Jose Echevarria, v. Inna Massaro, D.O., Cesar Baldeon, M.D., Stephen R. Whitmoyer, M.D., Ifeyinwa N. Echeazu, M.D., Lebanon Emergency-Medical Associates, LLC, Lebanon Imaging-Associates, P.C., and Good Samaritan Health-System, A/K/A/ WellSpan-Good Samaritan

Jose Echevarria, v. Inna Massaro, D.O., Cesar Baldeon, M.D., Stephen R. Whitmoyer, M.D., Ifeyinwa N. Echeazu, M.D., Lebanon Emergency-Medical Associates, LLC, Lebanon Imaging-Associates, P.C., and Good Samaritan Health-System, A/K/A/ WellSpan-Good Samaritan

 

Civil Action-Law-Medical Malpractice-Corporate Negligence-Hospital-Failure to Obtain STAT MRI scan-Cervical Spine Abscess-Paraplegia-Summary Judgment-Failure to Enforce Policies-Systemic Disregard of Stated Policies

 

Plaintiff brought an action in medical malpractice against the above-stated Defendants asserting that delay in diagnosing and treating a cervical abscess caused him to suffer paraplegia, neurogenic bowel and bladder and other medical conditions.  Good Samaritan Health-System, A/K/A WellSpan-Good Samaritan (“WellSpan”) lodged a Motion for Partial Summary Judgment seeking to dismiss the corporate negligence claim on the basis that the allegations establish ordinary negligence predicated upon failures by doctors to comply with its policies and procedures, not a failure upon a WellSpan to communicate or enforce its policies, such that the corporate negligence claim cannot be sustained.

 

1. Summary judgment may be entered only when there is no genuine issue of any material fact as to any necessary element of a cause of action.

 

2. In ruling upon a motion for summary judgment, the record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

 

3. The doctrine of corporate negligence holds that a hospital owes a non-delegable duty to uphold a proper standard of patient care within its facility.

 

4. To establish a claim of corporate negligence, a plaintiff must demonstrate the following elements: (1) the hospital deviated from the applicable standard of care; (2) the hospital had actual or constructive notice of the procedural defects that were a cause of harm; and (3) the hospital’s conduct was a substantial factor in causing harm to the patient.

 

5. Establishment of actual or constructive notice is critical, as the corporate negligence doctrine contemplates a kind of systemic negligence in the actions and procedures of the hospital itself rather than in the individual acts of its employees.

 

6. A hospital’s corporate negligence may be established not only by proof of lack of proper standards, but also by proof that physicians routinely failed to conform with the standards enunciated.

 

7. Failure to enforce stated policies can give rise to a valid corporate negligence claim.

 

8. The element of constructive notice may be established in a variety of ways, including the systemic disregard of stated policies.

 

9. A genuine issue of material fact exists as to the issue of corporate negligence against WellSpan to allow the claim to go to the jury in light of the record establishing that the physicians involved who failed to obtain directed STAT MRI scans of the claimant’s cervical and lumbar spines worked under the umbrella of WellSpan, one (1) emergency room physician did not have a clear understanding of her duties under WellSpan’s policies and procedures, the radiologist clearly felt he could ignore the policies and procedures with impunity and the fact that everyone involved appeared comfortable allowing thirteen (13) routine MRI scans to be prioritized over the MRI scans ordered STAT for Plaintiff.

 

L.C.C.C.P. No. 2018-00472, Opinion by Bradford H. Charles, Judge, March 31, 2022.

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

                                                                     

JOSE ECHEVARRIA                       :  NO. 2018-00472

                                                          :

1.              :

:

INNA MASSARO, D.O.                    : 

CESAR BALDEON, M.D.                 :

STEPHEN R. WHITMOYER, M.D.   :

IFEYINWA N. ECHEAZU, M.D.       :

LEBANON EMERGENCY-               :

MEDICAL ASSOCIATES, LLC       :

LEBANON IMAGING-                     :

ASSOCIATES, P.C.                         :

GOOD SAMARITAN HEALTH-       :

SYSTEM, A/K/A WELLSPAN-        :

GOOD SAMARITAN                         :

                                                                           

          ORDER OF COURT

 

AND NOW, this 31^st day of March, 2022, upon consideration of the arguments submitted by the parties and in accordance with the attached Opinion, the Motion for Summary Judgment filed by Defendant Good Samaritan Hospital Health System a/k/a/ WellSpan Good Samaritan is DENIED.  PLAINTIFF’s corporate negligence count will be submitted to a jury at the time of trial.

