J-A13006-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

ARTIS MITCHELL, AS THE 

ADMINISTRATOR OF THE ESTATE OF 

CAROLYN MITCHELL, DECEASED, 

IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellant 

v. 

HIGHLAND PARK CARE CENTER, LLC, 

OPERATING UNDER THE FICTITIOUS 

NAME HIGHLAND PARK CARE CENTER 

AND LUTHERAN SENIORLIFE, 

OPERATING UNDER THE FICTITIOUS 

NAME ST. JOHN SPECIALTY CARE 

CENTER, 

 Appellee No. 1057 WDA 2015 

Appeal from the Judgment Entered August 11, 2015 

In the Court of Common Pleas of Allegheny County 

Civil Division at No(s): GD-12-000832 

BEFORE: OLSON, STABILE AND MUSMANNO, JJ.: 

MEMORANDUM BY OLSON, J.: FILED AUGUST 24, 2016 

Appellant, Artis Mitchell, as the administrator of the estate of Carolyn 

Mitchell, deceased, appeals from the judgment entered on August 11, 2015. 

We affirm. 

The trial court succinctly explained the relevant, underlying facts and 

procedural posture of this case: 

[Appellant] brought a survival action alleging that Highland 

Park Care Center [(“HPCC”)] failed to create and implement 

a proper treatment care plan for [Carolyn Mitchell (“Ms. 

Mitchell”)], and failed to promptly notify a physician of a 

significant change in [Ms. Mitchell’s] condition. 
J-A13006-16 

- 2 - 

In 1992, [Ms.] Mitchell experienced cardiac arrest, resulting 

in a severe anoxic brain injury, which required her to need 

skilled nursing care on a full-time basis for the rest of her 

life. [Shorty thereafter, Ms. Mitchell became a resident of 

HPCC, which is a skilled nursing facility in Pittsburgh.] . . . 

[Appellant] claims specifically that in the weeks leading up 

to February 15, 2010, [Ms.] Mitchell experienced repeated 

episodes of emesis, which is vomiting, that went unreported 

to her physician. [Appellant] further claims that said 

episodes of emesis led to substances entering the lungs of 

Ms. Mitchell causing her to suffer aspiration pneumonia. 

[Appellant] further alleges that said negligence resulted in a 

downward spiral in the health of Ms. Mitchell, eventually 

resulting in her death on February 7, 2011. 

. . . 

This matter was initiated by the filing of a praecipe for writ 

of summons on January 12, 2012. Said praecipe was 

followed by a complaint in civil action filed [on] September 

17, 2012. . . . 

Prior to trial, [Appellant] settled his claims with defendant 

Lutheran Seniorlife, operating under the fictitious name of 

St. John Specialty Care Center. 

A trial commenced on March 18, 2015, lasting until March 

25, 2015, at which time the jury empaneled returned a 

verdict for [HPCC] and against [Appellant], finding an 

absence of negligence on the part of [HPCC. The trial court 

denied Appellant’s post-trial motion and judgment on the 

verdict was entered on August 11, 2015]. 

Trial Court Opinion, 10/1/15, at 1-3 (some internal capitalization omitted). 

Appellant filed a timely notice of appeal and, on appeal, Appellant 

raises the following claims: 

[1.] Did the trial court err in denying [Appellant’s] motion 

for judgment notwithstanding the verdict (“JNOV”) on the 

issue of negligence when the verdict was such that no two 

reasonable minds could disagree that the verdict should 
J-A13006-16 

- 3 - 

have been rendered in favor of [Appellant]? Specifically, 

based upon the evidence that was offered at trial, along 

with the fact that the Commonwealth of Pennsylvania

Department of Health (the “DOH”) specifically found that 

[HPCC] failed to promptly notify a physician of a significant 

change, which ultimately caused Ms. Mitchell to suffer 

aspiration pneumonia, the jury’s finding of “no negligence” 

is indeed such that it shocks one’s “sense of justice,” as the 

jury was charged on the issue of negligence per se. 

Further, the court committed an error by denying 

[Appellant’s] motion for JNOV on the issue of negligence, 

despite the fact that [HPCC’s] own experts admitted that 

[HPCC] violated applicable standards of care. The [trial] 

court committed an error by dismissing [Appellant’s] claim 

for punitive damages at the close of [Appellant’s] case, 

upon [HPCC’s] motion for a directed verdict. [Appellant] 

preserved this issue in his motion for post-trial relief. Based 

upon the evidence adduced at trial, it is clear that the issue 

of punitive damages should have been one presented to the 

jury. 

