           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric Jackson, Administrator of                 :
the Estate of Florence Jackson,                : No. 2065 C.D. 2015
Deceased,                                      : Argued: May 12, 2016
                                               :
                             Appellant         :
                                               :
                     v.                       :
                                               :
City of Philadelphia and                       :
Fairmount Long Term Care                       :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                  FILED: July 13, 2016



              Eric Jackson (Plaintiff), Administrator of the Estate of Florence
Jackson, Deceased (Decedent) appeals from the judgment entered in the
Philadelphia County Court of Common Pleas (trial court) in favor of the City of
Philadelphia (City) d/b/a Fairmount Long Term Care (Fairmount) and against
Plaintiff following a jury trial.1 We affirm.
              On October 27, 2010, Decedent was a 64-year old woman who
suffered a right-sided stroke with left-sided paralysis. She was initially treated at
Lankenau Hospital until November 3, 2010, when she was transferred to Bryn

       1
         Plaintiff initially appealed from the judgment to the Superior Court; however, the
Superior Court transferred the appeal to this Court because the City is a party in this matter.
Mawr Rehabilitation Hospital.           On November 19, 2010, she was admitted to
Philadelphia Nursing Home (PNH) because she needed long term care rather than
aggressive rehabilitation. Fairmount, a nonprofit corporation, operated PNH at that
time pursuant to an operating agreement. Decedent lost 22 pounds following her
admission to PNH. The PNH nursing notes reflect that Decedent was confused at
baseline, oriented to person only, and had episodes of hallucinations and non-
logical speech during the later parts of her stay. There are no notes to document
her care for a six-week period of her stay in PNH. On January 15, 2011, Decedent
was found unresponsive with rectal bleeding and taken to St. Joseph’s Hospital for
emergency care where she was admitted and died the following day.
               On December 31, 2012, Plaintiff, as Administrator of Decedent’s
estate, filed this lawsuit against the City and PNH. In his amended complaint,
Plaintiff sought damages for wrongful death, survival, and negligence against both
the City and Fairmount; corporate negligence against Fairmount; and Section 1983,
42 U.S.C. §1983, civil rights violations against the City. The trial court sustained
the City’s preliminary objections and dismissed the counts against the City because
it is immune from suit under Section 8541 of the statute frequently referred to as
the Political Subdivision Tort Claims Act.2 The trial court overruled Fairmount’s
preliminary objections and directed it to file an answer to the amended complaint.
               On March 16, 2015, the case proceeded to trial before a jury. The
trial court denied Fairmount’s pretrial motions in limine, including one to preclude
evidence supporting Plaintiff’s corporate negligence claim regarding Fairmount’s


       2
          42 Pa. C.S. §8541. Section 8541 states, in relevant part, that “no local agency shall be
liable for any damages on account of any injury to a person . . . caused by any action of the local
agency or an employee thereof or any other person.”


                                                2
standard of care or its deviation therefrom. The trial court also denied Plaintiff’s
pretrial motion in limine to preclude evidence regarding Decedent’s smoking and
alcohol use to the extent that Plaintiff “opened the door” to the admission of this
evidence. Plaintiff’s expert, Dr. Cornacchione, opined that Decedent’s cause of
death was PNH-acquired pneumonia that ultimately led to fatal sepsis.
Reproduced Record (R.R.) at 1286a. Fairmount’s expert, Dr. Silver, opined that
the cause of death was precipitated by Decedent’s stroke and her many medical
issues in combination which caused the spontaneous development of sepsis and
multi-system organ failure. Supplemental Reproduced Record (S.R.R.) at 21b. At
the conclusion of Plaintiff’s case, the trial court entered a nonsuit on the corporate
negligence claims. The trial court denied Plaintiff’s request for a spoliation of
evidence charge due to the six-week gap in the notes regarding Decedent’s care.
               On March 30, 2015, the jury returned a verdict finding that Fairmount
was negligent in the care and treatment rendered to Decedent, but that Fairmount’s
negligence was not a factual cause in bringing about harm to Decedent. As a
result, on April 1, 2015, judgment was entered in favor of Fairmount and against
Plaintiff.   Plaintiff filed post-trial motions seeking recusal of the trial judge
alleging that she was biased because she served as a prosecutor in the Homicide
Division of the Philadelphia District Attorney’s Office (DA’s Office) from 1992 to
1995, when Plaintiff was tried for criminal homicide. Plaintiff also filed a motion
for a new trial challenging the trial court’s evidentiary rulings, entry of nonsuit,
and jury instructions. The trial court denied the motions and Plaintiff filed this
appeal.3

