Weiley v. Albert Einstein Med. Ctr.

• Decision Date: 24 May 2012
• Citation: 51 A.3d 202,2012 PA Super 106
• Parties: Douchan WEILEY, Appellant v. ALBERT EINSTEIN MEDICAL CENTER and Temple University School of Medicine and Hancock Funeral Home, Ltd., and John Doe, Appellees.
• Court: Pennsylvania Superior Court

51 A.3d 202

2012 PA Super 106

Douchan WEILEY, Appellant

v.ALBERT EINSTEIN MEDICAL CENTER and Temple University School of Medicine and Hancock Funeral Home, Ltd., and John Doe, Appellees.

Superior Court of Pennsylvania.

Argued Feb. 14, 2012.

Filed May 24, 2012.

Brian O. Phillips, Doylestown, for appellant.

Claire Neiger, Philadelphia, for Albert Einstein Medical Center, appellee.

Joshua Knepp, Philadelphia, for Temple University School of Medicine, appellee.

BEFORE: BENDER, J., OTT, J., and FITZGERALD, J.^*

OPINION BY BENDER, J.

Douchan Weiley (“Weiley”) timely appeals from the order of the trial court, entered December 17, 2010, which dismissed his complaint after sustaining all the preliminary objections of the defendants, Albert Einstein Medical Center (“Hospital”), Temple University School of Medicine (“School”), John Doe, an unknown person at School, and Hancock Funeral Home, Ltd. (“Funeral Home”). We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

On October 22, 2010, Weiley filed a complaint against the above-noted defendants for the alleged mishandling and mistreatment of the body of his father, Elmer Weiley. In the complaint, Weiley avers that, on January 12, 2009, his father presented to Hospital's emergency room with a myocardial infarction. Complaint, 10/22/10, at ¶ 13. Hospital admitted his father for treatment. Id. at ¶ 14. Hospital's progress notes from that same date indicate that Weiley was a point of contact and next-of-kin for his father. Id. at ¶ 15. Weiley and other family members visited his father on multiple dates while his father was admitted at Hospital, from January 12, 2009 until January 23, 2009. Id. at ¶¶ 16–18. Weiley met and spoke with Hospital personnel concerning his father's “prognosis and/or treatment.” Id. at ¶ 19. On January 17, 2009, as a surrogate for his father, Weiley signed a Statement of Do Not Resuscitate (“DNR”). Id. at ¶ 20.

“Agents, workers, officers, and/or employees of [Hospital] asked [Weiley] and [Weiley's] family members about organ donation concerning” Weiley's father. Id. at ¶ 24. Weiley avers that “on multiple occasions” he and his family informed these Hospital personnel that “they did not want [Weiley's father's] organs and/or tissue harvested for donation, or his body used for medical experiments.” Id. at ¶ 25. Weiley also spoke with Hospital's social worker on January 19, 2009, regarding local funerary services. Id. at ¶ 23. The progress notes attached to Weiley's complaint reveal that Hospital was in communication with family on multiple occasions throughout Weiley's father's stay for discussions about, for example, Weiley's father's poor prognosis and palliative care, prayer and counseling with a chaplain, and meetings with physicians. The notes also reveal, for example, that Weiley was “visibly upset/tearful” regarding his father's condition. See Progress Notes, 1/12/09 (Chaplain's note, attached to Complaint as Exh. A; RR at 97).

Weiley's father died at Hospital on the morning of January 23, 2009. Complaint at ¶ 21. On that same date, “an agent, worker, officer, and/or employee of [Hospital] called [Weiley] to give notice” of his father's death. Id. at ¶ 26. The progress notes from that date support this averment. At a time contemporaneous with decedent's death, the notes indicate that Hospital tried “many times to contact family but no answer. Left message....” See Progress Notes, 1/23/09 at 5:3[0] a.m. (Attached to Complaint as Exh. A; RR at 96). Another note, made at 5:38 a.m. by a different person indicates, “[t]ried to contact family ... Left message x 2” indicating that two messages were left at that time. See Progress Notes, 1/23/09 at 5:38 a.m. (RR at 103). Weiley avers that “[u]pon the death of [his father, Weiley and his] family members made arrangements with Philadelphia Crematories to have the body cremated.” Id. at ¶ 27.¹

