IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mickey Santos Colon, :

Appellant :

:

v. :

:

Correct Care Solutions, LLC, :

Dr. Roble, Theresa Delbalso, :

Christopher Oppman, John Wetzel : No. 834 C.D. 2018

and Susan Wislosky[1]: Submitted: November 2, 2018

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: August 8, 2019

Mickey Santos Colon (Colon) appeals from the February 28, 2018

order of the Court of Common Pleas of Schuylkill County (trial court), which 

 

1 The Pennsylvania Superior Court transferred the instant appeal to this Court because the

Superior Court deemed this action to be a “civil action against the Commonwealth government 

and Commonwealth officers acting in an official capacity.” Superior Court Order dated June 19, 

2018. In addition to naming Dr. Roble and Correct Care Solutions, LLC (CCS) as defendants, 

Colon initiated this action against: Theresa Delbalso (Delbalso), Department of Corrections 

(Department) Superintendent; Christopher Oppman (Oppman), Department Deputy Secretary; 

John Wetzel (Wetzel), Department Secretary; and Susan Wislosky (Wislosky), retired Department 

registered nurse. See Complaint, Original Record (O.R.) Item No. 11. (Delbalso, Oppman, Wetzel 

and Wislosky are collectively referred to as Department Defendants). This appeal involves the 

trial court’s dismissal, on preliminary objections, of Colon’s Second Amended Complaint, which 

did not include the Department Defendants. The Department Defendants had been named in 

Colon’s initial Complaint as well as his Amended Complaint. By order dated November 17, 2017, 

the trial court granted the Department Defendants’ preliminary objections to Colon’s Amended 

Complaint and dismissed the Amended Complaint. Colon subsequently filed the Second Amended 

Complaint against only Dr. Roble and CCS.
2

granted the preliminary objections of Correct Care Solutions, LLC (CCS) and David 

Roble, M.D. (Dr. Roble) and dismissed with prejudice Colon’s Second Amended 

Complaint.2 Upon review, we affirm.

The Second Amended Complaint sets forth the following allegations. 

At all relevant times, Colon was an inmate housed at State Correctional InstitutionMahanoy (SCI-Mahanoy). Second Amended Complaint ¶ 1. CCS is the health care 

provider for all Department of Corrections (Department) facilities. Id. ¶ 3. Dr. 

Roble is a licensed physician acting as an agent of CCS by providing medical 

services to inmates at SCI-Mahanoy. Id. ¶ 2. On or about April 26, 2016, Dr. Roble

prescribed a medication for Colon that caused his blood pressure to spike, requiring 

outside hospitalization on April 30, 2016. Id. ¶ 4. Colon was informed, in the 

presence of two transporting officers, that he was given the wrong medication. Id. 

Colon alleges that he filed grievances and appeals to the final level through the 

inmate grievance system. See id. ¶¶ 5-11. Count I of the Second Amended 

Complaint asserts a claim for medical negligence against Dr. Roble. Id. at 3. Count 

II of the Second Amended Complaint asserts both vicarious liability and corporate 

negligence claims against CCS. Id. at 4.

Dr. Roble and CCS filed preliminary objections, challenging the legal 

and factual sufficiency of both Counts. The trial court granted the preliminary 

objections, and Colon appealed.3 

 

2 Appellees Correct Care Solutions, LLC and Dr. Roble were precluded from filing a brief 

in this matter for failure to comply with this Court’s order of September 11, 2018, directing them 

to file a conforming brief on or before September 25, 2018. Cmwlth. Ct. Order 10/26/18.

3 On appeal from a trial court’s dismissal of a complaint based on preliminary objections, 

we have stated: 

this Court’s review is limited to determining whether the trial court

committed an error of law or an abuse of discretion. When 
3

On appeal, with respect to Count I, Colon argues that his Second 

Amended Complaint adequately asserts a claim for medical negligence against Dr. 

Roble and that the trial court erred in ruling that this claim requires expert testimony. 

See Colon’s Brief at 6. Colon argues that he did not claim in his Second Amended 

Complaint that Dr. Roble deviated from a professional standard of care, and 

therefore, expert testimony is not necessary to establish that Colon was prescribed 

the wrong medication. Colon’s Brief at 8-12. Colon further asserts that Count II of 

his Second Amended Complaint sufficiently alleges corporate negligence against 

CCS in its supervision of Dr. Roble and that this corporate negligence claim does 

not require expert testimony. Id. We disagree.

