J-A09018-15

2015 PA Super 101

ESTATE OF ARTHUR DENMARK, BY AND 

THROUGH HIS ADMINISTRATOR, 

ANTHONY W. HURST, SR.,

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

Appellant :

:

v. :

:

JOSEPH WILLIAMS, M.D., RAVINDRA C. 

HALLUR, M.D., MERCY PHILADELPHIA 

HOSPITAL AND MERCY HEALTH 

SYSTEM,

:

:

:

:

:

Appellees : No. 1900 EDA 2014

Appeal from the Order May 27, 2014,

Court of Common Pleas, Philadelphia County,

Civil Division at No. 01133

BEFORE: BOWES, DONOHUE and STABILE, JJ.

OPINION BY DONOHUE, J.: FILED APRIL 28, 2015

Appellant, the Estate of Arthur Denmark, by and through its 

administrator, Anthony W. Hurst, Sr. (“Hurst”), appeals from the trial court’s 

order dated May 27, 2014. On appeal, Hurst contends that the trial court 

erred in dismissing his claims for vicarious liability and corporate negligence 

against Appellees Mercy Philadelphia Hospital and Mercy Health System 

(together, “Mercy” or the “Mercy entities”). For the reasons that follow, we 

reverse and remand this case to the trial court so that Hurst may proceed on 

his amended complaint against the Mercy entities on his claims for vicarious 

liability and corporate negligence.
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Hurst commenced this action on June 1, 2012 by filing a complaint 

naming four defendants, Ravindra C. Hallur, M.D. (“Dr. Hallur”), Joseph 

Williams, M.D. (“Dr. Williams”), and the Mercy entities. Dr. Hallur and the 

Mercy entities filed preliminary objections, in response to which Hurst filed 

an amended complaint.

In his amended complaint, Hurst alleged that Arthur Denmark 

(“Denmark”) was admitted to Mercy Philadelphia Hospital on March 12, 2010 

to undergo a tracheotomy as a result of his emphysema. Amended 

Complaint, ¶¶ 6-7. Hurst further alleged that after the tracheotomy, 

Denmark was alert and responsive until March 18, 2010, when he “was 

permitted to either attempt to leave his bed unassisted or fell out of his 

bed.” Id. ¶¶ 8-9. His fall resulted in the dislocation of a catheter, and 

surgery had to be scheduled because the catheter could not be replaced at 

bedside. Id. ¶¶ 10-11. According to Hurst, during the surgery, which was 

performed by Dr. Williams, Denmark’s bladder was severely lacerated. Id.

¶¶ 12-13. Hurst also alleged that following the surgery, Denmark’s care was 

managed by Drs. Williams and Hallur. Id. ¶ 14. Gauze was negligently left 

in Denmark’s body after the surgery was complete and the stitches applied, 

and blood continued to be present in Denmark’s urine. Id. ¶¶ 15-16. Hurst 

contends that as a result of the Defendants’ negligence, Denmark developed 

septic shock and died on April 2, 2010. Id. ¶¶ 17-18. 
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Counts I and II of Hurst’s amended complaint set forth causes of 

action against Drs. Williams and Hallur, respectively, for negligence. Counts 

III and IV stated causes of action against the Mercy entities for vicarious 

liability and corporate negligence. Counts V and VI set forth causes of action 

for wrongful death and survival against all of the defendants. 

Dr. Hallur and the Mercy entities filed preliminary objections to the 

amended complaint. By order dated August 31, 2012, the Honorable Allan 

L. Tereshko sustained the preliminary objections, ruling that 

(a) all claims for punitive damages in Paragraphs 

26, 33, 46 and 53 are stricken with prejudice;

(b) all references to unidentified agents, servants, 

employees, attending physicians, nursing staff, 

other support staff, administrators, boards and 

committees in Count III and Count IV are 

stricken with prejudice;

(c) Paragraphs 24(a)-(c), (e), (h)-(i) and (l)-(p) 

and Count IV are stricken with prejudice; and

(d) Paragraphs 24(e) and (q) are stricken with 

prejudice.

