J-A05031-22

2022 PA Super 84

ELLISON O. JORDAN 

Appellant

v.

THE PENNSYLVANIA STATE 

UNIVERSITY, SANDY BARBOUR, 

CHARMELLE GREEN, JAMES 

FRANKLIN, ANDY MUTNAN, RENEE 

MESSINA, SCOTT A. LYNCH, M.D., 

PETER H. SEIDENBERG, M.D., JOHN 

S. REID, M.D., BRENDAN M. CARR, 

TIM BREAM, WES SOHNS, PENN 

STATE HEALTH, MILTON S. HERSHEY 

MEDICAL CENTER, PENN STATE 

HERSHEY MEDICAL GROUP, AND 

MOUNT NITTANY HEALTH

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 76 MDA 2021

Appeal from the Order Entered December 4, 2020

in the Court of Common Pleas 

of Centre County Civil Division at No(s): 20-0028

BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED: MAY 9, 2022

Appellant, Ellison O. Jordan, appeals pro se from the December 4, 

20201 order sustaining the preliminary objections filed by Appellees, The 

Pennsylvania State University, Sandy Barbour, Charmelle Green, and James 

Franklin (hereinafter, “University Appellees”); granting the petitions filed by 

Appellees, Scott A. Lynch, M.D., Mount Nittany Health, Andy Mutnan, Renee 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Appellant erroneously refers to this order as having been entered on 

December 8, 2020.
J-A05031-22

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Messina, Brendan M. Carr, Tim Bream, Wes Sohns, Peter H. Seidenberg, M.D., 

John S. Reid, M.D., Penn State Health, Milton S. Hershey Medical Center, and 

the Penn State Hershey Medical Group (thereafter, “Healthcare Appellees”), 

to hold Appellant in contempt of court; and dismissing Appellant’s amended 

complaint and supplemental amended complaint with prejudice. Appellant 

also appeals from the December 23, 2020 order denying his motion to recuse

President Judge Pamela A. Ruest from this case. For the following reasons, 

we affirm.

The trial court summarized the relevant facts and lengthy procedural 

history of this case as follows:

This case arises from injuries [Appellant] allegedly 

sustained during his time as a student-athlete on the 

Penn State University football team between June 

2016 and August 2019. [Appellant’s] cause of action 

specifically focuses on his treatment following a 

December 27, 2017 surgery to repair a right knee 

patellar fracture he suffered while practicing for the 

Fiesta Bowl in Phoenix, Arizona. [Appellant] alleges 

he reinjured his knee on January 8, 2018 while 

receiving treatment from Wes Sohns, which required 

[Appellant] to undergo surgery on January 12, 2018. 

In April 2018, [Appellant] reported feeling pain and 

discomfort in his right knee. In September 2018, 

[Appellant] was evaluated for reported pain and 

swelling in his right knee, which was attributed to 

tendinitis and the prominence of the plate placed 

during surgery, but did not rule out the possibility of 

an infection.

Between September and November 2018, [Appellant] 

continued to experience right knee pain and 

[Appellant] underwent a right knee arthroscopy on 

November 21, 2018. On November 25, 2018, 

[Appellant] and his parents attended a meeting with 
J-A05031-22

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fifteen (15) representatives of Penn State University, 

who asked [Appellant] to sign a document voluntarily 

withdrawing himself from the football team. On 

December 30, 2018, [Appellant] was taken to the 

Emergency Room due to extreme knee pain and 

swelling. [Appellant] informed James Franklin on 

January 5, 2019 that his right knee was infected and 

[Appellant] underwent surgery to address the 

infection on January 8, 2019. On August 19, 2019, 

[Appellant] was removed from the Penn State football 

team.

[Appellant] originally filed a complaint on January 31, 

2020 based on a theory of medical malpractice. 

University [Appellees] filed preliminary objections on 

February 24, 2020. [Appellant] filed a certificate of 

merit for each [Appellee] on February 28, 2020, but 

failed to file a written statement from an appropriate 

licensed professional with the certificates of merit. All 

of the named [Appellees] other than the University 

[Appellees] filed a Notice of Intention to Enter 

Judgment of Non Pros for Failure to File a Written 

Statement from an Appropriate Licensed Professional 

between March 4 and March 11, 2020. [Appellant] 

filed an Answer to [Appellees’] Notices on April 17, 

2020. On May 12 and May 13, 2020, the Centre 

County Prothonotary’s Office entered Judgment of 

Non Pros in favor of all [Appellees] other than the 

University [Appellees].

On June 1, 2020, [Appellant] filed a Petition for Relief 

of Judgment of Non Pros requesting the court strike 

the judgments and restore [Appellant’s] complaint in 

its entirety. Between June 12 and June 22, 2020, 

each of the [Appellees] filed a response seeking to 

uphold their Judgment of Non Pros. A hearing was 

held on June 25, 2020. On July 15, 2020, the court 

entered an opinion and order denying [Appellant’s] 

petition for relief, sustaining the University 

[Appellees’] preliminary objections, and dismissing 

[Appellant’s] medical malpractice claims with 

prejudice. The court dismissed [Appellant’s] 

complaint and allowed [Appellant] to file an amended 

complaint within twenty (20) days against only the 
J-A05031-22

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University [Appellees] and only raising potential 

claims of intentional or negligent infliction of 

emotional distress and ordinary negligence. 

[Appellant] filed a petition for reconsideration on July 

24, 2020, which was denied by the court on July 30, 

2020.

[Appellant] filed an amended complaint on August 3, 

2020, and a supplemental amended complaint on 

August 12, 2020, both of which included claims 

against all of the [Appellees] from [Appellant’s] 

original complaint. Between August 7 and August 14, 

2020, counsel for all of the [Appellees] except for the 

University [Appellees] sent letters to [Appellant] 

requesting that he remove them from his amended 

complaint or they would seek to hold [Appellant] in 

contempt of court. [Appellant] failed to respond and 

[Appellees Scott A. Lynch, M.D., Mount Nittany 

Health, Andy Mutnan, Renee Messina, Brendan M. 

Carr, Tim Bream, Wes Sohns, Peter H. Seidenberg, 

M.D., John S. Reid, M.D., Penn State Health, The 

Milton S. Hershey Medical Center, and the Penn State 

Hershey Medical Group] each filed a petition to hold

[Appellant] in contempt of court.

On August 24, 2020, [Appellant] filed notices of 

intention to enter default judgments against each 

[Appellee] because they allegedly failed to enter a 

written appearance and file in writing with the court 

their defenses or objections to [Appellant’s] amended 

complaint. University [Appellees] file preliminary 

objections and a brief in support on August 31, 2020. 

[Appellant] filed a praecipe for determination on 

September 3, 2020 alleging University [Appellees’] 

preliminary objections were not filed in accordance 

with Pennsylvania law for failing to serve [Appellant] 

a copy of their preliminary objections. [Appellant] 

filed a response in opposition to University 

[Appellees’] preliminary objections on September 16, 

2020, and an answer to order to show cause on 

October 9, 2020. [Appellant] also filed a statement of 

support on October 19, 2020. A hearing was held on 

October 12, 2020.
J-A05031-22

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Trial court opinion, 12/4/20 at 2-4 (extraneous capitalization omitted).

On December 4, 2020, the trial court entered an opinion and order 

sustaining the University Appellees’ preliminary objections; holding Appellant 

in contempt of court; and dismissing Appellant’s amended complaint and 

supplemental amended complaint with prejudice. On December 15, 2020, 

Appellant filed a motion to recuse P.J. Ruest from this case, which was denied 

by the trial court on December 23, 2020. 

On January 6, 2021, Appellant filed a notice of appeal. Although not 

ordered to do so, Appellant filed an eight-page Pa.R.A.P. 1925(b) statement 

on May 12, 2021. The trial court filed its Rule 1925(a) opinion on May 20, 

2021, indicating that it was relying on the reasoning set forth in its prior

opinion and orders entered December 4 and 23, 2020.

