J-A06009-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    JAMES TEMPLE, AS ATTORNEY-IN-FACT             IN THE SUPERIOR COURT
    FOR ELMA BETTY TEMPLE,                                  OF
                                                       PENNSYLVANIA
                             Appellant

                        v.

    PROVIDENCE CARE CENTER, LLC D/B/A
    PROVIDENCE CARE CENTER,

                             Appellee                 No. 87 WDA 2017


               Appeal from the Order Entered December 14, 2016
                In the Court of Common Pleas of Beaver County
                       Civil Division at No(s): 11726-2012


BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED JULY 10, 2018

        Appellant, James Temple, as attorney-in-fact for Elma Betty Temple,

appeals from the trial court’s order granting Appellee, Providence Care Center,

LLC d/b/a Providence Care Center (referred to herein as Providence), a new

trial as to both liability and compensatory damages. In addition, Appellant

challenges the trial court’s entry of judgment notwithstanding the verdict

(JNOV) in favor of Providence on punitive damages, and the nonsuit granted

in favor of Grane Healthcare Company (referred to herein as Grane) at trial.

After careful review, we affirm in part, reverse in part, and remand for further

proceedings.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A06009-18



         Ms. Temple — who has Alzheimer’s disease — became a resident of

Providence, a skilled nursing facility in Beaver Falls, Pennsylvania, in 2008.

Providence owned and operated the facility, and Grane provided management

services to Providence. On November 28, 2011, Ms. Temple — who was 81

years old at the time — fell while walking toward a ramp at the facility during

lunch, which caused her to suffer a right humerus fracture, a right pelvic

fracture, and a right elbow laceration. According to Appellant, the only witness

to this fall was the hospice chaplain, who was not a caretaker at Providence

and confirmed that she was unsupervised at the time. See Appellant’s Brief

at 16.

         On September 26, 2012, Appellant — Ms. Temple’s son — filed a

complaint on her behalf against Providence and Grane, asserting claims of

negligence and corporate negligence. He also demanded punitive damages.

In the complaint, he alleged, among other things, that Providence and Grane

knew or should have known that Ms. Temple required the supervision of

nursing staff to ambulate, transfer, and perform activities of daily living,

especially given that Ms. Temple had suffered other, less serious falls as

recently as October 25, 2011, and November 23, 2011.           See Complaint,

9/26/2012, at ¶¶ 12, 18-20; see also Appellant’s Brief at 14-17. Further, he

claimed that Providence and Grane grossly understaffed the facility, to the

point where staff members could not meet the needs of the residents, and

failed to provide safety measures to prevent Ms. Temple from falling. See

Complaint at ¶ 40.

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J-A06009-18



       This case proceeded to an eight-day jury trial in May of 2016.1 At the

close of Appellant’s case, Grane moved for a nonsuit, arguing that it did not

owe, nor breach, a duty to Ms. Temple. See N.T. Trial, 5/19/2016, at 166-

210. The trial court granted the nonsuit and dismissed Grane from the case.

In addition, Providence challenged, via motions for nonsuit and directed

verdict, whether Appellant had adduced sufficient evidence to support a claim

for punitive damages. See id. at 211-214; N.T. Trial, 5/23/2016, at 76-79.

The trial court denied both motions, determining that the evidence could

support a finding that Providence engaged in reckless conduct.

       Thereafter, the jury returned a verdict in favor of Appellant in the

amount of $2,000,000 for compensatory damages and $250,000 for punitive

damages.       Both Providence and Appellant subsequently filed post-trial

motions. Ultimately, the trial court (1) granted Providence’s motion for JNOV

with respect to punitive damages, determining that Providence’s conduct

amounted to nothing more than negligence, see Opinion and Order on

Providence’s Post-Trial Motions, 12/14/2016, at 4; (2) granted Providence a

new trial as to liability and compensatory damages for multiple reasons,

including because the verdict was against the weight of the evidence, see id.

at 8-37; and (3) concluded that it had properly granted a nonsuit as to Grane,

explaining that Grane owed no duty to Ms. Temple and, even if it had,
____________________________________________


1 The record contains thousands of pages of trial transcripts. In the interest
of brevity, and because the parties are aware of the facts of this case, we do
not delve deeply into the details of the trial here, but defer any necessary
discussion thereof to our analysis of Appellant’s issues infra.

                                           -3-
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Appellant offered no expert testimony to demonstrate that Grane’s actions fell

below the accepted standard of care and caused Ms. Temple’s injuries. See

Opinion and Order on Appellant’s Post-Trial Motion, 12/20/2016, at 13-14.

       Appellant filed a timely notice of appeal, and timely complied with the

trial court’s instruction to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Appellant presently raises the following issues for

our review:
          1. Did the trial court err when it ordered a new trial for both
             liability and compensatory damages against [Providence]?

          2. Did the trial court err when it entered a JNOV as to the
             punitive damages verdict award[ed] against Providence?

          3. Did the trial court err when it dismissed … Grane … from this
             case?

Appellant’s Brief at 5.2

       First, Appellant argues that “the trial court committed reversible error

when it vacated the compensatory damages verdict and granted Providence a

new trial.” Id. at 33 (capitalization and unnecessary emphasis omitted). For

such claims, we apply the following standard of review:
       In reviewing a trial court’s decision to grant or deny a motion for
       a new trial, it is well-established law that, absent a clear abuse of
       discretion by the trial court, appellate courts must not interfere
       with the trial court’s authority to grant or deny a new trial.
____________________________________________


2 An appeal may be taken as of right from “[a]n order in a civil action or
proceeding awarding a new trial.” See Pa.R.A.P. 311(a)(6). Appellant’s
issues pertaining to punitive damages and Grane’s dismissal go to the scope
of the new trial and, in the interest of judicial economy, we will address them
herein. In other words, we will treat the decisions by the court as being one
order for our purposes herein. We also note that the parties do not dispute
our ability to review all of the issues raised by Appellant on appeal.

                                           -4-
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      Moreover, a new trial is not warranted merely because some
      irregularity occurred during the trial or another trial judge would
      have ruled differently; the moving party must demonstrate to the
      trial court that he or she has suffered prejudice from the mistake.

      … [W]e must first determine whether we agree with the trial court
      that a factual, legal or discretionary mistake was, or was not,
      made. If we agree with the trial court’s determination that there
      were no prejudicial mistakes at trial, then the decision to deny a
      new trial must stand. If we discern that a mistake was made at
      trial, however, we must then determine whether the trial court
      abused its discretion in ruling on the motion for a new trial. A trial
      court abuses its discretion by rendering a judgment that is
      manifestly unreasonable, arbitrary or capricious, or has failed to
      apply the law, or was motivated by partiality, prejudice, bias or ill
      will.

Atwell v. Beckwith Machinery Co., 872 A.2d 1216, 1221 (Pa. Super. 2005)

(citation omitted).

      Here, the trial court gave the following explanation as to why it decided

to grant Providence a new trial on liability and compensatory damages:
      [T]he [c]ourt notes that the main reason for ordering a new
      trial was not the substantial verdict, but the fact that the
      [c]ourt did not believe the trial was fair.

      Although we stated in our opinion that the verdict shocked the
      conscience of the [c]ourt, if this were a case of purely
      compensatory damages, we likely would not have awarded a new
      trial. The main problem in this case was [Appellant’s]
      counsel’s failure to follow the rules, and his co-mingling of
      arguments regarding compensatory and punitive damages,
      despite the court’s admonition against this.

      As discussed through the [c]ourt’s opinion on [Providence’s] post-
      trial motions, [Appellant’s] counsel repeatedly violated this
      [c]ourt’s pre-trial orders and rulings during the trial, as well as its
      instructions prior to closing argument. For example, counsel
      sought to introduce the star[]rating of the nursing home, after




                                       -5-
J-A06009-18


       being told such evidence was inadmissible.[3] If this were the only
       issue, we likely would not have granted a new trial. But the
       improper conduct continued.

