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HomeMy WebLinkAbout00-03639 "--,,, .'-- ~, . , 'l!fft>5 , RALPH STINTZCUM, JR" Executor of the Estate of EVELYN M, STINTZCUM, Deceased, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs, NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 ,-" "," ~ '"', "'~ '",' , ""'';' RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, deceased, by and through his counsel, Gates, Halbruner & Hatch, P.C., and respectfully represents as follows: 1. Evelyn M. Stintzcum (hereinafter "Decedent") died on March 8, 2001. 2. On March 13, 2001, the Cumberland County Register of Wills granted letters testamentary to Ralph Stintzcum, Jr. (hereinafter "Plaintiff'), as the Executor ofthe estate of Evelyn M. Stintzcum. 3. This is a survival action brought pursuant to 42 Pa.C.S. ~8302. 4. West Shore Health and Rehabilitation Center (hereinafter "Defendant") IS a corporation formed under the laws of the Commonwealth of Pennsylvania doing business as a provider oflong-tenn care services, with its principal place of business located at 770 Poplar Church Road, Camp Hill, Pennsylvania 17011. 5. Decedent was first admitted to Defendant's facility on October 8, 1997 following rehabilitation at the Renova Center (HealthSouth Rehabilitation of Mechanicsburg) .;' .:-< . h'~'" ~ , '~ .l""'"' -",',,:.-" 'L ",', "-"""1(i for a broken hip she sustained in a fall. 6. Decedent was placed into Defendant's 1200 Unit, and was placed on "fall precautions." 7. There were no identifiable fall prevention measures put into place by Defendant. 8. Decedent fell numerous times while she was in Defendant's 1200 Unit. 9. After her falls, Decedent was rarely examined by a physician, and Decedent's family, primarily her granddaughter, Doris Arena, were not immediately notified of Decedent's falls. 10. As a result of these falls, Decedent received bumps and bruises, and the falls caused increased disorientation and fear in Decedent. 11. In December, 1997, Decedent was transferred to Defendant's 800 Unit with plans to prevent recurrent falls. 12. Any plans to prevent recurrent falls were not implemented by Defendant. 13. Decedent continued to experience numerous falls while in Defendant's 800 Unit. 14. After each fall, a notation appears in Decedent's file stating, "Mrs. Stintzcum appears fine and has no complaints of pain." 15. Decedent was rarely examined by a physician following her falls. 16. Decedent should have been examined by a physician after each fall, regardless of whether she stated she was experiencing no pain. 17. Decedent's file also documents a belligerent and/or difficult attitude of Decedent. 18. Plaintiffbelieves, and therefore avers, that Decedent's attitude was either caused by or exacerbated by the failure of Defendant to treat Decedent's physical and ,<~-.' " -e :",-- ," ~ ii!!' " psychological problems. 19. Between February 13,1998 and February 26, 1998, Decedent fell more than six (6) times. 20. On or about February 14, 1998, Decedent complained of shoulder pam to Defendant's staff. 21. Several days subsequent to this complaint, Decedent was diagnosed with a tom rotator cuff. 22. Decedent's physician ordered pain medication to be administered every four to six (4-6) hours. 23. Defendant facility did not even obtain the prescribed pain medication until over a week after the physician ordered it to be given. 24. The medication was only obtained after repeated prodding of the staffby Decedent's granddaughter, Doris Arena. 25. Decedent fell so many times that she had severe slashes on both arms, and her face was so swollen that she could not even open her eyes. 26. At this point, Decedent's physical condition was listed as "guarded". 27. After a physician ordered Defendant facility to implement fall prevention measures, a few ofthese measures were implemented, namely: A. Decedent was moved closer to the nurses' station. B. A fall mat was placed next to her bed. C. A clip-on alarm was put on Decedent's bed 28. The alarm described in Paragraph 27(C) above, was placed within Decedent's reach , , ~': '"", ,~"'- '.'" '---,'~',' ;~~~,; ," ~~ 'lji;:: and could be easily removed by her. 29. Decedent's granddaughter, Doris Arena, visited Decedent and provided personal care to her on an almost daily basis. 30. A new alarm was placed in Decedent's room, which was designed to help prevent Decedent's recurrent falls. 31. Not all of Defendant's staff had been trained to use, operate, and/or evaluate the new alarm. 32. The new alarm was essentially for appearance only, in that it was not properly utilized by Defendant's staff. 33. Doris Arena contacted the Ombudsman of Cumberland County to investigate Defendant's facility. 34. The Ombudsman found: A. Defendant was not changing Decedent's bed linens; B. Defendant was not providing proper nutrition to Decedent; C. Defendant was not bathing Decedent; and D. Defendant was not providing personal hygiene to Decedent. 35. Doris Arena also contacted the Commonwealth of Pennsylvania, Department of Health to investigate Defendant's facility. 36. The Commonwealth found: A. Decedent's psychological well-being was being essentially ignored. B. Diagnosis and recognition of physical conditions were ignored, in that: (1). Decedent had pneumonia; ,. , '. '~ , .' '-,1__ ".' ii'it' (2). Decedent had urinary tract infections; and (3). Decedent had various injuries folJowing her numerous falls C. Decedent was hospitalized and treated only after continuous and outspoken demands of Doris Arena. D. Decedent's physical conditions, obviously present, were left untreated, which led to: (I). More serious physical conditions; (2). Increased pain and suffering; and (3). Caused Decedent's belJigerent, antagonistic, uncooperative, and aggressive behavior. E. There were numerous deficiencies in the physical surroundings of Decedent's environment. 37. Despite a mandate from the Pennsylvania Department of Health to correct the numerous deficiencies, Decedent's physical and psychological care and treatment remained the same. 38. Decedent continued to falJ. 39. Decedent's physical and psychological symptoms remained unrecognized and untreated. 40. Decedent's physical conditions did not change. 41. Decedent's psychological interaction with others did not change. 42. In or around October, 1999, Decedent developed a urinary tract infection. 43. Decedent's physician ordered an antibiotic, Ciprofloxacin, to be administered two "". ' " . , ,Ii times a day for 14 days. 44. Decedent allegedly refused thirteen (13) out of the required twenty-eight (28) doses. 45. Defendant's records lack any evidence as to the reason for these refusals, and also lack evidence as to any remedial measures implemented to administer the medication. 46. Contrary to Defendant's own policy, Decedent's physician was not notified about the Decedent refusing to take her medication. 47. The unit charge nurse and the assistance director of nursing were not even aware that the Decedent continued to refuse her medication. 48. Defendant failed to evaluate Decedent's refusal of her medication to ensure continuity of care. 49. Defendant failed to provide the Decedent with the scheduled doses of the physician- ordered medication. 50. Defendant is required to have a physician review each resident's total program of care, including medications and treatments, at each visit. 51. Defendant is required to have the physician write, sign, and date progress notes at each visit, and sign and date all orders. 52. Defendant failed to ensure that the physician supervised the plan of care for Decedent, as evidenced by the fact that the physician failed to date all orders. 53. Defendant failed to ensure Decedent's care in that the physician did not review and assess recapitulation sheets for the month of October, 1999. 54. It is alleged, and therefore averred that Defendant continually failed to meet ,~ " "c', ,~' , , '" - A~ ')" minimum staffing requirements set forth by the Pennsylvania Department of Health and the Health Care Financing Administration. 55. Defendant was cited by the Pennsylvania Department of Health for failing to meet the minimum 2.7 hours of nursing care for each resident on November 5, 1999, November 6, 1999, and November 7, 1999. 56. It is alleged, and therefore averred, that Defendant continually failed to meet the minimum staffing requirements at other times as well; and not just when the Pennsylvania Department of Health conducted investigations. 57. Defendant continually failed to provide medically-related social services to maintain the highest practicable physical, mental, and psycho-social well-being of Decedent. 58. Medicaid is ajoint state and federal funded program established under Title XIX of the Social Security Act, and codified at 42 V.S.C. ~ 1396, et. seq., and is aimed at providing assistance to individuals who qualify based on financial need and medical need. 59. The Health Care Financing Administration is the federal agency which administers the Medicaid program. 60. Defendant accepted Medicaid payments for it residents, thereby subjecting itself to the federal and state laws, regulations, and guidelines that pertain to the Medicaid program. 61. The Nursing Home Refonn Act sets strict standards for nursing facilities that accept Medicaid funds, 42 V.S.C. ~ 1395r. 62. The relevant regulations, 42 C.F.R. ~~ 483.5 - 483.75, provide that residents must be " "~ .--'.'~, ',~ ,~ '~ '~__U,', ![~~~ treated as individuals, not made to conform to a facility's schedule for the sake of convenience. 63. Included among these is the Resident's Bill of Rights, which provides, in part, that a resident has the right to be free from physical and/or mental abuse. 64. The Resident's Bill of Rights also provides that a resident has the right to receive services with reasonable accommodation of individual needs and performance. 65. In drafting the Resident's Bill of Rights, the legislature did not intend for the psychological status of a resident to be utilized as an excuse not to provide adequate care and treatment. 66. Decedent's sometimes belligerent and combative attitude and/or disposition was a direct result of the care and treatment she was receiving from Defendant's facility. 67. Defendant had a duty to work with Decedent to improve her psychological well- being, rather than using it as a shield against providing adequate care. 68. Decedent was subsequently moved by her family out of Defendant's facility and into another long tenn care facility. 69. Once in the new facility, Decedent's psychological well-being greatly improved due to the care she received. 70. Once in the new facility, Decedent was no longer confused, combative, or belligerent. 71. The Nursing Home Reform Act also requires facilities to care for their residents in such a manner and in such an environment as will promote the maintenance and/or enhancement of the quality of life of each resident. 72. The Nursing Home Reform Act also requires facilities to provide services to attain ,~~ , '. "" ;," ~~ If, or maintain the highest practicable physical, mental, and psycho-social well-being of each and every resident. 73. Under this requirement, there are requirements for competency standards and staffing requirements for nurses and nurse's aides. COUNT I. NEGLIGENCE 74. Paragraphs I through 73 are hereby incorporated by reference as though more fully set forth herein. 75. Defendant had a duty to provide proper care, maintenance, nutrition, and support to Decedent in accordance with state and federal laws, regulations and guidelines, as more fully set forth herein. 76. Defendant negligently failed to provide adequate care, maintenance, nutrition, and support to Decedent during her stay in their facility, in accordance with state and federal laws, regulations and guidelines, as more fully set forth above. 77. Defendant had a duty to provide proper staffing sufficient to care for its residents. 78. Defendant negligently failed to provide the proper staffing sufficient to care for its residents. 79. Defendant had a duty to prevent falls and injuries to Decedent. 80. Defendant negligently failed to prevent falls and injuries to Decedent. 81. Defendant had a duty to provide a level of care that would diminish the possibility of urinary tract infections in Decedent. 82. Defendant negligently failed to provide a level of care that would diminish the ~ ,'c,' '~,,' possibility of urinary tract infections in Decedent. 83. Defendant had a duty to administer physician-ordered medications, even over Decedents "refusals." 84. Defendant negligently failed to administer physician-ordered medications to Decedent. 85. Defendant had a duty to notify the physician that Decedent was not taking her medications. 86. Defendant negligently failed to notify the physician that Decedent was not taking her medications. 87. As a result of Defendant' s negligence, Decedent suffered numerous physical, mental and psycho-social injuries, as more fully set forth above. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff s favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT II. VICARIOUS LIABILITY OF DEFENDANT FOR THE NEGLIGENT ACTS OF ITS MEDICAL STAFF AND EMPLOYEES 88. Paragraphs 1 through 87 are hereby incorporated by reference as though more fully set forth herein. 89. At all times relevant hereto, the medical staff and the employees of Defendant were the agents, ostensible agents and/or agents by estoppel ofthe Defendant. 90. At all times relevant hereto, the medical staff and employees of Defendant were .."",--~ ,'", c ,- -~, '", ---'k! acting within the scope of their employment and/or agency with the Defendant, with the pennission and consent of the Defendant, subject to the control of the Defendant, and in furtherance of the Defendant's interests. 91. Defendant is vicariously liable for the damages caused by the negligent actions and conduct of the medical staff and employees as more particularly described herein. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff's favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT m, VIOLATION OF UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 73 P.S. &201-1 et sea. 92. Paragraphs I through 91 are hereby incorporated by reference as though more fully set forth herein. 93. Defendant engaged in fraud, false advertising, and misrepresentation in its promotional materials and literature supplied to Plaintiffs, in that Defendant did not provide the levels and quality of care promised, as more fully set forth above. 94. Defendant entered into an admission agreement with Decedent and/or her family wherein Defendant promised to provide certain minimal levels of care and quality of life. 95. Defendant engaged in fraud, false advertising, and misrepresentation by failing to fulfill its duties under the admission agreement executed by Defendant and Decedent J" ~ ~ " ,,~ .W" ~":,;,- ,'>1 and/or her family, as more fully set forth above. 96. As a result, Decedent suffered numerous injuries, both physical and mental, as more fully outlined herein. 97. Defendant's conduct constitutes "unfair methods of competition" and/or "unfair or deceptive acts or practices" giving rise to a private action under the Unfair Trade Practices and Consumer Protection Law, 73 P.S. 9201-1 et seq. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiffs favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest, treble damages as provided for in the statute and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT IV. BREACH OF CONTRACT 98. Paragraphs 1 through 97 are hereby incorporated by reference as though more fully set forth herein. 99. Decedent and/or decedent's personal representative signed various documents, including an admission agreement wherein Defendant promised to provide certain minimal levels of care and quality oflife. 100. Defendant failed to provide sufficient care and quality of life as promised as more fully outlined herein. 101. Defendant provided Decedent and/or Decedent's personal representative, and the public at large, with various promotional materials which promised that Defendant ,,'" ~~". --~" L ,~.'", ' "' ~,' would provide Decedent with a certain level of care. 102. Defendant failed to provide sufficient care as promised, as more fully outlined herein. 103. Defendant was required to provide a "care plan" for each of its residents in which Defendant stated it would comply with state and federal laws and regulations. 104. Defendant failed to fully implement and/or perform its obligations set forth in the "care plan." 105. As a result of Defendant's breach of the admission agreement, "care plan" and other promotional materials, Decedent suffered numerous injuries, both physical and mental, as more fully outlined herein. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff's favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT V. VIOLATION OF THIRD PARTY BENEFICIARY RIGHTS UNDER CONTRACT BETWEEN DEFENDANT AND COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF HEALTH 106. Paragraphs 1 through 105 are hereby incorporated by reference as though more fully set forth herein. 107. Defendant applied to the Pennsylvania Department of Health to operate a skilled andlor intennediate care facility in accordance with the Health Care Facilities Act, 35 P.S. ~~ 448.101 - 448.904. 108. Defendant was granted a license, along with subsequent renewals of that license, to ~ "J .~ --"--~"",,",, .,"" operate the facility in exchange for the promise to conduct said facility in accordance with the laws of the Commonwealth of Pennsylvania and with the rules and regulations of the Department of Health. 109. By signing the contract and license agreement, Defendant had a duty to operate its facility in accordance with the laws ofthe Commonwealth of Pennsylvania and with the rules and regulations of the Department of Health. 110. Defendant breached this contract and license agreement by failing to operate the facility in accordance with the laws of the Commonwealth of Pennsylvania and with the rules and regulations of the Department of Health, when it violated numerous regulations as set forth in 28 Pa. Code 9 201.1 et. seq., and numerous provisions of the Health Care Facilities Act, 35 P.S. 99448.101 - 448.904, as more fully set forth herein. 111. The purpose of the contract and license agreement between the Department of Health and Defendant is to ensure a minimum level of care and well-being for the residents of the facility. 112. Decedent, as a resident of the Defendant's facility, was an intended third party beneficiary of the contract and license agreement between the Department of Health and Defendant. 113. As a result of Defendant's breach of its contract and license agreement with the Department of Health, Decedent suffered numerous injuries, both physical and mental, as more fully outlined above. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in ."" ~ ,- " '. '"" ' " " . ~' ~ """');:1 Plaintiff's favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney fees, costs of suit, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. Date: -JUI\i It ;l&V,/ , BY: Cory J. nook, squire Attorney J.D. 85734 lOB Mumma Road, Suite 100 Lemoyne, P A 17043 (717)731-9600 (Attorneys for Plaintiff) ",,-' ~ " "h"'- '<, .;:i VERIFICA nON The undersigned hereby verifies that the facts averred in the foregoing document are true and correct to the best of his knowledge, information, and belief. This verification is made subject to the penalties of 18 Pa. C.S.A. ~ 4904 relating to unsworn falsification to authorities. Date: t:,J'I)0'1 { r STINTZCUM, JR. tor of the Estate ofEVEL YN M. TINTZCUM - ^' I ~ '..' ' ..'11 CERTIFICATE OF SERVICE I, Cory J. Snook, of the law firm of Gates, Halbruner & Hatch, P.C., hereby certifY that I served a true and correct copy of the foregoing Complaint on this date by First Class mail addressed to the following: Marc A. Moyer, Esq. Kelly, Hoffinan & Goduto, LLP Commerce Towers, 10th Floor 300 North Second Street P.o. Box 62003 Harrisburg, PA 17106-2003 GATES, HALBRUNER & HATCH, P.C. BY ~~s;t Cory J. ook, quire 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717)731-9600 (Attorneys for Plaintiff) Date: Ju Wl if, .;Jd?JjI "' 'o~"... 1"~~Ji.~2Wl\iIlil'llll~~i~",,~1flli1l ^", " ~. w*'i' ... 1IiI~-~lUillillIIIlI~~illllJ.i:li!i;~IIIJl~ -~~-~~ .- ~, ~ .' 0 ,..., 0 C:::::l ,;.; = ..., -"'" .,.;.,. ~:i!J ,. ;:-:n L. ?~:J;~ c:::: :;;e ,. C;~, ~;?: -om :lJCJ ..<.-,--: .s::- Q(:, ~~ .......-., ,., c:, :JJ -~ c=() ~ .".0 ~~c: ':? Om Z -., ::t->- =2 1'>,) :J:J U1 -< to .~ '<> "' RALPH STINTZCUM, JR., Executor of the Estate of EVEL YN M. STINTZCUM, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this _ day of , 2005, upon consideration of Defendant's Preliminary Objections to Plaintiffs Complaint, and Plaintiffs Reply thereto, it is hereby ORDERED and DECREED that the Defendant's Preliminary Objections are SUSTAINED, and that Plaintiffs claim under Pennsylvania's Unfair Trade Practices and Consumer Protection Law, including Paragraphs 93 through 96 are hereby stricken from Plaintiffs Complaint. It is further ORDERED and DECREED that Counts IV and V of Plaintiffs' Complaint, including Paragraphs 99-102,104, 105, 109-111 and 113 are hereby stricken from Plaintiffs Complaint. It is further ORDERED and DECREED that Paragraphs 8, 9, 13, 18, 25, 27, 31-34, 36, 39,46, 50, 54, 56, 57, 73, 75-78, 80 and 87 are stricken from the Complaint. BY THE COURT: 1. '-'-' ." RALPH STINTZCUM, JR., Executor ofthe Estate ofEVEL YN M. STINTZCUM, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT WEST SHORE HEALTH AND REHABILITATION CENTER TO PLAINTIFF'S COMPLAINT I, PROCEDURAL mSTORY 1. This nursing home liability action arises out of averments of professional negligence against Defendant West Shore Health and Rehabilitation Center ("West Shore"I"Facility") arising out of the nursing care provided to Plaintiffs decedent Evelyn M. Stintzcum. Complaint, ~5. 2. Plaintiff's decedent was admitted to West Shore on October 8,1997, following rehabilitation at the Renova Center (HealthSouth Rehabilitation of Mechanicsburg) for a broken hip she sustained from a fall. Complaint, ~5. 3. Ms. Stintzcum passed away on March 8, 2001, while a resident of another facility. 4. This action was initiated by Ralph Stintzcum, Jr., as Executor of the Estate of Evelyn M. Stintzcum, by filing a Writ of Summons against West Shore on June 15,2000. 5. Four (4) years later, a five-count Complaint was filed, asserting claims for negligence (Counts I and II), violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law (Count III) and breach of contract (Counts IV and V). 6. On August 16, 2004, a Judgment of Non Pros was entered in favor of West Shore and against Plaintifffor failure to file a Certificate of Merit. ~,,~, 7. On October 14, 2004, Plaintiff filed a Petition for Relief from a Judgment of Non Pros. 8. On January 28, 2005, Plaintiffs Petition for Relief from a Judgment of Non Pros was granted, and the entry of Non Pros was stricken. n. STATEMENT OF FACTS 9. Plaintiffs Complaint alleges, inter alia, that Ms. Stintzcum first became a resident of West Shore on or about October 8, 1997. Complaint, '115. 10. According to the Complaint, Ms. Stintzcum experienced bumps, bruises, cuts, swelling, and other injuries at various times throughout her residency at the Facility. Complaint, '11'1110,21,25 and 40. 11. Based upon each of the occurrences alleged in the Complaint, Plaintiff asserts that West Shore is both directly liable (Count I) and vicariously liable (Count II) for the injuries and damages Ms. Stintzcum allegedly experienced while a resident at the Facility. Complaint, '11'1187, 91, 105 and 113. 12. In addition to asserting the foregoing negligence claims against West Shore, Plaintiff also asserts a claim for breach of contract (Count IV) and a claim for breach of third party contract (Count V) against West Shore based solely upon the factual averments of negligence forming the basis for Counts I and II of the Complaint. 13. Plaintiff also alleges in Count III of the Complaint that West Shore violated Pennsylvania's Unfair Trade Practices and Consumer Protection Law. Complaint, '1193. 14. West Shore has filed Preliminary Objections to Plaintiffs Complaint on the ground that the facts alleged in the Complaint fail to support a legally viable claim under Pennsylvania's Unfair Trade Practices and Consumer Protection Law. 2 <', , 15. West Shore has also filed Preliminary Objections to the Complaint on the ground that Plaintiffs contract based claims in Counts IV and V are impermissibly duplicative of the claims for professional negligence asserted in Counts I and II of the Complaint, and on the ground that Plaintiff has failed to set forth legally viable contract-based claims as a matter of law. 16. West Shore has also filed Preliminary Objections on the ground that Plaintiffs Complaint impermissibly includes impertinent matters, and on the ground that the factual averments set forth in the Complaint are impermissibly vague and, therefore, fail to appraise West Shore ofthe particular facts forming the basis for Plaintiff's claims. III. DEMURRER-FAILURE TO STATE A CLAIM UNDER PENNSYLVANIA'S UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW. 17. Count Three of Plaintiffs Complaint asserts a claim based upon West Shore's purported violation of unspecified portions of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("CPL"), 73 P.S. g201-1 et. seq. 18. The CPL is designed to prohibit unfair methods of competition and unfair or deceptive acts or practices in the conduct of "trade or commerce." 73 P.S. g 201-3. I 19. Pennsylvania courts interpreting and enforcing the CPL have routinely held that the CPL is inapplicable to providers of medical and/or healthcare services, like West Shore. Gatten v. Merzi, 397 Pa.Super. 148,579 A.2d 974 (1990); Foflygen v. Zemel, 420 Pa.Super. 18,615 A.2d 1345 (1992). I The Act defines "trade or commerce" as "the advertising, offering for sale, sale or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situate, and includes any trade or commerce directly or indirectly affecting the people of this Conunonwealth." 73 P,S. ~ 201-2(3). 3 ,. '4;,}' 20. In this case, each of Plaintiffs alleged injuries arises solely out ofthe professional nursing services provided to Ms. Stintzcum at the West Shore Facility. See Complaint, ,-r,-r6-73. 21. Because the CPL does not permit a private cause of action to be brought against healthcare facilities, like West Shore, based upon the furnishment of professional nursing services, Plaintiffs Complaint fails to set forth a viable cause of action under the CPL as a matter oflaw. 22. Assuming arguendo, the long term nursing care provided to Plaintiffs decedent can be construed as "trade or commerce" for the purpose of invoking application of the CPL, Plaintiff s allegations nevertheless fail to state a claim under the CPL. 23. To state a valid cause of action under the CPL, a plaintiff must allege both the existence of one or more of the specifically enumerated "unfair or deceptive practices" set forth by 73 P.S. 9201-2(4)(i)-(xxi), and the facts upon which such allegations are based. 73 P.S. 9201- 3; Romeo v. Pittsburgh Assocs., 787 A.2d 1027, 1033(Pa. Super. 2001). 24. In addition, a plaintiff must allege facts showing that he justifiably relied on the defendant's wrongful conduct or representations, and that he suffered harm as a result of such reliance. Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425,438 (2004). 25. Plaintiffs Complaint fails to identify with particularity the specific provisions ofthe CPL West Shore allegedly violated, or the facts upon which such violations are based. 26. Plaintiffs Complaint similarly fails to aver the existence of decedent's justifiable reliance upon West Shore's alleged wrongful conduct or how such reliance resulted in injuries to the decedent. 27. To the extent Plaintiffs claim under the CPL is based upon fraud and/or the catchall provision 73 P.S. 9201.2(xxi), Plaintiffs Complaint also fails to set forth such allegations with the specificity required by Pennsylvania law. 4 ,""" ' . .' -'.:......~ " ,~~-, 28. In order to set forth a prima facie case under the catchall provision ofthe CPL, a plaintiff must allege the elements of common law fraud. Booze v. Allstate Ins. Co., 750 A.2d 877,879 (Pa. Super. 2000). 29. Specifically, Plaintiff must set forth facts alleging the existence of: (1) a material misrepresentation; (2) made falsely, with knowledge of its falsity or with reckless disregard as to its truth or falsity; (3) with intent of misleading the other; (4) justifiable reliance on the misrepresentation; and (5) a resultant injury. See, e.g., Skurnowicz v. Lucci, 798 A.2d 788 (Pa. Super. 2002); Sewakv. Lockhart, 699 A.2d 755 (Pa. Super. 1997). 30. Moreover, Pennsylvania law requires Plaintiff to allege each of the foregoing elements of fraud with particularity. See, e.g., Pa. R.Civ.P. 10I9(b). 31. In this case, Plaintiff merely avers: "Defendant engaged in fraud, false advertising, and misrepresentation. . . in that Defendant did not provide the levels and quality of care promised. . . ." and "Defendant engaged in fraud, false advertising, and misrepresentation by failing to fulfill its duties under the admission agreement. . .". Complaint, ~~ 93,95. 32. On its face, Plaintiff's Complaint is completely fails to aver the elements of common law fraud required under the CPL. 33. Further, Plaintiffs broad-brushed general averments fail to set forth a claim for fraud with the particularity required under Pennsylvania law. WHEREFORE, Defendant West Shore Health & Rehabilitation Center respectfully requests that its Preliminary Objections be sustained, and that Plaintiffs claim under Pennsylvania's Unfair Trade Practices and Consumer Protection Law be stricken from the Complaint. 5 - . ,~, ~,', "",: IV, DEMURRER - FAILURE TO STATE A CLAIM FOR BREACH OF CONTRACT 34. Through Count IV of the Complaint, Plaintiff asserts a claim for breach of contract based on West Shore's alleged failure to provide "sufficient care and quality oflife", in accordance with the decedent's "admission agreement," "care plan" and nondescript "promotional materials". 35. Similarly, Count V of Plaintiffs Complaint alleges damages based upon decedent's purported status as a third party beneficiary to a nondescript "contract" and a "licensing agreement" allegedly entered into between the Facility and the Pennsylvania Department of Health. 36. A tort action arises from the breach of a duty imposed by law as a matter of social policy, while a contract action arises from the breach of a duty imposed by a mutual agreement between particular individuals. Bash v. Bell Telephone Co. of Pennsylvania, 411 Pa.super. 347, 356,601 A.2d 825,829 (1992) (citations omitted). 37. A claim for breach of contract, based on a professional service provider's duty to act with care, will be stricken from a complaint because the duty does not arise from a contract, but from a duty imposed by law. Red Rose Motors, Inc. v. Boyer & Ritter, 66 Pa. D. & C. 4th 73, 81-82 (C.P. Lancaster 2004). 38. In order for Plaintiff to maintain his contract-based claims, Pennsylvania law requires that the wrong ascribed to West Shore arise from a duty owed by contract, as opposed to the generally accepted social duties imposed by tort law. 39. Nevertheless, Plaintiffs claims in this case are based solelv upon West Shore's alleged failure to comply with certain duties implicit in the care and treatment of Ms. Stintzcum while a resident at the Facility. 6 ~~ ,. !k; 40. Because the "contracts" cited in the Complaint are merely collateral to Plaintiffs claims for negligence, and because the alleged failure to provide proper nursing care forms the very predicate for those claims, Plaintiff is precluded from asserting contract-based causes of action based upon the professional nursing care provided to the decedent. 41. Assuming Plaintiff is permitted to assert contract-based claims upon the very allegations of improper nursing care giving rise to his negligence-based claims, Plaintiffs Complaint nevertheless fails to set forth viable claims for breach of contract in Counts N and V as a matter oflaw. 42. To the extent the "contracts" allegedly breached by West Shore are discemable from Plaintiff s Complaint, the contracts alleged in Count IV apparently comprise of an "admission agreement", "various" other unspecified documents, a "care plan", and "various promotions materials". See, Complaint ~~99, 101, 103-105. 43. Similarly, Count V of Plaintiffs Complaint is apparently based upon West Shore's purported violation of a nondescript "contract" and "license agreement". 44. Plaintiffs Complaint fails to attach the aforementioned "contracts" as required by Pa. R.Civ.P. 1019(i). 45. To state a prima facie claim for breach of contract, a plaintiff must plead: 1) the existence of a contract, including its essential terms; 2) a breach of a duty imposed by the contract; and 3) resultant damage. Presbyterian Medical Center v. Budd, 832 A.2d 1066, 1070 (Pa. Super. 2003). 46. In this case, Counts N and V of Plaintiffs Complaint fail to aver the essential terms of the "contracts", the terms West Shore allegedly breached, how West Shore allegedly breached the contractual terms, and what damages, if any, Plaintiffs decedent incurred as a result of such breaches. 7 . r.;~ WHEREFORE, Defendant West Shore Health and Rehabilitation Center respectfully requests that its Preliminary Objections be sustained and that Counts IV and V of Plaintiffs' Complaint be dismissed. V. DEMURRER - MOTION TO STRIKE IMPERTINENT MATTERS 47. Through Paragraphs 33 and 34, Plaintiff includes various immaterial and inappropriate averments regarding an investigation allegedly performed by the Cumberland County Ombudsman. See Complaint, ~~33, 34. 48. Pennsylvania Rule of Civil Procedure 1028 (a) (2) authorizes Preliminary Objections for the purpose of eliminating impertinent matters from a complaint. Pa. R. Civ. P. 1029 (a) (2). 49. Allegations are considered to be impertinent, and thus subject to being stricken from a Complaint, when they are immaterial and inappropriate to the proof of the cause of action. Common Cause/Pennsylvania v. Com., 710 A.2d 108 (Pa. Cmwlth. 1998); Pa. R.Civ.P. 1028 (a)(2). 50. Plaintiffs averments regarding an investigation allegedly performed by the Cumberland County Ombudsman provide no facts upon which Plaintiffs professional negligence claims are based. 51. Because Plaintiff has failed to plead any facts relevant to his professional negligence claim against the Facility with respect to the alleged findings of the Cumberland County Ombudsman, the inclusion of this material is immaterial to Plaintiffs cause of action and, therefore, should be stricken. 8 ~ , . ^.' - "~, ' , " ,'~, WHEREFORE, Defendant West Shore Health and Rehabilitation Center requests that the Court sustain its Preliminary Objections and Strike Paragraphs 33 and 34 from Plaintiffs Complaint. VI. INSUFFICIENT SPECIFICITY OF THE PLEADINGS AND FAILURE TO CONFORM TO RULE OF COURT 52. Preliminary objections may be properly based upon "the failure of a pleading to conform to law or rule of court...". Pa. R.Civ.P. 1028(a)(2). One such rule to which a pleading must conform is Pa.R.Civ.P. 1019(a) which requires a plaintiff to plead all material facts upon which a cause of action is based in a concise and summary form. Pa.R.Civ.P. 10 I 9(a). 53. Similarly, preliminary objections may also be based upon the insufficient specificity of a pleading pursuant to Pa.R.Civ.P. 1028(a)(3). 54. To comport with the Pennsylvania Rules of Civil Procedure and Pennsylvania law, a complaint must sufficiently define issues and give notice to a defendant of what the plaintiff intends to prove at trial so that the defendant may, in turn, prepare a defense by meeting such proof with his own evidence. Laursen v. GeneralHospital of Monroe County, 259 Pa. Super. 150, 160,393 A.2d 761,766 (1978), rev 'd. on other grounds, 494 Pa. 238,431 A.2d 237 (1981); Baker v. Rangos, 229 Pa. Super. 333, 350, 324 A.2d 498,506 (1974). 55. In addition to failing to properly apprise an opposing party of that which he will be called upon to defend against at trial, generalized pleadings can also serve to thwart the statute of limitations by permitting a plaintiff to assert new causes of action or legal theories at any juncture in the litigation process. See e.g., Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). 56. In light of Connor, Pennsylvania law is clear that whenever a defendant is faced with non-specific allegations of negligence, the defendant must preliminarily object to the 9 . ~ allegations or risk the plaintiff/ater introducing new theories of/iability "amplifYing" the nonspecific averments set forth in the original complaint. 