J-A28005-17 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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 
J-A28005-17

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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
J-A28005-17

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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)
J-A28005-17

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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 
J-A28005-17

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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. 
J-A28005-17

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

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

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

CIVIL TRIAL DIVISION 

DAVID CREW, ADMINISTRATOR OF THE : ESTATE OF ESSIE CREW, DECEASED AND : IN HIS OWN RIGHT 

Plaintiff -Appellant 

v. 

PENN PRESBYTERIAN MEDICAL CENTER, : et al. 

Defendants -Appellees 

OPINION 

ELLEN CEISLER, J. 

SUPERIOR COURT 

869 EDA 2017 

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 

' 11111111111,111111001111111 
2. In his Brief in Support of Motion for Post -Trial Relief, Appellant failed to explain, or 

address in any manner, his basis for claiming that this Court erred by granting summary 

judgment regarding his "Breach of Oral Contract" claim in favor of Penn Presbyterian 

Medical Center ("Penn Presbyterian"), the Trustees of the University of Pennsylvania 

("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 of his Sixth Amended Complaint; 

4. This Court committed harmless error in granting summary judgment in favor of Penn 

Hospice as to Appellant's "corporate negligence" claims from Count II of his Sixth 

Amended Complaint; 

5. Penn Presbyterian, the Trustees, and Penn Medicine Rittenhouse were entitled to 

summary judgment regarding Crew's "negligence" claims from Count I of his Sixth 

Amended Complaint. 

Preliminarily, this Court maintains that Appellant 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 of Civil Procedure, "Post -trial motions shall be filed within ten days after 

[] verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial." 

Pa. R.C.P. 227.1(c). Accordingly, "parties [must] file post -trial motions in order to preserve issues 

for appeal. If an issue has not been raised in a post -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 of reasons, such consolidation 

cannot be deemed "complete," in that "the actions lose their separate 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 of the separate identities of the 

actions." Id. at 495. 

2 
In the instant scenario, Appellant filed two suits: One, docketed under Case ID 

#140400958, in which he sued Park Pleasant Health Care 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 Motion to Consolidate, which was granted by the Honorable Lisa Rau on March 

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 Relief in his case against the Park Pleasant entities, but 

not in this matter. Given that each of Appellant'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 of these matters did not occur, meaning that Appellant was thus required to file post - trial motions in both cases in order to preserve any potential issues for appellate review. Thus, as 

Appellant only filed a post -trial motion of record 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 arguendo that Appellant has not waived all potential appellate issues, his request 

for appellate relief regarding this Court's aforementioned partial 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 of material fact as to a necessary 

element of the 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 must be granted in situations where 

"an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts 

essential to a cause of action 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 of the moving party to 

judgment as a matter of law." Young v. Com., Dep't of Transp., 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 of material 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 

3 
the 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. 

As to all appellees regarding the "corporate negligence" claims contained in Count II of Plaintiff'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 -Trial Motion at 6-21; Appellant's Brief in Support of Motion for Post -Trial Relief 

at 5-21.2 Both of these challenges are addressed infra, in seriatim. 

First, this Court properly granted summary judgment in favor of Penn Presbyterian, the 

Trustees, and Perm Medicine Rittenhouse regarding Appellant's "corporate negligence" claims 

from Count II of his Sixth Amended Complaint. Corporate negligence is a doctrine first recognized 

by the Pennsylvania Supreme Court in Thompson v. Nason Hosp., 591 A.2d 703 (Pa. 1991), and 

cautiously expanded by our appellate courts since then, through which hospitals and certain, other 

medical entities "can be held liable if [they] breach[] the non -delegable duty of care owed 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 stated that summary judgment was granted 

in favor of Penn 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 that Plaintiff could still pursue his Count 1 -based claim against Penn Hospice. See Trial 

Worksheet at 1 ("*The parties agree that the correct defendant was Penn Hospice-Rittenhouse."). 

