J-A07013-16


                          2016 PA Super 160

THOMAS D. WALTERS AND CLARA M.            IN THE SUPERIOR COURT OF
WALTERS, HIS WIFE                               PENNSYLVANIA

                     Appellants

                v.

UPMC PRESBYTERIAN SHADYSIDE;
MAXIM HEALTHCARE SERVICES, INC.,
AND MEDICAL SOLUTIONS L.L.C. D/B/A
MEDICAL SOLUTIONS,

                     Appellees                 No. 309 WDA 2015


           Appeal from the Order Entered February 6, 2015
          In the Court of Common Pleas of Allegheny County
                 Civil Division at No(s): GD-12-018339


LINDA FICKEN AND WILLIAM FICKEN,          IN THE SUPERIOR COURT OF
HER HUSBAND,                                    PENNSYLVANIA

                     Appellants

                v.

UPMC PRESBYTERIAN SHADYSIDE;
MAXIM HEALTHCARE SERVICES, INC.,
AND MEDICAL SOLUTIONS L.L.C. D/B/A
MEDICAL SOLUTIONS,

                     Appellees                 No. 310 WDA 2015


           Appeal from the Order Entered February 6, 2015
          In the Court of Common Pleas of Allegheny County
                 Civil Division at No(s): GD-12-016165


WANDA J. BRAUN AND EDWIN J. BRAUN,        IN THE SUPERIOR COURT OF
HER HUSBAND,                                    PENNSYLVANIA

                     Appellants
J-A07013-16




                  v.

UPMC PRESBYTERIAN SHADYSIDE;
MAXIM HEALTHCARE SERVICES, INC.,
AND MEDICAL SOLUTIONS L.L.C. D/B/A
MEDICAL SOLUTIONS,

                       Appellees                   No. 311 WDA 2015


            Appeal from the Order Entered February 6, 2015
           In the Court of Common Pleas of Allegheny County
                  Civil Division at No(s): GD-12-024324


RONNIE D. MURPHY AND CONNIE E.                IN THE SUPERIOR COURT OF
MCNEAL, INDIVIDUALLY, AND AS CO-                    PENNSYLVANIA
EXECUTORS OF THE ESTATE OF
ELEANOR Y. MURPHY,

                       Appellants

                  v.

UPMC PRESBYTERIAN SHADYSIDE;
MAXIM HEALTHCARE SERVICES, INC.,
AND MEDICAL SOLUTIONS L.L.C. D/B/A
MEDICAL SOLUTIONS,

                       Appellees                   No. 312 WDA 2015


            Appeal from the Order Entered February 6, 2015
           In the Court of Common Pleas of Allegheny County
                  Civil Division at No(s): GD-14-000899


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

DISSENTING OPINION BY JENKINS, J.:                  FILED JULY 21, 2016

     I respectfully dissent. While I agree with the majority that Appellants

have sufficiently pled a cause of action against UPMC for negligence, I


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disagree that they have sufficiently pled a negligence cause of action against

Maxim. In addition, in my view, Appellants have sufficiently pled a cause of

action against UPMC for negligence per se.

      I would therefore affirm the trial court’s order sustaining the demurrer

of Maxim, but reverse the order sustaining UPMC’s demurrer to claims of

both negligence and negligence per se.

      In my view, Appellants did not sufficiently plead the elements of

negligence    against   Maxim   necessary   to   survive   Maxim’s   preliminary

objections.   Appellants filed complaints against Appellees in September of

2012, and amended complaints in November of 2012. In relevant part, the

amended complaints averred:

         11. From approximately March of 2008 to May of 2008,
         David Kwiatkowski (“Kwiatkowski”) worked at UPMC
         Presbyterian Hospital as a radiologic technician.

         12. At that time, Kwiatkowski’s employer was defendant
         Maxim, a staffing agency that placed Kwiatowski at UMPC
         (sic); in the alternative, Kwiatowski was employed by
         defendant UPMC, which had and exercised the ability to
         control and direct Kwiatkowski’s job performance.

