PITTSBURGH – A state court judge has overruled preliminary objections from a condo association who argued that both a missing certificate of merit and pleading insufficiencies marred litigation containing claims that a local man and father of five children, who was residing at a rehabilitation center for those dealing with homelessness, mental illness or dependency issues, died from an accidental overdose.
Leon Rockymore (as Administrator of the Estate of Jamal Hardy, deceased) of Allegheny County first filed suit in the Allegheny County Court of Common Pleas on March 1 versus Community Human Services and Residences at Wood Street Commons, Inc., both of Pittsburgh.
Community Human Services has been in operation since 1971 and according to the mission statement on its website, it “empowers individuals and families to live in stable housing, connect to community resources, build relations, and access quality food.”
Wood Street Commons is one of the few remaining single-room occupancy buildings in downtown Pittsburgh that works in conjunction with CHS to provide housing and support services for homeless individuals with mental illness and drug or alcohol dependencies.
The decedent, Jamal Hardy, was one such individual, according to the suit.
“Jamal Hardy was seeking temporary housing and treatment for his mental health and dependency issues when he applied to be a resident at CHS. Jamal underwent a rigorous application process to be considered for a spot as a program participant – a process that required disclosure of his health history. The program’s intake coordinator was tasked with conducting a thorough and timely intake assessment and obtaining all necessary information to ensure the appropriate levels of care. Jamal was accepted into the program and was provided with his own room,” the suit said.
“At some point during Jamal’s stay, while he was struggling to overcome his addiction, Jamal was suffering from an alleged accidental overdose while in his assigned room. The entire time Jamal was suffering from this accidental overdose, no one from CHS ever made an attempt to check on him. Jamal died in his room and there he remained undiscovered for several days until the odor of Jamal's decomposing body alerted other residents. CHS held itself out to Jamal as more than just a facility to find a temporary place to sleep. When Jamal came to CHS, he came with a history of mental health and drug dependency issues, issues which CHS should have – and would have – been aware of from the screening it does on all applicants to their program. As CHS offered substance abuse services to program participants, the program owed a duty of care to its participants to ensure that they were residing in a drug-free facility.”
The suit added CHS did not have any security measures, personnel, searches or standard procedures in place to prevent drugs from entering its facility, and the facility was so poorly-staffed that even if any alerts to check Jamal’s room were sent out (which they allegedly had not), they likely would not have been responded to in a timely manner.
“CHS had been plagued by numerous deaths within the WSC facility for several years from accidental overdosing, alerting it to the seriousness of the issue; however, no preventive measures had been implemented in light of the long and dark history within that building. Several participants struggling with drug use had gone unmonitored in the facility, dying in their rooms and going unnoticed for days, all the while CHS continued its daily operations until the odor of rotting flesh became so unbearable that it finally caught the attention of other residents,” the suit stated.
“Jamal was another victim of the CHS’s woefully understaffed facility. With a history of mental health issues and drug dependency, had Community Human Services utilized common sense, it would have more appropriately monitored Jamal, but as a result of their carelessness, someone that should never have been left alone and unmonitored, died under their care.”
Defendant Community Human Services filed preliminary objections on May 22, charging that a Certificate of Merit was not filed and that any elements of time are absent from an amended version of the complaint, lodged on May 2.
“While the complaint does not specifically plead a claim for professional negligence, plaintiff’s allegations paint CHS in a light such that, if taken to be true, would necessitate a Certificate of Merit. While it is denied that CHS is a health care provider, and while the nature of services alleged to have been offered by CHS are inaccurate, based on the substance of plaintiff’s allegations, the claim would pertain to an action that occurred within the course of the parties’ professional relationship as the allegations pertain to the decedent’s plan of care while in ‘the facility,” according to the preliminary objections.
“Furthermore, plaintiff’s claim also raises questions of professional judgment beyond the realm of common knowledge and experience, as plaintiff alleges that the CHS acted like a rehabilitation facility wherein participants could seek mental health counseling and addiction treatment. The Certificate of Merit must be filed within 60 days of the original complaint. Accordingly, if plaintiff’s allegations are taken as true, though CHS denies same, plaintiff has failed to file a Certificate of Merit, which was due on May 1, 2023, 60 days after the filing of the original complaint on March 1, 2023. As such, this Court should dismiss plaintiff’s amended complaint as to CHS with prejudice.”
