J-A03014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEVEN FRIEDMAN, INDIVIDUALLY   :            IN THE SUPERIOR COURT OF
AND AS EXECUTOR OF THE ESTATE   :                 PENNSYLVANIA
OF GAIL FRIEDMAN, DECEASED      :
                                :
           v.                   :
                                :
KEVIN M. FOSNOCHT, MD AND PENN :
PRESBYTERIAN MEDICAL CENTER,    :
AKA A UNIT OF THE HOSPITALS OF  :
THE UNIVERSITY OF PENNSYLVANIA- :
PENN PRESBYTERIAN, IN TURN AKA  :
A UNIT OF THE UNIVERSITY OF     :
PENNSYLVANIA HEALTH SYSTEM, IN :
TURN AKA AS A UNIT OF THE       :
TRUSTEES OF THE UNIVERSITY OF   :
PENNSYLVANIA, AND FRESENIUS     :
MEDICAL CARE NORTH AMERICA,     :
AND DAVITA KIDNEY CARE, AKA A   :
UNIT OF DAVITA HEALTHCARE       :
PARTNERS, INC.                  :
                                :
                                :
APPEAL OF: STEVEN FRIEDMAN      :                   No. 865 EDA 2017

              Appeal from the Order Entered February 15, 2017
                In the Court of Common Pleas of Philadelphia
                 County Civil Division at No(s): 150800211


BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED JULY 10, 2018

      Appellant, Steven Friedman, individually and as executor of the estate

of Gail Friedman, deceased, appeals from the final order entered in the

Philadelphia County Court of Common Pleas, which granted judgment on the

pleadings and disposed of all the claims and parties in this case. We affirm.

      In its opinion, the trial court fully and correctly set forth the relevant


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A03014-18


facts and procedural history of this case. Therefore, we have no reason to

restate them.

      Appellant raises one issue for our review:

         DID THE [TRIAL COURT] ABUSE [ITS] DISCRETION
         AND/OR COMMIT [AN] ERROR OF LAW WHEN IT (1)
         STRUCK APPELLANT’S [FOURTH] AMENDED COMPLAINT,
         AND (2) FAILED TO ALLOW APPELLANT TO PLEAD OVER
         OR ANSWER PRELIMINARY OBJECTIONS, AS PROVIDED IN
         [PA.R.C.P.] 1028(D)?

(Appellant’s Brief at 4).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable M. Teresa

Sarmina, we conclude Appellant’s issue merits no relief.     The trial court

opinion comprehensively discusses and properly disposes of the question

presented.      (See Trial Court Opinion, filed October 4, 2017, at 4-13)

(finding: as presented in his Rule 1925(b) statement, Appellant’s claims are

waived because they lack specificity, absent reasons for how or why court

erred, thus they are too vague; moreover, court sustained some of

defendants’ preliminary objections because Appellant failed to state claims

for relief properly, failed to rectify errors in his amended complaints, and

failed to obey court’s order to address shortcomings in his third amended

complaint; court had discretion to strike Appellant’s fourth amended

complaint which he filed without leave of court). Accordingly, we affirm on

the basis of the trial court’s opinion.

      Order affirmed.

                                          -2-
J-A03014-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/18




                          -3-
                                                                                               Circulated 06/22/2018 03:34 PM




                           PHILADELPHIA COURT OF COMMON PLEAS
                                   CIVIL TRIAL DIVISION


   STEVEN FRIEDMAN, Individually and                                    AUGUST TERM, 2015
   as Executor of the Estate of                                         No.   0211
   GAIL FRIEDMAN, Deceased
                                                                        Superior Court Docket No.:
               v.                                                       865 EDA 2017

   KEVIN M. FOSNOCHT, M.D., et al.

                                                                                                                by
   Sarmina, J.
   October 4, 2017


                                                       OPINION
         This is an appeal from an Order entered on February 14, 2017, granting judgment
                                                                                                        !
                                                                                                                a-   A
                                                                                                                         the

pleadings in favor of Defendants Kevin M. Fosnocht, M.D., Penn Presbyterian Medical Center

("PPMC"), and Trustees of the University of Pennsylvania ("Penn Defendants") on all of Appellant

Dr. Steven Friedman's claims.

