Judges Opinions, — March 6, 2019 10:00 — 0 Comments

Cindy Raiger v. Barry Moss, DMD, Inc. T/D/B/A Jonestown Dental Associates et al No. 2017-01808

Civil Action-Law-Malpractice-Dental-Negligence-Pleading-Preliminary Objections-Joint and Several Liability-Scandalous and Impertinent Matter-Specificity of Pleadings-Vagueness

Plaintiff brought claims of Negligence and Lack of Informed Consent against three (3) dentists in the same practice who performed dental work with regard to cap, crown and bridge work and a claim of vicarious liability against the dental practice, charging joint and several liability of Defendants.  Defendants filed Preliminary Objections seeking to strike allegations of joint and several liability as scandalous and impertinent and allegations on the basis that they set forth vague, boilerplate claims of negligence.

1.  Pa.R.C.P. Rule 1028(a)(2) provides that allegations of a complaint may be stricken for inclusion of scandalous or impertinent matter.
2.  Scandalous matter consists of any unnecessary allegations that bear cruelly on the moral character of an individual or entry, state anything that is contrary to good manners or unbecoming to the dignity of the court to hear or charge someone with a crime not necessary to be shown.
3.  Averments in a complaint are impertinent if they are irrelevant to the material issues made or tendered and which, if proven, can have no influence in leading to the decision in the case.
4.  Preliminary objections seeking to strike allegations as scandalous or impertinent should be sustained only if a party can show affirmative prejudice.
5.  A plaintiff may file suit against multiple defendants and may plead whether he or she intends to hold the defendants liable jointly, separately, severally or in the alternative.
6.  The Pennsylvania Fair Share Act, 42 Pa.C.S. § 7102(a.1)(3), provides that a defendant’s liability shall be joint and several such that the court shall enter a joint and several judgment in favor of plaintiff and against defendant for the total dollar amount awarded as damages for the following:  intentional misrepresentation, an intentional tort, the defendant has been held liable for not less than sixty percent (60%) of the total liability apportioned to all parties, a hazardous substance has been released pursuant to the Hazardous Sites Cleanup Act or in a civil action where a defendant has violated the Liquor Code.
7.  The allegations of the Complaint as to joint and several liability are not scandalous or impertinent, as there is nothing improper about Plaintiff’s specification of the nature of the liability alleged against Defendants and it is possible that one (1) of the Defendants could be found liable for not less than sixty percent (60%) of the total liability apportioned to all parties pursuant to the Pennsylvania Fair Share Act.
8.  Pa.R.C.P. Rule 1019(a) requires that a complaint state the material facts to support a cause of action.
9.  In determining whether a particular paragraph in a complaint is stated with the requisite specificity, the paragraph must be read in context with all of the allegations of the complaint.
10.  Allegations will survive a challenge as to vagueness where they contain averments as to all of the facts a plaintiff will have to prove to recover and disclose the sufficient specific facts to enable the adverse party to prepare his or her case.
11.  A physician charged with negligence and unskillfulness in the practice of his or her profession is entitled to be advised of the specific acts of commission or omission alleged to constitute the negligence and unskillfulness of which a plaintiff complains.
12.  The allegations challenged by Defendants are overly broad and lack specificity necessary to enable preparation of a meaningful defense, as the allegations fail sufficiently to apprise Defendants of the higher level of care to which Plaintiff should have been referred, the point in time such referral should have been made, the nature of the asserted dental needs of Plaintiff, the manner in which such needs should have been addressed and the point in time when Defendants should have undertaken such action.
L.C.C.C.P. No. 2017-01808, Opinion by John C. Tylwalk, President Judge, June 20, 2018.
IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CIVIL DIVISION NO. 2017-01808
CINDY RAIGER
v.
BARRY A. MOSS, DMD, INC. T/D/B/A JONESTOWN DENTAL  ASSOCIATES, BARRY MOSS, DMD, FARAH JAMAL, DMD, KIMBERLY BABB, DMD   
APPEARANCES:
JOSEPH R. CHIRDON, ESQUIRE  FOR PLAINTIFF
R. J. MARZELLA & ASSOCIATES
JEFFREY P. BATES, ESQUIRE   FOR DEFENDANTS
JASON W. BIALKER, ESQUIRE
MARSHALL DENNEHEY WARNER
COLEMAN & GOGGIN
OPINION, TYLWALK, P.J., JUNE 20, 2018.
On October 20, 2015, Plaintiff Cindy Raiger (“Raiger”) had an appointment with her long-time dental care providers, Defendant Jonestown Dental Associates, seeking cap, crown and bridge work.  On October 21, 2015, Raiger returned to the dental office for a consultation with Defendant Barry A. Moss, D.M.D. (“Moss”) to discuss treatment options.  On October 29, 2015, she returned for extraction of teeth numbers 4 and 9.  She elected to get crowns for teeth numbers 6, 7 and 11, a bridge from numbers 8 to 10, and a partial denture for posterior missing teeth numbers 3, 4, 14, and 15.  On November 5, 2015, teeth numbers 6 through 11 were prepped for crowns.  The Complaint alleges that the teeth were over-prepped and that Defendants left insufficient surface area for the secure attachment of appliances such as bridges and crowns.   This resulted in Raiger returning to Defendants’ office on numerous occasions due to hardware and crowns which became loose and/or fell out.
Raiger was subsequently required to undergo extensive remedial dental work, including prosthodontist, periodontic, and endodontic care, multiple tooth extractions and dental implants, oral surgeries, bone grafts, root canals, placement of regenerative membranes, and insertion of custom abutments and metal framework between October 20, 2015 and December 12, 2017.  In her Complaint, Raiger asserted causes of action in negligence and lack of informed consent against the three individual dentists who treated her as well as a claim of vicarious liability against the Defendant dental practice.  The Complaint includes charges of joint and several liability on the part of the Defendants.
Defendants filed Preliminary Objections directed at several of the allegations regarding Defendants’ negligence, the cause of action for lack of informed consent, and the allegations of Defendant’s joint and several liability.  The parties requested oral argument on the Preliminary Objections and the matter was scheduled for the April term of Argument Court.  Prior to the date for oral argument, the parties reached a Stipulation whereby Raiger withdrew the claims for lack of informed consent and negligence allegations charging the individual dentists with failure to supervise the prepping of Raiger’s teeth.  The parties withdrew the request for oral argument with the matter to be submitted to the Court on Briefs.  In their Stipulation, the parties identified the only remaining issues for the Court’s resolution as Defendants’ motion to strike and dismiss Raiger’s claims for joint and several liability and Defendant’s objections charging that allegations in Paragraphs 84(j) and (q), 88(j) and (q), 92(j) and (q), and 96(j) and (q) were general, boiler plate conclusions of law which should be stricken from the Complaint.
Allegations of Joint and Several Liability
In Paragraphs 79, 82 and 96 of the Complaint, Raiger asserts the following:
79.  As a direct and proximate result of the negligence of the defendants, jointly and severally, Mrs. Raiger has incurred significant medical expenses and will continue to incur such expenses in the future, for all of which damages are claimed.

