J-A06009-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JAMES TEMPLE, AS ATTORNEY-IN-FACT 

FOR ELMA BETTY TEMPLE,

IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellant

v.

PROVIDENCE CARE CENTER, LLC D/B/A 

PROVIDENCE CARE CENTER,

Appellee No. 87 WDA 2017

Appeal from the Order Entered December 14, 2016

In the Court of Common Pleas of Beaver County

Civil Division at No(s): 11726-2012

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 10, 2018

Appellant, James Temple, as attorney-in-fact for Elma Betty Temple, 

appeals from the trial court’s order granting Appellee, Providence Care Center, 

LLC d/b/a Providence Care Center (referred to herein as Providence), a new 

trial as to both liability and compensatory damages. In addition, Appellant 

challenges the trial court’s entry of judgment notwithstanding the verdict 

(JNOV) in favor of Providence on punitive damages, and the nonsuit granted 

in favor of Grane Healthcare Company (referred to herein as Grane) at trial. 

After careful review, we affirm in part, reverse in part, and remand for further 

proceedings.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A06009-18

- 2 -

Ms. Temple — who has Alzheimer’s disease — became a resident of 

Providence, a skilled nursing facility in Beaver Falls, Pennsylvania, in 2008. 

Providence owned and operated the facility, and Grane provided management 

services to Providence. On November 28, 2011, Ms. Temple — who was 81 

years old at the time — fell while walking toward a ramp at the facility during 

lunch, which caused her to suffer a right humerus fracture, a right pelvic 

fracture, and a right elbow laceration. According to Appellant, the only witness

to this fall was the hospice chaplain, who was not a caretaker at Providence 

and confirmed that she was unsupervised at the time. See Appellant’s Brief 

at 16. 

On September 26, 2012, Appellant — Ms. Temple’s son — filed a 

complaint on her behalf against Providence and Grane, asserting claims of 

negligence and corporate negligence. He also demanded punitive damages. 

In the complaint, he alleged, among other things, that Providence and Grane 

knew or should have known that Ms. Temple required the supervision of 

nursing staff to ambulate, transfer, and perform activities of daily living, 

especially given that Ms. Temple had suffered other, less serious falls as 

recently as October 25, 2011, and November 23, 2011. See Complaint, 

9/26/2012, at ¶¶ 12, 18-20; see also Appellant’s Brief at 14-17. Further, he 

claimed that Providence and Grane grossly understaffed the facility, to the 

point where staff members could not meet the needs of the residents, and 

failed to provide safety measures to prevent Ms. Temple from falling. See 

Complaint at ¶ 40. 
J-A06009-18

- 3 -

This case proceeded to an eight-day jury trial in May of 2016.1 At the 

close of Appellant’s case, Grane moved for a nonsuit, arguing that it did not 

owe, nor breach, a duty to Ms. Temple. See N.T. Trial, 5/19/2016, at 166-

210. The trial court granted the nonsuit and dismissed Grane from the case. 

In addition, Providence challenged, via motions for nonsuit and directed 

verdict, whether Appellant had adduced sufficient evidence to support a claim 

for punitive damages. See id. at 211-214; N.T. Trial, 5/23/2016, at 76-79. 

The trial court denied both motions, determining that the evidence could 

support a finding that Providence engaged in reckless conduct.

Thereafter, the jury returned a verdict in favor of Appellant in the 

amount of $2,000,000 for compensatory damages and $250,000 for punitive 

damages. Both Providence and Appellant subsequently filed post-trial 

motions. Ultimately, the trial court (1) granted Providence’s motion for JNOV

with respect to punitive damages, determining that Providence’s conduct 

amounted to nothing more than negligence, see Opinion and Order on 

Providence’s Post-Trial Motions, 12/14/2016, at 4; (2) granted Providence a 

new trial as to liability and compensatory damages for multiple reasons, 

including because the verdict was against the weight of the evidence, see id. 

at 8-37; and (3) concluded that it had properly granted a nonsuit as to Grane, 

explaining that Grane owed no duty to Ms. Temple and, even if it had, 

____________________________________________

1 The record contains thousands of pages of trial transcripts. In the interest 

of brevity, and because the parties are aware of the facts of this case, we do 

not delve deeply into the details of the trial here, but defer any necessary 

discussion thereof to our analysis of Appellant’s issues infra. 
J-A06009-18

- 4 -

Appellant offered no expert testimony to demonstrate that Grane’s actions fell 

below the accepted standard of care and caused Ms. Temple’s injuries. See

Opinion and Order on Appellant’s Post-Trial Motion, 12/20/2016, at 13-14. 

Appellant filed a timely notice of appeal, and timely complied with the 

trial court’s instruction to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. Appellant presently raises the following issues for 

our review:

1. Did the trial court err when it ordered a new trial for both 

liability and compensatory damages against [Providence]? 

2. Did the trial court err when it entered a JNOV as to the 

punitive damages verdict award[ed] against Providence?

3. Did the trial court err when it dismissed ... Grane ... from this 

case?

Appellant’s Brief at 5.2 

First, Appellant argues that “the trial court committed reversible error 

when it vacated the compensatory damages verdict and granted Providence a 

new trial.” Id. at 33 (capitalization and unnecessary emphasis omitted). For 

such claims, we apply the following standard of review:

In reviewing a trial court’s decision to grant or deny a motion for 

a new trial, it is well-established law that, absent a clear abuse of 

discretion by the trial court, appellate courts must not interfere 

with the trial court’s authority to grant or deny a new trial. 

____________________________________________

2 An appeal may be taken as of right from “[a]n order in a civil action or 

proceeding awarding a new trial.” See Pa.R.A.P. 311(a)(6). Appellant’s 

issues pertaining to punitive damages and Grane’s dismissal go to the scope 

of the new trial and, in the interest of judicial economy, we will address them 

herein. In other words, we will treat the decisions by the court as being one 

order for our purposes herein. We also note that the parties do not dispute 

our ability to review all of the issues raised by Appellant on appeal. 
J-A06009-18

- 5 -

Moreover, a new trial is not warranted merely because some 

irregularity occurred during the trial or another trial judge would 

have ruled differently; the moving party must demonstrate to the 

trial court that he or she has suffered prejudice from the mistake.

... [W]e must first determine whether we agree with the trial court 

that a factual, legal or discretionary mistake was, or was not, 

made. If we agree with the trial court’s determination that there 

were no prejudicial mistakes at trial, then the decision to deny a 

new trial must stand. If we discern that a mistake was made at 

trial, however, we must then determine whether the trial court 

abused its discretion in ruling on the motion for a new trial. A trial 

court abuses its discretion by rendering a judgment that is 

manifestly unreasonable, arbitrary or capricious, or has failed to 

apply the law, or was motivated by partiality, prejudice, bias or ill 

will.

Atwell v. Beckwith Machinery Co., 872 A.2d 1216, 1221 (Pa. Super. 2005) 

(citation omitted).

Here, the trial court gave the following explanation as to why it decided 

to grant Providence a new trial on liability and compensatory damages:

[T]he [c]ourt notes that the main reason for ordering a new 

trial was not the substantial verdict, but the fact that the 

[c]ourt did not believe the trial was fair.

Although we stated in our opinion that the verdict shocked the 

conscience of the [c]ourt, if this were a case of purely 

compensatory damages, we likely would not have awarded a new 

trial. The main problem in this case was [Appellant’s] 

counsel’s failure to follow the rules, and his co-mingling of 

arguments regarding compensatory and punitive damages, 

despite the court’s admonition against this.

As discussed through the [c]ourt’s opinion on [Providence’s] posttrial motions, [Appellant’s] counsel repeatedly violated this 

[c]ourt’s pre-trial orders and rulings during the trial, as well as its 

instructions prior to closing argument. For example, counsel 

sought to introduce the star[]rating of the nursing home, after 
J-A06009-18

- 6 -

being told such evidence was inadmissible.[3] If this were the only 

issue, we likely would not have granted a new trial. But the 

improper conduct continued.