In Count I, Colon asserts medical negligence against Dr. Roble, 

consisting of:

(a) [f]ailure to possess or exercise the care, skill, 

judgment and training required for undertaking the 

medical care and treatment of [Colon], together with the 

counseling and advice relative to the medication 

prescribed;

(b)failure of Defendant, [Dr.] Roble to ensure an 

adequate history from [Colon] for the advice, counsel and 

medication provided by the Defendant to [Colon];

 

considering preliminary objections, we must accept as true all wellpleaded material facts alleged in the complaint and all reasonable 

inferences deducible therefrom. A preliminary objection should be 

sustained only in cases when, based on the facts pleaded, it is clear 

and free from doubt that the facts pleaded are legally insufficient to 

establish a right to relief. Because a preliminary objection in the 

nature of a demurrer presents a question of law, this Court’s standard

of review of a court of common pleas’ decision to sustain a demurrer 

is de novo and the scope of review is plenary. 

Brown v. Wetzel, 179 A.3d 1161, 1164 n.2 (Pa. Cmwlth. 2018) (internal quotation marks omitted) 

(quoting Minor v. Kraynak, 155 A.3d 114, 121 (Pa. Cmwlth. 2017)). 
4

(c) failure to provide [Colon] with sufficient 

understanding of the risks involved in the medication[] 

prescribed;

(d)failure adequately to disclose, warn or advise 

[Colon] of the risks involved with [t]he use of the 

medication prescribed;

(e) being otherwise negligent and careless under the 

circumstances.

Complaint, ¶ 15(a)-(e).

Pennsylvania Rule of Civil Procedure No. 1042.3(a) requires that 

Colon, with the complaint, or within 60 days of its filing, file a certificate of merit 

that an:

(1) appropriate licensed professional has supplied a 

written statement that there exists a reasonable probability 

that the care, skill, or knowledge exercised or exhibited in 

the treatment, practice or work that is the subject of the 

complaint, fell outside acceptable professional standards 

and that such conduct was a cause in bringing about the 

harm, or 

(2) the claim that the defendant deviated from an 

acceptable professional standard is based solely on 

allegations that other licensed professionals for whom this 

defendant is responsible deviated from an acceptable 

professional standard, or 

(3) expert testimony of an appropriate licensed 

professional is unnecessary for prosecution of the claim. 

Pa.R.C.P. No. 1042.3(a)(1)-(3). Generally, where a plaintiff certifies pursuant to 

Pa.R.C.P. No. 1042.3(a)(3) that expert testimony is unnecessary for prosecution of 

the claim, he is bound by such assertion and will thereafter be precluded from 

presenting expert testimony on the questions of standard of care and causation.4 

Pa.R.C.P. No. 1042.3(a)(3), Note.

 

4 The Note to Pennsylvania Rule of Civil Procedure No. 1042.3(a)(3) provides as follows:
5

Here, the trial court ruled that Count I set forth a claim for medical 

negligence and that the claim required expert testimony to establish negligence. 

Trial Court Opinion 2/28/18 at 6. Because of Colon’s assertion in the certificate of 

merit that expert testimony was unnecessary, and because Colon would not be able 

to show that Dr. Roble deviated from the standard of care without expert evidence, 

the trial court found that Colon failed to set forth a legally sufficient cause of action 

for medical negligence against Dr. Roble and, therefore, dismissed Count I. See id. 

We find no error in the trial court’s ruling. 

Colon’s claim cannot succeed as his medical malpractice claim requires 

such expert testimony. 

Courts sitting in medical malpractice cases require

detailed expert testimony because a jury of laypersons

generally lacks the knowledge to determine the factual 

issues of medical causation; the degree of skill, 

knowledge, and experience required of the physician; and 

the breach of the medical standard of care. In contrast, 

plaintiffs in res ipsa loquitur[5]cases rely on the jury to fill 

 

In the event that the attorney certifies under subdivision (a)(3) that an expert 

is unnecessary for prosecution of the claim, in the absence of exceptional 

circumstances, the attorney is bound by the certification and, subsequently, the trial 

court shall preclude the plaintiff from presenting testimony by an expert on the 

questions of standard of care and causation. 

Pa.R.C.P. No. 1042.3(a)(3), Note.

5 Res ipsa loquitur is applicable when:

(1) It may be inferred that harm suffered by the plaintiff is caused by 

negligence of the defendant when

(a) the event is of a kind which ordinarily does not occur in 

the absence of negligence;
6

in the missing pieces of causation and negligence, inherent 

in their cases, with the jury’s common experience. 

Determining whether there was a breach of duty, however, 

involves a two-step process: the court must first determine 

the standard of care; it then must examine whether the 

defendant’s conduct measured up to that standard. Not 

only does the plaintiff have the burden of proving that the 

defendant did not possess and employ the required skill 

and knowledge, or did not exercise the care and judgment 

of a reasonable professional, he or she must also prove that 

the injury was caused by the failure to employ that 

requisite skill and knowledge. We have previously 

concluded that this must be accomplished with expert

medical testimony presented at trial by doctors testifying 

as expert witnesses. 

Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1149 (Pa. 2003) (footnote 

added).

Colon is bound by his assertion that he believes expert testimony is not 

necessary, and accordingly, the trial court will preclude Colon from presenting 

testimony of an expert on the questions of standard of care and causation. See 

Pa.R.C.P. No. 1042.3(a)(3), Note. This Court has stated:

 

(b) other responsible causes, including the conduct of the 

plaintiff and third persons, are sufficiently eliminated by the 

evidence; and

(c) the indicated negligence is within the scope of the 

defendant's duty to the plaintiff.

(2) It is the function of the court to determine whether the inference may 

reasonably be drawn by the jury, or whether it must necessarily be drawn.

(3) It is the function of the jury to determine whether the inference is to be 

drawn in any case where different conclusions may reasonably be reached. 

Restatement (Second) of Torts § 328(D) (Am. Law Inst. 1965).
7

“[G]enerally[,] when the complexities of the human body 

are involved expert testimony is required to aid the jury in 

reaching conclusions as to the cause of pain or injury.” 

[Wareham v. Jeffes, 534 A.2d 1314, 1321 (Pa. Cmwlth. 

1989).] The only time expert testimony will not be 

required for a medical malpractice claim is where the 

causal connection between the defendants’ allegedly 

negligent act and the harm suffered by the plaintiff is 

“generally a matter of common knowledge,” rendering the 

jury “capable through its every day experience and 

knowledge of comprehending the facts presented and 

drawing conclusions based on those facts.” Id. Generally, 

such negligence rises to the level of gross incompetence.

McCool v. Dep’t of Corr., 984 A.2d 565, 571 (Pa. Cmwlth. 2009).

Colon’s assertions all center on his claim that Dr. Roble prescribed the 

“wrong” medication. Indeed, despite arguing that his allegations do not constitute a 

professional liability claim against Dr. Roble, Colon states that Count I “is based 

only on his allegations that he was prescribed the wrong medication.” Colon’s Brief 

at 10; see also id. at 8. Lay persons do not have, within their common knowledge 

or experience, the ability to assess whether Dr. Roble failed to exercise the care, 

skill, judgment and training required for the medical care and treatment of Colon 

and whether the failure to prescribe the correct medication caused Colon’s claimed 

damages. See Wareham, 534 A.2d at 1321. Without expert testimony to establish 

the required standard of care and causation, Colon’s claim for medical negligence

against Dr. Roble must fail. See McCool, 984 A.2d at 571 (holding that prison 

inmate’s allegations were insufficient to state a claim in his action against prison

medical facility doctor, brought under medical malpractice exception to sovereign 

immunity, because his certificates of merit incorrectly stated that expert testimony 

was not necessary to aid the jury in reaching conclusions as to the cause of his pain 

or injury; the ailments in question were such that an ordinary layperson would be 
8

incapable of deciding). Therefore, the trial court properly sustained the preliminary 

objection for legal insufficiency to Count I of Colon’s Second Amended Complaint.

In Count II of the Second Amended Complaint, Colon alleges both 

vicarious liability and corporate negligence against CCS. The trial court dismissed 

Colon’s vicarious liability claim because that claim asserts that CCS is vicariously 

liable for Dr. Roble’s negligence, and the trial court had dismissed the negligence 

claim against Dr. Roble. Trial Court Opinion 2/28/18 at 7. The trial court also found 

that Colon did not set forth factual allegations to support a claim of corporate 

negligence. Id. at 8. 

Under the theory of vicarious liability, “the corporation, as principal, 

assumes the risk of individual agents’ negligence . . . .” Scampone v. Highland Park 

Care Ctr., LLC, 57 A.3d 582, 597 (Pa. 2012). “In this scenario, the corporation’s 

liability is derivative of the agents’ breach of their duties of care to the plaintiff.” Id. 

at 598. 

While it is unnecessary to plead all the various details of 

an alleged agency relationship, a complainant must allege, 

as a minimum, facts which: (1) identify the agent by name 

or appropriate description; and (2) set forth the agent's 

authority, and how the tortious acts of the agent either fall 

within the scope of that authority, or, if unauthorized, were 

ratified by the principal.

Alumni Ass’n, Delta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 535 A.2d 

1095, 1100 n.2 (Pa. Super. 1987), aff’d sub nom. Alumni Ass’n v. Sullivan, 572 A.2d 

1209 (Pa. 1990). Further, where the claim is that the principal is liable for the agent’s 

professional negligence:

a certificate of merit . . . must be filed as to the other 

licensed professionals for whom the defendant is 

responsible. The statement is not required to identify the 
9

specific licensed professionals who deviated from an 

acceptable standard of care. The purpose . . . is to ensure 

that a claim of vicarious liability made against a defendant 

is supported by a certificate of merit. Separate certificates 

of merit as to each licensed professional for whom a 

defendant is alleged to be responsible are not required. 