57. The allegations set forth in Paragraphs 8, 9, 13, 18,25,27,31,32,36,39,46,50, 54,56,57,73,75-78,80,87,93-96,99-102, 104, 105, 109-111 and 113 of Plaintiff's Complaint fail to apprise West Shore of the precise allegations being leveled against it as required by Pa. R. Civ. P. 1019. Similarly, the allegations fail to rise to the level of specificity contemplated by Pa. R. Civ. P. 1028(a)(3). 58. Specifically, Paragraphs 8, 9,13,18,25,27,31,32,36,39,46,54,56,57,73, 75-78,80,87,93-96,100-102,104,105,109-111 and 113 constitute conc1usory statements unsupported by any averments of fact and, therefore, are impermissibly vague. 59. Similarly, the averments set forth in Paragraphs 50 and 99 of Plaintiff's Complaint impermissibly contain the qualifYing language "including" when describing the conduct forming the basis for Plaintiff's Complaint. 60. As a result, Paragraphs 50 and 99 fail to apprise West Shore of the precise nature of the Plaintiff's claim but, instead, merely encompass an example of some, but not all, of the facts and/or allegations potentially at issue in this case. 61. While pleadings need not strictly adhere to formalistic rules, Pennsylvania law continues to require a complaint to fully apprise a defendant of the full nature and extent of the plaintiff's claims. Cicero v. Cominsky, 25 D.&C. 4th 422 (C.P. Luzeme 1995) quoting Laursen v. Gen. Hasp. of Monroe County, 393 A.2d 761 (Pa. Super. 1978). 62. In this case, Plaintiff's use of the phrase "including" fails to provide West Shore with notice of the precise claim being leveled against it. 63. Instead, Paragraphs 50 and 99 impermissibly permits Plaintiff to later present other, currently unmentioned averments in support of his claim against West Shore. 10 t"_ ,"" ,-TI, ,-., , 1.~ " , . 64. As properly recognized under Pemisylvania law, pleadings serve the function of defining issues and giving notice to the opposing party of what the pleader intends to prove at trial so the opposition may, in turn, prepare to meet such proof with its own evidence. Cicero, 25 D. &C.4th at 424. 65. In this case, the aforementioned averments set forth in Plaintiffs Complaint fail to provide West Shore with sufficient notice of all of the facts they will be required to address at trial. WHEREFORE, for the foregoing reasons, Defendant respectfully request that its Preliminary Objection be sustained, and that Paragraphs 8, 9, 13, 18,25,27,31,32,36,39,46, 50,54,56,57,73,75-78,80,87,93-96,99-102,104, lOS, 109-111 and 113 be stricken from the Complaint or, alternatively, that Plaintiff be required to amend the Complaint so as to articulate the facts upon which the Paragraphs are based. Respectfully submitted: ffinan, Esquire Attorney I . No. 31782 Marc A. oyer, Esquire Attorney No. 76434 Lee S. Cohen, Esquire I.D. No. 89278 KELLY, HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, lOth Floor Post Office Box 62003 Harrisburg, P A 17106-2003 (717) 920-8100 Dated: February &, 2005 Counsel for Defendant West Shore Health and Rehabilitation Center 11 .',J ~~ '-"- . '. . ~'", ; . , . CERTIFICATE OF SERVICE On this 17th day of February, 2005, I, Kristine Hendrix, a legal secretary with the law firm of Kelly, Hoffman & Goduto LLP, hereby certifY that I have, this day, served a true and correct copy of the foregoing PRELIMINARY OBJECTIONS OF DEFENDANT WEST SHORE HEALTH AND REHABILITATION CENTER TO PLAINTIFF'S COMPLAINT and PROPOSED ORDER upon the person(s) and at the addressees) below named by United States First Class Mail, postage prepaid, in Harrisburg, P A: Cory J. Snook, Esquire Gates, Halbruner & Hatch, P.C. 1013 Mumma Road Suite 100 Lemoyne, PA 17043 Counsel for Plaintiff 'f:;R IL~AA'/J / . stine Hendlix r ~~,",lill"",,*f;Mi1!!lI!~,'~M1iWti:i,I"~&.~W'-_~liliiiciM~!lI!!W:ill:~!.cti(J1 ~'If"..b..~-",.;;,; ~\tY -. ..' ~~ _ _i~-. .,'" ~ ~"'" .1 II 11 I, 'I I I 0 ", 0 = C:-. f,":::;} -n en ...., ._.j M I-n co. n1r_- "'TJrn -' :rj'':':; Sh~~ ~]Z3 co ~~5rll :p: (::'I ':~J .< - J',\' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION EVELYN M. STINTZCUM, by DORIS ARENA, of 127 Bosler Avenue, Lemoyne, PA, 17043, her Attorney-in-Fact, Plaintiff File No. a>. 3 ~3 7' tfuJ CIVIL ACTION - LAW vs. WEST SHORE HEALTH AND REHABILITATION CENTER, a corporation registered in the Commonwealth of Pennsylvania, of 770 Poplar Church Road, Camp Hill, PA, 17011, Defendant PRAECIPE FOR SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in negligence in the above case. iWrit of Summons shall be issued and forwarded to ~ Date:~ 14 f d4) 19-O Susan Kay Candie 10, Esquire Gates & Associates, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 Supreme Court ID Number 64998 ***,** SUMMONS IN.:CIVIL ACTION TO: WEST SHORE HEALTH AND REHABILITATION CENTER, 770 Poplar Church Road, Camp Hill, PA 17011. . . YOU ARE NOTIFIED THATTHEABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. "",' /5'/f1~ :e~ ' Prothono a~lerk, Civil Division Date: ::;l/MP' I~ ~d by ~~/l!~,~ Deputy .~~~'~'W"""'''~=liiIi>i<8''-~hB~lJii;@'ii~~I!l;il'!wj~~$~ill!ti~~,-,ji~' - ~~L~- '~~ ....., C'_ !i ~ ~ GJ,.-; r- } ~ ' ~ ~~dg3 ~ ' I ;-v-,:~jE J - - ~ .,- ^'."' - """ ,~- . '-' ',' - - <~" '- ~,- ". -, .. ~- illllYi".'."J... M'-, ~.~-'~ (") C <- "0(;' rill"': Z:ic' <c-- en _~~. ::::;;.::::- !-c) "0.' - $CJ ~O :t>C ;> ~ I~ -J:"- .D C;::) C-... c::: ..;..... -'- '71 (-:- Vi :.;)I''f"I gi~ d.j; :;::! 5i -< - " ~""'~ -".... ;:- .. "'I~:L:::I III :1 I .1 I I 'I II I C'\ "'1 e " , - -~ ""d:,;. SHERIFF'S RETURN - REGULAR CASE NO: 2000-03639 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND STINTZCUM EVELYN M VS WEST SHORE HEALTH AND REHAB DAWN L. KELL , Sheriff or Deputy Sheriff of Cumberland County, Pensylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon WEST SHORE HEALTH & REHAB CENTER the DEFENDANT , at 1203:00 HOURS, on the 19th day of June 2000 at 770 POPLAR CHURCH ROAD CAMP HILL, PA 17011 by handing to JASON HERSHEY, OFFICE MANAGER a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 9.30 .00 10.00 .00 37.30 R. Thomas cfJ?~-t:~ l~ne 06/27/2000 GATES & ASSOC. Sworn and Subscribed to before By: 'DO-l.tm rr. IGll Deputy Sheriff me this 1 tB day of CJ~ ~ A.D. Qf a !h,P':"', ~ P 0 honotary I , ~ ..L '0- It_' FEB-27.01 TUE 10:34 GATES 8. ASSOCIATES P.C. FAA NO. 7319627 P.02 ~ EVELYN M. STINTZCllM, by DORIS ARENA, her Attomey-in-Farl. Plaintift' : IN THE COVRT OF COMMON PLEAS CUMBERLAND COllNTV, PENNSYLVANIA VI. WEST SRORE HEALTH AND REHABILITATION CENTER, Defendant NO. 00-3639 CIVil.. ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please withdraw my appearance as attorney for PlaintilT Evelyn M. Stint:zcum, by Doris Arena, her Attorney-in-Fact, in the above-captioned action. Dated: _)l')~/D ( -~ Susan Kay Cand' . squire TOmE PROTHONOTARY: Please enter our appearance as attorneys for Plaintiff Evelyn M Stinl?cum, by Doris Arena, her Attorney-in-Fact, in the above-captioned action. GATES & ASSOCIATES, PC BYJ1p&:# Supreme Court J.D. No. 66737 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 BY: Cory J. Supre Co to. No. 85734 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731.9600 Dare: ~ p.:;.h-L- Date_8P7/or ( . , , '~,'" j" CERTIFICATE OF SERVICE I, Cory J. Snook, of the law firm of Gates & Associates, P. c., hereby certifY that I served a true and correct copy of the foregoing document on this date by First Class mail to the following: Executive Director West Shore Health and Rehabilitation Center 770 Poplar Church Road Camp Hill, PA 1701 J GATES & ASSOCIATES, P.c. BY: Cory J. n , Esquire Supre e 'ourt 1.0. No. 85734 Ion Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintifl) Dated: Febmary,:2.7 , 2001 "" , ~ '-. 01, -. ""'.""''illI1 EVELYN M. STINTZCUM, by DORIS ARENA, her Attorney-in-Fact, Plaintiff VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 00-3639 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUGGESTION OF DEATH FOR THE PURPOSE OF SUBSTITUTING PLAINTIFF AND NOW, comes Ralph Stintzcum, Jr., by and through his attorneys, Gates & Associates, P.C., and respectfully suggests to the Court as follows: 1. Doris Arena, in her capacity as Attorney-in-Fact for Evelyn M. Stintzcum, is the Plaintiff of record in this action. 2. Doris Arena filed a Writ ofSurnmons on June 14,2000. 3. Evelyn M. Stintzcum died on March 8, 2001. A copy of her death certificate is attached hereto as Exhibit "P<' and is incorporated herein by reference. 4. Ralph Stintzcum, Jf. is an adult male now residing at P.O. Box 862, Manchester, Washington 98353. 7. Ralph Stintzcum, Jr. is sui juris. 8. Ralph Stintzcum, Jr. is the son of Evelyn M. Stintzcum. 9. On March 13, 2001, the Cumberland County Register of Wills granted letters testamentary to Ralph Stintzcum, Jr. as Executor of the estate of Evelyn M. Stintzcum. A copy of the "Short Certificate - Letters Testamentary" is attached hereto as Exhibit "B" and is .., ,-~ '---~%. incorporated herein by reference. WHEREFORE, in light of the foregoing, Ralph Stintzcum, Ir. respectfully requests that he be substituted as Plaintiff in this action and that the action proceed in the name of "Ralph Stintzcum, Jr., Executor of the Estate of Evelyn M. Stintzcum, deceased." GATES & ASSOCIATES, P.C. Dated: r'/tlMui .)..8'"", 2001 BY: Cory J. S 0 Supreme Co I.D. No. 85734 Mark E. Halbruner, Esquire Supreme Court I.D. No. 66737 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiff) "" "", oiikr, VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing document are true and correct to the best of his knowledge, information, and belief. This verification is made subject to the penalties of 18 Pa. C. S.A. 9 4904 relating to unsworn falsification to authorities. Date: '5/;17/01 RALP STINTZCUM ., xecutor of the Estate ofEVEL YN M. STINTZCUM ~ is to certify that the information here given is correc:ly copied fr~~ an O~~ginal certificate ofdeat~ dul~ ~led wir\1 me as Local Registrar. The 'original certificate will be forwa.rded to the Srate Vital Records Office for permanent fihng. WARNING: It is illegal to duplicate this copy by photostat or photograph. No. /),.,,?fi--';I RegLStrar Fee for mi, certificate, $2.00 ;.. p 7285505 '?-/.?J - L? / 'Date H10$.1<f3..... 2187 COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF HEALTH. VITAL RECORDS CERTIFICATE OF DEATH """..., .. - ....... DEHl'SUSUALOCCUMrXlN ~~:~'::==r ., homemaker , ow h me IDIlCl!DENf".MAlUNGAOClAES8.....~-.l/tfICOdIII 624 S. 29th Street HarriSburg, PA 17111 .. 4880 ORIEMIIEAfII......o.,...., I I i .lfareb '8 2001 -.. DENt'lf"".~L... I. Evel -...- " "" . COUfdYOFOI!AIH 93 . H. Stintzeum UtIDli:lItYfAAI \INllI!RIDM .........: Da,. __......... . . , . , . ClIIBlRIH iIIfmIPUll:I~"W_ ......._....., SloIeorFalopClullrlt 13, '07 Harrisburg, PA , ICoWEtltICIt........,qoe..__ '::.eo em. ~ . Cumberland Carlisle ....... .- ,..,.,Mlli\lM.W\dIJIoM; --~ widow -.............=::. . , MllDnIWlE'lFaI........... Norman Heckert - Dori rena _iii ~O ...~ .... D bin ,rd:J:"~:::lII HarrlsbufR MOlt8'IIIMIIIIFc.................... Ellie proensco ~ --~....~ 127 Bosler Avenue Lamo e PA 17043 ":':.. ..HIlilt_c.-;;,.~ WCRKIN.~"'ZlP~ paxtang Cemetery Harrisburg, PA . - - i 15 i - triek ! ,- '-- :.......... It ...... ~~... --:;. Ioh;c.-.c=:t .M'2.-~e{,~M . OW1DlQRASACtll'SlIl'UfffOEClfIc 0U!1D1OR ACC/NSEOl8CECI'Ii: ..0 - - - 'J9(' o CI _ [J __ [J c..w....-.- Q ... ...... ........- -......- ...... ...0 _0 u .. .. 0fI'1NJUlW._...................,..... _~s.r.t -- "IIl!DICAL-......II!A.CORONEflI ......ot.aarinallon.___..............,...........t:IICUINIl..lIII'tIIM........................UlIMCIII..... ~...___..IIUJIfftt.............._........................................................................... ........ ., SlOHArUIlE ANI) NUUUA I,N~'?'~ ... CillnftAlOlIl:lI...... ~....,.,.~~_~ONII..........~.......-..-dIafI_~... .............,~...___.....QIIMC......._..-....L.................................................... rna = I"CW"ANO~I'HYSlCIAII~DaI'l~or.-.........._al~ ............-..........---.................--.....-.....auIN(ef....-................................ .l -_ ~'I ~, ~ ,-,- ~"~,,; STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND SHORT CERTIFICATI I, MARY C. LEWIS Register for the Probate of Wills and Granti Letters of Administration &c. in and for _. County of CUMBERLAND do hereby certify LIla the 13th day of March J Two Thousand and One, Letters TESTAMENTARY estate of STINTZCUM EVELYN M {LA~~, ~~~~~, M~VVL~J in common form were granted said County, on the , late of CARLISLE by the Register BOROUGH in said county, deceased, to RALPH STINTZCUM JR {LA~~, ~~x~~, M~VVL~J and that same has not since been revoked. IN TESTIMONY WHEREOF, of said office at CARLISLE, A.D., Two Thousand and One. File No. 2001-00273 PA File No. 21-01-0273 Date of Death 3/08/2001 S.S. # 172-01-4880 I have hereunto set my hand and affixed the seal PENNSYLVANIA, this 16th day of March , /]-,/ot/ ref /LN/ .6)"",,/ /17.('./ A),L>//./ / .1" "./ I . . Register NOT VALID WITHOUT ORIGINAL SIGNATURE AND IMPRESSED SEAL "' ",- 11i~" CERTIFICATE OF SERVICE I, Cory 1. Snook, of the law firm of Gates & Associates, P. C., hereby certify that I served a true and correct copy of the foregoing document on this date by First Class mail to the following: Executive Director West Shore Health and Rehabilitation Center 770 Poplar Church Road Camp Hill, PA 17011 GATES & ASSOCIATES, P.C. .~ BY: Co . Sn k, Esquire Supreme ourt I.D. No. 85734 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiff) Dated: 1lA.J1.rci . c9X , 2001 - ~ ,",~--- '"~ ~-~--, ~.< , '=-~-"k'''>-;:''''_'' ,-.' ,', t . RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-3639 CNIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of Defendant West Shore Health and Rehabilitation Center. Weare authorized to accept service of all documents in this matter. Respectfully submitted, Arth~r~ Attorney J.D. No. 31782 Marc A. Moyer, Esquire Attorney No. 76434 KELLY, HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, 10th Floor Post Office Box 62003 Harrisburg, PA 17106-2003 (717) 920-8100 Dated: December 18, 2002 Counsel for Defendant West Shore Health and Rehabilitation Center ,-. I '~ - i-" .~--i"^-._. ",-, _~r _'_ ,_I, _,,_ ,_,,'"-', . , , ~i ,. .. CERTIFICATE OF SERVICE On this 18th day of December 2002, I, Pamela L. Russell, a legal secretary in the law firm of Kelly, Hoffinan & Goduto LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing Praecipe for Entry of Appearance upon the person(s) and at the address( es) below named by United State First Class Mail, postage prepaid, in Harrisburg, P A: Cory J. Snook, Esquire Gates, Halbruner & Hatch, P.C. 1013 Mumma Road Suite 100 Lemoyne, P A 17043 Counsel for Plaintiff ..," illiUliI"'''' . ..._< h ~i!!.iilifi ~ hi""~., l"~="-"""'-""~ c',_<.- - L~"_ -', .' -"iJioJ"<"'~'--- ~""'-' , . '" 0 C:~ 0 C t'....1 -n -~ C::J ,-, ~O'-_ -00::1 Pl fl1ri ~~ - 2::-{' ,"", ~Tl 2;,: r'-- ,~ CO a -~ -< ~ ~ ~~ (:) r-: c. "'- ,. :t'''''' -' ~.: =T1 ~2 :J;: '-=;.'<"S Oln --1 Z U1 )> :;J ::0 , 0 -< ~'" ~"='.M,': RALPH STINTZCUM, JR., Executor ofthe Estate of EVEL YN M. STINTZCUM, Deceased, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS OF DEFENDANT WEST SHORE HEALTH AND REHABILITATION CENTER PURSUANT TO RULE 1042.6 To the Prothonotary: Enter judgment of non pros against Plaintiff Ralph Stintzcum, Jr., Executor of the Estate of Evelyn M. Stintzcum in the professional liability claim against West Shore Health and Rehabilitation Center in the above captioned matter. I, the undersigned, certifY that the Plaintiff named above has asserted a professional liability claim against the Defendant named above which is a licensed professional, that no certificate of merit has been filed within the time required by Pa. R.C.P. 1042.3 and that there is no motion to extend the time for filing the certificate pending before the Court. Respectfully submitted: ur . 0 an, Esquire Attorney I. . No. 31782 Marc A. oyer, Esquire Attorne o. 76434 KELL ,HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, 10th Floor Post Office Box 62003 Harrisburg, PA 17106-2003 (717) 920-8100 Dated: August 16, 2004 Counsel for Defendant West Shore Health and Rehabilitation Center . . '( , ~'LC CERTIFICATE OF SERVICE On this 16th day of August 2004, I, Kristine Hendrix, a legal secretary in the law firm of Kelly, Hoffinan & Goduto LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS OF DEFENDANT WEST SHORE HEALTH AND REHABILITATION CENTER PURSUANT TO RULE 1042.6 upon the person(s) and at the addressees) below named by United State First Class Mail, postage prepaid, in Harrisburg, PA: Cory 1. Snook, Esquire Gates, Halbruner & Hatch, P.C. 1013 Mumma Road Suite 100 Lemoyne, P A 17043 Counsel for Plaintiff Kr:4~ /i~ tme en nx ." ~.' "j, RALPH STINTZCUM, JR., Executor of the Estate of EVEL YN M. STINTZCUM, Deceased, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NOTICE OF ENTRY OF JUDGMENT OF NON PROS TO: Ralph Stintzcum, Jr. c/o Cory J. Snook, Esquire Gates, Halbruner & Hatch, P.C. lOB Mumma Road Suite 100 Lemoyne, PA 17043 PLEASE TAKE NOTICE that on ^l.JpO~ [(. ,2004, a judgment of non pros is entered in favor of the Defendant West Shore Health and Rehabilitation Center and against Plaintiff for failure to file a certificate of merit in connection with the above matter. Is~ t~ Prothonotary 7 ""l!ItlI.l:ilv"-"""~~eU~~~:MW~~.>t;,k;.;'LiI1~~ll'Mr."'.' "~""-'~ '" . ~-- " ~1t.illilBl ~___,~_,~.d ,...... ~'I/iIiIIIiIIiliI_I~~ ='-ilRi...~~,;j " I 1 I I' II l Ii I I " I I I I I I I I . ....., = 0 ~ = -n .r.- ~ 9- ----0 ~ ..... -- ~ c::: Fh:D , GH) r'-- .. ::-q!~ " - 0"'1 c':j;r; '.:Jr S 1- ,-,-1,- ':. X5:B '-l ,", ->C) ~ '-,-' u.l - ,.a co C5n1 ~ :2 __..J - ::u -c. N --< -.;::' ,ft; ') ., . ~~ /,,:, ,cJ 't "~ " .' ,.f ,,' '. ",.". ';:'0'__ 'V', ,_ ...liJ RALPH STINTZCUM, JR., Executor of the Estate of Evelyn M. StintzcUl1l, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 00-3639 CIVIL vs. WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant IN RE: PLAINTIFF'S PETITION FOR RELIEF FROM A JUDGMENT OF NON PROS ORDER AND NOW, this z.. '" ' day of October, 2004, it appearing that the matters in the within petition of the plaintiff involve questions of law, the plaintiff is herewith directed to list this matter for the next regular session of argwnent court. BY THE COURT, Cory J. Snook, Esquire For the Plaintiff Marc A. Moyer, Esquire For the Defendant :rlm ~ I I ;'!!lil!llL~ " -~, . ".0" .0 . ~. - -"'. ~. -.- , ~. - ."~' ." " " ... . ',,, -_.~' , lr_~~ -",'-.- - ~ , . ,,~~ "."'-'/-' - " ~--,,--,~, - "'~- ,- ~I.t' " . "n" i CJ . ,. _~l j',-) O-l (..) K".,,) .. " ,--~ ~, _ n .'_n_.'. '<'0', ,__,,_, <'l,~" ,- ~ ':"";-1 / 'f OCT 2 0 2004 V RALPH STINTZCUM, JR., Executor of the Estate of Evelyn M. STINTZCUM, Deceased, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW ORDER AND NOW, this _ day of ,2004, it is hereby ORDERED that, upon Petition of the Plaintiff, the Judgment of Non Pros entered in the above-captioned matter is hereby stricken/opened. By the Court, ,J. . ~-"-.. - - .. ~.~ !Jlllii0- , RALPH STINTZCUM, JR., Executor of the Estate of Evelyn M. STINTZCUM, Deceased, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW PLAINTIFF'S PETITION FOR RELIEF FROM A JUDGMENT OF NON PROS ENTERED IN FAVOR OF WEST SHORE HEALTH AND REHABILITATION CENTER DEFENDANT. Plaintiffs, Ralph Stintzcum, Jr. Executor of the Estate of Evelyn M. Stintzcum, Deceased, referred to hereinafter as "Plaintiff," by and through their attorney, Gates, Halbruner & Hatch, P .C., moves to open or strike-off the judgment of non pros entered in favor of Defendant, West Shore Health and Rehabilitation Center referred to hereinafter as "Defendant," and in support thereof, aver as follows: I. On June 15,2000, Plaintiff instituted the instant action by filing a Praecipe for Writ of Summons with the Cumberland County Prothonotary. 2. On June 19, 2000, Defendant was served with process in accordance with the Pennsylvania Rules of Civil Procedure ("Rule" or "Rules") 3. On March 28, 2001, Plaintiffby and through her attorney filed a Suggestion of Death for the Purpose of Substituting Plaintiff to substitute "Ralph Stintzcum, Jr. Executor of the Estate ,-, .-.-,. "," -", "L> of Evelyn M. Stintzcum, deceased" as Plaintiff. 4. On June 11,2004, Plaintiff further instituted the instant action by filing a Complaint against the Defendant with this Court, claiming, (a) in Count I, that the Defendant acted negligently in its care of Plaintiff; (b) in Count II, that the Defendant is vicariously liable for the negligent acts of its medical staff and employees; ( c) in Count III, that the Defendant is in violation of unfair trade practices and consumer protection laws; (d) in Count IV, that the Defendant breached its Contract with Plaintiff; and (e) in Count V, that the Defendant was in violation of the third party beneficiary rights under the contract between defendant and the Commonwealth of Pennsylvania, Department of Health. 5. On August 16, 2004, Defendant filed a Praecipe for Entry of Judgment of Non Pros in favor of Defendant West Shore Health and Rehabilitation Center Pursuant to Rule 1042.6. 6. On August 16, 2004, the Prothonotary of Cumberland County entered a judgment of non pros in favor of Defendant for failure to file a certificate of merit in connection with this matter. 7. On August 18, 2004, Plaintiffs attorney received notification of the entry of a judgment of non pros. 8. This Petition is timely filed in accordance with Rule 3051 (b )(1) because this Petition is filed within sixty (60) days of receipt of notification of the entry of judgment of non pros, and there is very little case law and/or infonnation on the new rule on which the judgment of non pros is based. 9. Plaintiffs reason for delay (which is stated in accordance with Rule 3051(b )(2)) is '" <.i" - '~-J"~- that Plaintiff was not required by law to file a certificate of merit because this action commenced on June 15,2000 and the action was pending before the effective date of Rule 1042.1-.8 which was January 27,2003. 10. Plaintiffhereby alleges his claim is a meritorious cause of action (stated in accordance with Rule 3051(b)(3)) because Plaintiff asserts the facts and circumstances contained in Plaintiff's complaint as filed on June 11, 2004 and attached hereto and incorporated by reference as "Exhibit A" sufficiently allege a meritorious claim. 11. In addition, Plaintiff hereby alleges that Rule 1042.1-.8 does not apply the named Defendant. 12. Further, Rule 1042.1-.8 is inapplicable to Count II through Count V because these claims are not based on professional malpractice, therefore the entry of a judgment of non pros was improper for these Counts. WHEREFORE, Plaintiffs, Ralph Stintzcum, Jr. Executor of the Estate of Evelyn M. Stintzcum, Deceased respectfully requests this Court enter an Order, Opening or Striking-Off the Judgment of Non Pros in reference to all Counts or in the alternative Plaintiff respectfully requests this Court enter an Order Opening or Striking-Off the Judgment of Non-Pros in reference to Counts II through V. Date: iO/lif/OY Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. ) .~ By: Cory J. nook squire Atto ey LD. #85734 1013 Mumma Road, Suite 100 Lernoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiff) :~ , . h.-. -I.'" ~(Q)~' RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA vs. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. (-.-....._: ~J r--.v --- C~::? C) ~~-> <;~ 11 ,-,~. - ,__ (_ --l c;: ""'1- r~.;:-,::!J ::i.:: ,- .&:- ;j t9 ~~(:, -0 -,- --'i r ~", ;--~~ :1J You have been sued in court. If you wish to defend against the claims set forth):h thi~ ;; q following pages, you must take action within twenty (20) days after this complaint an<l::llotivii,are ~S served, by entering a written appearance personally or by attorney and filing in writing with 'tHe ::< court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 ., ., "'" ~"" . ~--,. .-, ,,~ H'.ie,' RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA vs. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, deceased, by and through his counsel, Gates, Halbruner & Hatch, P. C., and respectfully represents as follows: 1. Evelyn M. Stintzcum (hereinafter "Decedent") died on March 8, 2001. 2. On March 13, 2001, the Cumberland County Register of Wills granted letters testamentary to Ralph Stintzcum, Jr. (hereinafter "Plaintiff'), as the Executor of the estate of Evelyn M. Stintzcum. 3. This is a survival action brought pursuant to 42 Pa.C.S. S8302. 4. West Shore Health and Rehabilitation Center (hereinafter "Defendant") is a corporation formed under the laws of the Commonwealth of Pennsylvania doing business as a provider oflong-term care services, with its principal place of business located at 770 Poplar Church Road, Camp Hill, Pennsylvania 17011. 5. Decedent was first admitted to Defendant's facility on October 8, 1997 following rehabilitation at the Renova Center (HealthSouth Rehabilitation of Mechanicsburg) '_,I_c_ " ,c-,,-~;-,' , '"~'-'+ . for a broken hip she sustained in a fall. 6. Decedent was placed into Defendant's 1200 Unit, and was placed on "fall precautions." 7. There were no identifiable fall prevention measures put into place by Defendant. 8. Decedent fell numerous times while she was in Defendant's 1200 Unit. 9. After her falls, Decedent was rarely examined by a physician, and Decedent's family, primarily her granddaughter, Doris Arena, were not immediately notified of Decedent's falls. 10. As a result of these falls, Decedent received bumps and bruises, and the falls caused increased disorientation and fear in Decedent. 11. In December, 1997, Decedent was transferred to Defendant's 800 Unit with plans to prevent recurrent falls. 12. Any plans to prevent recurrent falls were not implemented by Defendant. 13. Decedent continued to experience numerous falls while in Defendant's 800 Unit. 14. After each fall, a notation appears in Decedent's file stating, "Mrs. Stintzcum appears fine and has no complaints of pain." 15. Decedent was rarely examined by a physician following her falls. 16. Decedent should have been examined by a physician after each fall, regardless of whether she stated she was experiencing no pain. 17. Decedent's file also documents a belligerent andlor difficult attitude of Decedent. 18. Plaintiff believes, and therefore avers, that Decedent's attitude was either caused by or exacerbated by the failure of Defendant to treat Decedent's physical and " . . ~ ~',l.. - !!!1Lqt " psychological problems. 19. Between February 13, 1998 and February 26,1998, Decedent fell more than six (6) times. 20. On or about February 14, 1998, Decedent complained of shoulder pam to Defendant's staff. 21. Several days subsequent to this complaint, Decedent was diagnosed with a tom rotator cuff. 22. Decedent's physician ordered pain medication to be administered every four to six (4-6) hours. 23. Defendant facility did not even obtain the prescribed pain medication until over a week after the physician ordered it to be given. 24. The medication was only obtained afterrepeated prodding of the staffby Decedent's granddaughter, Doris Arena. 25. Decedent fell so many times that she had severe slashes on both arms, and her face was so swollen that she could not even open her eyes. 26. At this point, Decedent's physical condition was listed as "guarded". 27. After a physician ordered Defendant facility to implement fall prevention measures, a few of these measures were implemented, namely: A. Decedent was moved closer to the nurses' station. B. A fall mat was placed next to her bed. C. A clip-on alarm was put on Decedent's bed 28. The alann described in Paragraph 27(e) above, was placed within Decedent's reach , '" - ....". " ~ "- - - - ~ ,1,. s and could be easily removed by her. 29. Decedent's granddaughter, Doris Arena, visited Decedent and provided personal care to her on an almost daily basis. 30. A new alarm was placed in Decedent's room, which was designed to help prevent Decedent's recurrent falls. 31. Not all of Defendant's staffhad been trained to use, operate, and/or evaluate the new alarm. 32. The new alarm was essentially for appearance only, in that it was not properly utilized by Defendant's staff. 33. Doris Arena contacted the Ombudsman of Cumberland County to investigate Defendant's facility. 34. The Ombudsman found: A. Defendant was not changing Decedent's bed linens; B. Defendant was not providing proper nutrition to Decedent; C. Defendant was not bathing Decedent; and D. Defendant was not providing personal hygiene to Decedent. 35. Doris Arena also contacted the Commonwealth of Pennsylvania, Department of Health to investigate Defendant's facility. 36.. . The Commonwealth found: A. Decedent's psychological well-being was being essentially ignored. B. Diagnosis and recognition of physical conditions were ignored, in that: (l). Decedent had pneumonia; "c 0---' ~t"' (2). Decedent had urinary tract infections; and (3). Decedent had various injuries following her numerous falls C. Decedent was hospitalized and treated only after continuous and outspoken demands of Doris Arena. D. Decedent's physical conditions, obviously present, were left untreated, which led to: (1). More serious physical conditions; (2). Increased pain and suffering; and (3). Caused Decedent's belligerent, antagonistic, uncooperative, and aggressive behavior. E. There were numerous deficiencies in the physical surroundings of Decedent's environment. 37. Despite a mandate from the Pennsylvania Department of Health to correct the numerous deficiencies, Decedent's physical and psychological care and treatment remained the same. 38. Decedent continued to fall. 39. Decedent's physical and psychological symptoms remained unrecognized and untreated. 40. Decedent's physical conditions did not change. 41. Decedent's psychological interaction with others did not change. 42. In or around October, 1999, Decedent developed a urinary tract infection. 43. Decedent's physician ordered an antibiotic, Ciprofloxacin, to be administered two '" ,- .-, ,- ',;.'""-",,, "ii-;.:.:t.. ~, times a day for 14 days. 44. Decedent allegedly refused thirteen (13) out of the required twenty-eight (28) doses. 45. Defendant's records lack any evidence as to the reason for these refusals, and also lack evidence as to any remedial measures implemented to administer the medication. 46. Contrary to Defendant's own policy, Decedent's physician was not notified about the Decedent refusing to take her medication. 47. The unit charge nurse and the assistance director of nursing were not even aware that the Decedent continued to refuse her medication. 48. Defendant failed to evaluate Decedent's refusal of her medication to ensure continuity of care. 49. Defendant failed to provide the Decedent with the scheduled doses of the physician- ordered medication. 50. Defendant is required to have a physician review each resident's total program of care, including medications and treatments, at each visit. 51. Defendant is required to have the physician write, sign, and date progress notes at each visit, and sign and date all orders. 52. Defendant failed to ensure that the physician supervised the plan of care for Decedent, as evidenced by the fact that the physician failed to date all orders. 53. Defendant failed to ensure Decedent's care in that the physician did not review and assess recapitulation sheets for the month of October, 1999. 54. It is alleged, and therefore averred that Defendant continually failed to meet .-- -, -..,,^ - ~, minimum staffing requirements set forth by the Pennsylvania Department of Health and the Health Care Financing Administration. 55. Defendant was cited by the Pennsylvania Department of Health for failing to meet the minimum 2.7 hours of nursing care for each resident on November 5, 1999, November 6, 1999, and November 7, 1999. 56. It is alleged, and therefore averred, that Defendant continually failed to meet the minimum staffing requirements at other times as well; and not just when the Pennsylvania Department of Health conducted investigations. 57. Defendant continually failed to provide medically-related social services to maintain the highest practicable physical, mental, and psycho-social well-being of Decedent. 58. Medicaid is a joint state and federal funded program established under Title XIX of the Social Security Act, and codified at 42 D.S.C. S 1396, et. seq., and is aimed at providing assistance to individuals who qualify based on financial need and medical need. 59. The Health Care Financing Administration is the federal agency which administers the Medicaid program. 60. Defendant accepted Medicaid payments for it residents, thereby subjecting itselfto the federal and state laws, regulations, and guidelines that pertain to the Medicaid program. 61. The Nursing Home Reform Act sets strict standards for nursing facilities that accept Medicaid funds, 42 D.S.C. S 1395r. 62. The relevant regulations, 42 C.F.R. SS 483.5 - 483.75, provide that residents must be ,'- ;. - -j- ~~"" - ~ . C',"_ ". treated as individuals, not made to conform to a facility's schedule for the sake of convenience. 63. Included among these is the Resident's Bill of Rights, which provides, in part, that a resident has the right to be free from physical and/or mental abuse. 64. The Resident's Bill of Rights also provides that a resident has the right to receive services with reasonable accommodation of individual needs and performance. 65. In drafting the Resident's Bill of Rights, the legislature did not intend for the psychological status of a resident to be utilized as an excuse not to provide adequate care and treatment. 66. Decedent's sometimes belligerent and combative attitude and/or disposition was a direct result of the care and treatment she was receiving from Defendant's facility. 67. Defendant had a duty to work with Decedent to improve her psychological well- being, rather than using it as a shield against providing adequate care. 68. Decedent was subsequently moved by her family out of Defendant's facility and into another long term care facility. 69. Once in the new facility, Decedent's psychological well-being greatly improved due to the care she received. 70. Once in the new facility, Decedent was no longer confused, combative, or belligerent. 71. The Nursing Home Reform Act also requires facilities to care for their residents in such a manner and in such an environment as will promote the maintenance and/or enhancement of the quality of life of each resident. 72. The Nursing Home Reform Act also requires facilities to provide services to attain <. - ,.< - ,~ _>-~,. 'Ln- "'"' or maintain the highest practicable physical, mental, and psycho-social well-being of each and every resident. 73. Under this requirement, there are requirements for competency standards and staffing requirements for nurses and nurse's aides. COUNT I. NEGLIGENCE 74. Paragraphs 1 through 73 are hereby incorporated by reference as though more fully set forth herein. 75. Defendant had a duty to provide proper care, maintenance, nutrition, and support to Decedent in accordance with state and federal laws, regulations and guidelines, as more fully set forth herein. 76. Defendant negligently failed to provide adequate care, maintenance, nutrition, and support to Decedent during her stay in their facility, in accordance with state and federal laws, regulations and guidelines, as more fully set forth above. 77. Defendant had a duty to provide proper staffing sufficient to care for its residents. 78. Defendant negligently failed to provide the proper staffing sufficient to care for its residents. 79. Defendant had a duty to prevent falls and injuries to Decedent. 80. Defendant negligently failed to prevent falls and injuries to Decedent. 81. Defendant had a duty to provide a level of care that would diminish the possibility of urinary tract infections in Decedent. 82. Defendant negligently failed to provide a level of care that would diminish the ~ _J ;'- -- --, - ,'-- - ,-, - I. _",~ possibility of urinary tract infections in Decedent. 83. Defendant had a duty to administer physician-ordered medications, even over Decedents "refusals." 84. Defendant negligently failed to administer physician-ordered medications to Decedent. 85. Defendant had a duty to notify the physician that Decedent was not taking her medications. 86. Defendant negligently failed to notify the physician that Decedent was not taking her medications. 87. As a result of Defendant's negligence, Decedent suffered numerous physical, mental and psycho-social injuries, as more fully set forth above. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff's favor and against Defendant, for pain and suffering and out -of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, ill an amount exceeding the threshold for compulsory arbitration under local rules. COUNT II. VICARIOUS LIABILITY OF DEFENDANT FOR THE NEGLIGENT ACTS OF ITS MEDICAL STAFF AND EMPLOYEES 88. Paragraphs I through 87 are hereby incorporated by reference as though more fully set forth herein. 89. At all times relevant hereto, the medical staff and the employees of Defendant were the agents, ostensible agents and/or agents by estoppel of the Defendant. 90. At all times relevant hereto, the medical staff and employees of Defendant were '-"'-" ' ~~~ - __TO ,; -~ ~- '" acting within the scope of their employment and/or agency with the Defendant, with the permission and consent of the Defendant, subject to the control of the Defendant, and in furtherance of the Defendant's interests. 91. Defendant is vicariously liable for the damages caused by the negligent actions and conduct of the medical staff and employees as more particularly described herein. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff's favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT III. VIOLATION OF UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 73 P.S. &201-1 et seq. 92. Paragraphs 1 through 91 are hereby incorporated by reference as though more fully set forth herein. 93. Defendant engaged III fraud, false advertising, and misrepresentation in its promotional materials and literature supplied to Plaintiffs, in that Defendant did not provide the levels and quality of care promised, as more fully set forth above. 94. Defendant entered into an admission agreement with Decedent and/or her family wherein Defendant promised to provide certain minimal levels of care and quality of life. 95. Defendant engaged in fraud, false advertising, and misrepresentation by failing to fulfill its duties under the admission agreement executed by Defendant and Decedent " ~-. "-, " - ,. - -" : "- -.,,-- ~ ,- - and/or her family, as more fully set forth above. 96. As a result, Decedent suffered numerous injuries, both physical and mental, as more fully outlined herein. 97. Defendant's conduct constitutes ''unfair methods of competition" and/or ''unfair or deceptive acts or practices" giving rise to a private action under the Unfair Trade Practices and Consumer Protection Law, 73 P.S. g201-1 et seq. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiffs favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest, treble damages as provided for in the statute and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT IV. BREACH OF CONTRACT 98. Paragraphs 1 through 97 are hereby incorporated by reference as though more fully set forth herein. 99. Decedent and/or decedent's personal representative signed various documents, including an admission agreement wherein Defendant promised to provide certain minimal levels of care and quality oflife. 100. Defendant failed to provide sufficient care and quality of life as promised as more fully outlined herein. 101. Defendant provided Decedent and/or Decedent's personal representative, and the public at large, with various promotional materials which promised that Defendant , . " , ~ . 'j '~-, .. :;,0',,',' . -'. ~eL.l' would provide Decedent with a certain level of care. 102. Defendant failed to provide sufficient care as promised, as more fully outlined herein. 103. Defendant was required to provide a "care plan" for each of its residents in which Defendant stated it would comply with state and federal laws and regulations. 104. Defendant failed to fully implement and/or perform its obligations set forth in the "care plan." I 05. As a result of Defendant' s breach of the admission agreement, "care plan" and other promotional materials, Decedent suffered numerous injuries, both physical and mental, as more fully outlined herein. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff s favor and against Defendant, for pain and suffering and out -of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT V. VIOLATION OF THIRD PARTY BENEFICIARY RIGHTS UNDER CONTRACT BETWEEN DEFENDANT AND COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF REAL TR 106. Paragraphs 1 through 105 are hereby incorporated by reference as though more fully set forth herein. 107. Defendant applied to the Pennsylvania Department of Health to operate a skilled and/or intermediate care facility in accordance with the Health Care Facilities Act, 35 P.S. 99448.101 - 448.904. 108. Defendant was granted a license, along with subsequent renewals of that license, to ~ " ,-- ',,-,' . _..,_'-!.,. cu'_0.'_' operate the facility in exchange for the promise to conduct said facility in accordance with the laws of the Commonwealth of Pennsylvania and with the rules and regulations of the Department of Health. 109. By signing the contract and license agreement, Defendant had a duty to operate its facility in accordance with the laws of the Conunonwealth of Pennsylvania and with the rules and regulations of the Department of Health. 110. Defendant breached this contract and license agreement by failing to operate the facility in accordance with the laws of the Conunonwealth of Pennsylvania and with the rules and regulations of the Department of Health, when it violated numerous regulations as set forth in 28 Pa. Code S 201.1 et. seq., and numerous provisions of the Health Care Facilities Act, 35 P.S. SS 448.101 - 448.904, as more fully set forth herein. III. The purpose of the contract and license agreement between the Department of Health and Defendant is to ensure a minimum level of care and well-being for the residents of the facility. 112. Decedent, as a resident of the Defendant's facility, was an intended third party beneficiary of the contract and license agreement between the Department of Health and Defendant. 113. As a result of Defendant's breach of its contract and license agreement with the Department of Health, Decedent suffered numerous injuries, both physical and mental, as more fully outlined above. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in -' ""-" -'~' ,:~~ " il><1' Plaintiffs favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney fees, costs of suit, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. Date: ~u l'V It ;Jeui( , Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. /1 a ~J BY: ~V? \, " !tn~?- Cory J. nook, squire Attorney LD. 85734 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiff) " . ~ ~ ' ~ .~ '" '~ ','"" "'';'-'';''-2 VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing document are true and correct to the best of his knowledge, infonnation, and belief. This verification is made subject to the penalties of 18 Pa. C.SA S 4904 relating to unsworn falsification to authorities. Date: r;)JI)Of./ ( r - ~~ ~r-. , /..--: . STINTZCUM, JR. cutor of the Estate ofEVEL YN M. TlNTZCUM ~, " _'~l' '" ;'_' CERTIFICATE OF SERVICE I, Cory J. Snook, of the law firm of Gates, Halbruner & Hatch, P.C., hereby certifY that I served a true and correct copy of the foregoing Complaint on this date by First Class mail addressed to the following: Marc A. Moyer, Esq. Kelly, Hoffinan & Goduto, LLP Commerce Towers, 10th Floor 300 North Second Street P.o. Box 62003 Harrisburg, P A 17106-2003 GATES, HALBRUNER & HATCH, P.C. /\ /7 .// U,~(/~tI BY: Cory J., ook, quire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiff) Date: ...L v& I ( o){f/) j/ ,. ~~,~, . .~ ..;'-",-."- ~ CERTIFICATE OF SERVICE I, Cory J. Snook, of the law firm of Gates, Halbruner & Hatch, P.C., hereby certify that I served a true and correct copy of the foregoing Petition on this date by First Class mail addressed to the following: Marc A. Moyer, Esq. Kelly, Hoffman & Goduto, LLP Commerce Towers, 10th Floor 300 North Second Street P.o. Box 62003 Harrisburg, P A 17106-2003 GATES, HALBRUNER & HATCH, P.C. BY: Cory J. S ook, Es re 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiff) Date: toJlrOl/ { ii' ,-~. ~-<~-<-,~~il!it!..ji~iI~.,j;ti-'~- ~m~~~~"" .........~~.L.~ -"~"",,~.t -- ~"' ~= _1iililllIillIiI~tIiiItill ~lIiii,:' . . c> ...., ~ 0 C. t::.';:) ^" -<- -r, 0 --I r- ni::n . , -- ..... ,-- (. TJrn U) :oy :;~(j ""U ;~J~:g ::r;;: .f?':: (,/:'1 (jni ...,,,.\ ~"<~ N p; ::D 0 -< ~~ , ~, RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANT BEVERLY ENTERPRISES- PENNSYLVANIA, INC.. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER TO PLAINTIFF'S PETITION FOR RELIEF FROM A JUDGMENT OF NON PROS AND NOW, comes Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center (hereinafter "Beverly"/"Facility") (incorrectly identified by Plaintiff as West Shore Health and Rehabilitation Center), by and through its counsel, Kelly, Hoffman & Goduto, LLP, to answer Plaintiffs Petition for Relief From a Judgment of Non Pros as follows: I. ADMITTED based on information and belief. 2. ADMITTED based on information and belief. 3. After reasonable investigation, Beverly is without sufficient information to properly respond regarding Plaintiff s purported filing of a Suggestion of Death. 4. DENIED as stated. It is ADMITTED that Plaintiff filed a Complaint in the instant matter on June 11,2004, nearly four (4) years after filing a Praecipe for Writ of Summons, and over sixteen (16) months after the effective date of Pennsylvania Rule of Civil Procedure 1042.3, which required Plaintiff to file a Certificate of Merit contemporaneously with the Complaint, or within sixty (60) days following the filing of the Complaint. By way of further Answer, it is ADMITTED that Count I and Count II of Plaintiffs Complaint set forth claims for professional negligence against the Facility. The ~~ ',"-1' remaining characterizations of Plaintiffs claims as set forth in Paragraphs 4(c)-(e) of Plaintiff's Petition are ADMITTED for the purposes of this Answer. 5. ADMITTED. 6. ADMITTED. 7. After reasonable investigation, Beverly lacks sufficient knowledge or information sufficient to form a belief as to when Plaintiff actually received notification of the entry Judgment of Non Pros. 8. DENIED. It is DENIED the Plaintiffs Petition for Relief is timely, or that Pa.R.Civ.P. 3051(b) defines Plaintiffs Petition as "timely" for being filed within sixty (60) days of receipt of notification of the Judgment of Non Pros. 9. DENIED. It is DENIED that Plaintiff has provided a reasonable explanation or legitimate excuse for failing to file a Certificate of Merit. See, e.g., Helfrick v. UPMC Shadyside Hospital, 65 Pa. D.&C. 4th 420, 423 (C.P. Allegheny 2003). It is further DENIED that Plaintiff was not required by law to file a Certificate of Merit contemporaneously with the Complaint or within sixty (60) days of filing the Complaint. On the contrary, Plaintiff filed the Complaint on June 11,2004, over sixteen (16) months after the effective date of Rule 1042.3 which expressly required the filing ofa Certificate of Merit "with the complaint or within sixty days after the filing of the complaint" . . .". (emphasis added). 10. DENIED. It is DENIED that Plaintiffs Petition establishes specific facts that demonstrate that the cause of action is meritorious. On the contrary, Plaintiff has merely repeated the unsubstantiated allegations set forth in the Complaint as incorporated into the Petition. It is ADMITTED that Plaintiff has failed to attach any deposition testimony, expert reports or documents sufficient to carry his burden of proof at trial for the purpose of opening the Judgment of Non Pros. 2 '~~-"''' 11. DENIED. It is DENIED that Rule 1042 does not apply to Defendant. Beverly Enterprises - Pennsylvania, Inc. is a licensed professional as defined by Pa.R.Civ.P. I 042.1 (a) and (b) to the extent it is a "health care provider as defined by Section 503 of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. S 1303.503." See Pa.R.Civ.P. 1042.l(b)(I)(i). 12. DENIED. It is DENIED that Plaintiff was not required to file a Certificate of Merit pursuant to Pa.R.Civ.P. 1042.3 by virtue of the nature of Counts II through V of Plaintiff's Complaint. Count II of Plaintiff's Complaint asserts a claim for professional liability against the Facility, through its medical staff, including nurses and employees. By way of further Answer, and to the extent Counts III through V of Plaintiff s Complaint may be construed as not asserting a professional liability claim, Rule 1042.3(3) required Plaintiff to file a Certificate of Merit, signed by Plaintiffs attorney, stating that "expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim." Pa.R.Civ.P. 1042.3(3). WHEREFORE, for the foregoing reasons, Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center respectfully requests that Plaintiffs Petition for Relief from a Judgment of Non Pros be denied, and that the August 16,2004, entry of Non Pros be upheld. NEW MATTER 13. Paragraph Nos. 1 through 12 of Beverly's Answer are incorporated by reference as if fully set forth herein. 14. This matter was initiated by Plaintiff through the filing ofa Writ of Summons on June 15, 2000. 15. Thereafter, Plaintiff filed a Complaint, on June 11,2004, over four (4) years after Plaintiff filed the Writ of Summons. 3 .,- -. ,"" 16. Plaintiff's Complaint was filed over sixteen (16) months after the effective date of Rules 1042.1-8, January 27, 2003. 17. Pa.R.Civ.P. 1042.1-8 govern any "civil action in which a professional liability claim is asserted against a licensed professional." Pa.R.Civ.P. 1042.I(a). 18. Pa.R.Civ.P. 1042.1(b)(i), in turn, defines a licensed professional, in part, as "a health care provider as defined by Section 503 of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. S 1303.503." Pa.R.Civ.P. 1042.I(b)(i). 19. Beverly is a "licensed professional" under Rule 1042. 1 (i), as a "healthcare provider" defined by Section 503 ofMCARE, which defines a healthcare provider as a "primary health care center, or a person, including a corporation. . ., licensed or approved by the Commonwealth to provide health care or professional medical services, as a ... nursing home.. .and.. .an officer, employee or agent of any of them acting in the course and scope of employment." 40 P.S. S 1303.103. 20. Pa.R.Civ.P. 1042.3 expressly requires that in any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff shall file a Certificate of Merit signed by the attorney or party with the complaint or, within sixty (60) days after the filing of the complaint. Pa.R.Civ.P. 1042.3(a). 21. Because Beverly is a statutorily defined health care provider, and because Plaintiff's Complaint asserts claims for professional liability against Beverly, Plaintiff was required to file a Certificate of Merit within sixty (60) days of filing the Complaint, or by August 10,2004. 22. Despite the requirements set forth by Pa.R.Civ.P. 1042.1-8, Plaintiff failed to file a Certificate of Merit at any time. 23. On August 16, 2004, Beverly filed a Praecipe for Entry of Judgment of Non Pros of Defendant pursuant to Rule 1042.6 based upon Plaintiffs failure to file the required Certificate of Merit. 4 24. Judgment of Non Pros was, thereafter, properly entered by the Cumberland County Prothonotary in favor of Beverly and against Plaintiff on August 16, 2004 for failing to file a Certificate of Merit. 25. Despite the entry of Judgment on August 16, 2004, Plaintiff waited over eight (8) weeks to file the pending Petition for Relief pursuant to Pa.R.Civ.P. 3051, on October 14, 2004. 26. Rule 3051 requires that all grounds for opening the August 16, 2004, Judgment be set forth in Plaintiff's Petition, and that Plaintiffs Petition mus~ allege facts showing that: (1) the petition is timely filed, (2) there is a reasonable explanation or legitim~te excuse for the inactivity or delay; and (3) there is a meritorious cause of action. Pa.R.Civ.P.3051. 27. Through his Petition, Plaintiff asserts, incorr~ct1y, that the Petition was timely filed I because it was filed within sixty (60) days of entry of judgment. See Petition, ~8. i 28. Notably, Plaintiff has not and, indeed cannot! cite to any authority justifying the position , that the Petition was timely filed because it was filed within, sixty (60) days of entry of judgment. 29. Moreover, in addressing the "reasonable exp1anation" prong of Rule 3051 in the context , of a Rule I 042 Certificate of Merit, the inactivity being addiessed is the failure by Plaintiff s counsel to I file a Certificate of Merit within the required sixty (60) days. Helfrick v. UPMC Shadyside Hospital, 65 I D.&C. 4th 420,423 (C.P. Allegheny 2003). 30. Thus, to satisfy the second criteria of Rule 3051, Plaintiff is required to offer an I explanation as to why he did not file a Certificate of Merit "(ithin the required sixty (60)days or, alternatively, file a motion to extend the time for filing a Cettificate of Merit pennitted by Pa.R.Civ.P. I i 1 042.3( d). Id. 5 ~> . -Dlo,' 31. Here, Plaintiff has failed to offer any explanation for his failure to avail himself of the opportunity to obtain an extension of an additional sixty (60) days to file a Certificate of Merit pursuant to Pa.R.Civ.P. 1042.3(d). 32. Plaintiff has also failed to demonstrate that there was a reasonable explanation or legitimate excuse for the inactivity or delay in filing a Certificate of Merit based upon the incorrect assertion that he was not required by law to file a Certificate of Merit because this action was commenced on June 15,2000, prior to the effective date of Rule 1042.1-8. See Petition, ~9. 33. Pa.R.Civ.P. 1042.3 makes no exception for the need to file a Certificate of Merit within sixty (60) days after filing of the Complaint irrespective of when civil action was commenced. Instead, the plain language of Rule 1042.3 makes clear that the requirement to file a Certificate of Merit is triggered by the filing of a Complaint, and not by the filing of a Writ of Summons commencing a legal action. Indeed, it is not until a Complaint is filed, that a Defendant has any knowledge that the Plaintiff is asserting a claim for professional liability. See, e.g., Hoover v. Davila, 2004 WL 1879849 at *2, P A Super 314 (2003). 34. In this case, Plaintiff's Complaint was filed nearly one and a half years (I Yz) following the effective date of Rule 1042.3, January 27, 2003. 35. Plaintiffs assertion that the delay in filing a Certificate of Merit and/or his Petition was justified because Counts II through V of the Complaint do not assert claims for professional liability and, therefore, do not require a Certificate of Merit, is equally without merit. 36. Count II of Plaintiffs Complaint, on its face, asserts a claim for professional liability based upon the professional nursing care provided to the Plaintiffby Beverly's agents and/or employees. Such averments clearly required a Certificate of Merit pursuant to Pa.R.Civ.P. 1042.3. 6 - ~'" 37. Similarly, while Counts III through V of Plaintiffs Complaint are couched in terms of claims other than "negligence", the factual averments giving rise to the claims, as set forth in the body of Plaintiffs Complaint, clearly involve allegations that Beverly deviated from an acceptable professional standard. 38. Indeed, Count III of Plaintiffs Complaint is admittedly based upon Beverly's alleged failure to "provide the levels and quality of care" and "minimal levels of care and quality of life", to Plaintiffs decedent. See ~~ 93,94 of Complaint, App. "A". 39. Count IV of Plaintiffs Complaint is similarly predicated upon allegations the Beverly failed to provide "certain minimal levels of care" or "sufficient care" to Plaintiff s decedent. See '\l'\l99, 100 of Complaint, App. "A". 40. By Plaintiffs own admission, each ofthe details of Beverly's alleged failure to provide the required level of professional care referred to in Counts III and IV are identified by Plaintiff as being "set forth above" or "outlined herein", i.e., in the professional negligence portions of the Complaint. See '\l'\l93, 100 of Complaint, App. "A". 41. Plaintiff has similarly failed to establish through his Petition for Relief that he has a meritorious cause of action necessary to open the Judgment of Non Pros pursuant to Pa.R.Civ.P. 3051(b)(3). On the contrary, Plaintiff has merely incorporated into his Petition, the unsubstantiated averments set forth in the Complaint, and nothing more. 42. In particular, Plaintiff has not averred any facts through discovery or otherwise, which demonstrate that his cause of action is meritorious. Likewise, Plaintiff has not attached to his Petition any deposition testimony or expert reports which would be sufficient to carry his burden of proof at trial. 43. Plaintiffs failure to set forth any information in his Petition other than the unsubstantiated allegations set forth in his Complaint, cannot form the basis for establishing a 7 < ~ ~ ""'-,,- ~- ~ meritorious cause of action for the purpose of opening the Judgment of Non Pros as a matter oflaw. Stephens v. Messick, 799 A.2d 793, 800 (Pa. Super. 2002). 44. Assuming, arguendo, that Plaintiffs attachment of the Complaint to his Petition can somehow satisfY the "meritorious cause of action" prong ofPa.R.Civ.P. 3051, Plaintiff has failed to establish that meritorious causes of action exist for Counts III through V of his Complaint. 45. Specifically, Plaintiff has failed to establish a private right of action under Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("CPL"/the "Act"), 73 P.s. S 201-9.2. 46. Section 201-9.2 of the CPL limits a private right of action to those who have suffered an "ascertainable loss of money or property" as a result of conduct prohibited under the Act. 47. Through Paragraph 96 of the Complaint, Plaintiff readily concedes that the alleged injuries asserted through Count III comprise solely of "physical and mental" injuries, and not the economic injuries or injuries to property required to state a viable claim under the Act. 48. Plaintiff has similarly failed to set forth a meritorious claim under the CPL because the Act does not apply to the provision of professional nursing services which form the exclusive basis for Plaintiffs claim under Count III of the Complaint. 49. Specifically, through Count III of the Complaint, Plaintiff asserts a claim against Beverly arising out of Beverly's alleged failure to provide the appropriate "levels and quality" of professional nursing care services to Plaintiffs decedent. See ~~ 93,94 of Complaint, App. "A". 50. To that end, Plaintiff relies upon the allegations set forth in Paragraphs 7-29; 30-32; 36- 53; 56-57; and 76-86 ofthe Complaint as the factual basis for his claim under the CPL. See Plaintiffs Complaint, App. "A". 51. Notably, each of the allegations forming the basis for Plaintiffs CPL claim pertain to the alleged failure by Beverly to provide Plaintiff's decedent with evaluative, diagnostic, preventative, 8 "~ ~ ~ -~- ~~'"'"'<r'tiI>".E"":.c therapeutic and supervisory nursing care services customarily provided by long term care nursing facilities like Beverly. 52. For that reason, Plaintiff has failed to establish any basis for concluding that he is legally entitled to relief under the CPL arising out of the professional nursing care services provided to Plaintiffs decedent because such services do not constitute "trade or commerce" as contemplated by the CPL. 53. Although professional medical services are not expressly excluded from the CPL, Pennsylvania courts interpreting the Act have routinely held that unfair or deceptive acts or practices pertaining to such services do not permit the pursuit of a private cause of action against the providers of the services. Goda v. White C/iffLeasing Partnership, 62 Pa. D.&C. 4th 476 (C.P. Mercer 2003); Fojlygen v. Zemel, 420 Pa. Super. 18,615 A.2d 1345 (1992), app. den., 535 Pa. 619, 629 A.2d 1380 (1993); Gatten v. Merzi, 397 Pa.Super. 148,579 A.2d 974 (1990), app. den., 528 Pa. 611, 596 A,2d 157 (1991). 54. Because the CPL does not permit a private cause of action to be brought against healthcare facilities like Beverly based upon the furnishment of professional nursing services, Plaintiff has failed to establish that he has set forth a meritorious claim under the CPL for the purpose of opening the Judgment of Non Pros under Pa.R.Civ.P. 3051 (b)(3). 55. Plaintiff has similarly failed to establish a meritorious cause of action for his contract based claims in Counts IV and V of the Complaint because each of Plaintiff's claims arise out of averments of negligence, rather than from breach of contract. 56. The courts of his Commonwealth have repeatedly found breach of contract claims to be untenable where the averments at issue involve claims for professional negligence, as in this case. Red 9 .~ ~ ~""""" Rose Motors, Inc. v. Boyer & Ritter, 66 Pa. D. & CAth 73, 81-82 (C.P. Lancaster 2004); Jaworski v. Orton, Joyce & Dunlavey P.C., 45 Pa. D. & CAth 225,228 (C.P. Allegheny 2000). 57. In instances where, as here, contract based claims merely duplicate the negligence claims asserted in a complaint, Pennsylvania courts have properly stricken the contract-based claims from the actions. Murphy v. Aesthetic & Reconstructive Surgery, 2 Pa. D. & CAth 273,276-277 (C.P. Erie 1989); Peterman v. Geisinger Medical Center, 8 Pa. D.& C.3d 432 (C.P. Montour 1978). 58. Because the wrongs ascribed to Beverly in Counts IV and V ofPlaintitI's Complaint are based upon averments of negligence, and do not invoke contract-based remedies, Plaintiff has failed to set forth meritorious claims under Counts IV and V of the Complaint for the purpose of opening the Judgment of Non Pros pursuant to Pa.R.Civ.P. 3051(b)(3). WHEREFORE, for the foregoing reasons, Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center respectfully requests that Plaintiff's Petition for Relief from a Judgment of Non Pros be denied, and that the August 16,2004, entry of Non Pros be upheld. Respectfully submitted: Dated: October].i, 2004 , Esquire 0.31782 Marc A. Mo r, Esquire Attorney N . 76434 KELLY, HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, 10th Floor Post Office Box 62003 Harrisburg, PA 17106-2003 (717) 920-8100 Counsel for Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center 10 =~ ' - -- ~ . .~ ~'''''-~ RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA vs. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, P A 17013 (717) 249-3166 (800) 990-9108 ,''''' ~. Go<. _ . K'J I RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA vs. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, deceased, by and through his counsel, Gates, Halbruner & Hatch, P .C., and respectfully represents as follows: I. Evelyn M. Stintzcum (hereinafter "Decedent") died on March 8, 200 I. 2. On March 13, 2001, the Cumberland County Register of Wills granted letters testamentary to Ralph Stintzcum, Jr. (hereinafter "Plaintiff"), as the Executor of the estate of Evelyn M. Stintzcum. 3. This is a survival action brought pursuant to 42 Pa.C.S. ~8302. 4. West Shore Health and Rehabilitation Center (hereinafter "Defendant") IS a corporation formed under the laws of the Commonwealth of Pennsylvania doing business as a provider oflong-term care services, with its principal place of business located at 770 Poplar Church Road, Camp Hill, Pennsylvania 17011. 5. Decedent was first admitted to Defendant's facility on October 8, 1997 following rehabilitation at the Renova Center (HealthSouth Rehabilitation of Mechanics burg) . ' ~ ~~! for a broken hip she sustained in a fall. 6. Decedent was placed into Defendant's 1200 Unit, and was placed on "fall precautions. " 7. There were no identifiable fall prevention measures put into place by Defendant. 8. Decedent fell numerous times while she was in Defendant's 1200 Unit. 9. After her falls, Decedent was rarely examined by a physician, and Decedent's family, primarily her granddaughter, Doris Arena, were not immediately notified of Decedent's falls. 10. As a result of these falls, Decedent received bumps and bruises, and the falls caused increased disorientation and fear in Decedent. 11. In December, 1997, Decedent was transferred to Defendant's 800 Unit with plans to prevent recurrent falls. 12. Any plans to prevent recurrent falls were not implemented by Defendant. 13. Decedent continued to experience numerous falls while in Defendant's 800 Unit. 14. After each fall, a notation appears in Decedent's file stating, "Mrs. Stintzcum appears fine and has no complaints of pain." 15. Decedent was rarely examined by a physician following her falls. 16. Decedent should have been examined by a physician after each fall, regardless of whether she stated she was experiencing no pain. 17. Decedent's file also documents a belligerent and/or difficult attitude of Decedent. 18. Plaintiff believes, and therefore avers, that Decedent's attitude was either caused by or exacerbated by the failure of Defendant to treat Decedent's physical and ,-~ '0 """'........~: psychological problems. 19. Between February 13, 1998 and February 26,1998, Decedent fell more than six (6) times. 20. On or about February 14, 1998, Decedent complained of shoulder pam to Defendant's staff. 21. Several days subsequent to this complaint, Decedent was diagnosed with a torn rotator cuff. 22. Decedent's physician ordered pain medication to be administered every four to six (4-6) hours. 23. Defendant facility did not even obtain the prescribed pain medication until over a week after the physician ordered it to be given. 24. The medication was only obtained afterrepeated prodding of the staffby Decedent's granddaughter, Doris Arena. 25. Decedent fell so many times that she had severe slashes on both anns, and her face was so swollen that she could not even open her eyes. 26. At this point, Decedent's physical condition was listed as "guarded". 27. After a physician ordered Defendant facility to implement fall prevention measures, a few of these measures were implemented, namely: A. Decedent was moved closer to the nurses' station. B. A fall mat was placed next to her bed. C. A clip-on alann was put on Decedent's bed 28. The alann described in Paragraph 27(C) above, was placed within Decedent's reach . - '-,. . '. '; and could be easily removed by her. 29. Decedent's granddaughter, Doris Arena, visited Decedent and provided personal care to her on an almost daily basis. 30. A new alarm was placed in Decedent's room, which was designed to help prevent Decedent's recurrent falls. 31. Not all of Defendant's staff had been trained to use, operate, and/or evaluate the new alarm. 32. The new alarm was essentially for appearance only, in that it was not properly utilized by Defendant's staff. 33. Doris Arena contacted the Ombudsman of Cumberland County to investigate Defendant's facility. 34. The Ombudsman found: A. Defendant was not changing Decedent's bed linens; B. Defendant was not providing proper nutrition to Decedent; C. Defendant was not bathing Decedent; and D. Defendant was not providing personal hygiene to Decedent. 35. Doris Arena also contacted the Commonwealth of Pennsylvania, Department of Health to investigate Defendant's facility. 36. The Commonwealth found: A. Decedent's psychological well-being was being essentially ignored. B. Diagnosis and recognition of physical conditions were ignored, in that: (1). Decedent had pneumonia; . -," ~ 1<-<_- (2). Decedent had urinary tract infections; and (3). Decedent had various injuries following her numerous falls C. Decedent was hospitalized and treated only after continuous and outspoken demands of Doris Arena. D. Decedent's physical conditions, obviously present, were left untreated, which led to: (1). More serious physical conditions; (2). Increased pain and suffering; and (3). Caused Decedent's belligerent, antagonistic, uncooperative, and aggressive behavior. E. There were numerous deficiencies in the physical surroundings of Decedent's environment. 37. Despite a mandate from the Pennsylvania Department of Health to correct the numerous deficiencies, Decedent's physical and psychological care and treatment remained the same. 38. Decedent continued to fall. 39. Decedent's physical and psychological symptoms remained unrecognized and untreated. 40. Decedent's physical conditions did not change. 41. Decedent's psychological interaction with others did not change. 42. In or around October, 1999, Decedent developed a urinary tract infection. 43. Decedent's physician ordered an antibiotic, Ciprofloxacin, to be administered two . , ..,....."..,,,, ~- , " times a day for 14 days. 44. Decedent allegedly refused thirteen (13) out of the required twenty-eight (28) doses. 45. Defendant's records lack any evidence as to the reason for these refusals, and also lack evidence as to any remedial measures implemented to administer the medication. 46. Contrary to Defendant's own policy, Decedent's physician was not notified about the Decedent refusing to take her medication. 47. The unit charge nurse and the assistance director of nursing were not even aware that the Decedent continued to refuse her medication. 48. Defendant failed to evaluate Decedent's refusal of her medication to ensure continuity of care. 49. Defendant failed to provide the Decedent with the scheduled doses of the physician- ordered medication. 50. Defendant is required to have a physician review each resident's total program of care, including medications and treatments, at each visit. 51. Defendant is required to have the physician write, sign, and date progress notes at each visit, and sign and date all orders. 52. Defendant failed to ensure that the physician supervised the plan of care for Decedent, as evidenced by the fact that the physician failed to date all orders. 53. Defendant failed to ensure Decedent's care in that the physician did not review and assess recapitulation sheets for the month of October, 1999. 54. It is alleged, and therefore averred that Defendant continually failed to meet ., "-<' __,b_', .1;;,";", minimum staffing requirements set forth by the Pennsylvania Department of Health and the Health Care Financing Administration. 55. Defendant was cited by the Pennsylvania Department of Health for failing to meet the minimum 2.7 hours of nursing care for each resident on November 5, 1999, November 6,1999, and November 7,1999. 56. It is alleged, and therefore averred, that Defendant continually failed to meet the minimum staffing requirements at other times as well; and not just when the Pennsylvania Department of Health conducted investigations. 57. Defendant continually failed to provide medically-related social services to maintain the highest practicable physical, mental, and psycho-social well-being of Decedent. 58. Medicaid is a joint state and federal funded program established under Title XIX of the Social Security Act, and codified at 42 V.S.C. g 1396, et. seq., and is aimed at providing assistance to individuals who qualify based on financial need and medical need. 59. The Health Care Financing Administration is the federal agency which administers the Medicaid program. 60. Defendant accepted Medicaid payments for it residents, thereby subjecting itself to the federal and state laws, regulations, and guidelines that pertain to the Medicaid program. 61. The Nursing Home Reform Act sets strict standards for nursing facilities that accept Medicaid funds, 42 V.S.C. g 1395r. 62. The relevant regulations, 42 C.F.R. gg 483.5 - 483.75,providethatresidentsmustbe , C,", -r:;,lL;i;:': treated as individuals, not made to conform to a facility's schedule for the sake of convemence. 63. Included among these is the Resident's Bill of Rights, which provides, in part, that a resident has the right to be free from physical and/or mental abuse. 64. The Resident's Bill of Rights also provides that a resident has the right to receive services with reasonable accommodation of individual needs and performance. 65. In drafting the Resident's Bill of Rights, the legislature did not intend for the psychological status of a resident to be utilized as an excuse not to provide adequate care and treatment. 66. Decedent's sometimes belligerent and combative attitude and/or disposition was a direct result of the care and treatment she was receiving from Defendant's facility. 67. Defendant had a duty to work with Decedent to improve her psychological well- being, rather than using it as a shield against providing adequate care. 68. Decedent was subsequently moved by her family out of Defendant's facility and into another long term care facility. 69. Once in the new facility, Decedent's psychological well-being greatly improved due to the care she received. 70. Once in the new facility, Decedent was no longer confused, combative, or belligerent. 71. The Nursing Home Reform Act also requires facilities to care for their residents in such a manner and in such an environment as will promote the maintenance and/or enhancement of the quality of life of each resident. 72. The Nursing Home Reform Act also requires facilities to provide services to attain ..M-I or maintain the highest practicable physical, mental, and psycho-social well-being of each and every resident. 73. Under this requirement, there are requirements for competency standards and staffing requirements for nurses and nurse's aides. COUNT I. NEGLIGENCE 74. Paragraphs 1 through 73 are hereby incorporated by reference as though more fully set forth herein. 