       After being specifically warned against any type of punishment
       argument being used in the closing argument of [the]
       compensatory phase of the case, [Appellant’s] counsel, twice,
       argued about [Providence’s] excessive wealth, and used language
       suggesting the jury should send a message to [Providence],
       which, we believe, the jury clearly did in its award.[4] Although
____________________________________________


3 According to Appellant, the star rating “was created to help the public
research and compare the quality of care at nursing homes. There is an
overall rating of 1 to 5 stars for each nursing home, which is comprised of the
following components: health inspections, quality measures, and staffing.”
Appellant’s Brief at 34 (footnote and citation omitted). The trial court
sustained Providence’s objection to testimony regarding its star rating
because “no one from the independent entity … that generates the star rating
… was going to testify about how the rating was arrived at, or what it meant[,]”
and “the prejudicial effect of this testimony far outweighed any probative
value, given that there would be no testimony about how it was calculated for
the jury.” See Opinion and Order on Providence’s Post-Trial Motions at 25
(citation omitted).

4 In its earlier opinion granting, in part, Providence’s post-trial motions, the
trial court had opined:
       [Ms.] Temple was 81 years old at the time of her fall. When she
       fell, she sustained two non-displaced fractures, one in her right
       humerus and one in her pelvis. Neither required surgery. She
       was treated with a sling and a three-day hospital admission, after
       which time she returned to Providence. These injuries were
       temporary; she completely healed from these injuries in 8 months
       or less, and has no limitations as a result of these fractures. She
       had severe dementia and numerous co-morbidities prior to her
       fall. There was no claim for economic losses. The extent of her
       harm does not warrant a $2,000,000 award for pain and suffering.

                                               …

       Based on the facts of the case at bar, involving an elderly woman
       who has recovered from her injuries, and has made no claim for
       lost wages, out of pocket medical expenses or other economic



                                           -6-
J-A06009-18


       we had no authority to question the jury about [its] decision,
       unless everyone agreed, this [c]ourt tried to salvage the verdict
       by suggesting that we ask the jury whether they included
       damages for punishment in their initial verdict. The parties would
       not agree to this.

       Granting a new trial is not something this [c]ourt takes lightly.
       The parties and the [c]ourt spent eight days and considerable
       expense in this trial. However, when a trial judge believes that
       the trial was not fair, that judge is obliged to correct it. The role
       of the trial judge is to make evidentiary rulings, give proper
       instructions, and ensure that both sides have a level playing field,
       so that the jury is able to reach a proper verdict. Here, we simply
       believe the trial was not fair.

Rule 1925(a) Opinion, 3/8/2017, at 2-4 (some emphasis in original; footnote

omitted).

       As highlighted above, the trial court stated that the main problem in this

case was Appellant’s “failure to follow the rules, and his co-mingling of

arguments regarding compensatory and punitive damages, despite the court’s

admonition against this.” Rule 1925(a) Opinion at 2. In support, the court

points to the star rating testimony to exemplify Appellant’s disregard of its

rulings, and to Appellant’s closing arguments, where he purportedly

encouraged the jury to punish Providence. Id. at 2-3. Because the trial court

focuses on these incidents to demonstrate why it believed that the trial was

unfair, we examine each in turn to ascertain if they warrant a new trial.

____________________________________________


       claims, a $2,000,000 compensatory award, is entirely against the
       weight of the evidence presented at trial, and is so contrary to the
       evidence as to shock one’s sense of justice, such that a new trial,
       at least on the issue of damages, should be granted.

Opinion and Order on Providence’s Post-Trial Motions at 9-10.


                                           -7-
J-A06009-18



       With respect to the star rating testimony, Appellant states that his line

of questioning regarding it was not a flagrant violation of the trial court’s ruling

prohibiting such testimony.        Appellant’s Brief at 37.   Instead, he says the

questioning was an attempt to clear up confusion after Grane’s Vice President

of Nursing Services — Beth Lengle — “brought up the star[]rating herself,

unprompted by [Appellant].”            See id. at 35.     Further, he claims that

Providence did not immediately object to such testimony, and when it finally

did object, it did not ask for a mistrial. Id. at 38.

       We have reviewed the transcript and agree with the trial court that

Appellant improperly asked the witness about Providence’s star rating.

Appellant does not dispute that the trial court had prohibited him from

discussing Providence’s star rating.           See id. at 35.5   Nevertheless, the

following exchange occurred at trial:
       [Appellant’s counsel:] So the, during this window [when state
       evaluators must complete a survey of the facility,] you can, you
       track and you have to complete 671 Forms; right?

       [Beth Lengle:] Correct.

       [Appellant’s counsel:] And that’s the documents that include the
       resident characteristics in the facility?

       [Beth Lengle:] 671 is a form from [Centers for Medicare &
       Medicaid Services (CMS)], and on it includes staffing numbers of
       everyone.


____________________________________________


5 See also Opinion and Order on Providence’s Post-Trial Motions at 25-26
(“When [Appellant] tried to argue for the admission of this [star rating]
evidence the first time, we said no, it was not coming in. In fact, we
repeatedly said ‘No’ or ‘Nope’ 12 times with respect to this issue.”).

                                           -8-
J-A06009-18


     [Appellant’s counsel:] And the, the documents that you provide
     the state, they’ll evaluate what the facility is like staff-wise based
     on those documents?

     [Beth Lengle:] Those and payroll records, yes.

     [Appellant’s counsel:] They can look further if they see something
     that they think is suspicious, but they’re going to look at those
     documents; right?

     [Beth Lengle:] No, they look at 671, but they also look for, they’ll
     pick random weeks, and they’ll ask for the actual staffing sheets,
     and a lot of times they’ll ask for the actual payroll records of those
     weeks. This is, the 671 is actually a standard form that’s used by
     every nursing home, and they use it for the star rating, so it’s
     actually, they’re kind of two different things.

     [Appellant’s counsel:] Do you have a good understanding of the
     star rating?

     [Beth Lengle:] I have a fairly, it, it’s very complicated.

     [Appellant’s counsel:] But you understand what the star rating is?

     [Beth Lengle:] Yes.

     [Appellant’s counsel:] Now, this document, you’re telling all of the
     facilities that are with, with contracts with Grane … how to provide
     671 Forms to the state?

     [Beth Lengle:] I’m giving them tips, yes, tips, reminders.

     [Appellant’s counsel:] And what you’re telling them is in order to
     capture the most nursing hours, they’re to select the 671 Forms
     that have the most nursing hours in the period?

     [Beth Lengle:] Following the time frame requirements that are
     given by, by the Department of Health.

     [Appellant’s counsel:] So you pick the best ones?

     [Beth Lengle:] In that time frame, yes.

     [Appellant’s counsel:] The ones that reflect the most staffing?

     [Beth Lengle:] Yes.

     [Appellant’s counsel:] And you tell all of the facilities to include in
     those numbers orientation hours; right?

                                      -9-
J-A06009-18


     [Beth Lengle:] Correct. On the, the 671 allows for that.

     [Appellant’s counsel:] This is what’s going to reflect the direct
     staffing numbers of the facility, though; right?

     [Beth Lengle:] No, not necessarily.

     [Appellant’s counsel:] So you think you’re allowed to give them
     numbers that aren’t actually staff members providing direct care?

     [Beth Lengle:] That’s --

        [Providence/Grane’s counsel]: Your Honor, I think we’ve got
        a disconnect on two different things, the Department of
        Health numbers --

        [Appellant’s counsel]: Your Honor, if he has a speaking
        objection, then --

        [Providence/Grane’s counsel]: No, you’re, you’re mixing the
        two, and I think she’s articulating that, and you’re trying to
        confuse the two.

