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Home My WebLink About97-05083 " , , , , " ',; 11 1098,1101 CPa, 1998). where a plalntill'hns not pursued its case with due dilillence, the matter may be dismissed as a mailer of course in favor of the defendant, 5. Delendant has come to lcarn that Ihe Plaintill', Ronald Miller. has since passed llway and Plaintill's attorney has not raised an estate or otherwise substituted an administrator of Plaintiffs estate in place of the Plaintiff to pursu~ this cause of action, Such being, the case. Defendant. HealthSouth Rehabilitation of Mechanicsburg. has been seriously prejudiced by the fact of Plaint ill's death. inasmuch as it will be unable to take discovery or mount a defense to Plaintiff's claims which, to date. have not been asserted in any pleading, 6, Prejudice occurs whenever there is a substantial diminution of a party's ability to properly present its cnse at trial. Medinets v, Betzko, 720 A,2d 150 (Pa, Super, 1998), ruinIl. Jacobs v. Halloran. 710 A,2d 1098, 1103 CPa, 1998), Defendant, HealthSouth Rehabilitation of Mechanicsburg. believes. and therefore avers, that Plaintiffs death, failure to raise an estate, and/or to pursue claims against HealthSouth after the expiration of almost three years creates a substantial diminution in its ability to properly mount a defense and/or present a case at trial. WHEREFORE. for all the foregoing reasons, Defendant. HealthSouth Rehabilitation of Meehanicsburg, requests this Court to enter ajudgment of non pros based upon Plaintill's death, failure to raise an estate, and failure to pursue its claim against the Defendant for almost three years since the liIing ofa Writ of Summons on September 18.1997, 2 PYS510 CumburLand County ProthonoLarY'H CLvLl Caso InquLry MILLER RONALD L (vs) IIEAL'I'IIS0U'rll HEIIABIl,I'l'ATION 9/18/1997 2:59 0/00/0000 0/00/0000 97-05083 toference No..: :ase Type.....: WRIT OF SUMMONS rudgrnent......: .00 Judge Ass igned: lisposed DeRc.: --.------- Caso Comments ,-- f'i Iud. . . . , . . . : Time......... : Execution Date Jury 'I'rLal... . Disposed Dato. lIiqher. Crt 1.: Hiqher Crt 2.: ~..................*.***.............*............*............................ General Index Attorney Info HLLER RONALD L PLAINTIff' SWARTZ LEE C POBOX 631 WEST MAIN STREET '1EW BLOOMFIEI.D PA 17068 IIEALTIISOlJTH IU;IIABILI'I'ATION DEFf;NDANT OF MECIIANICSBURG 175 LANCAS'l'ER BOUl.f;VARD MECIIANICSBURG PA 17055 ............................................................................... Date Er.tries · ...*............................*..........*.....~.~...~*.~.......*............ 9/18/1997 9/24/1997 _ _ _ _ _ _ - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED ------------------------------.------------------------------------- SHERIFF'S RETURN FILED Li tigant.: HEALTHSOUTH REHABILI'I'ATION OF MECIIANICSBURG SERVED : 9/23/97 WRIT OF SUMM Costs....: $28.68 Pd By: HEPFORD SWARTZ & MORGAN 09/24/1997 _ _ _ _ - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ............................................................................... Escrow Information · Fees & Debits Bea Bal Pvmts/Adi End Bal · .............**.*..*...........,*.*.....~......,...............*..*...........* WRIT OF SUMMONS TAX ON WRIT SETTLEMENT JCP FEE 35.00 35.00 .50 .50 5.00 5.00 5.00 5.00 -------------.----------- 45.50 45.50 .00 .00 .00 .00 ------------ .00 ~..*.*....*..*...........*...*.................................................. . End of Case Information · ~...**.......*.......