Pa.R.C.P. No. 1042.3(2)(1), Note. 

As noted above, no breach of a duty of care by Dr. Roble can be found 

without expert testimony to support this claim. Accordingly, CCS cannot be 

vicariously liable for Dr. Roble’s acts when Dr. Roble’s negligence cannot be 

established. 

Colon also claims that CCS is vicariously liable for the acts and 

omissions of the “Defendant physicians and the nurses who administered the 

medication to [Colon] as though Defendant [CCS] performed the acts or omissions 

itself” and asserts that CCS maintained control over the actions of “the Defendant 

physicians and nurses.” Second Amended Complaint ¶ 18. However, Colon fails to 

identify the act or omission of a physician or professional other than Dr. Roble and,

as stated, CCS cannot be vicariously liable for Dr. Roble’s acts. Additionally, CCS 

cannot be held liable for the acts of physicians and nurses not alleged to be agents 

of CCS. Further, the claim with respect to the “Defendant physicians and nurses” 

stems from allegedly providing the “wrong” medication. The physicians and nurses 

cannot be found to have breached any standard of care, for which CCS would be 

vicariously liable, without expert testimony to support this claim. Thus, the 

vicarious liability claim is legally insufficient.

However, a corporation may also be liable for direct and non-delegable 

duties of care to a plaintiff. Scampone, 57 A.3d at 598. As the trial court stated:
10

“Pennsylvania recognizes the doctrine of corporate 

negligence as a basis for hospital liability separate from 

the liability of the practitioners who actually have 

rendered medical care to a patient.” Rauch v. Mike-Mayer, 

783 A.2d 815, 826 (Pa. Super. 2001) (citation omitted). 

“The doctrine of corporate negligence imposes a nondelegable duty on the hospital to uphold a proper standard 

of care to patients.” Id. “[C]orporate negligence is based 

on the negligent acts of the institution. A cause of action 

for corporate negligence arises from the policies, actions 

or inaction of the institution itself rather than the specific 

acts of individual hospital employees.” Welsh v. Bulger, 

548 Pa. 504, 698 A.2d 581 (1997). 

Trial Court Opinion 2/28/18 at 7-8. The doctrine of corporate negligence provides 

for corporate liability where a medical facility fails to uphold the proper standard of 

care owed its patient. Thompson v. Nason Hospital, 591 A.2d 703, 707 (Pa. 1991). 

Colon asserts in his Second Amended Complaint that CCS is liable for 

corporate negligence in that it failed to:

(a) oversee the nurse who rendered care to [Colon] by 

not ensuring that medication records were properly 

completed, including dosage amounts, frequency, and 

adverse side effects; 

(b) formulate and/or enforce rules and policies 

pertaining to records were properly completed, including 

dosage amounts, frequency and adverse side effects; 

(c) adequately train the nurses who rendered care to 

[Colon] by not ensuring that they were aware of the 

possible adverse side effects of blood pressure spike 

associated with the medication prescribed; and 

(d) upon information and belief, failed to provide its 

physicians with adequate financial support thereby 

limiting the availability of prescription medications 

making it necessary for [Colon] to take the medication that 

caused [Colon’s] blood pressure to spike.
11

Second Amended Complaint ¶ 20.

All of these claims of corporate negligence by CCS are premised upon 

Colon’s allegation that Colon was given the wrong medication and that the incorrect 

medication is what caused Colon’s blood pressure to spike. As noted, Colon cannot 

establish that he was given the “wrong” medication and that the medication caused 

his damages without providing expert testimony. Because Colon is precluded from

producing expert testimony based upon his certificate of merit, he cannot establish 

that he was given the “wrong” medication and, therefore, cannot establish any of the 

alleged acts of corporate negligence that caused him to receive the “wrong” 

medication. Therefore, the trial court properly sustained the preliminary objections 

to the legal sufficiency of Colon’s corporate negligence claim.

 Accordingly, for the foregoing reasons, we affirm the decision of 

the trial court.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mickey Santos Colon, :

Appellant :

:

v. :

:

Correct Care Solutions, LLC, :

Dr. Roble, Theresa Delbalso, :

Christopher Oppman, John Wetzel : No. 834 C.D. 2018

and Susan Wislosky :

O R D E R

AND NOW, this 8th day of August, 2019, the February 28, 2018 order 

of the Court of Common Pleas of Schuylkill County is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge