J-S17040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PAMELA HACKENBURG, ADMINISTRATOR :                IN THE SUPERIOR COURT OF
OF THE ESTATE OF FRANK T. MOTYL,  :                    PENNSYLVANIA
DECEASED                          :
                                  :
                    Appellant     :
                                  :
               v.                 :
                                  :
GRANE HEALTHCARE CO. AND ALTOONA :
CENTER FOR NURSING CARE, LLC, AND :
AMBER TERRACE                     :
                                  :
                                  :
                                  :               No. 1364 WDA 2015

                     Appeal from the Order August 5, 2015
           in the Court of Common Pleas of Blair County Civil Division
                             at No(s): 2011-GN 2346

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 27, 2016

        Appellant, Pamela Hackenburg, Administrator of the Estate of Frank T.

Motyl, Deceased (“Decedent”), appeals from the order entered in the Blair

County Court of Common Pleas granting Appellees’, Grane Healthcare Co.,

Altoona Center for Nursing Care, LLC, and Amber Terrace’s, motion for

summary judgment. Appellant contends that there were material issues of

fact as to whether Decedent was capable of independently entering and

leaving the personal care home, Amber Terrace. Appellant avers that it was




*
    Former Justice specially assigned to the Superior Court.
J-S17040-16

reasonably foreseeable that Decedent would be struck by an impaired driver

while crossing the street. We affirm.

      The trial court summarized the facts and procedural posture of this

case as follows:

            Altoona Center for Nursing Care, LLC, and Amber
         Terrace (“Amber Terrace”) are the same entity functioning
         as a personal care home.

                                 *      *   *

         Decedent . . . became a resident of Amber Terrace on
         August 13, 2004. On July 9, 2010, [D]ecedent was fatally
         injured by an impaired driver[1] while walking across the
         intersection of 17th Street and Ninth Avenue in Altoona.

            [Appellant] was appointed Administrator of the estate of
         [Decedent] on November 1, 2010. [Appellant] began the
         instant action with the filing of a Writ of Summons on July
         19, 2011. This [c]ourt issued a Writ Notice on August 27,
         2013 instructing [Appellant] to file a Complaint within
         thirty days. [Appellant] filed a Complaint on September
         26, 2013 to which [Appellees] filed Preliminary Objections
         on October 17, 2013.         [Appellant] filed an Amended
         Complaint on November 4, 2013. [Appellees] again filed
         Preliminary Objections which the [c]ourt denied on January
         23, 2014.

             The Amended complaint alleges that [Appellee] Amber
         Terrace knew or should have been aware of [D]ecedent’s
         propensity to wander and run away and was negligent in
         failing to monitor and implement a support and care plan
         to address [D]ecedent’s habits, including home rules
         regarding when a resident could leave and return to the
         facility. [Appellant] further averred that [Appellee] Grane
         Healthcare Co. failed to require a support plan for

1
  The police criminal complaint stated that the accused was driving under the
influence of a controlled substance. R.R. at 160a. Where applicable, we
refer to the reproduced record for the parties’ convenience.



                                     -2-
J-S17040-16

         [D]ecedent and employ competent staff despite provided
         consultation, advice, administrative support, and skilled
         nursing care at Amber Terrace. In response, [Appellees]
         denied the allegations and asserted that there was no duty
         to restrict [D]ecedent’s movement nor were [Appellees]
         the proximate cause of [Decedent’s] injuries.

Trial Ct. Op., 8/5/15, at 1-2 (citations omitted).

      Appellees filed a motion for summary judgment. Argument was held

on the motion on July 29, 2015. On August 7, 2015, the court granted the

motion. On August 27, 2015, a praecipe to enter judgment was filed and

judgment was entered on the same date. This timely appeal followed.

Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.2     The court filed a letter, in lieu of an opinion,

relying on the existing record.

      Appellant raises the following issues for our review:

         A. Whether the trial court erred in finding no duty on a
         personal care home to limit a resident’s movement when
         the resident has a history of wandering?

         B. Whether the trial court erred in making factually [sic]
         determinations as opposed to determining whether
         genuine issues of material fact exists?