PROCEDURAL HISTORY:

         Appellant first brought this medical malpractice action on August 3, 2015. Appellant filed his

Third Amended Complaint, after numerous exchanges of preliminary objections, on January 29, 2016.

Defendants sought, as they had on previous complaints, dismissal of several counts. After a hearing

on May 11, 2016, this Court, on May 16, 2016, partially granted Defendants' objections, striking

Counts V, VI, VII, and VIII-false imprisonment and strict liability               claims-of the Third Amended
Complaint and deferred ruling on the remaining objections.'

         On May 24, 2016, Appellant filed         a   Fourth Amended Complaint that added new claims and a

significant amount of new content.             On May 25, 2016, the Court struck the Fourth Amended


 At the May 11, 2016 hearing, this Court gave Appellant specific instructions as to how to proceed. See discussion
below.

                                                           1                           Friedman Vs Fosnocht Etal OPFLD



                                                                                       iii
 Complaint due to Appellant's noncompliance with the Court's instructions and inclusion of
                                                                                           additional
 claims

          On June 6, 2016, this Court issued three separate Orders. The first Order (Control
                                                                                             No.
 16031982) overruled Appellant's preliminary objections to Defendant PPMC's
                                                                            preliminary objections.
 The second Order (Control No. 16023240) sustained Defendant Fresenius Medical
                                                                               Care of North
 America's preliminary objection, dismissing all claims of liability against Fresenius with
                                                                                            prejudice for
 legal insufficiency. The third Order (Control No. 16023063) (1) struck Count
                                                                                        II-negligence against
 Defendant Dr. Fosnocht-with prejudice;          (2)       struck all references to unnamed and unidentified

 agents, servants, and employees with prejudice; (3) amended all claims for damages
                                                                                    suffered by
Appellant in Counts I and II (negligence against PPMC and Dr. Fosnocht) "to properly reflect
                                                                                             claims
for loss of consortium;" (4) struck "all vague allegations of negligence and causation" with
                                                                                             prejudice;
and (5) struck paragraphs eight through twelve of the Third Amended Complaint with
                                                                                   prejudice and
dismissed Defendants Hospital of the University of Pennsylvania -Penn Presbyterian and
                                                                                       the
University of Pennsylvania Health System.

          On June 27, 2016, Plaintiff filed a Motion for Reconsideration of the May 25th Order and
                                                                                                   the
three Orders of June 6, 2016. This Court denied that Motion for Reconsideration on July           1, 2016.

          On December    5, 2016,   Defendants filed       a   Motion for Judgment on the Pleadings to which

multiple responsive pleadings were filed. The Honorable Rosalyn Robinson granted
                                                                                 Defendants'
Motion on February 14, 2017. On March 15, 2017, Appellant filed a Notice of Appeal. On June 15,

2017, Judge Robinson ordered Appellant to file         a   Rule 1925(b) Statement of Matters Complained on

Appeal ("1925(6) Statement"). Appellant timely filed his 1925(b) Statement on July 7, 2017.




                                                           2
             Appellant's 1925(b) Statement is somewhat unconventional, but as best
                                                                                   this Court can
     interpret, the allegations of error can be summarized as follows:2

                      1.   This Court and staff failed to properly memorialize in -court rulings at
                                                                                                    the
                           preliminary objections stage, leading to an incomplete and inaccurate
                                                                                                           docket/record;'
                      2.   This Court erred in striking Appellant's Fourth Amended Complaint;

                      3.   This Court erred in failing to allow Appellant to file written Answers to
                                                                                                     Defendants'
                           Preliminary Objections;

                      4.   This Court erred in dismissing most of Appellant's claims;

                      5.   This Court erred in denying Appellant's Motion for Reconsideration; and

                      6.   Appellant prays for "leave to file his 4th Amended Complaint, consistent
                                                                                                    with
                           [Appellant's] Answer to the Rule to Show Cause."'


    FACTS:

            This is a medical malpractice action brought by Dr. Steven Friedman, both
                                                                                      individually and as
    executor of his late wife's, Gail Friedman, estate.' Between June 3, 2013, and
                                                                                   October 31, 2014,6 Ms.
    Friedman received more or less continuous inpatient medical treatment at
                                                                             numerous healthcare
    facilities. Her treatment specifically included hemodialysis three times per week
                                                                                      as well as physical,

    occupational, and speech therapy. Appellant alleged that his wife received inadequate and
                                                                                              negligent
    care at these facilities, resulting in her physical injuries, prolonged
                                                                            hospitalization, further improper
    medical treatment, and related economic and noneconomic injuries.