        [Appellant’s counsel]: Well, he can, he has his opportunity
        to ask his own questions, Your Honor.

        [The court]: All right. I, I’m going to sustain the objection
        as to the form of the question, and I will allow you to re-ask
        the question or, or maybe we just need some more
        foundation on what this 671 is.

        [Providence/Grane’s counsel]: That’s, I think that’s my
        objection, Your Honor.

     [Appellant’s counsel:] Do you have an understanding that based
     on the six, the five-star reports that there will be a rating for
     staffing from one star, two star, three star, four star, five star;
     right?

     [Beth Lengle:] Yes, but that is not the same thing as the daily
     staffing numbers.

     [Appellant’s counsel:] The, do you recall what the staffing, the
     star[]rating was for Providence … back in --

        [Providence/Grane’s counsel]:        Objection,   Your   Honor.
        We’ve talked about this.

        [The court]: Sustained.

                                    - 10 -
J-A06009-18


          [Beth Lengle]: Do I answer?

          [The court]: No.

          [Beth Lengle]: I’m sorry. Okay. Sorry.

N.T. Trial, 5/18/2016, at 197-200.6

       As Providence aptly explains:

       First, [Appellant’s] argument that Ms. Lengle “brought up the
       star[]rating herself” is, at best, misleading. While Ms. Lengle used
       the words “star rating” in discussing the purpose of the Facility’s
       671 form in response to counsel’s questions about its purpose,
       she did not attempt to explain or identify what the star rating was,
       either in substance or value. Indeed, she does not even reference
       that the rating relates to staffing. Nevertheless, after asking
       multiple other questions about the 671 form (and two pages later
       in the trial transcript) counsel, unprompted by the witness, asks,
       “Do you have an understanding that based on the six, the five-
       star reports there will be a rating for staffing from one star, two
       star, three star, four star, five star; right?” Unlike Ms. Lengle’s
       innocent reference to [the] star rating as one of the uses of the
       671 form information, counsel’s question went straight to the
       heart of the very thing that the [c]ourt had already prohibited as
       prejudicial — the existence of [a] one to five star rating system.
       If that was not bad enough, he then asked what Providence’s star
       rating was, a question that a reasonable juror would expect to be
       asked by counsel who anticipated a low star rating in response.
       This firmly planted the seed of bias in the mind of the jurors.

Providence’s Brief at 29-30 (internal citations omitted). We concur.

       Additionally, we disagree with Appellant that Providence waived this

claim by not objecting immediately and asking for a mistrial. “[A] trial judge

has the power to grant a new trial sua sponte if he [or she] determines that

____________________________________________


6 We provide a long excerpt here because Appellant disputes the trial court’s
characterization of the exchange. See Appellant’s Brief at 37 (“Although the
court insists that the witness did not volunteer information regarding the
star[]rating, the record establishes otherwise.”) (citations omitted).



                                          - 11 -
J-A06009-18



the interests of justice so require.” Armbruster v. Horowitz, 813 A.2d 698,

704 n.6 (Pa. 2002) (citations omitted). Thus, Providence’s late objection and

failure to request a mistrial cannot waive the trial court’s power to sua sponte

order a new trial.7
____________________________________________


7 We reject Appellant’s arguments that (1) the trial court did not actually grant
Providence a new trial sua sponte, but instead granted a new trial in response
to Providence’s post-trial motions asking for a new trial, see Appellant’s Reply
Brief at 35; (2) the trial court did not have unlimited power to grant a new
trial because this is a civil case, see id. at 36; and (3) courts are allowed wide
discretion in deciding whether to award a new trial but only where the party
raises timely, specific objections during trial, asking for that relief, see id. at
37-38. First, notwithstanding Providence’s post-trial motions asking for a new
trial, it is evident that the trial court felt compelled to grant a new trial
independent of Providence’s motions requesting such relief. See Rule 1925(a)
Opinion at 3 (“[W]hen a trial judge believes that the trial was not fair, that
judge is obliged to correct it.”) (emphasis added). Second, we disagree that
Commonwealth v. Powell, 590 A.2d 1240 (Pa. 1991), represents that “the
trial court’s authority to grant a new trial sua sponte ‘in the interest of justice’
was born out of the Federal Rules of Criminal Procedure[,]” and therefore
cannot be “neatly transferred” to civil cases. Appellant’s Reply Brief at 36
(citing Powell, 590 A.2d at 1242). In Powell, our Supreme Court recognized
that “[t]he rationale ‘in the interest of justice’ is deeply rooted in both federal
jurisprudence and the common law of Pennsylvania.” Powell, 590 A.2d
at 1242 (emphasis added). Indeed, in support of this assertion, it cites various
civil cases from Pennsylvania courts upholding this principle. Id. at 1242-43.
Thus, we are unconvinced that Powell is limited to criminal cases. Finally,
we disagree with Appellant that a party must make timely and specific
requests for a new trial before a trial court can sua sponte grant a new trial.
Sua sponte, by definition, means “[w]ithout promoting or suggestion; on its
own motion.” Black’s Law Dictionary 1650 (10th ed. 2014). Furthermore,
Appellant’s reliance on Tangnani v. Lew, 426 A.2d 595 (Pa. 1981), is
distinguishable in that the error in that case did “not rise to the level of
offending ‘justice and fairness.’” Id. at 596 n.2. It also involved only one
error, and not the multiple errors the trial court points to in the case sub
judice. In any event though, Powell and Armbruster post-date Tangnani,
and signify that trial courts may grant new trials sua sponte. Armbruster,
supra; Powell, 590 A.2d at 1243 (“Where it will result in the attainment of
justice, a trial court may grant a new trial without the initiation of the
defendant.”) (citations omitted; emphasis added).

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J-A06009-18



      Next, Appellant defends his closing argument in which the trial court

found that he ‘co-mingled’ arguments pertaining to compensatory and

punitive damages. He argues that Providence waived all issues relating to his

closing argument by agreeing that a cautionary instruction was appropriate.

See Appellant’s Brief at 42-43. Moreover, Appellant insists that — even if not

waived by Providence — his closing remarks were not improper. Id. at 45.

      Although Providence did not request a mistrial immediately following

Appellant’s closing argument, we again find that this omission does not

preclude the trial court from granting a new trial sua sponte.              See

Armbruster, supra. Furthermore, we disagree with Appellant’s argument

that the trial court “pull[ed] bits and pieces of [his] closing argument, without

providing proper context” to support its conclusion that Appellant’s closing

remarks were inappropriate.       Appellant’s Brief at 45.      The trial court

specifically told Appellant that “there was to be no mention of the wealth of

[Providence] in the closing argument, nor was there to be any mention of

punishment.” Opinion and Order on Providence’s Post-Trial Motions at 33.

Moreover, the trial court advised that “counsel would get another opportunity

to talk about the wealth of [Providence], punishment and deterring this type

of conduct when they gave their closing arguments in the second phase of

trial [relating to punitive damages].” Id. Despite this instruction, Appellant

made the following comments in his closing argument:
      These [d]efendants or this [d]efendant, Providence…, is a
      corporation for profit. Things have changed. The home was taken
      over for a for-profit company. [I]f it’s a for-profit company, it’s


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J-A06009-18


     there to protect societies most vulnerable and enfeeble, the
     demented, the people that don’t have a voice often, and they must
     do it responsibly. If they’re going to break safety rules that
     endanger residents, then they need to be held accountable.
                                      …

     The cost report, 95.6 percent occupied. This is a case where
     exceptional profits were had at this facility, and they want to
     suggest that it was appropriately and properly staffed. They want
     to suggest just because they took the meticulous time to create
     these [patient hours per day (PPDs)] that the staff members had
     sufficient numbers to meet the needs of the residents, that the
     staff was appropriately trained to meet the needs of the residents.
     This is a full facility where the administrator said on the one hand
     his job is operations. On the other hand is the clinical side, but
     he wasn’t paying attention to the clinical side. What he was
     paying attention to were the exceptional profits.