2
 We note that Appellant's Rule 1925(b) statement contains issues that are
not raised on appeal. See Gurley v. Janssen Pharm., Inc., 113 A.3d 283,
288 n.11 (Pa. Super. 2015) (issues raised in Rule 1925(b) and not
addressed in the statement of questions or body of brief held abandoned on
appeal).




                                      -3-
J-S17040-16

           C. Whether it is reasonably foreseeable to a personal care
           home that a resident with a history of wandering would be
           struck by a vehicle at 5:30 a.m. unaccompanied?

Appellant’s Brief at 3.

        Appellant argues that Appellees breached the duty of care to

Decedent, as a resident of a personal care home.          Id. at 9.   Appellant

contends the report of Mark Levine,3 an expert in senior care administration,

indicates “that Amber Terrace was negligent in failing to assess [Decedent’s]

risk of unsafe walking as well as its failure to develop behavioral strategies

to minimize his risk and monitor those through interventions to increase his

safety.”   Id. at 14.     Appellant claims that “[t]he fact that the driver that

struck and killed [D]ecedent was impaired does not change the fact that it

was reasonably foreseeable that [Decedent] would be struck by a vehicle

while walking.” Id. Appellant avers that there is a material issue of fact as

to whether Decedent’s “condition had significantly changed to prompt an

additional assessment or to update his support plan.” Id. at 18. Appellant

states that as “Mr. Levine indicates, both [Decedent’s] son and daughter

indicated they recognized cognitive changes in [him] during his stay at

[Amber Terrace].”       Id.   Lastly, Appellant contends that it was reasonably

foreseeable to Appellees that Decedent would be struck by a vehicle at 5:30

a.m. Id. at 19. Appellant is due no relief.


3
    See R.R. at 171a-79a.




                                       -4-
J-S17040-16

      We address Appellant’s issues together because they are interrelated.

Our review is governed by the following principles:

         The standards which govern summary judgment are well
         settled. When a party seeks summary judgment, a court
         shall enter judgment whenever there is no genuine issue of
         any material fact as to a necessary element of the cause of
         action or defense that could be established by additional
         discovery. A motion for summary judgment is based on an
         evidentiary record that entitles the moving party to a
         judgment as a matter of law. In considering the merits of
         a motion for summary judgment, a court views the record
         in the light most favorable to the non-moving party, and
         all doubts as to the existence of a genuine issue of
         material fact must be resolved against the moving party.
         Finally, the court may grant summary judgment only when
         the right to such a judgment is clear and free from doubt.
         An appellate court may reverse the granting of a motion
         for summary judgment if there has been an error of law or
         an abuse of discretion. . . .

Varner-Mort v. Kapfhammer, 109 A.3d 244, 246-47 (Pa. Super. 2015)

(citation omitted).

      It is well established that

         [i]n Pennsylvania, the elements of a cause of action based
         upon negligence are:

            (1) a duty or obligation recognized by the law
            requiring the defendant to conform to a certain
            standard of conduct for the protection of others
            against unreasonable risks;

            (2) defendant's failure to conform to the standard
            required;

            (3) a causal connection between the conduct and the
            resulting injury;

            (4) actual loss or damage resulting to the plaintiff.



                                     -5-
J-S17040-16

R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005) (citations omitted).

           It is beyond question that the mere existence of
           negligence and the occurrence of injury are
           insufficient to impose liability upon anyone as there
           remains to be proved the link of causation.
           Furthermore, our Supreme Court has stated that “. .
           . even when it is established that the defendant
           breached some duty of care owed the plaintiff, it is
           incumbent on a plaintiff to establish a causal
           connection between defendant’s conduct, and it must
           be shown to have been the proximate cause of
           plaintiff’s injury.”

        “Proximate causation is defined as a wrongful act which
        was a substantial factor in bringing about the plaintiff’s
        harm.” Proximate cause does not exist where the causal
        chain of events resulting in plaintiff’s injury is so remote as
        to appear highly extraordinary that the conduct could have
        brought about the harm.

Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286-87 (Pa. Super.

2005) (citations omitted).

     A personal care home is statutorily defined as follows:

        “Personal care home” means any premises in which
        food, shelter and personal assistance or supervision are
        provided for a period exceeding twenty-four hours for four
        or more adults who are not relatives of the operator, who
        do not require the services in or of a licensed long-
        term care facility but who do require assistance or
        supervision in such matters as dressing, bathing, diet,
        financial management, evacuation of a residence in the
        event of an emergency or medication prescribed for self
        administration.