Trial Court Order, 8/31/2012, at 1. 

On January 24, 2014, the trial court granted Dr. Williams’ unopposed 

motion for summary judgment, dismissing all claims against him. Trial 

Court Order, 1/24/2014, at 1. On the date set for trial, May 23, 2014, Dr. 

Hallur and the Mercy entities moved in limine to preclude all evidence and 

testimony against Dr. Hallur because his work was not criticized in Hurst’s 
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expert report. N.T., 5/23/2014, at 3. Based upon the “law of the case as 

established by the order of Judge Tereshko,” counsel for Hurst took no

position on the motion in limine. Id. at 3-4. The Honorable Shelley Robins 

New granted the motion in limine. Id. at 4. 

Counsel for Dr. Hallur and the Mercy entities then moved for a “nolle 

pros,” which counsel for Hurst did not oppose. Id. at 4-5. Instead, counsel 

for Hurst indicated that he was preserving his right to appeal Judge 

Tereshko’s August 31, 2012 order. Id. at 5. Judge Robins New then 

indicated that she would grant “the nolle pros requested by the defense, and 

all issues in regards to Judge Tereshko’s orders on preliminary objections are 

preserved for purposes of appeal.” Id. On May 27, 2014, Judge Robins 

New entered an order that stated, “Non Pros entered.” Trial Court Order, 

5/27/2014, at 1. On June 3, 2014, counsel for Hurst filed a praecipe for 

entry of judgment on Judge Robins New’s May 27, 2014 order.

Hurst appeals subsections (b) and (c) of Judge Tereshko’s August 31, 

2012 order granting preliminary objections, as these two subsections 

effectively dismissed his claims against the Mercy entities for vicarious 

liability and corporate negligence. With respect to his claim for vicarious 

liability, Hurst contends that striking all of the allegations relating to 

unidentified agents in subsection (b) of his order was error, as Pennsylvania 

appellate courts have held that employees may be unnamed or referred to 

as a group in a complaint alleging vicarious liability. With respect to his 
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claim for corporate negligence, Hurst contends that the trial court erred in 

striking/dismissing this claim in subsection (c) of its order because the 

amended complaint contained sufficient allegations to sustain this claim as a 

matter of law. 

Before we address the issues raised on appeal by Hurst, we must first 

determine whether this appeal is properly before the Court. In their 

appellate brief, Dr. Hallur and the Mercy entities contend that Hurst failed to 

preserve any issues for appeal because he did not file a petition to open the 

judgment of non pros pursuant to Rule 3051 of the Pennsylvania Rules of 

Civil Procedure. See Pa.R.C.P. 3051. In addition, this Court issued two per 

curium orders directing Hurst to show cause why this appeal should not be 

quashed, either because of the failure to petition the trial court to open the 

judgment of non pros pursuant to Rule 3051, Per Curium Order, 7/30/2014, 

at 1, or because a nolle pros is akin to the entry of a compulsory nonsuit, 

which is generally appealable only after the denial of a motion to remove 

nonsuit pursuant to Pa.R.C.P. 227.1. See Billig v. Skvaria, 853 A.2d 1042, 

1048 (Pa. Super. 2004).

These circumstances present something of a procedural morass, as 

Judge Robins New’s order dated May 27, 2014 may not properly be 

categorized as either a nolle pros or a non pros. It was not a nolle pros 

because our rules of civil procedure do not recognize “nolle pros” in the civil 

context. Under Pennsylvania law, the appellation “nolle pros” is now used 
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only in the criminal context, referring to a voluntary withdrawal by a 

prosecuting attorney of proceedings on a particular bill or information. See, 

e.g., Commonwealth v. Totaro, 106 A.3d 120, 121-22 (Pa. Super. 2014). 

Likewise, Judge Robins New’s order was not a non pros since it was not a 

judgment entered terminating Hurst’s action due to any failure to properly 

and/or promptly prosecute the case. See Dombrowski v. Cherkassky, 

691 A.2d 976, 977 (Pa. Super. 1997). Our rules of civil procedure recognize 

the entry of a judgment of non pros in four situations: (1) under Rule 

1037(a) for failure to file a complaint after the issuance of a rule to do so; 

(2) under Rule 1042.7 for failure to file a certificate of merit; (3) under Rule 

218 on the trial court’s own motion for failure to be ready at the start of 

trial; and (4) under Rule 4019 as a discovery sanction.

