J-A31015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PATRICIA HAMMERQUIST AND SUSAN              IN THE SUPERIOR COURT OF
PRESSLER, CO-EXECUTRICES OF THE                   PENNSYLVANIA
ESTATE OF DOLORES R. SHIELDS,

                      Appellants

                 v.

VIDYA S. BANKA. M.D., SAHIL S. BANKA,
M.D., VIDYA S. BANKA, M.D. &
ASSOCIATES, P.C., PENNSYLVANIA
HOSPITAL, PENN MEDICINE, D/B/A
PENNSYLVANIA HOSPITAL, THE
UNIVERSITY OF PENNSYLVANIA HEALTH
SYSTEM AND THE TRUSTEES OF THE
UNIVERSITY OF PENNSYLVANIA,

                      Appellees                  No. 945 EDA 2016


              Appeal from the Order Entered March 2, 2016
          In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): 03550 March Term, 2015


PATRICIA HAMMERQUIST AND SUSAN              IN THE SUPERIOR COURT OF
PRESSLER, CO-EXECUTRICES OF THE                   PENNSYLVANIA
ESTATE OF DOLORES R. SHIELDS,

                      Appellants

                 v.

VIDYA S. BANKA. M.D., SAHIL S. BANKA,
M.D., VIDYA S. BANKA, M.D. &
ASSOCIATES, P.C., PENNSYLVANIA
HOSPITAL, PENN MEDICINE, D/B/A
PENNSYLVANIA HOSPITAL, THE
UNIVERSITY OF PENNSYLVANIA HEALTH
SYSTEM AND THE TRUSTEES OF THE
UNIVERSITY OF PENNSYLVANIA,

                      Appellees                  No. 947 EDA 2016
J-A31015-16




                  Appeal from the Order Entered March 2, 2016
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): 03550 March Term, 2015


BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED JANUARY 31, 2017

        Patricia   Hammerquist         and     Susan    Pressler   (“Appellants”),   co-

executrices of the Estate of Delores R. Shields (“Ms. Shields”), appeal from

the two orders entered on March 2, 2016, that granted (1) the motion for

judgment on the pleadings filed by Vidya S. Banka et al., and (2) the motion

for judgment on the pleadings filed by Pennsylvania Hospital et al.

(collectively “Appellees”). We affirm.

        This case began as a result of a medical procedure in which coronary

artery stents were inserted in two of Ms. Shields’ arteries on August 16,

2007.     On April 2, 2013, Ms. Shields received a letter from Pennsylvania

Hospital    informing    her    that    she    may     have   undergone   the   surgery

unnecessarily. After an independent review of her catheterization records,

Ms. Shields was informed that the stent procedures had not been necessary.

On March 27, 2015, Ms. Shields filed a writ of summons against various

doctors and medical facilities. Then, on May 11, 2015, she filed a complaint,

including claims for “battery (lack of informed consent), common law fraud,

corporate liability, negligence, recklessness and intentional misconduct, and
____________________________________________


*
    Former Justice specially assigned to the Superior Court.



                                             -2-
J-A31015-16



[violations of the] Unfair Trade Practices and Consumer Protection Law

(“UTPCPL”) [73 Pa.C.S. § 201-1 et al].” Trial Court Opinion (TCO), 6/28/16,

at 1.     In November of 2015, each group of Appellees filed a motion for

judgment on the pleadings. The trial court entered the two separate orders

from which these appeals emanate, granting the motions and dismissing Ms.

Shields’ complaint with prejudice. The basis for the dismissals rested on the

court’s determination that the complaint was barred by the statute of repose

contained in the Medical Care Availability and Reduction of Error Act

(“MCARE Act”), 40 Pa.C.S. §§ 1303.101 – 1303.910.1 Appellants2 appealed

to this Court and submitted a concise statement of errors complained of on

appeal in response to the trial court’s order. See Pa.R.A.P. 1925(b). A trial

court opinion was filed in response to Appellants’ claims of error.

        Appellants’ brief filed with this Court contains five issues for our

review:

        1. Did the trial court improperly apply the MCARE Act’s statute
        of repose to [Appellants’] claims in this matter which are based
        on a criminal and intentional battery purely performed for
        pecuniary gain and the cardiac stent placement surgery
        performed on Ms. Shields was not, by definition, a “healthcare
        service” because the procedure was a sham, not medically
____________________________________________


1
  See 40 Pa.C.S. § 1303.513(a) (stating, “[e]xcept as provided in subsection
(b) and (c), no cause of action asserting a medical professional liability claim
may be commenced after seven years from the date of the alleged tort or
breach of contract”).
2
 Ms. Shields passed away on December 3, 2015, and the two executrices of
her estate were substituted as plaintiffs in this matter.