75. Defendant had a duty to provide proper care, maintenance, nutrition, and support to Decedent in accordance with state and federal laws, regulations and guidelines, as more fully set forth herein. 76. Defendant negligently failed to provide adequate care, maintenance, nutrition, and support to Decedent during her stay in their facility, in accordance with state and federal laws, regulations and guidelines, as more fully set forth above. 77. Defendant had a duty to provide proper staffing sufficient to care for its residents. 78. Defendant negligently failed to provide the proper staffing sufficient to care for its residents. 79. Defendant had a duty to prevent falls and injuries to Decedent. 80. Defendant negligently failed to prevent falls and injuries to Decedent. 81. Defendant had a duty to provide a level of care that would diminish the possibility of urinary tract infections in Decedent. 82. Defendant negligently failed to provide a level of care that would diminish the - "" "'. ',(i possibility of urinary tract infections in Decedent. 83. Defendant had a duty to administer physician-ordered medications, even over Decedents "refusals." 84. Defendant negligently failed to administer physician-ordered medications to Decedent. 85. Defendant had a duty to notifY the physician that Decedent was not taking her medications. 86. Defendant negligently failed to notifY the physician that Decedent was not taking her medications. 87. As a result of Defendant' s negligence, Decedent suffered numerous physical, mental and psycho-social injuries, as more fully set forth above. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff s favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT II. VICARIOUS LIABILITY OF DEFENDANT FOR THE NEGLIGENT ACTS OF ITS MEDICAL STAFF AND EMPLOYEES 88. Paragraphs I through 87 are hereby incorporated by reference as though more fully set forth herein. 89. At all times relevant hereto, the medical staff and the employees of Defendant were the agents, ostensible agents and/or agents by estoppel of the Defendant. 90. At all times relevant hereto, the medical staff and employees of Defendant were -" ~.".-- - .:.", acting within the scope oftheir employment and/or agency with the Defendant, with the pennission and consent of the Defendant, subject to the control of the Defendant, and in furtherance of the Defendant's interests. 91. Defendant is vicariously liable for the damages caused by the negligent actions and conduct of the medical staff and employees as more particularly described herein. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff's favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT III. VIOLATION OF UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 73 P.S. &201-1 et seq. 92. Paragraphs 1 through 91 are hereby incorporated by reference as though more :fully set forth herein. 93. Defendant engaged ill fraud, false advertising, and misrepresentation in its promotional materials and literature supplied to Plaintiffs, in that Defendant did not provide the levels and quality of care promised, as more fully set forth above. 94. Defendant entered into an admission agreement with Decedent and/or her family wherein Defendant promised to provide certain minimal levels of care and quality of life. 95. Defendant engaged in fraud, false advertising, and misrepresentation by failing to fulfill its duties under the admission agreement executed by Defendant and Decedent .--~ '~,,-- and/or her family, as more fully set forth above. 96. As a result, Decedent suffered numerous injuries, both physical and mental, as more fully outlined herein. 97. Defendant's conduct constitutes "unfair methods of competition" and/or "unfair or deceptive acts or practices" giving rise to a private action under the Unfair Trade Practices and Consumer Protection Law, 73 P.S. S201-1 et seq. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff's favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest, treble damages as provided for in the statute and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT IV. BREACH OF CONTRACT 98. Paragraphs I through 97 are hereby incorporated by reference as though more fully set forth herein. 99. Decedent and/or decedent's personal representative signed various documents, including an admission agreement wherein Defendant promised to provide certain minimal levels of care and quality of life. 100. Defendant failed to provide sufficient care and quality of life as promised as more fully outlined herein. 101. Defendant provided Decedent and/or Decedent's personal representative, and the public at large, with various promotional materials which promised that Defendant ~ ~ would provide Decedent with a certain level of care. 102. Defendant failed to provide sufficient care as promised, as more fully outlined herein. 103. Defendant was required to provide a "care plan" for each of its residents in which Defendant stated it would comply with state and federal laws and regulations. 104. Defendant failed to fully implement and/or perform its obligations set forth in the "care plan.~' 105. As a result of Defendant' s breach of the admission agreement, "care plan" and other promotional materials, Decedent suffered numerous injuries, both physical and mental, as more fully outlined herein. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiffs favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT V. VIOLATION OF THIRD PARTY BENEFICIARY RIGHTS UNDER CONTRACT BETWEEN DEFENDANT AND COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF HEALTH 106. Paragraphs 1 through 105 are hereby incorporated by reference as though more fully set forth herein. 107. Defendant applied to the Pennsylvania Department of Health to operate a skilled and/or intermediate care facility in accordance with the Health Care Facilities Act, 35 P.S. ~~ 448.101 - 448.904. 108. Defendant was granted a license, along with subsequent renewals of that license, to .,~= ~= ".. operate the facility in exchange for the promise to conduct said facility in accordance with the laws of the Commonwealth of Pennsylvania and with the rules and regulations of the Department of Health. 109. By signing the contract and license agreement, Defendant had a duty to operate its facility in accordance with the laws of the Commonwealth of Pennsylvania and with the rules and regulations of the Department of Health. 110. Defendant breached this contract and license agreement by failing to operate the facility in accordance with the laws of the Commonwealth of Pennsylvania and with the rules and regulations of the Department of Health, when it violated numerous regulations as set forth in 28 Pa. Code S 201.1 et. seq., and numerous provisions of the Health Care Facilities Act, 35 P .S. SS 448.1 01 - 448.904, as more fully set forth herein. 111. The purpose of the contract and license agreement between the Department of Health and Defendant is to ensure a minimum level of care and well-being for the residents ofthe facility. 112. Decedent, as a resident of the Defendant's facility, was an intended third party beneficiary of the contract and license agreement between the Department of Health and Defendant. 113. As a result of Defendant's breach of its contract and license agreement with the Department of Health, Decedent suffered numerous injuries, both physical and mental, as more fully outlined above. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in ~,. . ~. hi:L"-,, Plaintiff's favor and against Defendant, for pain and suffering and out -of-pocket medical expenses together with attorney fees, costs of suit, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. Date: '-.J" ",-, If ;2e'ur Respectfully submitted, GOATES, HALBROUNER & HATCH;.C. , / / ; \ ,-f.Ai _ -. BY: ,.,~r~ Cory J.'Snook, squire Attorney LD. 85734 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiff) "," 'r:; VERIFICA nON The undersigned hereby verifies that the facts averred in the foregoing document are true and correct to the best of his knowledge, information, and belief This verification is made subject to the penalties of 18 Pa. C.S.A. S 4904 relating to unsworn falsification to authorities. Date: . I b)lli 0'1 ( t ///.' d (/.Y~/ Y7.(~~-__ STINTZCUM, JR. cutor of the Estate ofEVEL YN M, TINTZCUM " . CERTIFICATE OF SERVICE I, Cory J. Snook, of the law firm of Gates, Halbruner & Hatch, P.C., hereby certif'y that I served a true and correct copy of the foregoing Complaint on this date by First Class mail addressed to the following: Marc A. Moyer, Esq. Kelly, Hoffinan & Goduto, LLP Commerce Towers, 10th Floor 300 North Second Street P.O. Box 62003 Harrisburg, PA 17106-2003 GATES, HALBRUNER & HATCH, P.C. //""") a J'- / "~t:f/ '/~- / >I . BY: (1L.7 ,~ .. vI/it Cory J .,SlloOk, JSquire lOB Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiff) Date: j, ,;;2 ! ( ",)cfIJ jJ ,~- ,~ , . ~~ ."'; CERTIFICATE OF SERVICE On this ,J,.:;j-;.I'aay of October, 2004, I, Kristine Hendrix, a legal secretary with the law firm of Kelly, Hoffinan & Goduto LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing ANSWER AND NEW MATTER OF DEFENDANT BEVERLY ENTERPRISES- PENNSYVLANIA, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER TO PLAINTIFF'S PETITION FOR RELIEF FROM A JUDGMENT OF NON PROS upon the person(s) and at the addressees) below named by United State First Class Mail, postage prepaid, in Harrisburg, P A: Cory 1. Snook, Esquire Gates, Halbruner & Hatch, P.C. 1013 Mumma Road Suite 100 Lemoyne, PA 17043 Counsel for Plaintiff ;j{~ ~ Kristine endrii 11 iI!I1IiIIIIliifi - *..~ -b"IlOIiiIiiOti~~~Jlii~ " -~ - - ~ - "'~ -..~......,,"~. ~ ~.'.I (-) 1""-" 0 c':'\ C ., "'T'} ~ c.:) ::,:7 '. ,r -~,"l ''-''''-: 0'. -1:J _.-<' "T;:"~ .....<" C) 0:) _VN' " > ~a" ._",. ',- " . RALPH STINTZCUM, JR., Executor of the Estate of Evelyn M. Stintzcum, Deceased Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendants. PRAECIPE TO LIST CASE FOR ORAL ARGUMENT TO THE PROTHONOTARY: Please list the within matter for the next Argument Court. I. The matter to be argued is the Plaintiff Ralph Stintzcum's Petition to Remove Judgment of Non Pros entered in favor of Defendant. 2. Names and addresses of all attorneys who will argue the case: (a) Plaintiff(s): Cory J. Snook, Esquire, Gates, Halbruner & Hatch, P.C., lOB Mumma Road, Suite 100, Lemoyne, Pennsylvania 17043. (b) Defendant(s): Marc A. Moyer, Esquire, Kelly, Hoffman & Goduto, LLP, Commerce Towers, lOth Floor, 300 North Second Street, P.O. Box 62003, Harrisburg, P A 17106-2003 3. Within two (2) days, I will notify all parties that this case has been listed for argument. 4. Argument Court Date: December 8, 2004 Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. ~ Cory J. S ook, Attorney LD. 5734 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiffs) Dated: November 17, 2004 ;~<<,~:~,zf::iLD-;,;,,- - -"-~ I . CERTIFICATE OF SERVICE I, Cory J. Snook, Esquire, of the law firm of Gates, Halbruner & Hatch, P.C., hereby certify that I served a true and correct copy of the foregoing Praecipe to List Case for Oral Argument by First Class United States mail, postage prepaid, to the following individuals: Marc A. Moyer, Esq. Kelly, Hoffinan & Goduto, LLP Commerce Towers, lOth Floor 300 North Second Street P.O. Box 62003 Harrisburg,PA 17106-2003 Date: November 17, 2004 GATES, HALBRUNER & HATCH, P.C. v BY: Cory J. ook, Attorney ill No. 5734 1013 Mumma Road, Snite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiffs) 2 "_".a-. 0t~ ,~- ,=, .<. ~ .~-~ - ._c__ >.< ,- " -,.,." ,c._ ~~ ~t: z =< . ~ '" I:::::, f;::.;) :.c- o -1""1 :::-~ rTI~ -nnl i~? ~~C~ :r:::n C)(~ ~n"i 1-~ ~ "....... '::2:.::;: j,-) ,,< -. .v .-':1>. ,- .. en ~ """ " "--,~ ^ ',- '.' - " -'L''-<-"_",, -'"-.'" '~'. -"il:, . RALPH STINTZCUM, JR., Executor of the Estate of Evelyn M. Stintzcum, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 00-3639 CIVIL vs. WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant IN RE: PETITION FOR RELIEF FROM JUDGMENT OF NON PROS BEFORE HOFFER. P.1., HESS AND OLER. J.1. ORDER AND NOW, this 2ff day of January, 2005, the petition of the plaintifffor relief from judgment of non pros is GRANTED and the non pros heretofore entered is STRICKEN. BY THE COURT, ~; 1. Snook, Esquire For the Plaintiff I~C A. Moyer, Esquire .J For the Defendant :rlm ~ ~ \.0 D \' ?:> ""'- ~,' '.'. ~.'-~ ,,--, " "=, , '-"~'ii$'- ~ FILFD-u-'Ci::ft'J: OF "'L1~ - , , ,,-'_ it'll.: PF'CJ7;t..;ONOTN~V '. ~ , . 2005 JAN 31 AN 117: 41 cu',.",.,,, i',/jb::::';-C~;:\D l-;nU\J7V P:::'\ji\,!~\I' '.'>:-r\ - It ""'-I".)rL~"\!Vli! , ~" ~ - ^ ,-, ~~ .. '. , I I " - -- - ~- . ..-... ,'"".--' -f,~~ .-,,~. .'L ~,i'".<'_'" "oi RALPH STINTZCUM, JR., Executor of the Estate of Evelyn M. Stintzcum, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 00-3639 CIVIL vs. WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant IN RE: PETITION FOR RELIEF FROM JUDGMENT OF NON PROS BEFORE HOFFER. PJ.. HESS AND OLER. J.J. OPINION AND ORDER On Jlme 15,2000, Doris Arena, in her capacity as Power of Attorney for Evelyn Stintzcum, filed a Writ of Summons against the Defendant, West Shore Health and Rehabilitation Center ("West Shore"). Evelyn Stintzcum had been an inpatient resident at West Shore. When Evelyn Stintzcum passed away, Ralph Stintzcum ("Stinzcum"), as Executor of her estate, was substituted as the Plaintiff. On December 1 0, 2002, Stintzcum filed Discovery to Aid in Preparing Complaint. On January 14,2002 West Shore filed an objection to that Discovery. Pa.R.C.P. 1042.1 et seq., which governs Professional Liability Actions, became effective January 27,2003. Stintzcum eventually filed the Complaint on June 14,2004. The Complaint against West Shore included counts of Professional Negligence, Vicarious Liability, Violation of Unfair Trade Practices and Consumer Law, Breach of Contract and Violation of Third Party Beneficiary Rights under Contract. The Complaint was not accompanied by a Certificate of Merit, nor was a Certificate of Merit filed within the time required by Pa. R.C.P. 1042.3. ,.-= -"~, h '.'" ,,-, ,"--, -",",.~-.,( _""""..h.,'~"__",,,",~_ _=0. c,-.,,", H,- .'"..,,. -,.',.,. ,- ,,'~ 00-3639 CIVIL On August 16,2004 West Shore filed a Praecipe for Entry of Non Pros based upon Stintzcum's failure to file a Certificate of Merit in accordance with Pa.R.Civ.P. 1042.6. Judgment of Non Pros was entered by the Prothontary in favor of West Shore against Stintzcum on August 16, 2004. Stintzcum filed a Petition for Relieffrom Judgment of Non Pros pursuant to Pa.R.Civ.P. 3051, on October 14,2004. Pa.R.C.P. 1042.1 et seq. applies to Professional Liability Actions. A Certificate of Merit must be filed according to 1042.3 which reads: (a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or (2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. Pa.R.C.P. 1042.3(d) provides: The Court, upon good cause shown, shall extend the time for filing a certificate of merit 2 n __, _,_,'H'<"_~_'_';";~""-_[_-___ ',"", -j.,,--,. ---'-",."' '. Lt; 00-3639 CIVIL for a period not to exceed sixty days. The motion to extend the time for filing a certificate of merit must be filed on or before the filing date that the plaintiff seeks to extend. The filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the court rules upon the motion. Failure to conform with 1042.3 is governed by 1042.6 which reads: (a) the prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that there is no pending timely filed motion seeking to extend the time to file the certificate The purpose ofPa.R.Civ.P. 1042.1 et seq. is to "bar any party from pursuing a professional liability claim against a licensed professional unless that party or some other party has a written statement from an appropriate licensed professional supporting a claim that the care, skill, or knowledge exercised by this licensed professional fell outside acceptable professional standards and that the conduct was a cause in bringing about the harm." Supervalu, Inc. v. Construction Eng'r Consultants, Inc., 65 Pa. D. & C. 4th 449, 454 (Allegheny 2004). The Order of the Peunsylvania Supreme Court enacting Pa.R.Civ.P. 1042.1 et seq. states: 'The new and amended rules shall be applicable to actions commenced on or after the effective date of this Order." Velazquez v. UPMC Bedford Mem'l Hosp., 338 F.Supp. 2d 609,612 (W.D. Pa. 2004). Even though the Complaint was filed after the effective date of 3 _"< ""~ ~,,',__.-o-,' -__-'-<-v". ',p",,-..;'-_'r " _,'" ,,;~ _ _',;, "'r_",''-''~ 00-3639 CIVIL 1042.1 et seq., Stintzcum contends that he is not in violation of 1042.1 et seq. because the action was commenced in June of2000 with the filing of the Writ of Summons. We agree. Pa.R.Civ.P. 1007 provides that "an action may be commenced by filing with the prothonotary (1) a praecipe for writ of summons, or (2) a complaint." (emphasis added) Rule I 007 clearly states that the filing of a praecipe for writ of summons is one of two ways to commence an action in a Pennsylvania State Court. In Dravo Corp. v. White Consol., 602 F.Supp. 1136, 1139 (W.D. Pa. 1985), the defendant argued that the plaintiffs filing of a writ of summons did not commence the action and that the action was not commenced until the plaintiff filed a complaint. The United States District Court for the Western District of Pennsylvania held that the action was commenced with the praecipe. Dravco, 602 F.Supp. at 1139. In reaching its decision the court noted the difference between Pa.R.Civ.P. 1007 and Fed.R.Civ.P.3. Id. Fed.R.Civ.P. 3 provides that "a civil action is commenced by filing a complaint." While Pa.R.Civ.P. 1007 provides that an action may be commenced by filing a Writ of Summons or a Complaint, the court emphasized that Pennsylvania's unique procedural rules allowed the action to survive. Id. This Court is not bound by the District Court's opinion. However, we believe it properly states the law. The Pennsylvania Supreme Court, in its order enacting Pa.R.Civ.P. 1042.1 et seq., stated, "the new and amended rules shall be applicable to actions commenced on or after the effective date of this order." We will, in fact we believe we must, assume that the Pennsylvania Supreme Court was well aware of its own rule Pa.R.Civ.P. 1007 in determining the effect, on pending actions, ofPa.R.Civ.P. 1042.1 et seq. Pa.R.Civ.P. 1007 specifically provides that an action may be commenced by either a complaint or a praeipe for 4 ^ <. . . l,'.'~ ~'--,"- ".,.,.., .-:",,,,,,~.,,,-,-, ~__,,'~ 00-3639 CIVIL writ of summons. Stintzcum filed his writ before the enactment ofPa..R.Civ.P. 1042.1 et seq. Therefore, the failure to file a Certificate of Merit with the Complaint was not fatal. The entry of non pros in this case was, accordingly, in error. ORDER AND NOW, this 'lB- day of January, 2005, the petition of the plaintiff for relief from judgment of non pros is GRANTED and the non pros heretofore entered is STRICKEN. BY THE COURT, Cory J. Snook, Esquire For the Plaintiff Marc A. Moyer, Esquire For the Defendant :rlm 5 ~1'..';", .' .. u_ ~ < - j~. ,~- '!!l_ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sutmitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argt:ment Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (ent:ll:e caption must be stated in full) RALPH-STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased (Plaintiff) vs. WEST SHORE HEALTH AND REHABILITATION CENTER (Defendant) No. 00-3639 Civil TERM 19 L State matter to be argued (i.e_, plaintiff's motion for new triaJ., defendant's dam=er to c~laint, etc.): Defendant's Preliminary Objections to Plaintiff's Complaint 2. Identify =unsel who w.i.ll argue case: (a) for plaintiff: Cory J. Snook, Esquire ~s: Gates, Halbruner & Hatch, P.C. 1013 Mumma Road Lemoyne, PA 17043 (b) for defendant: ~s: Marc A. Moyer, Esquire Kelly, Hoffman & Goduto, LLP P.O. 62003 HarriSburg, PA 17106-2003 I w.i.ll notify all parties in writing within i:'NO days that this case has been listed for argurent. 3. 4. Argunent Court Date: 'larchu23, 2005 3h/o( n-.-+-..........4. 17~ Iff A-ttorney for Defenaan I. ~:""A:;;&".':""""- " < T:'L, CERTIFICATE OF SERVICE On this 3rd day of March, 2005, I, Kristine Hendrix, a legal secretary with the law firm of Kelly, Hoffman & Goduto, LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing PRAECIPE TO LIST CASE FOR ORAL ARGUMENT upon the person(s) and at the addressees) below named by United States First Class Mail, postage prepaid, in Harrisburg, P A: Cory J. Snook, Esquire Gates, Halbruner & Hatch, P.C. 1013 Mumma Road Suite 100 Lemoyne, P A 17043 Counsel for Plaintiff ~+ iL~. I . stine Hendix ;.:.-, ',ili'"j1~ -~~""-' -'-,",,~ 'OO-i>!lI..Jil:;',j~J!:1li<llll~illtillL ,2". .> '" " .~l l/ ~! rl~liimIIiII_~IlJ.illliiUl.lillJ\:IiiilI~ ~"' (") C :?:. -o,;'il OJq), L,...",~~ -7C., ~'I~E; ~ ...... .....-<' <... :ze _,.--l_J J:>C ~ 'C!\ 5? ::r: ~ I W ~ Cf! >.' .'-~"""Jj, . ......,~ Q, ~ \~~ :;Qt? ?!q ",11 '"'0 "Zo'1"l "'-\ ~ - \D "" .. ,,-,-.. ," r siJ sooz t t HWl rf1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff v. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS OF WEST SHORE HEALTH AND REHABILITATION CENTER TO PLAINTIFF'S COMPLAINT I. PROCEDURAL HISTORY This nursing home liability action arises out of averments of professional negligence against Defendant West Shore Health and Rehabilitation Center ("West Shore"!"Facility") involving the nursing care provided to Plaintiff's decedent Evelyn M. Stintzcum. Plaintiff's decedent was admitted to West Shore on October 8, 1997, following rehabilitation at the Renova Center (HealthSouthRehabilitation of Mechanicsburg) for a broken hip she had sustained from a fall. Complaint, ,-[5, App. "A". Ms. Stintzcum passed away on March 8, 2001, while a resident at another facility. Complaint,,-[1. This action was initiated by Ralph Stintzcum, Jr., as Executor ofthe Estate of Evelyn M. Stintzcum, by filing a Writ of Summons against West Shore on June 15,2000. Four (4) years later, Plaintiff filed a five-count Complaint, asserting claims for negligence (Counts I and II), violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law (Count III) and breach of contract (Counts IV and V). On August 16, 2004, a Judgment of Non Pros was entered in favor of West Shore and against Plaintiff for failure to file a Certificate of Merit. On October 14,2004, Plaintiff filed a Petition for Relief from a Judgment of Non Pros. On January 28, 2005, '?:f",,;j?~~o1,:'-;.'A,;~ . -- -""-'-~ - ~ " .-- ~-, 11.1 , Plaintiffs Petition for Relief from a Judgment of Non Pros was granted, and the entry of Non Pros was stricken. II. STATEMENT OF FACTS Plaintiffs Complaint alleges, inter alia, that Ms. Stintzcum first became a resident of West Shore on or about October 8, 1997. Complaint, ~5. According to the Complaint, Ms. Stintzcum experienced bumps, bruises, cuts, swelling, and other injuries at various times throughout her residency at the Facility. Complaint, ~~10, 21, 25 and 42. Based upon each of the occurrences alleged in the Complaint, Plaintiff asserts that West Shore is both directly liable (Count I) and vicariously liable (Count II) for the injuries and damages Ms. Stintzcum allegedly experienced while a resident at the Facility. Complaint, ~~87, 91, 105 and 113. In addition to asserting the foregoing negligence claims against West Shore, Plaintiff also asserts a claim for breach of contract (Count IV) and a claim for breach of third party contract (Count V) against West Shore based solely upon the factual averments of negligence forming the basis for Counts I and II of the Complaint. Plaintiff also alleges in Count III of the Complaint that West Shore violated Pennsylvania's Unfair Trade Practices and Consumer Protection Law through its care and treatment of Ms. Stintzcum. (Count III). West Shore has filed Preliminary Objections to Plaintiffs Complaint on the ground that the facts alleged in the Complaint fail to support a legally viable claim under Pennsylvania's Unfair Trade Practices and Consumer Protection Law. West Shore has also filed Preliminary Objections to the Complaint on the ground that Plaintiff's contract based claims in Counts IV and V are impermissibly duplicative of the claims for professional negligence asserted in Counts I and II of the Complaint, and on the ground that Plaintiff has failed to set forth legally viable contract-based claims as a matter oflaw. In addition, West Shore has filed Preliminary 2 Objections on the ground that Plaintiffs Complaint impermissibly includes impertinent matters, and on the ground that the factual averments set forth in the Complaint are impermissibly vague and, therefore, fail to apprise West Shore of the particular facts forming the basis for Plaintiff s claims. III. OUESTIONS PRESENTED A. WHETHER PLAINTIFF'S COMPLAINT FAILS TO SET FORTH A LEGALLY VIABLE CAUSE OF ACTION UNDER PENNSYL VANIA'S UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW WHERE PLAINTIFF'S CLAIM IS PREDICATED UPON THE PROFESSIONAL NURSING CARE PROVIDED TO THE DECEDENT? (Suggested Answer: Yes) B. WHETHER PLAINTIFF'S COMPLAINT FAILS TO SET FORTH A LEGALLY COGNIZABLE CLAIM FOR BREACH OF CONTRACT WHERE THE DUTIES ALLEGEDLY BREACHED DO NOT ARISE OUT OF CONTRACT AND WHERE PLAINTIFF HAS FAILED TO PLEAD THE ESSENTIAL ELEMENTS FOR IDS CAUSE OF ACTION? (Suggested Answer: Yes) C. WHETHER PLAINTIFF'S REFERENCE TO THE CUMBERLAND COUNTY OMBUDSMAN'S INVESTIGATION CONSTITUTES SCANDALOUS OR IMPERTINENT MATTERS WHERE THE COMPLAINT FAILS TO AVER ANY CONNECTION BETWEEN THE OMBUDSMAN'S FINDINGS AND PLAINTIFF'S CAUSES OF ACTION? (Suggested answer: Yes) D. WHETHER THE CONCLUSIONARY AVERMENTS SET FORTH IN THE COMPLAINT, SHOULD BE STRICKEN WHERE THEY ARE UNSUPPORTED BY AVERMENTS OF FACT AND WHERE THEY FAIL TO SUFFICIENTLY APPRISE WEST SHORE OF THE PRECISE ALLEGATIONS FORMING THE BASIS FOR PLAINTIFF'S CLAIMS? (Suggested Answer: Yes) 3 4bj IV. PLAINTIFF'S COMPLAINT FAILS TO SET FORTH A LEGALLY VIABLE CAUSE OF ACTION UNDER PENNSYLVANIA'S UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW BECAUSE PLAINTIFF'S CLAIM IS PREDICATED SOLELY UPON THE PROFESSIONAL NURSING CARE PROVIDED TO THE DECEDENT. Count III of Plaintiffs Complaint improperly asserts a claim against West Shore based upon the Facility's purported violation of unspecified portions of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("CPL"), 73 P.S. g201-1 et. seq. Far from encompassing acts of professional negligence associated with the provision of nursing services, the CPL is designed to prohibit unfair methods of competition and unfair or deceptive acts or practices in the conduct of "trade or commerce." 73 P.S. g 201-3.' As properly recognized by the Pennsylvania ~uperior Court, the provisions of the CPL are inapplicable to providers of medical and/or related healthcare services, like West Shore. See, e.g., Gatten v. Merzi, 397 Pa.Super. 148,579 A.2d 974 (1990), app. den., 528 Pa. 611, 596 A.2d 157 (1991); Foflygen v. Zemel, 420 Pa.Super. 18,615 A.2d 1345 (1992), app. den., 535 Pa. 619, 629 A.2d 1380 (1993). In Gatten, a patient sued her physician after having undergone an unsuccessful surgical procedure to facilitate weight loss. In pursuing a claim under the CPL against her physician, the patient alleged that the physician had made certain statements to her about the course of her treatment and the probable results thereof. The physician filed preliminary objections to the patient's claim under the CPL asserting that the Act failed to provide for a legally cognizable claim based upon the provision of medical services. 397 Pa. Super at 149, 579 A.2d at 974. On appeal, the Pennsylvania Superior Court affirmed the trial court's decision sustaining the physician's preliminary objections. Specifically, the Court stated: 1 The Act defines "trade" and "commerce" as "the advertising, offering for sale, sale or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situate, and includes any trade or commerce directly or indirectly affecting the people of this Commonwealth." 73 P.S. g 201-2(3). . 4 i"',.. To impose the liability provided for by the Act to such statements would have the effect of making a physician the absolute guarantor of both his treatment and the anticipated results even in the absence of a specific contract warranting those results. Thus, each time a physician, without fault, performs an unsuccessful operation, he could face liability under the Act for preoperative statements about its anticipated outcome. Such an interpretation, which is inconsistent with our precedent regarding liability of physicians in performance of their medical services, would be absurd. fd. at 152, 579 A.2d 976 (emphasis in original). Notably, the Superior Court in Gatten went on to opine that the Pennsylvania legislature, in passing the CPL, did not intend to disturb the existing common and statutory law regarding when liability attaches for the administration of medical services. In Fojlygen v. Zemel, supra., a patient similarly asserted a claim under the CPL against a nurse, hospital and physicians alleging that they were negligent in the performing of a stomach stapling procedure. In that case, the patient's CPL claim focused upon alleged misrepresentations made by the healthcare providers concerning the surgical procedure. The practitioners filedpreliminary objections to the patient's CPL claim and asserted that the Act is inapplicable to medical services. The trial court granted the practitioner's preliminary objections. In upholding the trial court's decision, the Pennsylvania Superior Court reaffirmed its earlier holding in Gatten by once again holding that the CPL does not apply to the provider of medical services. fd. at 36-37,615 A.2d at 1355. In the present case, Plaintiff s allegations against West Shore under the CPL arise solely out of the nursing care and treatment provided to the decedent. See Complaint '11'1175-91. Specifically, Plaintiff readily admits that his cause of action under the CPL is based upon allegations that the Facility "did not provide the levels and quality of care promised..." and that, as a result of such conduct, the decedent "suffered numerous injuries, both physical and mental. . .." Complaint, '11'1193, 96. Clearly, Plaintiff s allegations that West Shore provided 5 . , , ~ "," __ ,,_c inadequate nursing care and treatment constitutes the type of health care services precluded from coverage under the Act in accordance with Gatten and F ojlygen. To the extent Plaintiff may attempt to assert that his CPL claim is somehow based upon certain "false advertising" and "misrepresentations", the Complaint makes clear that such conduct relates directly to the alleged shortcoming in the decedent's nursing care. Indeed, Plaintiff s professed injuries, both "physical and mental", set forth in Paragraph 96 of the Complaint could only have arisen from the nursing care provided to the decedent, and not the misrepresentations and false advertising alleged in Count III. For these reasons, and as clearly set forth by the Pennsylvania Superior Court in Gatten and Fojlygen, neither the nursing care provided to the decedent, nor any representations concerning that care are properly the subject of any action under CPL as a matter of law. Assuming arguendo, the long term nursing care provided to Plaintiffs decedent can somehow be construed as "trade or commerce" for the purpose of invoking application of the CPL, Plaintiffs allegations nevertheless fail to state a claim under the Act. To state a valid cause of action under the CPL, a plaintiff must allege both the existence of one or more of the specifically enumerated "unfair or deceptive practices" set forth by 73 P.S. 9201-2(4)(i)-(xxi), and the facts upon which such allegations are based. 73 P.S. 9201-3; Romeo v. Pittsburgh Assocs., 787 A.2d 1027, 1033 (Pa. Super. 2001), app. den., 568 Pa. 722, 797 A.2d 915 (2002). In addition, a plaintiff must allege facts showing that he justifiably relied on the defendant's wrongful conduct or representations, and that he suffered hann as a result of such reliance. Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425, 438 (2004). Here, Plaintiff s Complaint fails to identify with particularity the specific provisions of the CPL West Shore allegedly violated, or the facts upon which such violations are based. 6 - -". ";..- -0<--, Plaintiffs Complaint similarly fails to aver the existence of decedent's justifiable reliance upon West Shore's alleged wrongful conduct or how such reliance resulted in injuries to the decedent. To the extent Plaintiffs claim under the CPL is based upon fraud and/or the catchall provision 73 P.S. g201.2(xxi), Plaintiffs Complaint also fails to set forth such allegations with the particularity required by Pennsylvania law. In order to set forth a prima facie case under the catchall provision of the CPL, and its other fraud-based provisions, a plaintiff must allege facts satisfying the elements of common law fraud. Booze v. Allstate Ins. Co., 750 A.2d 877, 880 (Pa. Super. 2000), app. den., 564 Pa. 722, 766 A.2d 1242 (2000). Specifically, Plaintiff must set forth facts alleging the existence of: (1) a material misrepresentation; (2) made falsely, with knowledge of its falsity or with reckless disregard as to its truth or falsity; (3) with intent of misleading the other; (4) justifiable reliance on the misrepresentation; and (5) a resultant injury. See, e.g., Skurnowicz v. Lucci, 798 A.2d 788, 793 (Pa. Super. 2002); Sewak v. Lockhart, 699 A.2d 755, 759 (Pa. Super. 1997). Moreover, Pennsylvania law requires Plaintiff to allege each of the foregoing elements of fraud with particularity. See, e.g., Pa. R.Civ.P. 1019(b). "Averments offraud are meaningless epithets unless sufficient facts are set forth which will permit an inference that the claim is not without foundation or offered simply to harass the opposing party and to delay the pleader's own obligation. . .". Presbyterian Medical Center v. Budd, 832 A.2d 1066, 1072-1073 (Pa.Super. 2003) (quoting Bata v. Central-Penn Nat. Bank of Philadelphia, 423 Pa. 373,224 A.2d 174 (1966)). In order for a plaintiff to plead these facts sufficiently two conditions must be met: (I) the pleadings must adequately explain the nature of the claim to the opposing party so as to permit the preparation of a defense, and (2) they must be sufficient to convince the court that the averments are not merely subterfuge. Martin v. Lancaster Battery Co., Inc., 530 Pa. 11, 18,606 A.2d 444,448 (1992). 7 - , -'^ Part of the requirements that the Plaintiff plead fraud with particularity in this case requires that he demonstrate how West Shore acted with fraudulent intent, as opposed to committing mere negligence. Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 526 Pa. 541, 587 A.2d 1346 (1991) app. den., 502 U.S. 867, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991). In Muhammad, for example, appellants filed a complaint in which they claimed damages for, inter alia, fraudulent concealment and nondisclosure by their former attorneys. The alleged basis ofthe deceit was that the Muhammads' former attorneys attempted to cover up legal malpractice by convincing them to prematurely settle their case. When asserting their claim for fraud against their attorneys, the Muhammads merely averred that their attorneys acted with an "evil motive with an attempt to deceive and mislead." In finding such language to be insufficient to assert a claim for fraud, the Pennsylvania Superior Court held that "[t]he fatal flaw.. .is the failure to cite with any specificity how the defendant attorneys acted with fraud as opposed to mere negligence." Id. at 1352, 587 A.2d 553. The court in Muhammad went on to note that unless the Muhammads more completely described what facts supported their claim for fraud, the allegations could be considered as nothing more than unfounded accusations, which have no apparent basis in fact. In this case, Plaintiff merely avers that "Defendant engaged in fraud, false advertising, and misrepresentation. . . in that Defendant did not provide the levels and quality of care promised. . ." Plaintiff also asserts that "Defendant engaged in fraud, false advertising, and misrepresentation by failing to fulfill its duties under the admission agreement. . .". Complaint, ~~ 93, 95. As in Muhammad, these attempts to allege that West committed fraud fail to set forth such a claim with the particularity required under Peunsylvania law. That is, Plaintiff has failed to aver with particularity, any facts to suggest that West Shore acted with fraud, as apposed to mere negligence. Indeed, the only difference between Plaintiff's claim for negligence, and his 8 ,. ~~ "-- - 10" claim for fraud is the inclusion of the word "fraud" in the pleadings, without anything more. Because Plaintiffs claims offraudulent, misleading and deceptive conduct are unsupported by any factual averments upon which such a claim can be based, Plaintiffs' claims under the CPL are legally insufficient. Blumenstock v. Gibson, 811 A.2d 1029 (Pa. Super. 