1

 Judge Robins New’s 

order was not entered in accordance with any of these rules.

For purposes of determining the issue of appealability, we look for 

guidance to our Supreme Court’s decision in Lewis v. United Hospitals, 

Inc., 547 A.2d 626 (Pa. 1997), a case with close factual and procedural 

similarities to the case presently before us. In Lewis, also a medical 

malpractice action, the trial court granted the doctor/defendant’s motion in 

limine to preclude the plaintiffs’ medical expert from testifying at trial, and 

 

1

For purposes of completeness, we note that non pros may also be entered 

for inactivity if there is a lack of due diligence in prosecuting the case on the 

part of the plaintiff, no compelling reason for the delay, and actual prejudice 

to the defendant. See, e.g., Jacobs v. Halloran, 710 A.2d 1098, 1103 

(Pa. 1998); Pa.R.J.A. 1901.
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denied the plaintiffs’ motion to introduce a revised expert report. Id. at 

628. The trial court then granted the doctor/defendant’s motion for a 

compulsory nonsuit, from which the plaintiffs appealed without filing a posttrial motion pursuant to Rule 227.1 to remove the nonsuit. Id. at 629. Our 

Supreme Court held that the trial court erred in granting a compulsory 

nonsuit, since pursuant to Rule 230.1, a nonsuit should not be granted prior 

to the close of a plaintiff’s presentation of evidence at trial. Id. at 630. 

Following prior precedent from this Court, however, including Gallagher v. 

Harleysville Mutual Insurance Company, 618 A.2d 790 (Pa. Super. 

1992), appeal denied, 629 A.2d 1381 (Pa. 1993), the Lewis Court ruled that 

the trial court should have treated the doctor/defendant’s motion for 

compulsory nonsuit as a pre-trial motion for either summary judgment or 

judgment on the pleadings. Id. Treating the trial court’s order as one 

granting a motion for summary judgment, the Supreme Court concluded 

that the plaintiffs had no obligation to move to remove the nonsuit pursuant 

to Rule 227.1, and the trial court’s order was therefore immediately 

appealable. Id. at 631-32; see also Valles v. Albert Einstein Medical 

Center, 758 A.2d 1238, 1243 (Pa. Super. 2000), aff’d, 805 A.2d 1232 (Pa. 

2002); Wujcik v. Yorktowne Dental Associates, Inc., 701 A.2d 581, 

583-84 (Pa. Super. 1997).

In accordance with Lewis, we will treat Judge Robins New’s May 27, 

2014 order as one granting summary judgment against Hurst, and was thus 
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final and appealable. We will now proceed to consider the substantive issues 

raised on appeal. For his first issue on appeal, Hurst contends that the trial 

court (Judge Tereshko) erred in striking all allegations of vicarious liability 

against the Mercy entities for the acts of “unidentified agents, servants, 

employees, attending physicians, nursing staff, other support staff, 

administrators, boards and committees.” Trial Court Order, 8/31/2012, at 

1(b). In Count III of his amended complaint, Hurst asserted a claim for 

vicarious liability against the Mercy entities for the negligence of “nursing 

staff, attending physicians and other attending personnel” acting within the 

scope of their employment “as agents, servants, or employees” of the Mercy 

entities. Amended Complaint, ¶¶ 28-31. In their preliminary objections, the 

Mercy entities argued that these allegations of agency did not satisfy the 

pleading requirements for an agency relationship, citing to Alumni Ass’n, 

Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 535 A.2d 

1095, 1100 (Pa. Super. 1987). 