Appellant raises the following issues for our review:

1. Did the [trial] court ignore the law, errored [sic]

in applying the law, misinterpreted [sic] the law 

and/or abuse its discretion in issuing the 

correspondence, in identifying the case as only 

medical malpractice, in processing the case on 

an “aggressive fast track” without any 

established written local procedures, in not 

providing definitive goals and objects and 

making them know to all parties involved and 

denying [Appellant] a right to jury trial as 

demanded?

2. Did the [trial] court ignore the law, errored [sic]

in applying the law, misinterpreted [sic] the law 

and/or abuse its discretion concerning all 

pleadings, notices, judgments, opinions and 

orders concerning the Certificate of Merit of the 
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original Complaint, Amended Complaint and 

Supplemental Amended Complaint?

3. Did the [trial] court ignore the law, errored [sic]

in applying the law, misinterpreted [sic] the law 

and/or abuse its discretion concerning the 

service of process?

4. Did the [trial] court ignore the law, errored [sic]

in applying the law, misinterpreted [sic] the law 

and/or abuse its discretion concerning 

Preliminary Objections?

5. Did the [trial] court ignore the law, errored [sic]

in applying the law, misinterpreted [sic] the law 

and/or abuse its discretion concerning her 

personal interest in the outcome of the case and 

potential appearance of conflict of interest and 

bias?

6. Did the [trial] court ignore the law, errored [sic]

in applying the law, misinterpreted [sic] the law 

and/or abuse its discretion concerning “special 

relationship”, “duty of care”, “standard of care”, 

“preventative measures”, “heightened duty of 

care”, “unreasonable risk of harm”, 

“foreseeability of harm”, “duty to convey”, “duty 

to exercise reasonable care”, “affirmative duty”, 

“an act within scope of employment”, 

“nondelegable duty”, “breach of duty”, “breach 

of duty was more likely than not (i.e., 

probably”) the cause of the injury” and “proper 

medical treatment”[?]

7. Did the [trial] court ignore the law, errored [sic]

in applying the law, misinterpreted [sic] the law 

and/or abuse its discretion concerning 

processing the civil complaint?

Appellant’s brief at 5-7.

Our standard of review of a challenge to a trial court’s decision to 

grant preliminary objections is as follows:
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Our 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.

Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa.Super. 2011) (citation 

omitted).

This Court has explained our standard of review for a civil contempt 

order as follows:

When considering an appeal from an Order holding a 

party in contempt for failure to comply with a court 

Order, our scope of review is narrow: we will reverse 

only upon a showing the court abused its discretion.

The court abuses its discretion if it misapplies the law 

or exercises its discretion in a manner lacking reason.

Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa.Super. 2009) (citations omitted).

Preliminarily, we must address whether Appellant has properly 

preserved all of his claims on appeal. Our review of the disjointed “Argument” 

section in Appellant’s 68-page pro se brief reveals that a number of his claims

take issue with the trial court’s entry of Judgments of Non Pros for Failure to 

File Written Statement from Appropriate Licensed Professional. See

Appellant’s brief at 24-37.

As discussed, on May 12 and 13, 2020, Judgments of Non Pros were

entered in favor of all Appellees other than the University Appellees. Appellant

subsequently filed a petition for relief from the Judgments of Non Pros 

requesting the trial court strike the judgments and restore his complaint in its 
J-A05031-22

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entirety. Thereafter, each of the Appellees filed a response seeking to uphold 

their Judgment of Non Pros. Following a hearing, the trial court entered an 

opinion an order on July 15, 2020 denying Appellant’s petition for relief; 

dismissing the medical malpractice claims in his complaint with prejudice; and 

directing Appellant that his amended complaint could only raise claims against 

the University Appellees for intentional or negligent infliction of emotional 

distress and ordinary negligence. See “Opinion and Order,” 7/15/20 at 12-

13. Appellant filed a petition for reconsideration which was denied on July 30, 

2020.

This Court has long recognized that “[a]ny appeal related to a judgment 

of non pros lies not from the judgment itself, but from the denial of a petition 

to open or strike.” Cardona v. Buchanan, 230 A.3d 476, 479 (Pa.Super. 

2020) (citation omitted). Under Pa.R.A.P. 311(a)(1), an appeal from an 

interlocutory order refusing to open, vacate or strike off a judgment is deemed 

final and subject to attack on appeal without reference to Pa.R.A.P. 341(c). 

Hammel v. Hammel, 636 A.2d. 214, 217 (Pa.Super. 1994) (citation 

omitted). Notably, the “[f]ailure to timely appeal from an order denying a 

petition to open, vacate, or strike off a judgment renders any attack of that 

order untimely and waived.” Blackburn v. King Inv. Grp., LLC, 162 A.3d 

461, 464 (Pa.Super. 2017) (citation omitted).

Instantly, the record reflects that Appellant’s January 6, 2021 notice of 

appeal makes no mention of the trial court’s July 15, 2020 order denying his 
J-A05031-22

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petition for relief from Judgment of Non Pros, nor the July 30, 2020 order 

denying his petition for reconsideration of relief from Judgment of Non Pros.2 

Although Appellant baldly contends in his brief that he is seeking “reversal of 

all the lower court’s opinions and orders ... and judgments,” his notice 

of appeal indicates that he is only appealing from the trial court’s December 4

and December 23, 2020 orders. See Appellant’s brief at 1 (emphasis added); 

Appellant’s “Notice of Appeal,” 1/6/21.

Appellant’s failure to appeal from the trial court’s July 15, 2020 order

renders his appeal procedurally deficient because neither of the trial court’s 

December 2020 orders directly addresses the Judgments of Non Pros 

Appellant purports to challenge on appeal. 

Pennsylvania Rule of Appellate Procedure 904 requires a petitioner to 

specifically identify in his notice of appeal the order from which he wishes to 

appeal. Pa.R.A.P. 904(a). Moreover, this Court has long recognized that,

although [we are] willing to liberally construe 

materials filed by a pro se litigant, pro se

status confers no special benefit upon the 

appellant. To the contrary, any person choosing 

to represent himself in a legal proceeding must, 

to a reasonable extent, assume that his lack of 

expertise and legal training will be his undoing.” 

____________________________________________

2 We note that any attempt by Appellant to appeal from the July 30, 2020 

order denying the petition for reconsideration would have nonetheless been 

improper. An order denying a motion for reconsideration is not appealable. 

See Huntington Nat. Bank v. K–Cor, Inc., 107 A.3d 783, 787 (Pa.Super. 

2014) (stating, “Pennsylvania case law is absolutely clear that the refusal of 

a trial court to reconsider, rehear, or permit reargument of a final decree is 

not reviewable on appeal.”), appeal denied, 117 A.3d 1281 (Pa. 2015).
J-A05031-22

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Wilkins v. Marsico, 903 A.2d 1281, 1284–1285 (Pa.Super. 2006) (citations 

and internal quotation marks omitted), appeal denied, 918 A.2d 747 (Pa. 

2007).

Accordingly, Appellant’s failure to appeal the trial court’s July 15, 2020

order denying his petition for relief from Judgment of Non Pros renders all his 

claims related to this order waived. See Blackburn, 162 A.3d at 464; see 

also Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court are 

waived and cannot be raised for the first time on appeal.”).

We now turn to Appellant’s claim that the trial court’s December 23, 

2020 order denying his motion to recuse P.J. Ruest from this case was 

improper because of her “impartiality, bias, and a personal interest in the 

outcome of [this] case.” Appellant’s brief at 38-41; see also “Motion to 

Recuse,” 12/15/20 at ¶ 1. For the reasons that follow, we find that this claim 

is time barred. 

It is well settled that “a party may not raise the issue of judicial prejudice 

or bias for the first time in post[-]trial proceedings.” Ware v. U.S. Fid. & 

Guar. Co., 577 A.2d 902, 905 (Pa.Super. 1990) (citation omitted). On the 

contrary, “a party seeking recusal or disqualification on the basis of judicial 

bias or impartiality “[is required] to raise the objection at the earliest possible 

moment, or that party will suffer the consequence of being time barred.” In 

re Lokuta, 11 A.3d 427, 437 (Pa. 2011) (citations omitted; brackets in 

original), cert. denied, 565 U.S. 878 (2011). “The timeliness of such an 
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application is particularly troubling where a party seeks disqualification only 

after receiving adverse judgment.” League of Women Voters of Pa. v. 