                                           -3-
J-A31015-16


      necessary and thus would not provide any benefit to [] Ms.
      Shields’ health?

      2. Did the trial court improperly apply the MCARE Act’s statute
      of repose to [Appellants’] claims in this matter that were based
      on intentional, criminal and fraudulent conduct by [Appellees]
      performed only for pecuniary gain, despite the legislature’s
      intent in that the MCARE Act only apply [sic] to medical
      malpractice claims?

      3. Did the trial court improperly apply the MCARE Act’s statute
      of repose to [Appellants’] claims for fraud and violations of the
      Pennsylvania UTPCPL when the MCARE Act does not specifically
      abrogate those causes of action?

      4. Did the trial court improperly apply the MCARE Act’s statute
      of repose to [Appellants’] claims for violations of the
      Pennsylvania UTPCPL when such claims are statutory causes of
      action that cannot be defined as torts or breaches of contract?

      5. Did the trial court improperly apply the MCARE Act’s statute
      of repose to [Appellants’] claims in this matter when [Appellants]
      pled continuing fraud and concealment and there was evidence
      in the record that there were new and continuing acts of fraud
      and concealment within the seven-year statute of repose that
      could serve as a basis for [Appellants’] claims?

Appellants’ brief at 3-5.

      In addressing Appellants’ issues, we are guided by our well-settled

standard of review for judgment on the pleadings.

      Entry of judgment on the pleadings is permitted under
      Pennsylvania Rule of Civil Procedure 1034, which provides that
      “after the pleadings are closed, but within such time as not to
      unreasonably delay trial, any party may move for judgment on
      the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on
      the pleadings is similar to a demurrer. It may be entered when
      there are no disputed issues of fact and the moving party is
      entitled to judgment as a matter of law.

      Appellate review of an order granting a motion for judgment on
      the pleadings is plenary. The appellate court will apply the same


                                    -4-
J-A31015-16


      standard employed by the trial court. A trial court must confine
      its consideration to the pleadings and relevant documents. The
      court must accept as true all well pleaded statements of fact,
      admissions, and any documents properly attached to the
      pleadings presented by the party against whom the motion is
      filed, considering only those facts which were specifically
      admitted.

      We will affirm the grant of such a motion only when the moving
      party's right to succeed is certain and the case is so free from
      doubt that the trial would clearly be a fruitless exercise.

Century Surety Co. v. Essington Auto Center, LLC, 140 A.3d 46, 51 (Pa.

Super. 2016) (quoting Sw. Energy Prod. Co. v. Forest Res., LLC, 83 A.3d

177, 185 (Pa. Super. 2013) (citation omitted)).

      We have reviewed the certified record, the briefs of the parties, the

applicable law, and the thorough, well-written opinion authored by the

Honorable Denis P. Cohen of the Court of Common Pleas of Philadelphia

County,   dated   June   28,   2016.     We   conclude   that   Judge   Cohen’s

comprehensive opinion properly disposes of the issues presented by

Appellants on appeal and we discern no abuse of discretion or error of law.

Accordingly, we adopt Judge Cohen’s opinion as our own and, on the basis

stated therein, we affirm the orders appealed from that granted Appellees’

motions for judgment on the pleadings and dismissed Appellants’ complaint

with prejudice.

      Orders affirmed.




                                       -5-
J-A31015-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2017




                          -6-
                                                                                                  Circulated 01/04/2017 11:25 AM




                                         TN THE COURT OF COMMON PLEAS

                                 FIRST ,JUDICIAL DISTRICT OF PENNSYLVANIA




             PA TRICIA HAMMER QUIST and                    COURT OF COMMON PLEAS -
             SUSAN PRESSLER                                PHILADELPHIA COUNTY
                                  APPELLANTS               150303550

                     v.