2This appeal is based entirely on this Court's actions and not on Judge Robinson's
                                                                                   grant     of judgment on the pleading.
Thus, there will be no substantive discussion on the judgment on the pleadings.

3Appellant also frequently complained in his 1925(b) Statement that the Court's actions
                                                                                        were performed in
contravention of "usual procedure."

4   This Court   is   unaware of what "Rule to Show Cause" Appellant refers to in his 1925(b) Statement.

5Appellant stated in his Third Amended Complaint that he also "was or had also been Gail
                                                                                              Friedman's primary care
physician, attorney, power -of-attorney, durable power -of-attorney, and health care
                                                                                     surrogate." (1/29/16 Third Amend.
Compl. ¶ 2.).

6   Decedent died on the October date while an inpatient at PPMC.

                                                                 3
             Appellant filed suit against several healthcare facilities, including Penn
                                                                                        Defendants, and Kevin
     Fosnocht, M.D., the Chief Medical Officer and Associate Executive
                                                                       Director of PPMC, under theories
     of negligence (Counts       I   and II), "willful or wanton conduct, and/or reckless endangerment"
                                                                                                        (Counts
     III and IV), false imprisonment (Counts V and VI), strict
                                                               liability (Counts VII and VIII), vicarious

     liability (Counts IX and X), negligence against Forsenius7 (Count
                                                                       XI), negligence against DaVita
     (Count XII) and loss of consortium against all defendants (Counts
                                                                       XIII and XIV).


    LEGAL ANALYSIS:

            Appellant filed the instant appeal on the basis of the grant of judgment on the
                                                                                            pleadings,
    although he does not challenge that Order. Instead Appellant complains of this
                                                                                   Court's prior
    rulings at the preliminary objections stage, which led to the judgment on
                                                                              the pleadings.'
            Prior to addressing Appellant's complained-of-rulings, this Court
                                                                              notes Appellant's failure
    under the requirements of Pa.R.A.P. 1925. "The Statement shall concisely
                                                                             identify each ruling or error
    that the appellant intends to challenge with sufficient detail to identify all
                                                                                   pertinent issues for the
    judge." Pa.R.A.P. 1925(b)(4)(ii). While Appellant is neither required to cite to any
                                                                                         authorities (id.) nor
    required to file   a   brief or memorandum of law, (Pa.R.A.P. 1925(b)(4)(iii)), any issues "not
                                                                                                    raised in
    accordance with the provisions of this paragraph (b)(4) are waived." Id. at
                                                                                (b)(4)(vii). Superior Court

    has previously held, in line with the Pennsylvania Supreme Court's
                                                                       bright -line rule, that the failure to
specify issues in a 1925(b) Statement results in waiver. Commonwealth v.
                                                                         Johnson, 51 A.3d 237, 247
(Pa.Super. 2012); see also Commonwealth v. Hansley, 24 A.3d 410, 415
                                                                     (Pa.Super. 2011) (stating "the



7   This Court understood Appellant's claims against "Forsenius" referred to
                                                                             Defendant Fresenius as properly referenced
in the case caption and ¶ 5.

8Appellant properly raises this Court's prior rulings on preliminary objections in this
                                                                                        appeal on judgment on the
pleadings, because "a notice of appeal filed from the entry of judgment      viewed as drawing into question any prior
non -final orders that produced the judgment." K.H.   via.    826 A.2d 863, 871 (Pa. 2003) (citations omitted).


                                                             4
    Rule 1925(b) statement must be specific enough for the trial court to identify and address the issue

    [an appellant]     she[s] to raise on appeal.") (quotation omitted); Commonwealth v. Reeves, 907 A.2d

    1, 2   (Pa.Super. 2006) (stating "when a court has to guess what issues an appellant is appealing, that is

    not enough for meaningful review.").