2003), app. den., 573 Pa. 714, 828 A.2d 349 (2003) (unsupported assertions and conclusory accusations caunot create genuine issues of material fact as to the existence of fraud). V. PLAINTIFF'S COMPLAINT FAILS TO SET FORTH A LEGALLY RECOGNIZED CLAIM FOR BREACH OF CONTRACT BECAUSE THE DUTIES ALLEGEDLY BREACHED D:O NOT ARISE OUT OF A CONTRACT AND BECAUSE PLAINTIFF HAS FAILED TO PLEAD THE ESSENTIAL ELEMENTS FOR SUCH l4. CLAIM. Through Count IV of the Complaint, Plaintiff asserts a claim for breach of contract based upon West Shore's alleged failure to provide "sufficient care and quality ofiife", in accordance with the decedent's "admission agreement," "care plan" and nondescript "promotional materials". Similarly, Count V of Plaintiffs Complaint alleges damages based upon decedent's purported status as a third party beneficiary to a nondescript "contract" and a "licensing agreement" allegedly entered into between the Facility and the Pennsylvania Department of Health. In Bash v. Bell Telephone Co. of Pennsylvania, the Pennsylvania Superior Court -, articulated the difference between contract actions and actions grounded in tort; [a]lthough they derive from a common origin, distinct differences between civil actions for tort and contract breach have developed at common law. Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.... Bash, 411 Pa.Super. 347, 356, 601 A.2d 825,829 (1992) (citations omitted) (citing Iron Mountain Sec. Storage Corp. v. American Specialty Foods, Inc., 457 F. Supp. 1158, 1165 (E.D. Pa.1978)). In addition, "[i]n the case of breach of contract, the goal of compensation is not the 9 " ",-'-'.-. ~, "-.,1 mere restoration to the former position.. .but the awarding of a sum which is equivalent of performance of the bargain." Prosser & W.P. Keeton, The Law of Torts, 992 at 656 (West 5th Ed. 1984). To that end, the primary goal of the law of contracts is to place the wrong party in the position he/she would have been in but for the breach. Gedeon v. State Farm Mut. Auto Ins. Co., 410 Pa. 55, 59, n. 5, 188 A.2d 320, 322 n. 5 (1963). In order for Plaintiff to maintain his contract-based claims in this case, Pennsylvania law requires that the wrong ascribed to West Shore arose out of a duty owed to the decedent by contract, as opposed to the generally accepted social duties imposed by tort law. For that reason, a claim for breach of contract based on a professional service provider's duty to act with care should be stricken from a complaint because the duty allegedly breached does not arise from a contract, but from a duty imposed by law. See, e.g., Red Rose Motors, Inc. v. Boyer & Ritter, 66 Pa. D. & C.4th 73,81-82 (Lancaster C.P. 2004) (an accountant's failure to perform an audit in accordance with the professional standard of care gives rise to a claim for negligence, not breach of contract); Peterman v. Geisinger Medical Center, 8 Pa. D & C.3d 432, 437 (Montour C.P. 1978) (when a complaint, in an action to recover for medical care, avers counts in both tort and contract, the court shall dismiss the contract counts as redundant since the action sounds in tort); Jaworski v. Orton, Joyce & Dunlavey P.c., 45 Pa. D. & C.4th 225, 228 (Allegheny C.P. 2000) (it is well-settled that a breach of contract claim will not lie where the averments or (the proofs) show professional negligence is the appropriate action). In this case, Plaintiffs claims are based solelv upon West Shore's care and treatment of Plaintiffs decedent. See, Complaint ~~8-32; 38-54; 56-57. Because the "contracts" cited in the Complaint are merely collateral to Plaintiffs claims for negligence, and because the alleged failure to provide proper nursing care, and nothing more, forms the very predicate for those claims and alleged injuries, Plaintiff is precluded from asserting contract-based causes of action 10 u -- ~ ,'-- ~ - - " '~ - '.-. based solely upon the nursing care provided to the decedent. Plaintiffs averments as to the nature of the injuries allegedly experienced by the decedent as a result of the alleged breach of "contract" speak volumes as to the true nature of Plaintiffs cause of action. Specifically, Plaintiff expressly admits in Counts IV and V of the Complaint that the injuries purportedly experienced by the decedent as a result of the alleged breach of "contract" comprise of "both physical and mental" injuries (i.e., tort-based injuries) rather than monetary injuries which are intended to be redressed through an action in contract. Complaint 'II'Ill05, 113. Because Plaintiffs cause of action rests more properly with his tort-based claims for professional negligence, and not in an action for breach of contract, Plaintiffs contract-based claims in Counts IV and V of the Complaint should be stricken. See, e.g., Peterman, 8 Pa. D & C.3d at 437. Assuming Plaintiff is permitted to assert contract-based claims upon the same allegations of improper nursing care giving rise to his negligence-based claims, Plaintiffs Complaint nevertheless fails to set forth viable claims for breach of contract in Counts IV and V as a matter oflaw. Specifically, the "contracts" allegedly breached in Count IV of the Complaint apparently comprise of an "admission agreement", "various" unspecified documents, a "care plan", and "various promotional materials". See, Complaint~~99, 101, 103-105. Similarly, Count V of Plaintiffs Complaint is apparently based upon West Shore's purported breach of a nondescript "contract" and "license agreement". To state a prima facie claim for breach of contract, a plaintiff must plead: 1) the existence of a contract, including its essential terms; 2) a breach of a duty imposed by the contract; and 3) resultant damage. Presbyterian Medical Center v. Budd, 832 A.2d 1066, 1070 (Pa. Super. 2003). The essential terms of a contract are: 1) an offer; 2) acceptance; and 3) consideration or mutual meeting of the minds. Jenkins v. County of Schuylkill, 441 Pa.Super. 642, 648, 658 A.2d 380, 11 "-. ,~ - 383 (1995), app. den., 542 Pa. 647, 666 A.2d 1056 (1995). In order for a pleading to be sufficient, all ofthe above stated elements must be specifically pled. Presbyterian Medical Center, 832 A.2d at 1070. Despite these requirements, Counts IV and V of Plaintiffs Complaint fail to aver the essential terms of the "contracts" West Shore allegedly breached, how West Shore allegedly breached those terms, and what contract-based damages, if any, Plaintiffs decedent incurred as a result of the breaches. In Count IV, for example, Plaintiff merely asserts that West Shore failed to provide sufficient care as "promised" in the "admission agreement", "various" other unspecified documents, and "various promotional materials". Clearly these averments do not specifically plead the essential terms of the "contract", the specific duties imposed by the "contract" or how West Shore breached the duties therein. In addition, Plaintiff alleges that West Shore breached the "care plan" by failing to comply with state and federal laws and regulations, and by failing to perform various unspecified obligations. Again, this allegation is completely devoid of any facts identifying how the decedent's "care plan" comprised of a "contract", what duties were imposed by the "care plan" as a contract; or how West Shore allegedly breached those duties. In Count V, Plaintiff similarly fails to aver how the "licensing agreement" asserted in Paragraph 109 constitutes a contract by identifying the contract's essential terms. Similarly, while Plaintiff uses the term "contract" in Paragraphs 109 through 113, he fails to identify any terms of the "contract" the duties imposed by the "contract" or how West Shore allegedly breached those terms. In addition to Plaintiffs inherent failure to identify the "contracts" allegedly breached in Counts IV and V, Plaintiffs Complaint also fails to conform to Pennsylvania Rule of Civil Procedure 1019(i) which required that Plaintiff attach a copy of the contracts to the Complaint. 12 ~~' - "--""'''k..; . I !c_1 I I While a party may justify its failure to attach a copy of a contract to a complaint if the contract is not accessible to the plaintiff, Pa. RCiv.P. 1019(i) requires a plaintiff to state that information in the complaint, set forth the substance of the contract in the Complaint, and provide an explanation for why the contract is unavailable. Pa. RC.P. No. 1019(i); Presbyterian Medical Center v. Budd, 832 A.2d 1066 (Pa.Super. 2003). In this case, Plaintiff has failed to attach to the -- Complaint copies of the "admission agreement," "care plan," "promotional materials," "contract," "license agreement" and "various documents" upon which his contract claims are based, and has similarly failed to set forth the substance ofthe "contracts" or articulate why copies of the contracts were unable to be attached to the Complaint as required. Complaint '\['\[ 94,95,99, 101, 103, 104 and 109-113. Because Plaintiffs breach of contract claims in Counts IV and V are improperly based upon tort theories ofIiability, and inherently fail to set forth the requirements to state breach of contract claims as a matter of law, Counts IV and V should be stricken from the Complaint. VI. PLAINTIFF'S REFERENCE TO THE CUMBERLAND COUNTY OMBUDSMAN'S INVESTIGATION CONSTITUTES SCANDALOUS OR IMPERTINENT MATTERS BECAUSE THE COMPLAINT FAILS TO AVER ANY CONNECTION BETWEEN THE OMBUDSMAN'S FINDINGS AND PLAINTIFF'S CAUSES OF ACTION Through Paragraphs 33 and 34, Plaintiff includes various immaterial and inappropriate averments regarding an investigation allegedly performed by the Cumberland County Ombudsman. See CClmplaint, '\['\[33,34. Pennsylvania Rule of Civil Procedure 1028(a)(2) authorizes Preliminary Objections for the purpose of eliminating impertinent matters from a complaint. Pa. R. Civ. P. 1028(a)(2). Allegations are considered to be impertinent, and thus subject to being stricken from a Complaint, when they are immaterial and inappropriate to the proof ofthe cause of action. Common Cause/Pennsylvania v. Com., 710 A.2d 108 (Pa. Cmwlth. 1998), affirmed, 562 Pa. 632, 757 A.2d 367(2000); Pa. RCiv.P. 1028(a)(2). 13 -'-.-" - '0 'ifuJ Plaintiffs averments regarding an investigation allegedly performed by the Cumberland County Ombudsman provide no facts upon which Plaintiff's professional negligence claims are based. Because Plaintiff has failed to plead any facts relevant to his professional negligence claim against the Facility with respect to the alleged findings of the Cumberland County Ombudsman, the inclusion of this material is immaterial to Plaintiff s cause of action and, therefore, should be stricken. VII. PLAINTIFF'S CONCLUSIONARY STATEMENTS. WHICH ARE UNSUPPORTED BY AVERMENTS OF FACT. SHOULD BE STRICKEN FROM THE COMPLAINT BECAUSE THEY FAIL TO SUFFICIENTLY APPRISE WEST SHORE OF THE PRECISE ALLEGATIONS FORMING THE BASIS FOR PLAINTIFF'S CLAIMS. Preliminary objections may be properly based upon "the failure of a pleading to conform to law or rule of court.. .". Pa. RCiv.P. 1028(a)(2). One such rule to which a pleading must conform is Pa.RCiv.P. 1019(a) which requires a plaintiff to plead all material facts upon which a cause of action is based in a concise and summary form. Pa.RCiv.P. 10 1 9(a). Similarly, preliminary objections may also be based upon the insufficient specificity of a pleading pursuant to Pa.RCiv.P. 1028(a)(3). To comport with the Pennsylvania Rules of Civil Procedure and Pennsylvania law, a complaint must sufficiently define issues and give notice to a defendant of what the plaintiff intends to prove at trial so that the defendant may, in turn, prepare a defense by meeting such proof with his own evidence. Laursen v. General Hospital of Man roe County, 259 Pa. Super. 150,160,393 A.2d 761, 766 (1978), rev'd. on other grounds, 494 Pa. 238,431 A.2d 237 (1981); Baker v. Rangos, 229 Pa. Super. 333, 350, 324 A.2d 498,506 (1974). In addition to failing to properly apprise an opposing party of that which he will be called upon to defend against at trial, generalized pleadings can also serve to thwart the statute ofIimitations by permitting a plaintiff to assert new causes of action or legal theories at any juncture in the litigation process. Thus, 14 -" -" surprise and the attendant inability to adequately prepare a defense. , , I I I i I I I i non-specific boilerplate pleadings present a very real risk of harm to a defendant in the nature of In Connor v. Allegheny General Hospital, 501 Pa. 306,461 A.2d 600 (1983), for example, the trial court denied appellants' motion to amend their complaint by adding a specific averment of negligence not previously set forth in their original complaint. The trial court thereafter granted appellee's motion for sununary judgment on the ground that appellants were unable to offer expert testimony to prove the allegations of negligence in their original complaint. The Pennsylvania Superior Court affirmed the trial court's decision by holding that the proposed amendment was barred by the statute ofIimitations because it sought to add new allegations of negligence by proceeding on a different theory ofIiability. On appeal, the Pennsylvania Supreme Court reversed both the Superior Court and the trial court by finding that the proposed amendment did not advance a new cause of action but, instead, merely amplified the non-specific and vague allegation of negligence in the original complaint asserting that the defendant was negligent "[i]n otherwise failing to use due care and caution under the circumstances. " The court further found that the appellee essentially waived any claim of prejudice regarding appellants' late "amplification" of the original complaint by virtue of its failure to preliminarily object to the original averment of negligence being amplified. Specifically, the court opined: If appellee did not know how it "otherwise fail[ ed] to use due care and caution under the circumstances," it could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved -to strike that portion of appellants' complaint (citations omitted). In this case, however, appellee apparently understood this allegation. .. well enough to simply deny it in its answer. Thus, appellee cannot now claim that it was prejudiced by the late amplification of this allegation. . .. 15 " --'.'-,. L,I Connor at 311, n. 3,461 A.2d at 602, n. 3. In light of Connor, Pennsylvania law is clear that whenever a defendant is faced with non-specific, allegations of negligence, the defendant must preliminarily object to the allegations or risk the plaintiffIater introducing new theories of liability "amplifying" the nonspecific averments set forth in the original complaint. Like each of the foregoing cases, it is clear that the allegations Plaintiff sets forth in ParagTaphs8,9, 13, 18,25,27,31,32,36,39,46,50,54,56,57, 73, 75-78,80,87,93-96,99- 102, 104, 105, 109-111 and 113 of Plaintiffs Complaint fail to apprise West Shore ofthe precise allegations being leveled against it as required by Pa. R. Civ. P. 1019. Similarly, the allegations fail to rise to the level of specificity contemplated by Pa. R. Civ. P. 1028(a)(3). Specifically, Paragraphs 8, 9,13,18,25,27,31,32,36,39,46,54,56,57,73,75-78,80, 87, 93-96,100-102, 104,105, 109-111 and 113 constitute conclusory statements unsupported by any averments of fact and, therefore, are impermissibly vague. In Paragraphs 8, 9 and 13, for example, Plaintiff generally avers that the decedent fell numerous times and was injured as a result of these unspecified falls. Notably, the averments are completely devoid of any facts identifying when, or how many times the decedent fell and which falls, if any, caused her alleged injuries. Similarly, Paragraph 18 of Plaintiffs Complaint fails to offer any facts in support ofthe conclusion that the decedent's attitude was caused by or exacerbated by West Shore's failure to treat her physical and psychological problems. Moreover, Paragraph 18 is devoid of any averment of fact identifying the physical and psychological problems West Shore allegedly failed to treat, or how it failed to treat those conditions. Through Paragraph 25, Plaintiff similarly avers that at a non-discernable point in time following repeated falls, the decedent's condition was listed as guarded. However, Paragraph 25 fails to identify the specific point in time when her condition was allegedly marked as guarded. As a result, West Shore is left to merely speculate as to the point in time to which Plaintiff refers. 16 '" ~ ~ ~ ~Ei~ In Paragraph 27 of the Complaint, Plaintiff avers that a physician ordered West Shore to implement fall prevention measures. However, the Complaint fails to offer any averments identifying the fall prevention measures West Shore allegedly failed to implement. Likewise, Paragraph 31 of the Complaint completely fails to aver any facts remotely capable of supporting Plaintiffs allegation that not all of West Shore's staff had been trained to use, operate, and/or evaluate the "new alarm". In addition, Plaintiff fails to aver what training he contends the staff should have, but failed to, receive. Plaintiff also goes on to assert in Paragraph 32 that the "new alarm" was not properly utilized by West Shore's staff, without averring how the alarm should have been utilized, or how West Shore's staff improperly utilized the alarm. In Paragraph 36 of Plaintiffs Complaint, Plaintiff asserts that the Pennsylvania Department of Health found the decedent to have suffered from various injuries, that West Shore allowed unspecified conditions go untreated which lead to more serious physical conditions, and that numerous deficiencies existed at the Facility. However, Plaintiff fails to aver the specific injuries he refers to in Paragraph 36, the conditions which purportedly went untreated, the "more serious physical condition" that allegedly resulted, or the deficiencies which existed at the Facility. Therefore, West Shore can only speculate as to what Plaintiff is referring to in Paragraph 36 of his Complaint. Paragraph 39 similarly alleges that decedent's physical and psychological symptoms remained unrecognized and untreated, without specifically identifying the symptoms to which he refers. To the extent, Paragraph 46 of the Complaint alleges that West Shore violated its own policy regarding notifying the decedent's physician, Plaintiff fails to identify the policy to which he refers. Paragraphs 54 and 57 are similarly deficient to the extent they assert that West Shore "continually" failed to meet the required staffing requirements, and failed to provide medically- 17 "!.~i', related social services. Implicit in Plaintiffs use of the word "continually,,2 is that West Shore's alleged failures were not continuous, but were intermittent or were repeated at certain intervals. However, Plaintifffails to aver the specific times or intervals during which West Shore allegedly failed to meet the required staffing requirements or failed to provide the necessary social services. Paragraph 56 similarly avers that West Shore failed to meet the minimum staffing requirements at times other than during the Pennsylvania Department of Health's investigation. Again, Plaintiff fails to specifically identify the "other times" he alleges West Shore failed to meet the minimum staffing requirements. Likewise, while Plaintiff generally asserts that there are "requirements" for competency standards and staffmg, and "requirements" for nurses and nurse's aides which West Shore failed to meet, Plaintifffails to aver the specific requirements to which he refers in Paragraph 73. In Paragraphs 75 and 76, Plaintiff alleges that West Shore had a duty to comply with various state and federal laws, regulations and guidelines, without identifying the specific laws, regulations and guidelines to which he refers. Through Paragraph 76, Plaintiff alleges that West Shore failed to provide adequate care, maintenance, nutrition, and support to Ms. Stintzcum. However, Plaintifffails to aver what care, maintenance, nutrition and support West Shore allegedly failed to provide, or how West Shore failed to provide them. In Paragraphs 77 and 78 of the Complaint, Plaintiff alleges that West Shore failed to provide the proper staffing to care for its residents. Again, Plaintiff's averments are devoid of any facts showing how West Shore purportedly failed to provide the proper staffing. 2 The American Heritage Dictionary explains that "continually" "is [ ] chiefly restricted to what is intermittent or repeated at intervals. . . ". 18 'c ~W'"""_"'" Plaintiff continues with his conclusory averments in Paragraph 80 where he asserts that West Shore negligently failed to prevent falls and injuries to the decedent, without averring what injuries Ms. Stintzcum suffered as a result of the falls, or how West Shore was negligent in not preventing the falls. In Paragraph 87, Plaintiff alleges that the decedent suffered numerous physical, mental and psycho-social injuries as a result of West Shore's negligence. Plaintiff once again fails to aver specific facts which identify the injuries the decedent allegedly suffered. Through Paragraph 93 of the Complaint, Plaintiff alleges that West Shore engaged in fraud, false advertising, and misrepresentation in its promotional materials and literature. However, Plaintiff has failed to identify the promotional materials and literature to which he refers. Paragraph 93 similarly asserts that West Shore failed to provide the levels and quality of care promised, without specifically identifying the levels and quality of care which were allegedly promised, who made the "promises", when the promises were made, or how the Plaintiff relied upon such promises as they relate to this case. Paragraph 94 of Plaintiffs Complaint generally avers that West Shore promised to provide certain minimal levels of care and quality of life. However, Paragraph 94 is completely devoid of any factual averments identifying the levels of care and quality of life that West Shore allegedly promised to provide. Similarly, in Paragraph 95, Plaintiff alleges West Shore engaged in fraud, false advertising, and misrepresentation by failing to fulfill its "duties" under the admission agreement, without ever identifying the duties West Shore owed to the decedent under the agreement, or how West Shore breached such duties. Through Paragraphs 96, 105 and 113 Plaintiff asserts that the decedent suffered numerous injuries, without identifying the specific injuries which decedent allegedly suffered for which this case is purportedly based. In Paragraph 100 and 102, Plaintiff alleges that West Shore failed to provide sufficient care and quality ofIife to decedent, without ever identifying the care and quality ofIife that was 19 allegedly insufficient. Nor does Plaintiff identify how the care was insufficient. Paragraph 101 avers that West Shore provided various promotional materials to Ms. Stintzcum, without specifically identifying the promotional materials to which he refers. Plaintiff alleges in Paragraph 104 that West Shore failed to implement and/or perform its obligations as set forth in the "care plan". However, Plaintiff fails to identify the specific obligations West Shore purportedly had under the "care plan", or how West Shore allegedly failed to fully implement and/or perform those obligations. Finally, Plaintiff alleges in Paragraph 109-111 that West Shore signed and breached a "contract". However, Plaintifffails to identify the "contract", or the terms of the "contract." Because each of the foregoing paragraphs merely comprise of summary conclusions unsupported by any averments off act for which West Shore can admit or deny, West Shore is unaware of what facts Plaintiff intends to establish at trial in support of each of his claims and, therefore, cannot, in turn, prepare a viable defense. Additionally, the averments set forth in Paragraphs 50 and 99 of Plaintiffs Complaint impermissibly contain the qualifying language "including" when describing the conduct forming the basis for Plaintiff's Complaint. As a result, Paragraphs 50 and 99 fail to apprise West Shore of the precise nature of the Plaintiffs claim but, instead, merely encompass an examples of some, but not all, of the facts and/or allegations potentially at issue in this case. In Cicero v. Cominsky, 25 D.&C. 4th 422 (C.P. Luzerne 1995), for example, the Court of Common Pleas ofLuzerne County sustained the defendant's preliminary objections to strike the very language currently used by Plaintiff in her Complaint. Specifically, the court found that the language "including, but not limited to" failed to apprise the defendants of all the material facts upon which the plaintiff s cause of action was based. As a result, the pleadings presented the potential to permit the plaintiff to pursue facts at trial which were not previously pled in the 20 . . , '.fi:;,_ complaint, and for which defendant would have had no prior notice. In rendering its determination, the court relied upon the interpretation of Rule 1019 set forth by the Pennsylvania Superior Court in Laursen v. Gen. Hasp. of Monroe County, 259 Pa. Super at 160, 393 A.2d at 766: "While Pennsylvania pleadings are no longer controlled by formalistic rules, it is still important that the complaint appraise a defendant of the nature and extent of the plaintiff s claim..." As in Cicero, Plaintiffs use of the phrase "including" fails to provide West Shore with notice ofthe precise claims being leveled against it. Instead, each of the pleadings impermissibly permit Plaintiff to later present other, unmentioned averments in support of his overall allegations of professional negligence. As properly recognized by the court in Cicero, pleadings serve the function of defining issues and giving notice to the opposing party of what the pleader intends to prove at trial so the opposition may, in turn, prepare to meet such proof with its own evidence. Cicero, 25 D. &C.4th at 424. In this case, however, the averments set forth in Plaintiff s Complaint fail to provide West Shore with sufficient notice of all of the facts it will be required to address at trial. Because Paragraphs 8, 9,13,18,25,27,31,32,36,39,46,54,56,57,73,75-78,80 and 87 of Plaintiffs Complaint constitute summary conclusions unsupported by any averments of fact, West Shore respectfully requests that each of the Paragraphs be stricken from the Complaint or, alternatively, that Plaintiff be compelled to amend the Complaint so as to articulate the facts upon which the sununary conclusions are based. Similarly, because the open-ended and non- inclusive pleadings set forth in Paragraphs 50 and 99 of the Complaint are impermissibly vague 21 ~- -~, ,,-,- ~".~~",> under the fact pleading requirement ofPa.R.Civ.P. 1019(a) and Pennsylvania Law, West Shore requests that Paragraphs 50 and 99 be stricken from the Complaint. Respectfully submitted: Dated: March 1..fL, 2005 Arthur K. offm n, squire Attorney J.D. No. 782 Marc A. Moyer, Esquire Attorney No. 76434 Lee S. Cohen, Esquire J.D. No. 89278 KELLY, HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, 10th Floor Post Office Box 62003 Harrisburg, PA 17106-2003 (717) 920-8100 Counsel for Defendant West Shore Health and Rehabilitation Center 22 >..---_.-, ., -, . ,c..;," , - n'i~-' ~ RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA VS. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, P A 17013 (717) 249-3166 (800) 990-9108 .-,"o"V - ~~ " " '" ~ . ~"IUI~L: RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Phlintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA vs. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, deceased, by and through his counsel, Gates, Halbruner & Hatch, P .C., and respectfully represents as follows: 1. Evelyn M. Stintzcum (hereinafter "Decedent") died on March 8, 2001. 2. On March 13, 2001, the Cumberland County Register of Wills granted letters testamentary to Ralph Stintzcum, Jr. (hereinafter "Plaintiff'), as the Executor of the estate of Evelyn M. Stintzcum. 3. This is a survival action brought pursuant to 42 Pa.C.S. S8302. 4. West Shore Health and Rehabilitation Center (hereinafter "Defendant") IS a corporation formed under the laws of the Commonwealth of Pennsylvania doing business as a provider oflong-term care services, with its principal place of business located at 770 Poplar Church Road, Camp Hill, Pennsylvania 17011. 5. Decedent was first admitted to Defendant's facility on October 8, 1997 following rehabilitation at the Renova Center (HealthSouth Rehabilitation of Mechanicsburg) ~- '- -o'iii:i' . for a broken hip she sustained in a fall. 6. Decedent was placed into Defendant's 1200 Unit, and was placed on "fall precautions." 7. There were no identifiable fall prevention measures put into place by Defendant. 8. Decedent fell numerous times while she was in Defendant's 1200 Unit. 9. After her falls, Decedent was rarely examined by a physician, and Decedent's family, primarily her granddaughter, Doris Arena, were not immediately notified of Decedent's falls. 10. As a result of these falls, Decedent received bumps and bruises, and the falls caused increased disorientation and fear in Decedent. 11. In December, 1997, Decedent was transferred to Defendant's 800 Unit with plans to prevent recurrent falls. 12. Any plans to prevent recurrent falls were not implemented by Defendant. 13. Decedent continued to experience numerous falls while in Defendant's 800 Unit. 14. After each fall, a notation appears in Decedent's file stating, "Mrs. Stintzcum appears fine and has no complaints of pain." 15. Decedent was rarely examined by a physician following her falls. 16. Decedent should have been examined by a physician after each fall, regardless of whether she stated she was experiencing no pain. 17. Decedent's file also documents a belligerent and/or difficult attitude of Decedent. 18. Plaintiff believes, and therefore avers, that Decedent's attitude was either caused by or exacerbated by the failure of Defendant to treat Decedent's physical and , ~~. ".~ "- "'." -. '. " . psychological problems. 19. Between February 13,1998 and February 26, 1998, Decedent fell more than six (6) times. 20. On or about February 14, 1998, Decedent complained of shoulder pam to Defendant's staff 21. Several days subsequent to this complaint, Decedent was diagnosed with a torn rotator cuff. 22. Decedent's physician ordered pain medication to be administered every four to six (4-6) hours. 23. Defendant facility did not even obtain the prescribed pain medication until over a week after the physician ordered it to be given. 24. The medication was only obtained after repeated prodding of the staffby Decedent's granddaughter, Doris Arena. 25. Decedent fell so many times that she had severe slashes on both arms, and her face was so swollen that she could not even open her eyes. 26. At this point, Decedent's physical condition was listed as "guarded". 27. After a physician ordered Defendant facility to implement fall prevention measures, a few of these measures were implemented, namely: A. Decedent was moved closer to the nurses' station. B. A fall mat was placed next to her bed. C. A clip-on alarm was put on Decedent's bed 28. The alarm described in Paragraph 27(C) above, was placed within Decedent's reach n .,.!.~ and could be easily removed by her. 29. Decedent's granddaughter, Doris Arena, visited Decedent and provided personal care to her on an almost daily basis. 30. A new alarm was placed in Decedent's room, which was designed to help prevent Decedent's recurrent falls. 31. Not all of Defendant's staff had been trained to use, operate, and/or evaluate the new alarm. 32. The new alarm was essentially for appearance only, in that it was not properly utilized by Defendant's staff. 33. Doris Arena contacted the Ombudsman of Cumberland County to investigate Defendant's facility. 34. The Ombudsman found: A. Defendant was not changing Decedent's bed linens; B. Defendant was not providing proper nutrition to Decedent; C. Defendant was not bathing Decedent; and D. Defendant was not providing personal hygiene to Decedent. 35. Doris Arena also contacted the Commonwealth of Pennsylvania, Department of Health to investigate Defendant's facility. 36. The Commonwealth found: A. Decedent's psychological well-being was being essentially ignored. B. Diagnosis and recognition of physical conditions were ignored, in that: (1). Decedent had pneumonia; - >' '. .'" 'J> (2). Decedent had urinary tract infections; and (3). Decedent had various injuries following her numerous falls C. Decedent was hospitalized and treated only after continuous and outspoken demands of Doris Arena. D. Decedent's physical conditions, obviously present, were left untreated, which led to: (1). More serious physical conditions; (2). Increased pain and suffering; and (3). Caused Decedent's belligerent, antagonistic, uncooperative, and aggressive behavior. E. There were numerous deficiencies in the physical surroundings of Decedent's environment. 37. Despite a mandate from the Pennsylvania Department of Health to correct the numerous deficiencies, Decedent's physical and psychological care and treatment remained the same. 38. Decedent continued to fall. 39. Decedent's physical and psychological symptoms remained unrecognized and untreated. 40. Decedent's physical conditions did not change. 41. Decedent's psychological interaction with others did not change. 42. In or around October, 1999, Decedent developed a urinary tract infection. 43. Decedent's physician ordered an antibiotic, Ciprofloxacin, to be administered two " - '" - ",,' - ~'"--~ ~~', times a day for 14 days. 44. Decedent allegedly refused thirteen (13) out of the required twenty-eight (28) doses. 45. Defendant's records lack any evidence as to the reason for these refusals, and also lack evidence as to any remedial measures implemented to administer the medication. 46. Contrary to Defendant's own policy, Decedent's physician was not notified about the Decedent refusing to take her medication. 47. The unit charge nurse and the assistance director of nursing were not even aware that the Decedent continued to refuse her medication. 48. Defendant failed to evaluate Decedent's refusal of her medication to ensure continuity of care. 49. Defendant failed to provide the Decedent with the scheduled doses of the physician- ordered medication. 50. Defendant is required to have a physician review each resident's total program of care, including medications and treatments, at each visit. 51. Defendant is required to have the physician write, sign, and date progress notes at each visit, and sign and date all orders. 52. Defendant failed to ensure that the physician supervised the plan of care for Decedent, as evidenced by the fact that the physician failed to date all orders. 53. Defendant failed to ensure Decedent's care in that the physician did not review and assess recapitulation sheets for the month of October, 1999. 54. It is alleged, and therefore averred that Defendant continually failed to meet ." " " '-, "'~', -- ~ '1iIl~~ minimum staffing requirements set forth by the Pennsylvania Department of Health and the Health Care Financing Administration. 55. Defendant was cited by the Pennsylvania Department of Health for failing to meet the minimum 2.7 hours of nursing care for each resident on November 5,1999, November 6, 1999, and November 7, 1999. 56. It is alleged, and therefore averred, that Defendant continually failed to meet the minimum staffing requirements at other times as well; and not just when the Pennsylvania Department of Health conducted investigations. 57. Defendant continually failed to provide medically-related social services to maintain the highest practicable physical, mental, and psycho-social well-being of Decedent. 58. Medicaid is a joint state and federal funded program established under Title XIX of the SocialSecurity Act, and codified at 42 D.S.C. S 1396, et. seq., and is aimed at providing assistance to individuals who qualify based on financial need and medical need. 59. The Health Care Financing Administration is the federal agency which administers the Medicaid program. 60. Defendant accepted Medicaid payments for it residents, thereby subjecting itself to the federal and state laws, regulations, and guidelines that pertain to the Medicaid program. 61. The Nursing Home Reform Act sets strict standards for nursing facilities that accept Medicaid funds, 42 D.S.C. S 1395r. 62. The relevant regulations, 42 C.F.R. SS 483.5 -483.75, provide that residents must be , - .J<--. , ,-j,,-. . '~~ treated as individuals, not made to conform to a facility's schedule for the sake of convemence. 63. Included among these is the Resident's Bill of Rights, which provides, in part, that a resident has the right to be free from physical and/or mental abuse. 