The named defendant also put forth that the element of time is absent from the plaintiff’s case.
“In the factual allegations of plaintiff’s amended complaint and in the two counts captioned as negligence, plaintiff does not allege the date or dates of the alleged tortious behavior by CHS, nor the date of the decedent’s death. As such…plaintiff has failed to allege crucial element of factual causation between the timing of the tort and the timing of injury is absent from plaintiff’s complaint. In the absence of any averments of the time of the alleged tortious action or inaction by CHS or the time of the alleged resulting death, the amended complaint is insufficiently specific to state a claim under substantive law. In the absence of a curative second amended complaint, the present pleading is properly dismissed,” the objections continued.
“For the reasons stated in the above section, incorporated herein, plaintiff’s failure to set forth this basic information on time is directly contrary to Pennsylvania Rule of Civil Procedure 1019(f), requiring that ‘[averments of time, place and items of special damage shall be specifically stated.’ Regardless of the reasons or motivation for this failure to plead this essential element of a cause of action, the amended complaint is in direct violation of that rule. Plaintiff should be required to file a second amended complaint or have its present pleading stricken for failure to do so.”
Furthermore, defendant Community Human Services filed a notice of intent that same day, May 22, to seek a judgment of non pros as to all claims filed against it.
“Pursuant to Pennsylvania Rule of Civil Procedure 1042.7, I intend to enter a judgment of non pros against you after 30 days of the date of the filing of this notice if a Certificate of Merit is not filed as required by Rule 1042.3. I am serving this notice on behalf of defendant Community Human Services. The judgment of non pros will be entered as to all claims against defendant Community Human Services,” the notice stated.
Wood Street Commons Condominium Association also filed preliminary objections in the case on June 7.
“In both Count I and Count II of plaintiff’s amended complaint, plaintiff sets forth nearly identical allegations of negligence on the part of Community Human Services and Residences at Wood Street Commons, Inc. As an initial matter, plaintiff’s amended complaint is legally deficient based on the doctrine of in pari delicto. Furthermore, plaintiff’s amended complaint fails to set forth any specific allegations indicating that RWS owed the decedent any legal duty under Pennsylvania law,” their objections stated.
“Moreover, despite the fact that RWS is not a healthcare provider, plaintiff’s amended complaint sets forth a number of allegations against RWS that sound in professional negligence as a healthcare provider with respect to the decedent. Furthermore, plaintiff’s amended complaint fails to plead any specific facts with respect to the dates on which the key events in this case transpired. Lastly, plaintiff’s amended complaint – with respect to RWS – fails to set forth any specific factual averments supporting the claims of willfulness, wantonness, gross negligence or recklessness conduct on the part of RWS.”
Additionally, Wood Street Commons Condominium Association also filed a notice of intent to enter a judgment of non pros for failure to file a certificate of merit.
“Pursuant to Pennsylvania Rule of Civil Procedure 1042.7, I intend to enter a judgment of non pros against you after 30 days of the date of the filing of this notice if a certificate of merit is not filed as required by Pennsylvania Rule of Civil Procedure 1042.3. I am serving this notice on behalf of defendant Residences at Wood Street Commons, Inc. The judgment of no pros will be entered as to all claims against defendant Residences at Wood Street Commons, Inc.,” per the notice.
UPDATE
On Sept. 12, Allegheny County Court of Common Pleas Judge John T. McVay Jr. overruled the preliminary objections from Residences at Wood Street Commons, Inc.
“Upon consideration of defendant Residences at Wood Street Commons, Inc.’s preliminary objections, brief in support and any responses thereto, it is hereby ordered and decreed that defendant Residences at Wood Street Commons, Inc.’s preliminary objections are overruled…at the preliminary objections stage, I am not free and clear from doubt,” McVay stated.
For two counts of negligence, the plaintiff is seeking compensatory damages together with all interests, associated costs and any other such relief as this Court may deem to be just and proper.
The plaintiff is represented by Shaheen Z. Wallace of The Law Office of Shaheen Wallace, in Pittsburgh.
The defendants are represented by Thomas P. McGinnis, Brook T. Dirlam and Ryan L. Hatfield of Thomas Thomas & Hafer, plus Joseph V. Lesinski and James P. Cullen of Marshall Dennehey Warner Coleman & Goggin also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-23-002903
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com