2 Though Appellant apparently also wishes to dispute the propriety of this Court's decision to grant summary 

judgment regarding his "Breach of Oral Contract" claims against Appellees, he neglected to address that matter in 

his Brief in Support of Motion for Post -Trial Relief. See Statement of Errors at 4 Brief in Support of Motion for 

Post -Trial Relief at 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 a post -trial motion which are briefed or argued before the court hearing the motion will be considered preserved for appellate review."). 

4 
Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 601 (Pa. 2012) (citing Thompson, 591 

A.2d at 707). Under this theory, 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) [] duty to select and retain only competent physicians; (3) [] duty to oversee all persons who 

practice medicine within its walls as to patient care; [or] (4) [] duty to formulate, adopt, and enforce 

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 of care 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 of action in corporate negligence. Instead, corporate 

negligence is based on the negligent acts of the institution. A cause of action for corporate 

negligence arises from the policies, actions or inaction of the institution itself rather than 

the specific acts of individual hospital employees. Thus, under this theory, a corporation is 

held directly liable, 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 expert testimony to establish that the [corporate entity] deviated from an accepted standard 

of care 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, expert testimony 

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 of fact 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 discussed the care provided to Essie Crew at Park Pleasant Nursing 

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 

5 
existence 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 of material fact as to this claim against these three entities. As such, this Court 

appropriately granted summary judgment in favor of Penn 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 of material fact regarding whether Penn 

Hospice committed corporate negligence in connection with Essie Crew's medical treatment at its 

facility. See Motion for Partial Summary Judgment, 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's request for a new trial. In situations where 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 whether the 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-whether to grant a new trial-is always a discretionary matter because it requires 

consideration of the particular circumstances of the case. 

Morrison v. Com., Dep't of Pub. Welfare, Office of Mental Health (Woodville State Hosp.), 646 

A.2d 565, 571 (Pa. 1994) (footnote omitted). When reviewing the issues raised by 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 ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000)). Thus, if an 

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. 

6 
In this matter, and as noted above, this Court denied the Motion for Partial Summary 

Judgment as to Penn Hospice regarding Count I of Appellant'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 of those in 

Count II. Compare Sixth Amended Complaint at 3-18 (Count I) with id. at 18-31 (Count II). Thus, 

though this Court granted summary judgment as to Count II's corporate negligence claims, Penn 

Hospice was not given similar relief regarding Count I, meaning that this ruling did not ultimately 

foreclose upon Appellant's ability to have the jury decide whether that entity had been corporately 

negligent. See Verdict Sheet at 1 (asking the jury to determine if Penn Hospice's handling of Essie 

Crew had "[fallen] below the applicable standard of care. In other words, was [Penn Hospice] 

negligent?"). Moreover, even if one 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, if not properly 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 new trial. 

In addition, this Court properly granted summary judgment in favor of Penn 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 contained therein sound in both corporate 

negligence and vicarious liability. See Sixth Amended Complaint at 3-18. To the extent that 

Appellant challenges this Court's decision regarding any of his Count I -based corporate negligence 

claims against these appellees, he is not entitled to appellate relief due to his aforementioned failure 

to offer expert testimony in support of such allegations. 

7 
With regard to Count I's vicarious liability -based allegations, his request for appellate relief 

is also without merit. 

Vicarious liability, sometimes referred to as imputed negligence, means in its simplest form 

that, by reason of some relation existing between A and B, the negligence of A is to be 

charged against B although B has played no part in it, has done nothing whatever to aid or 

encourage it, or indeed has done all that 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 if the 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 whatsoever to support his assertions that employees or agents of either Penn Presbyterian 

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 of material fact 

regarding whether they were vicariously liable for any of the allegedly negligent medical care 

given to Essie Crew. As has long been understood by Pennsylvania courts, "the classic common 

law test of the 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 functions performed 

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 of the 

pyramid and those laboring at its component organizations; rather, it must be established on a case - by -case basis whether a given worker or group of workers are actually employees of their parent 

corporation. See Botwinick v. Credit Exch., Inc., 213 A.2d 349, 353-54 (Pa. 1965) (citations 

omitted);3 Barnes v. Alcoa, Inc., 145 A.3d 730, 735 (Pa. Super. Ct. 2016).4 Thus, unless the answer 

Neither the similarity of names 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 chief executive of both 

corporations will per se justify 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 plaintiff must]... show [the parent company] had the power 

8 
to this question of agency is "yes," the parent corporation cannot be susceptible to a claim based 

upon vicarious liability. 

