Boyle v. Meyer, 2025 Pa. Super. LEXIS 410 (September 9, 2025) Lane, J.
BEFORE: McLAUGHLIN, J., LANE, J., and BENDER, P.J.E.
OPINION BY LANE, J.
Judith Meyer (“Meyer”) and OSPTA @HOME, LLC d/b/a OSPTA Home Care & Hospice (“OSPTA”) (collectively, “Defendants”) appeals from the order denying their motion for judgment on the pleadings in this personal injury action brought by John Boyle (“Boyle”) and Cheryl McKinney (“McKinney”) (collectively, “Plaintiffs”). We affirm.
On April 20, 2021, Plaintiffs commenced this action by filing a complaint in the trial court against Defendants, raising negligence claims related to an incident in which Meyer, a physical therapist employed by OSPTA, allegedly transmitted the COVID-19 virus to Plaintiffs.1 The complaint averred as follows. At the time of the incident, Boyle was recovering from open-heart surgery at the home he shared with McKinney. Additionally, Plaintiffs were “both of an advanced age and suffer[ed] from various physical ailments.” As a result of the surgery, Boyle “was required to take physical therapy.”
“In order to reduce the likelihood of contact with any individuals outside of his residence” during the on-going COVID-19 pandemic, Boyle arranged for OSPTA to provide at-home physical therapy services.
Plaintiffs alleged that Meyer was negligent by: breaching her “duty to wear” proper personal protective equipment (“PPE”) and exposing Plaintiffs to an unreasonable risk of harm; “initiating skin-to-skin contact with” Boyle without wearing sufficient PPE; and providing physical therapy following known exposure to the COVID-19 virus. Plaintiffs
alleged that OSPTA was negligent under a respondeat superior theory. In addition, they claimed that OSPTA failed: to properly train and supervise Meyer on the provision of at-home physical therapy during the pandemic; and to “provide adequate safeguards and screening of its employees” to prevent the spread of the virus.
Upon review, we agree that the instant order is appealable under the collateral order doctrine. “[A]n order is collateral under Rule 313 if: (1) the order is separable from the underlying cause of action; (2) it involves a right too important to be denied review; and (3) it presents an issue that will be irreparably lost if appellate review is postponed until after final judgment.”
Brooks v. Ewing Cole, Inc., 259 A.3d 359, 371 (Pa. 2021) (holding orders denying summary judgment motion premised on sovereign immunity grounds were appealable collateral orders). We must construe the collateral order doctrine narrowly to preserve the integrity of the final order rule and avoid piecemeal litigation. See McIlmail v. Archdiocese of Philadelphia, 189 A.3d 1100, 1104 (Pa. Super. 2018); see also Pa.R.A.P. 341 (providing that generally, “an appeal may be taken as of right from any final order”). We conclude that Defendants have satisfied each of the three collateral order elements. First, the question of Defendants’ immunity from suit — which turns on the interpretation of the PREP Act — is separate and distinct from the merits of Plaintiffs’ negligence claims, which implicate traditional Pennsylvania negligence principles. See Brooks, 259 A.3d at 371-72 (holding that defendant’s claim of sovereign immunity was separable from underlying negligence of action).
Second, Defendants’ claim of federal statutory immunity from state negligence claims involves a right too important to be denied review. See id. at 372 (finding that resolution of legislative and constitutional sovereign immunity claim was too important to defer review as the right has “deeply rooted and far-reaching implications [that] outweigh the final judgment rule’s efficiency interests”). Finally, Defendants’ PREP Act immunity claim will be irreparably lost if postponed until after final judgment because, to the extent Defendants’ present appellate claims are meritorious, they would be entirely immune from the instant lawsuit. See id. at 372-73 (concluding that sovereign immunity claim would be irreparably lost if deferred because “the protection [of immunity] is from a lawsuit itself not simply a mere shield from judgment or liability”). As we find that the order denying Defendants’ motion for judgment on the pleadings was an appealable collateral order, we proceed to reach the merits of their appeal.
The immunity provision of the PREP Act provides:
Subject to the other provisions of this section, a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration [of public health emergency] has been issued [by the Secretary] with respect to such countermeasure.
We find no error in the trial court’s denial of Defendants’ motion for judgment on the pleadings. See SpiriTrust Lutheran, 314 A.3d at 904. In undertaking our review, we reiterate that, like the trial court, our review is confined to the well-pleaded allegations of
the complaint and Defendants’ admissions. See Washabaugh, 316 A.3d at 1011. Moreover, a court may only grant judgment on the pleadings when there is no dispute about a material fact such that the moving party’s success on the merits is certain. See id.; see also Five Star Bank, 312 A.3d at 918.