     And remember who’s responsible here, remember who the officers
     [are] that can make change here. These individuals, Richard
     Graciano, David Graciano, Jeff Graciano, Ross Neese, they never
     darkened the door of this courtroom. You didn’t see any of them
     coming here. In fact, the testimony was that maybe they visited
     Providence … once, maybe twice in the, in the 15 years that [Ray
     DeMarco, the Administrator of Providence, has] worked there.
     They haven’t sent someone here to watch the course of this trial,
     but you better believe that there’s someone waiting by a phone at
     [Grane’s] office in Pittsburgh on Sigma Drive to see what the jury
     will do, whether you will hold them accountable for what happened
     to [Ms.] Temple for the great harm that she suffered. They’re
     banking on something. They’re banking on the fact that because
     she’s old and enfeeble[d], because she’s still there, because their
     son, her son didn’t visit as much as he probably should’ve that
     you all would discount that.
                                      …

     I have a lot of other things to say, but I’m just flipping through
     notes, and I think I’m just going to leave you with a few more
     things then sit down. Make no mistake that in this courtroom lines
     have been drawn.         They haven’t accepted responsibility or
     accountability at all. They’re trying to have it both ways by saying,
     well, we’re sorry that something bad happened, but we’re not
     going to take any responsibility or take any blame for it
     whatsoever, none, not throughout this entire trial. Their positions

                                    - 14 -
J-A06009-18


       have shifted on issues. That they won’t accept the obvious, that
       they caused this great harm, and they had ample opportunity to
       stop it. This did not have to be. This was not inevitable. It wasn’t
       an unavoidable outcome. It became inevitable when they didn’t
       listen to the alarms, when they didn’t look at all of the safety
       indicators that were available. It became inevitable that bad
       things were going to happen to residents, and on 11/28 the
       inevitable became a reality for [Ms.] Temple. Their care was
       reckless and the problems were systemic.

       And that’s why we’re going to ask that when you do get the verdict
       form, when you do have a chance to look at it, that you award a
       substantial verdict that will balance the harms here so this history
       doesn’t keep repeating itself. It’s in your hands, and you have the
       power to change things.

N.T. Trial, 5/23/2016, at 105-06, 118-20, 123-24.

       We agree with the trial court that these comments were prejudicial and

in contravention of the trial court’s instruction. In light of the foregoing, we

determine that the trial court had a basis to believe that the trial was unfair,

given the cumulative effect of Appellant’s improper conduct, along with other

errors that prejudiced Providence.8 Accordingly, we conclude that the trial
____________________________________________


8 Along with the improprieties discussed above, the trial court also stated in
its Rule 1925(a) opinion that “[i]n addition to the trial not being fair, we also
do not believe [Appellant’s] claim of inadequate staffing was properly
supported by expert testimony.” See Rule 1925(a) Opinion at 4. While we
do not delve into whether expert testimony is required to support such claims
in the case at bar, we believe that the sole testimony of Katherine McCombs,
a former employee of Providence, was insufficient to establish Appellant’s
understaffing claim as Ms. McCombs did not work on Ms. Temple’s unit at or
near the time of her fall. See Providence’s Brief at 31-32. Ms. McCombs
explained that, though she worked at Providence from 2003 through 2013 as
a certified nursing assistant (CNA) and served as the president of the union
from 2009 through 2011, she was not working in the months surrounding Ms.
Temple’s fall due to an injury. See N.T. Trial, 5/16/2016, at 149-50, 152-53,
163, 198-200. In fact, the last time she had worked as a full-time CNA was
in February 2011, about nine months before Ms. Temple’s fall. See id. at 171,



                                          - 15 -
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court did not abuse its discretion in ordering a new trial for Providence on

liability and compensatory damages.

       In its second issue, Appellant states that the trial court erred when it

entered a JNOV as to the punitive damages verdict award against Providence.

See Appellant’s Brief at 5, 63.9 Appellant argues that this Court has previously

deemed evidence of chronic understaffing sufficient to establish a claim for

punitive damages. See id. at 64 (citing Hall v. Episcopal Long Term Care,

54 A.3d 381 (Pa. Super. 2012); Scampone v. Grane Healthcare Co., 11

A.3d 967 (Pa. Super. 2010) (referred to herein as Scampone I)). Further,

he states that punitive damages are warranted here as “Providence also failed

to properly update and reassess [Ms. Temple’s] care plan[,]” and “nearly 60%

of the time, Providence was disregarding [Ms. Temple’s] widely known fall

risk” by not giving her the supervision and assistance she needed. Id. at 65

(citation omitted); Appellant’s Reply Brief at 16. Appellant claims that Ms.

Temple’s “supervision was so lax that not a single caretaker had eyes on her

when she fell for the third time.” Appellant’s Brief at 66 (citation omitted).

       This Court has previously explained:


____________________________________________


201. As the trial court observed, “we only have the testimony of a single lay
witness, who said the patients’ needs, generally, were not being met.”
Opinion and Order on Providence’s Post-Trial Motions at 13. Such evidence
falls short.

9 We note that, in the alternative to JNOV, the trial court granted a new trial
to Providence on punitive damages. See Opinion and Order on Providence’s
Post-Trial Motions at 7, 17.

                                          - 16 -
J-A06009-18


      In reviewing a trial court’s decision whether or not to grant
      judgment in favor of one of the parties, we must consider the
      evidence, together with all favorable inferences drawn therefrom,
      in the light most favorable to the verdict winner. … We will
      reverse a trial court’s grant or denial of a [JNOV] only when we
      find an abuse of discretion or an error of law that controlled the
      outcome of the case. Further, the standard of review for an
      appellate court is the same as that for a trial court.

      There are two bases upon which a [JNOV] can be entered; one,
      the movant is entitled to judgment as a matter of law and/or two,
      the evidence is such that no two reasonable minds could disagree
      that the outcome should have been rendered in favor of the
      movant. With the first, the court reviews the record and concludes
      that, even with all factual inferences decided adverse to the
      movant, the law nonetheless requires a verdict in his favor.
      Whereas with the second, the court reviews the evidentiary record
      and concludes that the evidence was such that a verdict for the
      movant was beyond peradventure.

Hall, 54 A.3d at 395 (citations, original brackets, and formatting omitted).

      Further, our Supreme Court has elucidated:
      The standard governing the award of punitive damages in
      Pennsylvania is settled. “Punitive damages may be awarded for
      conduct that is outrageous, because of the defendant’s evil motive
      or his reckless indifference to the rights of others.” Feld v.
      Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984) (quoting
      Restatement (Second) of Torts § 908(2) (1979)); see also
      Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355, 358
      (1963). As the name suggests, punitive damages are penal in
      nature and are proper only in cases where the defendant’s actions
      are so outrageous as to demonstrate willful, wanton or reckless
      conduct. See SHV Coal, Inc. v. Continental Grain Co., 526 Pa.
      489, 587 A.2d 702, 704 (1991); Feld, 485 A.2d at 747-48;
      Chambers, 192 A.2d at 358. See also Restatement (Second) of
      Torts § 908, comment b. The purpose of punitive damages is to
      punish a tortfeasor for outrageous conduct and to deter him or
      others like him from similar conduct. Kirkbride v. Lisbon
      Contractors, Inc., 521 Pa. 97, 555 A.2d 800, 803 (1989);
      Restatement (Second) of Torts § 908(1) (“Punitive damages are
      damages, other than compensatory or nominal damages, awarded
      against a person to punish him for his outrageous conduct and to
      deter him and others like him from similar conduct in the future.”).