Our standard of review from an order granting a preliminary objection 

in the nature of a demurrer2is as follows:

 

2

 In their appellate brief, the Mercy entities note that Judge Tereshko did 

not dismiss the claims against them but rather struck allegations of Hurst’s 

amended complaint. Appellees’ Brief at 11. While technically true, we note 

that in their preliminary objections, the Mercy entities specifically referenced 

Rule 1027(a)(4) and indicated their motion to strike all allegations of agency 

was “in the nature of a demurrer based upon the legal insufficiency of a 

pleading.” Preliminary Objections, 7/10/2012, ¶ 25. Moreover, subsection 

(b) of Judge Tereshko’s August 31, 2012 order effectively dismissed as 
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[O]ur standard of review of an order of the trial court 

overruling or granting preliminary objections is to 

determine whether the trial court committed an error 

of law. When considering the appropriateness of a 

ruling on preliminary objections, the appellate court 

must apply the same standard as the trial court.

Preliminary objections in the nature of a demurrer 

test the legal sufficiency of the complaint. When 

considering preliminary objections, all material facts 

set forth in the challenged pleadings are admitted as 

true, as well as all inferences reasonably deducible 

therefrom. Preliminary objections which seek the 

dismissal of a cause of action should be sustained 

only in cases in which it is clear and free from doubt 

that the pleader will be unable to prove facts legally 

sufficient to establish the right to relief. If any doubt 

exists as to whether a demurrer should be sustained, 

it should be resolved in favor of overruling the 

preliminary objections.

Durst v. Milroy Gen. Contracting, Inc., 2012 179, 52 A.3d 357, 359-60 

(Pa. Super 2012) (quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. 

Super. 2011)).

In Sokolsky v. Eidelman, 93 A.3d 858 (Pa. Super. 2014), this Court 

recently reviewed the basic requirements for a cause of action for vicarious 

liability:

Our Supreme Court has recently opined on the 

differences between direct and vicarious liability.

To prove negligence, a plaintiff may 

proceed against a defendant on theories 

 

legally insufficient Hurst’s cause of action for vicarious liability for the acts of 

unnamed agents, servants, and employees of the Mercy entities. A 

demurrer is an assertion that a complaint does not set forth a cause of 

action upon which relief may be granted. Desanctis v. Prichard, 803 A.2d 

230, 232 (Pa. Super. 2002).
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of direct and vicarious liability, asserted 

either concomitantly or alternatively. 

Liability for negligent injury is direct 

when the plaintiff seeks to hold the 

defendant responsible for harm the 

defendant caused by the breach of duty 

owing directly to the plaintiff. By 

comparison, vicarious liability is a policybased allocation of risk. Vicarious 

liability, sometimes referred to as 

imputed negligence, means in its 

simplest form that, by reason of some 

relation existing between A and B, the 

negligence of A is to be charged against 

B although B has played no part in it, has 

done nothing whatever to aid or 

encourage it, or indeed has done all that 

[it] possibly can to prevent it. Once the 

requisite relationship (i.e., employment, 

agency) is demonstrated, the innocent 

victim has recourse against the principal, 

even if the ultimately responsible agent 

is unavailable or lacks the availability to 

pay.

Scampone v. Highland Park Care Center, LLC, 

618 Pa. 363, 57 A.3d 582, 597 (2012) (citations and 

internal quotation marks omitted); see also Hall v. 

Episcopal Long Term Care, 54 A.3d 381, 402 (Pa. 

Super. 2012), appeal denied, 620 Pa. 715, 69 A.3d 

243 (2013).

Accordingly, in order to hold an employer vicariously 

liable for the negligent acts of its employee, these 

acts must be “committed during the course of and 

within the scope of the employment.” Sutherland 

v. Monongahela Valley Hosp., 856 A.2d 55, 62 

(Pa. Super. 2004), citing R.A. v. First Church of 

Christ, 748 A.2d 692, 699 (Pa. Super. 2000) 

(concluding that the sexual assault of a child was not 

committed within the scope of a minister's 

employment), appeal denied, 563 Pa. 689, 760 A.2d 

855 (2000).
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The conduct of an employee is 

considered within the scope of 

employment for purposes of vicarious 

liability if: (1) it is of a kind and nature 

that the employee is employed to 

perform; (2) it occurs substantially 

within the authorized time and space 

limits; (3) it is actuated, at least in part, 

by a purpose to serve the employer; and 

(4) if force is intentionally used by the 

employee against another, the use of 

force is not unexpected by the employer.