After being specifically warned against any type of punishment 

argument being used in the closing argument of [the]

compensatory phase of the case, [Appellant’s] counsel, twice, 

argued about [Providence’s] excessive wealth, and used language 

suggesting the jury should send a message to [Providence], 

which, we believe, the jury clearly did in its award.[4] Although 

____________________________________________

3 According to Appellant, the star rating “was created to help the public 

research and compare the quality of care at nursing homes. There is an 

overall rating of 1 to 5 stars for each nursing home, which is comprised of the 

following components: health inspections, quality measures, and staffing.” 

Appellant’s Brief at 34 (footnote and citation omitted). The trial court 

sustained Providence’s objection to testimony regarding its star rating 

because “no one from the independent entity ... that generates the star rating 

... was going to testify about how the rating was arrived at, or what it meant[,]” 

and “the prejudicial effect of this testimony far outweighed any probative 

value, given that there would be no testimony about how it was calculated for 

the jury.” See Opinion and Order on Providence’s Post-Trial Motions at 25 

(citation omitted). 

4

In its earlier opinion granting, in part, Providence’s post-trial motions, the 

trial court had opined:

[Ms.] Temple was 81 years old at the time of her fall. When she 

fell, she sustained two non-displaced fractures, one in her right 

humerus and one in her pelvis. Neither required surgery. She 

was treated with a sling and a three-day hospital admission, after 

which time she returned to Providence. These injuries were 

temporary; she completely healed from these injuries in 8 months 

or less, and has no limitations as a result of these fractures. She 

had severe dementia and numerous co-morbidities prior to her 

fall. There was no claim for economic losses. The extent of her 

harm does not warrant a $2,000,000 award for pain and suffering.

...

Based on the facts of the case at bar, involving an elderly woman 

who has recovered from her injuries, and has made no claim for 

lost wages, out of pocket medical expenses or other economic 
J-A06009-18

- 7 -

we had no authority to question the jury about [its] decision, 

unless everyone agreed, this [c]ourt tried to salvage the verdict 

by suggesting that we ask the jury whether they included 

damages for punishment in their initial verdict. The parties would 

not agree to this.

Granting a new trial is not something this [c]ourt takes lightly. 

The parties and the [c]ourt spent eight days and considerable 

expense in this trial. However, when a trial judge believes that 

the trial was not fair, that judge is obliged to correct it. The role 

of the trial judge is to make evidentiary rulings, give proper 

instructions, and ensure that both sides have a level playing field, 

so that the jury is able to reach a proper verdict. Here, we simply 

believe the trial was not fair. 

Rule 1925(a) Opinion, 3/8/2017, at 2-4 (some emphasis in original; footnote

omitted). 

As highlighted above, the trial court stated that the main problem in this 

case was Appellant’s “failure to follow the rules, and his co-mingling of 

arguments regarding compensatory and punitive damages, despite the court’s 

admonition against this.” Rule 1925(a) Opinion at 2. In support, the court 

points to the star rating testimony to exemplify Appellant’s disregard of its 

rulings, and to Appellant’s closing arguments, where he purportedly 

encouraged the jury to punish Providence. Id. at 2-3. Because the trial court 

focuses on these incidents to demonstrate why it believed that the trial was 

unfair, we examine each in turn to ascertain if they warrant a new trial.

____________________________________________

claims, a $2,000,000 compensatory award, is entirely against the 

weight of the evidence presented at trial, and is so contrary to the 

evidence as to shock one’s sense of justice, such that a new trial, 

at least on the issue of damages, should be granted. 

Opinion and Order on Providence’s Post-Trial Motions at 9-10. 
J-A06009-18

- 8 -

With respect to the star rating testimony, Appellant states that his line 

of questioning regarding it was not a flagrant violation of the trial court’s ruling

prohibiting such testimony. Appellant’s Brief at 37. Instead, he says the 

questioning was an attempt to clear up confusion after Grane’s Vice President 

of Nursing Services — Beth Lengle — “brought up the star[]rating herself, 

unprompted by [Appellant].” See id. at 35. Further, he claims that 

Providence did not immediately object to such testimony, and when it finally 

did object, it did not ask for a mistrial. Id. at 38. 

We have reviewed the transcript and agree with the trial court that 

Appellant improperly asked the witness about Providence’s star rating. 

Appellant does not dispute that the trial court had prohibited him from 

discussing Providence’s star rating. See id. at 35.5 Nevertheless, the 

following exchange occurred at trial:

[Appellant’s counsel:] So the, during this window [when state 

evaluators must complete a survey of the facility,] you can, you 

track and you have to complete 671 Forms; right? 

[Beth Lengle:] Correct. 

[Appellant’s counsel:] And that’s the documents that include the 

resident characteristics in the facility?

[Beth Lengle:] 671 is a form from [Centers for Medicare &

Medicaid Services (CMS)], and on it includes staffing numbers of 

everyone. 

____________________________________________

5 See also Opinion and Order on Providence’s Post-Trial Motions at 25-26 

(“When [Appellant] tried to argue for the admission of this [star rating] 

evidence the first time, we said no, it was not coming in. In fact, we 

repeatedly said ‘No’ or ‘Nope’ 12 times with respect to this issue.”). 
J-A06009-18

- 9 -

[Appellant’s counsel:] And the, the documents that you provide 

the state, they’ll evaluate what the facility is like staff-wise based 

on those documents? 

[Beth Lengle:] Those and payroll records, yes. 

[Appellant’s counsel:] They can look further if they see something 

that they think is suspicious, but they’re going to look at those 

documents; right? 

[Beth Lengle:] No, they look at 671, but they also look for, they’ll 

pick random weeks, and they’ll ask for the actual staffing sheets, 

and a lot of times they’ll ask for the actual payroll records of those 

weeks. This is, the 671 is actually a standard form that’s used by 

every nursing home, and they use it for the star rating, so it’s 

actually, they’re kind of two different things. 

[Appellant’s counsel:] Do you have a good understanding of the 

star rating? 

[Beth Lengle:] I have a fairly, it, it’s very complicated. 

[Appellant’s counsel:] But you understand what the star rating is? 

[Beth Lengle:] Yes. 

[Appellant’s counsel:] Now, this document, you’re telling all of the 

facilities that are with, with contracts with Grane ... how to provide 

671 Forms to the state? 

[Beth Lengle:] I’m giving them tips, yes, tips, reminders. 

[Appellant’s counsel:] And what you’re telling them is in order to 

capture the most nursing hours, they’re to select the 671 Forms 

that have the most nursing hours in the period? 

[Beth Lengle:] Following the time frame requirements that are 

given by, by the Department of Health. 

[Appellant’s counsel:] So you pick the best ones? 

[Beth Lengle:] In that time frame, yes. 

[Appellant’s counsel:] The ones that reflect the most staffing?

[Beth Lengle:] Yes. 

[Appellant’s counsel:] And you tell all of the facilities to include in 

those numbers orientation hours; right? 
J-A06009-18

- 10 -

[Beth Lengle:] Correct. On the, the 671 allows for that. 

[Appellant’s counsel:] This is what’s going to reflect the direct 

staffing numbers of the facility, though; right? 

[Beth Lengle:] No, not necessarily. 

[Appellant’s counsel:] So you think you’re allowed to give them 

numbers that aren’t actually staff members providing direct care? 

[Beth Lengle:] That’s --

[Providence/Grane’s counsel]: Your Honor, I think we’ve got 

a disconnect on two different things, the Department of 

Health numbers --

[Appellant’s counsel]: Your Honor, if he has a speaking 

objection, then --

[Providence/Grane’s counsel]: No, you’re, you’re mixing the 

two, and I think she’s articulating that, and you’re trying to 

confuse the two.

[Appellant’s counsel]: Well, he can, he has his opportunity 

to ask his own questions, Your Honor.

