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2023 PA Super 170

BOBBI JO SINORACKI,

INDIVIDUALLY, AS THE

ADMINISTRATRIX OF THE ESTATE OF

DAVID SINORACKI, DEC ’ D, AND AS

PARENT AND NATURAL GUARDIAN

OF D.S., A MINOR, MADISON

SINORACKI, AND MEGAN SINORACKI

Appellant

v.

THE CHILDREN ’ S SERVICE CENTER

OF WYOMING VALLEY, KIDSPEACE,

KIDSPEACE CHILDREN ’ S HOSPITAL,

INC., KIDSPEACE CORPORATION,

KIDSPEACE CO RPORATION,

KIDSPEACE NATIONAL CENTERS OF

PA, INC., KIDSPEACE NATIONAL

CENTERS, INC., KIDSPEACE

NATIONAL CENTERS, INC.,

KIDSPEACE SERVICES, INC.,

KIDSPEACE PSYCHIATRIC HOSPITAL,

MUHAMMAD A. KHAN, M.D.

v.

DIANE HOCKENBERRY AND LEE

HOCKENBERRY, INDIVIDUA LLY AND

AS PARENTS AND NATURAL

GUARDIANS OF Z.H., A MINOR :

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1064 MDA 2022

Appeal from the Order Entered June 21, 2022

In the Court of Common Pleas of Luzerne County

Civil Division at 2018

- 06389, 2018

- 10415

BOBBI JO SINORACKI,

INDIVIDUALLY, AS THE

ADMINISTRATRIX OF THE EST. OF

DAVID SINORACKI, DEC ’ D, AND AS :

:

:

:

: IN THE SUPERIOR COURT OF

P ENNSYLVANIAJ

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PARENT AND NATURAL GUARDIAN

OF D.S., A MINOR, M.S. AND M.S.

Appellant

v.

DIANE AND LEE HOCKENBERRY,

INDIVIDUALLY AND AS PARENTS

AND NATURAL GUARDIANS OF Z.H.,

A MINOR :

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: No. 1065 MDA 2022

Appeal from the Order Entered June 21, 2022

In the Court of Common Pleas of Luzerne County

Civil Division at 2018

- 06389

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E. *

OPINION BY MURRAY, J.: FILED SEPTEMBER 19, 2023

In these consolidated appeals, Bobbi Jo Sinoracki , individually and as

administratrix of the estate of David Sinoracki

, and as parent/guardian of

D.S.

, Madison Sinoracki , and Megan Sinoracki ( Appellant)

, appeal s from the

orders respectively granting (1) the motion for judgment on the pleadings

filed by Children’s Service Center of Wyoming Valley (CSC or Center) ; and (2)

the motion for summary judgment filed by CSC employe e Muhammad A.

Khan, M.D. (Dr. Khan). 1 After careful consideration, we affirm.

The trial court thorough ly detailed the underlying fact s as follows :

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 We collectively refer to Dr. Khan and CSC as Defendants.J

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- At a young age, Z.H. was diagnosed with an inoperable

arteriovenous malformation ( “ AVM ” ) in the left occipital region of

his brain. An AVM is an abnormal tangle of arteries and veins that

can develop in the brain and cause neuropsychological

disturbances, including schizophrenic and erratic psychotic

behavior. Since his diagnosis, Z.H. ’ s AVM increased i n size,

causing vision problems, increased headaches, and pain.

The assistance of CSC was sought as Z.H. ’ s behavior

became increasingly erratic and aggressive. CSC operates a

pediatric mental and behavioral health practice and offers walk

in, telephonic, and mobile crisis intervention services. Throughout

his treatment with CSC [, Z.H.’s] providers diagnosed him with

attention deficit/hyperactivity disorder and oppositional

- defiant

disorder.

On August 25, 2014, Z.H. had an initial evaluation with CSC

by Paul Termini, M.D., who noted that Z.H. had increasing

behavioral disturbances which included substance abuse, school

suspensions, self

- injurious behavior, and physical assaults. Dr.

Termini further noted concerns of ongoing anger issues.

On February 20, 2015, Z.H. underwent a second evaluation

with CSC by Shiva Rezvan

- Homami, PSA. Z.H. ’ s anger issues and

substance abuse persisted. Concerns for the safety of [Z.H.’s ]

brother due to [Z.H.’s] aggressive behavior was noted.

On May 13, 2015,

... Dr. Khan [ ] , with CSC, became aware

of Z.H. ’ s substance abuse and noted that Z.H. had anger outbursts

at home and was destructive and combative. Dr. Khan frequently

saw Z.H. and managed his medications throughout his treatment

with CSC. On July 9, 2015, Dr. Khan n oted no change in Z.H. ’ s

behavior after beginning to take the antipsychotic, Abilify. It was

noted that Z.H. made no connection between information he was

given and that he did not pay attention.