*.......................................................... , " I, " ~~ tu 'I ~~, 0.0 !? ..., ffj ir.! ~~ ~ l" ~S~I - :"fj ~c:.,;., ~(:: (X) K" ".' '~l ~'" J"(~ -", ::or. ,r.; r-- t:;c:~ ')(~ ~ ~...~~; ~ esrr ~ :;t ':.11 ~ ~ '0 ;;0 -< ~. , " "'" cl " .' "1' -., ...... I'RAEC ll'~: F~.JIl }~.!.~I:rIN.GC,^n_~,.J::~)_I_I__I\IIGUMEN.'I' ----_.- ---. ' -- (~t be typewritten dId llubnitttld in dupllcatll) TO THE PROTHONO'rARY ot" CUMDER1,ANU COUNTY 1 Please list the within rNJtter for the OOlCt Arg\I1lBnt Ccurt. ----------------------------------------------------------~----~----------~~----------- CAPTION OF CASE (entire caption must be stated in full) RONALD L. MILLER (Plaintiff) VB. HEALTHSOUTH REHABILITATION pF MECHANICSBURG (Dufendant) l'<<>.__~.~!L- CivU 1997_ 1. State IIIlltter to be argued (1.0.. pllllntiff'B II1)tion for ~ trial. defendant's dmurrer to cCJIlllaint, ete.): Defendant's Motion to Dismiss 2. Identify lXlU1I8el who will argue CIVIC: (a) for plaintUf: Lee C. Swartz, Esquire Address: P.O. Rox 889 Harrisburg, PA 17108 (b) for defendant: Sharon M. O'Donnell, Esquire Address: Marshall, Dennehey, Warner, Coleman I Goggin 100 Pine St., 4th Fl. Harrisburg, PA 17101 3. I will notify all parties in wrltlnq within h<<l dayB that thia ~e MIl been liated for arglI1WllIt. 4. ArguIEnt Court Dl'Jte: Next available arqument list DIIted: 7/12/00 tr~ 'or (L~!{~ "...'....n....,..... , .' I, "., ,.. .. ,~. !'_'., " . ' .... r' . , , ' 8 g (') " ,c'; 1." "'lfi, -~ t1 (" G:; ~e (.11 ? .: :' r.C"., " ::r~ " ." ~~ '", }:; #~. ,~,; i. ~', "1 e) w' '1,)11\ ~ .. .,:.~ ~ ~'J .- .<; I " .... '. " " '\'1 " , : I , ,I I' . I' '1, (") (:1 C" 1,;.,.:. :r.. U"') Ion t ~ ... I '1 ["1"(. V l!.::,;1 '\ ","",; U) , C~" , F-~ ( .-1" ~;; !j~~ -', ;~~., " ".( =j -q " -, ", 13. Through the acts and/or omissions of its employees and/or agents, Defendant was negligent, careless and reckless in its care of Decedent, Ronald L. Miller, in the tollowing ways: (a) Failed to properly monitor Decedent, Ronald L Miller; (b) Failed to monitor the use of hot packs on Decedent's neck and back area; (c,) Failed to remove hot packs ITom Decedent's neck and back area in a timely manner; (d) Failed to properly use hot packs on Decedent in a manner that would prevent the buming of Decedent; (e) Failed to properly appreciate the likelihood that hot packs used on Decedent were a danger to Decedent due to his lack of sensation; (I) Failed to ensure that Decedent received skilled and competent medical and nursing care and treatment; and (g) Failed to properly train and supervise its agents and/or employees including all medical and nursing personnel involved with Decedent's care, 14, The aforesaid tortious conduct of Defendant increased the risk of hann to Decedent. and was a direct and substantial factor in causing the same and other damages as set forth elsewhere herein, WHEREFORE, Plaintift" demands judgment against Defendant, HealthSouth Rehabilitati{'n of Mechanicsburg, in an amount less than the limits tor compulsory arbitration. plus costs of suit. 3 COllNT 11- DR.~AC:II en' WARRANTY Tlmmv Anile Miller. [xf(ulril of tht t:shUe of Ronnld t. Millrr. dfcrase<<3 v, IIflllthSouth Rehuhilitaltioll of I\It'cluuaicshun! IS, Paragraphs I through 14 arc incorporatcd hcrcin us it. tully sct lorth at length, 16, Delendant had a duty to providc Deccdcnt, Ronald L. Miller, with reasonably skilled and competent medical and nursing carc, 17, Defendant's providing nursing and medical care to Decedent included an implied warranty that Defendant would do so in a skilled manner. 