              Specifically, regarding the third and fourth allegations of error, Appellant does not go into any

    further detail beyond simply stating "These errors of law and/or abuses of discretion continued when

    the Honorable Judge Sarmina...falled to allow plaintiff the opportunity to file written Answers to

    defendants' preliminary objections [and] dismissed most claims against defendants Fosnocht and Penn

    Presbyterian Medical Center...." It is clear that Appellant has failed to allege with the required

    specificity the issues Appellant has with this Court's ruling to deny his preliminary objections and not

    allow him to file a written Answer, and with the Court's ruling to dismiss most of his claims.              In
particular, Appellant fails to state          why   he was entitled to file      a   written Answer to Defendants'

preliminary objections and which claims he objects to having been dismissed and why he objects to

    their dismissal. Appellant has not met the specificity requirement with his limited, vague allegations

    for either issue, and they are therefore waived.'

             Appellant's complained -of rulings were docketed on May 16, May 25, June 6, and July 1, 2016.

We address each in turn.

     I.      The May 16, 2016 Order

             On May 16, 2016, this Court issued an Order memorializing the rulings it had made at the

preliminary objections hearing on May 11, 2016. Appellant contends that the Court orally granted him

permission to file a Fourth Amended Complaint at the May 11th hearing. Appellant further contends

that because the Court did not docket an Order memorializing all the Judge's rulings until five days

later, this delay led to an errant docketing omission of his leave to file his Fourth Amended Complaint.


9   The analysis already having been conducted, this Court nonetheless addresses both issues below.

                                                             5
           The May 16th Order sustained two of Defendants' preliminary objections, striking with

 prejudice from the Third Amended Complaint Counts V, VI, VII, and VIII (claims for false

 imprisonment and strict liability). The Order also contained                       a   footnote stating, "Following oral

 argument, the plaintiff was allowed leave to file additional materials no later than May 23, 2016....

 [1]his Court will defer ruling on the remainder of defendants' post -trial motions' until all filings have

 been submitted." Appellant contends that the "leave to file additional materials" clause refers to the

 Court's permission for him to file his Fourth Amended Complaint.

          The Court instructed Appellant to submit the results of his research on "whether                          [a   hospital
 chief medical officer]'s actions or inactions would render him independently liable on some theory

 and what that theory is," Notes of Testimony (N.T.) 5/11/16 at 29, and whether punitive damages

might be available under the MCARE Act. Id. at 35. As for the amended complaint, the record

reflects that the Court did grant Appellant leave to file, but this grant of permission was strictly limited.

Appellant had suggested to the Court multiple times that he be permitted to file                         a   fourth complaint

that was generally reworked in several areas, but the Court imposed specific limitations on what

changes could be made in a fourth complaint. See id. at 40-43 (specifying that the permitted alterations

would be the striking and moving of certain paragraphs), 55-56 ("[Dr. Friedman]: I would, frankly,

prefer to amend the complaint...." "[The Court]: Well, rather than have you amend it...I am going to

go ahead and grant defendant's preliminary objections, or sustain them, regarding the strict liability

claims."), 60-61 and 85-86 (instructing Dr. Friedman to specify more clearly the factual basis for a

negligence claim against Defendant Fresenius), and 87 (agreeing that Appellant would include

Defendant DaVita in his new Americans with Disabilities Act claim and would withdraw any

negligence specification regarding Defendant Fresenius).



lo The reference to "post -trial motions" is a cleat misstatement that should have
                                                                                       been stated as "preliminary objections,"
as the case was clearly still in its pretrial stages. Appellant, however, implies that this error is
                                                                                                     indicative of the Court's
incompetence and "forgetfulness."

                                                               6
              At the end of the hearing, the Court also specifically addressed Defendants' question of

     whether "Mr. Friedman would be granted blanket leave to amend his complaint." Id. at 88. The

     Court responded in the negative and specifically stated, "That doesn't mean that you suddenly have

     carte blanche,   Mr. Friedman, to start adding all kinds of things other than what we've talked about here today." Id.

     at 89. (emphasis added). The Court addressed that Appellant might be filing "just some case law" or

 that "he might be refining- an amended complaint and taking out the negligence language and                         a few

     other things, now that things have been stricken." Id. At 90-91. Furthermore, the Court summarized

 the hearing and listed some of the actions that Appellant was to take, such as filing with the Court

 "something...as to [Defendant] Dr. Fosnocht and why he should not just become part of the

 corporate negligence claim." Id. at 93.