62 P.S. § 1001 (emphasis added).

     The   Pennsylvania      Administrative   Code   addresses   the   rights   of

residents of personal care homes. The Code provides that “[a] resident has



                                      -6-
J-S17040-16

the right to leave and return to the home at times consistent with the home

rules and the resident’s support plan.”          55 Pa. Code § 2600.42(m).

Furthermore, “[a] resident shall be free from restraints.” Id. § 2600.42(p).

      The Code provides the criteria for a care plan.

           (c) The resident shall have additional assessments as
           follows:

              (1) Annually.

              (2) If the condition of the resident significantly changes
              prior to the annual assessment.

55 Pa. Code § 2600.225(c)(1), (2).

      Morgan Wiser, a “LPN and a personal care administrator,” was

deposed. Dep., 5/11/15, at 9.4 She worked at Amber Terrace from January

of 2006 until September 2011.           Id. at 12.   She testified, inter alia, as

follows.


           [Counsel for Appellant]: In 2009 and 2010, let’s talk
           about those time periods. You were the personal care
           administrator; correct?

           A: Uh-huh (yes).

           Q: Whose responsibility would it have been to do the
           support plan?

           A: I did the support plan.

           Q: . . . What information did you take into account in
           preparing the support plan for [Decedent]?

4
  We note that the reproduced record does not contain the first twenty pages
of the deposition.



                                        -7-
J-S17040-16



       A: Can you be more specific?

       Q: . . . Did you utilize the nurse’s notes, for example . . . .

       A: Yes. [Decedent] was very independent, I’m sure as you
       know, through reading through his chart. . . .

                                  *    *    *

       Q: Would you rely on the medical evaluations done by a
       doctor on a yearly basis?

       A: For the support, yes.

       Q: . . . Would you rely on the daily notes that were
       provided as far as, for example, the people that dealt with
       him on a daily basis?

       A: Possibly. We were a small unit and, I mean, we really
       knew our residents incredibly well. . . .

                                  *    *    *

       Q: Now, in the support plan, there are things you want to
       accomplish; correct? For example, goals and things like
       that are established for [Decedent]; correct?

       A: Sure.

       Q: . . . Who’s responsible for making sure those goals are
       met or obtained, is my question?

       A: Well, [Decedent’s] support plan, everybody’s support
       plan is different based on what their goals may be. Okay.
       [Decedent] was very independent. I don’t believe there
       was a whole lot of goals in [Decedent’s] support plan
       where anybody needed to be monitoring.

       Q: Well, you said that [Decedent] was independent. Were
       you aware of what he got there [sic] that it was a result of
       an automobile accident involving him as a pedestrian.

       A: Uh-huh (yes).


                                      -8-
J-S17040-16



                                *    *    *

        Q: . . . You’re aware that in 2007, I believe it was, he was
        bit by a dog and didn’t know where he was bit?

        A: . . . I don’t know what you mean by he did not know
        where he was bit, but that happened because [Decedent]
        was a volunteer with nursing services who provided Meals
        on Wheels. And it was a consumer’s dog that bit him. So
        maybe he meant in that statement he did not know the
        consumer by name. . . .

                                *    *    *

        Q: As part of the home rules and regulations, were there
        any specific hours when the residents were permitted to
        leave the premises?

        A: No.

        Q: So if they wanted to leave at three o’clock in the
        morning, that was okay?

        A: It’s a personal care home.         Absolutely.   It’s not a
        lockdown unit.

R.R. at 75a-79a, 84a-85a.

     Counsel showed Ms. Wiser the resident handbook. Id. at at 85a.

        Q: . . . This indicates that there’s an escort service
        available for residents who have appointments in the
        community; correct?

        A: That is for the nursing home section of the building.

        Q: . . . That’s what?

        A: This is for the long─term care section of the building . .
        ..
                                 *   *    *




                                    -9-
J-S17040-16

       Q: What were the home rules relative to times that
       [Decedent] could leave and come back?

       A: . . . [P]eople are free to come and go as they choose.
       It’s a personal care home. Again, it’s not a lock[down]
       unit.