Here, Appellant stated that three pieces of evidence supported his vicarious liability claim 

against the 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 

of the Trustees"; 2. Various webpage printouts, which showed that the Trustees "is the governing 

board of the Penn Presbyterian Medical Center which manages, oversees[,] directs[,] and/or 

operates the 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 Pleasant Nursing Home. 

See Answer to Motion for Partial 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 (or lack thereof) over the medical professionals at the 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) (citing Irrera v. SEPTA, 

331 A.2d 705 (Pa. Super. Ct. 1974).5 Finally, Dr. Starer's claim that Dr. Uy was employed by the 

Trustees was based off of information Dr. Uy allegedly divulged while being deposed. See Answer 

to Motion for Partial Summary Judgment, Ex. E at 6. As neither Appellant nor Appellees 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 rested upon evidence existing outside of the case 

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

company]. 

5 Moreover, neither of these printouts addressed whether or not the Trustees exert control over those who work at its 

subsidiaries. 

9 
record, rendering it an unsupported allegation that could not create a genuine issue of material 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 of the 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 of his Sixth Amended 

Complaint. 

III. CONCLUSION 

For the aforementioned reasons, this Court respectfully requests that the instant appeal be 

quashed or denied. 

BY THE COURT: 

C@ 

J. 

10 
Circulated 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 of the 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 urinary tract 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 161111111t11111 
From July 6, 2012 until August 6, 2012, Ms. Crew was admitted to Penn Hospice 

at Rittenhouse. Ms. Crew refused to eat and she was not forced -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 summary judgment. 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 liability to establishing negligence on the part of Penn Hospice for the 

2 
decreased frequency of turning and repositioning Ms. Crew from every two to every three 

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 "breach of 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 of the 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 judgment and various alleged trial errors committed by the trial judge. The trial 

judge limited her review of the PTM to the alleged trial errors. 

The trial judge denied the PTM and entered judgment on the jury's verdict on 

February 15, 2017. Plaintiff filed 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 summary judgment issues. Consequently, the trial judge 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' Motion for Partial 

Summary Judgment dated January 27, 2016 (see Exhibit "A") that the 

Plaintiff could not present a claim of corporate negligence against the 

Defendants, Penn Presbyterian Medical Center, Trustees of the University of Pennsylvania, Penn Hospice at Rittenhouse and Penn Medicine 

Rittenhouse. Plaintiff did 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 on the vicarious negligence 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. 

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' 

Motion for Partial Summary Judgment on the breach of oral 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 FOR MODIFICATION OR CHANGE OF DECISION 

Plaintiff requests that the trial court modify or change its decision to 

include a claim of corporate negligence and vicarious liability, and grant a 

4 
new trial. Plaintiffs counsel raised said issues prior to trial by Answer to 

Motion for Summary Judgment. 

B. Alleged trial errors 

B. ADMISSION OF CONSENTS AND RELEASES AT TRIAL 

The trial court committed an error of law and an abuse of discretion 

in permitting the admission of the consents and releases signed by the 

Plaintiff into evidence at the time of trial. Consents for treatment are 

irrelevant to a cause of action in medical negligence pursuant to Brady v. Urbas, 2015 Pa. Lexis 655 (Pa. 2015). The trial court admitted the consents 

and releases into evidence over Plaintiffs objections, and they were 

considered by the jury during their deliberations. 