              Thus, the record shows that the Court's instructions on the permissible content of Appellant's

 new filings were explicit and strictly limited. Appellant was in no way granted leave to amend his

 complaint in other ways. The Court was unwilling to allow Appellant to file an amended complaint

with new claims (see id. at 40), which prompted clear instructions as to what changes were permissible.

     IL       The May 25, 2016 Order

             Appellant takes issue with the Court's May 25th Order, which was entered in response to

Appellant's Fourth Amended Complaint, filed on May 24, 2016."

             The Court's instructions regarding the scope and contents of a Fourth Amended Complaint

have been laid out above. Indeed, as the text of the May 25th Order states, "[T]he plaintiff was given




II Appellant argued in his Motion for Reconsideration that, "despite having had difficulty with the electronic filing
system, [he] believed he had successfully filed the Fourth Amended Complaint" on the filing deadline date, May 23rd.
However, no filing was docketed until the day after, although he did submit via email to this Court's law clerk automated
filing confirmation emails dated May 23rd. The Court did not consider Appellant's electronic filing to be untimely.



                                                                7
  leave to amend his complaint only to rectify certain errors within his third amended                    complaint.'
 Appellant's filing did not comply with those instructions.

          To begin with, Appellant failed to submit any brief or case law to the Court, as ordered, on

 the potential for claims against Defendant Dr. Fosnocht and the potential availability of punitive

 damages under the MCARE Act. In his later June 27th Motion for Reconsideration, Appellant argued

 that he had not submitted the briefs because "those briefings had to await the (presumably) defendant -

 amended preliminary objections [to the new Fourth Amended Complaint], and would have been

 included in plaintiffs answers thereto." Pl.'s Mot. Recons. at ¶ 14(2). Appellant added in a footnote,

 "Filing the Fourth Amended Complaint, no matter what it contained, would render moot all

 preliminary objections to the Third Amended Complaint." Id. at n.2. However, as the text of the

May 16th Order clearly shows, the deadline for Appellant's additional filings was May 23, 2016. There

was no discussion or grant      of leave for Appellant to only brief the issues if and when Defendants filed
new preliminary objections, despite the fact that Appellant thought it "illogical" to do otherwise Id. at

¶ 14(2). Appellant was not required to agree with the Court Order for him to be bound by it.

         Additionally, Appellant's Fourth Amended Complaint contained new contract and civil

conspiracy claims, even though the Court was explicitly clear in stating that Appellant's permitted

amendments were strictly confined and that he            was not permitted to add new claims beyond those discussed   at
the hearing. See   N.T. 5/11/16 at 89 (stating that Appellant did not "have carte blanche...to start adding

things other than what we've talked about here today."). As such, appellant's later contention in his

Motion for Reconsideration that the Court never prohibited the addition of new claims is



32By way of further explanation, this Court gave Appellant instructions that if he were to file an
                                                                                                   amended complaint, to
amend a negligence claim against Defendant Fresenius that included ADA language. N.T. 5/11/16 at 56-87. Appellant
was given similar instructions on a similar negligence claim against Defendant DaVita that included ADA language. This
Court envisioned Appellant would rectify the errors by removing "negligence" and instead focus on the ADA. The
Court did not envision Appellant would instead file an amended complaint that included two new claims and merely add
under each claim that each Defendant "thereby also violated the reasonable accommodation requirements of Title II of
the Americans with Disabilities Act (ADA) et seq." 5/24/16 Fourth Amend. Comp!. 11197 and 102.

                                                           8
 disingenuous. As the Court never granted Appellant leave to raise contract or conspiracy claims,' he

 was precluded from doing so, and thus violated the Court's instructions.                     This Court therefore

 correctly asserted in the May 25th Order that Appellant "filed an extensive fourth amended complaint

 that did not comply with this Court's instructions and included the addition of claims."

          "It   is well   settled that...the right to amend pleadings is within sound discretion of the trial

 court and should be liberally granted." Ash v. Continental Ins. Co., 932 A.2d 877, 879 (Pa. 2007)

 (citation omitted). The trial court's determination will not be disturbed absent an abuse of that

 discretion. Id. (citation omitted). However, amendments that present new causes of action or that

will unfairly surprise or prejudice the opposing party should          not be allowed. Borough of Mifflinburg

v. Heim, 705 A.2d 456, 463 (Pa.Super. 1997) (citation omitted).                  Appellant had previously been

permitted to file three prior amendments, in the interests of allowing claims to be judged on their

merits, and was authorized by this Court to file a limited fourth amendment. Appellant freely chose

to file a noncompliant amended complaint with new claims that would cause surprise and unfair

prejudice to Defendants. Therefore, it was well within the sound discretion of the Court to reject

Appellant's Fourth Amended Complaint.