                                  *     *      *

       Q: Now, this residential personal care home support plan is
       dated August 4th, 2009; correct?

       A: Yes.

       Q: Is this your writing?

       A: It looks [sic] to me.

                                  *     *      *

       Q: . . . So you indicate that [Decedent’s] socially
       independent and visits with friends in the community.
       When you say community, are you referring to community
       as in the building or community as in─

       A: No.
                                  *     *      *

       Q: . . . What friends did he have living in the community
       he was going to visit, if you know?

       A: He made frequent rounds to the library. He was at the
       library multiple times a week, and he became friends with
       the people who worked there. So he would visit them
       often.

          Grannie’s was one of his favorite restaurants that he
       would go to, same thing, as well as our Waffle King. He
       was also involved with St. Vincent DePaul.        Shields
       Trophies, he would go to Shields Trophies often. He liked
       to give people little plaques if he thought you did an
       excellent job.

                                  *     *      *


                                      - 10 -
J-S17040-16

       Q: You were involved with [Decedent] from 2006 through
       the time of his death; correct?

       A: Correct.

       Q: Did you see or notice any changes in his mental outlook
       or his abilities?

       A: No, not at all.

       Q: Okay.

       A: Not at all.

       Q: Were you aware that in October of 2007, he was
       walking on the Interstate after dark and was brought back
       by the police?

       A: I recall that.

       Q: Were you aware that he was gone over eight hours?

       A: Yes.

       Q: Was there something out of the ordinary or unusual for
       [Decedent]?

       A: Well, [Decedent] would often be gone for long periods
       of time. Now, when that says the Interstate, that does not
       mean I-99. [Decedent] went to Juniata College. Again, he
       really loved to donate books. He was donating books to
       the library at Juanita College. He did not walk there. I
       can’t remember now if it was a friend, a pastor friend, he
       had that took him there. And [Decedent] lived in that
       area, if you know where Juniata College is in Huntington,
       he lived in Milroy at some point in time. I believe it was
       called Milroy. It’s right past Huntington.

           So [Decedent] was familiar with walking . . . . And I
       can remember the conversation with him. He walked part
       of that way because he wanted to save money before he
       called for the taxi to come pick him up. And that was an
       area he had walked throughout his life. It wasn’t on a true
       like I-99.


                                 - 11 -
J-S17040-16



                              *     *      *

       Q: Now, did you ever take any steps to prevent
       [Decedent] from leaving prior to six o’clock in the
       morning?

       A: No.

       Q: . . . Were there ever any complaints from any family or
       friends about [Decedent] leaving prior to 6:00 a.m. in the
       morning.

       A: No.

                              *     *      *

       Q: Would he go by himself or was there someone with
       him?

       A: Oh, no. [Decedent] was very independent and came
       and left on his own.

       Q: When you tell me he’s independent, explain to me
       exactly what you mean.

       A: He was able mentally and physically to come and go as
       [sic] his own free will, as documented through all the
       physician notes in that medical record, including the day
       before he died.

                              *     *      *

       Q: How were you notified that [Decedent] was hit by a
       vehicle?

                              *     *      *

       Q: My question is, were you at           the   facility   when
       notification came from the police?

       A: I was.

       Q: Were you the one that was notified?


                                  - 12 -
J-S17040-16



       A: What happened that day was people noticed driving into
       work that there was an accident on 17th Street.
       Immediately a staff member had a concern, could that be
       [Decedent] because that’s an area he normally walks. You
       know, somebody was injured. We wanted to make sure
       [Decedent] was okay. So Roger, my boss, took a picture
       to the police, because at that time, and this is a little bit of
       an example of what good health [Decedent] was in, he
       didn’t have identification on him and they thought it was a
       58-year-old man.

          So Roger took a picture of [Decedent]. Well, first Roger
       went to see─. I can’t remember exactly what all he did,
       but he went first or he called and they said could you bring
       a picture. And he brought a picture and then Roger came
       back and said it was [Decedent] who was hit.

       Q: And that’s an area you said he liked to walk on a
       regular basis?

       A: . . . It was on the way to our Waffle King, St. Vincent
       DePaul where he would go often.

       Q: Now, based on your observations of him, you said that
       you thought he was healthy at the time?

       A: Oh, my goodness, yes.