             VJDY AS. BANKA. M.D., et al.                  945 EDA 2016; 947 EDA 2016

                                      APPELLEE


                                                          OPINION

            A. PROCEDURAL          HISTORY

                    On March 27, 2015, plaintiff, Dolores R. Shields, filed a writ of summons and instituted

            this litigation against Vidya Banka, M.D., Sahil S. Banka, M.D., Vidya S. Banks, M.D. &

            Associates,   PC.. Pennsylvania       Hospital, Penn Medicine d/b/a Pennsylvania       Hospital. The

           University of Pennsylvania Health System, The Trustees of the University of Pennsylvania, Robert

           Singer, M.D., and Associated Cardiovascular         Consultants, P.A. On May 11, 2015, plaintiff filed

           a complaint with claims for battery (lack of informed consent), common law fraud, corporate

            liability, negligence, recklessness    and intentional misconduct, and Unfair Trade Practices and

           Consumer Protection Law ("UTPCPL").            On November 11, 2015, Defendants Vidya S. Banka,

           M.D., Sahil S. Banks, M.D., and Vidya S. Banka, M.D. and Associates, P.C. filed a motion for

           judgment on the pleadings. Defendants Pennsylvania Hospital, Penn Medicine d/b/a Pennsylvania

           Hospital, the University of Pennsylvania       Health System, and the Trustees of the University of

           Pennsylvania ("Penn Defendants") also filed a motion for judgment on the pleadings on November

                                                    Shields Vs Banka Etal-OPFLO




COPIES SENT PURSUANT TO Pa.R.C.P. 236(b)
                                                      II I I   II 1111111111111111
                                                  06/29/20W030355000149
 16, 2015. On March 2, 2016, the Honorable Denis P. Cohen. Judge of the Court of Common Pleas,

issued two orders granting the motions for judgment on the pleadings and dismissing              plaintiffs

complaint      as barred pursuant       to the statute of repose of the Medical    Care Availability    and

Reduction of Error Act (''MCA RE"). On March 17, 2016, a praecipe to substitute party was filed

indicating     that the plaintiff,   Dolores Shields, had passed away on December 3, 2015 and that the

co-executrices      of Dolores Shields'     estate, Patricia   Hamrnerquist and Susan Pressler, would be

substituted as plaintiffs. The plaintiffs filed a timely notice of appeal on March 21, 2016. On

March 24, 2016, this Court issued an Order requiring plaintiffs lo serve this Court with an itemized

Statement of Errors Complained ofon Appeal by April 14, 2016. Cohen Order, 3/24116. On April

12, 20 I 6, plaintiffs filed a 'Statement of Errors Complained of on Appeal alleging the following

errors:

          I.       The Court improperly applied the MCARE Act's statute of repose to the Plaintiffs'

                   claims for violations of the Pennsylvania Unfair Trade Practices and Consumer

                   Protection Law ("UTPCPL") and common law fraud because the MCARE Act did

                   not specifically express a clear intent to abrogate those causes of action;

          2.       The Court improperly failed to consider the dates of Defendants' treatment

                   subsequent to the initial unnecessary stent placement surgery as continuing fraud

                   which gave rise to causes of action within the seven (7) year time period of the

                   MCARE Act's statute of repose;

          3.       The Court improperly applied the MCARE Act's statute of repose to Plaintiffs'

                   claim for violations of the UTPCPL because such violations are neither torts nor

                   breaches of contracts, as required to be a "medical professional liability claim"

                   under the MCARE Act;




                                                        2
                                  4.       The Court improperly applied the MCARE Act's statute of repose to the Plaintiffs'

                                           claims   in this action   because   Plaintiffs'   claims   are not "medical   professional

                                           liability claims" under the MCARE Act;

                                  5.       The Court improperly      applied the MCARE         Act's statute of repose to Plaintiffs'

                                           claims against the Penn Defendants because the claims against the Penn Defendants

                                          are based on their failure to properly supervise and monitor            their employees   to

                                          protect consumers and the general pub! ic from fraud committed by their employees,

                                          which continued well into the time period within which claims are allowed under

                                          the MC ARE Act's statute of repose.

                          B. FACTUAL HISTORY

                                  According to the Complaint, on August 16, 2007, Dr. Vidya Banka or Dr. Shail Banka

                          performed a coronary artery stent procedures on Dolores Shields' left anterior descending artery

                          and her mid circumflex artery. Complaint~ 31. On April 2, 20 I 3, Ms. Shields received a letter

                          from Pennsylvania Hospital indicating that they had discovered that a portion of Dr. Vidya Banka's

                          patients had undergone placements of coronary artery stents that may have not been necessary

                          according to test results. Id. ~ 34. In June 2013, Ms. Shields had her cardiac catheterization study

                          performed by Dr. Banka evaluated by other doctors. Id. ~ 39. The doctors told Ms. Shields that

                          the catheterization findings of Dr. Vidya Banka were false and that her two stent procedures were

                          unnecessary. Id. ~ 40. Plaintiffs' complaint includes claims for battery (lack of informed consent),

                          common law fraud, corporate liability, negligence, recklessness and intentional misconduct. and

                          Unfair Trade Practices and Consumer Protection Law ("UTPCPL").