 

 

 

BY THE COURT:

 

 

 

BRADFORD H. CHARLES

BHC/pmd

cc:     Court Administration

James R. Ronca, Esq. // 120 N. 18^th Street, Suite 1600, Philadelphia, PA 19103

Michael E. McGilvery, Esq. // 2011 Renaissance Blvd., Suite 200, King of Prussia, PA 19406

Grace Doherty Hillebrand, Esq. & James A Doherty, Jr., Esq. // 217 Wyoming Avenue, Scranton, PA 18503

Ben Post, Esq. // 920 Cassatt Rd., 200 Berwyn Park, Suite 102, Berwyn, PA 19312

Carrie Evans, Esq. & Shaun J. Mumford, Esq.// 280 Granite Run Drive, Suite 300, Lancaster, PA 17601

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

                                                                     

JOSE ECHEVARRIA                       :  NO. 2018-00472

                                                          :

1. :

:

INNA MASSARO, D.O.                    : 

CESAR BALDEON, M.D.                 :

STEPHEN R. WHITMOYER, M.D.   :

IFEYINWA N. ECHEAZU, M.D.       :

LEBANON EMERGENCY-               :

MEDICAL ASSOCIATES, LLC       :

LEBANON IMAGING-                     :

ASSOCIATES, P.C.                         :

GOOD SAMARITAN HEALTH-       :

SYSTEM, A/K/A WELLSPAN-        :

GOOD SAMARITAN                         :

 

 

APPEARANCES

 

James R. Ronca, Esq.                   For Plaintiff

 

Ben Post, Esq.                                For Defendant Inna Massaro, D.O. and Emergency Medical Associates

 

Michael E. McGilvery, Esq.          For Defendant Stephen Whitmoyer, M.D. and Lebanon Imaging Associates

 

Grace Doherty Hillebrand, Esq.   For Defendant Cesar Baldeon, M.D.

James A. Doherty, Jr., Esq.

 

Carrie E. Evans, Esq.                    For Defendant Good Samaritan

Shaun J. Mumford, Esq.               Health System, a/k/a WellSpan

 

 

 

OPINION BY CHARLES, J. March 31, 2022

Before us is a question about the viability of a medical malpractice corporate negligence claim.  The PLAINTIFF alleges that the Defendant Good Samaritan Health System a/k/a/ WellSpan-Good Samaritan (hereafter WELLSPAN), created a “hollow” policy that was not followed consistently.  As such, PLAINTIFF believes that he should be permitted to pursue a claim of corporate negligence against WELLSPAN.  WELLSPAN responds by characterizing this dispute as involving ordinary negligence on the part of doctors who failed to comply with a clearly articulated hospital policy.  While we suspect that the latter scenario may ultimately depict the truth of what occurred, we cannot and will not take the question of corporate negligence from the hands of a jury.  Our reasons for this decision will follow.

 

 

 

1. Facts and Procedural History

 

On May 14, 2018, PLAINTIFF initiated a medical malpractice Complaint against numerous Defendants, including WELLSPAN.  PLAINTIFF alleged that on April 19, 2016, he presented to the WellSpan Emergency Department with complaints of neck and right arm pain and dysfunction.  On that date, he was discharged with instructions to follow-up with his primary care physician.  Twice more in the next two days, PLAINTIFF again visited the WellSpan Emergency Room.  A cervical CT scan was performed and was interpreted as negative.  He was instructed not to lift anything heavy and was discharged.

PLAINTIFF alleges that he again reported to the WellSpan Emergency Room on April 25, 2016.  During this visit, he saw a Physician Assistant who suspected a spinal abscess.  She ordered MRIs of the cervical and lumbar spine at approximately 12:30pm.  At 2:00pm, blood tests revealed a high white blood count.  At 2:22pm, a protein test revealed the possibility of an infection.  The infectious process was confirmed with another test at 3:18pm.

