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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 DAVID CREW, ADMINISTRATOR OF THE ESTATE OF ESSIE CREW, DECEASED AND IN HIS OWN RIGHT

Appellant

v. PENN PRESBYTERIAN MEDICAL CENTER AND TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA AND PENN HOSPICE AT RITTENHOUSE AND PENN MEDICINE RITTENHOUSE

Appellees : : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 869 EDA 2017 Appeal from the Judgment Entered February 15, 2017 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): June Term, 2014 No. 0162
BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J. MEMORANDUM BY GANTMAN, P.J.: FILED MAY 09, 2018 Appellant, David Crew, Administrator of the Estate of Essie Crew, Deceased and in his own right, appeals from the judgment entered in the Philadelphia County Court of Common Pleas in favor of Appellees, Penn Presbyterian Medical Center and Trustees of the University of Pennsylvania and Penn Hospice at Rittenhouse and Penn Medicine Rittenhouse, in this medical malpractice action. We affirm. In its opinion filed on June 30, 2017, the trial court fully and correctly sets forth the relevant facts and procedural history. Therefore, we have no need to restate them.

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-

Appellant raises the following issues for our review: WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN GRANTING APPELLEES’ MOTION FOR PARTIAL SUMMARY JUDGMENT[?] WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN PERMITTING THE ADMISSION OF THE CONSENTS FOR TREATMENT INTO EVIDENCE IN A MEDICAL MALPRACTICE TRIAL AT THE TIME OF TRIAL[?] WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN NOT PERMITTING THE CONTENTS OF FEDERAL AND STATE LAW, REGULATIONS AND GUIDELINES TO BE USED AT TRIAL[?] WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN ALLOWING TESTIMONY REGARDING SETTLEMENT[?] WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY FAIL[ING] TO CHARGE ON HARM OF MEDICAL NEGLIGENCE REGARDING FAILURE TO EAT OR PROVIDE HYDRATION[?] (Appellant’s Brief at 6). Our standard of review of an order granting summary judgment requires us to determine whether the trial court abused its discretion or
committed an error of law. Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347 (Pa.Super. 2006).

Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it

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- misapplies the law or exercises its discretion in a manner lacking reason. Similarly, the trial court abuses its discretion if it does not follow legal procedure. Miller v. Sacred Heart Hospital, 753 A.2d 829, 832 (Pa.Super. 2000) (internal citations and quotation marks omitted). Our scope of review is plenary. Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing a trial court’s grant of summary judgment,

[W]e apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view the record in the light most favorable to the non
-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party. Motions for summary judgment necessarily and directly implicate the plaintiff’s proof of the elements of [a] cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. In other words, whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense, which could be established by additional discovery or expert report and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie

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- cause of action or defense. Upon appellate review, we are not bound by the trial court’s conclusions of law, but may reach our own conclusions. Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006) (internal citations and quotation marks omitted) (emphasis added). After a thorough review of the record, briefs of the parties, the applicable law, and the well
-reasoned opinion of the Honorable Ellen Ceisler, we conclude Appellant’s first issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. (See Trial Court Opinion, filed June 16, 2017, at 4
-10) (finding: court properly granted summary judgment in favor of Appellees Penn Presbyterian Medical Center, Trustees of University of Pennsylvania, and Penn Medicine Rittenhouse as to Appellant’s corporate negligence claim in Count II; in support of his corporate negligence claim, Appellant offered reports of two medical experts, Erane T. Allen, MPA, RN, CDONA, CNHA, and Dr. Perry Starer, M.D.; neither expert offered opinion regarding whether Appellees met relative standards of care; Appellant’s failure to provide proper expert testimony precluded him from establishing existence of genuine issue of material fact as to his corporate negligence claim against Appellees, Penn Presbyterian Medical Center, Trustees of University of Pennsylvania, and Penn Medicine Rittenhouse; Dr. Starer’s report, however, created genuine issue of material fact concerning whether Appellee Penn Hospice at

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Rittenhouse was liable for corporate negligence; court’s granting summary judgment in favor of Appellee Penn Hospice on Appellant’s Count II corporate negligence claim, however, constituted harmless error; court denied Appellees’ motion for summary judgment as to Appellee Penn Hospice on Count I of Appellant’s complaint; Count I contained averments which sounded in both vicarious liability and corporate negligence, and were substantially same as those in Count II; although court granted summary judgment as to corporate negligence claims in Count II, court did not foreclose Appellant’s ability to have jury determine whether Appellee Penn Hospice was liable for corporate negligence; moreover, even if Count I did not allege corporate negligence claim against Appellee Penn Hospice, jury concluded treatment Decedent received at Appellee Penn Hospice satisfied relevant standard of care; court properly granted summary judgment as to Appellant’s Count I negligence claim in favor of three Appellees, Penn Presbyterian Medical Center, Trustees of University of Pennsylvania, and Penn Medicine Rittenhouse; concerning Appellant’s claim of vicarious liability in Count I, Appellant offered no evidence to support his assertion employees or agents of Appellees Penn Presbyterian and Penn Medicine Rittenhouse treated Decedent in negligent manner; evidence Appellant offered failed to establish genuine issue of material fact regarding whether Appellee Trustees was vicariously liable for alleged negligent care Decedent received; Appellant provided no evidence of Appellee Trustees’ level of control over medical

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-

personnel at Appellee Penn Hospice who treated Decedent; webpage printouts Appellant presented failed to establish Appellee Trustees managed and oversaw Appellee Penn Hospice, because webpage failed to reflect status of relationship between Appellee Trustees and Appellee Penn Hospice in 2012, when Appellee Penn Hospice treated Decedent; further, although Dr. Starer based his claim that Appellee Trustees employed Dr. Joshua Uy, Decedent’s treating physician, on Dr. Uy’s deposition testimony, Appellant failed to docket as independent filing, or submit as exhibit, Dr. Uy’s deposition transcript; therefore, Dr. Starer based his opinion as to Dr. Uy’s employment on material outside record; therefore, no genuine issue of material fact supported Appellant’s claim of vicarious liability as to Appellee Trustees; to extent Appellant challenges court’s grant of summary judgment regarding corporate negligence claim in Count I, Appellant’s corporate negligence claim fails for same reasons as Count II corporate negligence claim)
. 1 

### The record supports the court’s rationale, and we see no reason to

____________________________________________ 1 

### We part with the summary judgment court’s decision to the extent the court states Appellant waived his summary judgment challenge on appeal for failure to file a post
-trial motion. Here, Appellant was not required to file a post
-trial motion to preserve his summary judgment claim on appeal. See Pa.R.C.P. 227.1(c), Note (stating: “A motion for post
-trial relief may not be filed to orders disposing of preliminary objections, motions for judgment on the pleadings or for summary judgment...”). In any event, Appellant argued in his post
-trial motion that he was entitled to relief for several reasons, including, the summary judgment court erred in granting partial summary judgment in favor of Appellees and various trial court errors. Therefore, even if Appellant had been required to include his summary judgment (Footnote Continued Next Page)

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-

disturb it. Our well
-established standard of review of a trial court’s admission or exclusion of evidence is very narrow:

These matters are within the sound discretion of the trial court, and we may reverse only upon a showing of abuse of discretion or error of law. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill
-will, or such lack of support so as to be clearly erroneous. In addition, to constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party. Jacobs v. Chatwani, 922 A.2d 950, 960 (Pa.Super. 2007), appeal denied, 595 Pa. 708, 938 A.2d 1053 (2007). The admissibility of a settlement agreement is governed by 42 Pa.C.S.A. § 6141 :

§ 6141. Effect of certain settlements (a) Personal injuries.

—Settlement with or any payment made to an injured person or to others on behalf of such injured person with the permission of such injured person or to anyone entitled to recover damages on account of injury or death of such person shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary. * * * (Footnote Continued)

_______________________ 

### challenge in a post
-sentence motion, Appellant would have properly preserved his claim for appeal.

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- (c) Admissibility in evidence.—Except in an action in which final settlement and release has been pleaded as a complete defense, any settlement or payment referred to in subsections (a) and (b) shall not be admissible in evidence on the trial of any matter. 42 Pa.C.S.A. § 6141(a), (c). The Pennsylvania Rules of Evidence provide, in relevant part, as follows:

Rule 408. Compromise Offers and Negotiations (a) Prohibited Uses
. Evidence of the following is not admissible
--on behalf of any party
--either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering
--or accepting, promising to accept, or offering to accept
--a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim. Pa.R.E. 408(a). See also Comment to Pa.R.E. 408 (stating: “Pa.R.E. 408 is
consistent with 42 Pa.C.S. § 6141”). After a thorough review of the record, briefs of the parties, the applicable law, and the well
-reasoned opinion of the Honorable Marlene F. Lachman, we conclude Appellant’s remaining issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. (See Trial Court Opinion, filed June 30, 2017, at 7
-26) (finding: (2) “consent to hospice care” form has no relation to “informed consent” form, because former does not identify risks of proposed surgical

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procedure; “consent to hospice care” form indicates consenter’s understanding that treatment rendered in hospice will be palliative rather than curative; in other words, hospice care consent form affirmatively advised Decedent she would receive no curative treatment while she was under hospice care; furthermore, Appellant’s counsel opened door to introduction of hospice care consent form, when counsel stated Decedent’s family did not intend Decedent to die while in Appellee Penn Hospice’s care; (5) despite court’s contrary ruling, Dr. Starer testified on direct examination that failure to provide nutrition and hydration caused Decedent’s death; Dr. Starer explained that Decedent’s loss of skin integrity, which ultimately contributed to her death, was due to her deficient nutrition; therefore, Appellant cannot demonstrate he suffered prejudice as result of court’s ruling prohibiting Dr. Starer’s testimony on Appellee Penn Hospice’s failure to provide Decedent nutrition and hydration; (4) Appellee Penn Hospice did not introduce evidence of Appellant’s settlement agreement with Park Pleasant, and jury heard no testimony regarding that settlement; Appellee Penn Hospice did cross
-examine Dr. Starer about his statements in his medical expert report concerning negligent care Decedent received at Park Pleasant; Appellee Penn Hospice was permitted to cross
-examine Dr. Starer on his expert report opinions; failure to permit Appellee to cross
-examine Dr. Starer on his opinion as to Park Pleasant’s negligent care would have given jury false impression that Dr. Starer opined only Appellee Penn

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Hospice was responsible for Decedent’s death; (3) in his post
-trial motion and brief, Appellant failed to identify specific federal and state laws, regulations, and guidelines court should have allowed; while Appellant cited in his post
-trial filings “Federal Hospice Regulations, 42 CFR 418,” he failed to identify which individual provisions of regulation were at issue; similarly, Appellant only generally referenced 1,000
-page federal Omnibus Budget Reconciliation Act of 1987 (“OBRA”) and OBRA regulations; further, Appellant referenced no state laws, regulations, or guidelines in his post
-trial filings; concerning Appellant’s related motion in limine, Appellant mentioned 42 CFR 418 et seq. and 42 CFR 418.56 and conceded 42 CFR 483 was inapplicable; in post
-trial filings, Appellant referenced his cross
-examination of Barbara Felder, certified nurse practitioner who worked at Appellee Penn Hospice, on her knowledge of 42 CFR 418.81.1
-116, regarding hospice responsibility to provide food and dietary counseling; trial court correctly determined cross
-examination of Ms. Felder on need to give Decedent food and water was irrelevant because Decedent’s treatment plan was silent on dietary issues and Decedent did not require forced nutrition and hydration). The record supports the trial court’s rationale, and we see no reason to disturb it. Accordingly, we affirm on the bases of the trial courts’ opinions. Judgment affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/9/18Circulated 04/16/2018 04:19 PM



### IN 

### THE COURTOF 

### COMMON PLEAS 

### FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

### CIVIL TRIALDIVISION

DAVID 

### CREW, 

### ADMINISTRATOR OF THE : 

### ESTATE OF ESSIE CREW, DECEASEDAND : IN 

### HIS OWN 

### RIGHT Plaintiff -Appellant

v.


### PENN 

### PRESBYTERIAN MEDICAL CENTER, : et al. 

### Defendants-Appellees



### OPINION

ELLEN CEISLER, J. 

### SUPERIORCOURT 869 

### EDA2017 

### COURT OF 

### COMMON PLEAS 140601612

'1 ott, 

### DATE: 

### June 15, 

### 200,
;TC Cr)

I. 

### FACTS AND 

### PROCEDURAL HISTORY This Court adopts the facts and procedural history 

### articulated by 

### the Honorable Marlene Lachman in Her 

### Honor's opinion addressing 

### Plaintiff -Appellant David 

### Crew's ("Appellant") appeal in this matter.



### II. 

### DISCUSSION This 

### Court respectfully requests that the instant appeal be 

### quashed or denied for the 

### following reasons: 1. 

### Appellant failed to docket a post-trial motion in the above-captioned matter and has 

### accordingly waived all 

### potential appellate issues;

Crew Etal Vs Penn Presbytenan Medical Cenle-OPFLD

' 11111111111,1111110011111112. In his 

### Briefin 

### Support 

### ofMotion for Post-Trial Relief, 

### Appellant failed to explain, or address inany 

### manner, his basisforclaimingthatthis Courterredby

### granting summary 

### judgmentregarding his 

### "Breach 

### ofOral 

### Contract" claim in favor

### ofPenn Presbyterian Medical 

### Center ("Penn Presbyterian"), the 

### Trustees ofthe University 

### ofPennsylvania ("Trustees"), Penn Hospice at 

### Rittenhouse ("Penn Hospice"), and Penn Medicine 

### Rittenhouse; therefore, Appellant has waived his ability to raise this issue on appeal; 3. Penn 

### Presbyterian, the Trustees, and Penn Medicine Rittenhouse were entitled to summary

### judgment regarding 

### Appellant's "corporate negligence" claims from Count II 

### ofhis Sixth 

### Amended Complaint; 4. This Court 

### committed harmless error in granting summary

### judgment in favor 

### ofPenn Hospice as to 

### Appellant's "corporate negligence" claims from Count II 

### ofhis Sixth 

### AmendedComplaint; 5. Penn 

### Presbyterian, the Trustees, and Penn Medicine Rittenhouse were entitled to summary

### judgment regarding 

### Crew's "negligence" claims from Count I 

### ofhis Sixth 

### AmendedComplaint.
Preliminarily, this Court maintains thatAppellant has waived all potential appellate issues, by 

### virtue 

### of his 

### decision to 

### docket a post-trial 

### motion in only the case with which the above- 

### captioned matter had 

### been consolidated, but not in the above

### -captioned matter itself. Pursuant to the 

### Pennsylvania Rules 

### ofCivil Procedure, 

### "Post-trial 

### motions shall be filed 

### within ten days after [] verdict, discharge 

### ofthe

### jurybecause 

### ofinability to agree, or nonsuit in the case 

### ofa

### jurytrial." Pa. R.C.P. 227.1(c). 

### Accordingly, "parties [must] file post-trial motions in 

### orderto preserve issues for appeal. 

### Ifan issuehas not been raised in apost-trial motion, it is 

### waived for appeal purposes." L.B. Foster Co. v. Lane 

### Enterprises, Inc., 710 A.2d 55 (Pa. 1998). Separately, it is well-settled that, though two or 

### more suits maybe be consolidated for a variety 

### ofreasons, such consolidation 

### cannot be deemed 

### "complete," in

### that "the actions lose

### theirseparate identities and become a single 

### action... unless the 

### actions involve the same

### parties, subject matter, issues, and defenses." Kincv

v. Petro, 2 A.3d 490, 494 (Pa. 2010) (emphasis added). Where 

### consolidation is not complete in nature, it does 

### "not result in 

### merger 

### of the pleadings, or the loss 

### ofthe separate identities 

### ofthe 

### actions." Id. at 495.

2In the 

### instant scenario, Appellant filed two suits: One, docketed under Case ID 

### #140400958, in which he sued Park 

### Pleasant HealthCare Facility and Park Pleasant, Inc., and the other, 

### docketed under Case ID 

### #140601612, in which he sued Appellees; the second case is the
source 

### of this 

### Court's order that Appellant currently seeks to 

### challenge on appeal. Appellant 

### subsequently file a

### Motionto 

### Consolidate, whichwas grantedbythe 

### HonorableLisaRau onMarch 12, 2015, who specifically 

### consolidated these two actions 

### "for purposes 

### of discovery and trial under the 

### caption 

### of Crew v. Park 

### Pleasant Health Care Facility et al., April Term, 2014, No. 

### 00958." Rau Order, 3/12/15 at 2. The consolidated matters 

### proceeded to trial, and Appellant 

### thereafter filed his 

### Motion for Post-Trial 

### Reliefin his case against the Park Pleasant entities, but not in this matter. Given 

### that each 

### ofAppellant's two suits were lodged 

### against entirely distinct and separate parties, the Park Pleasant entities in the former and Appellees in the latter, complete 

### consolidation

### ofthese 

### matters didnot occur, meaning thatAppellant was thusrequired to filepost- trial 

### motions in both 

### cases in 

### order to 

### preserve any potential issues for 

### appellate review. Thus, as 

### Appellant only filed a 

### post-trial 

### motion 

### ofrecord in his Park Pleasant action, but not in his case 

### against Appellees, he has 

### consequently waived his right to attack this 

### Court's disposition 

### of Appellees' Motion for Partial Summary Judgment via an appeal to the 

### Superior Court. 

### Assuming 

### arguendothatAppellanthas notwaived all potential appellate issues,his request for 

### appellate 

### reliefregardingthis 

### Court's aforementionedpartial summary

### judgment ruling is still entirely 

### without substantive merit. 

### Under Pennsylvania law, a trial 

### court should grant a 

### party's motion for summary

### judgment when "there is no genuine issue ofmaterial fact as to a necessary element 

### ofthe cause 

### of action or 

### defense which could be established by additional discovery or expert report." Pa. R.C.P. 1035.2(1). In addition, such a 

### motion mustbe granted in situations where "an 

### adverse party who will bear the burden

### ofproofat trial has failed to produce evidence 

### offacts essential to a cause 

### ofaction or 

### defense in which a

### jury trial would

### require the issues be submitted to a

### jury," id. at 1035.2(2), as such a failure 

### "establishes the 

### entitlement 

### ofthe moving party to 

### judgment as a 

### matter 

### oflaw." Young v. Com., 

### Dep't 

### ofTransp., 744 A.2d 1276, 1277 (Pa. 2000) 

### (citing Ertel v. 

### Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996)). That having been said, the 

### court's sole function when addressing a 

### motion for summary

### judgment is to determine whether there is a genuine issue 

### ofmaterial fact to be tried, 

### rather than to decide issues 

### of fact. Fine v. Checcio, 870 A.2d 850, 862 (Pa. 2005). To that end, a trial court must resolve all doubts against

3the movant, examining the case record in the light most favorable to the nonmoving party, and "may grant summary

### judgment only where the right to such a

### judgment is clear and free from 

### doubt." Id. at 857 

### (citation omitted).

In this matter, this Court granted in part and denied in part 

### Appellees' joint Motion for Partial 

### Summary Judgment on January 27, 2016. Specifically, this Court granted said Motion: 1. Asto all 

### appellees regarding the 

### "corporatenegligence" claims contained in Count II 

### ofPlaintiff's Sixth 

### Amended Complaint; 2. As to all appellees regarding the 

### "Breach 

### of Contract Oral 

### Agreement" claims from 

### Count III 

### of Plaintiff's Sixth Amended Complaint; and 3. As to all appellees except Penn Hospice regarding the 

### "negligence" claims included in Count I 

### of Appellant's Sixth Amended 

### Complaint)' Here, 

### Appellant has 

### preserved his ability to challenge this ruling on appeal only as it 

### relates to his corporate negligence and negligence claims. See 

### Appellant's Post-TrialMotion at6-21; 

### Appellant'sBriefin Support 

### ofMotion for Post-Trial

### Relief at 5-21.2 Both 

### ofthese challenges are addressed infra, in 

### seriatim.
First, this Court properly granted summary

### judgment in 

### favor 

### ofPenn Presbyterian, the 

### Trustees, and Perm 

### Medicine Rittenhouse regarding 

### Appellant's "corporate negligence" claims from 

### Count II 

### ofhis Sixth

### Amended Complaint. Corporatenegligence is adoctrine firstrecognized by the 

### Pennsylvania Supreme Court in 

### Thompson v. 

### Nason Hosp., 591 A.2d 703 (Pa. 1991), and 

### cautiously expanded by 

### ourappellate courts since then, 

### through which hospitals and certain, other medical 

### entities "can be held liable 

### if[they] breach[] the non-delegable duty 

### ofcareowed directly to [a] 

### patient to 

### ensure 

### 'the patient's safety and 

### well-being" while under the 

### entity's care.

This Court's January 27, 2016 order contained a typo, in that said order statedthat summaryjudgment was granted in favor ofPenn Hospice regarding Count I, rather than Penn Medicine Rittenhouse (as had actually been This Court's intent);however, this error was noticed and rectified by the parties and Judge Lachman, who proceeded with the understanding thatPlaintiffcould still pursue his Count 1-based claim against Penn Hospice. SeeTrial Worksheet at 1 ("*The parties agree thatthe correct defendant was Penn Hospice-Rittenhouse.").

2 Though Appellant apparently also wishes to dispute the propriety ofthis Court's decision to grant summary judgment regardinghis "Breach ofOral Contract" claims against Appellees, he neglected to address that matter in his Briefin Support ofMotion for Post-Trial Relief. See Statement ofErrors at

### 4 Briefin Support ofMotion for Post-Trial Reliefat 1-31. Consequently, he has waived this issue. See Am. Future Sys., Inc. v. BBB, 872 A.2d 1202, 1215 (Pa. Super. Ct. 2005) (citations omitted) ("[O]nly those issues raised in apost-trial motion which are briefed or argued before the courthearing the motion will be considered preserved for appellate review.").

4Scampone v. 