         13. On or about May 7, 2008, a UPMC hospital employee
         observed Kwiatowski enter an operating room, lift his shirt,
         put a syringe in his pants, and exit the room. UPMC
         determined that a syringe containing fentanyl, a Schedule
         II narcotic, was missing, having been replaced by a
         syringe containing a different liquid.

         14. UPMC personnel      confronted Kwiatkowski and found
         three empty syringes    with fentanyl labels were found on
         him. (sic) An empty     morphine syringe was found in his
         locker. Fentanyl and    opiates were found in Kwiatowski’s
         urine.

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        15. Beginning on or around May 7, 2008, as a result of
        the above-described incident, defendant UPMC no longer
        allowed Kwiatowski to work at UPMC.

                                *    *    *

        25. Defendant Maxim did not report Kwiatkowski’s theft,
        use and/or diversion of controlled substances to any state,
        federal, or other governmental agency, or to any law
        enforcement agency.

        26.      Defendant Maxim, as a provider of staffing to
        healthcare facilities, knew or should have known that
        Kwiatowski was addicted to controlled substances and in
        all likelihood had a drug problem and/or was a drug addict.

        27.    Defendant Maxim, as a provider of staffing to
        healthcare facilities, knew or should have known that
        medical staff such as Kwiatkowski, without intervention,
        will continue to engage in conduct, including theft of
        controlled substances in order to satisfy an individual’s
        addiction and such conduct would be detrimental to the
        health and well-being of patients who come into contact
        with addicted individuals, such as Kwiatkowski, at
        healthcare facilities.

Amended Complaint, filed November 30, 2012.

     The majority states:

        As their premise for imposing a legal duty, Plaintiffs have
        pled that both UPMC and Maxim were Kwiatkowski’s
        employers, and each knew of Kwiatkowski’s diversion and
        substitution of controlled substances at UPMC and the risk
        presented.
                                 *    *   *

        Kwiatkowski injected himself, replaced the drugs with
        saline, and placed the contaminated needles and syringes
        back on the shelf to be used on unsuspecting patients.
        UPMC communicated the nature of Kwiatkowski’s
        criminal conduct to Maxim, and banned him from its
        facilities. While Kwiatkowski was in the charge of UPMC

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        and Maxim, both entities knew he was dangerous and
        likely to cause bodily harm to others if not controlled.

Majority Opinion, at 13, note 7, 28 (emphasis added).

     Appellants, however, do not state anywhere in their amended

complaints that UPMC told Maxim of Kwiatkowski’s conduct.        Further, the

amended complaints do not allege that Maxim placed Kwiatowski at UPMC or

any other   healthcare   facilities while   it was aware of Kwiatkowski’s

misconduct, nor do they allege Maxim placed Kwiatkowsi anywhere other

than with UPMC. The amended complaints merely aver that “Kwiatkowski’s

employer was defendant Maxim, a staffing agency that placed Kwiatowski at

U[PM]C” and that “Maxim, as a provider of staffing to healthcare facilities,

knew or should have known that Kwiatowski was addicted to controlled

substances and in all likelihood had a drug problem and/or was a drug

addict.” Amended Complaints at 12, 26 (emphasis added).

     On December 20, 2012, Maxim filed preliminary objections to the

amended complaint that asserted:

        Unlike Plaintiff’s claims proffered against both UPMC and
        Medical Solutions, Plaintiffs failed to set forth, with even
        the slightest particularity, any duty that Maxim allegedly
        owed to Wife-Plaintiff or the manner in which Maxim
        allegedly breached such duty.           Plaintiffs’ Amended
        Complaint does not allege that UPMC, at any time,
        informed Maxim of the alleged malfeasance of
        Kwiatkowski, or that Maxim was otherwise aware of the
        allegations set forth against Kwiatkowski, as asserted
        within Plaintiff’s Amended Complaint. In addition, Plaintiffs
        did not claim that Maxim had any affirmative duty under
        Pennsylvania law, federal law, or any other rule of law, to
        report the acts of malfeasance of Kwiatkowski, as was set

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         forth within their Amended Complaint. Plaintiffs merely
         asserted that Kwiatkowski may have been an employee of
         Maxim, and that Maxim placed Kwiatkowski at UPMC[.]