PLAINTIFF alleges that no MRI was performed until 8:00pm.  At that time, only a lumbar MRI was conducted.  At 9:15pm, the lumbar MRI results were reported as negative.

PLAINTIFF alleges that he suffered severe pain throughout the night of April 26, 2016.  He also alleges that by morning, he was having difficulty breathing.  At 8:56am, another physician ordered a “STAT” cervical MRI.  By 11:22am, the PLAINTIFF alleges that he was completely paralyzed.  At 11:39am, a neurologist responded to a rapid response call and again ordered a “STAT cervical MRI”.  The cervical MRI was not completed until 1:35pm.  PLAINTIFF alleges that this MRI confirmed a diagnosis of a spinal abscess.  Thereafter, PLAINTIFF was transferred to the Hershey Medical Center for an emergency C-3 laminectomy surgery.

PLAINTIFF alleges that the delay in diagnosing and treating his cervical abscess caused him to suffer “incomplete quadriplegia, neurogenic bowel, neurogenic bladder, muscle spasms, weakness, depression and anxiety.”  His lawsuit sought damages for medical expenses, loss of earnings and earning capacity as well as general damages.

On or about November 24, 2021, WELLSPAN filed a Motion for Partial Summary Judgment.  This Motion sought to dismiss PLAINTIFF’s corporate negligence claim.  The Motion pointed out that numerous physicians were directly sued by PLAINTIFF for their purported roles in causing the delay of diagnosis and treatment that PLAINTIFF believes caused his harm.  WELLSPAN pointed to various components of its health system policy and procedural manual.  The gravamen of WELLSPAN’s argument was summarized at page 4 of its brief:

“Upon close review, his [PLAINTIFF’s expert] concerns related to the hospital and to the running of its Imaging Department stem entirely from the conduct of Dr. Whitmoyer or other defendant providers.” (WELLSPAN’s brief at page 4).

 

Stated simply, WELLSPAN alleges that this should be considered a case of ordinary negligence predicated upon failures by doctors to comply with policies and procedures that WELLSPAN had put in place.

PLAINTIFF responded to WELLSPAN’s Motion for Partial Summary Judgment by arguing “there is overwhelming evidence in the instant matter demonstrating multiple and obvious corporate failures by WellSpan.”  (PLAINTIFF’s brief at page 15).  According to PLAINTIFF, WELLSPAN failed to communicate and enforce its own policies, thereby causing a significant delay in necessary diagnostic studies.  According to PLAINTIFF: “When the ball is dropped so many times, it is clear that the staff either does not know the rules or knows the hospital does not enforce them.”  (PLAINTIFF’s brief at page 18).

 

 

1. Standard for Summary Judgment

PA.R.C.P. 1035.2 governs Motions for Summary Judgment in Pennsylvania.  That Rule provides that Summary Judgment may be entered when there is no genuine issue of any material fact as to any necessary element of a cause of action.  Pa.R.C.P. 1035.2.  The purpose of a Motion for Summary Judgment is to “avoid a useless trial.”  Coleman v. Wyeth Pharmaceuticals, Inc., 6 A.3d 502, 509 (Pa. Super. 2010).

To defeat a Motion for Summary Judgment, the non-moving party must come forth with evidence to establish the existence of a material issue of fact pertaining to the cause of action.  Pa. R.C.P. 1035.2, explanatory note.  The record presented must be viewed in the light most favorable to the non-moving party and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.  Reliance Insurance Company v. IRPC Inc., 904 A.2d 912 (Pa. Super. 2006).  “Only when the facts are so clear that reasonable minds cannot differ may a trial court properly enter Summary Judgment.”  Reliance Insurance Company, supra at page 915.  On the other hand, Summary Judgment can be employed to weed out suspect legal claims for which there is a “substantive deficiency of proof”.  See, Grandelli v. Methodist Hospital, 777 A.2d 1138 (Pa. Super. 2001).

 

III.     Legal Standard Regarding Corporate Negligence

 

Corporate Negligence

Corporate negligence is a term that has come to be associated with lack of care by a hospital for a patient.  The term “corporate negligence” is almost universally associated with the landmark decision of Thompson v. Nason, 591 A.2d 703 (Pa. 1991).  In Thompson, Pennsylvania’s highest court declared that a hospital owes a non-delegable duty to uphold a proper standard of patient care within its facility.  When corporate negligence applies, a hospital is directly liable, contrasted with being vicariously liable, for its own negligent acts toward a patient.  See, Welsh v. Bulger, 698 A.2d 581 (Pa. 1997).  The doctrine of corporate negligence applies even where a physician whose negligence was directly involved in patient harm was not an employee of the hospital.  See, Thompson, supra.