82.  Defendants are jointly and severally liable for all damages suffered by Plaintiff, as detailed here within.

96.  Defendant Jonestown Dental is jointly and severally liable to Mrs. Raiger for the injuries and damages alleged herein which were directly and proximately caused by Defendant Moss, Defendant Jamal, and/or Defendant Babb, … .
(Complaint, Paragraphs 79, 82, and 96).
The Pennsylvania Fair Share Act, 42 Pa.C.S.A. §7102 provides as follows:
(3) A defendant’s liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages:
(i)Intentional misrepresentation.
(ii) An intentional tort.
(iii) Where the defendant has been held liable for not less than 60% of the total liability apportioned to all parties.
(iv) A release or threatened release of a hazardous substance under section 702 of the act of October 18, 1988 (P.L. 756, No. 108), known as the Hazardous Sites Cleanup Act.
(v) A civil action in which a defendant has violated section 497 of the act of April 12, 1951 (P.L. 90, No. 21), known as the Liquor Code.
42 Pa.C.S.A. §7102(a.1)(3).
Pa.R.C.P. No. 1028(a)(2) provides that allegations of a complaint may be stricken for including scandalous or impertinent matter.  “Scandalous or impertinent matter” means allegations that are “immaterial and inappropriate to the proof of the cause of action.”  Common Cause/Pa. v. Commonwealth, 710 A.2d 108, 115 (Pa. Commw. 1998).  Scandalous matter consists of any unnecessary allegations that bears cruelly upon the moral character of an individual or entity, or states anything that is contrary to good manners, or anything that is unbecoming to the dignity of the court to hear, or that charges some person with a crime not necessary to be shown. 5 Standard Pennsylvania Practice 2d §25:61.  Averments in a complaint are impertinent where they are “irrelevant to material issues made or tendered, and which, whether proven or not, or whether admitted or not, can have no influence in leading to the decision of the case.  Id. at §25:62.  However, only if the allegation is wholly irrelevant to the action in every way, and without any influence on the result, will the matter be deemed impertinent.  Id.  A preliminary objection on the ground of matters alleged to be scandalous or impertinent should be sustained only when a party can show affirmative prejudice.  Id. at §25.63.
Defendants contend that Paragraphs 79, 82 and 96 should be stricken from the Complaint with prejudice, arguing that allegations of their joint and several liability are premature, scandalous and impertinent to Raiger’s claims.  They point out that Raiger has asserted no claims for intentional misrepresentation, release of hazardous substance, or a violation of the Liquor Code.  They further argue that such a claim is premature because no defendant has yet been found liable to Raiger and the apportionment of any purported liability has not yet been determined. 1  Raiger counters that the claims for joint and several liability should stand because the Pennsylvania Fair Share Act provides for a situation which may be applicable in this case.  She notes that under Section 7102(a.1)(3), joint and several liability is permitted where a “defendant has been held liable for not less than 60 % of the total liability apportioned to all parties.”  Since this case has not yet been decided, there remains the potential for one party to have more than 60 % of the total liability allocated to them.
We find no reason to strike the allegations set forth in Paragraphs 79, 82 and 96 of the Complaint.  We find nothing improper with Raiger specifying the nature of the liability alleged against the defendants in this matter. A plaintiff may file suit against multiple defendants and plead whether they intend to hold the defendants liable jointly, separately, severally, or in the alternative.  4 Standard Pennsylvania Practice 2d § 14.208, citing Pa.R.C.P. No. 2229(b); 4 Standard Pennsylvania Practice 2d § 23:23.  As noted by Raiger, it is entirely possible that one of the defendants could be found liable for not less than 60 % of the total liability apportioned to all the parties in accordance with Section 7102(a.1)(3).  Thus, these allegations are not scandalous or impertinent to Raiger’s claims and we will therefore overrule this Preliminary Objection.
Allegations of Negligence
Defendants next complain that several averments of the Complaint constitute general, non-specific, boilerplate claims of negligence which should be stricken and dismissed with prejudice:
• Failing to timely refer Mrs. Raiger to higher-level dental in general;
(Complaint, Paragraphs 84(j), 88(j), 92(j), and 96(j).)
• Failing to adequately and timely address Mrs. Raiger’s dental needs.
(Complaint, Paragraphs 84(q), 88(q), 92(q), and 96(q).)
Defendants request that these paragraphs be stricken from the Complaint so they will not be subject to future amplification of vague allegations of their negligence despite the expiration of the statutory limitation period as per Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983).
It is a function of a pleading to put the opponent on notice of what he will be called upon to meet at trial and to define the issues for trial. See 2 Goodrich-Amram 2d, section 1019:2.1 (2001).   Pa.R.C.P. 1019(a) requires a content of a pleading to set forth material facts on which the cause of action or defense is based in a concise and summary form. Allegations will withstand challenge under section 1019(a) where they contain averments as to all of the facts plaintiffs will have to prove to recover and disclose the sufficient specific facts to enable the adverse party to prepare his case. Smith v. Wagner, 403 Pa. Super. 316, 588 A.2d 1308 (1991); Baker v. Rangos, 229 Pa. Super. 333, 349, 324 A.2d 498, 505 (1974). Moreover, courts do not require minute detail in the pleadings but rather allegations of fact, if proven, which will support recovery in the case.