Here, there are several disputed facts that prevent the grant of judgment in favor of Defendants. First, it is unclear on the pleadings whether Meyer’s “thin, disposable surgical mask” was a covered countermeasure under the PREP Act. 42 U.S.C. § 247d-6d(a)(1); The FDA’s April 24, 2020, EUA established that certain “single or multiple use” “face masks” constituted covered countermeasures under the PREP Act, as “device[s] . . . authorized for emergency use in accordance with” the FD&C Act. 42 U.S.C. § 247d-6d(i)(1)(C); see also FDA Face Mask EUA Letter, at 3 (Apr. 24, 2020). However, the April 24, 2024, EUA only applied to face masks that met certain labeling requirements and entirely excluded surgical masks.
Here, Plaintiffs alleged that Meyer was negligent based on her failure to wear gloves, not washing her hands at Plaintiffs’ home, shaking Boyle’s hand upon arrival, and touching numerous objects in the home. Plaintiffs further averred OSPTA was negligent for failing to screen its employees for the COVID-19 virus or properly train or supervise employees in providing physical therapy during the pandemic. Plainly, these allegations do not relate to Defendants’ use or administration of a covered countermeasure, but rather to Meyer’s failure to wear proper PPE and maintain sanitary conditions, as well as OSPTA’s failure to screen, train, and supervise its employees. As such, they fall outside the class of state-law claims preempted by the PREP Act. See Hampton, 83 F.4th at 764. While Maney found that immunity attaches to certain “failure-to-administer claims,” the present case does not involve the provision of a scarce countermeasure that would trigger the exception to the general rule that claims involving the non-use and non-administration of countermeasures do not fall under the PREP Act. See Maney, 91 F.4th at 1301.
Furthermore, Plaintiffs’ claims are sufficiently unrelated to Meyer wearing a surgical mask to evade PREP Act immunity, as they allege negligence based upon Meyer’s and Defendant’s failure to take additional actions beyond the mask she had on when she treated Boyle. See Hampton, 83 F.4th at 764. We note only one exception to our holding as it appears that Plaintiffs’ allegations that Meyer failed to wear “a face shield[] or an appropriate face mask” relates to the same purpose as a surgical mask, i.e. to prevent the airborne transmission of the COVID-19 virus. However, it is premature on the present record to ascertain whether Defendants are immune from a claim that Meyer was negligent based upon her decision to wear a disposable surgical mask instead of a different kind of mask or face shield. Instead, we leave that determination to the trial court, following the development of the factual record regarding whether Meyer’s mask was in fact a covered countermeasure.
Accordingly, we conclude, in light of the pleadings filed in this particular matter, that the trial court properly found that material facts remain in dispute regarding the application of PREP Act immunity to Plaintiffs’ claims. See Five Star Bank, 312 A.3d at 918. We therefore affirm the court’s denial of Defendants’ motion for judgment on the pleadings and remand for further proceedings.
Order affirmed. Case remanded. Jurisdiction relinquished.
· The immunity provision of the PREP Act provides that a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss covered by, rising out of, relating to, or the resulting to the administration to or the use by an individual of a covered countermeasure. If a declaration, a public health emergency has been issued by the Secretary with respect to such countermeasure.
· This case involved a home health care worker who was not masked, allegedly.
· The court denied the motion for judgment on the pleadings.
· The court said that there were questions of fact.
· There is a question as to whether the thin, disposable surgical mask was a covered countermeasure under the PREP Act.
· Face masks excuse surgical masks.
· Here plaintiffs allege that there was negligence in the failure to wear gloves, not washing hands in the patient’s home, shaking the patient’s hand upon arrival, and touching numerous objects in the home.
· It was also alleged that the employer was negligent in failing to screen employees for the COVID-19 virus or proper training.
· These allegations do not relate to the defendants’ use or administration of a covered countermeasure.
· As such, these claims fall outside the class of state-law claims preempted by the PREP Act.
· Those claims are sufficiently unrelated to the wearing of a surgical mask to evade the PREP Act immunity.
· Allegations that the worker failed to wear a facial or appropriate face mask relate to the COVID-19 virus.
· It is premature on the record to ascertain whether the defendants are immune from a claim that the worker was negligent based on her decision to wear a disposable surgical mask instead of a different kind of mask.