[The court]: All right. I, I’m going to sustain the objection 

as to the form of the question, and I will allow you to re-ask 

the question or, or maybe we just need some more 

foundation on what this 671 is. 

[Providence/Grane’s counsel]: That’s, I think that’s my 

objection, Your Honor.

[Appellant’s counsel:] Do you have an understanding that based 

on the six, the five-star reports that there will be a rating for 

staffing from one star, two star, three star, four star, five star; 

right? 

[Beth Lengle:] Yes, but that is not the same thing as the daily 

staffing numbers. 

[Appellant’s counsel:] The, do you recall what the staffing, the 

star[]rating was for Providence ... back in --

[Providence/Grane’s counsel]: Objection, Your Honor. 

We’ve talked about this.

[The court]: Sustained.
J-A06009-18

- 11 -

[Beth Lengle]: Do I answer?

[The court]: No. 

[Beth Lengle]: I’m sorry. Okay. Sorry.

N.T. Trial, 5/18/2016, at 197-200.6 

As Providence aptly explains:

First, [Appellant’s] argument that Ms. Lengle “brought up the 

star[]rating herself” is, at best, misleading. While Ms. Lengle used 

the words “star rating” in discussing the purpose of the Facility’s 

671 form in response to counsel’s questions about its purpose, 

she did not attempt to explain or identify what the star rating was, 

either in substance or value. Indeed, she does not even reference 

that the rating relates to staffing. Nevertheless, after asking 

multiple other questions about the 671 form (and two pages later 

in the trial transcript) counsel, unprompted by the witness, asks, 

“Do you have an understanding that based on the six, the fivestar reports there will be a rating for staffing from one star, two 

star, three star, four star, five star; right?” Unlike Ms. Lengle’s 

innocent reference to [the] star rating as one of the uses of the 

671 form information, counsel’s question went straight to the 

heart of the very thing that the [c]ourt had already prohibited as 

prejudicial — the existence of [a] one to five star rating system. 

If that was not bad enough, he then asked what Providence’s star 

rating was, a question that a reasonable juror would expect to be 

asked by counsel who anticipated a low star rating in response. 

This firmly planted the seed of bias in the mind of the jurors.

Providence’s Brief at 29-30 (internal citations omitted). We concur. 

Additionally, we disagree with Appellant that Providence waived this 

claim by not objecting immediately and asking for a mistrial. “[A] trial judge 

has the power to grant a new trial sua sponte if he [or she] determines that 

____________________________________________

6 We provide a long excerpt here because Appellant disputes the trial court’s 

characterization of the exchange. See Appellant’s Brief at 37 (“Although the 

court insists that the witness did not volunteer information regarding the 

star[]rating, the record establishes otherwise.”) (citations omitted). 
J-A06009-18

- 12 -

the interests of justice so require.” Armbruster v. Horowitz, 813 A.2d 698, 

704 n.6 (Pa. 2002) (citations omitted). Thus, Providence’s late objection and 

failure to request a mistrial cannot waive the trial court’s power to sua sponte

order a new trial.7 

____________________________________________

7 We reject Appellant’s arguments that (1) the trial court did not actually grant 

Providence a new trial sua sponte, but instead granted a new trial in response

to Providence’s post-trial motions asking for a new trial, see Appellant’s Reply 

Brief at 35; (2) the trial court did not have unlimited power to grant a new 

trial because this is a civil case, see id. at 36; and (3) courts are allowed wide 

discretion in deciding whether to award a new trial but only where the party 

raises timely, specific objections during trial, asking for that relief, see id. at 

37-38. First, notwithstanding Providence’s post-trial motions asking for a new 

trial, it is evident that the trial court felt compelled to grant a new trial 

independent of Providence’s motions requesting such relief. See Rule 1925(a) 

Opinion at 3 (“[W]hen a trial judge believes that the trial was not fair, that 

judge is obliged to correct it.”) (emphasis added). Second, we disagree that 

Commonwealth v. Powell, 590 A.2d 1240 (Pa. 1991), represents that “the 

trial court’s authority to grant a new trial sua sponte ‘in the interest of justice’ 

was born out of the Federal Rules of Criminal Procedure[,]” and therefore 

cannot be “neatly transferred” to civil cases. Appellant’s Reply Brief at 36 

(citing Powell, 590 A.2d at 1242). In Powell, our Supreme Court recognized 

that “[t]he rationale ‘in the interest of justice’ is deeply rooted in both federal 

jurisprudence and the common law of Pennsylvania.” Powell, 590 A.2d 

at 1242 (emphasis added). Indeed, in support of this assertion, it cites various 

civil cases from Pennsylvania courts upholding this principle. Id. at 1242-43. 

Thus, we are unconvinced that Powell is limited to criminal cases. Finally, 

we disagree with Appellant that a party must make timely and specific 

requests for a new trial before a trial court can sua sponte grant a new trial. 

Sua sponte, by definition, means “[w]ithout promoting or suggestion; on its 

own motion.” Black’s Law Dictionary 1650 (10th ed. 2014). Furthermore, 

Appellant’s reliance on Tangnani v. Lew, 426 A.2d 595 (Pa. 1981), is 

distinguishable in that the error in that case did “not rise to the level of 

offending ‘justice and fairness.’” Id. at 596 n.2. It also involved only one 

error, and not the multiple errors the trial court points to in the case sub 

judice. In any event though, Powell and Armbruster post-date Tangnani, 

and signify that trial courts may grant new trials sua sponte. Armbruster, 

supra; Powell, 590 A.2d at 1243 (“Where it will result in the attainment of 

justice, a trial court may grant a new trial without the initiation of the 

defendant.”) (citations omitted; emphasis added). 
J-A06009-18

- 13 -

Next, Appellant defends his closing argument in which the trial court 

found that he ‘co-mingled’ arguments pertaining to compensatory and 

punitive damages. He argues that Providence waived all issues relating to his

closing argument by agreeing that a cautionary instruction was appropriate. 

See Appellant’s Brief at 42-43. Moreover, Appellant insists that — even if not 

waived by Providence — his closing remarks were not improper. Id. at 45. 

Although Providence did not request a mistrial immediately following 

Appellant’s closing argument, we again find that this omission does not 

preclude the trial court from granting a new trial sua sponte. See 

Armbruster, supra. Furthermore, we disagree with Appellant’s argument 

that the trial court “pull[ed] bits and pieces of [his] closing argument, without 

providing proper context” to support its conclusion that Appellant’s closing 

remarks were inappropriate. Appellant’s Brief at 45. The trial court 

specifically told Appellant that “there was to be no mention of the wealth of 

[Providence] in the closing argument, nor was there to be any mention of 

punishment.” Opinion and Order on Providence’s Post-Trial Motions at 33. 

Moreover, the trial court advised that “counsel would get another opportunity 

to talk about the wealth of [Providence], punishment and deterring this type 

of conduct when they gave their closing arguments in the second phase of 

trial [relating to punitive damages].” Id. Despite this instruction, Appellant 

made the following comments in his closing argument:

These [d]efendants or this [d]efendant, Providence..., is a 

corporation for profit. Things have changed. The home was taken 

over for a for-profit company. [I]f it’s a for-profit company, it’s 
J-A06009-18

- 14 -

there to protect societies most vulnerable and enfeeble, the 

demented, the people that don’t have a voice often, and they must 

do it responsibly. If they’re going to break safety rules that 

endanger residents, then they need to be held accountable.

...

The cost report, 95.6 percent occupied. This is a case where 

exceptional profits were had at this facility, and they want to 

suggest that it was appropriately and properly staffed. They want 

to suggest just because they took the meticulous time to create 

these [patient hours per day (PPDs)] that the staff members had 

sufficient numbers to meet the needs of the residents, that the 

staff was appropriately trained to meet the needs of the residents. 