                          C. I>lSCUSSJON

                                 1.    All of plaintiffs' claims are barred by MCARE's statute of repose .



                                                                               .,.)



"·-·--·-·-·····-······-    ·-··· -·-·-----~---~------------------------
           This Court properly determined that MCAR.E's statute of repose eliminates all of the

 plaintiffs'   claims. The MCARE statute of repose states "no cause of action asserting a medical

 professional liability claim may be commenced after seven years from the date of the alleged tort

or breach of contract." 40 Pa. S. § 1303.S 13. Unlike statute of limitations.       there is no tolling of

the statute of repose because of the discovery rule or fraudulent concealment.           See Osborne v.

Lewis, 59 A.3d 1109, 1116 (Pa. Super. 2012) (holding that fraudulent concealment does not apply

to ivlCARE's statute of repose); cf Altoona Area School Dist. v. Campbell, 618 A.2d 1129, 1135

(Pa. Commw, 1992) ( explaining that because a statute includes statute oflimitations and not statute

of repose, the claim is subject to discovery rule). Therefore, although Ms. Shields unfortunately

did not learn that the stent placements may have been unnecessary until she received the letter

from Pennsylvania Hospital in 2013, the applicable date for the statute of repose is August 16,

2007 when Dr. Banka performed the stent placements.             To file within the seven year period

required by the statute of repose, the plaintiffs needed to have commenced the litigation by August

16, 2014. Plaintiffs, however, began the instant action on March 27, 2015.

          Plaintiffs argue, however, that their claims are not "medical professional liability claims"

under MCARE. MCARE defines "medical professional liability claims" as "[ajny claim seeking

the recovery of damages or loss from a health care provider arising out of any tort or breach of

contract causing injury or death resulting from the furnishing of health care services which were

or should have been provided." 40 Pa. S. § 1303.103.         All of plaintiffs' claims for damages are

against health care providers related to the "furnishing of health care services" as the claims relate

to a stent placement. The broad language of the definition of medical professional liability claim

referring to "any tort or breach of contract" clearly eliminates plaintiffs' cause of action for battery,




                                                    4



     -------··---------------------------------
common law fraud, corporate liability, negligence, and recklessness and intentional misconduct as

these claims are all torts.1

         However, less clear is whether plaintiffs' claim under the UTPCPL falls within MCARE's

definition of "medical professional liability claim." Plaintiffs claim that defendants violated the

UTPCPL by "[kjnowingly             misrepresenting services ... are needed if they are not needed," and

"[ e]ngaging in any other fraudulent conduct which creates a likelihood of confusion or of

misunderstanding."       Complaint'[ 95. Plaintiffs argue that because the UTPCPL claim is a statutory

claim, it is not a tort or breach of contract claim and does not fall within MCARE's definition of

"medical professional liability claim."            Defendants argue that although UTPCPL is a statutory

remedy, plaintiffs' UTPCPL claim is nearly identical to plaintiffs' fraud claim and is considered a

"tort" for purposes of MCARE's statute of repose.

         Whether the UTPCPL claim fits within the definition of "medical professional liability

claim" is ambiguous. The UTPCPL claim is still a claim seeking the recovery of damages from a

health care provider causing injury resulting from the furnishing of health care services. See 40

Pa. § 1303. I 03. Furthermore, something can be a statutory claim and still be a tort or breach of

contract claim as well. In Ash v, Continental Insurance Company, the Pennsylvania Supreme

Court held that the bad-faith insurance statute, 42 Pa. C.S. § 8371, is a statutorily-created tort

remedy. 932 A.2d 877, 885 (Pa. 2007). The Superior Court held in Gabriel v. 0 'Hara that the

UTPCPL "encompasses              an array of practices which might be analogized to passing off,



I Plaintiffs claim that MCARE's statute of repose should not be applied to the common law fraud claim because the
MCA RE Act did not specifically express a clear intent to abrogate this cause of action. However, "the best
indication of the General Assembly's intent is the plain language of the statute. 'When the words of a stature are
clear and free from nil ambiguity, they are presumed to be the best indication of legislative intent."' Allstate life Ins.
Co.\'. Commonwealth, 52 A.3d 1077, 1080 (Pa. 2012) (quoting Chanceford Aviatio11v, Chanceford Twp. Bd. of
Supervisors, 923 A.2d I 099, 1104 (Pa. 2007)). Because courts interpret common law fraud as a tort and the fraud
claim relates to the furnishing of medical services, the plain language of the statute indicates that plaintiffs' common
law fraud claim is a "medical professional liability claim" that is subject to MCARE's statute of repose.


