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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

FREDDIE BATTLE, ADMINISTRATRIX          :     IN THE SUPERIOR COURT OF
FOR THE ESTATE OF ERIC BATTLE,          :           PENNSYLVANIA
DECEASED,                               :
                                        :
                          Appellant     :
                                        :
                     v.                 :
                                        :         No. 1864 WDA 2013
PRISON HEALTH SERVICES, INC.,           :
MHM CORRECTIONAL SERVICES, INC.         :


                   Appeal from the Order, October 30, 2013,
               in the Court of Common Pleas of Greene County
                 Civil Division at No. A.D. No. 552, 20093942


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 24, 2015

     Appellant appeals from various orders below which granted summary

judgment in favor of appellees in appellant’s negligence and breach of

contract action. Finding no merit in the issues on appeal, we affirm.

     Appellant is the administratrix for the Estate of Eric Battle. Tragically,

Battle died on June 4 or 5, 2005, of untreated diabetes while incarcerated at

the State Correctional Institution at Greene (“SCI Greene”). Mental health

issues contributed to Battle’s death as they apparently caused him to refuse

insulin treatment.    Appellees are the general health services provider and

the mental health services provider, respectively, at SCI Greene.
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      On July 30, 2007, appellant commenced her action against appellees

with the filing of a Writ of Summons.      In a subsequently filed complaint,

appellant raised a breach of contract count and multiple negligence-based

counts.   Ultimately, upon the filing of serial preliminary objections and

amended complaints, summary judgment was granted in favor of both

appellees as to all counts of the complaint.

      On August 28, 2009, the court sustained appellees’ preliminary

objections as to the breach of contract claim. In an accompanying opinion of

the same date, the court explained that appellant’s claim, based upon a

theory of third party beneficiary, was untenable because the contracts

between the Department of Corrections and each of the appellees, using

identical language, contained a clause specifically declaring that the parties

did not intend to create any third party beneficiary rights.

      On June 12, 2012, the trial court entered an order granting summary

judgment to appellee MHM Correctional Services, Inc., on appellant’s

negligence claims. In an accompanying memorandum of the same date, the

court explained that appellant’s negligence claims were all barred by the

two-year statute of limitations as Battle died no later than June 5, 2005, and

suit was not commenced until July 30, 2007.              The court dismissed

appellant’s discovery argument by noting that discovery does not toll the

statute of limitations because death is a definitely established event putting

survivors on notice to determine the cause of death, citing Pastierik v.



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Duquesne Light Co., 526 A.2d 323 (Pa. 1987). Finally, the court examined

the basis for estopping the invocation of the statute of limitations, fraudulent

concealment.    The court found no fraudulent concealment on the part of

appellee MHM Correctional Services, Inc., and observed that appellant had

at all times diligently pursued her inquiry into her son’s death.

      Finally, on October 30, 2013, the trial court entered an order granting

summary judgment in favor of appellee Prison Health Services, Inc., as to all

of appellant’s negligence claims. In an accompanying memorandum of the

same date, the court again explained that appellant’s negligence claims were

all barred by the two-year statute of limitations at 42 Pa.C.S.A. § 5524(2).

After again rejecting discovery as tolling the statute of limitations, the trial

court systematically examined in detail each instance of alleged fraudulent

concealment raised by appellant, and gave reasons why none were valid.

      We find no error with the trial court’s analysis.       After a thorough

review of the record, the briefs of the parties, the applicable law, and the

well-reasoned opinion and memoranda of the trial court, it is our

determination that summary judgment was properly granted. The breach of

contract claim was untenable because the underlying contract specifically

decreed that the parties did not intend to create third party beneficiaries.

The negligence claims were barred by the statute of limitations.       The trial

court’s opinion, filed on August 28, 2009, and its two memoranda, filed

June 12, 2012 and October 30, 2013, comprehensively discuss and properly



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analyze the bases for summary judgment. We will adopt them as our own

and affirm on those bases.

      Finally, we review an argument of appellant not fully addressed by the

trial court. Therein, appellant contends that another clause of the contracts

between appellees and the Department of Corrections confers third party

beneficiary status to inmates:

                                  ARTICLE 2

                                  SERVICES

            2.1   The PROVIDER shall deliver general health care
                  and specialized medical services to inmates
                  incarcerated at the FACILITIES.

            2.1   The PROVIDER shall deliver mental health
                  services to inmates incarcerated at the
                  FACILITIES.

Medical Services Agreement (upper); Mental Health Services Agreement

(lower).

      Appellant argues that because appellees cannot fulfill their contracts

without treating inmates, such factor confers third party beneficiary status

on appellant’s decedent. We disagree.

      Article 25 of both agreements, in identical language, clearly and

unambiguously declares that it is the intent of the parties not to create third

party beneficiaries:




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                                 ARTICLE 25

                            THIRD PARTY RIGHTS

            25.1 The only parties to this AGREEMENT are the
                 DEPARTMENT and PROVIDER.          The parties
                 understand that this AGREEMENT does not
                 create or intend to confer any rights in or on
                 persons or entities not a party to this
                 AGREEMENT.

Medical Services Agreement and Mental Health Services Agreement.

     The intent of the parties is manifest.    Clause 2.1 of each agreement

merely describes what the basic duties of the provider are. To the extent

that the clause suggests that third party beneficiary status may be available

to inmates, Clause 25.1 clearly and unambiguously declares that that is not

the case.

     In support of her position, appellant cites and quotes Scarpitti v.

Weborg, 609 A.2d 147 (Pa. 1992), a case in which our supreme court

expanded the rule designating third party beneficiary status:

                  The     current   rule   in  Pennsylvania     for
            designation of a party as a third party beneficiary
            was first articulated in the seminal case of Spires v.
            Hanover Fire Insurance Co., 364 Pa. 52, 70 A.2d
            828 (1950) (plurality opinion). In Spires, we held
            that in order for a third party beneficiary to have
            standing to recover on a contract, both contracting
            parties must have expressed an intention that the
            third party be a beneficiary, and that intention must
            have affirmatively appeared in the contract itself.

                                    ....

                  Accordingly, we hold that a party becomes a
            third party beneficiary only where both parties to the


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            contract express an intention to benefit the third
            party in the contract itself, Spires, supra, unless,
            the circumstances are so compelling that recognition
            of the beneficiary’s right is appropriate to effectuate
            the intention of the parties, and the performance
            satisfies an obligation of the promisee to pay money
            to the beneficiary or the circumstances indicate that
            the promisee intends to give the beneficiary the
            benefit of the promised performance.

Scarpitti, 609 A.2d at 149, 150-151 (emphasis in original).

      Appellant argues that the circumstances here are so compelling that

recognition of third party beneficiary status is appropriate.    We find that

Scarpitti is inapposite in this case.

      Scarpitti set out parameters for conferring third party beneficiary

status where the parties to the underlying agreement failed to explicitly do

so, but which agreement by its other terms clearly evinced an intention to

create third party beneficiaries. The instant agreement did not merely fail to

create third party beneficiaries; rather, the parties explicitly agreed that by

their agreement they intended to create no third party beneficiaries. In the

face of such an explicit directive in the underlying contract, it would be

wholly improper even under Scarpitti to find that the contract actually did

create third party beneficiaries. We find that appellant does not have third

party beneficiary status.

      Accordingly, having found that the trial court properly entered

summary judgment against appellant, we will affirm the order below.




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      Orders of June 12, 2012 and October 30, 2013, granting summary

judgment, are affirmed. Order of August 28, 2009, sustaining preliminary

objections as to the breach of contract claim, is affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/24/2015




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