This is a full facility where the administrator said on the one hand 

his job is operations. On the other hand is the clinical side, but 

he wasn’t paying attention to the clinical side. What he was 

paying attention to were the exceptional profits.

And remember who’s responsible here, remember who the officers 

[are] that can make change here. These individuals, Richard 

Graciano, David Graciano, Jeff Graciano, Ross Neese, they never 

darkened the door of this courtroom. You didn’t see any of them 

coming here. In fact, the testimony was that maybe they visited 

Providence ... once, maybe twice in the, in the 15 years that [Ray 

DeMarco, the Administrator of Providence, has] worked there. 

They haven’t sent someone here to watch the course of this trial, 

but you better believe that there’s someone waiting by a phone at 

[Grane’s] office in Pittsburgh on Sigma Drive to see what the jury 

will do, whether you will hold them accountable for what happened 

to [Ms.] Temple for the great harm that she suffered. They’re 

banking on something. They’re banking on the fact that because 

she’s old and enfeeble[d], because she’s still there, because their 

son, her son didn’t visit as much as he probably should’ve that 

you all would discount that. 

...

I have a lot of other things to say, but I’m just flipping through 

notes, and I think I’m just going to leave you with a few more 

things then sit down. Make no mistake that in this courtroom lines 

have been drawn. They haven’t accepted responsibility or 

accountability at all. They’re trying to have it both ways by saying, 

well, we’re sorry that something bad happened, but we’re not 

going to take any responsibility or take any blame for it 

whatsoever, none, not throughout this entire trial. Their positions 
J-A06009-18

- 15 -

have shifted on issues. That they won’t accept the obvious, that 

they caused this great harm, and they had ample opportunity to 

stop it. This did not have to be. This was not inevitable. It wasn’t 

an unavoidable outcome. It became inevitable when they didn’t 

listen to the alarms, when they didn’t look at all of the safety 

indicators that were available. It became inevitable that bad 

things were going to happen to residents, and on 11/28 the 

inevitable became a reality for [Ms.] Temple. Their care was 

reckless and the problems were systemic. 

And that’s why we’re going to ask that when you do get the verdict 

form, when you do have a chance to look at it, that you award a 

substantial verdict that will balance the harms here so this history 

doesn’t keep repeating itself. It’s in your hands, and you have the 

power to change things. 

N.T. Trial, 5/23/2016, at 105-06, 118-20, 123-24. 

We agree with the trial court that these comments were prejudicial and 

in contravention of the trial court’s instruction. In light of the foregoing, we 

determine that the trial court had a basis to believe that the trial was unfair, 

given the cumulative effect of Appellant’s improper conduct, along with other 

errors that prejudiced Providence.

8 Accordingly, we conclude that the trial 

____________________________________________

8 Along with the improprieties discussed above, the trial court also stated in 

its Rule 1925(a) opinion that “[i]n addition to the trial not being fair, we also 

do not believe [Appellant’s] claim of inadequate staffing was properly 

supported by expert testimony.” See Rule 1925(a) Opinion at 4. While we 

do not delve into whether expert testimony is required to support such claims 

in the case at bar, we believe that the sole testimony of Katherine McCombs, 

a former employee of Providence, was insufficient to establish Appellant’s 

understaffing claim as Ms. McCombs did not work on Ms. Temple’s unit at or 

near the time of her fall. See Providence’s Brief at 31-32. Ms. McCombs 

explained that, though she worked at Providence from 2003 through 2013 as 

a certified nursing assistant (CNA) and served as the president of the union

from 2009 through 2011, she was not working in the months surrounding Ms. 

Temple’s fall due to an injury. See N.T. Trial, 5/16/2016, at 149-50, 152-53, 

163, 198-200. In fact, the last time she had worked as a full-time CNA was 

in February 2011, about nine months before Ms. Temple’s fall. See id. at 171,
J-A06009-18

- 16 -

court did not abuse its discretion in ordering a new trial for Providence on 

liability and compensatory damages. 

In its second issue, Appellant states that the trial court erred when it 

entered a JNOV as to the punitive damages verdict award against Providence. 

See Appellant’s Brief at 5, 63.9 Appellant argues that this Court has previously 

deemed evidence of chronic understaffing sufficient to establish a claim for 

punitive damages. See id. at 64 (citing Hall v. Episcopal Long Term Care, 

54 A.3d 381 (Pa. Super. 2012); Scampone v. Grane Healthcare Co., 11 

A.3d 967 (Pa. Super. 2010) (referred to herein as Scampone I)). Further, 

he states that punitive damages are warranted here as “Providence also failed 

to properly update and reassess [Ms. Temple’s] care plan[,]” and “nearly 60% 

of the time, Providence was disregarding [Ms. Temple’s] widely known fall 

risk” by not giving her the supervision and assistance she needed. Id. at 65

(citation omitted); Appellant’s Reply Brief at 16. Appellant claims that Ms. 

Temple’s “supervision was so lax that not a single caretaker had eyes on her 

when she fell for the third time.” Appellant’s Brief at 66 (citation omitted). 

This Court has previously explained:

____________________________________________

201. As the trial court observed, “we only have the testimony of a single lay 

witness, who said the patients’ needs, generally, were not being met.” 

Opinion and Order on Providence’s Post-Trial Motions at 13. Such evidence 

falls short. 

9 We note that, in the alternative to JNOV, the trial court granted a new trial 

to Providence on punitive damages. See Opinion and Order on Providence’s 

Post-Trial Motions at 7, 17. 
J-A06009-18

- 17 -

In reviewing a trial court’s decision whether or not to grant 

judgment in favor of one of the parties, we must consider the 

evidence, together with all favorable inferences drawn therefrom, 

in the light most favorable to the verdict winner. ... We will 

reverse a trial court’s grant or denial of a [JNOV] only when we 

find an abuse of discretion or an error of law that controlled the 

outcome of the case. Further, the standard of review for an 

appellate court is the same as that for a trial court.

There are two bases upon which a [JNOV] can be entered; one, 

the movant is entitled to judgment as a matter of law and/or two, 

the evidence is such that no two reasonable minds could disagree 

that the outcome should have been rendered in favor of the 

movant. With the first, the court reviews the record and concludes 

that, even with all factual inferences decided adverse to the 

movant, the law nonetheless requires a verdict in his favor. 

Whereas with the second, the court reviews the evidentiary record 

and concludes that the evidence was such that a verdict for the 

movant was beyond peradventure.

Hall, 54 A.3d at 395 (citations, original brackets, and formatting omitted). 

Further, our Supreme Court has elucidated:

The standard governing the award of punitive damages in 

Pennsylvania is settled. “Punitive damages may be awarded for 

conduct that is outrageous, because of the defendant’s evil motive 

or his reckless indifference to the rights of others.” Feld v. 

Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984) (quoting 

Restatement (Second) of Torts § 908(2) (1979)); see also 

Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355, 358 

(1963). As the name suggests, punitive damages are penal in 

nature and are proper only in cases where the defendant’s actions 

are so outrageous as to demonstrate willful, wanton or reckless 

conduct. See SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 

489, 587 A.2d 702, 704 (1991); Feld, 485 A.2d at 747-48; 

Chambers, 192 A.2d at 358. See also Restatement (Second) of 

Torts § 908, comment b. The purpose of punitive damages is to 

punish a tortfeasor for outrageous conduct and to deter him or 

others like him from similar conduct. Kirkbride v. Lisbon 

Contractors, Inc., 521 Pa. 97, 555 A.2d 800, 803 (1989); 

Restatement (Second) of Torts § 908(1) (“Punitive damages are 

damages, other than compensatory or nominal damages, awarded 

against a person to punish him for his outrageous conduct and to 

deter him and others like him from similar conduct in the future.”). 
J-A06009-18

- 18 -

Additionally, this Court has stressed that, when assessing the 

propriety of the imposition of punitive damages, “[t]he state of 

mind of the actor is vital. The act, or the failure to act, must be 

intentional, reckless or malicious.” See Feld, 485 A.2d at 748;

see also Martin v. Johns–Manville Corp., 508 Pa. 154, 494 

A.2d 1088, 1097 n.12 (1985) (plurality opinion).