### Highland Park Care Ctr., LLC, 57 A.3d 582, 601 (Pa. 

### 2012) (citing Thompson, 591 A.2d at 707). 

### Under thistheory, liability can attach where such an 

### organization breaches its: "(1) [] duty to use 

### reasonable care in the 

### maintenance 

### of safe and adequate facilities and equipment; (2) [] dutyto select and 

### retain only competent physicians; (3) [] duty to 

### oversee all persons who practice 

### medicine within itswalls as topatient care; [or] (4) [] duty to

### formulate, adopt, andenforce adequate rules and 

### policies to ensure quality care for the 

### patients." Thompson, 591 A.2d at 707. 

### Because the duty to uphold the 

### proper standard 

### ofcare runs 

### directly from the hospital to the patient, an 

### injured party need not rely on the 

### negligence 

### of a third-party, such as a 

### doctor or 

### nurse, to 

### establish a cause 

### ofaction in corporate 

### negligence. Instead, corporate 

### negligence is based on thenegligent acts 

### ofthe institution. A cause 

### ofaction for corporate 

### negligence arises from the policies, actions or 

### inaction ofthe institution itself rather than the 

### specific acts 

### ofindividual hospital employees. Thus,underthis 

### theory, a corporation is held 

### directlyliable, as 

### opposed to 

### vicariously liable, for its own 

### negligent acts. Welsh v. Bulger, 698 A.2d 581, 585 (Pa. 1997) 

### (citing

### and quoting Moser v. Heistand, 681 A.2d 1322, 1325 (Pa. 1996)) 

### (citations and 

### punctuation omitted).

When 

### pursuing a 

### corporate negligence claim, it is well-settled that "a 

### plaintiff must produce 

### experttestimony to 

### establish thatthe [corporate entity] deviated from an accepted standard 

### ofcare and that the 

### deviation was a substantial factor in causing the 

### harm to the 

### plaintiff," unless, that is, the 

### putative negligence is 

### "obvious." Welsh, 698 A.2d at 585. In general, experttestimony pertaining to any 

### discipline can only be 

### provided by a properly-qualified witness who has 

### "scientific, technical, or 

### other specialized knowledge is beyond that 

### possessed by the average 

### layperson... [which] will help the trier 

### offact to 

### understand the evidence or to determine a fact in issue[,] and [has used] 

### methodology [that] is generally accepted in the relevant field." Pa. R.E. 702(a)-(c).
Here, 

### Appellant offered reports from two medical professionals: 1. Erane T. Allen, MPA, RN, CDONA, CNHA; and 2. Dr. Perry Starer, M.D. See Motion for Partial Summary Judgment, Exs. C and E. While the 

### former discussedthe care provided to Essie Crewat Park PleasantNursing Home, and the latter 

### examined Essie 

### Crew's treatment at both Park 

### Pleasant and Penn Hospice at 

### Rittenhouse, 

### neither Ms. Allen 

### nor Dr. Starer offered opinions 

### regarding whether or not Penn 

### Presbyterian, the 

### Trustees, or Penn Medicine Rittenhouse had treated Essie Crew in a manner that 

### comported with these 

### entities' respective corporate standards 

### of care. See id. Given that the

5existence 

### of corporate negligence in this matter was undoubtedly far from obvious, Appellant's failure to 

### provide proper expert testimony meant that he could not establish that there was a genuine issue 

### ofmaterial fact as to this claim against these three entities. As such, this Court 

### appropriately granted summary

### judgment in favor 

### ofPenn Presbyterian, the Trustees, and Penn Medicine 

### Rittenhouse regarding Appellant's corporate negligence claims from Count II 

### of his Sixth 

### Amended Complaint. See 

### Gruenwald v. 

### Advanced Computer Applications, Inc., 730 A.2d 1004, 1009 (Pa. Super. Ct. 1999) 

### (quoting Johnson v. Harris, 615 A.2d 771, 775 (Pa. Super. Ct. 1992)) 

### (punctuation omitted) ("[A] party 

### responding to a 

### motion for summary

### judgment may not rest on 

### pleadings; rather, it is his 

### responsibility to show that a genuine issue 

### of fact exists by affidavit or 

### otherwise.").

By 

### contrast, and upon further review 

### of Dr. 

### Starer's report, 

### it is 

### apparent that this report
can be 

### reasonably construed as 

### creating a genuine issue 

### ofmaterial fact 

### regarding whether Penn Hospice 

### committedcorporate negligence in 

### connection with Essie 

### Crew's medical treatmentat its facility. See 

### Motionfor Partial SummaryJudgment, Ex. 

### Eat 1-3, 6. 

### However, as will be explained infra, said error was ultimately harmless and thus does not provide a valid basis for granting 

### Appellant'srequest for a 

### newtrial. In situationswhere a party moves for a new trial,the trial court must apply a 

### two-step test: First, the 

### court must determine whether, colloquially speaking, a 

### "mistake" (or mistakes) was made at trial. Second, the court decides whetherthe mistake (or

### mistakes) is sufficient basis for 

### granting a new trial. The first 

### decision-whether a 

### mistake was 

### made-may involve factual, legal, or 

### discretionary matters. However, the second and ultimate 

### decision-whetherto 

### grant anew

## trial-is always a

### discretionary matterbecause itrequires 

### consideration 

### ofthe 

### particularcircumstances 

### ofthe case. Morrison v. Com., 

### Dep't ofPub. Welfare, Office 

### ofMental Health 

### (Woodville State Hosp.), 646 A.2d 565, 571 (Pa. 1994) 

### (footnote omitted).When reviewing the issues raisedby a litigant in their post-trial motion, the trial court must remain cognizant that "[a] new trial is not warranted merely because some irregularity occurred during the trial or another trial 

### judge would have ruled differently; [rather,] the moving party must 

### demonstrate... that he or she has suffered prejudice from the 

### mistake."Harman exrel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000)). Thus, 

### ifan
error was 

### committed, but did not work prejudice upon the movant, said error must be deemed harmless and 

### cannot serve as the basis for granting their desired relief. Id.

6In this 

### matter, and as 

### noted above, this Court 

### denied the 

### Motion for Partial Summary 

### Judgment as to Penn Hospice 

### regarding Count I 

### ofAppellant's Sixth 

### Amended Complaint. This Count contains a 

### confused and 

### extremely lengthy 

### mishmash of averments that sound in both vicarious liability and 

### corporate negligence, ones which are substantially duplicative 

### ofthose in Count II. 

### Compare Sixth Amended Complaint at 3-18 (Count I) with id. at 18-31 (Count II). Thus, though this Court granted 

### summaryjudgment as to Count 

### II's corporate negligence claims, Penn Hospice was not 

### given similar

### reliefregarding Count I, 

### meaning that this ruling did not ultimately foreclose upon

### Appellant's ability to have the

### jury decide 

### whether thatentity 

### hadbeen corporately negligent. See 

### Verdict Sheet at 1 

### (asking the

### jury to 

### determine 

### ifPenn 

### Hospice's handling

### ofEssie Crew had "[fallen] 

### below the applicable standard 

### of care. In other words, was [Penn Hospice] 

### negligent?"). Moreover, even 

### ifone were to 

### counterfactually construe Count I as articulating only

a vicarious liability claim, it 

### remains the

### jury concluded the treatment received by Essie Crew at Penn Hospice had 

### satisfied the 

### relevant standard

### of care. Id. Given this, the

### jury would have had

no factual basis for 

### finding that Essie Crew had been harmed at Penn 

### Hospice by the kind 

### of systemic, broad

### -based problems which would support a corporate negligence claim. Cf. Thompson, 591 A.2d at 707 

### (discussing duties that,

### ifnotproperly fulfilled, can result in corporate negligence). 

### Consequently, this 

### Court's decision to grant summary

### judgment in favor 

### of Penn Hospice as to 

### Appellant's corporate negligence claims in Count II 

### of his Sixth Amended Complaint was harmless error, at most, and was not grounds for granting 

### Appellant's request for

a newtrial.

In addition, this 

### Court properly granted summary

### judgment in favor 

### ofPenn Presbyterian, the Trustees, and Penn Medicine Rittenhouse regarding 

### Appellant's "negligence" claims from Count I 

### of his Sixth 

### Amended Complaint. To reiterate what was noted 

### supra, Appellant confusingly chose to draft Count I so that the 

### averments containedtherein sound in both corporate negligence and 

### vicarious liability. See Sixth Amended 

### Complaint at 3-18. To the extent that Appellant challenges this

### Court's decisionregarding any 

### ofhis Count I-based corporatenegligence claims against these

### appellees, he isnot entitledto appellate

### reliefdue tohis aforementionedfailure to offer expert 

### testimony in 

### support 

### ofsuch allegations.

7Withregardto Count 

### I'svicarious liability-based allegations, his 

### requestfor appellate

### relief is also 

### without merit. 

### Vicarious liability, sometimesreferredto as imputed negligence, means inits simplest form that, by 

### reason 

### of some relation 

### existing between A and B, the negligence 

### ofA is to be 

### charged against B 

### although B hasplayed no part in it, has done nothing whateverto aid or 

### encourage it, or indeed has done all that he 

### possibly can to 

### prevent it. Once the requisite 

### relationship (i.e., 

### employment, agency) is 

### demonstrated, the 

### innocent victim has recourse against the principal, even 

### ifthe 

### ultimately responsible agent is 

### unavailable or lacks the ability to pay. Scampone, 57 A.3d at 597 

### (citations and 

### punctuation omitted). Here, 

### Appellant offered no evidence 

### whatsoeverto 

### supporthis assertions thatemployees or agents 

### ofeither PennPresbyterian

or Penn 

### Medicine Rittenhouse treated Essie Crew in a negligent manner, meaning that those entities were entitled to summary

### judgment regarding Count 

### I's vicarious liability claims. As for the 

### Trustees, the evidence presented by 

### Appellant failed to create a 

### genuine issue 

### ofmaterial fact regarding whether they were vicariously liable for any 

### ofthe allegedly negligent medical care given to Essie Crew. As has long been 

### understood by 

### Pennsylvania courts, "the classic common law test 

### ofthe

### employer/employee relationship is that an entity is an employer where it maintains control or the 

### right to control the work to be done and the manner 

### of doing it." Kiehl v. Action Mfg. Co., 535 A.2d 571, 573 (Pa. 1987) 

### (citing Venezia v. 

### Philadelphia Electric Co., 177 A. 25 (Pa. 1935)). 

### "Where a 

### parent/subsidiary relationship is established the question 

### of which 

### corporation has 

### control over an 

### employee is 

### determined by focusing on the

### functionsperformed by 

### each 

### corporation 

### and by the employee in addition to other indicia 

### of control." Mohan v. Continental Distilling Co., 222 A.2d 876, 879 (Pa. 1966) (emphasis added). Thus, an agency-type 

### relationship is not 

### automatically deemed to exist between the corporate entity at the top 

### ofthe 

### pyramidand

### those laboring atits 

### component organizations;rather, it

### must be 

### establishedon acase- by-case basis 

### whether a given worker or group 

### ofworkers are actually employees 

### oftheir parent corporation. See 

### Botwinick v. Credit Exch., Inc., 213 A.2d 349, 

### 353-54 (Pa. 1965) (citations omitted);3Barnes v. Alcoa, Inc., 145 A.3d 730, 735 (Pa. Super. Ct. 2016).4 Thus, unlessthe answer

Neither the similarity ofnames between the parent and subsidiary corporation, nor the total ownership of the stock of the subsidiary by the parent[,] nor the fact that a single individual is the active chiefexecutive ofboth corporations will per sejustify a court in piercing the corporate veil 

### if each corporation maintains a bona fide separate and distinct corporate existence. [T]he fact a parent company's name is listed on an employee's check is not evidence the employee is employed by the parent company instead of the subsidiary. Instead, [a plaintiffmust]... show [the parent company] had the power
8to this 

### question 

### ofagency is 

### "yes," the parent corporation cannot be 

### susceptible to a claim based upon 

### vicarious liability.
Here, 

### Appellant statedthat three pieces

### ofevidence supported his 

### vicarious liabilityclaim againstthe Trustees: 1. 

### Appellees' Amended Answer, in 

### which they 

### admitted that "Penn Hospice
at Rittenhouse is the inpatient unit for Wissahickon Hospice, which is a wholly owned subsidiary 

### ofthe 

### Trustees"; 2. 

### Various webpageprintouts, which showed thatthe 

### Trustees "is the governing board 

### of the 

### Penn Presbyterian Medical Center which manages, oversees[,] directs[,] and/or operatesthe Penn 

### Presbyterian Medical Center, Penn Hospice at 

### Rittenhouse and Penn Medicine
at Rittenhouse; and 3. Dr. 

### Starer's expert report, which established that Dr. 

### Joshua Uy, M.D. was employed by the 

### Trustees and treated Essie Crew during her stay at Park PleasantNursing Home. See 

### Answer to 

### Motion forPartial Summary Judgment at 6-7, 10; id., Exs. E, G, and H. 

### None 

### of these, however, are 

### sufficient enough to establish that a genuine issue 

### of material fact exists regarding 

### whether vicarious liability might attach to the Trustees in this matter. First, though a 

### parent/subsidiary 

### relationship 

### of some sort undisputedly exists 

### between the Trustees and Penn Hospice, it 

### remains that Appellant provided no evidence 

### whatsoever about the 

### former's level 

### of control (orlackthereof) overthe medicalprofessionals atthe latter who 

### allegedly gave Essie Crew deficient medical care. Second, the aforementioned 

### printouts, which 

### Appellant clearly obtained 

### just before he 

### responded to the Motion for Partial 

### Summary Judgment in 

### January 2016, were not verified as 

### accurately representing those websites as they existed in 2012, when Appellees were caring for Essie Crew, and thus could not be used by this Court as a 

### factor in her analysis. See Wheeler v.Johns-Manville Corp., 493 A.2d 120, 122 (Pa. Super. Ct. 1985) 

### (citingIrrera v. SEPTA, 331 A.2d 705 (Pa. Super. Ct. 1974).5 Finally, Dr. 

### Starer's claimthat Dr. Uy was employed by the Trustees wasbased 

### off

### ofinformationDr. Uy allegedly 

### divulged whilebeing deposed. See Answer
to Motionfor Partial Summary Judgment, Ex. E at 6. As 

### neitherAppellant norAppellees docketed this 

### deposition's transcript as an 

### independent filing or as an exhibit, Dr. 

### Starer's statement regarding Dr.

### Uy's relationship with the Trustees restedupon evidence existing outside 

### ofthe case

and authority to direct and control [an individual's] actions in order for him to be deemed an employee [ofthe parent company].