Commonwealth, 179 A.3d 1080, 1086 (Pa. 2018) (citation omitted).

Instantly, the record reflects that Appellant failed to raise his claim of 

judicial bias at the earliest possible opportunity. Appellant’s motion to recuse 

was filed on December 15, 2020, more than 7 months after P.J. Ruest entered 

her first order in this case on May 12, 2020, and only eleven days after P.J. 

Ruest entered an order dismissing Appellant’s amended complaint and 

supplemental amended complaint with prejudice. Based on the foregoing, 

Appellant’s recusal claim was clearly time-barred and its denial by the trial 

court was warranted. 

Appellant’s remaining claims concern the trial court’s December 4, 2020

order sustaining the University Appellees’ preliminary objections; granting the 

Healthcare Appellees’ petitions to hold Appellant in contempt of court; and 

dismissing his amended complaint and supplemental amended complaint with 

prejudice. See Appellant’s brief at 38-59. 

As best we can discern from his somewhat befuddling and convoluted 

appellate brief, Appellant takes issue with the trial court’s rejection of his 

claims for negligent or intentional infliction of emotional distress and ordinary 

negligence against the University Appellees, as well as the court’s 

determination that he should be held in contempt of court for continuing to 

pursue action against the Healthcare Appellees in his supplemental amended 
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complaint after the trial court explicitly ordered him not to do so.

Following our careful review of the record, including the briefs of all the 

parties and the applicable case law, and in light of this court’s scope and 

standard of review, it is our determination that there is no merit to Appellant’s 

remaining claims on appeal. We agree with the trial court that all of 

Appellant’s cognizable issues on appeal were adequately disposed of in its 

December 4, 2020 opinion and order. Accordingly, we adopt the wellreasoned opinion of the Honorable Pamela A. Ruest as our own for purposes 

of this appellate review and affirm on the basis of the reasoning stated therein.

Orders affirmed.3

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/09/2022

____________________________________________

3 We note that it is well-settled law that “a pro se litigant must comply with 

the procedural rules set forth in the Pennsylvania Rules of the Court.” Ebbert 

v. Mest, 2016 WL 5266540, at *1 (Pa.Super. 2016), citing Commonwealth 

v. Lyons, 833 A.2d 245, 251-252 (Pa.Super. 2003).
Received 2/8/2021 257.02 PCirculated 03/21/2022 11:22 AM M Superior Court Middle District 

Filed 2/8/2021 2.57.00 PM Superior Court Middle District 

76 MDA 2021 

IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA 

CIVIL ACTION-LAW 

ELLISON 0. JORDAN 

Plaintiff 

v. 

THE PENNSYLVANIA STATE 

UNIVERSITY, SANDY BARBOUR, 

CHARMELLE GREEN, JAMES FRANKLIN, 

ANDY MUTNAN, RENEE MESSINA, 

SCOTT A. LYNCH, M.D., PETER H. 

SEIDENBERG, M.D., JOHN S. REID, M.D., 

BRENDAN M. CARR, TIM BREAM, 

WES SOHNS, PENN STA TE HEALTH, 

TIE MILTON S. HERSHEY MEDICAL 

CENTER, PENN STATE HERSHEY 

MEDICAL GROUP, and MOUNT 

NITT ANY HEAL TH, 

Defendants 

Attorney for Plaintiff. 

Attorney for Defendants PSU, Sandy Barbour, Charmelle 

Green, and James Franklin: 

Attorney for Defendants Andy Mutnan, Renee Messina, 

Brendan Carr, Tim Bream, and Wes Sohns: 

Attorney for Defendant Scott A. Lynch, M.D.: 

Attorney for Defendants Peter H. Seidenberg, M.D., John 

S. Reid, M.D., Penn State Health, The Milton S. Hershey 

Medical Center, and Penn State Hershey Medical Group: 

Attorney for Defendant Mount Nittany Health: 

OPINION and ORDER 

No. 2020-0028 

Pro Se 

James P. DeAngelo, Esq. 

.Joe H. Tucker, Esq. 

Wiley P. Parker, Esq. 

April C. Simpson, Esq. 

Brian J. Bluth, Esq. 

Ruest, P.J. 

Presently before the Court arc Petitions to Hold Ellison 0. Jordan ("Plaintiff'') in 

Contempt of Court filed on August 24, 2020 by Defendant Scott A. Lynch, M.D., Defendants 

Andy Mutnan, Renee Messina, Brendan Carr, Tim Bream, and Wes Sohns, and Defendants Peter 

H. Seidenberg, M.D., John S. Reid, M.D., Penn State Health, The Milton S. Hershey Medical 

IO LJRD LS 

Circulated 04/29/2022 11:45 AM
Center, and Penn State Hershey Medical Group. Defendant Mount Nittany Health filed a Motion 

to Dismiss and Petition for Contempt on August 28, 2020. Also before the Court are Defendants 

The Pennsylvania State University, Sandy Barbour, Charmelle Green, and James Franklin's 

(collectively, the "University Defendants") Preliminary Objections filed on August 31, 2020 and 

Plaintiffs Praecipe for Default Judgment and Praecipe for Determination filed on September 2, 

2020 and September 3, 2020, respectively. University Defendants filed a Brief in Support on 

August 31, 2020 and Plaintiff filed a Response in Opposition on September 16, 2020. Plaintiff 

also filed a Statement of Support on October 19, 2020. A hearing was held on October 12, 2020. 

Upon the consideration of the arguments of counsel and the filings, the Court finds as follows: 

Background 

This case arises from injuries Plaintiff allegedly sustained during his time as a studentathlete on the Penn State University football team between June 2016 and August 2019. 

PlaintifI's cause of action specifically focuses on his treatment following a December 27, 2017 

surgery to repair a right knee patellar fracture he suffered while practicing for the Fiesta Bowl in 

Phoenix, Arizona. Plaintiff alleges he reinjured his knee on January 8, 2018 while receiving 

treatment from Wes Sohns, which required Plaintiff to undergo surgery on January 12, 2018. In 

April 2018, Plaintiff reported feeling pain and discomfort in his right knee. In September 2018, 

Plaintiff was evaluated for reported pain and swelling in his right knee, which was attributed to 

tendinitis and the prominence of the plate placed during surgery, but did not rule out the 

possibility of an infection. 

Between September and November 2018, Plaintiff continued to experience right knee 

pain and Plaintiff underwent a right knee arthroscopy on November 21, 2018. On November 25, 

2018, Plaintiff and his parents attended a meeting with fifteen ( 15) representatives of Penn State 

2 
University, who asked Plaintiff to sign a document voluntarily withdrawing himself from the 

football team. On December 30, 2018, Plaintiff was taken to the Emergency Room due to 

extreme knee pain and swelling. Plaintiff informed James Franklin on January 5, 2019 that his 

right knee was infected and Plaintiff underwent surgery to address the infection on January 8, 

2019. On August 19, 2019, Plaintiff was removed from the Penn State football team. 

Plaintiff originally filed a Complaint on January 31, 2020 based on a theory of medical 

malpractice. University Defendants filed Preliminary Objections on February 24, 2020. Plaintiff 

filed a Certificate of Merit for each Defendant on February 28, 2020, but failed to file a written 

statement from an appropriate licensed professional with the Certificates of Merit. All of the 

named Defendants other than the University Defendants filed a Notice of Intention to Enter 

Judgment of Non Pros for Failure to File a Written Statement from an Appropriate Licensed 

Professional between March 4 and March 11, 2020. Plaintiff filed an Answer to Defendants' 

Notices on April 17, 2020. On May 12 and May 13, 2020, the Centre County Prothonotary's 

Office entered Judgment of Non Pros in favor of all of the Defendants other than the University 

Defendants. 

On June 1, 2020, Plaintiff filed a Petition for Relief of Judgment of Non Pros requesting 

the Court strike the judgments and restore Plaintiff's Complaint in its entirety. Between June 12 

and June 22, 2020, each of the Defendants filed a Response seeking to uphold their Judgement of 

Non Pros. A hearing was held on June 25, 2020. On July 15, 2020, the Cami entered an Opinion 

and Order denying Plaintiff's Petition for Relief, sustaining the University Defendants' 

Preliminary Objections, and dismissing Plaintiff's medical malpractice claims with prejudice. 