                                     - 17 -
J-A06009-18


     Additionally, this Court has stressed that, when assessing the
     propriety of the imposition of punitive damages, “[t]he state of
     mind of the actor is vital. The act, or the failure to act, must be
     intentional, reckless or malicious.” See Feld, 485 A.2d at 748;
     see also Martin v. Johns–Manville Corp., 508 Pa. 154, 494
     A.2d 1088, 1097 n.12 (1985) (plurality opinion).

     In Martin, this Court considered the requisite state of mind which
     would constitute reckless indifference in this context, and we set
     forth the standard the courts are to apply when called upon to
     determine whether the evidence supports a punitive damages
     award on such a basis. Noting that Comment b to Section 908(2)
     of the Restatement refers to Section 500 as defining the requisite
     state of mind for punitive damages based on reckless indifference,
     this Court turned to Section 500, which states:

        § 500 Reckless Disregard of Safety Defined

        The actor’s conduct is in reckless disregard of the safety of
        another if he does an act or intentionally fails to do an act
        which it is his duty to the other to do, knowing or having
        reason to know of facts which would lead a reasonable man
        to realize, not only that his conduct creates an unreasonable
        risk of physical harm to another, but also that such risk is
        substantially greater than that which is necessary to make
        his conduct negligent.

     Restatement (Second) of Torts § 500.

     Noting that Section 500 sets forth two very different types of state
     of mind as to reckless indifference, Martin stated that the first is
     “where the ‘actor knows, or has reason to know, … of facts which
     create a high degree of risk of physical harm to another, and
     deliberately proceeds to act, or to fail to act, in conscious
     disregard of, or indifference to, that risk;’” and that the second is
     “where the ‘actor had such knowledge, or reason to know, of the
     facts, but does not realize or appreciate the high degree of risk
     involved, although a reasonable man in his position would do so.’”
     Martin, 494 A.2d at 1097 (quoting Restatement § 500 Comment
     a). Martin recognized that the first type of reckless conduct
     described in Section 500 “demonstrates a higher degree of
     culpability than the second on the continuum of mental states
     which range from specific intent to ordinary negligence[,]”
     because “[a]n ‘indifference’ to a known risk under Section 500[,]
     is closer to an intentional act than the failure to appreciate the
     degree of risk from a known danger.” Id.

                                    - 18 -
J-A06009-18


      The Martin Court then stated that “[u]nder Pennsylvania law, only
      the first type of reckless conduct described in comment a to
      Section 500, is sufficient to create a jury question on the issue of
      punitive damages[,]” rejecting as insufficient the second type of
      recklessness, which is premised on a “reasonable man standard.”
      Id. at 1097-98. In other words, this Court concluded that “an
      appreciation of the risk [of harm] is a necessary element of the
      mental state required for the imposition of [punitive] damages.”
      Id. at 1097 n.12. In this regard, we reasoned that:

         The only purpose of punitive damages is to deter outrageous
         conduct. It is impossible to deter a person from taking risky
         action if he is not conscious of the risk. Thus, in Feld v.
         Merriam, 506 Pa. 383, 485 A.2d 742 (1984), we addressed
         the issue of when punitive damages are warranted and
         stressed that, in determining whether certain conduct is
         outrageous, “[t]he state of mind of the actor is vital. The
         act, or the failure to act, must be intentional, reckless or
         malicious.”     Similarly, the Restatement explains that
         “reckless indifference to the rights of others and conscious
         action in deliberate disregard of them … may provide the
         necessary state of mind to justify punitive damages.”
         Comment b (emphasis added). Therefore, an appreciation
         of the risk is a necessary element of the mental state
         required for the imposition of such damages.

      Id.

      Thus, in Pennsylvania, a punitive damages claim must be
      supported by evidence sufficient to establish that (1) a defendant
      had a subjective appreciation of the risk of harm to which the
      plaintiff was exposed and that (2) he acted, or failed to act, as the
      case may be, in conscious disregard of that risk. Id. at 1097-98.

Hutchison v. Luddy, 870 A.2d 766, 770-72 (Pa. 2005) (footnote omitted;

emphasis in original).

      Here, in granting Providence’s motion for JNOV regarding punitive

damages, the trial court explained its reasoning as follows:
      After careful review of the testimony, we believe there was
      insufficient evidence regarding the state of mind of Providence to
      show that its conduct amounted to anything more than
      negligence. [Appellant’s] expert, Nurse [Charlotte] Sheppard,

                                     - 19 -
J-A06009-18


      testified that the staff “should’ve known that if they didn’t provide
      appropriate supervision, an adverse outcome could happen.”
      However, “should have known” is not the requisite state of mind
      for punitive damages. Further[,] she testified that “[t]hey knew
      something bad could happen if they didn’t do something
      appropriately like supervise and update her care plan, yet they
      didn’t do that.” She did not identify who specifically knew this,
      and yet still failed to act.

      Nurse Sheppard testified that they “missed opportunities to go
      back and update the plan and make sure they were meeting [Ms.]
      Temple’s needs” and that “the facility failed to anticipate her
      needs.”   These failures do not establish the state of mind
      necessary to impose punitive damages.

      Moreover, there was no assertion that the employees at
      Providence deliberately failed to take action, or that any of the
      employees appreciated an unusually high risk, but still failed to do
      anything about it. See[,] e.g.[,] Jones v. McDonald’s Corp.,
      958 F.Supp. 234 (E.D. Pa. 1997) … (“If the defendant actually
      does not realize the high degree of risk involved, even though a
      reasonable man in his position would, the mental state required
      for the imposition of punitive damages in Pennsylvania is not
      present.”)[.]

Opinion and Order on Providence’s Post-Trial Motions at 4-5 (some internal

citations omitted).

      We agree with the trial court’s observations. As it ascertained, Appellant

does not point to any evidence demonstrating that Providence had a

subjective appreciation of the risk of harm to which Ms. Temple was

exposed due to its alleged failure to supervise her and update her care plan,

and that Providence acted (or failed to act) in conscious disregard of that

risk. See Hutchison, 870 A.2d at 772.




                                     - 20 -
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       We briefly distinguish two other nursing home liability cases —

Scampone I and Hall — relied on by Appellant.10 In Scampone I,
       the plaintiff-decedent was living in a nursing home, and in
       December of 2003, she was diagnosed with a urinary tract
       infection. The plaintiff-decedent was hospitalized, treated, and
       returned to the nursing home in good condition. The following
       month, she was re-admitted with another urinary tract infection,
       as well as dehydration, malnutrition, and bed sores. On February
       9, 2004, the plaintiff-decedent died of a heart attack at the age of
       94. The plaintiff-estate instituted an action against the nursing
       home and, at trial, the trial court concluded the evidence was
       insufficient to submit the question of punitive damages to the jury.
       On appeal to this Court, the plaintiff-estate argued the trial court
       erred in failing to submit the issue of punitive damages to the jury
       and, in agreeing, a panel of this Court stated, in relevant part, the
       following:

          We conclude that [p]laintiff’s evidence established that both
          Highland and Grane5 acted with reckless disregard to the
          right of others and created an unreasonable risk of physical
          harm to the residents of the nursing home. The record was
          replete with evidence that the facility was chronically
          understaffed and complaints from staff continually went
____________________________________________


10 Both parties discuss chronic understaffing as a basis for punitive damages,
so we will also address it herein. However, the trial court did not seem to
consider understaffing in its punitive damages determination, but instead
indicated multiple times that it believed “[t]he punitive damages issue goes
to the failure to document the prior fall and take necessary steps. The failure
to reassess her. That’s what I’m allowing the punitive damages to go to the
jury on.” N.T. Trial, 5/19/2016, at 219. See also N.T. Trial, 5/23/2016, at
77-78 (“I do think that if the testimony … is to be believed and that Providence
should have reevaluated her and updated the care plan and provided more
supervision based on her fall, they did not update the care plan. They did
implement some, some measures, but they did not do the updated care plan,
and that could be deemed reckless, and that’s why I’m letting that stay in.”);
Opinion and Order on Providence’s Post-Trial Motions at 2-6 (granting
Providence’s motion for JNOV with respect to punitive damages without
discussing the issue of understaffing).