In Martin, this Court considered the requisite state of mind which 

would constitute reckless indifference in this context, and we set 

forth the standard the courts are to apply when called upon to 

determine whether the evidence supports a punitive damages 

award on such a basis. Noting that Comment b to Section 908(2) 

of the Restatement refers to Section 500 as defining the requisite 

state of mind for punitive damages based on reckless indifference, 

this Court turned to Section 500, which states:

§ 500 Reckless Disregard of Safety Defined

The actor’s conduct is in reckless disregard of the safety of 

another if he does an act or intentionally fails to do an act 

which it is his duty to the other to do, knowing or having 

reason to know of facts which would lead a reasonable man 

to realize, not only that his conduct creates an unreasonable 

risk of physical harm to another, but also that such risk is 

substantially greater than that which is necessary to make 

his conduct negligent.

Restatement (Second) of Torts § 500.

Noting that Section 500 sets forth two very different types of state 

of mind as to reckless indifference, Martin stated that the first is 

“where the ‘actor knows, or has reason to know, ... of facts which 

create a high degree of risk of physical harm to another, and 

deliberately proceeds to act, or to fail to act, in conscious

disregard of, or indifference to, that risk;’” and that the second is 

“where the ‘actor had such knowledge, or reason to know, of the 

facts, but does not realize or appreciate the high degree of risk 

involved, although a reasonable man in his position would do so.’” 

Martin, 494 A.2d at 1097 (quoting Restatement § 500 Comment 

a). Martin recognized that the first type of reckless conduct 

described in Section 500 “demonstrates a higher degree of 

culpability than the second on the continuum of mental states 

which range from specific intent to ordinary negligence[,]” 

because “[a]n ‘indifference’ to a known risk under Section 500[,] 

is closer to an intentional act than the failure to appreciate the 

degree of risk from a known danger.” Id.
J-A06009-18

- 19 -

The Martin Court then stated that “[u]nder Pennsylvania law, only 

the first type of reckless conduct described in comment a to 

Section 500, is sufficient to create a jury question on the issue of 

punitive damages[,]” rejecting as insufficient the second type of 

recklessness, which is premised on a “reasonable man standard.” 

Id. at 1097-98. In other words, this Court concluded that “an 

appreciation of the risk [of harm] is a necessary element of the 

mental state required for the imposition of [punitive] damages.” 

Id. at 1097 n.12. In this regard, we reasoned that:

The only purpose of punitive damages is to deter outrageous 

conduct. It is impossible to deter a person from taking risky

action if he is not conscious of the risk. Thus, in Feld v. 

Merriam, 506 Pa. 383, 485 A.2d 742 (1984), we addressed 

the issue of when punitive damages are warranted and 

stressed that, in determining whether certain conduct is 

outrageous, “[t]he state of mind of the actor is vital. The 

act, or the failure to act, must be intentional, reckless or 

malicious.” Similarly, the Restatement explains that 

“reckless indifference to the rights of others and conscious 

action in deliberate disregard of them ... may provide the 

necessary state of mind to justify punitive damages.” 

Comment b (emphasis added). Therefore, an appreciation 

of the risk is a necessary element of the mental state 

required for the imposition of such damages.

Id.

Thus, in Pennsylvania, a punitive damages claim must be 

supported by evidence sufficient to establish that (1) a defendant 

had a subjective appreciation of the risk of harm to which the 

plaintiff was exposed and that (2) he acted, or failed to act, as the 

case may be, in conscious disregard of that risk. Id. at 1097-98.

Hutchison v. Luddy, 870 A.2d 766, 770-72 (Pa. 2005) (footnote omitted; 

emphasis in original). 

Here, in granting Providence’s motion for JNOV regarding punitive 

damages, the trial court explained its reasoning as follows:

After careful review of the testimony, we believe there was 

insufficient evidence regarding the state of mind of Providence to 

show that its conduct amounted to anything more than 

negligence. [Appellant’s] expert, Nurse [Charlotte] Sheppard, 
J-A06009-18

- 20 -

testified that the staff “should’ve known that if they didn’t provide 

appropriate supervision, an adverse outcome could happen.” 

However, “should have known” is not the requisite state of mind 

for punitive damages. Further[,] she testified that “[t]hey knew 

something bad could happen if they didn’t do something 

appropriately like supervise and update her care plan, yet they 

didn’t do that.” She did not identify who specifically knew this, 

and yet still failed to act.

Nurse Sheppard testified that they “missed opportunities to go 

back and update the plan and make sure they were meeting [Ms.] 

Temple’s needs” and that “the facility failed to anticipate her 

needs.” These failures do not establish the state of mind 

necessary to impose punitive damages.

Moreover, there was no assertion that the employees at 

Providence deliberately failed to take action, or that any of the 

employees appreciated an unusually high risk, but still failed to do 

anything about it. See[,] e.g.[,] Jones v. McDonald’s Corp., 

958 F.Supp. 234 (E.D. Pa. 1997) ... (“If the defendant actually 

does not realize the high degree of risk involved, even though a 

reasonable man in his position would, the mental state required 

for the imposition of punitive damages in Pennsylvania is not 

present.”)[.] 

Opinion and Order on Providence’s Post-Trial Motions at 4-5 (some internal 

citations omitted). 

We agree with the trial court’s observations. As it ascertained, Appellant 

does not point to any evidence demonstrating that Providence had a 

subjective appreciation of the risk of harm to which Ms. Temple was 

exposed due to its alleged failure to supervise her and update her care plan, 

and that Providence acted (or failed to act) in conscious disregard of that 

risk. See Hutchison, 870 A.2d at 772. 
J-A06009-18

- 21 -

We briefly distinguish two other nursing home liability cases —

Scampone I and Hall — relied on by Appellant.

10

 In Scampone I, 

the plaintiff-decedent was living in a nursing home, and in 

December of 2003, she was diagnosed with a urinary tract 

infection. The plaintiff-decedent was hospitalized, treated, and 

returned to the nursing home in good condition. The following 

month, she was re-admitted with another urinary tract infection, 

as well as dehydration, malnutrition, and bed sores. On February 

9, 2004, the plaintiff-decedent died of a heart attack at the age of 

94. The plaintiff-estate instituted an action against the nursing 

home and, at trial, the trial court concluded the evidence was 

insufficient to submit the question of punitive damages to the jury. 

On appeal to this Court, the plaintiff-estate argued the trial court 

erred in failing to submit the issue of punitive damages to the jury 

and, in agreeing, a panel of this Court stated, in relevant part, the 

following:

We conclude that [p]laintiff’s evidence established that both 

Highland and Grane5 acted with reckless disregard to the 

right of others and created an unreasonable risk of physical 

harm to the residents of the nursing home. The record was 

replete with evidence that the facility was chronically 

understaffed and complaints from staff continually went 

____________________________________________

10 Both parties discuss chronic understaffing as a basis for punitive damages, 

so we will also address it herein. However, the trial court did not seem to 

consider understaffing in its punitive damages determination, but instead 

indicated multiple times that it believed “[t]he punitive damages issue goes 

to the failure to document the prior fall and take necessary steps. The failure 

to reassess her. That’s what I’m allowing the punitive damages to go to the 

jury on.” N.T. Trial, 5/19/2016, at 219. See also N.T. Trial, 5/23/2016, at 

77-78 (“I do think that if the testimony ... is to be believed and that Providence 

should have reevaluated her and updated the care plan and provided more 

supervision based on her fall, they did not update the care plan. They did 

implement some, some measures, but they did not do the updated care plan, 

and that could be deemed reckless, and that’s why I’m letting that stay in.”); 

Opinion and Order on Providence’s Post-Trial Motions at 2-6 (granting 

Providence’s motion for JNOV with respect to punitive damages without 

discussing the issue of understaffing). 
J-A06009-18

- 22 -

unheeded.[11] Grane and Highland employees not only were 

aware of the understaffing that was leading to improper 

patient care, they deliberately altered records to hide that 

substandard care by altering ADLs6that actually established 

certain care was not rendered. Records concerning the 

administration of medications were falsified. Staffing levels 

were increased during state inspections and then reduced 

after the inspection was concluded. Deliberately altering 

patient records to show care was rendered that was actually 

not is outrageous and warrants submission of the question 

____________________________________________

11 This Court summarized the circumstances of understaffing in Scampone

I, as follows:

The witnesses established the existence of a chronic lack of 

sufficient employees at the Highland Park nursing home to provide 

sufficient care for all its residents. The [registered nurse (RN)] 

who testified ... worked on [the decedent’s] unit, was acquainted 

with her, and testified about understaffing during his tenure at the 

facility. [A licensed practical nurse (LPN)] stated that [the 

decedent] was treated the same as all other fourth-floor residents. 