The Court dismissed Plaintiffs Complaint and allowed Plaintiff to file an Amended Complaint 

within twenty (20) days against only the University Defendants and only raising potential claims 

3 
of intentional or negligent infliction of emotional distress and ordinary negligence. Plaintiff filed 

a Petition for Reconsideration on July 24, 2020, which was denied by the Court on July 30, 2020. 

Plaintiff filed an Amended Complaint on August 3, 2020, and a Supplemental Amended 

Complaint on August 12, 2020, both of which included claims against all of the Defendants from 

Plaintiffs original Complaint. Between August 7, 2020 and August 14, 2020, counsel for a11 of 

the Defendants except for the University Defendants sent letters to Plaintiff requesting that he 

remove them from his Amended Complaint or they would seek to hold Plaintiff in contempt of 

court. Plaintiff failed to respond and Defendant Lynch, Defendant Mount Nittany Health, 

Defendants Mutnan, Messina, Carr, Bream, and Sohns, and Defendants Seidenberg, Reid, Penn 

State Health, The Milton S. Hershey Medical Center, and Penn State Ilershey Medical Group 

( collectively, "Petitioners") each filed a Petition to II old Plaintiff in Contempt of Court. 

On August 24, 2020, Plaintiff filed Notices of Intention to Enter Default Judgments 

against each of the Defendants because they allegedly failed to enter a written appearance and 

file in writing with the Court their defenses or objections to Plaintiff's Amended Complaint. 

University Defendants filed Preliminary Objections and a Brief in Support on August 31, 2020. 

Plaintiff filed a Praecipe for Default Judgment on September 2, 2020 against University 

Defendants for their alleged failure to enter a written appearance and file their defenses or 

objections. Plaintiff also filed a Praecipe for Determination on September 3, 2020 alleging 

University Defendants' Preliminary Objections were not filed in accordance with Pennsylvania 

law for failing to serve Plaintiff a copy of their Preliminary Objections. Plaintiff filed a Response 

in Opposition to University Defendant's Preliminary Objections on September 16, 2020, and an 

Answer to Order to Show Cause on October 9, 2020. Plaintiff also filed a Statement of Support 

on October 19, 2020. A hearing was held on October 12, 2020. 

4 
Discussion 

I. Petitions for Contempt 

In order for a party to be held in contempt, "the moving party must prove that: (1) the 

contemnor had notice of the specific order or decree that he disobeyed; (2) the act constituting 

the violation was volitional; and (3) the contemnor acted with wrongful intent." Gunther v. 

Bolus, 2004 PA Super 8, 853 A.2d 1014, 1017 (citing Marian Shop, Inc. v. Baird, 448 

Pa.Super. 52, 670 A.2d 671,673 (1996)). Petitioners' Petitions for Contempt are requesting that 

the Court hold Plaintiff in civil contempt for failing to comply with the Court's Orders of July 

15, 2020 and July 30, 2020."The purpose of civil contempt is to compel performance of lawful 

orders, and in some instances, to compensate the complainant for the loss sustained, Gunther, 

853 A.2d at 1018 (citing Cecil Township v. Klements, 821 A.2d 670, 675 (Pa.Commw.2003)). 

Here, Petitioners are seeking to compel performance and receive compensation for the losses 

Petitioners sustained in legal fees and expenses they incurred in pursuing a contempt order and 

their removal from the instant litigation. 

"[I]n civil contempt proceedings the burden is on the complaining party to prove 

noncompliance by a preponderance of the evidence..." Barrett v. Barrett, 470 Pa. 253,263,368 

A.2d 616, 621. Petitioners must show by a preponderance of the evidence that Plaintiff had 

notice of the Court's July 15 and July 30" Orders, purposely chose to violate the Orders, and 

acted with wrongful intent in violating the Orders. It is clear from the record that Plaintiff had 

actual notice of the July 15 Order as he filed a Petition for Reconsideration of the Order on July 

24, 2020. Plaintiff also had actual notice of the July 30" Order as Plaintiff admits in his 

Supplemental Amended Complaint and in his Answer to Order to Show Cause that the 

Supplemental Amended Complaint was submitted in response to the July 30" Order in an 

5 
attempt to comply with that Order. As such, Plaintiff possessed actual knowledge of both of the 

Orders at issue here. 

Petitioners allege Plaintiff declined to comply with the Court's July 15" and July 30 

Orders when Plaintiff filed an Amended Complaint on August 3, 2020 naming Petitioners as 

defendants and asserting claims against Petitioners. Petitioners argue Plaintiff further refused to 

comply with the Court's Orders by filing a Supplemental Amended Complaint on August 12, 

2020 with claims against Petitioners. Petitioners claim Plaintiff filed his Supplemental Amended 

Complaint even after receiving letters from counsel for Petitioners requesting Plaintiff remove 

Petitioners as defendants in compliance with the Court's Orders and informing Plaintiff that 

Petitioners would petition the Court to have Plaintiff held in contempt if Petitioners were not 

removed. 

The Court's July 15, 2020 Order dismissed Plaintiff's Complaint and stated Plaintiff had 

twenty (20) days to file an Amended Complaint against only the University Defendants and only 

raising potential claims of intentional or negligent infliction of emotional distress and ordinary 

negligence. The rest of the claims in Plaintiff s Complaint, including medical malpractice claims, 

were dismissed with prejudice. The University Defendants were explicitly identified in the Order 

as The Pennsylvania State University, Sandy Barbour, Charmelle Green, and James Franklin. 

The Court's July 30, 2020 Order denied Plaintiff s Petition for Reconsideration and again stated 

Plaintiff could file an Amended Complaint raising claims of intentional or negligent infliction of 

emotional distress and ordinary negligence against only the University Defendants. The Court 

believes these were clear and concise orders stating Plaintiff could only raise particular claims 

against particular defendants, and instructing Plaintiff that he was permitted to bring claims 

against only the University Defendants, and not Petitioners. 

6 
In Plaintiffs Answer to Order to Show Cause, Plaintiff claims the Supplemental 

Amended Complaint complies with the Court's Orders. Plaintiff states he did not receive the 

Court's July 30, 2020 Order until August 6, 2020 so he filed the Amended Complaint before 

receiving the July 30 Order and filed the Supplemental Amended Complaint in response. 

Plaintiff argues the Supplemental Amended Complaint complies with the Court's Orders because 

it is a "Civil Action of Negligence and Vicarious Liability" against The Pennsylvania State 

University and The Pennsylvania State University -Known and Unknown Defendants, which 

Plaintiff identifies as the "University Defendants." Plaintiff states it was his understanding that 

"Known Defendants" must be identified by name in a complaint and Plaintiff named all of the 

Petitioners because at all relevant times Petitioners held multiple positions which made them 

agents, servants, employees, subsidiaries, affiliates, and/or independent contractors to/of the 

Pennsylvania State University. Plaintiff asserts the Court's Orders did not instruct Plaintiff to 

remove the names of specific defendants or the names of individuals alleged to have been 

negligent, but only ordered that Plaintiff could not pursue medical malpractice claims. 

Plaintiff has attempted to expand the definition of the "University Defendants" identified 

by the Court in its Orders to include all of the named defendants from Plaintiffs original 

complaint. Plaintiff cannot bring claims against Petitioners simply by calling them "University 

Defendants" based on their connections to the Pennsylvania State University. The Court 

explicitly stated Plaintiff could bring specific claims against only the University Defendants and 

expressly identified the University Defendants as The Pennsylvania State University, Sandy 

Barbour, Charmelle Green, and James Franklin. The Court's Orders were clear and 

unambiguous. Plaintiff's interpretation does not conform to the plain meaning of the Orders. The 

Amended Complaint and the Supplemental Amended Complaint are both in violation of the 

7 
Court's Orders. Therefore, the second element required for a finding of contempt is satisfied as 

Plaintiff voluntarily filed the Amended Complaint and the Supplemental Amended Complaint in 

violation of the Court's Orders. 