Under the Thompson corporate negligence doctrine, a plaintiff must demonstrate the following elements:

• The hospital deviated from the applicable standard of care;
• The hospital had actual or constructive notice of the procedural defects that was a cause of harm; and
• The hospital’s conduct was a substantial factor in causing harm to a patient.

The second element outlined above has become the focus of many pre-trial legal disputes.  In fact, the second element has been described as “critical, as the corporate negligence doctrine contemplates a ‘kind of systemic negligence’ in the actions and procedures of the hospital itself rather than in the individual acts of its employees.”  Kennedy v. Butler Memorial Hospital, 901 A.2d 1042, 1045 (Pa. Super. 2006).  By virtue of the above, an examination of hospital conduct that transcends a specific event is often required to establish corporate negligence.  Moreover, expert testimony will almost always be required to establish a corporate negligence claim.  Whittington v. Episcopal Hospital, 768 A.2d 1144 (Pa. Super. 2001).

As the doctrine of corporate negligence has evolved, several Appellate decisions have made it clear that a hospital’s corporate negligence can be established not only by proof of lack of proper standards, but also by proof that physicians routinely failed to conform with the standards that were enunciated.  Rauch v. Mike-Mayer, 783 A.2d 815, 818 (Pa. Super. 2001).  This concept was perhaps best articulated in the case of Whittington v. Episcopal Hospital, supra:

“We begin by clarifying the ‘systemic negligence’ standard espoused by Episcopal throughout these proceedings….Here, the trial court performed an extensive analysis, which need not be recounted, on why proving ‘systemic negligence’ as mentioned in [Edwards v. Brandywine Hospital, 652 A.2d 1382 (Pa. Super. 1995)] is not a mandatory requirement but is an adequate way to establish notice and was a way appellees establish notice….After reviewing that analysis, Episcopal, on appeal, concedes that the systemic negligence standard in Edwards merely another way of saying that the hospital entity itself must have actual or constructive knowledge of a deviation of a standard care but that it lacked the requisite notice under any standard….We agree that ‘systemic negligence’ need not be proved to establish a prima facie case of corporate negligence…

 

Constructive notice must be imposed when the failure to receive actual notice is caused by the absence of supervision.  Had Episcopal undertaken adequate monitoring, it would have discovered that decedent had received and was continuing to receive medical treatment that was clearly deficient both before and after her delivery.  We are compelled to find constructive notice under these circumstances.”

Id at page 1154.

 

          Also pertinent to the dispute now before us is the case of Scampone v. Grane Healthcare Company, 11 A.3d 967 (Pa. Super. 2010).  Scampone involved a corporate negligence complaint against a nursing home.  The plaintiff alleged that the nursing home had not hired adequate staff needed to fulfill its own stated quality of care requirements.  The Superior Court held that this allegation was sufficient to enable a corporate negligence claim to be decided by a jury.  The Court stated:

“One of the duties expressly imposed under Thompson is to formulate, adopt, and enforce adequate rules and policies to ensure quality care for patients.  If a healthcare provider fails to hire adequate staff to perform the functions necessary to properly administer to the patient’s needs, it has not enforced adequate policies to ensure quality care.”

Id at page 977.[1] (emphasis applied)

 

          From the above, we glean two critically important principles that are directly implicated by the dispute now before this Court:

• Failure to enforce stated policies can give rise to a valid corporate negligence claim; and
• The element of constructive notice can be established in a variety of ways, including the systemic disregard of stated policies.

 

 

1. Analysis

 

As with most vigorously contested Summary Judgment Motions, the moving party in this case has presented compelling reasons why it should prevail.  However, and at the risk of emphasizing the obvious, a court cannot remove a decision from the jury if any “material issue of fact” exists.  In discerning whether this case falls within this category, we must examine the record in the light most favorable to the PLAINTIFF.  If, after doing so, we have any question about the outcome, our role requires us to hand the ultimate decision to a jury.