On August 11, 2015, Z.H. presented to Geisinger [Medical

Center,] where he admitted to drinking one half of a bottle of

v odka by himself with the intention of harming himself and

verbalized that he “ didn ’t want to live anymore. ” Z.H. also

explained that he had suicidal ideations when he drank. Furthe r,

Z.H. struck his head repeatedly [,] which could have resulted in

severe injury or death due to his AVM. Consequently, GeisingerJ

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noted suicidal ideations.

On August 17, 2015, Z.H. had a third psychological

evaluation with Dr. Rezvan

- Homami, who noted c ontinued

behavioral disturbances, continued suicidal ideations, self

injurious conduct, increased and severe aggression, paranoia, and

anger. Dr. Rezvan

- Homami further noted that “ it was a miracle

that [ Z.H. ] has not been hospitalized, has not been sent t o rehab,

or arrested. ”

On August 22, 2016, Z.H. presented to CSC and was seen

by Dr. Khan [,] who noted that Z.H. has been completely off his

medication since January, 2016, was not going to school and was

isolating himself, not eating, and very depressed, still abusing

substances, and angry. Z.H. also showed signs of paranoia,

thinking people were after him, and schizophrenia, by talking to

himself. It was further noted that his insight and judgment were

poor. Abilify was prescribed.

On August 23, 2016, Z.H. threatened to kill his father.

Z.H. ’ s parents called the police, who forcibly restrained Z.H. and

brought him back to Geisinger for evaluation, bagged with a “ spit

hood ” and handcuffed due to his aggressive behavior. On

presentation to the e mergency d epartment, security was called

and Z.H. was placed in four

- point restraints. While at Geisinger,

Z.H. ’ s parents reported that he had been presenting with

paranoia, mood swings, anger, and behavioral issues for three and

a half days prio r. They further reported delusions suffered by

Z.H., some of which he had acted upon, such as him throwing up

his medications because of a belief that his mother was poisoning

him, paranoia about cars and trucks near his house in that he

thought that some one was going to harm him, and a desire to kill

his father because of a belief that his father was assaulting his

mother. While at Geisinger, a CT scan was performed which

showed that the AVM had steadily increased in size since 2008,

but that there was n o acute abnormality.

... Additionally, in a

discussion with Dr. Ichord, with the Children ’ s Hospital of

Philadelphia, Todd J. Holmes, M.D., with Geisinger, was told that

Z.H. should be treated like “ any brain injured patient with

neuropsychiatric manifesta tion. ”

Later the same day, Z.H. was transferred to KidsPeace for

homicidal ideations and paranoia. While there, his psychiatrist

was Mahmoud Elfatah, M.D. Z.H. reported that a [J] eep stoppedJ

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in front of his house and he threw rocks to attack it because he

felt someone was after him. The psychiatric evaluation revealed

that Z.H. had punched his brother and had anger problems, [and]

had markedly impaired insight and judgment. Dr. Elfatah also

noted that Z.H. was increasingly suspicious and parano id and

attributed it to Z.H. ’ s marijuana use. Z.H. was refusing to stay

and aggressively pushed through several staff members and was

slamming his body against the door. Z.H. was continually

aggressive towards the staff members and had even assaulted

ano ther patient by punching him without provocation. Z.H. was

restrained at one point and was placed in a safe room. During his

stay [,] Dr. Elfatah changed Z.H. ’ s medication from Abilify to

Seroquel, another anti

- psychotic medication. On August 25,

2016

, D r. Elfatah and others discharged Z.H. to Family Based

Services at CSC after determining that Z.H. no longer displayed

homicidal ideation.

On August 26, 2016, Z.H. was [ riding in the front

passenger’s seat of] his mother [ ’ s vehicle when he ] grabbed the

steering wheel and drove into oncoming traffic [,] crashing the car

because he believed someone was watching him. Z.H. ’ s parents

immediately sought to have him readmitted to KidsPeace that

same day. His mother further reported that he had run into traffic

attempting to harm himself. Z.H. was readmitted for homicidal

ideations, paranoia, and explosive behaviors. Z.H. was refusing

medication, had increasing paranoia, made threats, and continued

to express the belief that he was being poisoned by his mother

and that others were watching him. Dr. Elfatah noted that Z.H.

was “ floridly psychotic, ” that Z.H. ’ s AVM had neurocognitive

effects, and that Z.H. had recently received a “ grim report ”

regarding the prognosis of his medical condition and [th e report]

coincided with his increasingly reckless behavior. As a result of

Dr. Elfatah ’ s evaluation [,] Z.H. was diagnosed with mood

dysregulation disorder, cannabis

- induced psychotic disorder, and

cannabis use disorder. Z.H. was rated a low risk on the homicide

risk assessment score.