[One] CNA ... was employed by Highland from 2003 through 2004, 

and rendered care to [the decedent]. He was unable to perform 

his tasks, including at times, filling water pitchers. Another CNA

... who worked at Highland from 2003 until 2005, helped care for 

[the decedent] from time to time and noticed untaken pills in her 

room. [That CNA] also stated that [the decedent’s] water pitcher 

was chronically empty. In 2003 and 2004, [the fourth floor LPN 

from 7:00 a.m. to 3:00 p.m.] had to take care of thirty-eight to 

forty residents, and had difficulties completing her job 

responsibilities. Since [the decedent] was a fourth floor resident 

at that time, [that LPN’s] testimony necessarily included the care 

of [the decedent]. [The decedent’s son] stated that his mother 

was not given water and pills. [The plaintiff-estate’s expert] 

established an absence of necessary RN care for nineteen days in 

January 2004. [A responding paramedic’s] testimony revealed 

that [the decedent] was not given fluids for days prior to being 

transferred to the hospital where she died. 

Scampone I, 11 A.3d at 988-89. Additionally, an RN testified that “CNAs 

specifically informed him that they did not have enough time to give patients 

water and to respond to call lights,” and that he “relayed all the complaints 

that he heard to his supervisors.” Id. at 980, 981 (citations omitted). 
J-A06009-18

- 23 -

of punitive damages to the jury. Other evidence supporting 

an award of punitive damages included [the plaintiffdecedent’s] lack of nursing care for a critical nineteen days 

prior to her death and her deplorable condition on January 

30, 2004.[12] We also point to a note in her records that the 

poor woman was crying for water.

5 Highland was the nursing home facility, and Grane 

managed the nursing home.[13]

6 ADLs are care charts, which CNAs were required to 

complete in Scampone [I].

Scampone [I], 11 A.3d at 991–[]92 (footnotes added).

Hall, 54 A.3d at 395-96 (summarizing Scampone I; some internal citations 

omitted). 

Second, in Hall, the estate of a deceased nursing home resident 

proceeded to a jury trial against a nursing home operator on a claim of 

negligence. Hall, 54 A.3d at 385. On appeal, this Court determined, inter 

alia, that the trial court erred in granting the operator’s motion for a directed 

verdict with regard to a claim for punitive damages brought by the estate. Id.

at 396. In doing so, we explained that “the record was replete with evidence 

____________________________________________

12 The responding paramedic on January 30, 2004, testified that the decedent 

“had severe skin tenting, which is a sign of dehydration[,]” and the on-duty 

RN informed the paramedic that the decedent “had not been given any fluid 

for quite a few days” and “had been unable to swallow her medication for a 

couple days.” Scampone I, 11 A.3d at 987 (citations and internal quotation 

marks omitted). 

13 We note that Scampone I involved the same corporate defendant — Grane 

— as the case at bar. See Appellant’s Brief at 66 (noting that Scampone I 

“involved the same corporate defendant (Grane Healthcare)”); Providence’s 

Brief at 38 n.3 (acknowledging that Grane was also a defendant in Scampone

I). 
J-A06009-18

- 24 -

that the nursing home was chronically understaffed and complaints from the 

staff went unheeded[,]”14 and the estate proffered evidence that the 

operator’s employees “were not only aware of the understaffing, which led to 

improper patient care, but they deliberately increased staff during times of 

state inspections and then reduced such after the inspection was concluded.” 

Id. at 397. Further, “the [e]state presented ample evidence that the deceased 

continuously cried out in pain from September of 2003 to November of 2003 

when nurses assisted her with range of motion exercises and applied splints 

to her legs; however, the staff completely disregarded her severe pain.” Id.15

The estate additionally “presented evidence that nurses falsified care logs, 

thus indicating the deceased had received care at the nursing home when, in 

fact, the deceased was admitted into the hospital[,]” and “there were entire 

____________________________________________

14 Specifically, a CNA testified that the floor where the deceased resided “was 

short on staffing and so [staff] really couldn’t do the adequate care.” Hall, 

54 A.3d at 387 (citation and internal quotation marks omitted). Another CNA 

testified that “the nursing home was short staffed all the time[,]” and “because 

of understaffing, she was tired and unable to give the residents the care they 

really needed, including changing the residents’ diapers in a timely manner.” 

Id. at 388 (citations omitted). Yet another CNA testified that “the nursing 

home was regularly short-staffed, which would prevent all of the residents, 

including the deceased, from having their diapers changed in a timely 

manner.” Id. (citation omitted). Notably, all three of these CNAs testified 

that they had worked on the deceased’s floor on at least one occasion at the 

time when the neglect occurred. Id. at 387, 388. 

15 A nurse admitted that “the deceased’s physician would rely on the nurses 

to report if the deceased was experiencing pain[,]” and that “from September 

of 2003 until November 11, 2003, the deceased, who was receiving 25 

micrograms of the Duragesic patch, ‘screamed’ out in pain during the range 

of motion exercises, which occurred six days a week.” Hall, 54 A.3d at 387

(citation omitted). 
J-A06009-18

- 25 -

months when the deceased was not given a bath and ... was left to lie in her 

own filth.” Id. (citation omitted). 

We consider both Scampone I and Hall to be readily distinguishable. 

To begin, in both of those cases, “the record was replete with evidence that 

the nursing home was chronically understaffed and complaints from the staff 

went unheeded.” See Hall, 54 A.3d at 397 (emphasis added); see also

Scampone I, 11 A.3d at 991. That was not the case here. As the trial court 

pointed out, there was only one witness — Katherine McCombs — who 

testified that “the facility was short-staffed at times and she received

grievances to this effect.” Opinion and Order on Providence’s Post-Trial 

Motions at 10 (citation omitted). However, Ms. McCombs had not worked on 

Ms. Temple’s unit at or near the time of her fall. See footnote 8, supra. In 

addition, as discussed above, Appellant argues that Providence did not reevaluate and update Ms. Temple’s care plan after her first two falls, and states 

that she regularly did not receive the supervision or assistance she needed

while walking and transferring. See Appellant’s Brief at 65; Appellant’s Reply 

Brief at 16. While Providence may have been negligent in rendering such care,

we reiterate that Appellant identifies no evidence that Providence understood 

the risk of harm to Ms. Temple due to these lapses and nevertheless 

consciously failed to do these things. In comparison, in Hall and Scampone 

I, the plaintiffs proffered evidence that staff purposely falsified care logs and 

knowingly disregarded patients’ severe pain and thirst. Further, when viewed 

relative to Hall and Scampone I, we agree with the trial court that 
J-A06009-18

- 26 -

Providence’s conduct was not “the type of outrageous or egregious conduct 

that punitive damages are designed to deter.” Opinion and Order on 

Providence’s Post-Trial Motions at 5; see also Hutchison, 870 A.2d at 770 

(“[P]unitive damages are penal in nature and are proper only in cases where 

the defendant’s actions are so outrageous as to demonstrate willful, wanton 

or reckless conduct.”) (citation omitted). Thus, for the foregoing reasons, the 

trial court properly granted JNOV in favor of Providence with respect to 

punitive damages. 

