HomeMy WebLinkAbout98-00885
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Whethcr an act is outrageous, therefore, is detcrmined by one of two standards, First, by the
defendant's evil motive or sccond, by his recklcss indifferencc to the rights of others, In eithcr
case, "the statc of mind of the actor is vital, , , [and) , , . [t)he act, or thc fllilure to act, must be
intentional, recklcss or malicious," Id, at 748, Reckless indiffcrcnce, the second standard, has
been equated to reckless conduct as defined in the comment portion of Section 500 of the
Restatement (Second) of Torts, Reckless conduct sufficient to justify punitive damages in
Pennsylvania is that conduct where "the actor knows, or hns reason to know. , , of facts which
create a high degree of risk of physical harm to another, and dcliberately proceeds to acI, or to
fail to act, in conscious disregard of, or indiffercnce to that risk," SHY Coal, 587 A.2d at 704,
giting Commcnt (a)( I) to Section 500 of the Restatement (Second) of Torts,
Punitive damages are not justified where the defendant's mental state rises to no more
than gross negligence, Martin v. Johns-Manvllle Corp" 508 Pa. 154, 494 A.2d 1088, 1098
(1985), or where the misconduct constitutes only ordinary negligence such as inadvertencc,
mistake and errors of judgment. McDaniel v. Merck, Shat~9hme, 367 Pa, Supcr. 600,
533 A.2d 436,447 (1987).
However, where thc requisite fnctors are sufficiently plead, a claim for punitivc damages
is permitted in medical malpractice claims, See, M .Dil!l!s v, Susquehanna Center for
Nursln~ and Rehahilltation, 35 D, & C,4th 373, 383-384 (C. P. Dauphin 1996). The Court
may also consider the relationship between the parties and all other attendant circumstances, in
addition to the nature of the act and the actor's motive, to determine whether punitive damages
are proper. Martin, 494 A.2d at 1096,
In the instant case, Plaintiffs have pled sufficient facts to justify an award of punitive
damages under Pennsylvania law, It is difficult to imagine any conduct more deserving of the
label "outragcous," The closing of the examination door during the physical examination and
each separnte and subsequcnt act of improper scxual contact on the part of Dr. Merchant, as
4
allcged, is an intentional act. Furthcrmore, Plaintiffs have alleged that Dr, Merchant perfonned
those intcntional acts for his own interest and satisfaction, thereby taking advantage of the
helpless and dependcnt position of Plaintiff DiMeo, This Court may consider the fact that the
Defcndant was aliccnscd medical doctor obligated to providc the highcst Icvel of mcdical carc,
Furthennore, this Court may also consider that the alleged actions violatc in the most egregious
manner thc doctor and patient relationship, Thesc facts alone supply either the evil motive or
reckless indifference elements requircd under Pennsylvania law. In addition, Plaintiffs havc pled
fucts alleging that Dr, Merchant has actcd inappropriately with othcr female patients during
medical cxaminations, An award of punitive damages in this case will serve its intended
purposes, to punish Dr, Merchant for his egregious bchavior and hopefully to deter any such
future conduct,
The facts as pled in this case by Plllintiffs are distinctly diffcrent from those in the
Mcpanle! case, as eited by Defcndants, In that casc nothing WIIS pled but conclllsory statements
about the conduct being willful, wanton and reckless, As outlined above, Plaintiffs hcre have
plcd sufficient allegations offact to support the claim of punitive damages. Neither is the prcsent
case one of mere negligencc or cven gross negligencc, Rather, Dr, Merchant's actions of
improper sexual conduct were intentional and wcre performed with only his sclfish and evil
desires in mind, Dr, Merchant's actions cannot bc characterized as mcre inadvertence or crror in
judgment.
Plaintiffs in this casc have alleged sufficient facts to support a claim for punitive damages
and should be permitted to present their claim before a jury.
IV. CONCL.USION
For the reasons set forth abovc, Plaintiffs Maura Daniellc DiMeo, a minor, and Catherine
Jean Swindle, indiv: 'Illy and as her natural guardian respectfully request this Honorable Court
5
'--7
MAR 2 5/999
\', \
PORR & ASSOCIATES, P.C.
BY: Daniel L. Grill
Identification No. 65339
1850 William Penn Way
suite 209
P,O. Box 10696
Lancaster, PA 17605-0696
(717) 390-:1020
~RA DANIELLE DIMEO, a Minor,
and CATHERINE JEAN SWINDLE,
Her Natural Guardian, and
CATHERINE JEAN SWINDLE,
Individually,
Attorneys for Defendant:
Ralph Preston Merchant, M.D.
and Shippensburg Medical
clinic, Ltd,
IN THE COUR'r OF COMMON PLEAS
OF CUMBERl~ND COUNTY, PENNA.
CIVIL ACTION - LAW
Plaintiffs
No. 98-885
v.