On August 29, 2016, while Z.H. was still at KidsPeace, Katie

Lennon, Z.H. ’ s social worker, noted that Z.H. was struggling to

adjust to the program and demonstrated noncompliance with

following basic rules and expectations. He was determined to not

be ready for family interaction. He was highly anxious, easily

agitated, and disorganized in his thoughts. On September 1,

2016, Z.H. ’ s parents visited him for a family session. He becameJ

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angry and threw a chair a gainst a wall and broke a toilet paper

dispenser. Z.H. continued to display worsening behavior and

limited signs of improvement for the duration of his fourteen

- day

admission.

...

In [Z.H.’s] discharge summary, completed by Andrew Clark,

M.D., it was beli eved that the neuropsychiatric implications of

Z.H. ’ s AVM and marijuana use were difficult to discern. His

prognosis was fair and it was noted that his AVM was a significant

stressor and that further drug use interacting with his AVM risked

his psychiatri c stability. Ms. Lennon, at one point during the

discharge process, instructed Z.H. ’ s parents to follow an

“ emergency crisis plan ” and to attempt to persuade Z.H. to “ use

coping skills to manage the situation and maintain safety, ” such

as taking a 5

- minut e break, reading, listening to music,

... and

remaining positive. Z.H. was ultimately discharged home.

On September 8, 2016, the night of his discharge, Z.H.

stayed awake all night and sat on his front porch due to paranoia

that someone was going to hurt him or his family. On September

9 and 10, 2016, Z.H. ’ s parents continuously called KidsPeace and

CSC

, advising them of Z.H. ’ s continued behavior. Ms. Lennon

noted that she spoke with Z.H. ’ s mother and that Z.H. had again

been aggressive towards [Z.H .’ s ] father and made threats towards

him again. She further noted that Z.H. was awake until 6 AM

sitting on the front porch with a pile of rocks “ feeling like someone

was going to come to the house and harm them. ” He was also

noted to be difficult to dee scalate and was refusing to attend his

therapy appointments. The recommendation was to proceed to

the visits at CSC.

Z.H. ’ s mother took him to CSC [on September 10, 2016, ] to

see Dr. Khan. Dr. Khan knew that Z.H. had been admitted twice

to KidsPeace and of the [August 26, 2016

, ] car incident that took

place between admissions

.... Dr. Khan was also aware that Z.H.

was smoking marijuana, acting “ bizarrely, ” had cognitive

impairment as a result of his AVM, that he was admitted to

KidsPeace a second time for increasing paranoia and aggression,

that Z.H. ’ s medication had been recently switched from Abilify to

Seroquel, and that he stayed awake all night with a pile of rocks

ready to protect himself and his family.

Following this visit, Z.H. ’ s parents continued to call

KidsPeace and CSC, including CSC ’ s crisis intervention services.J

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On September 10, 2016, a counselor with CSC spoke with Z.H. ’ s

mother and provided several options on how to address her

concerns. The counselor advised that she would come to the

house to respond to the crisis the following day.

At no time from discharge on September 8, 2016 to

September 11, 2016 did CSC or KidsPeace, or their agents and/or

employees consider or pursue involuntary commitment of Z.H.

On September 11, 2016, Z.H. ’ s father saw his son leave the

front porch and driveway moments before

... Z.H. entered the

Sinoracki f amily ’ s home and violently assaulted Bobbi Jo, Megan,

and David [Sinoracki] with a kitchen steak knife.

... Shortly

thereafter, Z.H. ’s fath er entered the Sinoracki f amily ’ s home and

forcibly restrained [Z.H. ] on a chair in the living room. The police

responded to the scene and took Z.H. into custody. Ultimately,

David Sinoracki succumbed to his injuries.

Trial Court Opinion, 11/4/22, at 1

- 7 (some capitalization modified).

Appellant initiated this negligence action against Defendants ( and other

parties not relevant to this appeal )

, by w rit of s ummons filed September 7,

2018. Appellant filed a complaint on December 18, 2018. CSC filed an answer

on January 21, 2019 . O n October 10, 2019, CSC filed a motio n for judgment

on the pleadings . T he trial court granted CSC’s motion on July 10, 2020

. On

February 23, 2022, following discovery, Dr. Khan filed a motion for summary

judgment

. The trial court granted Dr. Khan’s motion on April 20, 2022.

On June 21, 2022 , Appellant filed a “P raecipe to M ark S ettled,

D iscontinue d, and E nded, ” regarding Appellant ’ s claims against the remainingJ

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Defendants. 2 This timely appeal followed. Appellant and the trial court have

complied with Pa.R.A.P. 1925.