64. The Resident's Bill of Rights also provides that a resident has the right to receive services with reasonable accommodation of individual needs and performance. 65. In drafting the Resident's Bill of Rights, the legislature did not intend for the psychological status of a resident to be utilized as an excuse not to provide adequate care and treatment. 66. Decedent's sometimes belligerent and combative attitude and/or disposition was a direct result of the care and treatment she was receiving from Defendant's facility. 67. Defendant had a duty to work with Decedent to improve her psychological well- being, rather than using it as a shield against providing adequate care. 68. Decedent was subsequently moved by her family out of Defendant' s facility and into another long term care facility. 69. Once in the new facility, Decedent's psychological well-being greatlyirnproved due to the care she received. 70. Once in the new facility, Decedent was no longer confused, combative, or belligerent. 71. The Nursing Home Reform Act also requires facilities to care for their residents in such a manner and in such an environment as will promote the maintenance and/or enhancement of the quality of life of each resident. 72. The Nursing Home Reform Act also requires facilities to provide services to attain ~~ -'- hi or maintain the highest practicable physical, mental, and psycho-social well-being of each and every resident. 73. Under this requirement, there are requirements for competency standards and staffing requirements for nurses and nurse's aides. COUNT I. NEGLIGENCE 74. Paragraphs 1 through 73 are hereby incorporated by reference as though more fully set forth herein. 75. Defendant had a duty to provide proper care, maintenance, nutrition, and support to Decedent in accordance with state and federal laws, regulations and guidelines, as more fully set forth herein. 76. Defendant negligently failed to provide adequate care, maintenance, nutrition, and support to Decedent during her stay in their facility, in accordance with state and federal laws, regulations and guidelines, as more fully set forth above. 77. Defendant had a duty to provide proper staffing sufficient to care for its residents. 78. Defendant negligently failed to provide the proper staffing sufficient to care for its residents. 79. Defendant had a duty to prevent falls and injuries to Decedent. 80. Defendant negligently failed to prevent falls and injuries to Decedent. 81. Defendant had a duty to provide a level of care that would diminish the possibility of urinary tract infections in Decedent. 82. Defendant negligently failed to provide a level of care that would diminish the ,''''""''''''. -L_ , '0 '-."",-- possibility of urinary tract infections in Decedent. 83. Defendant had a duty to administer physician-ordered medications, even over Decedents "refusals." 84. Defendant negligently failed to administer physician-ordered medications to Decedent. 85. Defendant had a duty to notify the physician that Decedent was not taking her medications. 86. Defendant negligently failed to notify the physician that Decedent was not taking her medications. 87. As a result of Defendant' s negligence, Decedent suffered numerous physical, mental and psycho-social injuries, as more fully set forth above. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff s favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT II. VICARIOUS LIABILITY OF DEFENDANT FOR THE NEGLIGENT ACTS OF ITS MEDICAL STAFF AND EMPLOYEES 88. Paragraphs 1 through 87 are hereby incorporated by reference as though more fully set forth herein. 89. At all times relevant hereto, the medical staff and the employees of Defendant were the agents, ostensible agents and/or agents by estoppel of the Defendant. 90. At all times relevant hereto, the medical staff and employees of Defendant were ~ '^ , ~ 'C -,' '^ ^ _ ~___ acting within the scope of their employment and/or agency with the Defendant, with the permission and consent of the Defendant, subj ect to the control of the Defendant, and in furtherance of the Defendant's interests. 91. Defendant is vicariously liable for the damages caused by the negligent actions and conduct of the medical staff and employees as more particularly described herein. WHEREFO RE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff's favor and against Defendant, for pain and suffering and out -of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT III. VIOLATION OF UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 73 P.S. &201-1 et seq. 92. Paragraphs 1 through 91 are hereby incorporated by reference as though more fully set forth herein. 93. Defendant engaged in fraud, false advertising, and misrepresentation in its promotional materials and literature supplied to Plaintiffs, in that Defendant did not provide the levels and quality of care promised, as more fully set forth above. 94. Defendant entered into an admission agreement with Decedent and/or her family wherein Defendant promised to provide certain minimal levels of care and quality of life. 95. Defendant engaged in fraud, false advertising, and misrepresentation by failing to fulfill its duties under the admission agreement executed by Defendant and Decedent " . __._0._, , ,'I and/or her family, as more fully set forth above. 96. As a result, Decedent suffered numerous injuries, both physical and mental, as more fully outlined herein. 97. Defendant's conduct constitutes "unfair methods of competition" and/or "unfair or deceptive acts or practices" giving rise to a private action under the Unfair Trade Practices and Consumer Protection Law, 73 P.S. g201-1 et seq. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff's favor and against Defendant, for pain and suffering and out -of-pocket medical expenses together with attorney's fees, court costs, interest, treble damages as provided for in the statute and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for COlnpulsory arbitration under local rules. COUNT IV. BREACH OF CONTRACT 98. Paragraphs 1 through 97 are hereby incorporated by reference as though more fully set forth herein. 99. Decedent and/or decedent's personal representative signed various documents, including an admission agreement wherein Defendant promised to provide certain minimal levels of care and Quality oflife. 100. Defendant failed to provide sufficient care and quality oflife as promised as more fully outlined herein. 101. Defendant provided Decedent and/or Decedent's personal representative, and the public at large, with various prornotional materials which promised that Defendant ,~~ " , > .." I? , ..:! would provide Decedent with a certain level of care. 102. Defendant failed to provide sufficient care as promised, as more fully outlined herein. 103. Defendant was required to provide a "care plan" for each of its residents in which Defendant stated it would comply with state and federal laws and regulations. 104. Defendant failed to fully implement and/or perform its obligations set forth in the "care plan." 1 05. As a result of Defendant , s breach of the admission agreement, "care plan" and other promotional materials, Decedent suffered numerous injuries, both physical and mental, as more fully outlined herein. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff s favor and against Defendant, for pain and suffering and out -of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT V. VIOLATION OF THIRD PARTY BENEFICIARY RIGHTS UNDER CONTRACT BETWEEN DEFENDANT AND COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF HEALTH 106. Paragraphs 1 through 105 are hereby incorporated by reference as though more fully set forth herein. 107. Defendant applied to the Pennsylvania Department of Health to operate a skilled and/or intermediate care facility in accordance with the Health Care Facilities Act, 35 P.S. 99 448.101 - 448.904. 108. Defendant was granted a license, along with subsequent renewals of that license, to , . , . "~. :m"i , (,lJiI . operate the facility in exchange for the promise to conduct said facility in accordance with the laws of the Commonwealth of Pennsylvania and with the rules and regulations ofthe Department of Health. 109. By signing the contract and license agreement, Defendant had a duty to operate its facility in accordance with the laws of the Commonwealth of Pennsylvania and with the rules and regulations of the Department of Health. 110. Defendant breached this contract and license agreement by failing to operate the facility in accordance with the laws of the Commonwealth of Pennsylvania and with the rules and regulations of the Department of Health, when it violated numerous regulations as set forth in 28 Pa. Code S 201.1 et. seq., and numerous provisions of the Health Care Facilities Act, 35 P.S. SS 448.101 - 448.904, as more fully set forth herein. Ill. The purpose of the contract and license agreement between the Department of Health and Defendant is to ensure a minimum level of care and well-being for the residents of the facility. 112. Decedent, as a resident of the Defendant's facility, was an intended third party beneficiary of the contract and license agreement between the Department of Health and Defendant. 113. As a result of Defendant's breach of its contract and license agreement with the Department of Health, Decedent suffered numerous injuries, both physical and mental, as more fully outlined above. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in ~ " J~ " ";ii I (II ,. Plaintiff s favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney fees, costs of suit, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. ",J" "'-t I {~)cYO r Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. /l (J~.. /~ ,/L.r7 \ / f4 BY: U.. .,. /,,/rZ- Cory J. nook, squire Attorney LD. 85734 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiff) Date: ~- - ~ '_._0; 'V _. _ ,'_ , "~ lfImi';;i I .,. ,. VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing document are true and correct to the best of his knowledge, information, and belief. This verification is made subject to the penalties of 18 Pa. C.S.A. S 4904 relating to unsworn falsification to authorities. Date: . , &)111 01./ ( ( (~c.~'~r-_ / . ~ STINTZCUM, JR. cutor of the Estate ofEVEL YN M, TINTZCUM .-- , '",.'r._ c _~, -~ ~ .... ,. CERTIFICATE OF SERVICE I, Cory J. Snook, of the law firm of Gates, Halbruner & Hatch, P.C., hereby certify that I served a true and correct copy of the foregoing Complaint on this date by First Class mail addressed to the following: Marc A. Moyer, Esq. Kelly, Hoffinan & Goduto, LLP Commerce Towers, 10th Floor 300 North Second Street P.O. Box 62003 Harrisburg, P A 17106-2003 GATES, HALBRUNER & HATCH, P.C. /~\ 0 .,,' f! /L// BY: L{jO-Z,y "~/ 61f/rc?, CoryJ.~~ook,~quire 1013 MununaRoad, Suite 100 Lemoyne, P A 17043 (717)731-9600 (Attorneys for Plaintiff) Date: Ju "J? ! (, ~)t?) Y c ,', - .'~ ,-.--1 tlH . .- -- ,. CERTIFICATE OF SERVICE On this 11th day of March, 2005, I, Kristine Hendrix, a legal secretary with the law firm of Kelly, Hoffman & Goduto LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS OF WEST SHORE HEALTH AND REHABILITATION CENTER TO PLAINTIFF'S COMPLAINT upon the person(s) and at the addressees) below named by United States First Class Mail, postage prepaid, in Harrisburg, PA: Cory 1. Snook, Esquire Gates, Halbruner & Hatch, P.C. 1013 Mumma Road Suite 100 Lemoyne, PA 17043 Counselfor Plaintiff ~~,' / Kri ine HeydTix r , . . ""''''. (jj) MAR 182005,.'$/ RALPH STINTZCUM, JR., Executor of the Estate of Evelyn M. STINTZCUM, Deceased, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW BRIEF IN OPPOSITION TO DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW, comes the Plaintiff, RALPH STINTZCUM, JR., Executor of the Estate of Evelyn M. Stintzcum, Deceased, by and through their counsel, Gates, Halbruner & Hatch, P.C., and respectfully presents the following: Statement of the Facts: This action was originally filed by Writ of Sununons in June, 2000 by Doris Arena, in her capacity as Power of Attorney for Evelyn Stintzcum. When Evelyn Stintcum passed away, Ralph Stintzcum, Jr., as Executor of the Estate of Evelyn Stintzcum, was substituted as the Plaintiff. On or about December 10, 2002, Plaintiff filed Discovery to Aid in Preparing Complaint, seeking various documents in Defendant's possession so that a Complaint could be filed. On or about January 14, 2003, Defendant, through counsel, filed an objection to that Discovery and also "' ~ ~I-~_' , provided some limited documentation that was being sought in the Discovery. After numerous communications back and forth between counsel throughout the next year, counsel for Defendant admitted by letter dated February 4, 2004 that the documentation requested could not be located by Defendant. The Complaint was subsequently filed on June 14,2004. On or about August 16, 2004, Defendant entered a Judgment of Non Pros against Plaintiff for failure to file a Certificate of Merit within the time required byPa. RC.P. 1042.3. On or about October 14,2004, Plaintiff filed a Petition for Relief from the Judgment of Non Pros. Oral argument was held on December 8,2004. On January 28,2005, the Honorable Kevin J. Hess, J., issued an order and opinion granting Plaintiff s Petition for Relief from Judgment of Non Pros, the judgment was stricken. On or about February 17, 2005, Defendant filed Preliminary Objections to Plaintiff's Complaint. The case was then listed for oral argument. The within Brief is in opposition to said Preliminary Objections, and filed in advance of oral argument in accordance with the Rules. _0 '~"i. Questions Presented: 1. Does Plaintiff's Complaint adequately set forth a viable claim under Pennsylvania's Unfair Trade Practices and Consumer Protection Law? Suggested Answer: Yes 2. Does Plaintiff's Complaint adequately set forth a viable claim for Breach of Contract? Suggested Answer: Yes 3. Does Plaintiff's Complaint contain scandalous or impertinent matter? Suggested Answer; No 4. Should statements in Plaintiff's Complaint be stricken as conclusionary? Suggested Answer: No Discussion of the Issues: 1. Plaintiff's ComDlaint adequately sets forth a viable claim under Peunsylyania's Unfair Trade Practices and Consumer Protection Law. Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 P .S. ~20 1-1 et seq., (hereinafter UTPCPL) is designed to prevent unfair methods of competition and unfair or deceptive practices in the conduct of trade or commerce. 73 P.S. ~201-3. The Act sets forth that "trade or commerce" is the "advertising, offering for sale, sale or distribution of any services. . . directly or indirectly affecting the people of this Commonwealth." 73 P.S. ~201-2(3). ''This already broad language is to be construed broadly so as to effectuate as fully as possible the Legislature's purpose of preventing unfair or deceptive practices." Culbreth v. Lawrence J. Miller, Inc., 477 A.2d 491, 495 (pa. Super. 1984). The Culbreth case was cited in Chalfin v. Beverly Enterprises, Inc., 741 F. Supp. 1162 (E.D. Pa. 1989), which held that the " "~ ~4to'; Plaintiff clearly purchased health care services from the Defendant health care facility, and ,,-therefore came under the ausnice~ ofPennsvlv~ia's UTPCPL. Health Care facilities are not ~ ~ -i.I. specifically excluded from the UTPCPL. "The Pennsylvania Courts have consistently taken the view that unless the legislature expressly excludes a certain group from the confines of the Consumer Protection Law, no such exclusion exists." Chalfin, 741 F. Supp. at 1177. "There is no indication of an intent to exclude a class or classes of transactions from the ambit of the UTPCPL. When the Legislature deemed it necessary to make an exception from the Law's scope, it did so in clear language." Commonwealth v. Monumental Properties, Inc. 329 A.2d 812, 815 n. 5 (Pa. 1974). Defendant provided Mrs. Stintzcum, and her family, with numerous pamphlets, advertisements, and brochures, all of which assUred the family that Mrs. Stintzcum would be given the highest levels of care. These materials, along with the promises of the agents/employees of Defendant, are what led the family to choose Defendant's facility. Not only were many of the promised services not provided, but Mrs. Stintzcum was provided with services that were well below the standards for acceptable behavior by Defendant's agents/employees. In order to sustain a demurrer, it is imperative that the complaint indicate on its face that the claim cannot be sustained and the law will not allow a recovery. Frankel v. Northeast Land Company, 570 A.2d 1065 (pa. Super. 1990). "If there is any doubt, this should be resolved in favor of overruling the demurrer." Id., at 1068, citing Clevenstein v. Rizzuto, 266 A.2d 623 (Pa. 1970), The preliminary objection should be overruled if the averments set forth in the complaint state a cause of action under any theory oflaw. Packler v. State Employees' Retirement Board, 368 A.2d 673 (pa. 1977). All facts set forth in the challenged complaint must be accepted as " ~ If l.illK~"': true, in addition to all inferences reasonably deducible from those facts. Mahoney v. Furches, 468 A.2d 458 (Pa. 1983). The UTPCPL is designed to protect consumers from fraud and unfair or deceptive business practices, and the statute is the principal means for doing so. Pirozzi v. Penske Olds- Cadillac-GMC, Inc., 605 A.2d 373 (pa. Super. 1992). 73 P.S. 9202-2 (4) defines "unfair methods of competition" and "unfair or deceptive acts or practices." Among the clauses listed under 73 P.S. ~202-2 (4) that apply to this case are the following: (vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; ***** (xiv) Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made; ***** (xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. The allegations of the Complaint, which must be accepted as true when contemplating a demurrer, support a cause of action under these specific clauses, and therefore, under the UTPCPL. Defendants argue that Count III of the Complaint merely restates the negligence contained in prior counts. However, the UTPCPL "encompasses an array of practices which might be analogized to passing off, misappropriation, trademark infringement, disparagement, false advertising, fraud, breach of contract, and breach of warranty." Gabriel v. O'Hara, 534 A.2d 488, 494 (Pa. Super. 1987) (emphasis added). The Complaint clearly states such a cause of action for false advertising and breach of contract, and the supporting facts are incorporated into Count III. '; --~, -~i' Plaintiff has pleaded facts sufficient to support a cause of action under the UTPCPL. Therefore, Count ill of the Complaint should not be dismissed. 2. Plaintiff's Complaint adequatelY sets forth a viable claim for Breach of Contract. Plaintiff, before filing the Complaint in this matter, filed Discovery to Aid in Preparing a Complaint. Specifically, Plaintiff was requesting, among other things, the Resident Admission AgreertJ.~t between Mrs. Stintzcum and the Defendant. Defendant provided a "Short Term Admission Agreement", and subsequently informed Plaintiff via letter dated February 4,2004, that it was unable to locate the Resident Admission Agreement. The Short Term Admission Agreement is clearly a contract between the facility and the patient, and even states as much in that Paragraph 9 is titled "Contract Termination After 60 Days." Paragraph 9 goes on to state that after the initial 60 day stay, "the Patient will be subject to the terms and conditions of and required to execute the Resident Admission Agreement which meets additional requirements for long term care." Clearly, a contractual relationship between the Defendant facility and Mrs. Stintzcum existed. Now, Defendant asserts that the breach of contract claim should be dismissed for failure to state a claim, after the contract itself was requested from Defendant but apparently lost. However, Plaintiff feels that a breach of contract claim is appropriate not ouly on the missing Resident Admission Agreement, but also on the Short-Term Admission Agreement. An issue strikingly similar to this was recently decided by the Mercer County Court of Common Pleas in Zaborowski v. Hospitality Care Center of Hermitage, Inc., 60 Pa. D & C. 4th 474 (2002). As in the present case, in Zaborowski the defendant health care facility filed a Ijlj'L..~ preliminary objection to the plaintiff's breach of contract claim based on the admission agreement. As in this case, the facility argued that the claim sounded in tort rather than contract. The Court disagreed and sided . a,~.[,. """"""'f"""",_~ ~ "Pennsylvania courts have not issued an opinion addressing the issue of whether nursinghome can be held liable to a resident for breach of contract. But several other jurisdictions have held that a resident can maintain such a cause of dction against a nursing home for breach of contract. See e.g., Hutchins v. Bethel MethodistHome, 370 F. Supp. 954 (S.D.N.Y. 1974); Free v. Franklin Guest Home Inc., 397 So.2d 47 (La.App. 2d Cir. 1981); Francis v. Health Care Capital Inc., 933 F. Supp. 569 (E.D. La. 1996); McIntyre v. Transitional Health Serv., 1998 U.S. Dist. Lexis 13965 (M.D.N.C. 1998); Guerin v. NH Catholic Charities Inc., 418 A.2d 224 (N.H. 1980). Za - 84. The court went on to say that it found one case particularly persuasive in Callens v. Jefferson County Nursing Home, 769 So.2d 273 (Ala. 2000). The Alabama Supreme court ended up rejecting the nursing home's argument that the claim was based in tort rather than contract. In the Callens case, the plaintiff alleged that the defendant facility failed to provide a "safe, clean and comfortable environment." Callens, at 279. The Alabama Supreme Court held that "since 'the duty to maintain sanitary conditions is expressed in the contract. . . a breach of that duty is actionable in contract'." Zaborowski, 60 Pa. D. & C..4th, at 484, citing Callens, 769 So.2d at 279-280. In the present case, Mrs. Stintzcum was subsequently moved to another facility, and then passed away. As a result, her family was unable to locate her copy of the Resident Admission Agreement, if she was ever given one. This is precisely why this document was requested from the Defendant before a complaint was filed. It is alleged that the Resident Admission Agreement, like most standard admission agreements for nursing home, promised to provide adequate care and services to Mrs. Stintzcum, in exchange for monetary payments. Defendant breached its contract by failing to provide the appropriate 1 ~ "~11'1!!rm': levels of care. The specific actions of Defendant, and its agents/employees, are set forth with sufficient particularity in the Complaint. In any event, the Short-Term Admission Agreement states under Paragraph 6, that "A list of supplies and services that are included in the Facility's private daily pay rate. . . and a list of supplies and services for which the Patient will be separately charged will be provided to the Patient upon admission. A detailed list of and charges for all supplies and services is maintained in the Business Office and is available for review during normal business hours." Clearly, the Defendant promised to provide supplies and services in exchange for payment. This is the very definition of a contract. The Defendant breached the contract by not providing the services promised, as more fully set forth in the allegations in the Complaint and incorporated into Counts IV and V. Count V of the Complaint alleges a violation of Third Party Beneficiary Rights under a contract between the Defendant and the Commonwealth of Pennsylvania, Department of Health. Defendant was granted a license by the Pennsylvania Department of Health to operate a skilled and/or intermediate care facility in accordance with the Health Care Facilities Act, 35 P.S. SS 448.101 - 448.904. In exchange for this license, Defendant is obligated to conduct its facility in accordance with the laws of the Commonwealth of Pennsylvania and with the rules and regulations of the Department of Health. As alleged in the Complaint, and to be proven at trial, the Commonwealth of Pennsylvania, Department of Health found deficiencies in Mrs. Stintzcum's care. Black Law Dictionary defines Third-party-beneficiary contract as "[a] Contract between two or more parties, the performance of which is intended to benefit directly a third party, thus giving the third party a right to file suit for breach of contract by either of the - 1."lftlfiillilltiltllil.-.ilililllli&kWf original contract parties." Black's Law Dictionary 1480 (6th ed. 1990). The facility's promise to perform at a certain level, in exchange for the license, is clearly a contract. Just as clear is the fact that the intended beneficiaries of that contract are the residents of the facility. When the facility breaches the contract by falling below the standards are care that it promised to uphold, the residents suffer, as Mrs. Stintzcum did in this case. To determine if one is an intended third party beneficiary, the recognition of the beneficiary's right must be appropriate to address the intention of the parties, and the circumstances must indicate that the party to the contract intends to give the beneficiary the benefit of the promised performance. Scarpitti v. Weborg, 609 A.2d 147 (Pa. 1992). The Department of Health mandates that facilities, such as Defendant's, maintain a certain level of care. . This is precisely for the benefit of the residents of the facility. Therefore, the residents are third party beneficiaries to the license agreement between the Department of Health and the resident. By not providing the services and level of care promised in exchange for the license, as fully set forth in the Complaint, Defendant breached its contract and Mrs. Stintzcum directly suffered as a result. Plaintiff has pleaded facts sufficient to support a cause of action for Breach of Contract. Therefore, Count IV of the Complaint should not be dismissed. Likewise, Count V should not be dismissed, because Plaintiff has shown that Mrs. Stintzcum was a third party beneficiary to the licensing contract between the Commonwealth of Pennsylvania, Department of Health and Defendant. "" -=~~ --~..; 3. No averment in the comolaint should be stricken for inclusion of scandalous andimoertinent material or inclusion of evidentiary material. The test of whether averments in a pleading are scandalous or impertinent is whether the allegations are immaterial and inappropriate to the proof of the caus . n. Commonwealth, Department of Environmental Resources v. Peggs Run Coal Co., 423 A.2d 765 (Pa. Cmwlth. 1980). To the contrary in this case, each averment in the Complaint goes directly to the heart of the causes of action. Averments are not scandalous or immaterial simply because there happens to be a significant number of them. Defendant is not prejudiced in any way by the averments contained in the complaint. The power to grant a preliminary objection on the grounds that materials are alleged to be scandalous or impertinent should be sparingly exercised, and only when a party can affirmatively show prejudice. Commonwealth, Department of Environmental Resources v. Hartford Accident & Indemnity Co., 396 A.2d 885 (Pa. Cmwlth. 1979). Because Defendant has failed to even allege prejudice, let alone affirmatively show prejudice, its preliminary objection in the form of a motion to strike should be dismissed. Pennsylvania is a fact pleading state. Plaintiff included in its complaint all relevant and necessary facts essential to the causes of action set forth. Defendant has filed a preliminary objection in the nature of a motion to strike. Defendant is merely objecting to some of the factual basis of the cause of action by characterizing it as impertinent. Plaintiff's complaint sets forth the facts needed with which to establish its claim, and they should not be dismissed as "impertinent." Plaintiff's reference to the investigation by the Cumberland County Ombudsman is significant to show the Defendant consistently failed to maintain an adequate level of care and _ ~-r""- ._~:;.. failed to provide the services it was contracted to provide. Plaintiff could locate no additional information other than witnesses who claim that an investigation occurred. These allegations should not be dismissed, because this investigation needs to be further explored through discovery in order to allow Plaintiff to fully litigate its claim. Defendant is not prejudiced by the references in the Complaint. Therefore, nothing should be stricken as being scandalous or impertinent. 4. No statements in Plaintiff's Comolaint should be stricken as conclusionarv. Plaintiff included in its complaint all relevant and necessary facts essential to the causes of action set forth. Plaintiff, before filing the Complaint, filed Discovery to Aid in Preparing Complaint Understandably, Mrs. Stintzcum and her family did not keep written records of all of the instances alleged in the complaint. However, they reported all instances to Defendant, and supposedly Defendant filled out reports on these instances. Plaintiff requested these materials, along with others in the Discovery in Aid of Preparing Complaint. Plaintiff has pleaded everything of which he has knowledge, in as specific and concise a form as possible. Further information and facts need to be explored through discovery. Valid claims, allegations and instances should not be dismissed at the pleading stage before the Plaintiff and the Court has had a chance to learn all of the details. The degree of specificity with which Defendant would have Plaintiff plead is not required by Pennsylvania law. All of the objections by Defendant in this regard represent either information which is in (or should be in) the possession of the Defendant, or information which can only be learned through discovery. If the Plaintiff has set forth the material facts in the Complaint, and the Defendant wants to learn more details, discovery procedures are available. . JW.W. Huntingdon v. Bloomsburg Area Indus. Development Ass 'n, Inc., 53 Pa. D & C.2d 138 (C.P. 1971). Pennsylvania is not a strict fact pleading state in which each and every fact must appear in the complaint. First National Bankv. Seiser, 9 Pa. D & C.3d 89 (C.P. 1979). The complaint must notify the Defendant of the Plaintiff's claims by stating the grounds upon which those claims are based and by identifying the issues in dispute. Dickerson v. Brind Truck Leasing, 362 Pa. Super. 341, 524 A.2d 908 (1987). This notice enables the opposing party to prepare a proper and responsive defense, in addition to promoting the speedy and inexpensive resolution of disputes. Id. In the present case, this standard has been met. Therefore, none of the averments in the complaint should be stricken, and the discovery process should be allowed to proceed. Conclusion: Therefore, based on the foregoing arguments and authorities, the Defendant's Preliminary Objections should be DENIED. Plaintiff respectfully requests this Court to enter an order DENYING the Preliminary Objections of Defendant. Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. ~ Date: (flarei-.. BY: Cory J. ook, quire Attorney J.D. 85734 1013 MununaRoad, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiffs) I V ,2005 --~~w..:;,- CERTIFICATE OF SERVICE I, Cory J. Snook, Esquire, of the law firm of Gates, Halbruner & Hatch, P.C., hereby certify that I served a true and correct copy of the foregoing Brief by First Class United States mail, postage prepaid, to the following individual: Marc A. Moyer, Esq. Kelly, Hoffman & Goduto, LLP Commerce Towers, lOth Floor 300 North Second Street P.O. Box 62003 Harrisburg, PA 17106-2003 Date: (J16:KJ.. I r, 2005 GATES, HALBRUNER & HATCH, P.C. ~ BY: Cory J. S ook, quire Attorney ill No. 85734 1013 Mununa Road, Suite 100 Lemoyne, P A 17043 (717)731-9600 (Attorneys for Plaintiffs) f t --- ,---'-. ' ~ . , ' . - ''" -.'^ . -:",-, ,-~<-- '....'- .~,-.. ,.' <,--,,-,;,-- ,- ~ - -- , -= RALPH STINTZCUM, JR., Executor of the Estate of Evelyn M. Stintzcum, deceased, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. WEST SHORE HEALTH AND REHABILITATION CENTER, DEFENDANT 00-3639 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S COMPLAINT ORDER OF COURT AND NOW, this '1~}- day of March, 2005, IT IS ORDERED: '\ \ (1) The demurrer to the cause of action under Pennsylvania's Unfair Trade Practices and Consumer Protection Law IS GRANTED WITH LEAVE TO FILE AN AMENDED CLAIM.1 (2) All other preliminary objections of defendant to plaintiffs complaint, ARE DISMISSED. /'- / / By the~rt, / / I The UTPCPL does not create a private cause of action for delivery of medical services. See Gatten v. Merzi, 397 Pa. Super. 148 (1990); Foflygen v. Zemel, 420 Pa. Super. 18 (1992). We are satisfied that a private cause of action can be made against a nursing home under the UTPCPL based upon non-medical services provided. Plaintiffs claim does not differentiate between medical and non-medical services. Plaintiff may, if warranted, file an amended claim alleging that defendant's conduct constituted unfair or deceptive acts prohibited by the UTPCPL with respect to non-medical services provided by defendant. '," ~ , -"-.. t ~'___ ___JIJI" -'..' ,,,," . " . --~- " , -~ I ~ FILED-oJ..rlCE OF THE PFIOTl.-fONOTARy 2005 HAR 31 Nt 4: 1 7 C, IIdH,'!!; ",-",.r. f"I')/ ''''''y '-"111,,,,,.._. I."~ ~ >,j v.... JiV1 DE::"NI\fS)lVr1JV1A .. ~ ~ "".-"k t___._, - J ~~. ~IW',~". ~Wi~. ~,~- " '-',' ;, "'If' ' Cory J. Snook, Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 For Plaintiff Marc A. Moyer, Esquire Commerce Towers 300 North Second Street, 10th Flo r P.O. Box 62003 Harrisburg, PA 17106-2003 For Defendant :sal , ,,'..-- .;. "' ;_ '.~c_,<;..: ~'" . _.,. . =,,_,__, " ~~ Lf- c.f -(] r- ~ '--1"',-", -,-'-'~ -:"-;'j ,.;..-< . ' r~\ RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this amended complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the amended complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 , ->~:; RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW JURY TRIAL DEMANDED AMENDED COMPLAINT AND NOW, comes the Plaintiff, RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, deceased, by and through his counsel, Gates, Halbruner & Hatch, P .C., and respectfully represents as follows: 1. Evelyn M. Stintzcum (hereinafter "Decedent") died on March 8, 2001. 2. On March 13, 2001, the Cumberland County Register of Wills granted letters testamentary to Ralph Stintzcum, Jr. (hereinafter "Plaintiff"), as the Executor of the estate of Evelyn M. Stintzcum. 3. This is a survival action brought pursuant to 42 Pa.C.S. 98302. 4. West Shore Health and Rehabilitation Center (hereinafter "Defendant") IS a corporation formed under the laws of the Commonwealth of Pennsylvania doing business as a provider oflong-term care services, with its principal place ofbusiness located at 770 Poplar Church Road, Camp Hill, Pennsylvania 17011. 5. Decedent was first admitted to Defendant's facility on October 8, 1997 following rehabilitation at the Renova Center (HealthSouth Rehabilitation of Mechanics burg) -,-i '2.::il.l1:b.~-", for a broken hip she sustained in a fall. 6. Decedent was placed into Defendant's 1200 Unit, and was placed on "fall precautions." 7. There were no identifiable fall prevention measures put into place by Defendant. 8. Decedent fell numerous times while she was in Defendant's 1200 Unit. 9. After her falls, Decedent was rarely examined by a physician, and Decedent's family, primarily her granddaughter, Doris Arena, were not immediately notified of Decedent's falls. 10. As a result of these falls, Decedent received bumps and bruises, and the falls caused increased disorientation and fear in Decedent. 11. In December, 1997, Decedent was transferred to Defendant's 800 Unit with plans to prevent recurrent falls. 12. Any plans to prevent recurrent falls were not implemented by Defendant. 13. Decedent continued to experience numerous falls while in Defendant's 800 Unit. 14. After each fall, a notation appears in Decedent's file stating, "Mrs. Stintzcum appears fine and has no complaints of pain." 15. Decedent was rarely examined by a physician following her falls. 16. Decedent should have been examined by a physician after each fall, regardless of whether she stated she was experiencing no pain. 17. Decedent's file also documents a belligerent and/or difficult attitude of Decedent. 18. Plaintiffbelieves, and therefore avers, that Decedent's attitude was either caused by or exacerbated by the failure of Defendant to treat Decedent's physical and '" .~~,~ ~"*;" psychological problems. 19. Between February 13,1998 and February 26, 1998, Decedent fell more than six (6) times. 20. On or about February 14, 1998, Decedent complained of shoulder pain to Defendant's staff. 