The trial court committed an error of law and abused its discretion 

which did harm the Plaintiff when it denied Plaintiffs Motion in Limine, 

Control No. 16101859 regarding informed consent and releases as the 

Plaintiff did not consent to the negligence of the Defendants. 

This admission of evidence to the jury was an abuse of discretion 

and an error of law which did prejudice the Plaintiff. Further, the trial court 

ignored stare decisis of the Pennsylvania Supreme Court on the issue which 

was an error of law that did harm the Plaintiff. 

E. FAILURE TO PERMIT EXPERT OPINION TESTIMONY OF 

MEDICAL NEGLIGENCE REGARDING MALNUTRITION AND 

DEHYDRATION 

The trial court did err and abuse its discretion when it granted 

Defendants' objection to preclude Plaintiff form [sic] introducing evidence 

of Defendants' failure to provide Plaintiffs decedent with proper nutrition 

or to provide hydration by Plaintiffs expert witness. This was an error at 

law and an abuse of discretion which did prejudice the Plaintiff. 

F. FAILURE TO PRECLUDE TESTIMONY AND EVIDENCE OF 

PRIOR SETTLEMENT 

Defendants were permitted to cross examine Plaintiff and his expert, 

Dr. Perry Starer, on care and services rendered by Park Pleasant Nursing 

5 
home when the Park Pleasant case was a separate case that had been settled 

prior to the trial in this case in contravention of 42 Pa.C.S. § 6141 (c) [sic] 

The Pennsylvania Supreme Court states in Kincy v. Petro, 606 Pa. 524,2 

A.3d 490 (2009) that cases which are "consolidated for purposes of 

discovery and trial," retain tier [sic] separate case identities and do not 

become a "merged" single action. This was an error of law and abuse of 

discretion which did prejudice the Plaintiff. 

G. REGULATIONS AS EVIDENCE OF NEGLIGENCE 

The trial court committed an error of law and an abuse of discretion 

which id [sic] prejudice the Plaintiff in prohibiting the Plaintiff's counsel or 

his experts to introduce and explain to the jury of [sic] the provision of the 

applicable federal and state laws on hospice care and regulations and 

guidelines pertinent to the case. This was an error of law and abuse of 

discretion which did 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 jury for cross 

examination on the standards of care of negligence. This was an error of 

law and an abuse of discretion which did prejudice the plaintiff. 

* * * * * 

I. MOTION FOR JUDGEMENT [sic] NON OBSTANTE VERDICT 

[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. Plaintiff is entitled 

to judgment as a matter of law. 

The Plaintiff asks for judgment n.o.v. to be entered in his favor, 

pursuant to Pa.R.C.P. §227.1(a) (2) and direct the entry of judgment in favor 

of Plaintiff. 

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 that the outcome should have been rendered 

in favor of the 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 of Plaintiff's punitive damage claim was 

against the law and the evidence which now requires the entry of a judgment 

n.o.v., in favor of the Plaintiff, as to these claims. 

J. VERDICT SHOULD NOT STAND 

The verdict was against the law. 

For the reasons sets forth below, none of the alleged trial errors warrant relief. For 

the reasons set forth in Judge Ceisler's opinion, none of the summary judgment issues 

warrant relief. 

III. Discussion 

A. Admission of the 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. Pltf s 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 is on 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. 

7 
motion without prejudice as untimely. NT 10/17/16 p. 100; see Order dated 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 out that 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 of the 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, 

8 
no 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 that was signed by the patient before the operation. Our Supreme 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 affirmatively told Ms. Crew and Mr. Crew that 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 door to 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 

9 
provide 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 impair the 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, it was 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 basic things. 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. If we 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, if you 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 experiment they 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 for first? 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 drink first. 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 what the 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 attorney to proceed.] 

pp. 80-81: 

Q. Doctor, what would be the medical standard of care for 

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 

necessary fluids and to monitor that 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. 