Appellant present s two issues for review:

1. Did the trial court err in dismissing [Appellant’ s ] negligence

claims against Dr. Khan on the ground that he owed n o duty

applicable to this case under common law, where the record

establishes that Dr. Khan undertook to provide medical

professional services to [Z.H.] for the protection of others, both

generally and as relates to [Appellant] , and therefore Dr. Khan

unde rtook a corresponding duty of care under Pennsylvania

law?

2. Did the trial court err in dismissing [Appellant’ s ] negligence

claims against the Center on the ground that it owed no duty

applicable to this case under common law, where the complaint

alleges th at the Center undertook to provide professional

services to [Z.H.] for the protection of others, both generally

and as relates to [Appellant] , and therefore the Center

undertook a corresponding duty of care under Pennsylvania

law?

Appellant ’ s Brief at 4.

Preliminarily, we note Appellant’ s brief does not comply with Pa.R.A.P.

2119(a), which requires the argument section

be divided into as many parts as there are questions to be ar gued;

and shall have at the head of each part

- in distinctive type ...

- the particular point treated therein, followed by such discussion

and citation of authorities as are deemed pertinent.

Id. Appellant’ s a rgument headings do not correspond to the issues

.

N onetheless , we overlook th e defect and address Appellant’ s issues together

.

_________________ __________ ______ ____ _______

2 “ A praecipe to discontinue constitutes a final judgment .” Levitt v. Patrick

, 976 A.2d 581, 587 (Pa. Super. 2009) (citation and brackets omitted).J

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Appellant claim s she established that Defendants owed the Sinoracki

family a duty of reasonable care , and thus the trial court erred in granting Dr.

Khan’s motion for summary judgment and CSC’s motion for judgment on the

pleadings

. See Appellant’ s Brief at 22

- 69.

I n reviewing the grant of summary judgment , we recognize :

[S]ummary judgment is only appropriate in cases where there are

no genuine issues of material fact and the moving party is entitled

to judgment as a matter of law. Pa.R.C.P. 1035.2(1). When

considering a motion for summary judgment, the trial court must

take all facts of record[,] and reasonable inferences therefrom[,]

in a light most favorable to the non

- moving party[,] and must

resolve all doubts as to the existence of a genuine issue of material

fact against the moving party. An appellate court may reverse a

g rant of summary judgment if there has been an error of law or

an abuse of discretion. Because the claim regarding whether

there are genuine issues of material fact is a question of law, our

standard of review is de novo and our scope of review is plenary.

Nicolaou v. Martin

, 195 A.3d 880, 891

- 92 (Pa. 2018) (some citations

omitted)

. “ Only when the facts are so clear that reasonable minds could not

differ can a trial court properly enter summary judgment.” Straw v. Fair

,

187 A.3d 966, 982 (Pa. Super. 2018) (citation omitted).

As to judgment on the pleadings :

Entry of judgment on the pleadings is permitted under

Pennsylvania Rule of Civil Procedure 1034, which provides that

“after the pleadings are closed, but within such time as not to

unreasona bly delay trial, any party may move for judgment on

the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on the

pleadings is similar to a demurrer. It may be entered when there

are no disputed issues of fact and the moving party is entitled to

judgm ent as a matter of law.

Appellate review of an order granting a motion for judgment on

the pleadings is plenary. The appellate court will apply theJ

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same standard employed by the trial court. A trial court must

confine its consideration to the pleadings and relevant

documents. The court must accept as true all well pleaded

statements of fact, admissions, and any documents properly

attached to the pleadings presented by the party against whom

the motion is filed, considering only those facts which were

sp ecifically admitted.

We will affirm the grant of such a motion only when the moving

party’s right to succeed is certain and the case is so free from

doubt that the trial would clearly be a fruitless exercise.

Kote v. Bank of N.Y. Mellon , 169 A.3d 1103, 1107 (Pa. Super. 2017)

(citation omitted).

The crux of this appeal is whether Defendants owed a duty to the

Sinoracki family . This issue presents a question of law, for which our standard

of review is de novo and o ur scope of review is plenary. Maas v. UPMC

Presbyterian Shadyside , 234 A.3d 427, 436 (Pa. 2020)

.

Appellant argues :

U nder Pennsylvania law, when a physician voluntarily undertakes

to act within the doctor

- patient relationship for the protection of a

non

- patient third party, the physician assumes a corresponding

duty of reasonable care to any third party who is within the

orbit of harm

.

Appell ant’s Brief at 22 (emphasis added) (citing DiMarco v. Lynch Homes

Chester County, Inc.