       Q: . . . No problems with his vision or anything like that?

       A: No, he didn’t wear glasses.

       Q: No problems with his gait?

       A: . . . He would take the steps from the lobby to the
       seventh floor multiple times a day.

                                 *     *      *

       Q: What else can you tell me about [Decedent’s] condition
       just before he passed away, health-wise?




                                     - 13 -
J-S17040-16

           A: He was wonderful. I mean, do you mean how he got
           around?

           Q: Yes.

           A: He could probably out walk me. And I’m not just saying
           that. He was alert and oriented, you know. He did quite
           well.

Id. at 88a, 92a, 94a, 96a-97a, 99a-100a, 102a-03a, 107a-11a.

      Ms. Wiser was questioned by Appellees’ counsel and testified as

follows.

           Q: . . . When we talked about the structure of the personal
           care home, what was it that you or your staff did for
           [Decedent] on a daily basis . . .?

           A: Well, we provided him his meals if he wasn’t going out
           to eat. A lot of time he’d help set up the dining room
           actually. He would get the coffee ready or set things out
           on the tables. And his medication. That was it. He
           showered himself. He did everything himself.

           Q: You talked about some of the places he would go in the
           community. How often would he make those social trips
           that you discussed?

           A: He was out and about daily.

           Q: Every day.

           A: Every day he was out and about.

                                   *     *      *

           Q: Now, as the personal care administrator who worked in
           that facility every day, you got to know a lot of the
           residents, I take it?

           A: Yes.

           Q: Did you get to know their families?


                                       - 14 -
J-S17040-16



       A: Oh, yeah.

       Q: Did you get to know the people that came to visit?

       A: Absolutely.

       Q: Pam Hackenburg is [Decedent’s] daughter who’s sitting
       in the room. Have you ever met Ms. Hackenburg before?

       A: No, I have not.

       Q: Did you ever see her at the facility?

       A: No, I have not.

       Q: Do you ever recall talking to Ms. Hackenburg?

       A: No.

       Q: Do you recall looking at [Decedent’s] chart and seeing
       that at some point in time Ms. Hackenburg was reflected
       as his emergency contact?

       A: . . . At one point in time, and I don’t remember when
       exactly. I know we went around with face sheets just to
       make sure any information we had with all the residents
       was correct on their face sheets. And [Decedent] said that
       this was not his emergency contact. He didn’t recognize
       her as being his daughter anymore.

       Q: And you’re pointing to a document. . . .      Could you
       describe what that document is?

       A: It’s a face sheet. And what’s on that is the resident’s
       name, the date of admission, his date of birth, age,
       religion, who his doctor is, his Social Security number, and
       his emergency contact.

       Q: . . . And Ms. Hackenburg’s name is crossed out and
       there’s the writing there that says removed by resident
       request. Is that your handwriting?

       A: It is.


                                  - 15 -
J-S17040-16



       Q: And did [Decedent] ask                you   to   remove   Ms.
       Hackenburg’s name from there?

       A: He did.

                               *     *      *

       Q: Do you recall looking through the chart and seeing an
       incident about [Decedent’s] Social Security payments not
       being received by the facility?

       A: I do.

       Q: And can you tell me what you recall about that?

       A: The administrator who was there prior to me,
       [Decedent] was upset, I believe, because he still didn’t
       receive his money. And I believe at one point called the
       Social Security office.  They had determined that his
       checks were cashed.     They were being mailed to his
       residence.   And I know that [Decedent] felt that his
       daughter was involved with that . . . .

       Q: . . . We’re looking at─are these progress notes for
       residents?

       A: Yeah.

       Q: They would be nurse’s progress notes?

       A: Correct.

       Q: . . . Now, do you know whose handwriting this is?

       A: This was Nora Pennington. She was the administrator
       prior to me.

       Q: . . . And that is dated January the 17th of 2005?

       A: Correct.

                               *     *      *



                                   - 16 -
J-S17040-16

       Q: . . . In the context of your plans of care, [Appellant’s
       counsel] asked you if you would rely upon the physician
       evaluations?

       A: Right.

       Q: And you would rely on those; correct?

       A: Oh, absolutely.

       Q: And in reviewing the most recent physician evaluation
       prior to [Decedent’s] passing, can you tell us who it was
       that performed that evaluation?