Maxim’s Brief in Support of Preliminary Objections to Amended Complaint,

filed December 20, 2012, at 13.

      Pennsylvania is a fact pleading state.   Foster v. UPMC South Side

HILsz, 2 A.3d 655, 666 (Pa.Super.2010). Complaints must be pled with the

factual specificity to “not only give the defendant notice of what the

plaintiff’s claim is and the grounds upon which it rests, but…also formulate

the issues by summarizing those facts essential to support the claim.” Id.

(citing Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa.Super.2008)).           A

defendant may challenge the sufficiency of a pleading through preliminary

objections in the nature of a demurrer. Pa.R.Civ.P. 1028(a)(4).

      This Court reviews a trial court’s decision sustaining or overruling

preliminary objections for an error of law. O'Donnell v. Hovnanian

Enterprises, Inc., 29 A.3d 1183, 1186 (Pa.Super.2011). “In so doing, [this

Court] employ[s] the same standard as the trial court, to wit, all material

facts set forth in the Amended Complaint and inferences reasonably drawn

therefrom are admitted as true.” Knight v. Springfield Hyundai, 81 A.3d

940 (Pa.Super.2013). “Preliminary objections which seek the dismissal of a

cause of action should be sustained only in cases in which it is clear and free

from doubt that the pleader will be unable to prove facts legally sufficient to




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establish the right to relief.”    Richmond v. McHale, 35 A.3d 779, 783

(Pa.Super.2012).

         In determining whether the trial court properly sustained
         preliminary objections, the appellate court must examine
         the averments in the complaint, together with the
         documents and exhibits attached thereto, in order to
         evaluate the sufficiency of the facts averred. The impetus
         of our inquiry is to determine the legal sufficiency of the
         complaint and whether the pleading would permit recovery
         if ultimately proven. This Court will reverse the trial court’s
         decision regarding preliminary objections only where there
         has been an error of law or abuse of discretion. When
         sustaining the trial court’s ruling will result in the denial of
         claim or a dismissal of suit, preliminary objections will be
         sustained only where the case i[s] free and clear of doubt.

Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202, 208 (Pa.Super.2012)

(quoting Brosovic v. Nationwide Mutual Insurance Co., 841 A.2d 1071,

1073 (Pa.Super.2004)).

      To determine whether the trial court erred in granting Maxim’s

preliminary   objections   to   Appellants’   amended    complaints,   we   must

determine the legal sufficiency of the complaints and whether the facts

alleged would permit recovery if ultimately proven.        Specifically, we must

determine whether Appellants pled facts in support of the elements of

negligence against Maxim.

      “Negligence is not actionable unless it involves the invasion of a legally

protected interest, the violation of a right. Proof of negligence in the air, so

to speak, will not do.” Palsgraf v. Long Island R. Co., 248 N.Y. 339, 341,

162 N.E. 99, 99 (1928).


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        The elements of a cause of action based on negligence are
        a duty, a breach of that duty, a causal relationship
        between the breach and the resulting injury, and actual
        loss. Burman v. Golay & Co., Inc., 616 A.2d 657
        ([Pa.Super.]1992); Casey v. Geiger, 499 A.2d 606
        ([Pa.Super.]1985). When considering the question of duty,
        it is necessary to determine “whether a defendant is under
        any obligation for the benefit of the particular plaintiff ...
        and, unless there is a duty upon the defendant in favor of
        the plaintiff which has been breached, there can be no
        cause of action based upon negligence.” Hoffman v. Sun
        Pipe Line Co., 575 A.2d 122, 125 ([Pa.Super.]1990).

J.E.J. v. Tri-Cty. Big Bros./Big Sisters, Inc., 692 A.2d 582, 584-85

(Pa.Super.1997).