                                          - 21 -
J-A06009-18


          unheeded.[11] Grane and Highland employees not only were
          aware of the understaffing that was leading to improper
          patient care, they deliberately altered records to hide that
          substandard care by altering ADLs6 that actually established
          certain care was not rendered. Records concerning the
          administration of medications were falsified. Staffing levels
          were increased during state inspections and then reduced
          after the inspection was concluded. Deliberately altering
          patient records to show care was rendered that was actually
          not is outrageous and warrants submission of the question
____________________________________________


11 This Court summarized the circumstances of understaffing in Scampone
I, as follows:
       The witnesses established the existence of a chronic lack of
       sufficient employees at the Highland Park nursing home to provide
       sufficient care for all its residents. The [registered nurse (RN)]
       who testified … worked on [the decedent’s] unit, was acquainted
       with her, and testified about understaffing during his tenure at the
       facility. [A licensed practical nurse (LPN)] stated that [the
       decedent] was treated the same as all other fourth-floor residents.
       [One] CNA … was employed by Highland from 2003 through 2004,
       and rendered care to [the decedent]. He was unable to perform
       his tasks, including at times, filling water pitchers. Another CNA
       … who worked at Highland from 2003 until 2005, helped care for
       [the decedent] from time to time and noticed untaken pills in her
       room. [That CNA] also stated that [the decedent’s] water pitcher
       was chronically empty. In 2003 and 2004, [the fourth floor LPN
       from 7:00 a.m. to 3:00 p.m.] had to take care of thirty-eight to
       forty residents, and had difficulties completing her job
       responsibilities. Since [the decedent] was a fourth floor resident
       at that time, [that LPN’s] testimony necessarily included the care
       of [the decedent]. [The decedent’s son] stated that his mother
       was not given water and pills. [The plaintiff-estate’s expert]
       established an absence of necessary RN care for nineteen days in
       January 2004. [A responding paramedic’s] testimony revealed
       that [the decedent] was not given fluids for days prior to being
       transferred to the hospital where she died.

Scampone I, 11 A.3d at 988-89. Additionally, an RN testified that “CNAs
specifically informed him that they did not have enough time to give patients
water and to respond to call lights,” and that he “relayed all the complaints
that he heard to his supervisors.” Id. at 980, 981 (citations omitted).



                                          - 22 -
J-A06009-18


          of punitive damages to the jury. Other evidence supporting
          an award of punitive damages included [the plaintiff-
          decedent’s] lack of nursing care for a critical nineteen days
          prior to her death and her deplorable condition on January
          30, 2004.[12] We also point to a note in her records that the
          poor woman was crying for water.
          5Highland was the nursing home facility, and Grane
          managed the nursing home.[13]
          6 ADLs are care charts, which CNAs were required to
          complete in Scampone [I].

       Scampone [I], 11 A.3d at 991–[]92 (footnotes added).

Hall, 54 A.3d at 395-96 (summarizing Scampone I; some internal citations

omitted).

       Second, in Hall, the estate of a deceased nursing home resident

proceeded to a jury trial against a nursing home operator on a claim of

negligence. Hall, 54 A.3d at 385. On appeal, this Court determined, inter

alia, that the trial court erred in granting the operator’s motion for a directed

verdict with regard to a claim for punitive damages brought by the estate. Id.

at 396. In doing so, we explained that “the record was replete with evidence

____________________________________________


12 The responding paramedic on January 30, 2004, testified that the decedent
“had severe skin tenting, which is a sign of dehydration[,]” and the on-duty
RN informed the paramedic that the decedent “had not been given any fluid
for quite a few days” and “had been unable to swallow her medication for a
couple days.” Scampone I, 11 A.3d at 987 (citations and internal quotation
marks omitted).

13 We note that Scampone I involved the same corporate defendant — Grane
— as the case at bar. See Appellant’s Brief at 66 (noting that Scampone I
“involved the same corporate defendant (Grane Healthcare)”); Providence’s
Brief at 38 n.3 (acknowledging that Grane was also a defendant in Scampone
I).



                                          - 23 -
J-A06009-18



that the nursing home was chronically understaffed and complaints from the

staff went unheeded[,]”14 and the estate proffered evidence that the

operator’s employees “were not only aware of the understaffing, which led to

improper patient care, but they deliberately increased staff during times of

state inspections and then reduced such after the inspection was concluded.”

Id. at 397. Further, “the [e]state presented ample evidence that the deceased

continuously cried out in pain from September of 2003 to November of 2003

when nurses assisted her with range of motion exercises and applied splints

to her legs; however, the staff completely disregarded her severe pain.” Id.15

The estate additionally “presented evidence that nurses falsified care logs,

thus indicating the deceased had received care at the nursing home when, in

fact, the deceased was admitted into the hospital[,]” and “there were entire
____________________________________________


14 Specifically, a CNA testified that the floor where the deceased resided “was
short on staffing and so [staff] really couldn’t do the adequate care.” Hall,
54 A.3d at 387 (citation and internal quotation marks omitted). Another CNA
testified that “the nursing home was short staffed all the time[,]” and “because
of understaffing, she was tired and unable to give the residents the care they
really needed, including changing the residents’ diapers in a timely manner.”
Id. at 388 (citations omitted). Yet another CNA testified that “the nursing
home was regularly short-staffed, which would prevent all of the residents,
including the deceased, from having their diapers changed in a timely
manner.” Id. (citation omitted). Notably, all three of these CNAs testified
that they had worked on the deceased’s floor on at least one occasion at the
time when the neglect occurred. Id. at 387, 388.

15 A nurse admitted that “the deceased’s physician would rely on the nurses
to report if the deceased was experiencing pain[,]” and that “from September
of 2003 until November 11, 2003, the deceased, who was receiving 25
micrograms of the Duragesic patch, ‘screamed’ out in pain during the range
of motion exercises, which occurred six days a week.” Hall, 54 A.3d at 387
(citation omitted).

                                          - 24 -
J-A06009-18



months when the deceased was not given a bath and … was left to lie in her

own filth.” Id. (citation omitted).

      We consider both Scampone I and Hall to be readily distinguishable.

To begin, in both of those cases, “the record was replete with evidence that

the nursing home was chronically understaffed and complaints from the staff

went unheeded.”     See Hall, 54 A.3d at 397 (emphasis added); see also

Scampone I, 11 A.3d at 991. That was not the case here. As the trial court

pointed out, there was only one witness — Katherine McCombs — who

testified that “the facility was short-staffed at times and she received

grievances to this effect.”    Opinion and Order on Providence’s Post-Trial

Motions at 10 (citation omitted). However, Ms. McCombs had not worked on

Ms. Temple’s unit at or near the time of her fall. See footnote 8, supra. In

addition, as discussed above, Appellant argues that Providence did not re-

evaluate and update Ms. Temple’s care plan after her first two falls, and states

that she regularly did not receive the supervision or assistance she needed

while walking and transferring. See Appellant’s Brief at 65; Appellant’s Reply

Brief at 16. While Providence may have been negligent in rendering such care,

we reiterate that Appellant identifies no evidence that Providence understood

the risk of harm to Ms. Temple due to these lapses and nevertheless

consciously failed to do these things. In comparison, in Hall and Scampone

I, the plaintiffs proffered evidence that staff purposely falsified care logs and

knowingly disregarded patients’ severe pain and thirst. Further, when viewed

relative to Hall and Scampone I, we agree with the trial court that

                                      - 25 -
J-A06009-18



Providence’s conduct was not “the type of outrageous or egregious conduct

that punitive damages are designed to deter.”             Opinion and Order on

Providence’s Post-Trial Motions at 5; see also Hutchison, 870 A.2d at 770

(“[P]unitive damages are penal in nature and are proper only in cases where

the defendant’s actions are so outrageous as to demonstrate willful, wanton

or reckless conduct.”) (citation omitted). Thus, for the foregoing reasons, the

trial court properly granted JNOV in favor of Providence with respect to

punitive damages.