, 583 A.2d 422

, 425 (Pa

. 1990) ). According to

Appellant,

Dr. Khan and the Center voluntarily undertook to act for the

protection of [Z.H.] and others within his orbit of harm when

treating [Z.H.] for his homicidal ideations and the Defendants

thereby assumed a duty to act reasonably within the scope of that

unde rtaking.J

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Appellant’ s Reply Brief at 1

- 2 ; see also Appellant’ s Brief at 54 ( clai m ing

Defendants’ “ undertaking with respect to [Z.H.] summoned a duty to act for

the protection of everyone within [Z.H.’s] orbit of harm

– including the

Sinoracki family....” ).

Appellant further asserts there is a

l ong

- tenured principle of Pennsylvania law that the voluntary

choice to undertake obligations within the context of medical

treatment for another’s protection brings forward the duty of

reasonable care applicable not just to a patient but to third parties

as well.

Id. at 36. In support, Appellant relies primarily on DiMarco

, supra

, as well

as Matharu v. Muir

, 86 A.3d 250 (Pa. Super. 2014) ( en banc ), and Troxel

v. A.I. Dupont Inst

. , 675 A.2d 314 (Pa. Super. 1996). See Appellant ’ s Brief

at 3 0

- 36

, 54 ; Appellant’ s Reply Brief at 12

.

Appellant recognizes that the “record evidence established [Z.H.] posed

an imminent threat of harm an d homicide to people arou nd him, but he had

not explicitly threatened the Sinoracki family....” Appellant’s Brief at 45.

However

, Appellant claim s :

The record establishes Dr. Khan actually knew or should

have known that the possibility [Z.H.] would hurt others was

not merely theoretical, and that [Z.H.] posed a

demonstrated risk of harm to persons near him when

experiencing paranoia

- driven symptoms. Indeed, [Z.H.’s]

violent and paranoid actions known to Dr. Khan obviousl y

represented a danger not just to [Z.H.,] but to anyone in

[Z.H.’s] immediate orbit wherever [Z.H.] happened to be.

Those non

- patients included [Z.H.’s]

... neighbors as

evidenced by [Z.H. ’s ] p attern of sitting outside his house

with a pile of rocks nearby.J

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Id. at 53

- 54. Appellant a ssert s

, “ I n these circumstances, the appropriate

course of action involved [Z.H.’s] hospitalization and other type of

management....” Id. at 45 ; see also Appellant’ s Reply Brief at 15

( “Defendants

... breach [ ed their] duty when they failed to hospitalize [Z.H.]

and pursue other treatment as his mental condition devolved.”).

Defendants argue the trial court did not err because Appellant failed to

establish they owed a duty of care to the Sinoracki family

. 3 According to

Defendants

, DiMarco

, Matharu

, and Troxel are distinguishable and

unavailing . CSC Brief at 17

- 22 ; Dr. Khan Brief at 13

- 17 ; Amicus Brief at 9

-

14. Defendants clai m Appellant’ s proposed duty of care is not support ed by

precedent, and its scope is not limited to reasonably foreseeable harm . CSC

Brief at 22

- 27; Dr. Khan Brief at 5 ( stat ing Appellant “seek [s] the creation of

a new, never

- before

- imposed duty on mental health providers to pr otect third

parties from harm by their patients ,” which “would stretch foreseeability

concepts beyond all limits....” (quotation marks omitted) ); Amicus Brief at 15

(“[Appellant’ s ] proposed duty

... has no limits, and would exist anytime a

patient under treatm ent for mental illness harms anyone.”).

The Pennsylvania Supreme Court has stated that Emerich v.

Philadelphia Ctr

. for Human Dev

. , 720 A.2d 1032 ( Pa. 1998), is the

“ seminal case setting forth a mental health professional’s duty to warn third

_________________ __________ ______ ____ _______

3 The American Medical Association and the Pennsylvania Medical Society have

filed a brief advocating on behalf of Defendants ( Amicus Brief).J

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parties.” Maas , 234 A.3d at 437. T he Emerich Court “ concluded the special

relationship between a patient and mental health professional may, in limited

circumstances, give rise to an affirmative duty to warn a third party of

potential harm caused by his patient. ” Id. at 437

– 38 (citation omitted)

.

Pertinently:

The facts underlying Emerich were that, in the space of thirty

minutes, a psychiatric patient (Joseph) told his therapist he was

going to kill his former girlfriend, identified by Joseph and known

to the therapist as Teresa Hausler. The therapist immediately

advised Hausler to stay away from Joseph, without specifically

telling her he planned to kill her. Hausler ignored the therapist’s

warning to stay away and Joseph shot her to death. Ultimately,

the Emerich Court determined the therapist had a duty to warn

Hausler, satisfied the duty by telling her to stay away, and

affirmed the dismissal of the case on summary judgment.