        The determination of whether a duty exists in a particular
        case involves the weighing of several discrete factors
        which include: (1) the relationship between the parties;
        (2) the social utility of the actor’s conduct; (3) the nature
        of the risk imposed and foreseeability of the harm
        incurred; (4) the consequences of imposing a duty upon
        the actor; and (5) the overall public interest in the
        proposed solution. See generally Dumanski v. City of
        Erie, 34 A.2d 508, 509 ([Pa.]1943) (relationship between
        the parties), Forster v. Manchester, 189 A.2d 147, 150
        ([Pa.]1963) (social utility), Clewell v. Pummer, 121 A.2d
        459, 463 ([Pa.]1956) (nature of risk), Witthoeft v.
        Kiskaddon, 733 A.2d 623, 630 ([Pa.]1999) (foreseeability
        of harm), Cruet v. Certain-Teed Corp., 639 A.2d 478,
        479 ([Pa.Super.]1994) (relationship, nature of risk and
        public interest in the proposed solution). See also Bird v.
        W.C.W., 868 S.W.2d 767, 769 (Texas 1994)(“In
        determining whether to impose a duty, this Court must
        consider the risk, foreseeability, and likelihood of injury
        weighed against the social utility of the actor’s conduct,
        the magnitude of the burden of guarding against the injury
        and the consequences of placing that burden on the
        actor.”).

Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa.2000).




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       The    majority    finds   that   the   “allegation   that   Maxim   knew   of

Kwiatkowski’s addiction and diversion of drugs suffices for our purposes of

finding a duty.” I disagree. I do not believe Appellants pled sufficient facts

in their amended complaints1 to support their claim for negligence

against Maxim, because I do not think the complaints, standing alone,

without reference to material neither in the complaints nor in the exhibits

attached thereto, established that Maxim owed a duty to Appellants.

       First, Appellants allege no facts to support the allegation that Maxim

“knew or should have known that Kwiatowski was addicted to controlled

substances and in all likelihood had a drug problem and/or was a drug

addict.”     Amended Complaint at ¶ 26 (emphasis added).             Further, without

alleging Maxim had any continuing relationship with Kwiatkowski or placed

him at another facility following his termination by UPMC, I do not find

Maxim could have had any duty to Appellants.

       When examining the Althaus duty factors, the facts in the complaint

do not weigh in favor of imposing a duty on Maxim.                  I agree with the

majority that the second, third and fifth factors weigh in favor of imposing a

duty, however, I find that the first and fourth factors do not weigh in favor of

imposing a duty on Maxim and that these factors are controlling.
____________________________________________


1
  Again, an appellate court’s examination is limited to the averments in the
complaint, together with the documents and exhibits attached thereto, in
order to evaluate the sufficiency of the facts averred. Weiley, supra.



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     Considering the first factor, there is little, if any, relationship between

Maxim and Appellants. According to the complaint, Maxim is an agency that

specializes in placing temporary and permanent personnel in healthcare jobs

and placed Kwiatkowski with UPMC.      The complaint does not allege UPMC

apprised Maxim of Kwiatkowski’s drug diversion or that Maxim placed

Kwiatkowski in any other facility after UPMC terminated his employment.

Thus, there is really no relationship between this agency and Kwiatkowski’s

victims, who were infected in another state, years after Maxim placed

Kwiatkowski at UPMC.

     Further, upon examination of the fourth Althaus factor, it would be a

significant burden on agencies that place employees in healthcare jobs to

require that they follow up on the reasons for termination of each employee

from each position.    Moreover, the gain to be realized from imposing the

burden is questionable, because there is no statute that requires agencies

such as Maxim to take any action if they discover a former, placed employee

has been diverting drugs.