Pennsylvania Rule of Civil Procedure 1019(a) requires that a complaint state “material facts” to support the cause of action. “A cause of action in negligence has been defined as the negligent act or acts which occasioned the injury for which relief is sought.” Reynolds v. Thomas Jefferson University Hospital, 450 Pa. Super. 327, 338, 676 A.2d 1205, 1210 (1996). (citations omitted) “The Pennsylvania appellate courts have [stated] ‘while it is not necessary that the complaint identify the specific legal theory of the underlying claim, it must apprise the defendant of the claim being asserted and summarize the essential facts to support the claim.”’ Clarkson v. Geisinger Medical Center, 46 Pa. D. & C.4th 431, 435 (Montour Cty. 2000). (citation omitted) The Clarkson court stated that, “a physician charged with negligence and unskillfulness in the practice of his profession is entitled to be advised of the specific acts of commission or omission which constitutes the negligence and unskillfulness complained of, so that plaintiff’s proof may be confined to such acts, and so that he may reasonably prepare his defense.” Id.
Mansour v. Gnaden Huetten Memorial Hospital, 3 Pa. D. & C. 5th 149, 153-154, 2007 WL 5234151 (Monroe C.C.P. 2007).  In determining whether a particular paragraph in a complaint is stated with the necessary specificity, such paragraph must be read in context with all the allegations in the complaint. Only then can a court determine whether the defendant is put on adequate notice of the claim against which it must defend. Yacoub v. Lehigh Valley Med. Assocs., 805 A.2d 579 (Pa.Super.2002).
We agree with Defendants that these averments are overly broad and lack the specificity necessary to enable them to prepare a meaningful response or  defense.  Although we read Paragraphs 84(j), 88(j), 92(j), and 96(j) in the context of all of the allegations of the entire Complaint, we believe that Defendants are not sufficiently apprised of which higher-level dental care Raiger should have been referred to and what Raiger and at what point in time such referral should have been made.  With respect to the allegations of Paragraphs 84(q), 88(q), 92(q), and 96(q), we believe that the Defendants are entitled to know exactly which “dental needs” the allegations refer to, the manner in which Defendants should have addressed such needs, and, again, at what point in time Defendants should have taken such action.   Therefore, we will sustain this Preliminary Objection and grant Raiger leave to amend her Complaint to more specifically address these matters.
1 In their Preliminary Objections, Defendants had recognized Raiger’s cause of action for lack of informed consent set forth in Count V as an intentional tort, but argued that only the surgeon who performed the procedure could be held liable under that cause of action, that a defendant could not be held vicariously liable under that theory of recovery, and that the claim was inapplicable to corporations.  As Raiger has withdrawn Count V of the Complaint, we do not address these contentions.
 

About the author

Lebanon County Legal Journal has written 606 articles for Lebanon County Legal Journal

Search