Finally, in his last issue, Appellant argues that the trial court erred when 

it dismissed Grane from the case on a motion for compulsory nonsuit. See 

Appellant’s Brief at 66. In granting the nonsuit in favor of Grane, the trial 

court determined — after conducting the five-part test set forth in Althaus v. 

Cohen, 756 A.2d 1166 (Pa. 2000),

16 — that Grane did not owe a duty to Ms. 

Temple and, even if it did, Appellant “offered no expert testimony to 

demonstrate that Grane’s actions fell below the accepted standard of care, 

____________________________________________

16 In Althaus, our Supreme Court explained:

[T]he legal concept of duty of care is necessarily rooted in often 

amorphous public policy considerations, which may include our 

perception of history, morals, justice and society. The 

determination of whether a duty exists in a particular case 

involves the weighing of several discrete factors which include: 

(1) the relationship between the parties; (2) the social utility of 

the actor’s conduct; (3) the nature of the risk imposed and 

foreseeability of the harm incurred; (4) the consequences of 

imposing a duty upon the actor; and (5) the overall public interest 

in the proposed solution.

Althaus, 756 A.2d at 1169 (citations omitted). 
J-A06009-18

- 27 -

and that this breach caused [Ms.] Temple’s injuries.” See Opinion and Order 

on Appellant’s Post-Trial Motion at 2, 13-14. In response, Appellant claims 

that the trial court erred by unnecessarily conducting an Althaus analysis and 

wrongly concluding that Grane owed no duty to Ms. Temple. See Appellant’s 

Brief at 67, 73. Instead, pursuant to the Restatement (Second) of Torts §§ 

323 and 324(A), Appellant insists that “once Grane started providing its 

services to [Providence], it had an obligation to do so in a reasonable manner.” 

Id. at 70 (citing, in part, Restatement (Second) of Torts §§ 323 and 324(A)). 

We agree with Appellant that the trial court should not have conducted 

an Althaus analysis. While this appeal was pending, this Court issued our 

opinion in Scampone v. Grane Healthcare Co., 169 A.3d 600 (Pa. Super. 

2017) (referred to herein as Scampone II), the longstanding nursing home 

case discussed above where the decedent suffered from dehydration, among 

other things.17 Therein, we examined whether the trial court properly entered 

a nonsuit in favor of Grane, the company that managed the nursing home, 

Highland. In determining whether Grane owed a duty to the decedent, the 

Scampone II Court explained that the Althaus factors are “more relevant to 

the creation of new duties than to the vindication of existing ones[,]” and “if 

a common law duty exists under the Restatement (Second) of Torts, the 

Althaus analysis is not necessary.” Id. at 617 (citing Alderwoods 

____________________________________________

17 The Scampone case “has been to this Court twice, the Supreme Court 

once, and the trial court twice.” See Scampone II, 169 A.3d at 605. For a 

thorough summary of its history, see id. at 605-10. 
J-A06009-18

- 28 -

(Pennsylvania), Inc. v. Duquesne Light Co., 106 A.3d 27 (Pa. 2014)). 

Rather than conducting an Althaus analysis in Scampone II, we concluded 

that Grane owed a duty of care to the decedent in that case under the 

Restatement (Second) of Torts §§ 323 and 324A. Id. at 618-19. Section 323 

sets forth:

One who undertakes, gratuitously or for consideration, to render 

services to another which he should recognize as necessary for 

the protection of the other’s person or things, is subject to liability 

to the other for physical harm resulting from his failure to exercise 

reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such 

harm, or

(b) the harm is suffered because of the other’s reliance upon 

the undertaking.

Restatement (Second) of Torts § 323.

Additionally, Section 324A states:

One who undertakes, gratuitously or for consideration, to render 

services to another which he should recognize as necessary for

the protection of a third person or his things, is subject to liability 

to the third person for physical harm resulting from his failure to 

exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk 

of such harm, or

(b) he has undertaken to perform a duty owed by the other 

to the third person, or

(c) the harm is suffered because of reliance of the other or 

the third person upon the undertaking.

Restatement (Second) of Torts § 324A.

The Scampone II Court determined that, under section 323, “Grane 

contractually undertook to render services to residents of Highland’s nursing 
J-A06009-18

- 29 -

home by managing the care provided to them and by overseeing the 

operations of the facility, and Grane should have recognized those services 

were necessary for the protection of those elderly and infirm residents.” 

Scampone II, 169 A.3d at 619. Thus, we concluded that “[i]t is subject to 

liability for any physical harm resulting from its failure to exercise reasonable 

care in the performance of this undertaking.” Id. Furthermore, we decided 

that Grane also had a duty under section 324A as “Grane agreed to manage 

medical and patient care services rendered to the residents of a nursing home, 

which it should have recognized as necessary for their protection.“ Id. 

Therefore, “[i]f a jury finds, based upon the evidence of negligence and 

causation presented, that Grane failed to exercise reasonable care in this 

undertaking and its failure to ensure proper patient care increased the risk of 

harm caused to [the decedent] or that it undertook to perform a duty owed 

by Highland to [the decedent], then the [p]laintiff can recover, and entry of a 

nonsuit was improper.” Id. 

In light of the intervening Scampone II decision, the trial court’s 

application of the Althaus factors and its determination that Grane owed no 

duty to Ms. Temple was erroneous. The contract between Grane and 

Providence in and of itself was sufficient to establish that duty under the 
J-A06009-18

- 30 -

Restatement (Second) of Torts §§ 323 and 324A. See Scampone II, 169 

A.3d at 619.18 

Having concluded that Grane did indeed owe a duty to Ms. Temple, we 

now consider whether there was enough evidence to get to the jury. 

Nonsuit should not be granted unless it is clear that the plaintiff 

has not established a cause of action or any right to relief against 

the party in question. When we determine if the plaintiff has 

____________________________________________

18 The management agreement in this case is the same in all material respects 

as the agreement between Grane and Highland reviewed in Scampone II. 

See Scampone II, 169 A.3d at 611, 618; Appellant’s Exhibit 15; Appellant’s 

Reply Brief at 29. That agreement requires Grane, as the Manager, to do the 

following on behalf of the Operator, Providence Care Center, LLC, at the 

Facility, Providence Care Center:

Section 1.2.1 ... Manager shall assist in the implementation and 

administration of the employment policies and procedures of the 

Operator. ... 

Section 2.1 ... [T]he Manager shall through its operating officers 

and the Manager’s Representative, and at the expense of the 

Operator, manage all aspects of the operation of the Facility, 

including, but not limited to the following:

2.1.1 Nursing Consulting Services. Establish and administer 

a quality assurance program to assure the Facility provides quality 

nursing services to its residents. ... 

Section 4.1 Compliance

The Manager shall use its best efforts to comply on behalf 

of the Operator with all applicable Federal, State and Local laws, 

rules and regulations including State and Local life and safety 

codes relating to the Facility and in the same fashion operate the 

Facility so that it shall maintain all necessary licenses, permits, 

consents and approvals from all governmental agencies which 

have jurisdiction over the operation of the Facility. ... 

Appellant’s Exhibit 15. 
J-A06009-18

- 31 -

established the right to recover, the plaintiff must be allowed the 

benefit of all favorable evidence and reasonable inferences arising 

therefrom, and any conflicts in the evidence must be resolved in 

favor of the plaintiff. This Court will reverse an order refusing to 

remove a nonsuit if the trial court either abused its discretion or 

committed an error of law. 

Scampone II, 169 A.3d at 611 (internal citations and quotation marks 

omitted).