21. Several days subsequent to this complaint, Decedent was diagnosed with a torn rotator cuff. 22. Decedent's physician ordered pain medication to be administered every four to six (4-6) hours. 23. Defendant facility did not even obtain the prescribed pain medication until over a week after the physician ordered it to be given. 24. The medication was only obtained after repeated prodding of the staffby Decedent's granddaughter, Doris Arena. 25. Decedent fell so many times that she had severe slashes on both arms, and her face was so swollen that she could not even open her eyes. 26. At this point, Decedent's physical condition was listed as "guarded". 27. After a physician ordered Defendant facility to implement fall prevention measures, a few of these measures were implemented, namely: A. Decedent was moved closer to the nurses' station. B. A fall mat was placed next to her bed. C. A clip-on alarm was put on Decedent's bed 28. The alarm described in Paragraph 27(C) above, was placed within Decedent's reach , " ''If!IlId1\,.- and could be easily removed by her. 29. Decedent's granddaughter, Doris Arena, visited Decedent and provided personal care to her on an ahnost daily basis. 30. A new alarm was placed in Decedent's room, which was designed to help prevent Decedent's recurrent falls. 31. Not all of Defendant's staffhad been trained to use, operate, and/or evaluate the new alarm. 32. The new alarm was essentially for appearance only, in that it was not properly utilized by Defendant's staff. 33. Doris Arena contacted the Ombudsman of Cumberland County to investigate Defendant's facility. 34. The Ombudsman found: A. Defendant was not changing Decedent's bed linens; B. Defendant was not providing proper nutrition to Decedent; C. Defendant was not bathing Decedent; and D. Defendant was not providing personal hygiene to Decedent. 35. Doris Arena also contacted the Commonwealth of Pennsylvania, Department of Health to investigate Defendant's facility. 36. The Commonwealth found: A. Decedent's psychological well-being was being essentially ignored. B. Diagnosis and recognition of physical conditions were ignored, in that: (1). Decedent had pneumonia; '~~oo;?;;, (2). Decedent had urinary tract infections; and (3). Decedent had various injuries following her numerous falls C. Decedent was hospitalized and treated only after continuous and outspoken demands of Doris Arena. D. Decedent's physical conditions, obviously present, were left untreated, which led to: (1). More serious physical conditions; (2). Increased pain and suffering; and (3). Caused Decedent's belligerent, antagonistic, uncooperative, and aggressive behavior. E. There were numerous deficiencies in the physical surroundings of Decedent's environment. 37. Despite a mandate from the Pennsylvania Department of Health to correct the numerous deficiencies, Decedent's physical and psychological care and treatment remained the same. 38. Decedent continued to fall. 39. Decedent's physical and psychological symptoms remained unrecognized and untreated. 40. Decedent's physical conditions did not change. 41. Decedent's psychological interaction with others did not change. 42. In or around October, 1999, Decedent developed a urinary tract infection. 43. Decedent's physician ordered an antibiotic, Ciprofloxacin, to be administered two .....-- ."~ ,,'n ~--''1t%Tf''~ , times a day for 14 days. 44. Decedent allegedly refused thirteen (13) out ofthe required twenty-eight (28) doses. 45. Defendant's records lack any evidence as to the reason for these refusals, and also lack evidence as to any remedial measures implemented to administer the medication. 46. Contrary to Defendant's own policy, Decedent's physician was not notified about the Decedent refusing to take her medication. 47. The unit charge nurse and the assistance director of nursing were not even aware that the Decedent continued to refuse her medication. 48. Defendant failed to evaluate Decedent's refusal of her medication to ensure continuity of care. 49. Defendant failed to provide the Decedent with the scheduled doses of the physician- ordered medication. 50. Defendant is required to have a physician review each resident's total program of care, including medications and treatments, at each visit. 51. Defendant is required to have the physician write, sign, and date progress notes at each visit, and sign and date all orders. 52. Defendant failed to ensure that the physician supervised the plan of care for Decedent, as evidenced by the fact that the physician failed to date all orders. 53. Defendant failed to ensure Decedent's care in that the physician did not review and assess recapitulation sheets for the month of October, 1999. 54. It is alleged, and therefore averred that Defendant continually failed to meet ~'il\l-Iti minimum staffing requirements set forth by the Pennsylvania Department of Health and the Health Care Financing Administration. 55. Defendant was cited by the Pennsylvania Department of Health for failing to meet the minimum 2.7 hours of nursing care for each resident on November 5, 1999, November 6,1999, and November 7,1999. 56. It is alleged, and therefore averred, that Defendant continually failed to meet the minimum staffing requirements at other times as well; and not just when the Pennsylvania Department of Health conducted investigations. 57. Defendant continually failed to provide medically-related social services to maintain the highest practicable physical, mental, and psycho-social well-being of Decedent. 58. Medicaid is a joint state and federal funded program established under Title XIX of the Social Security Act, and codified at 42 D.S.C. ~ 1396, et. seq., and is aimed at providing assistance to individuals who qualify based on financial need and medical need. 59. The Health Care Financing Administration is the federal agency which administers the Medicaid program. 60. Defendant accepted Medicaid payments for it residents, thereby subjecting itself to the federal and state laws, regulations, and guidelines that pertain to the Medicaid program. 61. The Nursing Home Reform Act sets strict standards for nursing facilities that accept Medicaid funds, 42 U.S.C. ~ 1395r. 62. The relevant regulations, 42 C.F.R. ~~ 483.5 - 483.75, provide that residents must be --. ,. -' ~-" --", treated as individuals, not made to conform to a facility's schedule for the sake of convenience. 63. Included among these is the Resident's Bill of Rights, which provides, in part, that a resident has the right to be free from physical and/or mental abuse. 64. The Resident's Bill of Rights also provides that a resident has the right to receive services with reasonable accommodation of individual needs and performance. 65. In drafting the Resident's Bill of Rights, the legislature did not intend for the psychological status of a resident to be utilized as an excuse not to provide adequate care and treatment. 66. Decedent's sometimes belligerent and combative attitude and/or disposition was a direct result of the care and treatment she was receiving from Defendant's facility. 67. Defendant had a duty to work with Decedent to improve her psychological well- being, rather than using it as a shield against providing adequate care. 68. Decedent was subsequently moved by her family out of Defendant's facility and into another long term care facility. 69. Once in the new facility, Decedent's psychological well-being greatly improved due to the care she received. 70. Once in the new facility, Decedent was no longer confused, combative, or belligerent. 71. The Nursing Home Reform Act also requires facilities to care for their residents in such a manner and in such an environment as will promote the maintenance and/or enhancement of the quality of life of each resident. 72. The Nursing Home Reform Act also requires facilities to provide services to attain ~ ~, ,--" .'- '-~:n: or maintain the highest practicable physical, mental, and psycho-social well-being of each and every resident. 73. Under this requirement, there are requirements for competency standards and staffing requirements for nurses and nurse's aides. COUNT I. NEGLIGENCE 74. Paragraphs 1 through 73 are hereby incorporated by reference as though more fully set forth herein. 75. Defendant had a duty to provide proper care, maintenance, nutrition, and support to Decedent in accordance with state and federal laws, regulations and guidelines, as more fully set forth herein. 76. Defendant negligently failed to provide adequate care, maintenance, nutrition, and support to Decedent during her stay in their facility, in accordance with state and federal laws, regulations and guidelines, as more fully set forth above. 77. Defendant had a duty to provide proper staffing sufficient to care for its residents. 78. Defendant negligently failed to provide the proper staffing sufficient to care for its residents. 79. Defendant had a duty to prevent falls and injuries to Decedent. 80. Defendant negligently failed to prevent falls and injuries to Decedent. 81. Defendant had a duty to provide a level of care that would diminish the possibility of urinary tract infections in Decedent. 82. Defendant negligently failed to provide a level of care that would diminish the 'oj ,~,~ ~ '"~"'" . 1:>;;-; possibility of urinary tract infections in Decedent. 83. Defendant had a duty to administer physician-ordered medications, even over Decedents "refusals." 84. Defendant negligently failed to administer physician-ordered medications to Decedent. 85. Defendant had a duty to notify the physician that Decedent was not taking her medications. 86. Defendant negligently failed to notify the physician that Decedent was not taking her medications. 87. As a result of Defendant' s negligence, Decedent suffered numerous physical, mental and psycho-social injuries, as more fully set forth above. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff's favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT II. VICARIOUS LIABILITY OF DEFENDANT FOR THE NEGLIGENT ACTS OF ITS MEDICAL STAFF AND EMPLOYEES 88. Paragraphs 1 through 87 are hereby incorporated by reference as though more fully set forth herein. 89. At all times relevant hereto, the medical staff and the employees of Defendant were the agents, ostensible agents and/or agents by estoppel of the Defendant. 90. At all times relevant hereto, the medical staff and employees of Defendant were L -':&..ll:!.~;' acting within the scope of their employment and/or agency with the Defendant, with the permission and consent of the Defendant, subject to the control of the Defendant, and in furtherance of the Defendant's interests. 91. Defendant is vicariously liable for the damages caused by the negligent actions and conduct of the medical staff and employees as more particularly described herein. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff s favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rnles. COUNT III. VIOLATION OF UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 73 P.S. 6201-1 et sefJ.. 92. Paragraphs 1 through 91 are hereby incorporated by reference as though more fully set forth herein. 93. Defendant engaged ill fraud, false advertising, and misrepresentation in its promotional materials and literature supplied to Plaintiffs, in that Defendant did not provide the levels and quality of non-medical services promised, as more fully set forth above. 94. Defendant entered into an admission agreement with Decedent and/or her family wherein Defendant promised to provide certain minimal levels of non-medical care and quality of life. 95. Defendant engaged in fraud, false advertising, and misrepresentation by failing to ,~ . '.iN fulfill its duties to provide non-medical services (such as fall prevention, changing of bed linens, proper nutrition, bathing and personal hygiene, personal attention, social services and minimum staffing), according to Defendant's promotional materials and literature and under the admission agreement executed by Defendant and Decedent and/or her family, as more fully set forth above. 96. As a result, Decedent suffered numerous injuries, both physical and mental, as more fully outlined herein. 97. Defendant's conduct with respect to non-medical services constitutes "unfair methods of competition" and/or "unfair or deceptive acts or practices" giving rise to a private action under the Unfair Trade Practices and Consumer Protection Law, 73 P.S. g201-1 et seq. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff's favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest, treble damages as provided for in the statute and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT IV. BREACH OF CONTRACT 98. Paragraphs 1 through 97 are hereby incorporated by reference as though more fully set forth herein. 99. Decedent and/or decedent's personal representative signed various documents, including an admission agreement wherein Defendant promised to provide certain ;,-- " " ~- ;!-' minimal levels of care and quality oflife. 100. Defendant failed to provide sufficient care and quality oflife as promised as more fully outlined herein. 101. Defendant provided Decedent and/or Decedent's personal representative, and the public at large, with various promotional materials which promised that Defendant would provide Decedent with a certain level of care. 102. Defendant failed to provide sufficient care as promised, as more fully outlined herein. 103. Defendant was required to provide a "care plan" for each of its residents in which Defendant stated it would comply with state and federal laws and regulations. 104. Defendant failed to fully implement and/or perform its obligations set forth in the "care plan." 105. As a result of Defendant' s breach of the admission agreement, "care plan" and other promotional materials, Decedent suffered numerous injuries, both physical and mental, as more fully outlined herein. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiff's favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attorney's fees, court costs, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. COUNT V. VIOLATION OF THIRD PARTY BENEFICIARY RIGHTS UNDER CONTRACT BETWEEN DEFENDANT AND COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF HEALTH 106. Paragraphs 1 through 105 are hereby incorporated by reference as though more fully " <" " '~ 1:.1kti set forth herein. 107. Defendant applied to the Pennsylvania Department of Health to operate a skilled and/or intermediate care facility in accordance with the Health Care Facilities Act, 35 P.S. SS 448.101 - 448.904. 108. Defendant was granted a license, along with subsequent renewals of that license, to operate the facility in exchange for the promise to conduct said facility in accordance with the laws of the Commonwealth of Pennsylvania and with the rules and regulations of the Department of Health. 109. By signing the contract and license agreement, Defendant had a duty to operate its facility in accordance with the laws of the Commonwealth of Pennsylvania and with the rules and regulations of the Department of Health. II O. Defendant breached this contract and license agreement by failing to operate the facility in accordance with the laws of the Commonwealth of Pennsylvania and with the rules and regulations of the Department of Health, when it violated numerous regulations as set forth in 28 Pa. Code S 20Ll et. seq., and numerous provisions of the Health Care Facilities Act, 35 P.S. SS 448.101 - 448.904, as more fully set forth herein. Ill. The purpose of the contract and license agreement between the Department of Health and Defendant is to ensure a minimum level of care and well-being for the residents of the facility. 112. Decedent, as a resident of the Defendant's facility, was an intended third party beneficiary of the contract and license agreement between the Department of Health and Defendant. 113. As a result of Defendant's breach of its contract and license agreement with the Department of Health, Decedent suffered numerous injuries, both physical and mental, as more fully outlined above. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Plaintiffs favor and against Defendant, for pain and suffering and out-of-pocket medical expenses together with attOluey fees, costs of suit, interest and such other relief as the Court may deem appropriate, in an amount exceeding the threshold for compulsory arbitration under local rules. Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. Date: l.{-::l::u- q.s- BY: ~ C::}f --= Mark E. Halbruner, Esquire Attorney J.D. #66737 1013 MununaRoad, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiff) ~"",~ "" ~~" VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing document are true and correct to the best of his knowledge, information, and belief This verification is made subject to the penalties of 18 Pa. C.S.A. ~ 4904 relating to unsworn falsification to authorities. Date: ----.!:l - 22- Os ~~~oft~ Estate ofEVEL YN M. STINTZCUM I , "--:t~';1:-_i CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates, Halbruner & Hatch, P.C., hereby certify that I served a true and correct copy of the foregoing Amended Complaint on this date by First Class mail addressed to the following: Marc A. Moyer, Esq. Kelly, Hoffman & Goduto, LLP Commerce Towers, loth Floor 300 North Second Street P.O. Box 62003 Harrisburg, P A 17106-2003 GATES, HALBRUNER & HATCH, P.C. BY: ~c:--v ~ Mark E. Halbruner, Esquire 1013 Mununa Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiff) Date: 4.-)>-6 S-' lIiiililIiw,o. ~ 1Y __~.-,,___"--,<__~qT '._) ".'",,,,; " _~__"',_ .. " , ..."" ,_,,~ " .Ad. ~ "'''"'"''''V;''''~ .~'-".". ~- '" -~,-. ,.-~ ,y-. ~,- -. "~JJit -. ~... .'- ~~--~.~ -.' - " . , "-'- -, ~ iIIiIilII-~ " ~- ~,' I I ("") ,....> ~ = c: = c..;n (~' :<:1"> .~ -C f-~ " rnp! ~, :;<:J -;, 1"~ / N (./.1,- -,," N /) ~~ ::--'J~~-- ?-::-:C} -rJ f..::....;.i %" (-} ~ ~.~o >'~~ r- Om ~ <"- :iJ -j r0 --. -< - ~.~.- ~. :" ~~ , _ ~' 0" RALPH STlNTZCUM, JR., Executor of the Estate of EVELYN M. STlNTZCUM, Deceased, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant ANSWER OF DEFENDANT WEST SHORE HEALTH AND REHABILITATION CENTER WITH NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes Defendant West Shore Health & Rehabilitation Center ("West Shore"), by and through its attorneys, Kelly, Hoffman, & Goduto, LLP, to answer Plaintiffs Amended Complaint as follows: 1. After reasonable investigation, West Shore lacks knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in Paragraph 1 of Plaintiffs Amended Complaint. The averment is, therefore, DENIED and proof thereof is demanded at time of tria I. 2. ADMITTED based upon information and belief. 3. The averment set forth in Paragraph 3 of Plaintiffs Amended Complaint is a conclusion oflaw to which no response is required. To the extent the averment is deemed to be factual in nature, it is ADMITTED that Plaintiff characterizes this matter as a survival action. By way of further Answer, it is DENIED that West Shore is liable to Plaintiff under such an action. 4. DENIED as stated. It is DENIED that West Shore is a corporation formed under the laws of the Commonwealth of Pennsylvania. It is ADMITTED that West Shore Health and Rehabilitation Center is located at 770 Poplar Church Road, Camp Hill, Pennsylvania 17011. "-- 5. DENIED as stated. The averments set forth in Paragraph 5 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time oftrial. 6. DENIED as stated. The averments set forth in Paragraph 6 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 7. DENIED as stated. The averments set forth in Paragraph 7 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 8. DENIED as stated. The averments set forth in Paragraph 8 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proofthereofis demanded at time of trial. 9. DENIED as stated. The averments set forth in Paragraph 9 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any 2 ~,,-i deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proofthereofis demanded at time of trial. 10. DENIED as stated. The averments set forth in Paragraph 10 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 11. DENIED as stated. The averments set forth in Paragraph 11 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 12. DENIED as stated. The averments set forth in Paragraph 12 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. By way of further Answer, it is DENIED that West Shore negligently failed to implement fall prevention measures for Plaintiffs Decedent. 13. DENIED as stated. The averments set forth in Paragraph 13 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any 3 ~"~ ":',1 ,,' deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 14. DENIED as stated. The averments set forth in Paragraph 14 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 15. DENIED as stated. The averments set forth in Paragraph 15 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 16. The averments set forth in Paragraph 16 of Plaintiffs Amended Complaint are conclusions of law to which to response is required. To the extent the averments are deemed to be factual in nature, the averments are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time oftrial. 17. DENIED as stated. The averments set forth in Paragraph 17 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time oftrial. 4 -" ~" - ,,-. ~. " \:I, 18. DENIED. After reasonable investigation, West Shore is unable to determine Plaintiffs intended meaning of the term "attitude" as that term is used in Paragraph 18 of Plaintiffs Amended Complaint. The averments set forth in Paragraph 18 of Plaintiffs Amended Complaint are DENIED and proof thereof is demanded at time of trial. By way of further Answer, it is DENIED that West Shore failed to provide Plaintiffs Decedent with appropriate care and/or treatment during her residency at the Facility. 19. DENIED as stated. The averments set forth in Paragraph 19 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time oftrial. 20. DENIED as stated. The averments set forth in Paragraph 20 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiff's Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 21. DENIED as stated. The averments set forth in Paragraph 21 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 22. DENIED as stated. The averments set forth in Paragraph 22 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs 5 &- , ~-k' Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 23. DENIED as stated. The averments set forth in Paragraph 23 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. By way offurther Answer, it is DENIED that West Shore negligently failed to provide Plaintiffs Decedent with pain medication. 24. DENIED as stated. The averments set forth in Paragraph 24 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 25. DENIED as stated. The averments set forth in Paragraph 25 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 26. DENIED as stated. The averments set forth in Paragraph 26 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any 6 deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 27. DENIED as stated. The averments set forth in Paragraph 27 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 28. DENIED as stated. The averments set forth in Paragraph 28 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 29. After reasonable investigation, West Shore lacks knowledge or information sufficient to form a belief as to the number oftimes Plaintiff s Decedent's granddaughter, Doris Arena, visited the Decedent at the Facility. The averments are, therefore, DENIED. 30. DENIED as stated. The averments set forth in Paragraph 30 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 31. DENIED. It is DENIED that the West Shore nursing staff was not properly trained to use, or operate alarms utilized by the Decedent at the Facility. After reasonable investigation, West Shore lacks knowledge or information regarding Plaintiffs intended use of 7 "' " the term "evaluate" with respect to the alarm so as to form a belief as to the truth or falsity of the averment. The averment is, therefore, DENIED, and proof thereof is demanded at time oftrial. 32. DENIED. It is DENIED that any alarms used for Plaintiffs Decedent were implemented "for appearance only" or that such alarms were not properly utilized by the Facility's nursing staff. 33. After reasonable investigation, West Shore lack knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in Paragraph 33 of Plaintiffs Amended Complaint. The averments are, therefore, DENIED and proofthereofis demanded at time of trial. 34. After reasonable investigation, and to the extent Paragraph 34 of Plaintiffs Amended Complaint fails to identify the date(s) of the Ombudsman "investigation", West Shore lacks sufficient knowledge or information to form a belief as to the truth or falsity of the averments in Paragraph 34 of Plaintiffs Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 35. After reasonable investigation, West Shore lack knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in Paragraph 35 of Plaintiffs Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 36. DENIED. Plaintiffs characterizations of West Shore's attention to Plaintiffs Decedent's mental and physical status as set forth in Paragraphs 36(A) and (B) of Plaintiffs Amended Complaint are DENIED. With respect to the averments set forth in Paragraphs 36(B)(I) through Paragraph 36(B)(3) are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records which, as writings, speak for themselves. 8 '\1 Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proofthereofid demanded at time of tria I. The averments set forth in Paragraph 36(C) of Plaintiffs Amended Complaint are DENIED as stated. It is ADMITTED that Plaintiff's Decedent was hospitalized during the period of her residency at West Shore. It is DENIED that such hospitalizations only occurred after "continuous and outspoken demands" were made by Doris Arena. With respect to the averments set forth in Paragraph 36(D) of Plaintiff's Amended Complaint, it is DENIED that West Shore negligently failed to provide appropriate care and treatment to Plaintiff s Decedent in accordance with the applicable standard of care. It is further DENIED that West Shore negligently caused Plaintiffs Decedent to suffer "more serious physical conditions", "increased pain and suffering", or that is caused or contributed to Plaintiffs Decedent's "belligerent, antagonistic, uncooperative, and aggressive behavior". After reasonable investigation, West Shore lacks sufficient knowledge or information as to Plaintiffs intended meaning ofthe term "deficiencies" with respect to the physical surroundings ofthe Decedent's environment so as to form a belief as to the truth or falsity of the averments set forth in Paragraph 36(E) of Plaintiffs Amended Complaint. The averments are, therefore, DENIED, and proof thereof is demanded at time of tria I. 37. After reasonable investigation, West Shore lacks sufficient knowledge of what "deficiencies" are being referred to in Paragraph 37 of Plaintiffs Amended Complaint so as to form a belief as to the truth or falsity of the averments set forth in that Paragraph. The averments are, therefore, DENIED, and proof thereof is demanded at time of trial. To the extent the averments are intended to infer that West Shore negligently provided care and treatment to Plaintiff's Decedent, the averments are expressly DENIED. 9 38. DENIED as stated. The averments set forth in Paragraph 38 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiff's Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 39. DENIED as stated. The averments set forth in Paragraph 39 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is DENIED and proof thereof is demanded at time of trial. By way of further Answer, it is DENIED that West Shore was negligent in its care and treatment of Plaintiffs Decedent or that it negligently failed to recognize or treat any aspect of Plaintiffs Decedent's condition. 40. DENIED as stated. The averments set forth in Paragraph 40 of Plaintiff's Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. By way offurther Answer, it is DENIED that the Decedent's physical condition did not change during the course of her residency at West Shore. 41. DENIED as stated. The averments set forth in Paragraph 41 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any 10 ,-. .....:..~: , deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 42. DENIED as stated. The averments set forth in Paragraph 42 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 43. DENIED as stated. The averments set forth in Paragraph 43 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 44. DENIED as stated. The averments set forth in Paragraph 44 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time oftrial. 45. DENIED as stated. The averments set forth in Paragraph 45 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time oftriaI. By way of further Answer, Plaintiffs 11 H '- ," ~"" .. ~- characterization of Plaintiffs Decedent's medical and nursing care records as set forth in Paragraph 45 of Plaintiffs Amended Complaint is DENIED. 46. After reasonable investigation, West Shore lacks knowledge or information sufficient to form a belief as to the "policy" referred to in Paragraph 46 of Plaintiffs Amended Complaint. The averment is, therefore, DENIED and proof thereof is demanded at time of tria I. By way of further Answer, it is DENIED that West Shore negligently failed to notify Plaintiffs Decedent's attending physician. 47. DENIED as stated. The averments set forth in Paragraph 47 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and nursing care records is specifically DENIED, and proof thereof is demanded at time of tria I. By way of further Answer, it is DENIED that West Shore was negligent in its care and treatment of Plaintiff s Decedent. 48. DENIED as stated. The averments set forth in Paragraph 48 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and nursing care records is specifically DENIED, and proof thereof is demanded at time of tria I. By way of further Answer, it is DENIED that West Shore was negligent in its evaluation of Plaintiff s Decedent or her medications. 49. DENIED as stated. The averments set forth in Paragraph 49 of Plaintiffs Amended Complaint are ADMITTED only insofar as they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and nursing care records is specifically DENIED 12 , r_ -""" '~ ._"-~ and proof thereof is demanded at time of trial. By way of further Answer, it is DENIED that West Shore negligently failed to provide Plaintiffs Decedent with medications. 50. The averments set forth in Paragraph 50 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore negligently implemented Decedent's plan of care or negligently administered medication or treatment to the Decedent. 5 I. The averments set forth in Paragraph 51 of Plaintiff s Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore was negligent in its care and treatment of Plaintiffs Decedent. 52. The averments set forth in Paragraph 52 of Plaintiffs Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, the averments regarding the dating of physician orders, are ADMITTED only to the extent they are consistent with Plaintiffs Decedent's medical and nursing care records, which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. By way of further Answer, it is DENIED that Decedent's plan of care was negligently implemented. 53. The averments set forth in Paragraph 53 of Plaintiffs Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore was negligent in its care and treatment of Plaintiffs Decedent. 13 54. The averments set forth in Paragraph 54 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore was negligent in its care and treatment of Plaintiffs Decedent. It is further DENIED that West Shore continually failed to meet minimum staffing requirements, or that it caused or contributed to the injuries alleged in Plaintiffs Amended Complaint. 55. The averments set forth in Paragraph 55 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore was negligent in its care and treatment of Plaintiffs Decedent. It is further DENIED that West Shore was cited by the Pennsylvania Department of Health for failing to meet minimum staffing requirements on November 5, 1999, November 6, 1999, and November 7, 1999 or that it caused or contributed to the injuries alleged in Plaintiffs Amended Complaint. 56. The averments set forth in Paragraph 56 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore was negligent in its care and treatment of Plaintiffs Decedent. It is further DENIED that West Shore continually failed to meet minimally staffing requirements, or that it caused or contributed to the injuries alleged in Plaintiffs Amended Complaint. 57. DENIED. It is DENIED that West Shore continually failed to provide medically- related social services to maintain the highest practicable physical, mental, and psycho-social well-being of Plaintiffs Decedent. 14 =~"~ '-j - ""' ">, 58. The averments set forth in Paragraph 58 of Plaintiffs Amended Complaint are conclusions of law to which no response is required. 59. DENIED as stated. It is ADMITTED that the Centers for Medicare & Medicaid Services ("CMS") is the successor agency to the Health Care Financing Administration. 60. The averments set forth in Paragraph 60 of Plaintiffs Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is ADMITTED that West Shore accepted Medicaid payments for qualified residents. 61. The averment set forth in Paragraph 61 of Plaintiffs Amended Complaint is a legal conclusion to which no response is required. Moreover, the Nursing Home Reform Act at 42 U .S.C. S 1395(r) is a written document which speaks for itself and, therefore, need not be ADMITTED or DENIED. By way of further Answer, it is DENIED that West Shore negligently violated the Nursing Home Reform Act through its care and treatment of Plaintiff s Decedent. 62. The averments set forth in Paragraph 62 of Plaintiffs Amended Complaint are legal conclusions to which no response is required. Moreover, the regulations at 42 C.F.R. SS 483.5 - 483.75 are writings which speak for themselves and, therefore, need not be ADMITTED or DENIED. By way of further Answer, it is DENIED that West Shore negligently violated the Code ofPederal Regulations through its care and treatment of Plaintiffs Decedent. 63. The averments set forth in Paragraph 63 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. Moreover, the "Resident's Bill of Rights" referred to in Paragraph 63 of Plaintiffs Amended Complaint is a writing which speaks for itself and, therefore, need not be ADMITTED or DENIED. By way of further Answer, it is DENIED 15 , ' .',1 that West Shore negligently violated the Resident's Bill of Rights through its care and treatment of Plaintiffs Decedent. 64. The averments set forth in Paragraph 64 of Plaintiff s Amended Complaint are conclusions ofIaw to which no response is required. Moreover, the "Resident's Bill of Rights" referred to in Paragraph 64 of Plaintiffs Amended Complaint is a writing which speaks for itself and, therefore, need not be ADMITTED or DENIED. By way of further Answer, it is DENIED that West Shore negligently violated the Resident's Bill of Rights through its care and treatment of Plaintiffs Decedent. 65. The averments set forth in Paragraph 65 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. Moreover, the "Resident's Bill of Rights" referred to in Paragraph 65 of Plaintiffs Amended Complaint is a writing which speaks for itself and, therefore, need not be ADMITTED or DENIED. By way of further Answer, it is DENIED that West Shore negligently violated the Resident's Bill of Rights through its care and treatment of Plaintiffs Decedent. 66. The averments set forth in Paragraph 66 of Plaintiffs Amended Complaint are conclusions ofIaw to which no response is required. To the extent the averments are deemed to be factual in nature, Plaintiffs characterization of Decedent' behavior is ADMITTED only insofar as it is consistent with Plaintiffs Decedent's medical and nursing care records which, as writings, speak for themselves. Any deviation from Plaintiffs Decedent's medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. By way of further Answer, it is DENIED that West Shore was negligent in its care and treatment of Plaintiff s Decedent, or that it negligently caused or contributed to any adverse behavior by the Decedent. 16 " , ' . ~ 1'. 67. The averments set forth in Paragraph 67 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore was negligent in its care and treatment of Plaintiff s Decedent or that it did not provide adequate care to the Decedent. 68. ADMITTED based upon information and belief. 