5 Moreover, neitherof these printouts addressed whether or not the Trustees exert control over those who work at its subsidiaries.
9record, 

### rendering it an 

### unsupported allegationthat couldnot create a 

### genuine issue 

### ofmaterial fact. See 

### Krause v. Great Lakes Holdings Inc., 563 A.2d 1182, 1186 (Pa. Super. Ct. 1989) (citing 

### Thorsen v. Iron and 

### Glass Bank, 476 A.2d 928, 930 n. 2 (Pa. Super. Ct. 1984)) ("Depositions which are not filed and made a 

### part 

### ofthe record cannot be 

### considered on a 

### motion for summary 

### judgment."). Consequently, this Court appropriately granted 

### Appellees' Motion for Partial Summary Judgment as to 

### Appellant's "negligence" claims from 

### Count I 

### ofhis Sixth Amended Complaint.



### III. CONCLUSION For the 

### aforementioned reasons, 

### this Courtrespectfully requests 

### that the instant appealbe quashed or denied.

BY THE COURT: 

# C@

J.

10Circulated 04/16/2018 04:19 PM

IN THE 

### COURT OF COMMON 

### PLEAS OF 

### PHILADELPHIA COUNTY FIRST 

### JUDICIAL DISTRICT OF 

### PENNSYLVANIA CIVIL TRIAL DIVISION 

### David Crew,

### Administrator 

### ofthe Estate 

### of : 

### Essie Crew, 

### deceased and 

### in his own 

### right : 

### June Term, 2014
V.S. No. 01612 

### Penn 

### Presbyterian Medical Center, Trustees 

### of the 

### University 

### of Pennsylvania, Penn 

### Hospice at 

### Rittenhouse, and Penn 

### Medicine 

### Rittenhouse Superior Court Docket. No. 869 

### EDA 2017 OPINION 

### Lachman, J. 

### June 30, 

### 2017 I. 

### Factual and 

### Procedural Background On March 16, 2012, the Plaintiffs Decedent Essie Crew was admitted to Park 

### Pleasant Health Care 

### Facility for nursing care, rehabilitation, physical, occupational, and 

### speech therapy. 

### At the time 

### of her admission, a Park Pleasant nurse noted 

### that Ms. 

### Crew's skin was intact. 

### Around April 23, 2012, Ms. Crew began to 

### experience a loss 

### of skin integrity. On 

### or before May 10, 2012, Ms. Crew developed sacral 

### wounds, bilateral 

### contractures of her upper and 

### lower extremities, and urinarytract infections. Ms. Crew 

### remained in Park Pleasant until June 14, 2012, when she 

### was admitted to the Penn Presbyterian Medical Center. There she 

### was diagnosed with a perforated 

### gastric ulcer, a 

### pressure ulcer, tarry stools which tested positive 

### for blood, extended 

### spectrum Beta-Lactamase infection in urine, and a 

### fractured finger, among 

### other conditions. From June 14, 2012 to 

### July 6, 2012, Ms. Crew received 

### treatment and care at Penn Presbyterian 

### for a perforated gastric ulcer and pressure ulcers. She was released from Penn Presbyterian Hospital in 

### fair condition.

1
riPIPQ PI IPql IANIT Tn. Pa P 

# r P WIR(hl r") t(PI
I V riRr4nnn1 Crew Etai Vs Penn Presbyterian Medical Cente-OPFLD

11111111,14111 161111111t11111From July 6, 2012 until 

### August 6, 2012, Ms. Crew was admitted to Penn Hospice at Rittenhouse. Ms. Crew refused to 

### eat and she was notforced-fed by the hospice. Due to her lack

### of nutrition and hydration, she developed pressure sores. She died on 

### August 6, 2012. 

### Plaintiff is the 

### administrator of the estate 

### of Essie Crew, and was her son. He 

### first filed suit 

### against Park 

### Pleasant Health Care Facility and Park 

### Pleasant Inc., in this court at April 

### Term 2014, No. 00958. Two months later, he filed suit 

### against Penn Presbyterian Medical Center, the 

### Trustees of the University 

### of Pennsylvania, Penn Hospice at 

### Rittenhouse, and Penn Medicine Rittenhouse, in this court at June 

### Term 2014, No. 1612. The two actions were consolidated for purposes of discovery and trial, with the Park 

### Pleasant case being the lead case. The case against the Park 

### Pleasant defendants was settled before this case went to trial. An 

### Order dated January 27, 2016 by the Honorable Ellen 

### Ceisler granted in part 

### the Penn 

### Defendants' motion 

### for partial summaryjudgment. The 

### order created confusion
as to the 

### identity of the proper 

### defendant at trial. It dismissed the case against all of the Penn 

### Defendants except 

### for Penn Medicine at Rittenhouse. The attorney 

### for the Penn 

### Defendants asserted at trial that "Penn Medicine at Rittenhouse" is not a legal entity and is only a 

### descriptive name 

### for a location 

### of some 

### of Penn's medical facilities. Penn's 

### attorney graciously permitted the Plaintiff to substitute "Penn Hospice at Rittenhouse" (Penn Hospice) as the 

### defendant in place 

### of "Penn Medicine at Rittenhouse." At trial, 

### the Penn Defendants contended that Judge Ceisler's order limited 

### Plaintiffs pursuit of liabilityto 

### establishing negligence on the part 

### of Penn Hospice 

### for the

2

### decreased 

### frequency ofturning and 

### repositioning Ms. Crew from every two to everythree hours. 

### That was an incorrect interpretation of 

### Judge Ceisler's order. 

### The order dismissed the claims against 

### all four Penn Defendants in Count II 

### for corporate negligence and in 

### Count ill for "breachof contract oral

### agreement." It dismissed the claim 

### for "negligence" in Count I 

### only against Penn Presbyterian, the Trustees, and Penn Hospice. None 

### of the claims in Count I 

### were dismissed against Penn Medicine, and all of them remained 

### for trial. Because ofthe substitution 

### of Penn Hospice 

### for Penn Medicine, all 

### of those claims remained 

### against Penn Hospice at trial. Trial began on 

### October 171 2016, and the

### jury delivered its verdict on October 27, 2016. 

### The 

### jury found that Penn Hospice 

### was not negligent and did not 

### answer the causation 

### or damages questions on the verdict slip. 

### Plaintiff filed a 

### timely post-trial motion (PTM) challenging Judge Ceisler's grant 

### of summary 

### judgmentand various alleged trial errors committed by the trialjudge. The trial 

### judge limited 

### her review 

### ofthe PTM to the alleged trial errors. The trial 

### judge denied the PTM and entered judgment on the 

### jury's verdict on February 15, 2017. Plaintifffiled a 

### timely notice 

### of appeal and a 

### timely Pa.R.A.P. 1925(b) 

### Statement of Errors 

### after being ordered to do so by the trial judge.

II. 

### Issues on 

### Appeal Plaintiffs 1925(b) Statement lists four issues regarding 

### the summary judgment entered by Judge Ceisler, and six issues regarding alleged trial 

### errors committed by this 

### trial judge. Judge Ceisler filed her own Pa.R.A.P. 1925 opinion on June 16, 2017, 

### addressing the 

### summaryjudgment issues. Consequently, the trialjudge will discuss only 

### the issues 

### of alleged trial error. The issues have been reordered so 

### that all 

### of the

3

### summary

### judgment and all 

### of the trial 

### error issues are grouped together, although 

### their original section letters remain as in 

### the original. A. 

### Summary 

### Judgment issues A. CORPORATE 

### NEGLIGENCE The 

### trial court erred 

### in granting Defendants' Motionfor Partial Summary 

### Judgment dated January 27, 

### 2016 (see Exhibit "A") that the 

### Plaintiffcouldnot present a 

### claim 

### ofcorporate negligence against the 

### Defendants, Penn Presbyterian Medical Center, Trustees 

## ofthe

### University 

### ofPennsylvania, Penn Hospice at 

### Rittenhouse and Penn 

### Medicine Rittenhouse. 

### Plaintiffdid oppose 

### Defendant's [sic] 

### Motion for 

### Summary Judgment by 

### Answer to same.

C. 

### VICARIOUS LIABILITY The trial 

### court did 

### err at law and 

### abused its 

### discretion when it 

### did dismiss certain vicarious liability claims on 

### January 27, 

### 2016 (see 

### Exhibit "A") 

### against the Penn Defendants, and 

### granted the 

### Defendants' Motion for Partial Summary Judgment onthe 

### vicarious 

### negligenceclaims against Penn 

### Presbyterian Medical Center, Trustees 

### ofthe University 

## ofPennsylvania and all 

### Penn Defendants other than Penn

### Medicine at 

### Rittenhousewhich is 

### a 

### fictitious name. D. 

### BREACH OF 

### ORAL CONTRACT The trial 

### court did err at 

### law and 

### abused its 

### discretion 

### when it 

### did 

### dismiss certain 

### breach 

### of oral 

### contract claims on January 27, 

### 2016 (see 

### Exhibit "A") 

### against the Penn Defendants, and granted the 

### Defendants' 

### MotionforPartial SummaryJudgment on

### thebreach 

### oforal contract claims against Penn Presbyterian Medical Center, 

### Trustees 

### of the 

### University 

### of Pennsylvania and all 

### Penn Defendants 

### other than Penn Medicine at Rittenhouse which is a 

### fictitious name.

H. 