[2.] Did the trial court err in denying [Appellant’s] motion 

for a new trial on the issue of negligence when the verdict 

was against the clear and substantial weight of the

evidence, particularly in light of the fact that based on the 

evidence that was offered at trial, along with the fact that 

the DOH specifically found that [HPCC] failed to promptly 

notify a physician of a significant change, which ultimately 

caused Ms. Mitchell to suffer aspiration pneumonia, the 

jury’s finding of “no negligence” is indeed such that it 

shocks one’s “sense of justice,” especially in light of the fact 

that the jury was charged on negligence per se. Further, 

the [trial] court committed an error by denying [Appellant’s] 

motion for a new trial on the issue of negligence, despite 

the fact that [HPCC’s] own experts admitted that [HPCC] 

violated applicable standards of care. The [trial] court 

committed an error by dismissing [Appellant’s] claim for 

punitive damages at the close of [Appellant’s] case, upon 

[HPCC’s] motion for a directed verdict. [Appellant] 

preserved this issue in his motion for post-trial relief. Based 

upon the evidence adduced at trial, it is clear that the issue 

of punitive damages should have been one presented to the 

jury. 
J-A13006-16 

- 4 - 

Appellant’s Brief at 5-6 (some internal capitalization omitted). 

We reviewed the briefs of the parties, the relevant law, the certified 

record, the notes of testimony, and the opinion of the able trial court judge, 

the Honorable Michael A. Della Vecchia. We conclude that there has been no 

error in this case and that Judge Della Vecchia’s opinion, entered on October 

1, 2015, meticulously and accurately disposes of Appellant’s issues on 

appeal. Therefore, we affirm on the basis of Judge Della Vecchia’s opinion 

and adopt it as our own. In any future filings with this or any other court 

addressing this ruling, the filing party shall attach a copy of the trial court 

opinion. 

Judgment affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/24/2016 
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Honorable Michael A Della Vecchia 

710 City-County Building 

414 Grant Street 

Pittsburgh, PA 15219 

OPINION 

Defendants. 

HIGHLAND PARK CARE CENTER, 

LLC, operating under the fictitious name 

HIGHLAND PARK CARE CENTER and 

LUTHERAN SENIORLIFE operating under 

the fictitious name ST. JOHN SPECIALTY 

CAR ECENTER, 

vs. 

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Plaintiff, 

ARTIS MITCHELL, as Administrator No. GD 12-000832 

of the Estate of CAROLYN MITCHELL, 

Deceased, 

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA 

CIVIL DIVISION 

Circulated 08/05/2016 03:29 PM
1 

Plaintiff's condition. 

for the Plaintiff, and failed to promptly notify a physician of a significant change in the 

(hereinafter "Defendant") failed to create and implement a proper treatment care plan 

I. BACKROUND 

The Plaintiff brought a survival action alleging that Highland Park Care Center 

from this Court's denial of Post-Trial Motions and the Judgment entered thereon. 

the Administrator of the Estate of Carolyn Mitchell, Deceased (hereinafter "Plaintiff") 

This matter comes before the Superior Court on the appeal of Artis Mitchell as 

Michael A. Della Vecchia, Judge 

OPINION 

Defendant. 

HIGHLAND PARK CARE CENTER, LLC. 

operating under the fictitious name 

HIGHLAND PARK CARE CENTER, 

vs. 

Plaintiff, 

1057 WDA 2015 

ARTIS MITCHELL) as the Administrator of GD 12-000832 

the Estate of CAROLYN MITCHELL, 

Deceased, 

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA 

CIVIL DIVISION 
2 

II. PROCEDURAL HISTORY 

This matter was initiated by the filing of a Praecipe for Writ of Summons filed on 

January 12, 2012. Said Praecipe was followed by a Complaint in Civil Action filed 

September 17, 2012. Following multiple sets of Preliminary Objections, Motions to 

Compel and rulings in response thereto, this matter was scheduled for trial. 

In 1992, Carolyn Mitchell experienced cardiac arrest, resulting in a severe anoxic 

brain injury, which required her to need skilled nursing care on a full-time basis for the 

rest of her life. The Plaintiff claims specifically that in the weeks leading up to 

February 15, 2010, Carolyn Mitchell experienced repeated episodes of emesis, which is 

vomiting, that went unreported to her physician. The Plaintiff further claims that said 

episodes of emesis led to substances entering the lungs of Ms. Mitchell causing her to 

suffer aspiration pneumonia. The Plaintiff further alleges that said negligence resulted 

in a downward spiral in the health of Ms. Mitchell, eventually resulting in her death on 

February 7, 2011. 