        Finally, in his last issue, Appellant argues that the trial court erred when

it dismissed Grane from the case on a motion for compulsory nonsuit. See

Appellant’s Brief at 66. In granting the nonsuit in favor of Grane, the trial

court determined — after conducting the five-part test set forth in Althaus v.

Cohen, 756 A.2d 1166 (Pa. 2000),16 — that Grane did not owe a duty to Ms.

Temple and, even if it did, Appellant “offered no expert testimony to

demonstrate that Grane’s actions fell below the accepted standard of care,

____________________________________________


16   In Althaus, our Supreme Court explained:
        [T]he legal concept of duty of care is necessarily rooted in often
        amorphous public policy considerations, which may include our
        perception of history, morals, justice and society.            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.
Althaus, 756 A.2d at 1169 (citations omitted).

                                          - 26 -
J-A06009-18



and that this breach caused [Ms.] Temple’s injuries.” See Opinion and Order

on Appellant’s Post-Trial Motion at 2, 13-14. In response, Appellant claims

that the trial court erred by unnecessarily conducting an Althaus analysis and

wrongly concluding that Grane owed no duty to Ms. Temple. See Appellant’s

Brief at 67, 73. Instead, pursuant to the Restatement (Second) of Torts §§

323 and 324(A), Appellant insists that “once Grane started providing its

services to [Providence], it had an obligation to do so in a reasonable manner.”

Id. at 70 (citing, in part, Restatement (Second) of Torts §§ 323 and 324(A)).

       We agree with Appellant that the trial court should not have conducted

an Althaus analysis. While this appeal was pending, this Court issued our

opinion in Scampone v. Grane Healthcare Co., 169 A.3d 600 (Pa. Super.

2017) (referred to herein as Scampone II), the longstanding nursing home

case discussed above where the decedent suffered from dehydration, among

other things.17 Therein, we examined whether the trial court properly entered

a nonsuit in favor of Grane, the company that managed the nursing home,

Highland. In determining whether Grane owed a duty to the decedent, the

Scampone II Court explained that the Althaus factors are “more relevant to

the creation of new duties than to the vindication of existing ones[,]” and “if

a common law duty exists under the Restatement (Second) of Torts, the

Althaus analysis is not necessary.”                Id. at 617 (citing Alderwoods

____________________________________________


17 The Scampone case “has been to this Court twice, the Supreme Court
once, and the trial court twice.” See Scampone II, 169 A.3d at 605. For a
thorough summary of its history, see id. at 605-10.

                                          - 27 -
J-A06009-18



(Pennsylvania), Inc. v. Duquesne Light Co., 106 A.3d 27 (Pa. 2014)).

Rather than conducting an Althaus analysis in Scampone II, we concluded

that Grane owed a duty of care to the decedent in that case under the

Restatement (Second) of Torts §§ 323 and 324A. Id. at 618-19. Section 323

sets forth:
      One who undertakes, gratuitously or for consideration, to render
      services to another which he should recognize as necessary for
      the protection of the other’s person or things, is subject to liability
      to the other for physical harm resulting from his failure to exercise
      reasonable care to perform his undertaking, if

         (a) his failure to exercise such care increases the risk of such
         harm, or

         (b) the harm is suffered because of the other’s reliance upon
         the undertaking.

Restatement (Second) of Torts § 323.

      Additionally, Section 324A states:
      One who undertakes, gratuitously or for consideration, to render
      services to another which he should recognize as necessary for
      the protection of a third person or his things, is subject to liability
      to the third person for physical harm resulting from his failure to
      exercise reasonable care to protect his undertaking, if

         (a) his failure to exercise reasonable care increases the risk
         of such harm, or

         (b) he has undertaken to perform a duty owed by the other
         to the third person, or

         (c) the harm is suffered because of reliance of the other or
         the third person upon the undertaking.

Restatement (Second) of Torts § 324A.

      The Scampone II Court determined that, under section 323, “Grane

contractually undertook to render services to residents of Highland’s nursing


                                      - 28 -
J-A06009-18



home by managing the care provided to them and by overseeing the

operations of the facility, and Grane should have recognized those services

were necessary for the protection of those elderly and infirm residents.”

Scampone II, 169 A.3d at 619. Thus, we concluded that “[i]t is subject to

liability for any physical harm resulting from its failure to exercise reasonable

care in the performance of this undertaking.” Id. Furthermore, we decided

that Grane also had a duty under section 324A as “Grane agreed to manage

medical and patient care services rendered to the residents of a nursing home,

which it should have recognized as necessary for their protection.“          Id.

Therefore, “[i]f a jury finds, based upon the evidence of negligence and

causation presented, that Grane failed to exercise reasonable care in this

undertaking and its failure to ensure proper patient care increased the risk of

harm caused to [the decedent] or that it undertook to perform a duty owed

by Highland to [the decedent], then the [p]laintiff can recover, and entry of a

nonsuit was improper.” Id.

      In light of the intervening Scampone II decision, the trial court’s

application of the Althaus factors and its determination that Grane owed no

duty to Ms. Temple was erroneous.             The contract between Grane and

Providence in and of itself was sufficient to establish that duty under the




                                     - 29 -
J-A06009-18



Restatement (Second) of Torts §§ 323 and 324A. See Scampone II, 169

A.3d at 619.18

       Having concluded that Grane did indeed owe a duty to Ms. Temple, we

now consider whether there was enough evidence to get to the jury.
       Nonsuit should not be granted unless it is clear that the plaintiff
       has not established a cause of action or any right to relief against
       the party in question. When we determine if the plaintiff has
____________________________________________


18 The management agreement in this case is the same in all material respects
as the agreement between Grane and Highland reviewed in Scampone II.
See Scampone II, 169 A.3d at 611, 618; Appellant’s Exhibit 15; Appellant’s
Reply Brief at 29. That agreement requires Grane, as the Manager, to do the
following on behalf of the Operator, Providence Care Center, LLC, at the
Facility, Providence Care Center:

       Section 1.2.1 … Manager shall assist in the implementation and
       administration of the employment policies and procedures of the
       Operator. …

       Section 2.1 … [T]he Manager shall through its operating officers
       and the Manager’s Representative, and at the expense of the
       Operator, manage all aspects of the operation of the Facility,
       including, but not limited to the following:

             2.1.1 Nursing Consulting Services. Establish and administer
       a quality assurance program to assure the Facility provides quality
       nursing services to its residents. …

       Section 4.1 Compliance
              The Manager shall use its best efforts to comply on behalf
       of the Operator with all applicable Federal, State and Local laws,
       rules and regulations including State and Local life and safety
       codes relating to the Facility and in the same fashion operate the
       Facility so that it shall maintain all necessary licenses, permits,
       consents and approvals from all governmental agencies which
       have jurisdiction over the operation of the Facility. …

Appellant’s Exhibit 15.




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       established the right to recover, the plaintiff must be allowed the
       benefit of all favorable evidence and reasonable inferences arising
       therefrom, and any conflicts in the evidence must be resolved in
       favor of the plaintiff. This Court will reverse an order refusing to
       remove a nonsuit if the trial court either abused its discretion or
       committed an error of law.