R.A., supra (internal quotation marks omitted).

Sokolsky, 93 A.3d at 863-64.

In Sokolsky, we concluded that it is not necessary for a plaintiff to 

establish a right to recover on a claim for vicarious liability based upon the 

negligence of a specific named employee.

Upon review, we conclude that the trial court erred 

as a matter of law when it ruled Sokolsky could not 

establish her right to recovery on her vicarious 

liability claim solely because she did not base that 

claim on an individual staff member's actions. The 

trial court's interpretation of vicarious liability rebuffs 

both the intent and the purpose underlying this 

theory of recovery. Simply because employees 

are unnamed within a complaint or referred to 

as a unit, i.e., the staff, does not preclude one’s 

claim against their employer under vicarious 

liability if the employees acted negligently 

during the course and within the scope of their 

employment. Herein, both Manor Care and Lehigh 

Valley may be subject to vicarious liability for the 

negligent acts and omissions of its staff regarding 

the quality of care it rendered to Sokolsky. This 

vicarious liability attaches to Manor Care and Lehigh 
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Valley regardless of Sokolsky's attack of an 

individual member of either entity's nursing staff.

Id. at 865-66 (emphasis added) (citations omitted).

The purpose of pleadings is to put a defendant on notice of the claims 

upon which it will have to defend. Yacoub v. Lehigh Valley Med. 

Associates, P.C., 805 A.2d 579, 588-89 (Pa. Super. 2002) (citing 

McClellan v. Health Maintenance Organization of Pennsylvania, 604 

A.2d 1053 (Pa. Super. 1992), appeal denied, 616 A.2d 985 (Pa. 1992)). A 

complaint must give a defendant fair notice of the plaintiff's claims and a 

summary of the material facts that support those claims. Pa.R.C.P. 1019(a). 

In assessing whether particular paragraphs in a complaint satisfy this 

requirement, they must be read in context with all other allegations in the 

complaint to determine whether the defendant has been provided adequate 

notice of the claim against which it must defend. Yacoub, 805 A.2d at 589.

In the present case, as detailed hereinabove, Hurst’s amended 

complaint set forth the material allegations of negligence upon which his 

claims for vicarious liability against the Mercy entities were based --

including Denmark’s fall causing the dislocation of a catheter, the surgery 

during which his bladder was severely lacerated, the gauze left in the wound 

after the stitches had been applied -- all allegedly resulting in the 

development of septic shock causing Denmark’s death. Amended Complaint, 

¶¶ 6-18. While Hurst did not identify the nurses or doctors allegedly 
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responsible (except for Drs. Williams and Hallur), the names of those who 

performed services in connection with Denmark’s care (as described) are 

either known to the Mercy entities or could have been ascertained during 

discovery. Accordingly, when read in the context of the allegations of the 

amended complaint, Hurst’s references to “nursing staff, attending 

physicians and other attending personnel” and “agents, servants, or 

employees” were not lacking in sufficient specificity and did not fail to plead 

a cause of action against the Mercy entities for vicarious liability. As such, 

subsection (b) of Judge Tereshko’s August 31, 2012 order was error.

For his second issue on appeal, Hurst argues that Judge Tereshko 

erred in striking/dismissing his claim for corporate negligence against the 

Mercy entities. Our Supreme Court recognized a cause of action for 

corporate negligence by a hospital in Thompson v. Nason Hosp., 591 A.2d 

703 (Pa. 1991).

Corporate negligence is a doctrine under which the 

hospital is liable if it fails to uphold the proper 

standard of care owed the patient, which is to ensure 

the patient’s safety and well-being while at the 

hospital. This theory of liability creates a 

nondelegable duty which the hospital owes directly 

to a patient. Therefore, an injured party does not 

have to rely on and establish the negligence of a 

third party.