     Although it may benefit society if all employers were required to follow

up on employees they had placed in any establishment to see if they were

diverting drugs and report them to drug enforcement agencies, our statutory

framework currently imposes no such burden.              Considering Maxim’s

relationship with Appellants, or the lack thereof, and the burden the

imposition of this duty would create, without quantifiable benefit, I do not


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find the Althaus factors weigh in favor of imposing a duty on Maxim.         I

believe the trial court properly granted Maxim’s preliminary objections, and

would affirm the order as it relates to Maxim.

      I also disagree with the majority’s determination that Appellants failed

to allege facts to support their claim for negligence per se against UPMC.

         The concept of negligence per se establishes the elements
         of duty and breach of duty where an individual violates an
         applicable statute, ordinance, or regulation designed to
         prevent a public harm. However, a plaintiff, having proven
         negligence per se cannot recover unless it can be proven
         that such negligence was the proximate cause of the injury
         suffered.

                                  *     *      *

         In order to prove a claim based on negligence per se, the
         following four requirements must be met:

            (1) The purpose of the statute must be, at least in
            part, to protect the interest of a group of individuals,
            as opposed to the public generally;

            (2) The statute or regulation must clearly apply to
            the conduct of the defendant;

            (3) The defendant must violate the statute or
            regulation;

            (4) The violation of the statute or regulation must be
            the proximate cause of the plaintiff's injuries.

Schemberg v. Smicherko, 85 A.3d 1071, 1074 (Pa.Super.2014) (quoting

Mahan v. Am–Gard, Inc., 841 A.2d 1052, 1058–1059 (Pa.Super.2003))

(citations and quotations omitted).

      Appellants allege UPMC violated the following statute:

         § 1301.76 Other security controls for practitioners.



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        (a) The registrant shall not employ, as an agent or
        employee who has access to controlled substances, any
        person who has been convicted of a felony offense relating
        to controlled substances or who, at any time, had an
        application for registration with the DEA denied, had a DEA
        registration revoked or has surrendered a DEA registration
        for cause. For purposes of this subsection, the term “for
        cause” means a surrender in lieu of, or as a consequence
        of, any federal or state administrative, civil or criminal
        action resulting from an investigation of the individual's
        handling of controlled substances.

        (b) The registrant shall notify the Field Division Office of
        the Administration in his area, in writing, of the theft or
        significant loss of any controlled substances within one
        business day of discovery of such loss or theft. The
        registrant shall also complete, and submit to the Field
        Division Office in his area, DEA Form 106 regarding the
        loss or theft. When determining whether a loss is
        significant, a registrant should consider, among others, the
        following factors:

        (1) The actual quantity of controlled substances lost in
        relation to the type of business;

        (2) The specific controlled substances lost;

        (3) Whether the loss of the controlled substances can be
        associated with access to those controlled substances by
        specific individuals, or whether the loss can be attributed
        to unique activities that may take place involving the
        controlled substances;

        (4) A pattern of losses over a specific time period, whether
        the losses appear to be random, and the results of efforts
        taken to resolve the losses; and, if known,

        (5) Whether the specific controlled substances are likely
        candidates for diversion;

        (6) Local trends and other indicators of the diversion
        potential of the missing controlled substance.

21 C.F.R. § 1301.76.




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      I agree with the majority’s determination that Appellants’ complaint

sufficiently pled that, as a registrant under the act, UPMC was required to

report to the DEA Kwiatkowski’s known diversion and substitution of

controlled substances, and that its failure to do so resulted in harm to

Appellants.   I disagree, however, with the majority’s conclusion that the

statute was designed to protect the public at large, and not to protect a

particular group to which Appellants belonged.

      Here, the statute governed the behavior of registrants.      It forbade

them from hiring employees who had been convicted of a felony offense

related to controlled substances, and required them to report the theft of

controlled substances within one business day. Thus, it seems the statute

was designed, at least in part, to protect patients of registrants from

employees who divert drugs or who are likely to do so.       Appellants were

patients of registrants.    Therefore, I think Appellants successfully pled a

cause of action in negligence per se against UPMC, and I would vacate the

trial court’s order as it pertained to that claim.

      Accordingly, I dissent.




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