Sease v. Dobish (memorandum)

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J-S57004-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 LIONEL L. SEASE, : : : : : : : : : : : : : : : Appellant v. DR. MICHAEL J. DOBISH, DR. DALE KRESGE, DR. DAVID NEUBERGER, DR. MINDY NOLL, DR. RANDALL ROWAND, DR. MARK ROWAND, DR. ROCCO ARCIERI, DR. CYNTHIA PATTERSON, AND DALLASTOWN MEDICAL ASSOCIATES, Appellees IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1968 MDA 2011 Appeal from the Order entered on October 28, 2011 in the Court of Common Pleas of York County, Civil Division, No. 2011-CU-000792-81 BEFORE: MUSMANNO, OLSON and STRASSBURGER*, JJ. MEMORANDUM BY MUSMANNO, J.: Filed: February 21, 2013 Lionel L. Sease ( Sease ) appeals, pro se, from the trial court s Order granting the preliminary objections filed by Dr. Michael J. Dobish ( Dr. Dobish ) and the preliminary objections filed by Dr. Dale Kresge, Dr. David Neuberger, Dr. Mindy Noll, Dr. Mark Rowand, Dr. Randall Rowand, Dr. Rocco Arcieri, Dr. Cynthia Patterson, and Dallastown Medical Associates ( Dallastown )1 (collectively the Defendant Associates ), and dismissing Sease s Amended/Corrected Complaints with prejudice. We affirm. 1 Sease averred that Dr. Dobish and the other named doctors were either partners or members of Dallastown. *Retired Senior Judge assigned to the Superior Court. J-S57004-12 Here, Sease avers that between April 2009 and January 2010, Dr. Dobish prescribed him various medications including Vicodin, Percocet and Oxycontin. In June 2009, Sease informed Dr. Dobish that he was experiencing increased bouts of depression and that the medications were making him feel high and intoxicated. Sease also indicates that he became reclusive, experienced a loss of sex drive, and experienced mood swings. In July 2009, Sease alleges his weight began to fluctuate, which resulted in respiratory problems. Sease asserts that Dr. Dobish prescribed him Advair, which interacted negatively with his other medications. Sease avers that his condition did not change through October 2009, during which time Dr. Dobish prescribed higher dosages of the drugs. Sease states that Dr. Dobish continued to prescribe the higher doses of the drugs even after Sease complained of discomfort and disorientation. Sease further states that he became involuntarily dependent on the drugs. On February 23, 2011, Sease filed a pro se Complaint against Dr. Dobish. Subsequently, on March 23, 2011, Sease filed a pro se Complaint against the Defendant Associates. Dr. Dobish and the Defendant Associates filed preliminary objections. In May 2011, Sease responded to the preliminary objections by filing separate pro se Amended/Corrected Complaints against Dr. Dobish and the Defendant Associates. In the amended Complaint against Dr. Dobish, Sease pled the following causes of action: violations of his rights pursuant to the Fifth and Fourteenth -2- J-S57004-12 Amendments of the United States Constitution and Article I, § 1 of the Pennsylvania Constitution; medical malpractice; fraudulent misrepresentation; willful, wanton, and reckless misconduct; intentional infliction of emotional distress; and loss of consortium. In the amended Complaint against the Defendant Associates, Sease pled the following causes of action: violations of the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution and Article I, § 1 of the Pennsylvania Constitution; medical malpractice; and negligent, willful, reckless and wanton misconduct. In June 2011, the two actions were consolidated. Dr. Dobish and the Defendant Associates again filed preliminary objections to Sease s amended Complaints. Sease filed responses in opposition to the preliminary objections. The trial court sustained the preliminary objections and dismissed Sease s amended Complaints. Sease filed a timely pro se Notice of appeal. The trial court ordered Sease to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise statement. Sease filed a timely Concise Statement. On appeal, Sease raises the following question for our review: Did the lower court err in ruling that [Sease s] Complaint(s) failed to allege a cause of action upon which relief can be granted and failed to comply with the rules, therefore sustaining the preliminary objections of [Dr. Dobish and the Defendant Associates] and dismissing [Sease s] Complaint(s) while [Sease s] Motion were [sic] pending before the Motion court and the ruling court not having [sic] all information relative to this action to make a[n] informed decision? Brief for Appellant at 4 (capitalization omitted). -3- J-S57004-12 [O]ur standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court. Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (citation omitted). With regard to his claims involving Dr. Dobish, Sease contends that Dr. Dobish fraudulently misrepresented that his prescription of various drugs for Sease would correct Sease s medical problems and alleviate chronic pain. Brief for Appellant at 10-11. Sease also contends that his amended Complaint set forth a cause of action for medical malpractice against Dr. Dobish. Id. at 11, 13. Sease argues that Dr. Dobish should have known that his manner in prescribing the various drugs would have increased the risk of addiction to the drugs and the risk of injuries, including liver failure, kidney disease, body edema, and high blood pressure. Id. at 12. Sease further asserts that subsequent to Dr. Dobish s malpractice, Dr. Dobish engaged in willful and wanton misconduct in disregarding Sease s complaints -4- J-S57004-12 about his physical and mental health. Id. at 13. Sease additionally claims that the trial court erred in granting Dr. Dobish s preliminary objections as to the intentional infliction of emotional distress count. Id. at 13-14. Sease argues that Dr. Dobish s over-prescribing of the drugs caused him to suffer depression, become a recluse, lose his sex drive,2 and produced involuntary mood swings. Id. Following our review of the amended Complaint, we conclude that the trial court did not err in granting Dr. Dobish s preliminary objections. See Trial Court Opinion (Dr. Dobish), 10/28/11, at 4-15. We rely upon the wellreasoned and thorough Opinion of the trial court and adopt it for the purpose of this appeal. See id.3 With regard to the Defendant Associates, Sease s only argument is as follows: In light of such the Appeal to the Honorable Court is only applicable to Defendant(s) Dr. Michael J. Dobish and the ENTITY known as Dallastown ¦; all other [] formally named Defendants are hereby dropped from this action, and any claim not addressed is considered waived. Brief for Appellant at 14. 2 We note that Sease does not raise an explicit claim regarding his loss of consortium cause of action on appeal. See Pa.R.A.P. 2119(a). 3 The trial court also noted that the preliminary objections were granted because Sease had violated Pa.R.C.P. 1021(b) by failing to claim specific relief, and violated Civil Rule 1028(a)(1) for failing to provide proper service. See Trial Court Opinion (Dr. Dobish), 10/28/11, at 15-17. On appeal, Sease has not raised any issue with these specific findings by the trial court. -5- J-S57004-12 Here, Sease has voluntarily abandoned all of his claims against all of the Defendant Associates except Dallastown. Moreover, Sease has failed to develop an argument or provide any pertinent citations to case law or the record to support his claims regarding Dallastown. See Pa.R.A.P. 2119(a). Thus, we conclude that any claims against Dallastown are waived for lack of development. See Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011) (stating that [w]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived. ) (citation omitted). Based upon the foregoing, the preliminary objections as to the Defendant Associates were properly granted.4 Order affirmed. 4 We note that the trial court issued a separate Opinion detailing its reasons for granting the Defendant Associates preliminary objections. See Trial Court Opinion (Defendant Associates), 10/28/11, at 3-11. -6-

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