Emerich

, 720 A.2d at 1045. The Court summarized its holding

as follows:

[I]n Pennsylvania, based upon the special relationship

between a mental health profess ional and his patient,

when the patient has communicated to the professional

a specific and immediate threat of serious bodily injury

against a specifically identified or readily identifiable third

party and when the professional, determines, or should

det ermine under the standards of the mental health

profession, that his patient presents a serious danger of

violence to the third party, then the professional bears a

duty to exercise reasonable care to protect by warning

the third party against such danger.

Id. at 1043.

The Emerich Court began its legal analysis by observing the

general common

- law rule stating there is no duty to control the

conduct of a third party to protect another from harm. Emerich

, 720 A.2d at 1036. Emerich recognized an exception to that rule:

“ where a defendant stands in some special relationship with either

the person whose conduct needs to be controlled or in a

relationship with the intended victim of the conduct, which givesJ

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to the intended victim a righ t to protection. ” Id. ( citing

Restatement (Second) of Torts § 315 (1965)). Relying in part on

Tarasoff [ v. Regents of Univ. of California

, 551 P.2d 334, 340

(Cal. 1976) ], the Emerich Court concluded the special

relationship between a patient and mental health professional

may, in limited circumstances, give rise to an affirmative duty to

warn a third party of potential harm caused by his patient. Id. at

1037.

In Tarasoff

, ... the patient did not expressly identify his

threatened victim by name, but from the context of the threat,

the therapist could “ readily identify ” who she was. Emerich

, 720

A.2d at 1036. The Emerich Court explained Tarasoff recognized

a duty to “ protect ” a readily identifiable third party from the

violent acts of a patient, and that “ a duty to warn is subsumed in

this broader concept of a duty to protect. ” Emerich

, 720 A.2d at

1037 n.5. “‘ The discharge of this duty may require the therapist

to take one o r more of various steps, depending on the nature of

the case. Thus, it may call for him to warn the intended victim or

others likely to apprise the victim of the danger, to notify the

police, or to take whatever other steps are reasonably necessary

under the circumstances. ’” Id.

, quoting Tarasoff

, 551 P.2d at

340. The Emerich Court addressed the issue of duty only “ in the

context of a duty to warn[,] ” and left for another day whether

“ some broader duty to protect ” should be recognized. Id.

Specifically regarding the duty to warn, the Emerich Court

stated: “ We find, in accord with Tarasoff

, that a mental health

professional who determines, or under the standards of the

mental health profession, should have determined, that his

patient presents a serious danger of violence to another, bears a

duty to exercise rea sonable care to protect by warning the

intended victim against such danger.” Emerich , 720 A.2d at

1040.

Notably, the Emerich Court further held “the circumstances

in which a duty to warn a third party arises are extremely limited.”

Id. at 1040. Before the therapist’s duty is triggered, the patient

must communicate a “specific and immediate threat” against “a

specifically iden tified or readily identifiable victim .” Id.

[( emphasis added).]

... The Emerich Court noted, “as a practical

matter, a mental health care professional would have great

difficulty in warning the public at large of a threat against an

unidentified person. Even if possible, warnings to the general

public would produce a cacophony of wa rnings that by reason ofJ

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their sheer volume would add little to the effective protection of

the public.” Id. at 1041 [(citation and quotations omitted).]

Maas , 234 A.3d at 43 7

- 3 8 (footnote omitted)

.

I n Maas

, the Pennsylvania Supreme Court affirmed the denial of a

motion for summary judgment filed by mental health treatment providers.

The mental health patient in Maas had lived in a forty

- unit apartment building

and repeatedly told his doctors and therapists h e would kill an unnamed

“neighbor.” Id. at 429

. The patient “ ultimately carried out his threat, killing

an individual who lived in his building, a few doors away from his own

apartment.” I

d. The victim’s mother initiated a wrongful death action against

the providers

. Id. The providers sought summary judgment on the basis that

they had no duty to warn about the threats because the patient never

“ expressly identified a specific victim. ” Id. In affirming the denial of summary

judgment

, the Supreme Court observed the providers’

core contention ... is that the “ neighbors ” against whom [ the

patient] articulated murderous threats were not an enumerated

and readily identifiable group of [apartment] residents, but

instead, consisted of a large, amorphous, unidentifiable group of

the pub lic at large.

Id. at 438

- 39. The Court explaine d :

[T] he duty to warn applies not only when a specific threat is made

against a single readily identifiable individual, but also when the

potential targets are readily identifiable because they are

members of a specific and identified group

— in this case,

“neighbors” residing in the patient’s apartment building. In these

circumstances, the potential targets are not a large amorphous

group of the public in general, but a smaller, finite, and relativ ely

homogenous group united by a common circumstance.J

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- 16

-

Id. at 439.

