

ulcers are “never” events, or events which do not occur in the absence of

substandard medical care.         See Trial Court Opinion, 10/25/16, at 4

(referencing Amended Complaint, ¶¶ 10, 37, 54(o), and 71(g)).           The trial

court also struck as “scandalous or impertinent” the allegations of the

Amended Complaint in which Breslin claimed that MVNH had operated its

facility “‘to maximize profits and/or excess revenues’ to the peril of facility

residents.” See Trial Court Opinion, 10/25/16, at 4 (referencing Amended

Complaint, ¶¶ 30, 31, 54(q), 71(c) and 71(i)).

      Based on our review, we cannot say that the allegations in question

are “immaterial and inappropriate” to Breslin’s claims.            See Common

Cause/Pennsylvania, 710 A.2d at 115. Nor has MVNH affirmatively shown



                                   - 18 -
J-A15045-17


any prejudice resulting from these allegations. See Hartford Accident and

Indem. Co., 396 A.2d at 888. Indeed, the references that the trial court

struck may bear upon MVNH’s non-delegable duties, as identified by the

Thompson Court, to select and retain competent physicians; oversee all

persons who practice medicine within its walls; formulate, adopt, and

enforce adequate rules and policies to ensure quality patient care; observe,

supervise,   or   control   the   patient’s   treatment   approved   by   multiple

physicians; apply and enforce its consultation and monitoring procedures;

and ensure the patient’s safety and well-being while at the hospital.        See

Thompson, 591 A.2d at 705, 707. Accordingly, we reverse the trial court’s

Order sustaining MVNH’s preliminary objection regarding scandalous and

impertinent matter.

      In her final issue, Breslin contends that the Amended Complaint pled

sufficient facts to maintain a claim for punitive damages. Brief for Appellant

at 18. Breslin asserts that the Amended Complaint includes allegations

      [MVNH] “affirmatively chose to operate its facility so as to
      maximize profits and/or excess revenues at the expense of the
      care required to be provided to its patients, including Vincent …,”
      and that “in their effort to maximize profits, [MVNH] negligently,
      intentionally and recklessly mismanaged and/or reduced staffing
      levels below the level necessary to provide adequate care and
      supervision of its patients, including Vincent ….”

Id. at 19-20.     Breslin claims that the Amended Complaint is “replete with

allegations of willful or wanton conduct and reckless indifference to the




                                    - 19 -
J-A15045-17


rights of others on the part of [MVNH,]” and that Breslin has “alleged more

than enough facts to support [a] claim[] for punitive damages.” Id.

      Here, Breslin alleges that MVNH, motivated by a desire to increase

profits, knowingly mismanaged and/or reduced staffing levels below the

level needed to provide adequate care and supervision to its patients,

including Vincent. See Amended Complaint, ¶¶ 31, 32. Breslin has averred

facts that establish MVNH knew, or should have known, its understaffing

“created recklessly high patient-to-staff ratios, including high patient[-]to

[-]nurse ratios.” Id., ¶ 36. This Court cannot say with certainty that, upon

the facts averred, no reasonable inference from those facts supports a

punitive damages award.     Accordingly, we reverse the trial court’s Order

sustaining MVNH’s preliminary objection to Breslin’s claim for punitive

damages.

      In sum, the facts averred in the Amended Complaint sufficiently set

forth causes of action against MVNH for corporate negligence and vicarious

liability pursuant to Pennsylvania law.    Accordingly, we affirm the trial

court’s Order as it relates to the references to fraud in the Amended

Complaint, which Breslin voluntarily agreed to strike, and reverse the

remainder of the Order as it relates to the other preliminary objections filed

by MVNH.

      Order affirmed in part, reversed in part; case remanded for further

proceedings. Superior Court jurisdiction relinquished.



                                 - 20 -
J-A15045-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/28/2017




                          - 21 -