### MOTION FORMODIFICATIONOR CHANGE OF 

### DECISION 

### Plaintiffrequests that thetrial court 

### modify orchange its 

### decision to 

### include a 

### claim

### ofcorporate negligence and 

### vicarious liability, 

### and grant a
4

### new trial. 

### Plaintiffs counsel raised saidissues 

### priorto 

### trial 

### by

### Answer to 

### Motion for 

### Summary Judgment.
B. 

### Alleged 

### trial errors B. 

### ADMISSION OF CONSENTS ANDRELEASES AT TRIAL The trial court committed an error 

### oflaw and an 

### abuse 

### ofdiscretion inpermitting the admission 

## ofthe consents and releases 

### signed 

### bythe 

### Plaintiffinto 

### evidence atthe time 

### oftrial. 

### Consents for

### treatment are 

### irrelevant to a 

### cause 

### ofaction in 

### medical 

### negligencepursuant to 

### Brady v. 

### Urbas, 2015 Pa. 

### Lexis 655 (Pa. 

### 2015). The trialcourt admitted 

### the consents and releases into 

### evidence over 

### Plaintiffs objections, and 

### theywere 

### considered

### bythe

### jury during their deliberations. The trial court committed an error

### oflaw 

### and abused its 

### discretion which didharm the 

### Plaintiffwhen it 

### denied 

### Plaintiffs Motion in 

### Limine, Control No. 16101859 regarding informed consent andreleases as 

### the 

### Plaintiffdid

### notconsenttothe negligence 

## ofthe Defendants. This 

### admission 

### ofevidence tothe

### jury was an abuse 

### ofdiscretion and an 

### error

## oflaw

### which did

### prejudicethe 

### Plaintiff. Further, 

### the trial 

### court ignored stare decisis 

### ofthePennsylvania Supreme Courton the 

### issue which was an 

### error 

### oflaw 

### that did 

### harm the Plaintiff.

E. 

### FAILURETO 

### PERMIT EXPERTOPINION TESTIMONY OF MEDICAL 

### NEGLIGENCE REGARDINGMALNUTRITIONAND 

### DEHYDRATION The 

### trial 

### court did err and abuse its 

### discretion when it 

### granted Defendants' objection to 

### preclude

### Plaintiffform [sic] 

### introducing evidence 

### ofDefendants' failure to 

### provide 

### Plaintiffs decedentwithproper nutrition or to 

### provide hydrationby 

### Plaintiffs expert witness. This 

### was an 

### error at 

### law andan 

### abuse 

## ofdiscretionwhich did

### prejudice the Plaintiff.
F. 

### FAILURE TO 

### PRECLUDE TESTIMONYAND EVIDENCE OF 

### PRIOR SETTLEMENT Defendants were

### permittedto cross 

### examine 

### Plaintiffandhis 

### expert, Dr. 

### Perry Starer, on 

### care and 

### services rendered by

### Park PleasantNursing

5

### home whenthe 

### ParkPleasantcase was a 

### separate case

### thathad been settled 

### prior to 

### the trial in this 

### case in 

### contravention 

### of42 Pa.C.S. § 6141 (c) 

### [sic] 

### The 

### Pennsylvania Supreme Court statesin Kincy v. 

### Petro, 606 Pa. 

### 524,2 

### A.3d 490 (2009)

### that cases which are 

### "consolidated for

### purposes 

## of discovery and trial,"retaintier [sic] 

### separate case identities and do

### not become a 

### "merged" single action. This 

### was 

### anerror 

### oflawand abuse

## of discretion which did prejudice the Plaintiff.
G. 

### REGULATIONS AS 

### EVIDENCE OF 

### NEGLIGENCE The trial 

### court committed an 

### error 

### oflaw 

### and an 

### abuse 

### ofdiscretion which id [sic] 

### prejudice the

### Plaintiffin

### prohibiting the 

### Plaintiff's counsel or 

### his 

### experts to 

### introduce and 

### explain to 

### the

### jury 

### of[sic] the 

### provision

### ofthe applicable federal and state laws on

### hospice care andregulations and guidelines 

### pertinentto 

### the case. Thiswas an 

### error

## oflaw 

### and abuse

## of discretion whichdid prejudice the Plaintiff. The trial 

### court held that the federal and 

### state laws,

### regulations and 

### guidelines on 

### hospices were not to 

### be 

### considered by the

### juryfor cross 

### examination on 

### the standards 

## ofcare 

### ofnegligence. This 

### was an error 

### of law andan abuse

## ofdiscretion which did

### prejudicetheplaintiff. * * * * * I. 

### MOTION FOR JUDGEMENT [sic] 

### NON OBSTANTEVERDICT [sic] 

### (OR SUCH 

### OTHER RELIEF AS IS 

### SPECIFIED BELOW) 

### Plaintiff seeks 

### judgment against the Defendants because the 

### jury verdict was against 

### the evidence and also 

### against the 

### weight 

### of evidence when it 

### determined 

### that Defendants were not negligent. 

### Plaintiffis 

### entitled to

### judgment as a 

### matter 

### oflaw. The 

### Plaintiff asks for 

### judgment n.o.v. to 

### be 

### entered in his favor, 

### pursuant to 

### Pa.R.C.P. §227.1(a) (2) 

### anddirect the 

### entry

## of judgmentin

### favor 

### ofPlaintiff. 

### Plaintiff is 

### entitled to 

### judgment n.o.v. since facts and 

### evidence demonstrate liability, damages and punitive damages. 

### Plaintiff is 

### entitled to a 

### judgment n.o.v. based on the law, in 

### conjunction with the evidence, and since 

### the evidence was 

### such that no two

6

### reasonable minds could disagree 

### thatthe 

### outcome shouldhavebeenrendered in favor 

### ofthe Plaintiff. The trial 

### court erred and abused its 

### discretion in failing to grant, in 

### their entirety, 

### Plaintiff's Motions for Directed Verdict. The trial court's dismissal 

### ofPlaintiff's punitive damage claim was 

### against the law 

### and the evidencewhichnowrequires the 

### entry

### ofa

### judgment n.o.v., in 

### favor 

### ofthe Plaintiff, as 

### to these 

### claims.

J. 

### VERDICT SHOULD 

### NOT STAND The 

### verdict was 

### against the law.

For the reasons setsforth below, none of

### the alleged trial errors 

### warrant relief. For 

### the reasons set forth in 

### Judge Ceisler's opinion, none 

### of the 

### summaryjudgment issues 

### warrant relief. III. 

### Discussion A. 

### Admission 

### ofthe 

### Consent

### for Hospice Care 

### form was 

### proper Plaintiffs PTM 

### contended 

### that it was error to 

### permit the defendants to introduce 

### the July 6, 2012 

### "Consent for Hospice Care" form signed by Plaintiff David Crew 

### authorizing Ms. Crew's 

### admission to Penn Hospice. 

### Pltfs Ex A.1 Plaintiff says that this form 

### was really an "informed consent" form, the admission of which is barred in non- 

### informed-consent cases by 

### Brady v. 

### Urbas, 631 Pa. 329, 111 A.3d 1155 (2015). The Plaintiff filed a motion in limine (MIL) to preclude the introduction 

### of this form at 

### Control No. 16101859. 

### Plaintiff filed this MIL two 

### weeks late at 10:40 a.m. on October 17, 2016, the first day 

### of trial. NT 10/17/16 pp. 99-100. The trial

### judge initially denied the

1 The form ison the letterhead of Penn Medicine Wissahickon Hospice and refers to 

### Wissahickon Hospice instead 

### of Penn Medicine at Rittenhouse in its text. The Hospice at 

### Rittenhouse is part 

### of the 

### Wissahickon Hospice organization or system.

7motion 

### without prejudice as untimely. NT 10/17/16 p. 100; see 

### Orderdated Oct. 17, 2016 at Control No. 16101859. The next morning 

### Plaintiffs attorney renewed her request 

### that the court consider 

### the MIL because defense counsel was going to use the consent form in her opening 

### statement. The 

### court then heard 

### arguments on the merits of the motion and ruled: THE COURT: 

### Thank you. Okay. I've reviewed 

### the consent. I've reviewed Brady versus Urbas, which I note is a case involving a surgical consent form in a case in which informed 

### consent was not pled as an issue, and the 

### Court pointed outthat in a 

### trial in a medical malpractice complaint that only asserts negligence and not lack 

### of informed consent, 

### evidence that a patient agreed to go 

### forward with 

### the operation in 

### spite 

### ofthe risk

### of which she was informed is 

### irrelevant and should be excluded.

I also note that the Court pointed out and held 

### that the 

### evidence that a patient affirmatively consented to 

### treatment after being informed of the risk of that

### treatment is generally irrelevant to a cause of action sounding in medical negligence.This is not a 

### surgical situation. This is a consent that is not being offered 

### for standard of care per se. It is -- in 

### terms of negligence. It is being 

### offered, as I understand it, to indicate that the family 

### knew that Ms. 

### Crew was progressing 

### towards death medically, and, therefore, eligible 

### for hospice care and 

### that the services were to be of a 

### palliative nature and that's the only thing 

### that the 

### consent may be used for. NT 10/18/16 pp. 9-10. 

### The "Consent to Hospice Care" form has no relation to an "informed consent" form 

### because it does not identify the risks 

### of a proposed surgical procedure. On the contrary, it states that "I understand the nature of the hospice care available and am aware that a// 

### treatment will be 

### palliative rather than curative in nature. 

### Treatment will be 

### for the 

### management of symptoms and to provide 

### comfort 

### for my terminal illness of dementia." 

### (Emphasis added.) No surgical 

### procedures were contemplated by 

### the hospice; indeed,

8no 

### treatment of any type 

### other than palliative was contemplated. "Palliative" means "relieving or soothing the symptoms 

### of a 

### disease or 

### disorder without effecting a cure." 

### American Heritage Medical Dictionary at 387 

### (2008) (emphasis added). 

### Brady involved a 

### surgical consent form regarding the risks and complications of

an 

### operation thatwas signed bythe patient before the operation. 

### OurSupreme Court held that the surgical 

### consent form was 

### irrelevant and barred in a medical malpractice action that was based on 

### negligence and which did not also include a 

### battery claim 

### for lack 

### of informed consent. Far from identifying the possible risks of a surgical procedure, the "consent

### for hospice care" form 

### affirmativelytold Ms. Crewand Mr. 

### Crewthat no treatment aimed at curing her ills would be given to Ms. 

### Crew while she 

### was under hospice care. 

### This was not the same as the surgical consent form at issue in 

### Brady. Furthermore, 

### Plaintiffs attorney opened the 

### doorto the 

### introduction of the Consent 

### for Hospice Care form by stating in her opening statement that Ms. Crew's 

### family "wanted 

### their mother to live. 

### That was their intention. They were not 

### taking her to Penn to pass away." 

### Defendant's PTM brief at p. 16, citing NT 10/18/16 pp. 78-79. 

### There was no 

### error or abuse 

### of discretion in allowing the introduction of the 

### Consent to Hospice Care form at trial.

B. 