We have evaluated the totality of information presented to us.  In outline form, we have identified the following information that is relevant to PLAINTIFF’s corporate negligence claim:

• Physician’s Assistant Chelsea Armbruster diagnosed PLAINTIFF with a suspected spinal abscess almost immediately after his admission to the WellSpan Emergency Room. Armbruster ordered cervical and lumbar MRI scans at about 12:29pm on April 25, 2016.  A lumbar MRI occurred seven and one-half (7 ½) hours later.  The cervical MRI occurred nearly twenty-four (24) hours later.
• According to the hospital’s “STAT exam policy”, all orders from the Emergency Department must be prioritized and completed in a timely fashion. (Exhibit C to Motion for Summary Judgment). WELLSPAN’s corporate designee confirmed that test orders from the Emergency Department were to be promptly addressed.  (Shaver N.T. 56-59).
• Thirteen (13) routine MRI studies were performed at the hospital between the time that one was ordered for PLAINTIFF and the time that his lumbar study was conducted.
• Inna Massaro, who worked in the Emergency Department, testified that all test orders emanating from the Emergency Department should be considered “STAT”. However, Dr. Massaro stated that what constitutes a “STAT” time is dependent upon what was being ordered.  Dr. Massaro stated that she did not know a precise time frame for MRIs at WELLSPAN. (Massaro N.T. 22-23).
• Massaro stated that the common practice at WELLSPAN was if two imaging studies are ordered, but only one slot is available, only one of the two studies would be completed. The one to be conducted is the one that was “acutely needed on an emergent basis.”  Only if the first study could not identify the pathology would the second ordered study be done. (Massaro N.T. 34).
• Massaro acknowledged receiving training “about how they do things” at WELLSPAN. However, she could not identify details about the training.  Moreover, she did not know specific availability of after-hour MRI availability, or if everyone working under the WELLSPAN umbrella worked under the same rules as she did.  (Massaro N.T. 69-73).
• Another Emergency Department physician, Dr. Ifeyinwa Echeazu, was asked whether WELLSPAN had “rules or protocols for standards of practice.” Echeazu replied: “I don’t know.”  (Echeazu N.T. 40).
• Physician’s Assistant Chelsea Armbruster testified that she spoke with Radiologist Dr. Stephen Whitmoyer about the need for an MRI of PLAINTIFF’s spine because “I was clinically very concerned.” (Armbruster N.T. 39). Whitmoyer advised Armbruster that the MRI schedule for the day was busy and “he was not going to be staying any later for this fine, upstanding member of society…” (Armbruster N.T. 40).  According to Armbruster, Dr. Whitmoyer made the decision that the lumber spine MRI would be performed that same day, while the cervical spine MRI could wait until the morning.  (Armbruster N.T. 40-41).
• One of PLAINTIFF’s experts is Dr. John Ludgin. Ludgin included several pertinent opinions within his report:
• “Despite the urgent/emergency nature of Mr. Echevarria’s circumstance, the standard at Good Samaritan appears to be that scheduled routine studies continue and new requests will only be done if there is room on the schedule. In this case, there were thirteen routine outpatient studies done between the initial order by Ms. Armbruster and the MRI of Mr. Echevarria’s lumbar spine…Thirteen opportunities to “bump” a routine MRI in order to accommodate a patient with a suspected catastrophic illness and objective indicia of the harm it was already causing.”
• “Everyone knew (or should have known) that an abscess in the spine was the leading diagnosis. Everyone knew (or should have known) that this is a neurosurgical emergency AND that Good Samaritan did NOT have neurosurgeons on staff. With that diagnosis at the top of their list and with an uncooperative imaging service lead clinically by Dr. Whitmoyer refusing to “stay late” for this “upstanding member of society”, no one sought to just transfer Mr. Echevarria to Hershey on the 25^th…a hospital where the diagnostic studies could be performed and where they had staff that could surgically treat a spinal abscess.”
• “The ‘culture’ of an institution is how it does its work. For example, in the case of Mr. Echevarria, the hospital had a rigid, inflexible imaging schedule lead by a clinician (with an exclusive contract) who claims to have provided radiology consultation but without going to the effort to obtain the clinical information needed to appropriately triage patients needing MRI scans.  There are a myriad of like examples in this case of Jose Echevarria that demonstrate deep, ongoing, system failures.”
• “STAT derives from Latin and means ‘immediately’ and is in common use to mean ‘immediately, rush, urgent’…the antithesis of ‘routine’.” “The hospital failed to have in place an effective process to assure that stat studies were completed as requested and in a timely manner.”
• The hospital was negligent for “failing to effectively instruct its staff and contracted staff to go up the chain of command when hospital services foiled their efforts to exercise appropriate clinical judgment on behalf of their patients.”
• The hospital was negligent for “failing to have effective and accurate hand-offs between and amongst staff from different hospital services/locations.”
• Another expert procured by PLAINTIFF, Dr. David M. Mitchell, stated in his report that the hospital doctor involved in PLAINTIFF’s case during the daytime hours of April 25, 2016 did not communicate with the “nocturnist”, Dr. Ifeyinwa Echeazu at change of shift. Specifically, Dr. Mitchell stated: “Dr. Echeazu stated that he did not speak to Dr. Baldeon or receive any written information about the patient.  Accredited training programs in internal medicine are required to teach, among other things, appropriate transitions of care.”
• Mitchell also wrote in his report about his opinion that “The system failed this patient.” He stated: “From a system standpoint, the night nurse and Dr. Echeazu should absolutely have been informed of the seriousness of the suspected diagnosis and the critical nature of the clinical assessments that were warranted, but they were evidently not.”
• PLAINTIFF has procured an Emergency Department physician from Harvard Medical School by the name of Pierre Borezuk. Borezuk found WELLSPAN’s failure to provide a prompt MRI to be negligent.  He characterized the delay in obtaining an MRI as “significant” and he opined: “If an MRI could not have been performed in a STAT fashion, then it would have been standard of care to transfer the patient to another Emergency Department (HMC) where the patient could have both definitive imaging and definitive treatment.”  Dr. Borezuk also referenced in his report that numerous routine MRIs were conducted before one was afforded to PLAINTIFF.  He stated: “There was an egregious lack of effort, coordination, exigency in obtaining any MRI.”
• PLAINTIFF’s expert radiologist, Dr. Bruce M. Distell, also wrote in his report about an “egregious” delay in obtaining diagnostic MRI testing. In fact, Dr. Distell stated: “The comment by the radiologist that he would not stay after hours to care for an IV drug abuser is not only reprehensible and a direct insult to the Hippocratic Oath, but a clear dereliction of duty.”  Like PLAINTIFF’s other experts, Dr. Distell was highly critical of the hospital’s decision to prioritize routine MRIs over the “STAT” MRI ordered for PLAINTIFF.