69. After reasonable investigation, West Shore lacks knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in Paragraph 69 of Plaintiffs Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 70. After reasonable investigation, West Shore lacks knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in Paragraph 70 of Plaintiffs Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 71. The averments set forth in Paragraph 71 of Plaintiffs Amended Complaint are conclusions of law to which no response is required. Moreover, the Nursing Home Reform Act is a written document which speaks for itself and, therefore, need not be ADMITTED or DENIED. By way offurther Answer, it is DENIED that West Shore negligently failed to promote the Decedent's maintenance or negligently failed to enhance her quality oflife. 72. The averments set forth in Paragraph 72 of Plaintiffs Amended Complaint are conclusions of law to which no response is required. Moreover, the Nursing Home Reform Act is a written document which speaks for itself and, therefore, need not be ADMITTED or DENIED. 17 ~, ' , ~,', 73. The averments set forth in Paragraph 73 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. Moreover, the Nursing Home Reform Act is a written document which speaks for itself and, therefore, need not be ADMITTED or DENIED. By way offurther Answer, it is ADMITTED that Plaintiffs Decedent was provided care and treatment by competent nursing staff and nursing assistants at all times material to Plaintiffs Amended Complaint. COUNT I NEGLIGENCE 74. Paragraphs 1 through 73 of West Shore's Answer are incorporated by reference as if fully set forth herein. 75. The averments set forth in Paragraph 75 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore negligently provided care, maintenance, nutrition llf support to Plaintiffs Decedent or caused the injuries or damages to Plaintiffs Decedent alleged in Plaintiffs Amended Complaint. By way of further Answer, it is ADMITTED that West Shore provided proper care, maintenance, nutrition and support to Plaintiffs Decedent in accordance with State and Federal laws, regulations, and guidelines at all times material to Plaintiffs Amended Complaint. 76. The averments set forth in Paragraph 76 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore negligently provided care, maintenance, nutrition or support to Plaintiffs Decedent 01' caused the injuries or damages to Plaintiffs Decedent alleged in Plaintiffs Amended Complaint. By way of further Answer, it is ADMITTED that West Shore provided proper care, maintenance, nutrition and support to 18 ,;-,-, '~ IW--' Plaintiffs Decedent in accordance with State and Federal laws, regulations, and guidelines at all times material to Plaintiffs Amended Complaint. 77. The averments set forth in Paragraph 77 of Plaintiffs Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore failed to provide proper staffing sufficient to care for Plaintiffs Decedent. 78. The averments set forth in Paragraph 78 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore failed to provide proper staffing sufficient to care for Plaintiffs Decedent. 79. The averments set forth in Paragraph 79 of Plaintiff s Amended Complaint are conclusions ofIaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore negligently failed to prevent Plaintiffs Decedent's falls or the injuries alleged by Plaintiff to have been experienced by Plaintiff s Decedent. 80. The averments set forth in Paragraph 80 of Plaintiffs Amended Complaint are conclusions ofIaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore negligently failed to prevent Plaintiffs Decedent's falls or the injuries alleged by Plaintiff to have been experienced by Plaintiff s Decedent. 81. The averments set forth in Paragraph 81 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. To the extent the averments are deemed to 19 ""M ..~,.o be factual in nature, it is DENIED that West Shore negligently failed to provide a level of care to Plaintiff s Decedent which diminished the possibility of urinary tract infections. 82. The averments set forth in Paragraph 82 of Plaintiffs Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore negligently failed to provide a level of care to Plaintiffs Decedent which diminished the possibility of urinary tract infections. 83. The averments set forth in Paragraph 83 of Plaintiffs Amended Complaint are conclusions ofIaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore negligently failed to administer physician- ordered medications or that the Facility was required to force Plaintiff s Decedent to take such medications. 84. The averments set forth in Paragraph 84 of Plaintiffs Amended Complaint are conclusions ofIaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore negligently failed to administer physician- ordered medications or that the Facility was required to force Plaintiffs Decedent to take such medications. 85. The averments set forth in Paragraph 85 of Plaintiff s Amended Complaint are conclusions ofIaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore negligently failed to notify Plaintiffs Decedent's attending physician when warranted, or that West Shore caused or contributed to the injuries and/or damages alleged by Plaintiff. 86. The averments set forth in Paragraph 86 of Plaintiffs Amended Complaint are conclusions ofIaw to which no response is required. To the extent the averments are deemed to 20 - .- . ~'I be factual in nature, it is DENIED that West Shore negligently failed to notify Plaintiffs Decedent's attending physician when warranted, or that West Shore caused or contributed to the injuries and/or damages alleged by Plaintiff. 87. The averments set forth in Paragraph 87 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore negligently caused Plaintiffs Decedent to suffer physical, mental, or psycho-social injuries. WHEREFORE, Defendant West Shore Health and Rehabilitation Center demands judgment in its favor and against the Plaintiff, and that Plaintiffs Amended Complaint be dismissed with prejudice. COUNT II VICARIOUS LIABILITY OF DEFENDANT FOR THE NEGLIGENT ACTS OF ITS MEDICAL STAFF AND EMPLOYEES 88. Paragraphs 1 through 87 of West Shore's Answer are incorporated by reference as if fully set forth herein. 89. The averments set forth in Paragraph 89 of Plaintiffs Amended Complaint are conclusions ofIaw to which no response if required. 90. The averments set forth in Paragraph 90 of Plaintiffs Amended Complaint are conclusions oflaw to which no response if required. 91. The averments set forth in Paragraph 91 of Plaintiffs Amended Complaint are conclusions ofIaw to which no response if required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore negligently provided care or treatment to Plaintiffs Decedent or that it is vicariously liable for the injuries and/or damages alleged by the Plaintiff. 21 , << WHEREFORE, Defendant West Shore Health and Rehabilitation Center demands judgment in its favor and against the Plaintiff, and that Plaintiffs Amended Complaint be dismissed with prejudice. COUNT III VIOLATIONS OF UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 73 P.S.!S 201-1 et. sea. 92. Paragraphs 1 through 91 of West Shore's Answer are incorporated by reference as if fully set forth herein. 93. The averments set forth in Paragraph 93 of Plaintiffs Amended Complaint are conclusions ofIaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore engaged in fraud, false advertising, or made misrepresentations in any promotional materials and literature supplied to Plaintiff, if any, or that West Shore failed to provide the levels and quality of non-medical services it "promised". 94. The averments set forth in Paragraph 94 of Plaintiffs Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, the Admission Agreement entered into with Plaintiffs Decedent and/or her family is a written document which speaks for itself and, therefore, need not be ADMITTED or DENIED. By way of further Answer, it is DENIED that West Shore breached any terms or conditions of the Admission Agreement. 95. The averments set forth in Paragraph 95 of Plaintiffs Amended Complaint are conclusions ofIaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore engaged in fraud, false advertising or made misrepresentations to Plaintiffs Decedent. By way of further, it is DENIED that West Shore failed to fulfill any duty it may have owed to Plaintiff's Decedent in the furnishment of non- 22 ~- '" . .1"'-', medical services in accordance with its promotional materials and literature, or under the Admission Agreement entered into with Plaintiff's Decedent and/or her family. 96. The averments set forth in Paragraph 96 of Plaintiffs Amended Complaint are conclusions ofIaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore caused or contributed to any injuries allegedly experienced by Plaintiffs Decedent. 97. The averments set forth in Paragraph 97 of Plaintiff s Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore engaged in "unfair methods of competition" and/or "unfair or deceptive acts or practices", or violated Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 P.S. S 201-1, et. seq. WHEREFORE, Defendant West Shore Health and Rehabilitation Center demands judgment in its favor and against the Plaintiff, and that Plaintiffs Amended Complaint be dismissed with prejudice. COUNT IV BREACH OF CONTRACT 98. Paragraphs 1 through 97 of West Shore's Answer are incorporated by reference as if fully set forth herein. 99. DENIED as stated. It is ADMITTED that Plaintiffs Decedent and/or Plaintiff's Decedent's personal representative signed various documents. Any such documents are writings which speak for themselves and, therefore, need no be ADMITTED or DENIED. By way of further Answer, Plaintiffs characterization of such documents is DENIED. 100. The averments set forth in Paragraph 100 of Plaintiffs Amended Complaint are conclusions ofIaw to which no response is required. To the extent the averments are deemed to 23 ._~~ ,',- " <-, ,.- , -<- -'> ',j be factual in nature, it is DENIED that West Shore failed to provide sufficient care and quality of life to Plaintiffs Decedent or that West Shore breached any contract it may have entered into with Plaintiffs Decedent or her family. 101. After reasonable investigation, West Shore lacks knowledge or information sufficient to form a belief as to the particular "promotional materials", if any, it provided to Plaintiffs Decedent and/or Plaintiffs Decedent's personal representative. Any such materials however, are written documents which speak for themselves and, therefore, need not be ADMITTED or DENIED. By way of further Answer, it is DENIED that West Shore failed to provide Plaintiff s Decedent with the appropriate level of care or breached any contract it may have entered into with Plaintiffs Decedent or her family. 102. DENIED. It DENIED that West Shore failed to provide Plaintiffs Decedent with sufficient or appropriate care. 103. The averments set forth in Paragraph 103 of Plaintiffs Amended Complaint are legal conclusions to which no response is required. To the extent the averments are deemed to be factual in nature, it is ADMITTED that West Shore developed a plan of care for Plaintiffs Decedent. 104. The averments set forth in Paragraph 104 of Plaintiffs Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore negligently failed to implement and/or comply with Plaintiffs Decedent's plan of care or breached any contractual duties to Plaintiffs Decedent. 105. The averments set forth in Paragraph 105 of Plaintiffs Amended Complaint are conclusion oflaw to which no response is required. To the extent the averments are deemed to 24 iJ-. '--, be factual in nature, it is DENIED that West Shore breached any Admission Agreement, "care plan" or any other contract entered into with Plaintiffs Decedent. By way of further Answer, it is DENIED that West Shore caused or contributed to any injuries, physical or mental, alleged to have been experienced by Plaintiff s Decedent. WHEREFORE, Defendant West Shore Health and Rehabilitation Center demands judgment in its favor and against the Plaintiff, and that Plaintiffs Amended Complaint be dismissed with prejudice. COUNT V VIOLATION OF THIRD PARTY BENEFICIARY RIGHTS UNDER CONTRACT BETWEEN DEFENDANT AND COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF HEALTH 106. Paragraphs 1 through 105 of West Shore's Answer are incorporated by reference as if fully set forth herein. 107. DENIED as stated. It is ADMITTED that Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center was properly licensed by the Pennsylvania Department of Health to operate its facility. 108. DENIED as stated. It is ADMITTED that Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center was properly licensed by the Pennsylvania Department of Health to operate the Facility. By way offurther Answer, it is ADMITTED that West Shore operated its Facility in accordance with the laws of the Commonwealth of Pennsylvania and rules and regulations promulgated by the Department of Health at all times material to Plaintiffs Amended Complaint. 109. The averments set forth in Paragraph 109 of Plaintiffs Amended Complaint are conclusions ofIaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is ADMITTED that West Shore operated its Facility in accordance with 25 , " ~I the laws of the Commonwealth of Pennsylvania and in compliance with the rules and regulations promulgated by the Pennsylvania Department of HeaIth. 110. The averments set forth in Paragraph 110 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore failed to operate its facility in accordance with the laws of the Commonwealth of Pennsylvania or in compliance with the rules and regulations promulgated by the Pennsylvania Department of Health. It is further DENIED that West Shore violated "numerous regulations" set forth by the Pennsylvania Department of Health governing the operation of long term care nursing facilities or "numerous provisions" of Pennsylvania's Health Care Facilities Act, 35 P.S. S 448.101 - 448.904 with respect to its care and treatment of Plaintiffs Decedent. 11 I. The averments set forth in Paragraph 111 of Plaintiff s Amended Complaint are conclusions ofIaw to which no response is required. By way of further Answer, it is DENIED that West Shore failed to provide Plaintiff s Decedent with the appropriate level of care. 112. The averments set forth in Paragraph 112 of Plaintiffs Amended Complaint are conclusions ofIaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore breached any contractual duties it may have owed to Plaintiffs Decedent or the Pennsylvania Department of HeaIth. 113. The averments set forth in Paragraph 113 of Plaintiffs Amended Complaint are conclusions oflaw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that West Shore breached any agreement entered into with Plaintiff s Decedent of the Pennsylvania Department of Health or that it caused or contributed to any of Plaintiffs Decedent's alleged injuries. 26 ~~ , I ',;,1 WHEREFORE, Defendant West Shore Health and Rehabilitation Center demands judgment in its favor and against the Plaintiff, and that Plaintiffs Amended Complaint be dismissed with prejudice. NEW MATTER 114. Paragraphs 1 through Paragraphs 113 of West Shore's Answer are incorporated by reference as if fully set forth herein. 1 15. Plaintiff s claims are barred in whole or in part by the applicable statute of limitations. 116. Plaintiff s Amended Complaint fails to state claims upon which relief may be granted under Pennsylvania law. 117. Plaintiff has failed to properly plead causes of action against Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center. 118. Plaintiffs claims are barred/reduced by Plaintiffs and Plaintiffs Decedent's contributory/comparative negligence and/or assumption of risk as a result of their actions or inaction, including, but not limited to, failure to follow all the instructions and/or advice of decedent's healthcare providers, failure to promptly and accurately report to the healthcare providers information pertaining to Plaintiff s Decedent's health status, failure to participate in Care Plan meetings, and in such other manner as may be revealed during discovery in this case. 119 . West Shore at no time, negligently or otherwise, caused or contributed to any of the injuries or damages purportedly suffered by Plaintiffs Decedent. 120. Plaintiffs Decedent's injuries, if any, were the result of occurrences unrelated to, and not caused by, West Shore's care or treatment of Plaintiff s Decedent. 27 , J, ""- ~",,-, .~ 121. Any injury and/or illness suffered by Plaintiffs Decedent was caused by persons other than West Shore or its agents or employees and/or by those over whom West Shore had no control or responsibility to control. 122. To the extent evidence may show that other persons, partnerships, corporations, or other legal entities caused or contributed to the decedent's injuries, the conduct of West Shore and/or its agents or employees was not the proximate cause of such injuries. 123. Any acts or omissions by West Shore or its agents or employees alleged to constitute negligence were not substantial contributing factors to the injuries and damages alleged in Plaintiffs Decedent's Amended Complaint. 124. The acts or omissions of others relating to the care and treatment of Plaintiffs Decedent constitute intervening and/or superseding causes of the injuries and/or damages alleged to have been sustained by Plaintiffs Decedent. 125. The sole responsibility for any damages sustained by Plaintiffs Decedent rest with the Plaintiff or Plaintiff s Decedent or third parties over whom West Shore had no control, no duty to control, or no reason to control. 126. West Shore incorporates the provisions of the Health Care Services Malpractice Act / MCARE Act to the extent they are applicable to the facts and circumstances of this case. 127. At no time material to Plaintiffs Amended Complaint did West Shore make false or misleading statements to Plaintiff, Plaintiffs Decedent or the public at large, or engage in unfair or deceptive practices. 128. Plaintiff has failed to aver any facts, nor do any facts exist, which give rise to a viable cause of action under any provision ofPeunsylvania's Unfair Trade Practices and Consumer Protection Law, 73 P.S. S 201-1 et. seq. 28 -- WHEREFORE, Defendant West Shore Health and Rehabilitation Center demands judgment in its favor and against the Plaintiff, and that Plaintiffs Amended Complaint be dismissed with prejudice. Respectfully submitted: Dated: May ~, 2005 Arthur K. Hoff! an, Esquire Attorney LD. o. 31782 Marc A. Moyer, Esquire Attorney No. 76434 KELLY, HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, 10th Floor Post Office Box 62003 Harrisburg, PA 17106-2003 (717) 920-8100 Counsel for Defendant West Shore Health and Rehabilitation Center 29 - . .-J "-- ,_I -- _ <e~' ~ ~-. ',~ ." "JI " I, Suzanne Bematovich, Executive Director of Be v Y Ehterprises _ Pennsylvania, Inc" d/b/a Beverly Healthcare . West Shore Health and Rehabilit 'on Center, state that r have read the foregoing l\NSWEa OF DEFENDANT WEST SHO $ALm AND REHABILITATION CENTEa WITH NEW MATTEa 0 PLAINTIFF'S AMENDED COMPLAINT which has been drafted with the assistance 0 co.msel. The factual statements contained therein are true and correct to the hest of my inti ation, knoWledge, and belief, with respect to Beverly Entel]lrises - PennSYlVania, Inc., d/b/a B erly Healthcare _ West Shore Health and Rehabilitation Center althOUgh the language is th of counsel and, to the extent that the cOntent of the foregoing document is that of counsel, I ha e relied upon counsel in making this Vecification. VElUFICATIQN This statement is made subject to the penalties of 18 Pit C.S.A. Section 4904 relating to unsWOrn falsification to authorities, which provides that if! n$ke knowingly false statements, r may be subject to criminal penalties. ~~I\\ loS Date o ich,iExecutive Director Beverly ris s - jPCIU1Sylvania, Inc" d/b/a Beverly Healthc - West Shore Health and Rehabilitation C ter ' 30 , , CERTIFICATE OF SERVICE On this lih day of May, 2005, I, Kristine Hendrix, a legal secretary with the law firm of Kelly, Hoffman & Goduto, LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing ANSWER OF DEFENDANT WEST SHORE HEALTH AND REHABILITATION CENTER WITH NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT upon the person(s) and at the addressees) below named by United States First Class Mail, postage prepaid, in Harrisburg, P A: Mark E. Halbruner, Esquire Gates, Halbruner & Hatch, P.C. 1013 Mumma Road Suite 100 Lemoyne, P A 17043 Counsel for Plaintiff ~h;R ;/~~ I . stine Hendnx ~j\il.i~ill$i!!IiilllIllH<~1li~"q,~r~~,IliJ:j,~lif ~~. IIl!i!II , --'-""""'" '.,;, ._iUiH'","'='-~"""-"- 0 ......, = 0 C~ ~-") ." t2ji~ c.ro :x :r! ;.;... n-:IJ -< 'r C':i -om ::'06 -, N r:) ,-- ~( 7-~ "'" ..... -Fj '--.7". ,; .....ta b" s; ?~j ~O "---m -:7 C> S1 ==l ::> -< :o:J 0 -< . . -,l.'L. r ~"4""",. RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant West Shore Health and Rehabilitation Center certifies that: (a) a notice of intent to serve subpoenas with a copy of the subpoenas attached thereto was mailed or delivered to each party prior to the date on which the subpoenas are sought to be served, (b) a copy of the notice of intent, including the proposed subpoenas, is attached to this certificate at Exhibit A, (c) no objection to the service ofthe subpoenas has been raised; and (d) the subpoenas which will be served are identical to the subpoenas attached to the notice of intent to serve subpoenas. Marc A. Moy Attomey ill No. 76434 KELLY, HOFFMAN & DUTO, LLP Commerce Towers, 10'h Floor 300 North Second Street P.O. Box 62003 Harrisburg, P A 17106-2003 (717) 920-8100 Attorneys for Defendants Dated: May \3, 2005 " , ,j'.- j,',-:, RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL V ANlA Plaintiff v. NO. 00-3639 CNIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant West Shore Health and Rehabilitation intends to serve subpoenas identical to the ones attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made the subpoenas may be served. Niarc A. Moy' i\ttorney o. 76434 KELLY, OFFMi\N & GODUTO, LLP Conunerce Towers, 10lh Floor 300 North Second Street P.O. Box 62003 Harrisburg, P A 171 06-2003 (717) 920-8100 Attorneys for Defendant Dated: April 22, 2005 -l_ - ~ < ~"' .. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND RALPH STINTZCUM, JR.. Executor ot the Estate of EVELYN M. STINTZCUM. Deceased. vs. WEST SHORE HEALTH AND REHABILITATION CENTER. File No 00-3639 TO: SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANTTO RULE 4009.22 custodian of Records. Chapel Pointe at Carlisle. 770 South Hanover Street. Carlisle. PA 17013 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: any and all records concerning Evelyn M. Stintzcum. as more fully described on Exhibit A attached hereto at Kelly, Hoffman & Goduto LLP. P.O. Box 62003. Harrisburg. PA 17106-2003 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OFTHE FOLLOWING PERSON: Marc A. Moyer. Esquire Name KPlly, Roffman & Goduto LLP P.O. Box 62003 Address: Harrisburg, PA 17106-2003 Telephone: 717-920-8100 Supreme Court 10 II 76434 Attorney For" Defendant Date: ,QplL-~L lc( ::Jnri r- ISeal of the Court (Eft. 7/97) - -,-,.- - .,1 EXHIBIT A Any and all records relating to Evelyn M. Stintzcum, DOB 6/13/1907, SSN 207- 09-1955, including, but not limited to, correspondence, admission agreements, admission records, discharge summaries, histories, reports of physical examinations, progress notes, nurses notes, plans of care, nursing monthly summaries, activities of daily living flow sheets, MDS, medication records, social service records, recreation service notes, nutrition notes, therapy notes, physicians' orders, radiology reports, diagnostic test reports, graphic charts, lab reports, consultation reports, and all other records whatsoever. , ~. ~~-~-'; COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND RALPH STINTZCUM, JR., Executor ot the Estate of EVELYN M. STINTZCUM. Deceased. vs. WEST SHORE HEALTH AND REHABILITATION CENTER. File No. 00-3639 TO: SUBPOENA TO PRODUCE DOCUMENTS ORTHINGS FOR DISCOVERY PURSUANTTO RULE 4009.22 Custodian of Records. Holy Spirit Hospital. 503 North 21st Street. Camp Hill. PA 17011 (Name of Person or Entity) Withir1 twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: any and all records concerning Evelyn M. Stintzcum. as more fully described on Exhibit A attached hereto at Kelly. Hoffman & Goduto LLP. P.O. Box 62003, Harrisburg, PA 17106-2003 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliar1ce, to the party making this request at the address listed above. You have the right to seek in advance the reasor1able cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUEO AT THE REQUEST OFTHE FOLLOWING PERSON: Marc A. Moyer. Esquire Name Kpll~, Roffman & Goduto LLP Address: P.O. Box 62003 Harrisburg. PA 17106-2003 Telephone: 717-920-8100 Supreme Court ID # 76434 Attorney For: Defendant {) ptL~ L 1'1 Cleo.. <;'" Seill of the Court Date: "--- (Eft. 7/97) EXHIBIT A Any and all records relating to Evelyn M. Stintzcum, DOB 6/13/1907, SSN 207- 09-1955, including, but not limited to, emergency room records, admission records, discharge summaries, histories, reports of physical examinations, progress notes, nurses notes, radiology reports, lab reports, medication records, physicians' orders, diagnostic test reports, graphic charts, consultation reports, and all other records whatsoever. J.'_ '""'"..:.\ CERTIFICATE OF SERVICE I, Wanda L. Hoffinan, a paralegal with the law firm of Kelly, Hoffman, & Goduto LLP, hereby certify that a true and correct copy of the foregoing Notice of Intent to Serve Subpoenas to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 was served on the following persons, at their respective addresses, by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, on April? 2, 2005. Cory J. Snook, Esquire Gates, Halbruner & Hatch, P.C. 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 Counsel for Plaintiffs _{))[A~AJ~' tjJ~ Wanda L. offirlan "~ " <,< - ""=,,, '<:t ~' a, CERTIFICATE OF SERVICE I, Wanda L. Hoffman, a paralegal with the law firm of Kelly, Hoffman, & Goduto LLP, hereby certify that a true and correct copy of the foregoing Certificate Prerequisite to Service of a Subpoena Pursuant to Rule 4009.22 was served on the following persons, at their respective addresses, by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, on May \ ~ ' 2005. Cory 1. Snook, Esquire Gates, Halbruner & Hatch, P.C. 1013 MunnnaRoad, Suite 100 Lemoyne, P A 17043 Counsel for Plaintiffs !J1 rllll ~an~fin PfY- - ~~~~~I!iIm;~' '~"--"-~-"-~-'lfSJ!!'~Jlj\j~"_._"'""~--"'- ~L~ ~ IiJIfi- .r.J:l_-"'~ ~ 1!MlliIiiIiliII~!liiIdI!l -'~ i:itVt;' - ^ (') "'> 0 = C.:: ,= .-1 .' en .-4 ::E: :r: -r'" :':-.!l'O rnr ,; ~, -nhl ~i:jCJ -.>: 0' (.:::>,.L, i-- ::;:!::,"! .-,- ~::-: ,--.... --U /j:D '" :::;;:: '"" C) L_ ,.--, ;{:rn 5> c= (;~ ,.J --i :;;.: '.". -~ :n -< w -< ~ ~EiIWI . . m".'1!Ilii:~ii!JIt~;.'. '. RECEIVED NOV 2 !l 2005 v\ .... BY: RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this /-- day of )~. 4-/ , 2005, upon consideration of the foregoing Petition to File Under Seal, it is hereby Ordered that Plaintiffs Petition for Approval of Settlement Involving Decedent's Estate and all Orders and filings regarding settlement of this matter be placed by the Prothonotary under seal. FOR THE COURT: 4d I~- f-OS-~~ jlJf I ! ,I II ;, .., ~ ^ " ,"~",' ~' ~~.,o.~~ ""~_~_':"""~,_"~ \l!!IIIII!I,._. ~~ 1I'!l; ."-~ -~ FOI EO..{:,,:q('c -1_ _ wll...Jt- "'~ l"F P''''TlJl~' nTAl'lY Vi lIt:. ~\)Ii ,.);'-1,-, .n ZGU5 DEe -I f-It, 11: ! 5 cutv\l~'~.~! -,," .., !.)~Ul\nY ~"=~~ ,,~,\".\!!\l\N5... - ! ,..-..."=,.~~"~_~.~~",,,,,,,..~,~,..Hj",~]f,,.,...",_ "'"'~""'~'~~""Ji!!Illm~~"''''''-M""",,,,,,,,I~ o ~ . .," RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION TO FILE UNDER SEAL AND SEAL RECORDS AND NOW, comes the Plaintiff, Ralph Stintzcum, Jr., Executor of the Estate of Evelyn M. Stintzcum, deceased, by and through his undersigned counsel, and hereby petitions this Court to permit the filing under seal of the Petition for Approval of Settlement Involving Decedent's Estate, and the sealing of all records related thereto, and in support hereof, Plaintiff states as follows: l. 2. claims. 3. 93323. 4. This is a survival action brought pursuant to 42 Pa.C.S. 98302. The parties to this action have reached a full and complete settlement of all Court approval is necessary in the settlement of the survival action. 20 Pa.C.s. A condition of settlement is that the settlement remain confidential and that the Petition for Approval of Settlement Involving Decedent's Estate and all subsequent Orders and filings related thereto, be placed under seal. 5. The parties consent to the filing of this petition and the requests made herein. 6. Plaintiff has prepared and will file promptly a Petition for Approval of Settlement Involving Decedent's Estate. L- " - "f~? ". . - WHEREFORE, Plaintiff respectfully requests that the Court issue an Order that Plaintiff's Petition for Approval of Settlement Involving Decedent's Estate and all Orders and filings relating thereto be placed by the Prothonotary under seaL RESPECTFULLY SUBMITTED, GATES, HALBRUNER & HATCH, P.C. BY: ~<F_ ~i ~ Mark E. Halbruner Supreme Court ID No. 66737 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 717-731-9600 (Attorneys for Plaintiff) Date: "!-2..3/0S- I~= .~~ ' .',-,,, "" . :iii\&"., VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing document are true and correct to the best of his knowledge, information, and belief. This verification is made subject to the penalties of 18 Pa. C. S.A S 4904 relating to unsworn falsification to authorities. Date: \ l(?--?> /0<: p~ c/~& RAl#H STINTZCUM; ., Executor of the Estate ofEVEL YN M. STINTZCUM J.I"--- - .-~" . -jA1c', CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates, Halbruner & Hatch, P .C., hereby certify that I served a true and correct copy of the foregoing document on this date by First Class mail addressed to the following: Marc A. Moyer, Esq. Kelly, Hoffinan & Goduto, LLP Commerce Towers, 10th Floor 300 North Second Street P.O. Box 62003 Harrisburg, P A 17106-2003 GATES, HALBRUNER & HATCH, P.C. BY: ~47 ~~ :J/~~ Mark E. Halbruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiff) Date: \ \ 1:2.-.., I~) , ~:Ii.'~ ~~r'll ......~~....'!iI!~~~~~i!lil.""........~ , ~ ......'liIIIiMlIlIIi~_ o ~:;; ;R~::';: ~:.: Z"r-. ~~.:j .:'-- r-'" ,,- ...:'->-" -~, ~'5~:. k;;: .<: =2 65 cfCll --..~ ....., = = C:..t't ~ o o "Tl o-:t ::L-n rn~ -om :00 ,-, ( :5~d ;'~~;i: 6t-6 ;:--; ,'" .:0 -< ......::: N W " -. ~. r:y w o =-, ~. .. .- y- RALPH STlNTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff, vs. WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. TO THE PROTHONOTARY: ,-- , ~: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-3639 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE Please mark the above-captioned action as settled and discontinued. RESPECTFULLY SUBMITTED, GATES~HALBRUNER & HATCH, P.C. BY: ~:> --;,w r ~ Mark E. Halbruner Supreme Court ill No. 66737 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 717-731-9600 (Attorneys for Plaintiff) Date:' ,-:> U<1 (r>~ - J ~~ . I l' "* ,. CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates, Halbruner & Hatch, P .C., hereby certify that I served a true and correct copy of the foregoing document on this date by First Class mail addressed to the following: Marc A. Moyer, Esq. Kelly, Hoffinan & Goduto, LLP Commerce Towers, 10th Floor 300 North Second Street P.O. Box 62003 Harrisburg, PA 17106-2003 (Attorneys for Defendant) GATES, HALBRUNER & HATCH, P.e. BY: ~4~ ~,.-- :;0 Mark E. Halbruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiff) Date: l~ f\9. /0 '" i J' ",","".=-"n -J tillUliitll J -~,n ttiJ.ij~M~',taal~~ __ J1~'" "" -",,",. llalii- fi( ~ '. ~~ 11 n 8 "" G = = " en ~: t::l :r -OC':.: n~rrn, f"1 m:!3 ~...,.... n r- z-r~' N :sa ~:5.: 0 06 --< r''-', :r:fj K~-' .." Pc ~.~ L -... :x :r=;9 ~ ~ ~ z ~ --' W -< .j:"' -< - ';,1' ! [I Ii I~: 'l f. -:: ~\... ~'-'. {\/o# :().()()O - 3 039 CIvil terM S-t:/dz LLl"" J(" vS. /;Je~+ Skare.. }fe.p..I-fi- &~c.J".j"'or CL~J. R.eJ\C<.bdrtz,.+I<ll1t CeI'C-/-tr 0.11 {II; ~r) prior +0 /J"':L 3 -D5 CA..,1e.- {\Dt suu\l\ed. . RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION TO FILE UNDER SEAL AND SEAL RECORDS AND NOW, comes the Plaintiff, Ralph Stintzcum, Jr., Executor of the Estate of Evelyn M. Stintzcum, deceased, by and through his undersigned counsel, and hereby petitions this Court to pennit the filing under seal of the Petition for Approval of Settlement Involving Decedent's Estate, and the sealing of all records related thereto, and in support hereof, Plaintiff states as follows: I. This is a survival action brought pursuant to 42 Pa.C.S. ~8302. 2. The parties to this action have reached a full and complete settlement of all claims. 3. Court approval is necessary in the settlement of the survival action. 20 Pa.C.S. ~3323. 4. A condition of settlement is that the settlement remain confidential and that the Petition for Approval of Settlement Involving Decedent's Estate and all subsequent Orders and filings related thereto, be placed under seal. 5. The parties consent to the filing of this petition and the requests made herein. 6. Plaintiff has prepared and will file promptly a Petition for Approval of Settlement Involving Decedent's Estate. . WHEREFORE, Plaintiff respectfully requests that the Court issue an Order that Plaintiff's Petition for Approval of Settlement Involving Decedent's Estate and all Orders and filings relating thereto be placed by the Prothonotary under seal. RESPECTFULLY SUBMITTED, GATES, HALBRUNER & HATCH, P.C. BY: /~1{7 c:'. il- r:=~.:: . Mark E. Halbruner Supreme Court ID No. 66737 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 717-731-9600 (Attorneys for Plaintiff) \\/2.:~/o ')'- Date: . VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing document are true and correct to the best of his knowledge, infonnation, and belief This verification is made subject to the penalties of 18 Pa. C.SA * 4904 relating to unsworn falsification to authorities. Date \ ~/).."2, 10< , (LB~h- <;~7/ ?~ RALPH STINTZCUM,'n( Executor of the Estate ofEVEL YN M. STINTZCUM . CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law finn of Gates, Halbruner & Hatch, P.C., hereby certify that I served a true and correct copy of the foregoing document on this date by First Class mail addressed to the following: Marc A. Moyer, Esq. Kelly, Hoffman & Goduto, LLP Commerce Towers, lOth Floor 300 North Second Street P.O. Box 62003 Harrisburg, P A 17106-2003 GATES, HALBRUNER & HATCH, P.C. BY: 1l~. (-c:'?~: Mark E. Halbruner, Esquire ' 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiff) Date: \ \ l2.-"" ka~ , CO) c- r,\? :.(: C) o ;;-~: ;;.l '.'1 (", -1"'1 :~j 0,.) I! (,.j r-~t~"" }'3,'I...C.- J I i NOV 2 fl 2005 i be,,y ~, .. .....J -~.,- .'-...--.--......:.:----.------..- ----- v\ " RALPH STINTZCUM, JR., Executor ofthe Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 00-3639 CIVIL TERM WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant. CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this I" day of 2-.. ,_/ , 2005, upon consideration of the foregoing Petition to File Under Seal, it is hereby Ordered that Plaintiffs Petition for Approval of Settlement Involving Decedent's Estate and all Orders and filings regarding settlement of this matter be placed by the Prothonotary under seal. FOR THE COURT: 4d 1)- /-DS ~A~ :FJS' s: 1:11' .~"._""~-,--.._- SJJZ .:1 .L ---.. RALPH STINTZCUM, JR., Executor of the Estate of EVELYN M. STINTZCUM, Deceased, Plaintiff, vs. WEST SHORE HEALTH AND REHABILlT A TION CENTER, Defendant. TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA NO. 00-3639 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE Please mark the above-captioned action as settled and discontinued. RESPECTFULLY SUBMITTED, GATES, HALBRUNER & HATCH, P.C. r? BY: 1/Z~ {1 .5 ~r-, ....:0> Mark E. Halbruner Supreme Court ID No. 66737 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 717-731-9600 (Attorneys for Plaintiff) Date: t:> r I 4 !(, ~ - , .. ", .. CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law finn of Gates, Halbruner & Hatch, P.c., hereby certifY that I served a true and correct copy of the foregoing document on this date by First Class mail addressed to the following: Marc A. Moyer, Esq. Kelly, Hoffman & Goduto, LLP Commerce Towers, lOth Floor 300 North Second Street P.O. Box 62003 Harrisburg, P A 17106-2003 (Attorneys for Defendant) GATES, HALBRUNER & HATCH, P.C. BY: )/l.''1.;;:,-y ~,s-' ~ "-----", Mark E. Halbruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiff) Date: l~ 1\9. Ie, ~. () ...., ,:: = ~ c.;,;:} ",. c_" , "., c:J :? P". ("") f1i:D .. N -nfTi C) ::00 ~( >:~ ,) -TJ ,:r:::n -.,,, (;~: -4... ,':C) :".s '-:'? tsrn ? --< <,.) .:0 ..,- '< -