Mindful of the above authority, we address the case s on which Appellant

relies

. In DiMarco

, our Supreme Court considered

whether a physician owes a duty of care to a third party where

the physician fails to properly advise a patient who has been

exposed to a communicable disease, and the patient, relying upon

the advice, spreads the disease to a third party.

DiMarco

, 583 A.2d at 423. The medical professionals in DiMarco g ave a

patient incorrect medical advice about whether she had H epatitis B, a sexually

transmitted disease , and she subsequently transmitted the disease to plaintiff,

her paramour

. Id. Applying the Restatement (Second) of Torts § 324A

, 4 the

_________________ __________ ______ ____ _______

4 Section 324A provides:

§ 324A Liability to Third Person for Negligent Performance of

Undertaking

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 pers on 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 th ird person, or

(c) the harm is suffered because of reliance of the other or the

third person upon the undertaking.

R ESTATEMENT (S ECOND ) OF T ORTS , § 324A. This Court has stated: “ To state a

cause of action under Section 324A ..., a plaintiff must aver that the physician

(Footnote Continued Next Page)J

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- 23

- 17

-

DiMarco Court noted that for the patient to state a claim, the medical

professionals must have undertaken “to render services to another which

[they] should recognize as necessary for the protection of a third person,” a

principle the Court characterized as “ esse ntially a requirement of

foreseeability. ” DiMarco , 583 A.2d at 424 (quoting Cantwell v. Allegheny

Cty. , 483 A.2d 1350, 1353

- 54 ( Pa. 1984)). The Court held:

When a physician treats a patient who has been exposed to or

who has contracted a

... contagious dis ease, it is imperative that

the physician give his or her patient the proper advice about

preventing the spread of the disease.

... The patient must be

advised to take certain sanitary measures

.... Such precautions are

... taken to safeguard the health of others

. Thus, the duty of a

physician in such circumstances extends to those “ within the

foreseeable orbit of risk of harm.” Doyle v. S outh Pittsburgh

Water Co.

, ... 199 A.2d 875, 878 ( [ Pa. ] 1964).

DiMarco , 583 A.2d at 424 (emphasis and paragraph break omitted).

In Troxel

, the plaintiff ’ s friend and the friend ’ s baby had a contagious

disease

, cytomegalovirus (CMV). Troxel

, 675 A.2d at 316. P laintiff frequently

visited her friend and her friend ’ s baby during plaintiff ’ s pregnancy, unaware

of the CMV. Id. P laintiff subsequently contracted CMV

, and her baby died

from CMV

- related complications shortly after his birth. Id. P laintiff initiated

a wrongful death and survival action against her friend ’ s physician s

(defendants) for failing to advise the friend about the contagious nature of

_________________ __________ ______ ____ _______

has undertaken to render services to another which he should recognize as

necessary for the protection of a third person. ” Matharu

, 86 A.3d at 25 9

(citation and quotation marks omitted).J

- A20020

- 23

- 18

-

CMV. Id. This Court reversed the trial court’s order granting summary

judgment on the basis that defendants owed plaintiff no duty of care

. See i d.

at 321

- 23. Citing DiMarco

, this Court held

,

where [a] physician undertakes the treatment of a patient with a

communicable or contagious disease [, they have] ... a duty to

correctly inform the patient about the contagious nature of the

disease in order to prevent its spread to those who are within the

foreseeable orbit of risk of harm.

Id. at 322 ; see also id. at 323 (“ The standard of care for a physician who is

treating a patient with a communicable disease is to inform the patient about

the nature of the disease and its treatment, to treat the patient, and to inform

the patient how to prevent the spread of the disease to others .”)

.

Finally, in Matharu

, an en banc panel of this Court held that the non

patient plaintiff stated a negligence claim against physicians (defendants)

under Section 324A for failure to administer an injection to a patient / mother

(Mother) for the protection of Mother’s future, unborn children

. Matharu

, 86

A.3d at 2 6 0

- 61. We affirmed the trial court’s denial of defendants’ motion for

summary judgment

, holding :

Section 324A of the Second Restatement continues to require

physicians to provide reasonable care in the patient ’ s treatment

as is necessary for the protection of others, and establishes

liability to certain third

- parties when such reasonable care is

lacking. As such, [plaintiffs ’] claim that the failure to administer

[the injection] during Mother ’ s pregnancy

... in 1998 resulted in

the death of [a subsequent child ] in 2005 states a claim

under Section 324A

....

Matharu

, 86 A.3d at 2 6 0 ( citation omitted ). We con cluded :J

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- 23

- 19

-

A physician

- patient relationship existed between [defendants] and

Mother, and the allegation that the failure to provide reasonable

ca r e within this relationship to protect certain readily

identifiable third parties (including [Mother’s future children])

adequately states a claim under Section 324A.

Id. (emphasis added).