                                                            5
             misappropriation, trademark infringement, disparagement, false advertising, fraud, breach of

             contract, and breach of warranty." 534 A.2d 488, 494 (Pa. Super. 1987). Several courts have

             analyzed whether claims under the UTPCPL are closer to torts or breach of contract claims. See

             e.g., Knight v. Springfield Hyundai, 81 A.3d 940, 951 (Pa. Super. 2013) (determining that gist of

             action for UTPCPL claim was in tort and not breach of contract); Gabriel, 534 A.2d at 393-394

             (discussing cases where Courts analyzed whether claim under the UTPCPL should be subject to

             the tort or breach of contract statute of limitations). Thus, although it may be possible to view the

             "UTPCPL" claim as arising of a tort, the statute is ambiguous as to whether a UTPCPL claim

         should be subject to the statute of repose.

                            Because the statute is ambiguous as to whether the MCA RE statute of repose precludes a

         claim under the UTPCPL, the intention of the General Assembly can be ascertained by considering

         "(I) The occasion and necessity for the statute; (2) The circumstances under which it was enacted;

         (3) The mischief to be remedied; (4) The object to be attained; (5) The former law, if any, including

         other statutes upon the same or similar subjects;                 (6) The consequences     of a particular

         interpretation; (7) The contemporaneous legislative history; and (8) Legislative and administrative

         interpretations of such statute."           1 Pa. C.S. § 1921; see Meyer v. C,nty. Coll. of Beaver   a«,   93

         A.3d 806, 814 (Pa. 2014). The Pennsylvania General Assembly passed MCARE in 2002 to

         address concerns about the rising cost of medical professional liability insurance. See Osborne,

         59 A.3d at 1112 ("[T]he MCARE Act was a response to a widely publicized perceived health care

         crisis in Pennsylvania, which included an alleged fear on the part of medical practitioners that

         malpractice insurance was becoming unaffordable resulting in some medical doctors opting to

         leave practice in the Commonwealth.") (quoting Wexler v. Hecht, 928 A.2d 973, 986 (Pa. 2007)

         (Castille, J., dissenting)). This is supported by the declarations of policy of MCARE which state




                                                                   6


..   .   .     ····-   ..   ----·· ----------------------~-----
"medical     professional   liability insurance has to be obtainable   at   an affordable and reasonable cost

in every geographic region of this Commonwealth." 40 Pa. S. § 1303. l 02(3). As the Pennsylvania

Superior Court has previously noted, "[o ]ne way in which the MCA RE Act addressed the crisis of

the rising cost of medical professional liability insurance was to institute a seven-year statute of

repose on claims that, prior to the act, had no statute of repose at all." Osborne, 59 A.3d at 1112.

Because the purpose of MCARE's statute of repose was to limit claims against medical providers

to make medical professional           liability insurance affordable, this Court should resolve this

ambiguity about whether the UTPCPL claim falls within the statue of repose in favor of limiting

the plaintiffs' cause of action.

           In making its decision, this Court was also guided by the opinions of the Honorable

Frederica Massiah-Jackson of the Court of Common Pleas, First Judicial District who addressed

nearly identical facts in other cases involving allegations of unnecessary stent placements by Dr.

Vidya Banka. See Yudacufski v. Com., Dep't of Transp., 454 A.2d 923, 926 (Pa. 1982) ("It is well-

settled that, absent the most compelling circumstances, a judge should follow the decision of a

colleague on the same court when based on the same set of facts."); cf Castle Pre-Cast Superior

Walls of Delaware, inc. v. Strauss-Hammer, 610 A.2d 503, 505 (Pa. Super. 1992) ("trial court

decision: from a different county, provided no binding precedent for the Delaware County Court

in the instant case."). Judge Massiah-Jackson granted several motions dismissing claims against

Dr. Vidya Banka pursuant to MCARE's statute of repose and attached opinions explaining her

reasoning.      See Deni v. Banka, No. 131200327, "Exhibit A,, to Massiah-Jackson                    Order (C.P.