       A: That was Dr. Mextorf.

                               *     *      *

       Q: Now, you mentioned that the day before [Decedent’s]
       passing, he was out of the building in Pittsburgh. Can you
       expound upon that for us? Why was he in Pittsburgh?

       A: He had an outpatient procedure done in Pittsburgh the
       day before.

       Q: And do you recall knowing about that in advance of the
       procedure.

       A: Yes.

       Q: And what was that procedure?

       A: It was a TURP.

       Q: T─U─R─P.

       A: Correct.

       Q: And do you know what that means?

       A: Yes, he was having problems with his prostate.

       Q: . . . And so they would perform this TURP procedure at
       the VA Hospital in Pittsburgh?


                                   - 17 -
J-S17040-16



       A: Correct.

       Q: And do you know how he got to Pittsburgh?

       A: He used a shuttle from the VA.

       Q: To your knowledge, did any family member take him to
       this medical appointment?

       A: No, no.

       Q: He used the shuttle to get from Altoona to Pittsburgh?

       A: Correct.

       Q: Did he go by himself?

       A: Correct.

       Q: Did he have the procedure done to your knowledge?

       A: Yes, he did.

       Q: Did the VA Hospital release him independently?

       A: They did.

       Q: And do you know how he got back from the VA Hospital
       in Pittsburgh to Altoona?

       A: The shuttle.

       Q: The VA shuttle?

       A: Correct.

       Q: And do you know where the VA shuttle would pick him
       up?

       A: The VA Hospital.

       Q: And where is the VA Hospital in relation to Amber
       Terrace?


                                  - 18 -
J-S17040-16



       A: Probably maybe three miles.

                                 *     *      *

       Q: Were you interviewed by the police at any time for this
       incident?

       A: Yes, the police and the state inspection or the state
       inspector, the people who inspect personal care homes,
       the Department of Public Welfare, also came to our
       building that day because I called to notify them of the
       incident. About two hours later, two of them came in.

       Q: Why would you notify the Department of Health about
       the incident.

       A: It’s a regulatory [sic].

       Q: So if one of your residents passes away, you have to
       notify the department?

       A: Correct, correct.

                                 *     *      *

       Q: And what transpired in response to the phone call?

       A: They ended up showing up for an onsite review of his
       medical record. They interviewed myself, other staff, and
       some residents to make sure that, you know, everything
       was accurate, that he was alert and oriented, you know,
       that he was able to come and go as he pleased.

                                 *     *      *

       Q: They came the same day?

       A: Same day.

       Q: And was there any action taken by the Department of
       Health regarding [Decedent’s] passing?




                                     - 19 -
J-S17040-16

        A: No. We were not found at any fault for anything that
        happened.

        Q: They felt that everything was in order?

        A: Yes.

Id. at 119a-20a, 122a-25a, 127a-33a.5

     The Adult Residential Licensing Personal Care Home Support Plan

indicated that Decedent had no mental health needs. Id. at 138a. He did

not require any behavioral care services. Id. He was socially independent

and visited with friends in the community. Id. at 139a.

     In the case sub judice, the trial court opined:6

           [Appellant] argues that [Appellees] had the duty to
        restrict [D]ecedent from leaving the facility, particularly in
        the early morning hours. This position is contrasted by the
        personal care home assessments and evaluations that
        indicated that [D]ecedent was mentally and physically

5
  We note that at the conclusion of the deposition, the record indicates that
“Dr. Mextorf’s resident medical evaluation dated August 5 of ’09 was marked
as Exhibit B.” Id. at 133a-34a. Our review of the certified record reveals
that this medical evaluation was marked as Exhibit “F.” Ms. Wiser testified
that Dr. Mextorf was “the house doctor.” Id. at 74a. The resident medical
evaluation form indicated that [Decedent] “walks without assistance” and
“can self-administer medications with no assistance from others.” Id. at
149a. Dr. Mextorf’s recommendation for appropriate level of care was
“Personal Care Home.” Id.
6
  We note that the trial court addressed the issue of whether Appellees had a
duty to restrict Decedent’s movement and therefore breached its duty of
care in part based upon its examination of “the history of corporate
negligence claims particularly in the context of nursing homes.” Trial Ct.
Op., 8/5/15, at 4. “We are not bound by the trial court’s rationale, and may
affirm its ruling on any basis.” The Brickman Grp., Ltd. v. CGU Ins. Co.,
865 A.2d 918, 928 (Pa. Super. 2004) (citation omitted).