Considering everything outlined above, we conclude that a jury should decide the issue of corporate negligence.  To be sure, a compelling argument can be made that the decision of Dr. Whitmoyer to delay the cervical MRI and the decision of Dr. Massaro to not press the issue were the primary causes of the cervical MRI delay.  However, the individual decisions of Dr. Whitmoyer and Dr. Massaro cannot be evaluated in a vacuum.  Both doctors worked under the umbrella of WELLSPAN.  Dr. Massaro did not have a clear understanding of her duties under WELLSPAN’s policies and procedures.  Dr. Whitmoyer clearly felt that he could ignore those policies and procedures with impunity.  Moreover, everyone involved was comfortable allowing routine MRIs to be prioritized over one that was ordered “STAT”.  And, yes, we consider each of the thirteen routine MRIs that were prioritized over PLAINTIFF’s MRI to be evidence of “systemic” disregard of hospital policies and procedures.

Ultimately, we cannot justify removing the corporate negligence claim from consideration by a jury.  Given all of the facts presented to us via WELLSPAN’s Motion for Summary Judgment, we believe that material disputes of fact exist and that the ultimate viability of PLAINTIFF’s corporate negligence claim remains far from clear.  Therefore, we will deny WELLSPAN’s Motion for Summary Judgment and will allow a Lebanon County jury to decide the issue at trial.

 

[1] Scampone was appealed to Pennsylvania’s Supreme Court.  The Supreme Court issued a decision on grounds unrelated to the principles outlined above. See, 57 A.3d 582 (Pa. 2012).