For Plaintiff to be held in contempt, Petitioners must show Plaintiff acted with wrongful 

intent. Petitioners did not offer any direct evidence that Plaintiff acted with wrongful intent, 

however, a party's wrongful intent can often be "inferred from circumstantial evidence." Waggle 

v. Woodland Hills Ass'n, Inc., 213 A,34 397, 403 (Pa.CmwIth. 2019). Plaintiff's wrongful intent 

"can be inferred where it is clear from the language of the court order that the conduct in 

question violates the court order and the evidence shows that the contemnor knowingly failed to 

comply." Id. at 404. "[W]hen making a determination regarding whether a defendant acted with 

wrongful intent, the court should use common sense and consider context, and wrongful intent 

can be imputed to a defendant by virtue of the substantial certainty that his actions will violate 

the court order." Commonwealth • Reese, 2017 PA Super 47, 156 A.3d 1250, 1258 

Here, Plaintiffs wrongful intent can be inferred based on the circumstances of Plaintiffs 

actions. It is clear from the language of the Court's Orders that Plaintiffs filings would violate 

the Court's Order. There was a substantial certainty that Plaintiffs actions in filing claims 

against the Petitioners would violate the Court's Orders. Not only did the Court's Orders 

expressly state Plaintiff could only file claims against University Defendants, but Plaintiff also 

received multiple letters from Petitioners informing him his Amended Complaint was in 

violation of the Court's July 15, 2020 Order. Even after the Court's Orders of July 15, 2020 and 

July 30, 2020 and the letters from Petitioners, Plaintiff still filed a Supplemental Amended 

Complaint stating claims against Petitioners. Based on the evidence, Plaintiff knowingly failed to 

comply with the Court's Orders and acted with wrongful intent. 

8 
Plaintiff had actual notice of the Court's Orders he disobeyed, Plaintiffs acts constituting 

the violations were volitional, and Plaintiff acted with wrongful intent. Therefore, the Court 

concludes that Plaintiffs conduct in filing the Amended Complaint and the Supplemental 

Amended Complaint was in violation of the clear mandates of the aforementioned Orders. 

Accordingly, Petitioner's Petitions to Hold Plaintiff in Contempt of Court are GRANTED. 

However, the Court will not award sanctions and attorney's fees to Petitioners, but will 

DISMISS Plaintiffs claims against Petitioners in his Amended Complaint and Supplemental 

Amended Complaint. 

II. Plaintiff's Praecipe for Default Judgment and Praecipe for Determination 

Plaintiff filed a Praecipe for Default Judgment on September 2, 2020 and a Praecipe for 

Determination on September 3, 2020. In Plaintiffs Praecipe for Default Judgment, Plaintiff 

requested the Court enter judgment in favor of Plaintiff and against the University Defendants 

for failure to enter a written appearance and file in writing with the Court their defenses or 

objections to the claims set forth in Plaintiffs Supplemental Amended Complaint. In Plaintiff's 

Praecipe for Determination, Plaintiff requested the Court dismiss University Defendants' 

Preliminary Objections and Brief in Support and enter default judgment in Plaintiffs favor 

because University Defendants' Preliminary Objections were not filed or served in accordance 

with Pennsylvania law. Plaintiff claims the Preliminary Objections were not properly served on 

Plaintiff and University Defendants failed to state the date of service and certify the date and 

manner of service. Plaintiff alleges University Defendants failed to file within the required time 

and did not provide Plaintiff with a notice to defend. 

University Defendants filed their Preliminary Objections with the Court on August 31, 

2020, within the time required for filing. In their Preliminary Objections, University Defendants 

9 
included a Notice to Plead and a Certificate of Service stating the Preliminary Objections had 

been served upon Plaintiff via Electronic Mail and first Class U.S. Mail. University Defendants' 

filing of their Preliminary Objections and Brief in Support did not violate the Pennsylvania Rules 

of Civil Procedure or any other Pennsylvania law. University Defendants' service of process was 

proper under Pa.R.C.P. 403 and 404. Plaintiff resides outside of the Commonwealth and likely 

had yet to receive a copy of the filings in the mail at the time Plaintiff filed his Praecipe for 

Default Judgment and Praecipe for Determination. 

Accordingly, Plaintiff's Praecipe for Default Judgment and Praecipe for Determination 

are DENIED. 

IJJ. The University Defendants' Preliminary Objections 

The University Defendants raise preliminary objections seeking to dismiss Plaintiffs 

Supplemental Amended Complaint because of improper service of a writ of summons and a 

complaint pursuant to Pa.R.C.P. 1028(a)(1); failure to conform to law or rule of court pursuant to 

Pa.R.C.P. 1028(a)(2); and legal insufficiency of a pleading ( demurrer) pursuant to Pa.R.C.P. 

1028(a)(49). 

A. Improper Service 

The Pennsylvania Rules of Civil Procedure require services of process on a corporation 

or similar entity be made by a sheriff, by handing a copy of the writ to an officer, person-incharge, or authorized agent. See Pa.R.C.P. 424. The Pennsylvania Rules of Civil Procedure also 

require service of process on an individual be made by a sheriff, by handing a copy to the 

individual, an adult residing at the individual's residence, or to an agent or person-in-charge of 

the individual's usual place of business. See Pa.R.C.P. 402. In this case, Plaintiff has served the 

Writ of Summons on the University Defendants via certified mail and the Supplemental 

10 
Amended Complaint via email. Plaintiff has failed to effectuate proper service of process on the 

University Defendants. Accordingly, the University Defendants' Preliminary Objection based on 

improper service pursuant to Pa.R.C.P. 1028(a)(l) is SUSTAINED. 

B. Failure to Conform to Law or Rule of Court 

Pa.R.C.P. 1028(a)(2) provides for preliminary objections when a pleading fails to 

confonn to law or rule of court. University Defendants argue most of the claims raised in 

Plaintiff's Supplemental Amended Complaint are impermissible claims and claims already 

dismissed with prejudice. University Defendants assert these claims violate the Court's July 15, 

2020 Order, which dismissed a number of Plaintiffs claims and stated Plaintiff could only raise 

claims for intentional or negligent infliction of emotional distress and ordinary negligence in any 

amended complaint. University Defendants allege eighteen (18) of Plaintiffs twenty-one (21) 

claims raised in the Supplemental Amended Complaint are precluded by the Court's Order. 

Plaintiff also challenges these claims as legally insufficient pursuant to Pa.R.C.P. 1028(a)(4). 

University Defendants assert Plaintiff's claims of Violation of Pennsylvania Law of 

Negligent Performance (Count II), Negligence Ostensible Agency/Restatement (Second) Tort 

(Count IV), Negligence - Informed Consent (Count V), Negligence -- Misrepresentation (Count 

VI), Negligence Hospital-Acquired Infection (Count VII), Misfeasance/Malfeasance (Count 

VIII), Loss of Chance (Count IX), Negligence - Entity/Physician-Patient Relationship (Count X), 

Negligence --Supervision (Count XI), Negligence- Failure to Pay Medical Expenses (Count 

XII), Fraud (Count XV), Negligence- Professional (Count XVI), and Negligence Per Se (Count 

XXI) are all attempts by Plaintiff to couch his medical malpractice claims as some type of 

negligence claim. In addition to the aforementioned claims, University Defendants also maintain 

that Plaintiffs claims of Rreach of Duty/Fiduciary Duty (Count I), Rattery (Count XVII), False 

11 
Imprisonment (Count XVIII), Concerted Tortious Conduet (Count XIX), and Violation of 

Pennsylvania Ant-Hazing Law (Count XX) are barred by the Court's Order. This Court agrees. 

Counts 11, IV, V, VI, VII, VIII, IX, X, XI, XII, XV, XVI, and XXI are all based on 

Plaintiff's medical care and treatment. Each claim mentions and accuses one of the dismissed 

parties of negligence in Plaintiffs medical treatment. Claims of negligent medical care and 

treatment are medical malpractice claims, All of Plaintiffs medical malpractice claims were 

dismissed in the Court's July 15, 2020 Order. Plaintiff cannot now assert medical malpractice 

claims by simply referring to them as negligence claims. Many of these claims are variations of 

claims already dismissed by the Court or are not standalone causes of actions recognized in the 

Commonwealth. 