Following a jury trial in this matter, the jury empanelled returned a verdict in favor 

of the Defendant and against the Plaintiff, finding specifically that the Defendant was not 

negligent. The Plaintiff filed for Post-Trial Relief alleging that the jury's verdict was 

against the weight of the evidence. On June 24, 2015, after reviewing the Briefs and 

record and having heard argument on said Post-Trial Motions, this writer denied the 

Plaintiff's Motion for Post-Trial Relief, which included the Plaintiff's request for Judgment 

Notwithstanding the Verdict or a new trial. 
3 

1. The Court committed an error by denying Plaintiff's Motion for 

Judgment Notwithstanding the Verdict (JNOV) on the issue of 

negligence when the verdict was such that two reasonable minds 

could disagree that the verdict should have been rendered in favor of 

the Plaintiff. Specifically, based upon the evidence that was offered 

at trial, along with the fact that the Commonwealth of Pennsylvania 

Department of Health (the "DOH") specifically found that Highland 

Park failed to promptly notify a physician of a significant change, 

which ultimately caused Ms. Mitchell to suffer aspiration pneumonia, 

the jury's finding of "no negligence" is indeed such that shocks one's 

"sense of justice" as the jury was charged on the issue of negligence 

per se. Further, the Court committed an error by denying Plaintiff's 

Motion for JNOV on the issue of negligence despite the fact that 

Defendant Highland Park Care Center's own experts admitted that 

Highland Park Care Center violated applicable standards of care. 

The Court committed an error by dismissing Plaintiff's claim for 

The Defendant raises the following claims of err: 

Ill. ISSUES RAISED ON APPEAL 

2015. This writer authors the following opinion in response thereto. 

On July 9, 2015, the Plaintiff filed a Notice of Appeal to the Superior Court of 

Pennsylvania. As a result, the Plaintiff was directed by Order dated July 15, 2015, to 

file a Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.C.P. 

1925(b). The Plaintiff timely filed his Matters Complained of on appeal on July 30, 

Relief. 

Court entered an Order dated June 24, 2015, denying Plaintiff's Motion for Post-Trial 

time the jury empanelled returned a verdict for the Defendant and against the Plaintiff, 

finding an absence of negligence on the part of the Defendant After argument, this 

A trial commenced on March 18, 2015, lasting until March 25, 2015, at which 

operating under the fictitious name of St. John Specialty Care Center. 

Prior to trial, the Plaintiff settled his claims with defendant Lutheran Seniorlife, 
4 

the standard of review for an order granting or denying judgment 

notwithstanding the verdict is whether there was sufficient competent 

evidence to sustain the verdict. We must view the evidence in the light 

most favorable to the verdict winner and give him or her the benefit of 

every reasonable inference arising therefrom while rejecting all 

unfavorable testimony and inferences. Furthermore, judgment nov should 

claim: 

The Superior Court has clearly established the Plaintiff's burden in making said 

said Verdict. 

"shocked one's sense of justice," however, this writer was not the least bit surprised by 

Defendant to be against the weight of the evidence, such that the verdict would have 

The Plaintiff asserts that the jury's finding of 'no negligence' on the part of the 

IV. DISCUSSION 

2. The Court committed an error by denying Plaintiff's Motion for 

a New Trail on the issue of negligence when the verdict was against 

the clear and substantial weight of the evldence, particularly in light 

of the fact that based on the evidence that was offered at trial, along 

with the fact that the DOH specifically found that Highland Park failed 

to promptly notify a physician of a significant change, which 

ultimately caused Ms. Mitchell to suffer aspiration pneumonia, the 

jury's finding of "no negligence" is indeed such that shocks one's 

"sense of justice", especially in the light of the fact that the jury was 

charged on negligence per se, Further, the Court committed an error 

by denying Plaintiff's Motion for a New Trial on the issue of 

negligence despite the fact that Defendant Highland Park's own 

experts admitted that Highland Park violated applicable standards of 

care. The Court committed an error by dismissing Plaintiff's claim for 

punitive damages at the close of Plaintiff's case, upon the 

Defendant's Motion for Directed Verdict. Plaintiff preserved this 

issue in his Motion for Post-Trial Relief. Based upon the evidence 

adduced at trial, it is clear that the issue of punitive damages should 

have been one presented to the jury. 

punitive damages at the close of Plaintiff's case, upon the 

Defendant's Motion for Post-Trial Relief. Based upon the evidence 

adduced at trial, it is clear that the issue of punitive damages should 

have been one presented to the jury. 
5 

relationship between any of the emesis events, at least until the most recently 

documented one on the (February) 111h and her pneumonia" (Trial Transcript ("Tr.") at 

574). Dr. Sohnen explained convincingly to the jury that the initial chest x-rays 

The defense expert, Dr. Adam Sohnen stated that. "there was absolutely no 

February 3, 2010, and February 8, 201 O. 