18. Delimdant, through its employees andlor agents breached said implied warranty of skilled perfonnance in the lollowing ways (a) Failed to properly monitor Decedent, Ronald L. Miller; (b) Failed to monitor the use of hot packs on Decedent's neck and back area; (c) Failed to remove hot packs from Decedent's neck and back area in a timely manner; (d) Failed to properly use hot packs on Decedent in a manner that would prevent the buming of Decedent; (e) Failed to properly appreciate the likelihood that hot packs used on Decedent were a danger to Decedent due to his lack of sensation; (f) Failed to ensure that Decedent received skilled and competent medical and nursing care and treatment; and (8) Failed to properly train and ~upervise its agents andlor employees including all medical and nursing personnel involved with Decedent's care. 4 ..., I' t.! I' " , " ,1 ,I " , , , , , , , C11 l P l:~t .1': ~ ~.'". > ;:pll' " , (!.~ i~/', ".... \ <~~i;,_., .- VII' l'-", J,l , ..t ... r'-l. \ ~'\ \ ~l.'Ci . , .:... , '';-'' \.-" ~,) ..', , f''-' 'ii-S',. .' ~l -) ~1 'J. , , II' " . . " ,l II I, 'I I , , I' A, All r~llluilling ull~gutiollS or lhis pumgmph ar~ "~Ilicu 011 th~ basis that th~y uo not p~rtuin to a prup~r1y Ilum~" lklenuant in this u~tioll, 3, D~ni~u, lh~ all~gulions of this pumgruph ~ollstitut~ ~undusiollS or lull' to whi~h no furth~r r~sponsivc pl~llding is r~"uir~d and a~~onlingly. Ih~ smn~ ar~ d~ni~d and pruoftb~r~or is d~malld~d uttrial. if rd~\'alll. 4, Admitt~u in part: d~ni~d in purl. II is adlllill~d ollly Ihat Allsw~rillg D~timdant u~ts thwugh ag~nts. s~rvants. nursing staff. und oth~r ~Illploy~~s, Ik~aus~ th~ ug~nts. s~rvunts, nursing staff. und/or uth~r ~Illpluy~~s. through wholll Ansll'~ring Defendant is ulkg~d to huv~ a~t~d with r~sp~~t to Plaintiff's d~~~d~nl. llI'~ not id~ntili~d in PluintilTs Complaint. Answ~ring D~li:ndunt is unabl~ tulilrlh~r admit th~ ull~gations uf this paragruph, and a~cordingly. thos~ ar~ d~nied and pwof th~reof is d~lllanded at trial. if rd~vanl. 5, Admitted in part: denied in parI. It is adlllill~d only that Plaintiff's d~ced~nt was admitted to lIealthSouth [{~habililation of I'vlechani~sburg on or abuut February 26. 1996, lh~ reasons for decedent's aumissiun ar~ a matter of documented medical record. which record speaks for itsdf und ae~ordingly, the remaining allegations set lorth in this parugraph are denied to the extent that those allegations are at variance with decedent's documented medical records, By way of further answer, the allegations set tilrth in this parugruph are further denied in accordance with Pa,[{,C.P, * I 029(e), 6, Admilled in part: denied in parI. It is admitted only that staff of Answering Oetimdant provided Plaintifl's decedent with a hot pack. as alleged, All remaining allegations of this paragraph are denied, 2 l;,lrth in this pamgruph together with its subparts (a) through (g), By way of further answer. the allegations set l;"rth in this parugruph constltutc condusions of law within the meaning of Pa,R,C.P, ~ 1029(e) ml.1 acconlingly. these ullegations me denicd and proof thercof is demanded at trial. if .'e1cvant. 19, Denied, The allegations of this parugraph constitute conclusions of law and within the meaning of Pa,R,C.P, ~1029(e) and ;lcconlingly. these allegations ;Ire denied and proof thereof is denulIlded at tria!. if relevant. WIIEREFORE Defendant. lIealthSouth Rehabilitation of Mel:hanicsbmg. demands judgment in its favor and against Plainti!"