The hospital’s duties have been classified into four 

general areas: (1) a duty to use reasonable care in 

the maintenance of safe and adequate facilities and 

equipment; (2) a duty to select and retain only 

competent physicians; (3) a duty to oversee all 
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persons who practice medicine within its walls as to 

patient care; and (4) a duty to formulate, adopt and 

enforce adequate rules and policies to ensure quality 

care for the patients....

[W]e adopt as a theory of hospital liability the 

doctrine of corporate negligence or corporate liability 

under which the hospital is liable if it fails to uphold 

the proper standard of care owed its patient. In 

addition, we fully embrace the aforementioned four 

categories of the hospital's duties. It is important to 

note that for a hospital to be charged with 

negligence, it is necessary to show that the hospital 

had actual or constructive knowledge of the defect or 

procedures which created the harm. Furthermore, 

the hospital's negligence must have been a 

substantial factor in bringing about the harm to the 

injured party.

Id. at 707-08.

In her written opinion pursuant to Rule 1925(a) of the Pennsylvania 

Rules of Appellate Procedure,3Judge Robins New concluded that Hurst’s 

amended complaint sufficiently alleged a cause of action for corporate 

negligence:

Taking all of [Hurst’s] factual allegations as true (as 

a trial court must when ruling on a preliminary 

objection), [Denmark’s] urinary catheter was 

dislodged and [Mercy’s] agent physicians performed 

surgery to reinsert it. In that surgery, [Mercy’s] 

agents “severely lacerated” [Denmark’s] bladder and 

subsequently left a piece of gauze inside [Denmark] 

upon the completion of the procedure. These acts 

then allegedly resulted in [Denmark’s] death from 

septic shock.

 

3

 Judge Robins New indicated that she offered Judge Tereshko the 

opportunity to author the Rule 1925(a) opinion, but that he declined. Trial 

Court Opinion, 10/7/2014, at 3 n.1.
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The facts as averred by [Hurst] successfully allege 

violations of the duties owed by [Mercy] to [Hurst] 

under corporate negligence liability. The fact that 

the catheter became dislodged may be construed as 

a violation of the duty to maintain adequate 

equipment. A physician stitching a piece of gauze 

inside a patient may be sufficient for a factfinder to 

decide that physician was of questionable skill, 

violating the hospital’s duty to retain only competent 

medical personnel. Thus, the facts as alleged by 

[Hurst] provide an adequate ground upon which 

relief can be granted under multiple theories of 

corporate negligence.

Trial Court Opinion, 10/7/2014, at 6-7.

Based upon our review of Hurst’s amended complaint, we agree with 

Judge Robins New’s analysis. We further note that Hurst also alleged that 

the Mercy entities “had actual or constructive knowledge of the defect [in] 

procedure which led to [Denmark’s] injuries” and that their negligence was a 

“direct and proximate” cause of said injuries and death. Amended 

Complaint, ¶¶ 43, 45. For these reasons, we conclude that Hurst’s amended 

complaint sufficiently pled a cause of action for corporate negligence, and as 

a result, the portion of subsection (c) of Judge Tereshko’s August 31, 2012 

order striking Count IV of Hurst’s amended complaint was in error.

Hurst has not appealed subsection (a) of the August 31, 2012 order 

striking all claims for punitive damages. Hurst has also not appealed the 

striking of paragraphs 24(a)-(c), (e), (h)-(i), (l)-(p), and (q) of the amended 

complaint in subsections (c) and (d) of Judge Tereshko’s order, or Judge 

Robins New’s grant of the motion in limine regarding Dr. Hallur. 
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Accordingly, our decision here is limited to a determination that Hurst 

successfully pled causes of action against the Mercy entities for vicarious 

liability and corporate negligence. Because Judge Tereshko’s August 31, 

2012 order granting preliminary objections effectively dismissed these 

causes of action at the pleadings stage, Judge Robins New’s May 27, 2014 

order did not constitute an adjudication of these claims on their merits. All 

claims against Drs. Williams and Hallur were properly dismissed and Hurst 

has not appealed those decisions. 

The order dated August 31, 2012 is hereby reversed in part as 

specified herein. The case is remanded to the trial court for further 

proceedings consistent with this opinion. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/28/2015