### The 

### court did 

### not abuse its 

### discretion in 

### preventing Dr. 

### Starer from 

### testifying regarding the 

### failure to 

### provide nutrition or hydration Plaintiffs PTM asserted that the court abused its discretion in preventing Plaintiff's expert, Dr. Perry Starer, from testifying that the 

### hospice's failure to provide nutrition and hydration caused or contributed to Ms. Crew's death. The short 

### answer is that, despite the 

### court's rulings, Dr. 

### Starer did, in fact, 

### testify on 

### direct examination that the failure to

9provide nutrition and 

### hydration caused or 

### contributed to Ms. Crew's death. This is a 

### summary of his 

### direct testimony on October 18, 2016:
p. 57. "[G]ood nutrition is important for the healing of a wound."
pp. 70-71 

### (emphasis added): But I 

### just want to be clear, it's pressure 

### that causes pressure ulcers. 

### Anemia doesn't cause pressure ulcers. Heart disease does not 

### cause pressure ulcers. 

### Malnutrition does not cause pressure ulcers. What these 

### things do is 

### impairthe healing 

### of the 

### ulcer once it 

### occurs. So if a

# - it would be the same if you created a wound

### just by biting. If I bit -- I would 

### never do that, but if you bit a piece 

### of skin out, itwas caused by the bite. But if then the person has 

### malnutrition, it's going to be 

### tougher

### for them to heal the wounds. So 

### the same thing. So 

### pressure ulcers are caused by pressure. 

### Vascular disease can interfere with healing. Heart 

### disease can interfere with healing. 

### Malnutrition can 

### interfere 

### with healing. And 

### this is why we take 

### that into account and try and 

### optimize these areas to assist with healing once a wound has occurred.

p. 71. In 

### treating a 

### pressure wound, "You have to provide them with the fluids and the nutrients to heal it."
pp 71-73. Q. Let me 

### just stop you there 

### for a second. How 

### important is 

### hydration in the healing 

### of a wound? A. I 

### just mentioned hydration, and sometimes I leave it out because to me it's so obvious. 

### Water is life. That's 

### exactly -- 

### that's why we're on this planet instead 

### of Mars. Life depends on water. It is one of the most basicthings. There's a 

### water cooler here in the room, and in 

### order for the body to function, there has to be enough fluid -- I'll make it simple once again so I can understand it. Imagine that the blood system is the highway, which is carrying all 

### the things you need to all the parts of the body and taking away all the waste material and it's using, you know, 

### trucks to 

### transport it. Well, the fluid is the -- is 

### what makes everything move. It's sort -- it's the transportation system. Ifwe dry up, if we 10

### become dehydrated, this all breaks down. The highway 

### doesn't function. Things start backing up and 

### things start failing. Q. Doctor, 

### talk to us, ifyou will, 

### for a moment about nutrition and 

### why that's important in the healing 

### of a wound. A. Well, hydration -- this is the 

### way I was actually taught, and it was an 

### interesting experimentthey showed us in college. 

### We know 

### that both nutrition and hydration are important, but let's say you can 

### only have one. 

### Which would you go forfirst? 

### They did a study. 

### They said go to any 

### restaurant and you'll see 

### actually how it 

### works. 

### What do 

### you do 

### first? Do you 

### start eating 

### or do you 

### drink the water? You pick up the 

### water and 

### drinkfirst. Hydration is important. Nutrition is important. They're both 

### equally important, although I 

### will always list 

### hydration first. You have to have them both, nutrition and hydration, because if you become malnourished, you will not 

### get better. You will get worse. If -- even if you are extremely healthy if you stop eating, you are 

### going to get sick. You will die. You will starve. If you already have illnesses and you are not provided with nutrition, you will do very, very poorly. You will die. We need food. It's 

### that simple. It's 

### that obvious. Q. Doctor, can you tell us

### whatthe medical standard 

### of care is 

### for nutrition, 

### for a person 

### who has a wound and it's -- it 

### needs 

### assessment and care? [The Court 

### overruled a 

### defense objection to this line of questioning and permitted 

### Plaintiff's attorneyto 

### proceed.] pp. 80-81: Q. Doctor, 

### what would be the medical standard 

### of carefor hydration

### for this patient? MS. 

### KRAMER: Note my objection. Scope 

### of the report. THE 

### COURT: Very well. MS. 

### KRAMER: Go ahead. 

### THE WITNESS: Well, the standard of care is to provide 

### necessaryfluids and to 

### monitorthat the patient is not suffering from overhydration or underhydration. That is to say you're not giving too much and 

### you're not giving too little.

11BY MS. WILSON: Q. Doctor, 

### what would be the medical standard 

### of care with regard to nutrition 

### for this patient? MS. KRAMER: Same objection, 

### Your Honor. THE COURT: Noted. THE WITNESS: The standard of care is to provide 

### adequate calories and protein. These include the participation 

### of a 

### dietician in some 

### settings by which you would 

### determinewhat is needed based upon the patient's body 

### weight and conditions. The reason I state that is 

### that you need a certain 

### amount 

### of calories in 

### orderwhich [sic.] to 

### just exist, but then you have an additional burden on the body, such as a wound, then more 

### calories are needed. So the standard 

### of care 

### takes into account the recognition that additional calories need to be provided and additional protein needs to be provided if

### there is an existing skin wound.

p. 89. In 

### discussing the Penn Presbyterian discharge summary: 'Nutrition is 

### what I had said before: Calculating the necessary calories and protein and fluid needed. Hospice is an evaluation 

### for goals 

### of care, how you 

### want to approach where the patient is going to be taken care 

### of and how

### they're going to be taken care of."
pp. 100-101. In 

### discussing the Penn Presbyterian discharge summary as to nutrition: "The diet. 

### They're calling it a 

### regular diet. It's not a 

### specialized diet. It's not saying a low salt diet, not low sugar. It's 

### just a regular diet but with the 

### regular anything [sic.]. If there is solid food to be given, it should be ground up. Make it 

### easier to swallow. Liquids are to be provided and aspiration precautions are

### just to ensure that while she's being fed, 

### what is being given 

### doesn't get inhaled into the lungs."
pp. 116-117. In 

### discussing Exhibit P-11: "Since we are asking 

### for hospice in 

### this case, which I 

### don't know if it's been described to you yet, can be considered palliative care or comfort care or even preparing 

### for death, you would 

### want to know what is the 

### diagnosis that is driving all this. Sometimes it will say 

### cancer in there or some type orAIDS, In this case 

### they wrote "dementia 

### without behavioral disturbance."

12p. 120. A DNR [do not 

### resuscitate order] says not to bring back a patient who stops breathing orwhose heart stops. "It 

### doesn't say don't do anything else. It means it's really 

### that specific, but it 

### doesn't say 

### don't treat 

### otherthings. If the patient had an infection, 

### that doesn't tell you not to treat the 

### infection...."

p. 141: Q. In the evaluation 

### ofwounds, would you look to see 

### whether or not 

### someone was receiving nutrition? A. 

### Absolutely. Q. 

### Would you look to see 

### whether or not a person was receiving hydration 

### orwater? A. Yes, I would. Q. 

### Would you see 

### whether or not Mrs. Crew was receiving 

### waterduring 

### this time? A. I did not see that she was receiving water consistently.
p. 156: A. 

### There was a 

### failure to meet the standard of care 

### for turning and 

### repositioning 

### for Ms. 

### Crew during the period 

### oftime that she was at Penn at Rittenhouse. Q. And, Doctor, did thosefailures of care cause harm -- within a 

### reasonable degree of medical certainty, did those failures ordeviations of care by Penn Medicine Rittenhouse cause harm to Mrs. Crew? A. Yes. Those failures in care did result in harm coming to Ms. Crew. Q. 

### What was the harm that it caused? A. It caused the integrity

### of her skin to be comprised, which increased the nutritional burden upon her body which she was unable to sustain. Q. Sustain life or sustain? A. Because she could not sustain her nutritional status, she was unable to sustain life.

13The 

### Court sustained defense counsel's objection to 

### this follow-up question as being beyond the scope 

### of Dr. 

### Starer's report: Q. Doctor, do you have an 

### opinion within a reasonable degree 

### of medical certainty whether or not the professional standards of care 

### were met with regard to hydration for Mrs. Crew?


### NT 10/19/16 pp. 156-157. 

### Plaintiffs counsel then concluded with: Q. Doctor, do you have an opinion within a reasonable degree of medical certainty, based upon all 

### ofthe information that you shared with us during the coarse [sic] 

### of this trial, 

### whether or not the harm 

### that was caused to Mrs. Crew contributed to 

### her death?A. I do have an opinion. Q. 

### What is 

### your opinion within a reasonable degree of medical certainty? A. The harm 

### that was caused to Ms. Crew was a 

### contributing factor to death. Q. 

### Were those harms caused by Penn Medicine's 

### deviations of care? A. Yes, itwas. Q. And have all 

### of your opinions rendered today been rendered within a 

### reasonable degree of medical certainty? A. 

### They have been. NT 10/19/16 pp. 157-158. Plaintiff did not 

### demonstrate any prejudice from the court's rulings because Dr. 

### Starer was permitted to inform the

### jury and explain how the lack 

### of nutrition and hydration 

### contributed to Ms. Crew's death. Thejury heard that the harm Ms. Crew suffered by the loss of skin integrity caused her to die because she "could not sustain her nutritional status." This issue is 

### without merit.

14C. It 

### was not an 

### abuse 

### of 

### discretion to allow the 

### defendants 

### to cross-examine 

### plaintiffs expert on his 

### opinions in 

### his 

### written report, 

### that the 

### negligence 

### of a 

### co-defendant who settled 

### with the 

### plaintiffcontributed to Ms. 

### Crew's death 

### Plaintiffs expert, Dr. Perry Starer, opined in his reports that the 

### decedent received 

### negligent care and 

### treatment at Park Pleasant Nursing Home which contributed to her injuries and death. Those opinions were in the same reports in which Dr. 

### Starer criticized the 

### decedent's care and 

### treatment at Penn Hospice. 

### At trial, the 

### Defendants crossexamined 

### Plaintiff and Dr. 

### Starer on 

### the negligent care and 

### services rendered by Park 

### Pleasant Nursing Home. Plaintiff's PTM 

### contended 

### that because 

### the Park Pleasant case was filed as a 

### separate case, 

### evidence 

### that it had been settled 

### priorto 

### the trial contravened 42 Pa.C.S. § 6141(c).2

2 § 6141. Effect 

### of certain settlements (a) Personal injuries. -- 

### Settlement with or any payment made to an injured person or to others on behalf 

### of such injured person with the permission of such injured person or to anyone entitled to recover damages on account 

### of injury or death 

### of such person shall not 

### constitute an 

### admission 

### of liability by the person making the payment 

### oron 

### whose behalf the payment was made, unless the parties to such 

### settlement or payment agree to the contrary. (b) 

### Damages to property. -- 

### Settlement with or any payment made to a person or on his 

### behalf to others

### for damages to or destruction 

### of property shall not 

### constitute an 

### admission of liability by the person making the payment 

### or on 

### whose behalf the payment was made, unless the parties to such 

### settlement or payment agree to the contrary. (c) 

### Admissibility in evidence. -- Except in an action in which final settlement and release has been pleaded as a complete defense, any settlement 