!: together with such other relief as this Court shall deem appropriate, NEW MATTER nlltECTEI> TO PLAINTIFF Plaintitl's claim fails to state a cause of action as against Answering Defendant upon which may be granted as a matter oflaw, 20. No act or omission on the part of Answering Defendant was a substantial contributing factor in bringing about decedent's or Plaintitl's injuries and/or damages. all such injuries and/or damages being expressly denied, 21. At all times relevant to the material and well-pleaded allegations of Plaintitl's Complaint concerning medical care. treatment and/or attention rendered by Answering Defendant to Plaintitl's decedent. all such medical care. treatment and/or attention was rendered by Answering Defendant in accordance with the applicable st.lIldard of care under the then and there prevniling circumstances, 5 22, Plaintill's claims may be barred and/or limited by the applicable provisions of 42 Pa,(',S,,A, ~8301 and/or 42 Pa,('.S,A, ~8302. ct scq, 23, Answering Deli:ndant reserves its right to raise one or morc of those defenses set forth at Pa,R.C.P, ~ 1030, 24, Answering Defcndant breached no duty of care owed to Plaintiff's decedent unde:r the circumstances alleged inl'lainti fl's Complaint. WHl,REFORE Defcndant. lIealthSouth Rehabilitlllion of Mechanicsburg. demands judgment in its favor and against Plaintiff. together with such other relief as this ('ourt shall deem appropriate:, Re:spectfully submitte:d. MARSHALL. DENNEHEY. WARNER. COlJ.EM ~& G JlN BY: TIMO'l Y 1.0, NO, 5291 100 Pine: Street. 4th Floor P.O, Box 803 Harrisburg, P A 17108-0803 (717) 232-9323 Attorney for Defendant. HealthSouth Rehabilitation of Mechanicsburl! DATE: \0' _A\LIABITJMllLPOI691 ,"SX\'\ 19181\00447 6 3, Petitioner tiled suit against the Defendant lor the Decedent's injuries and damages caused by Defendant's employees' negligence which led to Decedent being burned on February 26, 1996, 4, 5, Defendant has oilered $7,000,00 to sellle the case, Your Petitioner believes that it is in the best interest of the Estate, and in her best interest as one of the beneficiaries of the Estate, to accept the settlement oller in the amount of $7,000,00, 6, Petitioner desires to accept the aforementioned otTer and to provide a release to HealthSouth Corporation d/b/a HealthSouth Rehabilitation of Mechanicsburg" together with their affiliated corporations, companies, successors, heirs and assigns, and, as surh, is requesting this Court for an Order approving the aforementioned proposed Compromise and Release of all claims that the Estate would have as a result of an incident which is alleged to have occurred on or about February 26, 1996, at HealthSouth Rehabilitation Hospital of Mechanics burg, Distribution of the settlement proceeds shall be made pursuant to the laws of Pennsylvania, (See attached Release, marked Exhibit "B"). 7, Counsel for the Petitioner and the Estate is Tucker Arensberg & Swartz. Petitioner had retained Tucker Arensberg & Swartz to pursue the civil claim resulting from the incident in question By agreement, attorneys' fees are to be one-third of any settlement of this matter, Thus, Tucker Arensberg & Swartz's fees would be $2,333,33. Additionally, Tucker Arensberll & Swartz are entitled to reimbursement of costs for prosecution that they have advanced while pursuing this claim. Said costs are $173.44. (See attached List of Costs. marked E"hibit "C"), Tucker Arensberg & Swartz will be paid $2,506.77 as the total for attorney~' fees , , ;, " , , , , " , " , , t. r,:, r'", N '71 (,I) ~f.d ,a ~(: w ,"', ~i I::> c, ~~ ,J'r: ''''I' -". ' . 1 i ~; ~ c:.,m ..~ - ;t>' ..... :5! 1,"1 ','