Violation of Pennsylvania Law of Negligent Performance (Count II) avers multiple 

alleged violations of Restatement (Second) of Torts based on the conduct of Defendant Sohns, 

but does not specify how any actions by the University Defendants violated any section of the 

Restatement. Violations of the Restatement can be alleged in an attempt to establish negligence 

generally, but there is no separate cause of action for violation of Pennsylvania law of negligent 

performance. Negligence - Ostensible Agency/Restatement (Second) Tort (Count IV) is also 

based on medical care and treatment Plaintiff received from the dismissed defendants. Count IV 

states University Defendants had a duty to exercise reasonable care to select a contractor and a 

duty to ensure the safe performance of medical related services, but does not state how 

University Defendants breached these duties. Count IV is essentially alleging vicarious liability 

against University Defendants for Plaintiff's medical treatment by dismissed defendants. 

Negligence- Supervision (Count XI) asserts University Defendants failed to provide proper 

supervision while Plaintiff was being treated, failed to properly instruct and warn of possible 

12 
risks, and, therefore, University Defendants are vicariously liable for negligent acts by dismissed 

defendants during Plaintiffs treatment. Counts II, IV, and XI are not recognized causes of 

action, but may go towards establishing elements of Plaintiff's ordinary negligence claim (Count 

Ill). 

Negligence Informed Consent (Count V), Negligence Hospital-Acquired Infection 

(Count VII), and Negligence - Entity/Physician-Patient Relationship (Count X) are plainly claims 

of medical malpractice being restated as negligence claims. Loss of Chance (Count IX) is 

typically applied in medical malpractice cases. Here, the Loss of Chance claim alleges Plaintiff 

would have had a substantial opportunity of avoiding additional injury and treatment if 

University Defendants had correctly diagnosed and treated the infection. Plaintiffs diagnosis is 

an issue directly related to Plaintiff's medical treatment. University Defendants were not 

involved in the diagnosis or treatment of Plaintiff. Plaintiff cannot bring medical malpractice 

claims against University Defendants. 

Negligence -Misrepresentation (Count VI) and Fraud (Count XV) allege University 

Defendants misrepresented, concealed, and interfered with medical information provided to 

Plaintiff. Both of these claims are medical malpractice claims dealing with Plaintiffs reliance on 

medical information received from dismissed defendants and are similar to Plaintiffs previously 

dismissed civil conspiracy claim. Negligence-Professional (Count XVI) is the same claim as 

the professional malpractice and professional misconduct claims the Court already dismissed. 

Plaintiff's Negligence Per Se claim (Count XXI) fails to identify which statute University 

Defendants allegedly violated and simply states their actions were inherently negligent. 

Misfeasance/Malfeasance (Count VII) is not :recognized in Pennsylvania as a cause of action. See 

Greco • Senchak, CIV.A. 3:12-2576, 2013 WL 4520847, at 6 (M.D. Pa. Aug. 26, 2013), 

13 
amended on reconsideration in part, CIV.A. 3:12-2576, 2013 WL 5755214 (M.D. Pa. Oct. 23, 

2013) (stating "Pennsylvania law does not recognize such a [Misfeasance/Malfeasance] claim, it 

appears that plaintiff is merely using these words as synonyms for negligence...") 

Concerted Tortious Conduct (Count XIX) is essentially a civil conspiracy claim which 

was previously dismissed with prejudice by the Court's Order. There is no factual basis to 

support Counts l, XVll, XVIII, and XX. Breach of Duty would go toward establishing 

negligence, but is not its own cause of action. Breach of Fiduciary Duty has not been established 

by Plaintiff. Plaintiff also failed to establish causes of action based on battery, false 

imprisonment, and violation of Pennsylvania's Anti-Hazing Law, 18 Pa.C.S.A. § 2801, et seq. 

These claims are also outside of the claims Plaintiff was specifically told he could bring in an 

amended complaint in the Court's July 15, 2020 Order. 

Plaintiff did not aver facts establishing there was an offensive contact by any of the 

University Defendants which would constitute battery. See Restatement (Second) of Torts§ 18 

(1965). Plaintiff also failed to aver facts establishing false imprisonment as University 

Defendants did not confine Plaintiff within boundaries fixed by the University Defendants 

simply because they did not provide Plaintiff with transportation to a medical appointment. See 

Restatement (Second) of Torts § 35 (1965). University Defendants told Plaintiff that he could see 

any medical professional he chose, but he would have to transport himself to those appointments. 

University Defendants offered to reimburse any transportation costs. There is also insufficient 

facts alleged to establish a violation of Pennsylvania's anti-hazing law as University Defendants 

did not cause, coerce or force Plaintiff to violate federal or state criminal law, to consume 

anything, or to endure brutality of a physical, mental, or sexual nature for the purpose of 

initiating or continuing Plaintiffs membership in an organization. See 18 Pa.C.S.A. $ 2802. 

14 
All of the aforementioned claims violate the Court's July 15, 2020 Order which stated 

Plaintiff was only permitted to bring claims based on intentional and negligent infliction of 

emotional distress as well as ordinary negligence. Other than Plaintiff s claims for negligence, 

intentional infliction of emotional distress, and negligent infliction of emotional distress, all of 

the claims contained in the Supplemental Amended Complaint are claims previously dismissed 

with prejudice by the Court. Plaintiff s Supplemental Amended Complaint fails to conform to the 

Court's Order. Accordingly, the University Defendants' Preliminary Objection based on failure 

to conform to law or rule of court pursuant to Pa.R.C.P. 1028(a)(2) is SUSTAINED. 

C. Legal Insufficiency (Demurrer) 

Pa.R.C.P. 1028(a)(4) provides for preliminary objections when a pleading is legally 

insufficient. A demurrer tests whether, based on the facts averred, recovery is possible under the 

law. Bilt-Rite Contractors, Inc, , The Architectural Studio, 581 Pa. 454, 866 A.2d 270, 274 

(2005). In considering preliminary objections based on demurrer, "all material facts set forth in 

the challenged pleadings are admitted as true, as well as all inferences reasonably deducible 

therefrom." Albert • Erie Ins. Exchange, 2013 PA Super 59, 65 A.3d 923, 930-31 (citing 

Feingold • Hendrak, 2011 PA Super 34, 15 A.3d 937, 941). A court is not required to accept 

conclusions oflaw, unwarranted inferences, allegations, or expressions of opinion set forth in the 

pleadings when ruling on preliminary objections. Bayada Nurses, Inc. v. Com., Dept. of Labor 

and Industry, 607 Pa. 527, 8 A.3d 866 (2010). A court must view all evidence and facts in a 

light most favorable to the non-moving party. Nutrition Mgmt. Servs. Co. v. Hinchcliff, 2007 

PA Super 167, 926 A.2d 531, 535. If there is any doubt as to whether a demurrer is appropriate, 

the doubt must be resolved in favor of overruling the demurrer. Theodore v. Delaware Valley 

School Dist., 575 Pa. 321, 836 A.24 76 (2003). 

15 
University Defendants argue Plaintiffs claims of negligence, negligent infliction of 

emotional distress and intentional infliction of emotional distress fail as a matter of law. 

University Defendants allege Plaintiff's claims are either insufficiently pied or inapplicable to 

the University Defendants. University Defendants assert Plaintiff s claim for ordinary negligence 

fails because it is nothing more than a medical malpractice claim, Plaintiff cannot maintain a 

vicarious liability action against Penn State, and Plaintiff cannot establish the necessary elements 

for any negligence claim. University Defendants allege Plaintiff's inability to establish a 

negligence claim means Plaintiff cannot establish a claim for negligent infliction of emotional 

distress. Finally, University Defendants claim Plaintiff's cause of action for intentional infliction 

of emotional distress also fails because Plaintiff did not allege sufficiently outrageous and 

extreme conduct which would allow him to recover. 

1. Negligence 

To establish a negligence claim, Plaintiff must prove there is a "breach of a legally 

recognized duty or obligation that is causally connected to the damages suffered by the 

complainant." Bilt-Rite Contractors, Inc., 866 A.2d at 280 (quoting Sharpe • St. Luke's 

Hospital, 573 Pa. 90, 821 A.2d 1215, 1218 (2003)); see Wittrien • Burkholder, 2009 PA Super 

23, 965 A.2 1229, 1232 (ln any negligence case, the plaintiff must prove duty, breach, 

causation and damages."). Plaintiff asserts University Defendants assumed a duty to Plaintiff 

when they entered into an agreement for him to join the Penn State football program on an 

athletic scholarship. Plaintiff argues University Defendants' affirmative conduct made them 

responsible for the health and safety of Plaintiff and established a fiduciary duty owed to 

Plaintiff. Plaintiff alleges University Defendants had a duty to care for and protect Plaintiff as 

well as provide a safe environment and implement precautions to reduce risks of hmm. Plaintiff 

16 
contends University Defendants breached their duty owed to Plaintiff by recklessly ignoring their 

duty and this caused Plaintiffs medical and financial damages. 

The Court finds that Plaintiffs negligence claim is nothing more than a medical 

malpractice claim against University Defendants. All of Plaintiffs allegations against University 

Defendants concern alleged damages Plaintiff suffered in connection to his medical treatment 

and care, Count III specifically alleges University Defendants' negligence includes the failure to 

examine properly and diagnose his medical condition, failure to provide, recommend, and refer 

Plaintiff for appropriate diagnostic study, care, consultation, and treatment, failure to properly 

recommend appropriate follow-up with patient, and failure to properly monitor Plaintiffs 

progress. The alleged damages include the delay in the diagnosis and treatment of the infection 

in Plaintiff's knee which rendered him no longer able to participate in football. As the Court 

stated in its July 15, 2020 Opinion and Order, University Defendants are not medical providers 

and cannot be held liable for medical malpractice. Plaintiff cannot maintain his ordinary 

negligence claim against University Defendants since it is, in fact, a medical malpractice claim. 

Plaintiff claims the Pennsylvania State University is vicariously liable for negligence 

because its agents, servants, employees, subsidiaries, affiliates, and/or independent contractors 

were negligent in providing medical treatment. Plaintiff asserts the Pennsylvania State University 

does business as Penn State Health, the Milton S. Hershey Medical Center, and Penn State 

Hershey Medical Group as well as affiliates with Mount Nittany Health. However, all of 

Plaintiff's medical malpractice claims against those other entities and agents were dismissed for 

failure to file a proper certificate of merit so the Penn State University cannot be held vicariously 

liable for their alleged malpractice. 

17 
"[A]bsent any showing of an affirmative act, or failure to act when required to do so, by 

the principal, termination of the claim against the agent extinguishes the derivative claim against 

the principal." Mamalis v. Atlas Van Lines, Inc., 522 Pa. 214, 221, 560 A.2 1380, 1383 (1989). 

"A claim of vicarious liability is inseparable from the claim against the agent since any cause of 

action is based on the acts of only one tortfeasor." Id. Here, Plaintiff failed to aver facts showing 

an affirmative act or failure to act on the part of the University Defendants which would support 

his negligence claim. The termination of the claims against the other defendants in this case 

extinguishes the vicarious liability claim against University Defendants. 

Even if Plaintiffs claims were actually negligence claims and not medical malpractice 

claims, Plaintiff has failed to aver facts which could establish University Defendants are liable 

under a negligence claim directly. Plaintiff argues there is a "special relationship" between 

University Defendants and Plaintiff due to the fact that Plaintiff is a student-athlete recruited by 

the University and given a scholarship to play football. Plaintiff claims the University 

Defendants have an in loco parentis duty. University Defendants assert there is no "special 

relationship" or in loco parentis duty imposed on them, and, therefore, they cannot be held liable 

under a negligence claim. 

·The phrase 'in loco parentis' refers to a person who puts oneself [sic] in the situation of 

a lawful parent by assuming the obligations incident to the parental relationship without going 

through the formality of a legal adoption." Peters v. Costello, 586 Pa. 102, 110-11, 891 A.2d 

705, 710 (2005). In the past, Pennsylvania courts were willing to impose an in loco parentis duty 

on colleges and universities; however, "in modem times, it would be inappropriate to impose an 

in loco parentis duty upon a university." Alummi Ass'n • Sullivan, 524 Pa. 356, 364, 572 A.2d 

1209, 1213 (1990). "[T]he modern American college is not an insurer of the safety of its student. 

18 
Whatever may have been its responsibility in an earlier era, the authoritarian role of today's 

college administrations has been notably diluted in recent decades." Bradshaw • Rawlings, 612 

F.2d 135, 138 (3d Cir. 1979). "[T]he principle of in loco parentis appears no longer to apply to 

college students." Am. Future Sys., Inc. v. Pennsylvania State Univ., 553 F.Supp. 1268, 1282 

(M.D. Pa. 1982). Although there is no in loco parentis duty, that does not mean there is no duty 

on universities whatsoever, especially in cases involving student-athletes recruited by the 

university to play intercollegiate sports. 

In Kleinknecht • Gettysburg College, the Third Circuit found a "College owed [plaintiff] 

a duty of care in his capacity as an intercollegiate athlete engaged in school-sponsored 

intercollegiate athletic activity for which he had been recruited." Kleinknecht • Gettysburg 

Colt,, 989 F,2d 1360, 1369 (3d Cir. 1993). The court stated "a special relationship existed 

between the College and [plaintiffj that was sufficient to impose a duty of reasonable care on the 

College." Id. at 1367. "[T]he College had a duty to provide prompt and adequate emergency 

medical services to [plaintiff], one of its intercollegiate athletes, while he was engaged in a 

school-sponsored athletic activity for which he had been recruited. Id, at 1371. The Pennsylvania 

Supreme Court has also held that universities have a "duty of care to its intercollegiate student 

athletes ... to have qualified medical personnel available at [intercollegiate athletic events], and 

to provide adequate treatment in the event that an intercollegiate student athlete suffered a 

medical emergency." Feleccia • Lackawanna Coll, 215 A.3d 3, 10 (Pa. 2019). 

University Defendants had a duty to exercise reasonable care to protect Plaintiff against 

unreasonable risk of harm. This included a duty "to provide duly licensed athletic trainers for the 

purpose of rendering treatment to its student athletes participating in athletic events." Id. at 15. 

Although the Court finds University Defendants owed a duty to Plaintiff by virtue of his status as 

19 
a student-athlete who was recruited by Penn State University and participated in intercollegiate 

athletic events on behalf of Penn State University, Plaintiffs negligence still fails to survive 

University Defendants' Preliminary Objections. 

Plaintiff has failed to aver facts evidencing a breach of the duty owed by University 

Defendants. In Kleinknecht, the college failed to have prompt and adequate medical services 

available at a school-sponsored athletic event when plaintiff suffered a fatal heart attack at 

lacrosse practice with no athletic trainers present or means of quickly obtaining emergency 

services. See Kleinknecht, 989 F.2d 1360. In Fe!eccia, the college failed to have qualified 

medical personnel ( certified or licensed athletic trainers) available to provide medical treatment 

at a football practice. See Feleccia, 215 A.3d 3. In both cases, the colleges breached their duty by 

failing to ensure qualified medical personnel was available to provide medical treatment during 

athletic events, 

Here, University Defendants exercised reasonable care in ensuring Plaintiff received 

proper medical treatment. Plaintiff has not alleged University Defendants failed to provide 

prompt and adequate medical services at athletic events or failed to have qualified medical 

personnel available to provide medical treatment. In fact, the medical history averred by Plaintiff 

shows University Defendants had multiple qualified and licensed medical professionals and 

athletic trainers tend to Plaintiffs medical needs. University Defendants did not fail to have 

qualified medical personnel available, deny Plaintiff medical care or interfere with his treatment. 

University Defendants referred Plaintiff to qualified physicians, athletic trainers, and medical 

providers. 

There is no special relationship in this case which would impose a duty greater than 

reasonable care. University Defendants did not breach their duty to ensure qualified medical 

20 
personnel were available to render medical assistance and Plaintiff failed to aver facts showing 

University Defendants failed to exercise reasonable care. There were very few factual allegations 

pertaining to University Defendants as Sandy Barbour, Channelle Green, and James Franklin are 

hardly mentioned in Plaintiffs Supplemental Amended Complaint. Instead, the great majority of 

Plaintiffs pleadings focus solely on the actions of the defendants already dismissed from this 

action. Plaintiffs pleadings fail to establish a breach of the duty University Defendants owed to 

Plaintiff, and, therefore, Plaintiffs negligence claim against University Defendants is insufficient 

as a matter of law. 

2. Negligent Infliction of Emotional Distress 

University Defendants' Preliminary Objections argue Plaintiffs negligent infliction of 

emotional distress ("NIED") claims are insufficient as a matter of law and must be dismissed. 

Pennsylvania courts have limited a cause of action based on NIED to four theories of recovery. 

In order to recover, a plaintiff must prove one of four theories: (1) situations where the defendant 

owed the plaintiff a pre-existing contractual or fiduciary duty (the special relationship rule); (2) 

the plaintiff suffered a physical impact (the impact rule); (3) the plaintiff was in a "zone of 

danger" and reasonably experienced a fear of immediate physical injury (the zone of danger 

rule); or ( 4) the plaintiff observed a tortious injury to a close relative (the bystander rule). See 

Doe v. Philadelphia Cmty. Health Alternatives AIDS Task Force, 2000 PA Super 6, 745 A.2d 

25, 27, aff'd, 564 Pa. 264, 767 A.2d 548 (2001). In this case, Plaintiff has failed to establish a 

right to recovery under any of these theories of liability. 

"A lbsent a finding of negligence, [a] negligent: infliction of emotional distress claim 

cannot survive." Brezenski • World Truck Transfer, Inc., 755 A.2d 36, 45 (Pa. Super. Ct 

2000) (citing J,E.J. v, Tri-Cly. Big Bros./Big Sisters, Inc., 692 A.2 582, 586 (Pa. Super. Ct. 

21 
1997)). Given that Plaintiff has failed to establish a claim of negligence, Plaintiffs negligent 

infliction of emotional distress also fails. Plaintiff cannot recover under the bystander theory as 

he did not observe a tortious injury to a close relative. Plaintiff cannot recover under the zone of 

danger theory as he did not aver facts alleging he experienced a fear of immediate physical 

impact, rather Plaintiff alleges a special relationship existed between the parties and he suffered a 

physical impact due to University Defendants' negligence. 

Plaintiff cannot recover under the special relationship theory because it requires him to 

establish University Defendants acted negligently by breaching a duty owed to Plaintiff. Plaintiff 

would also have to show negligence to recover under the impact rule. Recovery is available 

under the impact rule only "where a plaintiff sustains bodily injuries... accompanied by fright or 

mental suffering directly traceable to the peril in which the defendant's negligence placed the 

plaintiff..." Brown • Philadelphia Coll. of Osteopathic Med., 449 Pa.Super. 667, 679, 674 A.2d 

1130, 1135--36 (1996). Plaintiff has failed to establish University Defendants' negligence as he 

cannot show that University Defendants breached a duty they owed to Plaintiff. As a result of 

Plaintiffs failure to establish a negligence claim against University Defendants, Plaintiffs claim 

for negligent infliction of emotional distress is insufficient as a matter of law. 

3. Intentional Infliction of Emotional Distress 

Count XIV of Plaintiff's Supplemental Amended Complaint is based on a cause of action 

of intentional infliction of emotional distress ("IIED"). The four elements Plaintiff must show to 

establish this claim are: "() the conduct must be extreme and outrageous; (2) the conduct must 

be intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be 

severe." Madreperla , Williard Co., 606 F.Supp. 874, 879 80 (E.D. Pa. 1985) (citing Chuy • 

Philadelphia Eagles Football Cub, 595 F.2d 1265, 1273 (3d Cir.1979)). For an IIED claim to 

22 
survive a preliminary objection, a "court must determine, as a matter of law, whether there is 

sufficient evidence for reasonable persons to find extreme or outrageous conduct." Id. The 

conduct must be "so outrageous in character and so extreme in degree, as to go beyond all 

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized 

community." Rinehimer v. Luzerne Cty. Cmty. Coll., 372 Pa.Super. 480, 494-95, 539 A.2d 

1298, 1305 (1988); see Restatement (Second) of Torts $ 46, comment d (1965). 

Plaintiff claims University Defendants' extreme and outrageous conduct was that they 

knew or should have known oftortious conduct yet allowed it to happen or did nothing about it 

in reckless disregard of Plaintiff's health and rights. During the hearing on October 12, 2020, 

Plaintiff pointed to the failure to correctly diagnose the infection in his knee after the CT scan in 

September 2018 as extreme and outrageous conduct. University Defendants argue Plaintiff has 

barely alleged any conduct by the University Defendants, let alone conduct which could rise to 

the level of outrageous or extreme conduct. University Defendants assert Plaintiff failed to allege 

how any actions by the University Defendants caused his injuries. University Defendants claim 

all the charged actions which caused his injuries relate to his medical care and are wholly 

unrelated to University Defendants. 

While Pennsylvania recognizes the cause of action for IIED, courts "have allowed 

recovery in only very egregious cases" Hoy • Angelone, 456 Pa.Super. 596, 610, 691 A.2d 476, 

482 (1997), as modified, 456 Pa.Super. 615, 691 A.2d 485 (1997), and affd, 554 Pa. 134, 720 

A.2d 745 (1998), and aft'd, 554 Pa. 134, 720 A.24 745 (1998). Based on the facts averred by 

Plaintiff in this case, University Defendants' conduct does not rise to the level necessary to allow 

for recovery under a claim ofIIED. Defendant Barbour was only brought up in Plaintiff's factual 

allegations once when a coach mentioned her name. The only factual allegations against 

23 
Defendant Green relate to her denial of the University transporting Plaintiff to a physical therapy 

session, but offering to reimburse the costs of an Uber if Plaintiffs parents were unable to 

transport him. There were also very few factual allegations against Defendant Franklin and those 

centered around the University's offer of a scholarship, emails from Plaintiffs parents to 

Defendant Franklin, and Plaintiff's withdrawal from and return to the football team. None of 

these allegations aver facts establishing University Defendants' conduct was extreme or 

outrageous. No factual allegations show University Defendants were involved in medical 

diagnoses, medical decisions, or medical treatment. 

Plaintiff has failed to allege sufficient facts to show University Defendants' conduct was 

extreme and outrageous. Plaintiff cannot satisfy all of the elements necessary to establish a claim 

of intentional infliction of emotional distress, and, therefore, Plaintiffs intentional infliction of 

emotional distress claim is legally insufficient. 

Accordingly, University Defendants' Preliminary Objections to Plaintiffs claims of 

negligence, negligent infliction of emotional distress, and intentional infliction of emotional 

distress pursuant to Pa.R.C.P. 1028(a)(4) are SUSTAINED. 

ORDER 

AND NOW, this "day of December, 2020, the Court ORDERS as follows: 

1. Defendant Scott A. Lynch, Defendants Andy Mutnan, Renee Messina, Brendan Carr, 

Tim Bream, and Wes Sohns, Defendants Peter H. Seidenberg, M.D., John S. Reid, 

M.D., Penn State Health, The Milton S. Hershey Medical Center, and Penn State 

Hershey Medical Group, and Defendant Mount Nittany Health's ("Pettoners") 

Petitions to Hold Plaintiff in Contempt of Court are GRANTED and all of Plaintiffs 

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claims against Petitioners in his Amended Complaint and Supplemental Amended 

Complaint are DISMISSED with prejudice. 

2. Plaintiffs Praecipe for Default Judgment and Praecipe for Determination are 

DENIED. 

3. Defendants The Penn State University, Sandy Barbour, Charmelle Green, and James 

Franklin's ("University Defendants") Preliminary Objections to Plaintiff's 

Supplemental Amended Complaint pursuant to Pa.R.C.P 1028(a)(l ), 1028(a)02), and 

1028(a)(4) are SUSTAINED. 

4. Counts I through XXI are DISMISSED with prejudice. 

5. Plaintiffs Supplemental Amended Complaint is DISMISSED with prejudice. 

BY THE COURT: 

Pamela A. Ruest, President Judge 

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