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J-S17040-16

          capable to come and go as he desired. Moreover, the
          alleged risk of allowing [D]ecedent to leave the facility at
          any time was not the cause of [D]ecedent’s fatal injuries;
          instead, the harm was caused by an impaired driver. . . .
          [Appellees] did not create nor could reasonably foresee the
          possibility that [D]ecedent would have left Amber Terrace
          on his daily outing and been struck and killed by an
          impaired driver.

             . . . A consequence of imposing a duty upon [Appellees]
          on the facts on [sic] this case would infringe on the
          resident’s rights to leave the facility despite the
          recommendations of the support plan. . . . Here, Amber
          Terrace’s home rules did not restrict the residents from
          leaving the premises at specified hours. . . .

             Decedent’s personal care home annual assessment
          dated August 8, 2008[7] designated [D]ecedent as a
          “mobile resident” who[ ] had no impairments as to
          judgment, comprehension, communication, memory, and
          mobility; wandering was not a problem.             Similarly,
          Decedent’s personal care home plan dated August 4,
          2009[8] provides [D]ecedent had no needs in regards to his
          dental, vision, mental health, and behavioral care services
          . . . . Significantly, [D]ecedent’s 2009 plan noted that
          “[r]esident is socially independent” and “visits with friends
          in the community.” As part of these needs, [D]ecedent
          was to “sign in and out on 4th floor when entering or
          leaving the building.” These sign in sheets accounted for
          residents during fire drills.

                                   *     *      *

             [Appellees] alternatively argued that they neither
          caused [D]ecedent’s injuries and the impaired driver’s
          conduct was a superseding cause that relieved [Appellees]
          of any liability. Although it is not necessary for the [c]ourt

7
  See R.R. at 142a-47a. The personal care home assessment document’s
pagination indicates that it contained seven pages. However, page seven is
not in the certified record or in the reproduced record.
8
    See R.R. at 137a-40a.



                                       - 21 -
J-S17040-16

         to address the argument, the [c]ourt does so . . . as an
         additional basis for granting [Appellees’] Motion for
         Summary Judgment.

            [Appellant] must establish a causal connection between
         [Appellees’] conduct and that such was the proximate
         cause of [D]ecedent’s injuries.

                                  *     *      *

         [I]n viewing the evidence in the light most favorable to
         [Appellant], the [c]ourt finds that the fatal accident caused
         by the impaired driver was not foreseeable as a natural
         and probable outcome of [D]ecedent leaving Amber
         Terrace whenever he desired.

                                  *     *      *

         [T]he drunk driver’s actions constituted a superseding
         cause that relieved [Appellees] of liability.

Trial Ct. Op. at 6-7, 9-11 (citations omitted). We agree no relief is due.

      Ms. Wiser prepared the support plan for Decedent. She was involved

with him from 2006 until the time of his death. She testified that Decedent

was independent and visited with his friends in the community. She did not

observe any changes in his mental outlook or his abilities. He was able to

come and go as he pleased. The day before he died, he went independently

to the VA Hospital in Pittsburgh for an outpatient procedure. He took walks

on a regular basis. She stated that she never met Decedent’s daughter and

in fact Decedent did not recognize her as being his daughter.

      We find no merit to Appellant’s claim that Appellees should have

restricted Decedent’s walking because it was unsafe.      See 55 Pa. Code §

2600.42(m), (p).      Appellant has not established that Appellees were


                                      - 22 -
J-S17040-16

negligent in failing to establish a care plan for Decedent that would restrict

his movement.    See R.W., 888 A.2d at 746. Appellant’s contention that it

was reasonably foreseeable that Decedent would be struck and killed by an

impaired driver at 5:30 a.m. is without merit. See Lux, 887 A.2d at 1286-

87. We find no error of law or abuse of discretion by the trial court. See

Varner-Mort, 109 A.3d at 246-47. Therefore, we affirm the order granting

Appellees’ motion for summary judgment.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/27/2016




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