Consistent with the foregoing, we agree with Defendants ’ assessment

of D iMarco

, Troxel

, and Matharu as distinguishable and unavailing

. Rather,

we are persuaded by this Court’s decision in F.D.P. Ex Rel S.M.P. v. Ferrara

,

804 A.2d 1221 (Pa. Super. 2002). In Ferrara

, the plaintiffs were parents of

a child who had been sexually assaulted by a mentally ill neighbor ( assailant )

.

Id. at 1224. Plaintiffs appealed the trial court’s dismissal of their negligence

claims against the non

- profit corporations (defendants) that provided medical

treatment and housing to assailant

. Id. at 1223

- 24. This Court affirmed the

trial court’s grant of defendants’ preliminary objections based on defendants

owing the plai ntiff s no duty of care. Id. at 1228

- 29. We observed:

[Plaintiffs] invite us to apply the rationale in a line of cases

imposing liability on a physician for failing to properly advise a

patient who has a communicable disease when the patient relied

upon the improper advice and spread the disease to a third party.

DiMarc o v. Lynch Homes

- Chester County, Inc.

, 525 Pa. 558,

583 A.2d 422 (1990); Troxel v. A.I. Dupont Institute

, 450 Pa.

Super. 71, 675 A.2d 314 (Pa. Super. 1996).

Those cases [] are specifically limited to their

circumstances and impose liability due to the pec uliar nature of

communicable diseases, which involve a direct threat to public

health. Under the reasoning employed in those cases, liability is

premised upon the physician ’ s awareness that his advice

concerning the communicable disease is directly releva nt to its

spread to third parties. Thus, the duty is imposed because “ it is

imperative that the physician give his or her patient the properJ

- A20020

- 23

- 20

-

advice about preventing the spread of the disease. ” DiMarco

, 583 A.2d at 424. Moreover, those cases impose the duty pursuant

to Restatement (Second) of Torts, § 324A, which relates to an

actor who renders services under conditions where the actor

should recognize that the services are necessary for the protection

of a third person. Mental health service s are provided for the

protection of the patient. Furthermore, mental health patients do

not have a disease that is communicable to the public nor do they

present a peculiar threat to the public. The reasoning of those

cases is not applicable herein.

Fe rrara , 804 A.2d at 1229 (emphasis added)

. 5

We further emphasized :

Pennsylvania courts are reluctant to subject a person to

liability for the acts of a third party in the absence of

compelling circumstances

. Indeed, there are a number of

cases significantly analogous to the present one where the courts

have refused to impose such liability.

Id. at 1230 (emphasis added) ; see also id. at 1230

- 31 (discussing caselaw).

Instantly, the trial court opined :

Z.H. never verbally or otherwise identified a concrete group of

people to which [ the Sinoracki family ] may have been a part of,

as the target of his threats. ... [] Z.H. made a verbal threat to kill

his father, was consistently reported to be aggressive, had driven

his mother ’ s c ar into traffic, and threw rocks at passing cars. ...

[I]f [Z.H.’s] threat were to be to any identifiable group including

[ the Sinoracki family ,] it would be to the general public, including

cars passing by. ... [S]uch a group would not fall within the

confines of a “readily identified third party

, ” and so [Appellant’ s ]

claim relying on the application of a duty to warn must fail. ...

[T]here was nothing to suggest Z.H. was generally a threat to

people beyond those in vi ew and in his immediate environment.

For example, concerning Z.H. sitting with rocks in front of his

home, the record does not reflect that he was running after any

vehicles or acting aggressively towards vehicles that did not pass

by his home. Without a record reflecting [any basis for

_________________ __________ ______ ____ _______

5 Matharu is distinguishable for the reasons expressed in Ferrara

.J

- A20020

- 23

- 21

-

Defendants] to predict that Z.H. would go out of his way to assault

the Sinoracki family [,]

... the court cannot find that Z.H.’s threats

were against [ the Sinoracki family ] as a “readily identifiable

group.”

Trial Court Opinion, 11/4/22, at 18

- 19 (some capitalization modified).

T he trial court’s reasoning is supported by the record and law. See id. ;

see also Maas , 234 A.3d at 439 (limiting tort liability to “readily identifiable”

“potential targets”). As Appellant failed to establish that Defendants owed the

Sinoracki family a duty of care

, we conclude the trial court did not err in

granting Dr. Khan’s motion for summary judgment and CSC’s motion for

judgment on the pleadings

. See Ferrara

, supra ; Emeri ch

, 720 A.2d at 1036

(generally, there is no duty to control the conduct of a third party to protect

another from harm ); Troxel

, 675 A.2d at 321 (“ without a finding of duty, the

issue of breach of duty cannot be submitted to the jury.”)

.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09 /19/2023