Here, the trial court concluded that Appellant “provided no expert 

testimony demonstrating that Grane’s conduct fell below the standard of 

care.” Rule 1925(a) Opinion at 1. According to the trial court, Appellant’s 

“case as to Grane revolved around the assertion that Grane was in charge of 

setting staffing levels at the facility, that Grane did not set proper staffing 

levels at the facility, and that the lack of staff caused or contributed to [Ms.]

Temple being unsupervised and falling.” See Opinion and Order on 

Appellant’s Post-Trial Motion at 14.19 The trial court then concluded that 

Appellant’s expert, Nurse Sheppard, “continually spoke of ‘the facility’ and 

even defined direct care, but made no mention of Grane’s standard of care, 

____________________________________________

19 This is not entirely accurate. Appellant also claimed that policies and 

procedures set by Grane, and adopted by Providence, contributed to Ms. 

Temple’s fall. See, e.g., N.T. Trial, 5/16/2016, at 43-44 (asserting in 

Appellant’s opening statement that “Grane ... was also responsible for ensuring 

that the rules were followed to ensure that residents were not needlessly 

endangered”); N.T. Trial, 5/19/2016, at 181 (arguing that “if Grane has a duty 

to, ... if, per contract they’re going to ... assure the best efforts, [are] made to 

comply with federal regulations. You asked what regulation they breached. 

We’ve had ample testimony that the regulation was breached as to failure to 

supervise and prevent accidents”); id. at 195 (“[I]n terms of evidence that 

Grane ... breached the duty of care, ... we have evidence that the regulations 

weren’t followed, we have evidence that ... the policies and procedures that 

they implemented weren’t followed....”). 
J-A06009-18

- 32 -

or of any actions or inactions by Grane.” Id. at 15. These conclusions 

constitute a misreading of Nurse Sheppard’s expert report and the testimony 

presented at trial. 

The jury heard testimony from Ms. Lengle, Grane’s Vice President of 

Nursing Services. She testified that Grane was to use its best efforts to comply 

on behalf of facilities with all applicable federal, state and local regulations, 

and that she recommended policies to be followed at facilities, particularly 

relating to federal regulations. See N.T. Trial, 5/18/2016, at 187-88; id. at 

207 (testifying that facilities “were allowed to change the policies [she 

provided to them] to meet the individual needs of their building and their 

residents unless it was a federal regulation. If the policy was based on a 

federal regulation, I would expect them to follow that, yes”); id. at 228 

(explaining that “the general policies that I supplied, every single one, was 

directly reflected [sic] of a federal regulation in long-term care”). She 

acknowledged that she had a role in making sure there was enough staff at 

facilities, and made recommendations as to staffing for the facilities at times. 

See id. at 194-95. Ms. Lengle also stated that she had access to facilities’ 

clinical records, and was responsible as a consultant for recognizing problems 

within those records and asking for changes. Id. at 222. 

In addition, Appellant presented expert testimony to explain how 

Providence’s failure to follow policies and safety rules fell below the standard 

of care. Specifically, Nurse Sheppard explained to the jury how care is 

managed in a nursing home, and testified extensively about her qualifications 
J-A06009-18

- 33 -

in understanding the relationship between management companies and 

nursing facilities. See id. at 48-55. She was qualified as an expert and went 

on to testify about regulations that Providence was required to follow. 

Namely, Nurse Sheppard discussed 42 C.F.R. § 483.25(h) (effective Oct. 7, 

2005 to Nov. 27, 2016), which states, inter alia, that the facility must ensure 

that “[e]ach resident receives adequate supervision and assistance devices to 

prevent accidents.” See Appellant’s Exhibit 8 (setting forth 42 C.F.R. § 

483.25(h) and guidance to surveyors); see also N.T. Trial, 5/18/2016, at 71, 

78-79. Nurse Sheppard opined that Providence failed to provide Ms. Temple 

“with the level of supervision that she needed to keep her safe, and [it] had 

failed on at least two occasions to go back and update her care plan to direct 

the staff to provide her with supervision.” N.T. Trial, 5/18/2016, at 136.

Further, Nurse Sheppard testified to the following:

[Appellant’s counsel:] And we talked much earlier about the ...

factors that you look at under the regulation in determining 

avoidable versus unavoidable [accidents].[20] We talked about 

____________________________________________

20 According to Nurse Sheppard, 

avoidable and unavoidable accidents are different incidents. [T]he 

regulations use that term for a couple different things, and the 

key with calling something an unavoidable accident would mean 

that you actually did everything that you were supposed to do to 

prevent it, so unless you’ve done everything that you were 

supposed to do including assessing them, implementing care, 

changing the plan, then you can’t say it was an unavoidable 

accident, so the regulation actually tells us that, so they tell you 

that in order to say that this was an unavoidable accident, you 
J-A06009-18

- 34 -

proper supervision. Did you see from your review of the records 

whether or not there was proper supervision here?

[Nurse Sheppard:] There was not proper supervision here. 

Although [Ms. Temple] was in a[n] area [that] should be 

considered a location that needs supervision, this is a common 

area where there would be other residents and activities going on 

and tables and chairs, different obstacles to get around, meal 

trays, food, different things that were being introduced to the 

environment, this is an area that absolutely should’ve been 

supervised, and [Ms.] Temple should’ve been supervised.

Id. at 123-24. Referencing a citation by Department of Health and Human 

Services surveyors, Nurse Sheppard also stated that she had reviewed 

documents indicating that this particular location in the facility was not being 

appropriately supervised prior to Ms. Temple’s fall, in contravention of 42 

C.F.R. § 483.25(h). See id. at 130; see also Appellant’s Exhibit at 14. 

Ultimately, Nurse Sheppard determined that Ms. Temple’s fall was the result 

of the violation of policies and safety rules in place at Providence. Id. at 137. 

____________________________________________

had to have done X, Y, Z, and they actually list out up there what 

the things you had to do before you can call it unavoidable.

N.T. Trial, 5/18/2016, at 80-81; see also Appellant’s Exhibit 8 (defining 

“avoidable accident” as an accident that occurred because the facility failed 

to, inter alia, “[i]mplement interventions, including adequate supervision, 

consistent with a resident’s needs, goals, plan of care, and current standards 

of practice in order to reduce the risk of an accident...”). Nurse Sheppard 

stated that “the supervision level varies depending on what’s going on, 

depending on their resident and depending on other factors in the facility.” 

N.T. Trial, 5/18/2016, at 82; see also Appellant’s Exhibit 8 (“Adequate 

supervision is defined by the type and frequency of supervision, based on the 

individual resident’s assessed needs and identified hazards in the resident 

environment. Adequate supervision may vary from resident to resident and 

from time to time for the same resident.”). 
J-A06009-18

- 35 -

Based on the foregoing, and in light of our standard of review, the trial 

court erred in determining that Appellant did not present expert testimony. 

When the expert testimony is read in conjunction with the testimony from Ms. 

Lengle, a jury could conclude that Grane breached its duty to Appellant. In 

the management agreement, Grane agreed to establish and administer a 

quality assurance program to assure that Providence provides quality nursing 

services to residents, and promised to use its best efforts to comply on behalf 

of Providence with all applicable federal, state and local laws, rules and 

regulations. See Appellant’s Exhibit 15. Viewed in the light most favorable 

to Appellant, the testimony of Ms. Lengle and Nurse Sheppard suggests that 

Grane failed to exercise reasonable care in performing these undertakings that 

it should have recognized as necessary for the protection of Providence’s

residents. Accordingly, we reverse the order granting a nonsuit in favor of 

Grane and permit the new trial to include Grane once again.

Thus, to summarize, the order of the trial court granting Providence a 

new trial on liability and compensatory damages is affirmed. In addition, we 

uphold the JNOV entered in favor of Providence on punitive damages. 

However, we reverse the order granting a nonsuit in favor of Grane so that 

the new trial may include Grane.

Order affirmed in part and reversed in part. Case remanded for further 

proceedings. Jurisdiction relinquished. 
J-A06009-18

- 36 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2018