Philadelphia, October 22, 2015); Gallagher v, Banko, No. 131203573, "Exhibit A" to Massiah-

Jackson Order (C.P. Philadelphia, October 22, 2015); Mathai v. Banka, No. I 31102814, "Exhibit

A" to Massiah-Jackson         Order (C.P. Philadelphia, October 22, 2015); Wolfberg            11.   Banka, No.



                                                        7
  13 _I 203574, "Exhibit A" to Massiah-Jackson Order (C.P. Philadelphia, October 22. 20 l 5). 2 This

 Court did not see compelling circumstances that necessitated issuing an order that conflicted with

 the orders of a colleague on the same court when the cases involved the same issue.                        See

 Yudacufski, 454 A.2d at 926.

         2. Continuing treatment

         The plaintiffs claim that the Court improperly failed to consider the dates of Ms. Shields'

 treatment-with the defendants subsequent to the initial unnecessary stent placement surgery as

 continuing fraud which gave rise to causes of action within the seven (7) year time period of the·

MCARE Act's statute of repose. The MCARE statute of repose states "no cause of action

asserting a medical professional liability claim may be commenced after seven years from the

date of the alleged tort or breach of contract." 40 Pa. S. § 1303 .513.          The complaint makes clear

that the date of the alleged tort is August 16, 2007 when Ms. Shields underwent the stent

procedure. Complaint t[ 31. In fact, there is no reference in the complaint to any subsequent

treatment by the defendants after the August 16, 2007 stent procedure. The plaintiffs did not

raise the issue of subsequent treatment within the seven year period oft he statute of repose until

Plaintiffs' Sur-Reply in Opposition to the Motion for Judgment on the Pleadings. Tn deciding the

motion for judgment on the pleadings, a court may only consider_ the pleadings and any

documents properly attached to them. See Integrated Project Servs. v. HMS Interiors. Inc., 931

A.2d 724, 732 (Pa. Super. 2007). This Court could therefore not consider the documents

attached to Plaintiff's Sur-Reply indicating that Ms. Shields had doctor visits to Dr. Sahil Banka

and Dr. Vidya Banka within the seven year period. Instead, this Court correctly decided that the




2 However, this Court notes that Judge Massiah-Jackson did not address the issue of a UTPCPL claim in her
opinions.


                                                        8
 complaint   as written did not include any references to treatment   by defendants after August 16,
 2007.

         3. The Court properly applied the statute of repose to the Penn Defendants.

         For the first time, the plaintiffs argue in their Statement of Errors that MCARE's statute of

repose should not apply to the Penn Defendants because the Penn Defendants' failure to protect

the public from fraud occurred during the seven years before the filing of the complaint. First, this

claim is waived because the plaintiffs did not raise this issue until after the notice of appeal. See

Pa. R.A.P. 302(a) (''Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.").    Furthermore, while the Penn Defendants may have been negligent in·

properly supervising and monitoring their employees within the seven years period before the

initiation of this litigation, the failure of the Penn Defendants to properly supervise and monitor

Dr. Vidya Banka after Ms. Shields' stent placement could not have caused Ms. Shields' injury,

the unnecessary slent placement. As causation is a necessary element in plaintiffs' common law

fraud, corporate liability, and UTPCPL claims against the Penn Defendants, plaintiffs' claims

against the Penn Defendants must fail. See 73 Pa. S. § 201 ~9.2 ("Any person who purchases or

leases goods or services primarily for personal, family or household purposes and thereby suffers

any ascertainable loss of money or property, real or personal, as a result ~(the use or employment

by any person of a method, act or practice declared unlawful by section 31 of this act, may bring

a private action"); Kit v. Mitchell, 771 A.2d 814, 819 (Pa. Super. 2001) ("To succeed in a fraud

case, a plaintiff must establish the following elements . .   "the resulting injury was proximately

caused by the reliance."); Whittington v. Episcopal Hosp., 768 A.2d 1144, 1149 (Pa. Super. 2001)

("In order to present a primia facie case of corporate negligence, appellees were required to

introduce evidence of the following: . . . that the conduct was a substantial factor in bringing




                                                  9
about the harm.'').   Plaintiffs cannot bring a claim for the Penn Defendants' "failure to protect

consumers and the general public" but only for Penn Defendant's failure to protect Ms. Shields

from an unnecessary procedure.

D. CONCLUSION

       For the foregoing reasons, the decision of this Court should be affirmed.



                                                      BY THE COURT:



                                                      Q&fM LIU
                                                      DENIS P. COHEN, J.
Dated: June 28, 2016




                                                 10