### or payment referred to in subsections (a) and (b) shall not be 

### admissible in 

### evidence on the trial 

### of any matter. (d) 

### Credits on 

### settlement or judgment. -- All 

### settlements and 

### payments by 

### oron 

### behalf

### ofthe person making payment under subsections 15

### Plaintiff framed this issue in his PTM and in 1925(b) 

### Statement as the court's
"failure to preclude 

### testimony and 

### evidence of 

### prior settlement," referring to 

### the 

### Plaintiffs pre-trial settlementwith the Park Pleasant Nursing Home defendants. 

### This claim has no 

### basis in fact. The 

### Defendants never introduced any 

### evidence of Plaintiff'ssettlement with


### the Park Pleasant Nursing Home defendants, and the 

### jury did not hear anything about 

### that settlement. 

### Plaintiffs PTM and 

### briefdid not 

### identify any place in the trial record where 

### the settlement was presented to the jury. This issue was waived. 

### 'The failure to 

### specify in a post-trial motion how the 

### grounds 

### for relief were asserted at trial, or in pre-trial proceedings, will result in a 

### waiver 

### of those grounds." 

### Hinkson v. Corn., 

### Deptof Transp., 871 

### A.2d 301, 303 (Pa. Cmwlth 

### 2005) (quashing appeal), citing 

### Hallv. 

### Jackson, 2001 PA 

### Super 334, 788 A.2d 390, 401 n.9 

### (2001) ("the Hospital 

### failed to 

### specify in its post-trial motion how the 

### grounds were asserted at trial and, 

### therefore, waived this 

### argument pursuant to Rule 227.1(b)"). See 

### Pa.R.C.P. 227.1(b)(2) ("The motion shall state how the grounds were asserted in pre-trial 

### proceedings or at trial. Grounds not specified are 

### deemed waived"). Even were this issue not waived, it still is 

### without merit. The trial 

### court correctly
ruled 

### that Dr. 

### Starer could be cross-examined about the opinions in his reports 

### that established the liability 

### of the Park Pleasant Nursing Home defendants. 

### The Superior Court approved a non

### -settling defendant's use 

### ofthe testimony 

### ofthe 

### plaintiff's expert to

(a) and (b) shall be credited to the person making the same 

### against any final settlement or 

### judgment against such person, except 

### that this section shall not be construed in such a manner as to change, 

### alter or amend the 

### effect of Subchapter B 

### of Chapter 83 (relating to contribution among tort

### feasors). 42 Pa.C.S.A. § 6141. 16

### establish that the settling 

### defendant bore some responsibility for the 

### plaintiffs injuries, in 

### Herbert v. 

### Parkview Hosp., 2004 PA 

### Super 287, 854 A.2d 1285, 1290-1291. This same issue arose in a 

### case that this trial judge found very persuasive and 

### followed. 

### Stang v. 

### Smith, 39 Pa. D. & C.Sth 428, 444-46, 2014 WL 11300415,at 

### *7-8, 2014 Pa. Dist. & Cnty. Dec. 

### LEAS 943, 23-26; (C.P. Carbon Cty. 2014).3 

### President Judge Nanovic held in 

### Stang that a non-settling 

### defendant may 

### cross-examine the plaintiff's expert on his 

### report 

### that established the settling defendant's liability. Such 

### cross-examination may be usedto impeach the 

### expertand to 

### preventthefalse impression that the 

### plaintiffs expert believes 

### that the non-settling 

### defendant alone was responsible 

### for the decedent's death when in 

### fact his opinion is more 

### complex than that. Cross

### examination is also 

### permissible to prove the substantive liability 

### ofthe settling 

### defendant and 

### does not 

### violate the rule 

### that one party may 

### not compel an expert 

### for the opposing 

### party to 

### offer an opinion against his will. 2014 WL 11300415, at *8. President Judge 

### Nanovic explained his 

### decisions as 

### follows: Prior totrial, 

### Plaintiffs medical experts opined that not only the 

### Non- Settling Defendants, but also the Settling Defendants, were negligent and 

### responsible for Decedent's death. In particular, in Dr. Graham's expert 

### report he criticized the care provided by both the 

### Non-Settling and 

### Settling Defendants, opining 

### that such care deviated from the applicable standard 

### of care, and 

### concluding 

### that this deviation caused 

### or contributed to 

### Decedent's death. Dr. 

### Rosenbaum, who 

### was critical 

### of Dr. Chaudhry's neurological care 

### of the Decedent, also opined 

### that the 

### delay in getting Decedent to the hospital 

### which resulted from Dr. Lesitsky's failure to advise Mrs. Stang to take her husband to the hospital immediately for stroke evaluation both increased the risk 

### of harm and caused or contributed to 

### the

3 

### This court recognizes 

### that the "decisions 

### of the Court of Common Pleas are not 

### binding precedent; however, they may be considered 

### for their persuasive authority" by the 

### Superior Court. 

### Fazio v. 

### Guardian Life Ins. Co. 

### ofAmerica, 2012 PA 

### Super 273, 62 A.3d 396, 411.
17

### Decedent's death.

### Absent settlement

### of Plaintiff's claims 

### againstthe Settling Defendants, these experts were scheduled to 

### testify on 

### Plaintiffs behalf against the Settling Defendants. Once 

### settlement was reached, Plaintiff requested that the 

### testimony 

### of Drs. Graham and 

### Rosenbaum be limited to 

### their opinions critical 

### of the 

### Non-Settling Defendants only and 

### that the Non-Settling Defendants be 

### barred from cross-examining 

### Plaintiffs experts as to any 

### opinions held by 

### them critical 

### of the Settling Defendants. By 

### Order dated 

### September 16, 2013, we refused to restrict the scope 

### of the 

### Non-Settling Defendants' cross-examination 

### of Plaintiffs medical experts as requested by Plaintiff. In 

### Boucher v. 

### Pennsylvania Hospital, 831 A.2d 623 (Pa. Super. 2003), the Court stated: Generally, every circumstance relating to 

### the direct testimony 

### of an adverse 

### witness or relating to anything within his 

### or her knowledge is a 

### proper subject for cross-examination, including 

### any matterwhich might qualify or diminish the 

### impact of direct examination. Specifically regarding medical experts, the scope of crossexamination involving a medical 

### expert includes reports 

### or records which have not been admitted into 

### evidence but 

### which tend to refute 

### that expert's assertion. Id. at 629 

### (citations and 

### quotation marks 

### omitted), appeal denied, 847 

### A.2d 1276 (Pa. 

### 2004). See 

### also Kemp v. Qualls, 473A.2d 1369, 1371 (Pa. Super. 1984) (holding 

### that "(e]very 

### circumstance relating to the 

### direct testimony 

### of
an adverse 

### witness or relating to anything within his or her knowledge was
a 

### proper subject for cross-examination, including any 

### matter which might 

### qualify or 

### diminish the impact of

### direct examination"); Rose v. Hoover, 331 

### A.2d 878, 882 (Pa. Super. 1974) (stating 

### that "cross-examination may embrace any matter germane to the 

### direct examination, qualifying or destroying it, 

### or tending to 

### develop facts which have been 

### improperly suppressed or ignored by the plaintiff'). 

### Without question, cross-examination 

### of 

### Plaintiffs medical experts 

### with respect to the 

### entirety 

### oftheir opinions as 

### expressed in 

### their expert reports was 

### permissible 

### for impeachment purposes: the 

### manner in 

### which 

### Plaintiffsought to 

### limit the 

### testimony of her medical 

### experts in 

### her case-in

### -chief would otherwise have 

### been 

### skewed and 

### given the 

### false 

### impression that these 

### experts were 

### ofthe 

### opinion that the 

### Non-Settling Defendants alone 

### were responsible 

### for Decedent's death. Conley v. Mervis, 188 A. 350 (Pa. 1936) (explaining that the limitations 

### of cross-examination are not intended to provide a 

### cloak

### for the
18

### concealment of material 

### facts pertaining to issues touched upon in 

### direct examination and 

### that any 

### limitation on 

### the scope of 

### cross-examination that would allow a party to ignore 

### orotherwise suppressfacts of an adverse and 

### harmful character would 

### defeat one 

### of the vital reasons 

### for crossexamination), overruled in part on 

### other grounds by DeWaele v. 

### Metropolitan Life Ins. Co., 58 

### A.2d 34 (Pa. 1948); see also Pa.R.E. 

### 611(a)(1) (requiring that the trial court's control 

### over the mode and 

### order of examining witnesses and presenting evidence allow 

### for effective determination 

### ofthe truth). 

### The 

### Non-Settling Defendants hadevery 

### rightto point the 

### finger and 

### elicit evidence 

### through 

### Plaintiffs experts 

### that the cause 

### of Decedent'sdeath 

### was 

### not the

### failureby Dr. 

### Lesitskyto 

### immediately refer Decedent to 

### the emergency room 

### for a 

### physical evaluation or any delay in Dr. 

### Chaudhry's neurological consult 

### or 

### treatment-the Non-Settling Defendants' experts being of 

### the opinion that Decedent would have 

### ultimately fully recovered from his 

### stroke-but [for] the 

### failure to provide DVT 

### prophylaxis once Decedentwas admittedto the Hospital, 

### forwhich the 

### Non-Settling Doctors argued they were not responsible. Moreover, 

### this evidence was 

### also admissible to prove the 

### substantive 

### liability of the 

### Settling Defendants. First, 

### the evidence was not hearsay. 

### The opinions being elicited were those of the 

### witness on the stand being 

### cross-examined and 

### they were clearly subject to questioning by all parties. 

### Nor did 

### such questioning run 

### afoul 

### ofthe rule 

### that one 

### party may 

### not compel an 

### expert 

### for the 

### opposing party to 

### offer an 

### opinion against his 

### will. Boucher, 831 A.2d at 632. "The basis

### forthis rule is an 

### acknowledgment 

### ofan 

### expert's proprietary interest in his own opinion, and 

### the recognitionthat he should not be required to relinquish it

### without his 

### consent." Id. In contrast, the opinions at issue here were 

### independently 

### subject to 

### disclosure for impeachment such 

### that any 

### proprietary interest 

### against disclosureclaimed by 

### Plaintiffs medical experts is illusory. 

### Nor was there any question that these experts 

### were competent to 

### express the opinions on which 

### they were cross-examined: the experts were 

### employed by Plaintiff; 

### the opinions were prepared at 

### Plaintiffs behest, with 

### the intent of having 

### them offered at trial against the Settling Defendants; the 

### opinions were 

### identical to those which Plaintiff intended to 

### present against the Settling Defendants had 

### settlement not been reached; and, 

### understandably, no 

### objection to 

### competency was raised by Plaintiff.

19

### Stang v. 

### Smith, 39 Pa. D. & C.5th at 444-46, 2014 WL 11300415, at 

### *7-8, 2014 Pa. Dist.
& Cnty. Dec. LEXIS at 23-26 

### (emphasis and paragraph breaks added).4
In 

### the present case, 

### the Penn 

### defendants had "every right" to 

### cross-examine Dr. 

### Starer regarding 

### all of the opinions expressed in his expert reports 

### for impeachment
purposes and as substantive evidence. As in 

### Stang, the manner in which Plaintiff sought
to limit 

### the testimony of his medical 

### experts in his 

### case-in

### -chief would otherwise have
been 

### skewed and given the false impression that Dr. 

### Starerwas 

### ofthe opinion 

### that Penn 

### Hospice at Rittenhouse alone was responsible for 

### Plaintiffs decedent's death. Id.

D. The 

### trial court did 

### not abuse 

### its discretion in 

### excluding unidentified "federal and state laws, 

### regulations and 

### guidelines" Plaintiff claims that "the trial 

### court erred in not permitting the contents 

### of federal and state laws, regulations and 

### guidelines to be used at trial." A 

### fundamental problem with 

### this issue is 

### that the Plaintiff's PTM and brief failed to identify the specific "federal and state laws, regulations and 

### guidelines" he claims were improperly excluded. Plaintiff cited to "Federal Hospice Regulations, 42 CFR 418," without identifying to which 

### of the 

### fifty-seven individual regulations he 

### was referring. 

### Plaintiff mentioned 

### the thousand-page 

### federal Omnibus Budget Reconciliation 

### Act of 1987 (OBRA) and "OBRA regulations," 

### without providing a citation for the act or the regulations, and 

### without citing to a specific section 

### of the act or regulations. His PTM filings did not mention any state laws or 

### regulations, or "guidelines" 

### of any sort.

4 

### This portion 

### of Stang was 

### followed by 

### Rapchak v. 

### Haldex Brake Prod. Corp., No. 2:13-CV-1307, 2016 WL 3752908, at *5 (W.D. Pa. July 14, 2016), which also is not binding precedent. 20

### This issue was raised in the Defendants' MIL No. 16100436 discussed at NT 

### 10/17/16 pp. 

### 47-56. Duringthe discussion, the Plaintiff's only mention 

### of specific hospice regulationswere 42 CFR 418, 42 CFR 418 et seq., and 42 CFR 418.56. NT 10/17/16 pp. 49, 50, & 53. 

### Plaintiff admitted that the MS. 

### WILSON: Federal 

### regulations issued by 

### Medicare to 

### support COBRA [sic] are found at 42 CFR 483. I agree 

### that those are not applicable to a hospice. 

### They apply to skilled nursing 

### facilities, also known as nursing homes. NT 10/17/16 p. 50. The trial court deferred ruling on the motion in limine until the issue arose at trial. NT 10/17/16 pp. 55-56. 