       3
          “When reviewing the trial court’s denial of post-trial motions, our scope of review is
limited to determining whether the trial court abused its discretion or committed an error of law.”
(Footnote continued on next page…)
                                                3
               Plaintiff argues:4 (1) the trial court erred in failing to disclose that she
worked in the District Attorney’s Office at the time that Plaintiff was prosecuted
for homicide and in failing to recuse herself;5 (2) the trial court erred in dismissing
the 42 U.S.C. §1983 claims against the City and PNH;6 (3) the trial court erred in
dismissing the corporate negligence claims and in failing to remove the nonsuit;7


(continued…)

Commonwealth ex rel. Corbett v. Manson, 903 A.2d 69, 73 n. 4 (Pa. Cmwlth. 2006). An abuse
of discretion by the trial court is defined as manifest unreasonableness, partiality, prejudice, bias,
ill-will, or such lack of support as to be clearly erroneous. Snyderman v. Pennsylvania Liquor
Control Board, 682 A.2d 1322, 1325 (Pa. Cmwlth 1996).

       4
          Additional claims raised in his appellate brief have been waived by Plaintiff’s failure to
include them in the Statement of Questions Presented portion of the brief. Pa. R.A.P. 2116(a)
(“No question will be considered unless it is stated in the statement of questions involved or is
fairly suggested thereby”); Mooney v. Greater New Castle Development Corp., 510 A.2d 344,
348 n.4 (Pa. 1986) (“The Superior Court refused to decide this question because it was not set
forth in the statement of questions involved as required by Pa. R.A.P. 2116; and therefore, it was
not properly before that court. For this reason we will not consider the question.”).

       5
          It is presumed that a judge is unbiased and impartial, Beharry v. Mascara, 516 A.2d
872, 875 (Pa. Cmwlth. 1986), appeal denied, 527 A.2d 548 (Pa. 1987), and that a judge has the
competence to assess her ability to make rulings impartially and without prejudice.
Commonwealth v. Tedford, 960 A.2d 1, 55 (Pa. 2008). It is also well settled that a party seeking
recusal or disqualification of a trial judge must raise the objection at the earliest possible moment
or the claim will be regarded as time barred. Reilly v. Southeastern Pennsylvania Transportation
Authority, 489 A.2d 1291, 1300 (Pa. 1985). “Once the trial is completed with the entry of a
verdict, a party is deemed to have waived his right to have a judge disqualified, and if he has
waived that issue, he cannot be heard to complain following an unfavorable result.” Id. (citation
omitted).

       6
         Our review in a Section 1983 action is limited to determining whether the trial court
abused its discretion or committed clear legal error. Tristani v. City of Pittsburgh, 755 A.2d 52,
55 n.3 (Pa. Cmwlth. 2000), appeal denied, 782 A.2d 551 (Pa. 2001).

       7
        In reviewing the propriety of the entry of a nonsuit, it is only proper if the factfinder,
viewing all of the evidence in favor of the plaintiff, could not reasonably conclude that the
(Footnote continued on next page…)
                                                  4
(4) the trial court erred in refusing to permit the content of federal and state laws,
regulations, and guidelines to be used at trial to establish negligence;8 and (5) the
trial court erred in allowing the admission of the prejudicial evidence regarding
Decedent’s history of smoking and alcohol abuse.9

(continued…)

essential elements of a cause of action have been established. Joyce v. Boulevard Physical
Therapy & Rehabilitation Center, 694 A.2d 648, 652-53 (Pa. Super. 1997), appeal denied, 740
A.2d 1148 (Pa. 1999). An order denying a motion to remove a compulsory nonsuit will be
reversed on appeal only if the trial court abused its discretion or committed an error of law. Graf
v. County of Northampton, 654 A.2d 131, 133 n.2 (Pa. Cmwlth. 1995).

       8
         Our review of the trial court’s rulings on admissibility of evidence is to determine
whether the court abused its discretion in deciding to admit or exclude the evidence in question.
Aiello v. Southeastern Pennsylvania Transportation Authority, 687 A.2d 399, 401 n.2 (Pa.
Cmwlth. 1996), appeal dismissed, 720 A.2d 1050 (Pa. 1998). To constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining
party. Winschel v. Jain, 925 A.2d 782, 794 (Pa. Super. 2007), appeal denied, 940 A.2d 366 (Pa.
2008).

       9
           Plaintiff raises an additional claim that the trial court erred in responding to the jury’s
question by creating a duty of care for Decedent’s sisters because she had executed a power of
attorney. At trial, Plaintiff argued that Fairmount did not meet its standard of care with regard to
keeping Decedent’s family apprised of the degree of her illness and his expert, Nurse Allen,
testified in this regard. R.R. at 1238a-1239a. Plaintiff’s counsel also cross-examined Dr. Silver
on whether Decedent’s sisters and family were not informed that she had refused care. S.R.R. at
23b. During its deliberations, the jury asked, “Since power of attorney[/]sisters were referred to
but not here during this trial[/]testimony, are we allowed to consider their role or lack thereof?
Why weren’t they present to testify?” R.R. at 1407a. The trial court answered the question very
generally and briefly, stating that the jurors “may consider all the evidence,” “may consider the
lack thereof that was presented,” and “may take any inferences [they] wish that are appropriate
from that evidence or the lack thereof.” Id.

        Contrary to Plaintiff’s assertion, the trial court’s response is not prejudicially erroneous
because it never referenced or implied that a duty of care was present for Decedent’s sisters.
“While the fact that the question was asked would indicate that some confusion existed, a new
trial should not be ordered unless it can be shown that the confusion worked to the detriment of
the losing party. . . . In order to obtain a new trial the moving party must demonstrate in what
(Footnote continued on next page…)
                                                  5
              With regard to the numerous claims that Plaintiff raises in this appeal,
we conclude that the trial court thoroughly and correctly analyzed these issues and
this matter is ably disposed of in the comprehensive and well-reasoned opinion of
the Honorable Shelley Robins New. Accordingly, we affirm on the basis of her
opinion in Eric Jackson, Administrator of the Estate of Florence Jackson,
Deceased v. City of Philadelphia d/b/a Philadelphia Nursing Home and Fairmount
Long Term Care, (Phila. C. P. No. 03871 December Term, 2012 filed December
21, 2015).




                                            MICHAEL H. WOJCIK, Judge




(continued…)

way the trial error caused an incorrect result.” Nebel v. Mauk, 253 A.2d 249, 251 (Pa. 1969).
Because the jury found Fairmount negligent in the care and treatment rendered to Decedent,
Plaintiff has failed to demonstrate in what way the trial court’s response to the jury’s question
caused an incorrect result. Moreover, Plaintiff has failed to show how the trial court’s response
affected the jury’s determination that Fairmount’s negligence was not a factual cause in bringing
about Decedent’s harm.


                                               6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric Jackson, Administrator of            :
the Estate of Florence Jackson,           : No. 2065 C.D. 2015
Deceased,                                 :
                                          :
                         Appellant        :
                                          :
                   v.                 :
                                          :
City of Philadelphia and                  :
Fairmount Long Term Care                  :



                                     ORDER


            AND NOW, this 13th day of July, 2016, the order of the Philadelphia
County Court of Common Pleas dated July 16, 2015, at No. 03871 December
Term, 2012, is AFFIRMED.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