This writer accepts that the jury was not convinced by the Plaintiff's argument as 

to causation. specifically. the fact that both the Plaintiff and the Defendant's experts 

opined that Ms. Mitchell's aspiration pneumonia developed from events in the hospital, 

or immediately prior to her admission, not from any negligence noted in the DOH report. 

The DOH finding concerns failures following events reported January 24, 2010, 

Plaintiff's argument as to this point. 

negligence per se into the court's instructions to the jury. The jury obviously rejected 

The Plaintiff requested and the trial court incorporated Plaintiff's proposed charge of 

significant change, which ultimately caused Ms. Mitchell to suffer aspiration pneumonia. 

The Plaintiff believes he provided the jury with a 'smoking gun' pointing to a 

finding by the Commonwealth of Pennsylvania Department of Health ("DOH") 

specifically holding that Highland Park failed to promptly notify a physician of a 

Concerning any questions of law, our scope of review is plenary. 

Concerning questions of credibility and weight accorded evidence at trial, 

we will not substitute our judgment for that of the finder of fact. 

Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1206 (Pa.Super. 2008), citing 

Northeast Fence & Iron Works v. Murphy Quigley Co .. Inc., 933 A.2d 664, 668 

(Pa.Super. 2007). 

be entered only in a clear case, where the evidence is such that no 

reasonable minds could disagree that the moving party is entitled to relief. 

Review of the denial of judgment nov has two parts, one factual and one 

legal: 
6 

It was consistently the Plaintiff's position that the emesis was caused by the 

negligence in the defendant's choice to feed and medicate Ms. Mitchell through a G-port 

rather than a J-port. When specifically asked whether a change in ports would have 

alleviated Ms. Mitchell's instances of vomiting, Dr. Sohnen answer was "no, absolutely 

not" (Tr. at 578}. 

The Plaintiff's expert, Dr. Bruce Kinosian opined that "l'rn pretty sure that she 

aspirated on the (February) 131h I which is when she developed the wheezing. Whether 

that developed into something or whether she had new events) l don't know. My guess 

is that she probably had a new event" (Tr. at 244). 

The Plaintiff's own expert failed to advance the theory proffered by the Plaintiff, 

that being; that the DOH finding that Highland Park failed to promptly notify a physician 

of Ms. Mitchell's change of condition caused the aspiration pneumonia, leading, if not 

contributing to her eventual death. Further, the DOH itself later made a finding of "no 

harm" with regard to its earlier report of the deficiency at Highland Park Care Center 

concerning the lack of notification. 

Ms. Mitchell enjoyed additional care provided by private duty nurses. These 

private duty nurses were not affiliated or employed by Highland Park Care Center. The 

jury could have plausibly concluded that negligence on the part of said private care 

nurses was not attributable to Highland Park Care Center. 

examined following the events of emesis failed to show any signs of pneumonia and 

were in fact "clear", "if she had pneumonia that was brewing or developing over those 

several days, you would have seen a very abnormal appearing chest x-ray" (See, Tr. at 

574). 
7 

IV. CONCLUSION 

This Court found the jury's Verdict in the above captioned case to be in accord 

with the evidence presented at trial. For the aforesaid reasons, this writer respectfully 

requests the Superior Court of Pennsylvania to affirm this Court's Order dated June 24, 

2015, and the judgment entered on the Verdict rendered. 

The Plaintiff raises additional error with this Court's decision to deny a request 

made by the Plaintiff for a charge on punitive damages. As the Superior Court is well 

aware, "punitive damages are awarded only for outrageous conduct, that isl for acts 

done with a bad motive or with a reckless Indifference to the interests of others. Thus, 

the Pennsylvania rule allows the awarding of punitive damages when the act is done 

with reckless indifference as well as with bad motive (Focht v. Rabada, 268 A.2d 157, 

159 (Pa. Super. 1970), citing, Chambers v. Montgomery, 192 A.2d 355 (Pa. 1963)). 

This writer finds this case completely devoid of bad motive or reckless 

indifference. Only 'false charting' assertions made by the Plaintiff could possibly be 

construed as a basis for punitive damages. Presumably, the jury found that any 

discrepancies were merely mistakes or inaccuracies within the medical charting. In light 

of the fact that the jury found that the Defendant was not negligent, any charge on 

punitive damages was not warranted.