### Plaintiffs only post-trial citation to the trial record where 

### the issue arose was NT 10/26/16 pages 21-36. Plaintiff wanted to 

### cross-examine Barbara Felder, a certified
nurse 

### practitioner who worked at Penn Hospice, on her knowledge of 42 CFR §§ 

### 418.81.1-116 regarding the hospice's responsibility to provide 

### food and dietary counseling. 

### The trial court pointed out 

### that the regulation identified by 

### Plaintiff "sounds like it is 

### the menu of available options and care and treatment that must be part 

### of an 

### institution's setup in 

### order to 

### qualify for Medicare," that it does not "in any way indicate 

### that each and 

### every case, every patient must be provided with each and every one 

### of those menu items." NT 10/26/16 pp. 27-28. The trial court also pointed out that the 

### regulation's definition of dietary counseling relied on 

### what was in the individual patient's 

### treatment plan, and 

### that Ms. 

### Crew's hospicetreatment plan was 

### silent on 

### dietary issues and forced nutrition and hydration. Id. p. 30. The trial court ruled as follows: THE COURT: All right. So 

### far you've shown that in 

### dietary provisions have to be -- have to be available and that 

### they have to

21be given if it's part 

### of the patient's plan. I don't see anything about dietary on this plan 

### that you've shown. MS. 

### WILSON: So can I inquire 

### of her what skin breakdown precaution means? THE COURT: I 

### think it's 

### fair game. MS. 

### WILSON: Okay. NT 10/26/16 pp. 35-36. 

### Thetrial court correctly ruled 

### that it

### was irrelevantto cross-examinethe 

### witness on the need to give Ms. 

### Crewfood and 

### water because Ms. Crew's 

### treatment plan was silent

on dietary issues and did not require forced nutrition and hydration.5

E. 

### The 

### "Motion 

### for Judgement [sic] 

### Non 

### Obstante 

### Verdict [sic] 

### (or Such Other Relief as is 

### Specified Below)" is 

### boilerplate that did not preserve any issue

### for review. Plaintiffs 1925(b) 

### Statement raises the following waived issues: 

### Plaintiff seeks 

### judgment against the 

### Defendants because the 

### jury verdict was 

### against the evidence and also 

### against the 

### weight 

### ofevidence

5 At page 27 

### of his PTM brief, the Plaintiff raised the issue 

### ofthe trial court's failure to charge the

### jury on 

### negligence per se. Plaintiff's PTM, howeverwas 

### silent on the issues 

### of negligence per se and the failure to charge the

### jury on negligence per se. See 

### ¶¶ 21- 21. Plaintiff therefore waived the issues of negligence per se and the charge given to the jury. "If an issue has not been raised in a post-trial motion, it is waived 

### for appeal purposes." 

### Vautar v. 

### First Nat. 

### Bank 

### of Pennsylvania, 2016 PA 

### Super 5, 133 A.3d 6, 10 (en bane), 

### citing 

### Chalkeyv. 

### Roush, 

### 757 A.2d 

### 972, 975 (Pa. Super. 2000) (en bane), affirmed, 569 Pa. 462, 805 A.2d 491 (2002). "Only issues specifically raised in post- 

### verdict motions can be 

### considered and will be preserved 

### for appeal, and issues raised 

### only in briefs in 

### support of those motions may not be considered." 

### Cherry v. 

### Wilier, 317 Pa. Super. 58, 63, 

### 463 A.2d 1082, 1084 (1983). See 

### Siculiento v. 

### K & B 

### Amusements Corp., 

### 2006 PA 

### Super 380, 915 A.2d 130, 132 n.2 (an issue not specifically set forth in the post-trial motion is 

### waived even though the party argues the issue in his brief supporting the post-trial motion).
22

### when it 

### determined that Defendants were not negligent. 

### Plaintiffis 

### entitled to

### judgment as a 

### matter

### oflaw. 

### The 

### Plaintiff asks for 

### judgment n.o.v. to 

### be entered in his favor, 

### pursuantto 

### Pa.R.C.P. §227.1(a)(2) and direct the entry 

### ofjudgmentin 

### favor 

### ofPlaintiff. 

### Plaintiff is 

### entitled to 

### judgment n.o.v. since facts and 

### evidence demonstrate liability, damages and

### punitive damages. 

### Plaintiff is 

### entitled to a 

### judgment n.o.v. based on the law, in 

### conjunction with the 

### evidence, and since the 

### evidencewas suchthat no 

### two 

### reasonable minds could disagree that the 

### outcome should

### have 

### beenrendered in 

### favor 

### ofthe 

### Plaintiff 

### [ff 5] 

### The trial

### court erred and abused its 

### discretion in 

### failing to

### grant, in

### their entirety, 

### Plaintiff's Motions for Directed Verdict. 6] 

### The trial court's dismissal 

## ofPlaintiffs punitive damage claim was against the law 

### and the evidence which now requires the entry 

### of a 

### judgment n.o.v., 

### in favor

### ofthe Plaintiff, as

### tothese claims. 

### VERDICT SHOULD NOT STAND 

### Theverdict was againstthe law. The issues in 

### ¶ 5 

### were not raised in 

### Plaintiffs PTM and are waived. 

### Vautar v. 

### First Nat. Bk. of Pa., 2016 PA 

### Super 5, 133 A.3d 6, 10 (en bane) ("If an issue has not been raised in a post-trial motion, it is waived 

### for appeal purposes."). The issues regarding punitive damages in ¶ 6 are 

### irrelevant because the 

### jury decided that the 

### defendant was not negligent and never reached the issues 

### of causation 

### or damages. The other issues are identical to those included in the PTM and were waived 

### because they were not 

### argued in the Plaintiff's PTM brief. Jackson v. Kassab, 2002 PA 

### Super 370, 812 A.2d 1233, 1235 ("common sense mandates 

### that any issue raised in a motion 

### for post-trial relief must be briefed and argued to the trial court. [F]ailure to set
23forth an 

### argument in briefs filed in the court in 

### support of post-trial motions 

### constitutes a failure to preserve the issue or issues not argued." (Internal citations and quotes omitted.)). All 

### of the issues were also waived because 

### they were 

### impermissible boilerplate that did not 

### specify the reasons supporting the claims 

### for relief. Pa.R.C,P. 

### 227.1(b)(2) provides 

### that post-trial 

### relief may not be granted unless the grounds 

### for relief, "are specified in the motion.

... Grounds not specified are deemed waived." "The result 

### ofthis 

### requirement is to deter and disapprove 'motions which set forth
mere 

### 'boilerplate' 

### language Frederick v. 

### City

## ofPittsburgh, 132 Pa. Cmwlth. 302, 306, 572 A.2d 850, 852 

### (1990) (citation omitted). See 

### Cauthorn v. 

### Owens 

### CorningFiberglas Corp., 2004 PA 

### Super 1, 840 A.2d 1028, 1033-1034 (very general assignments 

### of error in post-trial motions, such as "the verdict is against the law" or 

### "against the evidence," do not preserve any issues 

### for review in the trial court 

### or in the appellate court); 

### Siculiento
v, 

### K & B 

### Amusements Corp., 2006 PA Super 380, 915 A.2d 130, 133 (reserving the "right" in a post-trial motion to raise "such other errors as may be disclosed by a 

### transcript of the 

### trial," does not preserve any grounds for relief not specifically stated in the motion). "In requiring 

### the motion to state 

### the specific 

### grounds therefor, motions which set forth mere 

### 'boilerplate' language are 

### specifically disapproved.A post-trial motion must set forth the

### theories in 

### support thereof 'so that the lower court will knowwhat it is being asked to 

### decide." 

### Hinkson v. Com., 

### Dept 

### of Transp., 871 A.2d 301, 303 (Pa. Cmwlth 2005), 

### quoting 1983 

### Explanatory Comment to Rule 227.1, quoting 

### Frank v. 

### Peckich, 257 Pa.Super. 561, 579, 391 A.2d 624, 632-633 (1978) (en banc, 

### opinion in support of affirmance).

24The Superior Court "has 

### consistently held 

### that a post-verdict motion,stating merely 

### that the evidence was 

### insufficientto 

### support the 

### verdict orthat the verdict was against the 

### weight of the evidence, will preserve 

### no issue 

### for appellate review unless the motion goes
on to 

### specify 

### in 

### whatrespectthe 

### evidence was insufficient, orwhythe verdict was against the 

### weight

### ofthe evidence." 

### Commonwealth v. 

### Hosey, 364 Pa. Super. 578, 581-82, 528 A.2d 659, 661 

### (1987) (emphasis in the original), quoting 

### Commonwealth v. 

### Tillie, 359 

### Pa.Super. 302, 318, 518 A.2d 1246, 1254 (1986). 

### The 

### Plaintiffs post-trial motion did not conform to these mandatory requirements resulting in 

### the waiver 

### of those issues in the trial court. Those same 

### deficiencies also result in the 

### waiver of 

### these issues on appeal. 

### Very general assignments of error in Pa.R.A.P. 1925(b) statements, such as "the 

### verdict is 

### against the law" or 

### "against the evidence," do not preserve any issues 

### for review in 

### the trial court or in the appellate court. 

### Cauthorn v. 

### Owens 

### Corning Fiberglas Corp., 2004 PA 

### Super 1, 840 A.2d 1028, 1033-1034. See 

### Commonwealth v. 

### Lemon, 2002 PA 

### Super 234, 804 A.2d 34, 37 (a 1925(b) Statement is too vague to preserve issues 

### for appellate review when it merely states that the verdict was 

### "against the evidence," "against the weight of the evidence," and "against the law"). Similarly, the claim that the 

### verdict was "against the 

### weight of the credible evidence as to all of the charges" is so vague 

### that it is the functional 

### equivalent offiling no 1925(b) Statement at all, and all issues
are 

### deemed to be waived. 

### Commonwealth v. 

### Seibert, 2002 PA 

### Super 15, 799 A.2d 54, 62.

25

### The Plaintiff's claims of 

### error and requests for judgment n.o.v. challenge the 

### sufficiency of the evidence to 

### support the verdicts.° "When challenging the sufficiency of the 

### evidence on appeal, the 

### Appellant's 1925 

### statement must 'specify the element or 

### elements upon which the evidence was 

### insufficient in order to preserve 

### the issue 

### for appeal." 

### Commonwealth v. 

### Gibbs, 2009 PA 

### Super 181, 981 A.2d 274, 281, quoting 

### Commonwealth v. 

### Williams, 2008 PA 

### Super 250, 959 A.2d 1252, 1257. 

### The 

### Plaintiffs boilerplate and 

### insufficient Rule 1925(b) 

### statement fails to point out to the trial court 

### or to the appellate court how the trial court misinterpreted the facts orthe law. All 

### ofthese issues are waived.

IV. 

### CONCLUSION
For the 

### foregoing reasons, the 

### Superior Court should affirm the 

### judgment entered

on the 

### jury's verdict in 

### favor of Defendant-Appellee Penn Hospice at Rittenhouse, and 

### against the Plaintiff-Appellant David Crew as the administrator 

### of the Estate 

### of Essie Crew, and in his own right. BY THE 

### COURT:



### chman, J.

6 "The remedy 

### of entry of

### judgment in a party's 

### favor is proper only when a party 

### successfully challenges the 

### sufficiency of the evidence." 

### Morin v. 

### Brassington, 2005 PA 

### Super 107, 871 A.2d 844, 851 

### (emphasis in the original). "On appeal from the refusal 

### of the lower 

### court to enter 

### judgment n.o.v., the sole 

### duty of the 

### appellate court is to decide whether there was sufficient evidence to sustain the verdict, granting the verdict 

### winnerthe benefit 

### of every favorable inference reasonably to be drawn from the evidence and rejecting all unfavorable testimony and influences." G.J.D. v. 

### Johnson, 447 Pa.Super. 340, 342, 669 A.2d 378, 379 (1995). 26