J-A20024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

OLIVIA H. STONER, ESQUIRE,                      IN THE SUPERIOR COURT OF
ADMINISTRATRIX, D.B.N. FOR THE                        PENNSYLVANIA
ESTATE OF CHRISTINE PERKINS,
DECEASED,

                            Appellant

                       v.

MARK QUINLAN, DONNA BROWN, RNC,
BSN, ALBERT EINSTEIN MEDICAL
CENTER D/B/A WILLOWCREST, WILLOW
CREST, JEFFERSON HEALTH SYSTEM,
ALBERT EINSTEIN HEALTHCARE
NETWORK,

                            Appellees                No. 3064 EDA 2014


               Appeal from the Order Entered September 16, 2014
              In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 00019 November Term, 2009


BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED SEPTEMBER 29, 2015

       Appellant, Olivia H. Stoner, Esquire, administratrix de bonis non for

the estate of Christine Perkins, deceased, appeals from the order entered on

September 16, 2014, denying class certification.1 We affirm.

____________________________________________


1
  An order denying class action certification is separate from and ancillary to
the main cause of action, and, therefore, appealable as a collateral order
pursuant to Pa.R.A.P. 313. Niemiec v. Allstate Ins. Co., 721 A.2d 807,
810 (Pa. Super. 1998).
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      The record reveals that on August 5, 2014, the trial court held a

hearing on Appellant’s motion for class certification in an action against

Appellees Mark Quinlan, Donna Brown, Albert Einstein Medical Center D/B/A

Willowcrest, Willowcrest, Albert Einstein Healthcare Network, and Jefferson

Health System, Inc. (collectively “Appellees” or “Defendants”). In an order

filed on September 16, 2014, the trial court denied Appellant’s motion

concluding that the evidence presented by Appellant failed to establish the

necessary elements to obtain class status under Pa.R.C.P. 1702.

      In its September 16, 2014 opinion, the trial court made the following

relevant findings of fact:

      1. After several amended pleadings, [Appellant] filed a Th[ir]d
      Amended Complaint on November 21, 2012, which is now the
      operative Complaint. (Exh. “C”, Third Amended Complaint).

      2. Although [Appellant] asserted a variety of different causes of
      action in the Third Amended Complaint, this action is, at heart, a
      professional negligence case.

      3. These allegations of substandard medical care underlie each
      and every one of [Appellant’s] causes of action.

      4. [Appellant] alleges that [Appellant’s] Decedent, Christine
      Perkins, was a resident of Willowcrest from October 2007 until
      June 2008. See [Appellant’s] Third Amended Complaint, ¶ 3.

      5. [Appellant] further alleges that the Einstein Defendants failed
      to adequately care for Perkins during her time at Willowcrest. Id.

      6. Based on this alleged inadequate care, [Appellant’s] Third
      Amended Complaint asserts thirteen separate claims on behalf of
      the putative class: Negligence (First Claim); Corporate
      Negligence (Second Claim); Vicarious Negligent Liability (Third
      Claim); the Wrongful Death statute (Fourth Claim); the Survival


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     Act (Fifth Claim); the Medicare as Secondary Payer Act (Sixth
     Claim); Breach of Written Agreement (Seventh Claim); Breach of
     Contract Oral Agreement (Eighth Claim); Breach of Contract
     Third Party Beneficiary (Ninth Claim); Fraud and Negligent
     Misrepresentation (Tenth Claim); Violation of Pennsylvania’s
     Unfair Trade Practices and Consumer Protection Law (Eleventh
     Claim); Breach of the Implied Covenant of Good Faith and Fair
     Dealing (Twelfth Claim); and Unjust Enrichment/Restitution
     (Thirteenth Claim).

     7. The Third Amended Complaint includes two exhibits. Exhibit
     “A” is a computer printout of a webpage providing information
     relating to the Willowcrest facility. (Exh. “C”, Third Am. Compl.
     at Exh. “A”).

     8. Exhibit “B” is an August 18, 2009 “Settlement Agreement”
     between various federal government departments and
     “Willowcrest Nursing Home.” (Exh. “C”, Third Am. Compl. at Exh.
     “B”).

     9. [Appellant’s] vicarious and corporate negligence claims assert
     that the medical care provided to Decedent during her stay at
     Willowcrest deviated from the standard of care by failing to
     properly treat Decedent’s pressure ulcers and failing to provide
     Decedent with appropriate nutrition and hydration, purportedly
     as required by various statutes and regulations. (Exh. “C”, Third
     Am. Compl. at ¶¶115-160).

     10. [Appellant’s] contract claims allege that Decedent had
     written and oral contracts with each of the Defendants to provide
     Decedent with medical care, and that Defendants’ breached
     those alleged contracts with her by providing her “worthless”
     medical care as outlined in [Appellant’s] negligence claims. (Exh.
     “C”, Third Am. Compl. at ¶¶160-194; 208-214).

     11. [Appellant’s] fraud-based claims allege that all of the
     Defendants made misrepresentations to the Decedent regarding
     the quality of care that she would be provided at Willowcrest
     because her medical care was “worthless” as outlined in
     [Appellant’s] negligence claims. (Exh. “C”, Third Am. Compl. at
     ¶¶195-207).




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     12. Finally, [Appellant’s] unjust enrichment claim alleges that all
     of the Defendants were unjustly enriched by third party
     payments for medical care provided to the Decedent because her
     medical care was “worthless” as outlined in [Appellant’s]
     negligence claims. (Exh. “C”, Third Am. Compl. at ¶¶215-219).

     13. In support of her Motion for Class Certification and her
     corporate liability claim against Jefferson Health System,
     [Appellant] argues that, based on various corporate documents
     and financial statements, Jefferson Health System purportedly
     exerted “control” over its member Albert Einstein Medical Center
     and the medical care provided at its institutions.

     14. In an attempt to bolster that claim and support her Motion
     for Class Certification, [Appellant] identifies an accountant,
     Bruce R. Engstrom, as an expert witness to testify about the
     corporate relationships between Jefferson Health System and the
     other corporate defendants. ([Appellant’s] Proposed Findings at
     Exh. “C”).

     15. Specifically, Mr. Engstrom opined that, based on corporate
     structure and various corporate documents and financial
     statements produced in a prior litigation, Jefferson Health
     System purportedly exerted “control” over its member Albert
     Einstein Medical Center and the medical care provided at its
     institutions. Id.

     16. [Appellant] asserts these claims on behalf of herself as well
     as a putative class.

     17. [Appellant’s] proposed class definition attempts to define the
     class as all residents of Willowcrest between 2005 and 2009 that
     were harmed either physically or financially by Defendants’
     actions:

           The Class consists of all individuals who are
           residents, family members, and their legal
           representatives of the Willowcrest Nursing Home
           from 2005 to 2009 who received deficient wound
           care; nursing care; deficient nutrition and hydration;
           inadequate diabetic care; inadequate physician and
           nursing care; inadequate infection control; sepsis;
           urinary tract infections, acute renal failure due to


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           dehydration and anemia and were injured as a result
           thereof.

     See [Appellant’s] Motion for Class Certification at ¶ 65.

     18. [Appellant] further attempts to define the class as:

           The proposed class presently includes all residents of
           Willowcrest from 2005 - 2009 who were harmed
           either financially or physically by the Defendants’
           actions. Specifically, the class includes persons with
           the     following      deficient   claims:     diabetes
           management; management of medication; nutrition
           management; infection control; pain management;
           skin integrity; ulcer care, and physician care.

     See [Appellant’s] Motion for Class Certification at ¶ 66.

     19. Still further, [Appellant] attempts to define subclasses as
     follows:

           The proposed class also contains from 2005 to 2007
           all persons who had a financial or contractual claim
           and from 2007 to 2009 all persons who had a
           financial or contract; fraud and/or negligent
           representation; breach of the consumer protection
           laws and pain and suffering claims.

     See [Appellant’s] Motion for Class Certification at ¶ 67.

     B. [APPELLANT], OLIVIA STONER, ESQ.

     20. [Appellant], as the proposed representative of the putative
     class, is the administratrix of the estate of Selma Jessup who
     was related to the Decedent, Christine Perkins.

     21. [Appellant], as the proposed representative of the putative
     class, is the administratrix, d.b.n, of the estate of Christine
     Perkins. See [Appellant’s] Proposed FF/CL at ¶ 2.

     22. [Appellant] admitted that she was appointed as the
     administratrix of the Perkins estate for the sole purpose of
     perpetuating this litigation. See Dep. O. Stoner at 54.


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      23. At deposition, [Appellant] also testified that she was not
      responsible for any of the financial costs and expenses involved
      with maintaining this litigation and that those expenses were
      instead being borne by [Appellant’s] counsel, Rhonda Hill Wilson,
      Esquire. See Dep. O. Stoner at 71. Additionally, in the event that
      damages were awarded in this case, they would go to the
      Perkins Estate, of which [Appellant] is not a beneficiary. Id.

      C. [APPELLANT’S] DECEDENT, CHRISTINE PERKINS

      24. Christine Perkins was a resident of Willowcrest from October
      9, 2007 through May 20, 2008, with the exception of hospital
      stays during that time. See [Appellant’s] Medical Records at 171,
      3266.

      25. Perkins was 79 years old during the time she was a resident
      at Willowcrest. Id.

      26. Perkins was admitted to Albert Einstein Medical Center on
      October 3, 2007, due to a fall she suffered at her home. Id. at
      15, 18, 171.

      27. After discharge from the hospital, she transferred to
      Willowcrest for rehabilitation and other follow-up care. Id. at 5,
      6, 66, 68, 69, 72, 10-03 171.

      28. Over the course of the next 8 months, Perkins’ condition
      gradually worsened.

      29. Perkins died while in the hospital on June 7, 2008. Id. at
      3588.

      30. Her cause of death is listed as sepsis, secondary to decubitus
      ulcers, secondary to dementia. Id. at 3589.

Trial Court Opinion, 9/16/14, at 2-6.

      As noted above, the trial court denied Appellant’s motion for class

certification on September 16, 2014.    Appellant filed a timely appeal, and

both the trial court and Appellant have complied with Pa.R.A.P. 1925.




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      On appeal, Appellant argues that the trial court abused its discretion in

denying class action certification.   Appellant’s Brief at 4.   Our standard of

review in this matter is well settled, and the trial court’s order denying class

certification will not be disturbed on appeal unless the court neglected to

consider the requirements of the rules governing class certification, or the

court abused its discretion in applying the class certification rules.

Baldassari v. Suburban Cable TV Co., 808 A.2d 184, 189 (Pa. Super.

2002). Additionally:

      At a class certification hearing, the burden of proof lies with the
      proponent but, this being a preliminary hearing, it is not a heavy
      burden. The proponent need only present evidence sufficient to
      make out a prima facie case from which the court can conclude
      that the five class certification requirements are met. It is clear
      in Pennsylvania that Appellant’s burden to establish the
      prerequisites for class certification is not a heavy one. It is the
      strong and oft-repeated policy of this Commonwealth that, in
      applying the rules for class certification, decisions should be
      made liberally and in favor of maintaining a class action.

Id. (internal citations and quotation marks omitted). However, in order to

obtain class certification, the proponent of the class must meet all five of the

following requirements set forth in Pa.R.C.P. 1702:

      One or more members of a class may sue or be sued as
      representative parties on behalf of all members in a class action
      only if

      (1) the class is so numerous that joinder of all members is
      impracticable;

      (2) there are questions of law or fact common to the class;

      (3) the claims or defenses of the representative parties are
      typical of the claims or defenses of the class;

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      (4) the representative parties will fairly and adequately assert
      and protect the interests of the class under the criteria set forth
      in Rule 1709; and

      (5) a class action provides a fair and efficient method for
      adjudication of the controversy under the criteria set forth in
      Rule 1708.

Pa.R.C.P. 1702.     Additionally, we note that “[a] trial court’s decision

concerning class certification is a mixed finding of law and fact.” Weismer

by Weismer v. Beech-Nut Nutrition Corp., 615 A.2d 428, 430 (Pa.

Super. 1992) (citation omitted).

      In the instant case, the trial court concluded that Appellant failed to

satisfy three of the required elements set forth in Pa.R.C.P. 1702, namely

commonality, typicality, and that class certification would be a fair and

efficient method of adjudicating the controversy.        Trial Court Opinion,

9/16/14, at 6.      Because Appellant was required to satisfy all five

requirements, failing to meet any one of the factors is fatal to her claim.

Pa.R.C.P. 1702; see Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1,

22 (Pa. 2011) (stating that each distinct prerequisite for class certification

must be established by the class proponent).

      In the class-action context, commonality is described as follows:

      Common questions of law and fact will generally exist if the class
      members’ legal grievances are directly traceable to the same
      practice or course of conduct on the part of the class opponent.
      The common question of fact [requirement] means precisely that
      the facts must be substantially the same so that proof as
      to one claimant would be proof as to all. This is what gives
      the class action its legal viability. While the existence of

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      individual questions of fact is not necessarily fatal, it is essential
      that there be a predominance of common issues, shared by all
      the class members, which can be justly resolved in a single
      proceeding.

Clark v. Pfizer Inc., 990 A.2d 17, 24 (Pa. Super. 2010) (emphasis added)

(citations and quotation marks omitted).

      On   appeal,   Appellant   argues   that   “the   corporate   decision    for

understaffing in Willowcrest; the failure to adhere to federal and state

nursing home laws and regulations; the use of unqualified and unlicensed

personnel for the resident population at Willowcrest and the corporate goal

of budgetary gain led to the myriad harms caused to the Appellant’s

decedent and the members of the proposed class.” Appellant’s Brief at 28.

While Appellant’s claims against Appellees regarding harm to the proposed

class members stem from a common characteristic, i.e., they were residents

at Willowcrest who allegedly suffered deficient care, it does not alter the fact

that each one of those more than 300 claimants in the proposed class is

unique.    The proposed class members necessarily received individualized

care and were treated separately over a period of years, and therefore, the

cause of any harm could have originated from numerous sources. Thus, any

treatment, care, or injury was distinct as to each individual resident. Simply

stated, proof as to one is not proof as to all. As the trial court explained:

      49. “If, as here, each question of disputed fact has a different
      origin, a different manner of proof and to which there are
      different defenses, we cannot consider them to be common
      questions of fact within the meaning of Pa. R. Civ. P. 1702.”


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     Allegheny Cty. Hous. Auth. v. Berry, 487 A.2d 995, 997 (Pa.
     Super. 1985).

     50. Likewise, “... where the challenged conduct affects the
     potential class members in different ways, commonality may not
     exist.” Helo v. Encompass Ins., 2008 Phila.Ct.Com.Pl. LEXIS
     129, at 10 (Pa.Ct.Com.Pl. 2008)[, affirmed, 970 A.2d 487 (Pa.
     Super. Ct. filed January 12, 2009) (unpublished memorandum)].

     51. In addition, where “there exists intervening and possibly
     superseding causes of damage ... , liability cannot be determined
     on a class-wide basis.” Id. at 11.

     52. [Here, Appellant] has failed to demonstrate which former
     patients are class members; [Appellant’s] evidence is unable to
     establish that this Court would not be required to evaluate the
     individual facts and circumstances of every resident of
     Willowcrest between 2005 and 2009 to determine both that the
     resident suffered financial or physical harm and that they
     suffered such harm as a result of the conduct of [Appellees].

     53. The need for mini-trials that might be required to determine
     such individualized questions is antithetical to the purpose of
     class actions. See, e.g., Sanneman v. Chrysler Corp., 191
     F.R.D. 441, 446 (E.D. Pa. 2000) (finding that class certification is
     inappropriate in cases in which “[d]etermining a membership in
     the class would essentially require a mini-hearing on the merits
     of each class member’s case” because such “administrative
     burdens are incongruous with the efficiencies expected in a class
     action”); Mike v. Safeco Ins. Co. of Am., 223 F.R.D. 50, 53
     (D. Conn. 2004) (finding that the proposed class, as defined,
     was “untenable because the court would have to conduct an
     individual inquiry regarding the merits of each proposed
     plaintiff’s claim in order to determine class membership”);
     White v. Williams, 208 F.R.D. 123, 129-30 (D. N.J. 2002)
     (finding that class certification was not proper because adoption
     of the proposed class definition “would require the Court to




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       conduct a number of mini-hearings or to employ some other
       screening mechanism prior to defining the class”).[2]

       54. [Appellant] has not provided sufficient evidence to meet her
       burden of showing commonality for any of the class claims.

Trial Court Opinion, 9/16/14, at 10-11.3           We agree with the trial court’s

analysis.    The vast number of proposed class members, with disparate

treatment histories, medical backgrounds, and alleged injuries would

necessitate a profuse number of “mini-trials” in order to ultimately define

the class.     As such, we conclude that Appellant has failed to establish

commonality pursuant to Pa.R.C.P. 1702.4

       After careful review, we discern no error of law or abuse of discretion

in the trial court’s decision to deny class certification in this matter.

Accordingly, we affirm the order entered on September 16, 2014.

       Order affirmed.



____________________________________________


2
  “Federal precedent is instructive in construing Pennsylvania’s class action
rules.” Janicik v. Prudential Ins. Co. of Am., 451 A.2d 451, 454 n.3 (Pa.
Super. 1982).
3
  Additionally, we note that where the issue of damages requires separate
mini-trials of a large number of individual claims, courts have found that the
determination of damages becomes the predominate issue and renders the
class unmanageable as a class action. State of Alabama v. Blue Bird
Body Co., Inc., 573 F.2d 309 (5th Cir.1978).
4
  Because we conclude that Appellant failed to establish the commonality
requirement, we need not address the other factors set forth under Pa.R.C.P.
1702. Samuel-Bassett, 34 A.3d at 22.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2015




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