         Appellant argues extensively in his 1925(b) Statement that the Court's May 16th Order was

the result of the Court's "forgetfulness" and "failure to timely memorialize." As exhibits to his Motion

for Reconsideration, he presented a chain of emails involving opposing counsel, this Court's law clerk,

and himself. He claims the Court erred in issuing the May 25th Order without first waiting until it

received transcripts of the hearing, as the law clerk stated in an email dated May 24:




 13 At most, the civil conspiracy and contract claims      Fourth Am. Compl. ¶¶ 94-104) contain averments that, by
committing breach of contract and civil conspiracy, the relevant Defendants "also" violated the Americans with
Disabilities Act. (ijill 97, 102.) While the ADA was discussed at the hearing, there was no discussion of contract or
conspiracy claims, and the Complaint merely cites the ADA violations as incidental consequences of the commission of
other torts. This Court views Appellant's attempted use of the alleged ADA violations to shoehorn in impermissible new
claims as contrary to the Court's instructions.

                                                          9
        Judge Sarmina has instructed me to obtain the notes of testimony from the date of oral
        argument to ascertain exactly what Her Honor instructed Mr. Friedman to file (as she does
        not recall giving Mr. Friedman leave to file another amended complaint). Thus, once we review
        those notes of testimony, Judge Sarmina will make a ruling on the remainder of the preliminary
        objections.

Pl.'s Mot. Recons. Ex. 2, Email #3. Appellant offers this as evidence that the Court inaccurately

recollected the hearing (and thus that its later rulings stemmed from this misremembering of the

hearing) and alleges that the Court erred in making its ruling the next day, May 25, before having

received the transcripts of the hearing to confirm exactly what was said. However, this Court is

unaware of any legal authority requiring a court to obtain transcripts of a hearing prior to the court's

issuance of an order See Pa. R.C.P. 208.4 (governing general judicial procedure for consideration and

disposition of motions). Furthermore, despite Appellant's allegations, the record confirms that the

May 25th Order accurately reflected the Court's rulings from the May 11th hearing. In fact, during

the May 11th hearing, Appellant was instructed to brief two legal issues and to not include additional

claims, which is properly reflected in the May 25 Order.         Therefore, there was no failure to

memorialize.

        The June 6, 2016 Orders

       On June 6, 2016, this Court issued three orders. The first Order overruled Appellant's

preliminary objections to Defendants' preliminary objections (Control No. 16031982). The second

Order sustained a preliminary objection from Defendant Fresenius to the Third Amended Complaint

and dismissed all claims of liability against Fresenius with prejudice (Control No. 16023240). The

third Order overruled some preliminary objections and sustained others from Defendants Dr.

Fosnocht, PPMC, and Penn Defendants (Control No. 16023063). Appellant alleges that it was

improper and "against usual procedure" for the Court to issue the latter two Orders on the same day,




                                                  10
 as they denied him the       opportunity to file written Answers to Defendants' preliminary objections

 discussed in the first Order."

          Appellant is essentially arguing he was entitled by right to file written Answers to Defendants'

 preliminary objections after the disposition of Appellant's preliminary objections thereto. However,

 Pa. R.C.P. 1017(a) (4) mentions only that "a preliminary objection and a response thereto" are included

 in the list of permissible pleadings, and its Official Note reads, "An answer needs to be filed to a

 preliminary objection only when the preliminary objection alleges facts not of record." Pa. R.C.P.

 1017(a)(4). Furthermore, Pa. R.C.P 1028 establishes that a preliminary objection can test the legal

 insufficiency of a pleading, and the Official Note under 1028(c)(2) states that such an objection "may

be determined from facts of record so that further evidence is not required." See Pa. R.C.P. 1028(a)(4)

 and (c)(2).