The next averment in Weiley's complaint concerns a date four days after his father's death, on January 27, 2009, when Weiley contends that he received a call from Barbara Bernard, the head of Hospital's Social Services department, informing him that his father's body had been transferred, by Funeral Home, from Hospital to School “for holding”. Id. at ¶¶ 28, 29. Weiley claims that neither he nor his family gave consent to Hospital for this transfer and that Hospital did not make a good-faith effort to contact him or his family before making this transfer. Id. at ¶¶ 30, 31. Prior to Ms. Bernard's call on January 27th, the only evidence of Hospital's attempt to contact Weiley (at least within the confines of Weiley's complaint and the attached exhibits, at this point in the litigation) is found in the progress notes at the time of his father's death, on January 23rd, as described above.

On January 27, 2009, following Ms. Bernard's call, Weiley contacted Funeral Home and confirmed that it had transferred his father's body from Hospital to School. Id. at ¶¶ 32, 33. On this same date, Weiley called School “concerning the body of his father, but received no information as to the whereabouts and/or status of the body.” Id. ¶ 34.

Weiley “spent the next several days contacting defendant [School] in an attempt to locate the body of his father.” Id. at ¶ 35. Weiley “became distraught trying to locate the body of his father, while at the same time dealing with his grief from his father's death.” Id. at ¶ 36.

On January 29, 2009, Weiley went to School to have his father's body released to Philadelphia Crematories Funeral Home. Id. at ¶ 37. “Upon release from [School], [Weiley's father's] body showed evidence that post-mortem operations had been performed[,]” id. at ¶ 41, including “disfiguring post-mortem scars to the face, head and body[,]” id. at ¶ 42, and “evidence that the brain had been removed and/or operated on[,]” id. at ¶ 43. Weiley and his family were forced to view the body in order to identify it, and thereupon “suffered mental and emotional distress through the atrocities inflicted on the body of his father.” Id. at ¶ 45.

Based on the above factual averments, Weiley asserted the following causes of action against Hospital: tortious interference with a dead body, intentional infliction of emotional distress (“IIED”), and negligent infliction of emotional distress (“NIED”), with a claim for punitive damages. Id. at ¶¶ 22–60. Weiley asserted claims for tortious interference with a dead body, IIED, and punitive damages against School, John Doe, and Funeral Home. Id. at ¶¶ 61–113.

On November 8, 2010, Hospital and Funeral Home filed preliminary objections, and School did likewise on November 12, 2010. The trial court sustained all of the defendants' preliminary objections and dismissed the complaint. Weiley filed this timely appeal.

Initially, we note the scope and standard of review applicable to this appeal:

A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient. Cardenas v. Schober, 783 A.2d 317, 321 (Pa.Super.2001) (citing Pa.R.C.P. 1028(a)(4)). “Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer.” Id. at 321–22. (citation omitted). All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true. Id. at 321.

In determining whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. The impetus of our inquiry is to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven. This Court will reverse the trial court's decision regarding preliminary objections only where there has been an error of law or abuse of discretion. When sustaining the trial court's ruling will result in the denial of claim or a dismissal of suit, preliminary objections will be sustained only where the case i[s] free and clear of doubt.

Brosovic v. Nationwide Mutual Insurance Co., 841 A.2d 1071, 1073 (Pa.Super.2004) (citation omitted).

Cooper v. Frankford Health Care Sys., Inc., 960 A.2d 134, 143–144 (Pa.Super.2008) (quoting Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805–06 (Pa.Super.2007)). Thus, “the question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.” Bilt–Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 866 A.2d 270, 274 (2005) (citation omitted).

We now turn to the legal sufficiency of the claims in Weiley's complaint.

Tortious Interference with a Dead Body Against Hospital

Weiley argues that the trial court erred by concluding that he failed to assert sufficient facts to support his cause of action against Hospital for interference with a dead body. We agree.

Our Supreme Court officially recognized and applied the common law tort of interference with a dead body in the case of Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970). The grim circumstances of that case involved a youth who hit and killed another youth with a car, hid the body, and later buried it in a shallow grave with the assistance of his friend, where it was discovered two months later. The victim's parents asserted the tort of interference with a dead body against the driver and his friend, claiming only mental damages ( i.e., mental anguish, emotional disturbance, embarrassment, and humiliation). Papieves, 263 A.2d at 119. The Papieves Court noted, “the issue of recovery for emotional distress resulting from the mishandling...