Scampone II, 169 A.3d at 611 (internal citations and quotation marks

omitted).

       Here, the trial court concluded that Appellant “provided no expert

testimony demonstrating that Grane’s conduct fell below the standard of

care.” Rule 1925(a) Opinion at 1. According to the trial court, Appellant’s

“case as to Grane revolved around the assertion that Grane was in charge of

setting staffing levels at the facility, that Grane did not set proper staffing

levels at the facility, and that the lack of staff caused or contributed to [Ms.]

Temple being unsupervised and falling.”              See Opinion and Order on

Appellant’s Post-Trial Motion at 14.19         The trial court then concluded that

Appellant’s expert, Nurse Sheppard, “continually spoke of ‘the facility’ and

even defined direct care, but made no mention of Grane’s standard of care,
____________________________________________


19 This is not entirely accurate. Appellant also claimed that policies and
procedures set by Grane, and adopted by Providence, contributed to Ms.
Temple’s fall. See, e.g., N.T. Trial, 5/16/2016, at 43-44 (asserting in
Appellant’s opening statement that “Grane … was also responsible for ensuring
that the rules were followed to ensure that residents were not needlessly
endangered”); N.T. Trial, 5/19/2016, at 181 (arguing that “if Grane has a duty
to, … if, per contract they’re going to … assure the best efforts, [are] made to
comply with federal regulations. You asked what regulation they breached.
We’ve had ample testimony that the regulation was breached as to failure to
supervise and prevent accidents”); id. at 195 (“[I]n terms of evidence that
Grane … breached the duty of care, … we have evidence that the regulations
weren’t followed, we have evidence that … the policies and procedures that
they implemented weren’t followed….”).

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or of any actions or inactions by Grane.”       Id. at 15.   These conclusions

constitute a misreading of Nurse Sheppard’s expert report and the testimony

presented at trial.

      The jury heard testimony from Ms. Lengle, Grane’s Vice President of

Nursing Services. She testified that Grane was to use its best efforts to comply

on behalf of facilities with all applicable federal, state and local regulations,

and that she recommended policies to be followed at facilities, particularly

relating to federal regulations. See N.T. Trial, 5/18/2016, at 187-88; id. at

207 (testifying that facilities “were allowed to change the policies [she

provided to them] to meet the individual needs of their building and their

residents unless it was a federal regulation.    If the policy was based on a

federal regulation, I would expect them to follow that, yes”); id. at 228

(explaining that “the general policies that I supplied, every single one, was

directly reflected [sic] of a federal regulation in long-term care”).        She

acknowledged that she had a role in making sure there was enough staff at

facilities, and made recommendations as to staffing for the facilities at times.

See id. at 194-95. Ms. Lengle also stated that she had access to facilities’

clinical records, and was responsible as a consultant for recognizing problems

within those records and asking for changes. Id. at 222.

      In addition, Appellant presented expert testimony to explain how

Providence’s failure to follow policies and safety rules fell below the standard

of care.   Specifically, Nurse Sheppard explained to the jury how care is

managed in a nursing home, and testified extensively about her qualifications

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in understanding the relationship between management companies and

nursing facilities. See id. at 48-55. She was qualified as an expert and went

on to testify about regulations that Providence was required to follow.

Namely, Nurse Sheppard discussed 42 C.F.R. § 483.25(h) (effective Oct. 7,

2005 to Nov. 27, 2016), which states, inter alia, that the facility must ensure

that “[e]ach resident receives adequate supervision and assistance devices to

prevent accidents.”       See Appellant’s Exhibit 8 (setting forth 42 C.F.R. §

483.25(h) and guidance to surveyors); see also N.T. Trial, 5/18/2016, at 71,

78-79. Nurse Sheppard opined that Providence failed to provide Ms. Temple

“with the level of supervision that she needed to keep her safe, and [it] had

failed on at least two occasions to go back and update her care plan to direct

the staff to provide her with supervision.”        N.T. Trial, 5/18/2016, at 136.

Further, Nurse Sheppard testified to the following:
        [Appellant’s counsel:] And we talked much earlier about the …
        factors that you look at under the regulation in determining
        avoidable versus unavoidable [accidents].[20] We talked about


____________________________________________


20   According to Nurse Sheppard,
        avoidable and unavoidable accidents are different incidents. [T]he
        regulations use that term for a couple different things, and the
        key with calling something an unavoidable accident would mean
        that you actually did everything that you were supposed to do to
        prevent it, so unless you’ve done everything that you were
        supposed to do including assessing them, implementing care,
        changing the plan, then you can’t say it was an unavoidable
        accident, so the regulation actually tells us that, so they tell you
        that in order to say that this was an unavoidable accident, you



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       proper supervision. Did you see from your review of the records
       whether or not there was proper supervision here?

       [Nurse Sheppard:] There was not proper supervision here.
       Although [Ms. Temple] was in a[n] area [that] should be
       considered a location that needs supervision, this is a common
       area where there would be other residents and activities going on
       and tables and chairs, different obstacles to get around, meal
       trays, food, different things that were being introduced to the
       environment, this is an area that absolutely should’ve been
       supervised, and [Ms.] Temple should’ve been supervised.

Id. at 123-24. Referencing a citation by Department of Health and Human

Services surveyors, Nurse Sheppard also stated that she had reviewed

documents indicating that this particular location in the facility was not being

appropriately supervised prior to Ms. Temple’s fall, in contravention of 42

C.F.R. § 483.25(h).       See id. at 130; see also Appellant’s Exhibit at 14.

Ultimately, Nurse Sheppard determined that Ms. Temple’s fall was the result

of the violation of policies and safety rules in place at Providence. Id. at 137.



____________________________________________


       had to have done X, Y, Z, and they actually list out up there what
       the things you had to do before you can call it unavoidable.

N.T. Trial, 5/18/2016, at 80-81; see also Appellant’s Exhibit 8 (defining
“avoidable accident” as an accident that occurred because the facility failed
to, inter alia, “[i]mplement interventions, including adequate supervision,
consistent with a resident’s needs, goals, plan of care, and current standards
of practice in order to reduce the risk of an accident…”). Nurse Sheppard
stated that “the supervision level varies depending on what’s going on,
depending on their resident and depending on other factors in the facility.”
N.T. Trial, 5/18/2016, at 82; see also Appellant’s Exhibit 8 (“Adequate
supervision is defined by the type and frequency of supervision, based on the
individual resident’s assessed needs and identified hazards in the resident
environment. Adequate supervision may vary from resident to resident and
from time to time for the same resident.”).


                                          - 34 -
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      Based on the foregoing, and in light of our standard of review, the trial

court erred in determining that Appellant did not present expert testimony.

When the expert testimony is read in conjunction with the testimony from Ms.

Lengle, a jury could conclude that Grane breached its duty to Appellant. In

the management agreement, Grane agreed to establish and administer a

quality assurance program to assure that Providence provides quality nursing

services to residents, and promised to use its best efforts to comply on behalf

of Providence with all applicable federal, state and local laws, rules and

regulations. See Appellant’s Exhibit 15. Viewed in the light most favorable

to Appellant, the testimony of Ms. Lengle and Nurse Sheppard suggests that

Grane failed to exercise reasonable care in performing these undertakings that

it should have recognized as necessary for the protection of Providence’s

residents. Accordingly, we reverse the order granting a nonsuit in favor of

Grane and permit the new trial to include Grane once again.

      Thus, to summarize, the order of the trial court granting Providence a

new trial on liability and compensatory damages is affirmed. In addition, we

uphold the JNOV entered in favor of Providence on punitive damages.

However, we reverse the order granting a nonsuit in favor of Grane so that

the new trial may include Grane.

      Order affirmed in part and reversed in part. Case remanded for further

proceedings. Jurisdiction relinquished.




                                    - 35 -
J-A06009-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2018




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