         Notwithstanding that Appellant failed to state with specificity the issues he was raising, it                 is

clear that he believes this Court erred in dismissing most of his claims. The standard of review when

reviewing a trial court's ruling on preliminary objections is as follows:

         Our standard of review of an order of the trial court overruling or granting preliminary
         objections is to determine whether the trial court committed an error of law. When
         considering the appropriateness of a ruling on preliminary objections, the appellate
         court must apply the same standard as the trial court. Preliminary objections in the
         nature of a demurrer test the legal sufficiency of the complaint. When considering
         preliminary objections, all material facts set forth in the challenged pleadings are
         admitted as true, as well as all inferences reasonably deducible therefrom. 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 establish the right to relief. If any doubt exists as to whether
         a demurrer should be sustained, it should be resolved in favor of overruling the
         preliminary objections.

Liberty Mut. Ins. Co. v. Domtar Paper Co., 77 A.3d 1282, 1285 (Pa.Super. 2013).




14 In Appellant's June 27, 2016 Motion for Reconsideration, Appellant requested
                                                                                 this Court to strike the May 25th Order
and the three June 6th Orders. However, Appellant did not indicate that he had wanted to file a written Answer to
Defendants' preliminary objections; Appellant requested only leave to file the Fourth Amended Complaint.

                                                           11
          As noted supra, Appellant did not address the particular rulings on preliminary objections with

 which he takes issue, which leaves this Court guessing as to which rulings and which dismissed claims

 he believes were improper. Additionally, this Court properly ruled on each preliminary objection from

 the three June 6, 2016 Orders by admitting all material facts in the challenged pleading as true and

determining that it was clear and free from doubt that Appellant would be unable to prove facts legally

 sufficient to establish the right to relief.

 IV.      The July 1, 2016 Order

          On July    1, 2016,   the Court issued an Order (Control No. 16063650) denying Appellant's

Motion for Reconsideration of the Court's ruling on Defendants' preliminary objections to

Appellant's Third Amended Complaint. Appellant had specifically requested reconsideration of the

Court's Order of May 25, 2016 and of the three Orders of June 6, 2016.

          As discussed above, Appellant's claims were either disingenuous or lacked any substantive

reasoning. Appellant relies on the footnote from the May 25th Order that he "was allowed leave to

file additional materials no later than May 23, 2016" as the basis for the Fourth Amended Complaint

which he filed. The transcript from the May 11, 2016 hearing is clear that Appellant was to submit

something to the Court on two legal issues (see N.T. 5/11/16 at 90) and that, in reference to an

amended complaint, Appellant did not "have               carte blanche.   .   .   to start adding things other than what

we've talked about here today." Id. at 89. Appellant further conflates the issues by stating he would

not have had to file briefings to the two legal issues the Court requested until after he filed the

Fourth Amended Complaint. Pl.'s Mot. Recons. at ¶ 14(2). The two matters-addressing two legal

issues and amending the complaint without including new                       claims-were not intertwined:5


15 As discussed supra, Appellant was told to brief two legal issues: (1) the theory of liability
                                                                                                 that might apply to Defendant
Fosnocht (NT. 5/11/16 at 29); and (2) whether punitive damages might be available under the MCARE Act ask at 35).
Separately, this Court only granted Appellant leave to file the Fourth Amended Complaint in order to strike and move
certain paragraphs (Id. at 40-43), to specify the factual basis for a negligence claim against Defendant Fresenius Id. at
60-61 and 85-86), and to include Defendant DaVita in the ADA claim (Id. at 87). Appellant was instructed not to add

                                                              12
           As to two of the three Orders issued on June 6, 2016, Appellant
                                                                           simply claimed that they
  "are unfairly prejudicial to plaintiff" but provided no substantive legal
                                                                            reasoning. Id. at In 16-19.



 CONCLUSION:

          For the foregoing reasons, this Court respectfully requests Superior Court to affirm
                                                                                               the
 Order granting judgment on the pleadings in favor of Defendants and against Appellant.

                                                                 BY THE COURT:




                                                                 M. TERESA SARMINA,
                                                                                                              J.




[FN contd.] new claims in the Complaint. Appellant failed to submit anything
                                                                             regarding the two legal issues and,
contrary to this Court's instructions, submitted a Fourth Amended Complaint with new claims
                                                                                             not previously discussed.

                                                          13