11 
BY 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 determine what 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 order which 

[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 or AIDS, In this case they wrote "dementia without behavioral 

disturbance." 

12 
p. 120. A DNR [do not resuscitate order] says not to bring back a patient who 

stops breathing or whose 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 other things. If the 

patient had an infection, that doesn't tell you not to treat the infection...." 

p. 141: 

Q. In the evaluation of wounds, 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 or water? 

A. Yes, I would. 

Q. Would you see whether or not Mrs. Crew was receiving 

water during 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 of time that 

she was at Penn at Rittenhouse. 

Q. And, Doctor, did those failures of care cause harm -- within a reasonable degree of medical certainty, did those failures 

or deviations 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. 

13 
The 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 of the 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, it was. 

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. The jury 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. 

14 
C. 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 plaintiff contributed 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 prior to 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 or on 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 or on behalf of the 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 settlement with the Park Pleasant Nursing Home defendants. This claim has no 

basis in fact. The Defendants never introduced any evidence of Plaintiff's settlement with 

the Park Pleasant Nursing Home defendants, and the jury did not hear anything about 

that settlement. Plaintiffs PTM and brief did 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., Dept of Transp., 871 A.2d 301, 303 (Pa. Cmwlth 

2005) (quashing appeal), citing Hall v. 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 of the testimony of the 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 tortfeaso rs). 

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 used to impeach the expert and to prevent the false 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. Crossexamination is also permissible to prove the substantive liability of the 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 to trial, 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. of America, 2012 PA Super 273, 62 A.3d 396, 411. 

17 
Decedent's death. Absent settlement of Plaintiff's claims against the 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 matter which 

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, 473 A.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 of their opinions as expressed in 

their expert reports was permissible for impeachment purposes: the 

manner in which Plaintiff sought 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 of the 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 or otherwise suppress facts 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 of the truth). 

The Non-Settling Defendants had every right to point the finger and elicit evidence through Plaintiffs experts that the cause of Decedent's death was not the failure by Dr. Lesitsky to 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 Decedent was admitted to the Hospital, for which 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 of the 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 for this rule is an acknowledgment of an expert's proprietary interest in his own opinion, and the recognition that 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 disclosure claimed 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. Starer was of the 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. During the discussion, the Plaintiff's only mention of specific hospice 

regulations were 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 hospice treatment 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 

21 
be 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. 

The trial court correctly ruled that it was irrelevant to cross-examine the witness on 

the need to give Ms. Crew food 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 of evidence 

5 At page 27 of his PTM brief, the Plaintiff raised the issue of the trial court's failure 

to charge the jury on negligence per se. Plaintiff's PTM, however was 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 Chalkey v. 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. Plaintiff is entitled 

to judgment as a matter of law. 

The Plaintiff asks for judgment n.o.v. to be entered in his favor, 

pursuant to Pa.R.C.P. §227.1(a)(2) and direct the entry of judgment in favor 

of Plaintiff. 

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 

reasonable minds could disagree that the outcome should have been rendered 

in favor of the 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 of Plaintiffs punitive damage claim 

was against the law and the evidence which now requires the entry of a 

judgment n.o.v., in favor of the Plaintiff, as to these claims. 

VERDICT SHOULD NOT STAND 

The verdict was against the 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 

23 
forth 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 of this requirement is to deter and disapprove 'motions which set forth 

mere 'boilerplate' language Frederick v. City of Pittsburgh, 132 Pa. Cmwlth. 302, 306, 

572 A.2d 850, 852 (1990) (citation omitted). See Cauthorn v. Owens Corning Fiberglas 

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 know what 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). 

24 
The Superior Court "has consistently held that a post -verdict motion, stating merely 

that the evidence was insufficient to support the verdict or that the verdict was against the 

weight of the evidence, will preserve no issue for appellate review unless the motion goes 

on to specify in what respect the evidence was insufficient, or why the verdict was against 

the weight of the 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 of filing 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 or the 

law. All of these 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 winner the 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