RALPH PRESTON MERCHANT, M.D. and
SHIPPENSBURG MEDICAl, CLINIC, LTD.,
Defendants
JURY TRIAL DEMANDED
BRIEF IN SUPPORT OF OEFENDANTS~ PRELIMINARY
OBJECTIONS TO PLAINTIFFS' COMPLAINT
PLAINTIFFS' ALLEGATIONS OF RECKLESS, WANTON AND
OUTRAGEOUS BEHAVIOR SET FORTH IN THEIR COMPLAINT
MUST BE STRICKEN WITH PREJUDICE AND ALL CLAIMS FOR
PUNITIVE pAMAGES MUS~_.BE STRICKEN
pennsylvania does not permit punitive damages for mere
inadvertence, mistake, or similar errors which constitute ordinary
negligence. ~Ltchev v. Lisi, 17 D.&C.3d 131 (Clinton Co, 1980),
citinq Restatement of ,Torts (Second), S 90B, Comment (b). Under
the Restatement (Second) of Torts, punitive damages are available
where there has been outrageous conduct, i. e. acts done with an
evil motive or with reckless indifference to the rights of others.
Gever v. Steinbt:QJID, 509 Pa, 632, 506 A.2d 901 (19B6). Similar
language appears in other pennsylvania case law. .Ui~, 506 A.2d at
913. The Pennsylvania Appellate Courts have made i.t clear that
"reckless indi.fference," the standard for imposing punitive damages
under Restatement of Torts (Second) S908, requires a more culpable
mental state of gonsci.o\li;\ indifference to another's safety, Martin
v. John1>-Mansville, 508 Pa, 154, 494 A.2d 1088 (1985); Burke v.
Maassen, 904 F.2d 178 (3rd cir. 1990) (emphasis added). There must
be some evidence that the person actually realized the risk and
acted in consci.ous disregard or indifference to it, Martin, 494
A.2d at 1097; Burke, 904 F. 2d at 182, Explaining the rat.ionale
for the rule, the Court in Martin stated:
The only purpose of punitive damages is to deter
outrageous conduct. It is i.mpossible to deter a
person from taking risky action if he is not
conscious of the risk . therefore, an
dppreciation of the risk is a necessary element of
the mental state required for the imposition of
[punitive] damages.
Martin, 494 A.2d at 1097 N.12; Burkg, 904 F,2d at 183.
In Smith v. BrOWn, 283 Pa.super. 116, 423 A.2d 743 (1979), the
Superior Court of Pennsylvania discussed the pleading requirements
for a claim for punitive damages.
Pennsylvania is a fact pleading state. Pa.R.C,P.
1019(a), A Complaint must not only give the
defendant notice of what the plaintiff's claim is
and the grounds upon which it rests, but it must
also formulate the issues by summarizing those
facts essential to support the claim. Baker, et
Slh v. Ravos. et al,-, 229 Pa.Super. 333, 324 A.2d
498 (1974).
An essential fact needed to support a claim for
punitive damages is that the defendant's conduct
must. have been outrageous. Outrageous conduct is
an act done with a bad motive or with a reckless
indifference to the interests of others. Eocht v.
llil.!>ada, 217 Pa.super, 35, 38, 268 A.2d 157 (1970)
citing Comment (b) to section 908 of the
Restatement of Torts.
p. ~__~f~ ~~.. f1-~ ~O 2.-
-
"Reokless indifference to the interests of others",
or as it is sometimes referred to, "wanton
misconduct", means that "the actor haG
intentionallY done an act of an unreasonable
charaoter, in disregard of a risk known to him or
so obvious that he must be taken to have been awa.....e
of it, and so great as to make it highly probable
that harm would follow." Evans v. Philadelphia
Transportation Company, 418 Pa. 567, 574, 212 A.2d
440, 443 (1965).
~, 423 A.2d at 745.
In Smith, the Complaint alleged that the defendant failed to
have her car under proper and adequate control. Id. The Court
reasoned that:
While that may be the end result of outrageous
conduct, it is not outrageous conduct in i tseH.
1'lliY. some~>ne lost control .of their car is the
determining factor in decidina whether therE< was
.outraqeous conduct. The appellant's pleadings
contain no answer to that question.
~ (emphasis added). Consequently, the Court struck the punitive
damages claim from the plaintiff's Complaint for failing to plead
outrageous conduct as required by Pa.R.C.p. 1017(b) (2).
Instantly, Plaintiffs' claim for puni ti ve damages suffers from
precisely the slime defects in pleading puni ti ve damages as the
Complaint in Smith. Spedf ically, the Plaintiffs have not alleged
that the Defendant doctor actually realized the risk and acted in
conscio.us disregard or indifference to that risk.
The numerous
conclusory medical statements pled by Plaintiffs do not relieve
them of the obligation to plead the legally required knowledge and
motive, As in Smit~, the Plaintiffs in the instant case have not
answered the question of why the Defendant acted as they allege he
3
did. In summary, Plaintiffs, at best, have only pled facts which
support a claim for negligence.
Likewise, in McDanieLY., Merck, S!wrp & Dotllng, 367 Pa. Super.
600, 533 A.2d 436 (1987), the administrator of the estate of a
deceased patient brought a medical malpractice action against
certain physicians and a hospital, as well as a products liability
claim against a drug manufacturer. The Complaint contained a count
for punitive damages, The trial court dismis~ed the count against
the defendant physicians because the plaintiff had pled "nothing
but conclusory statements that conduct of the defendants was
'wilful, wanton and reckless'.., without allegations of fact in
support thereof. II McDaniel, 533 A, 2d at 447. The Superior Court
upheld the trial court's dismissal of the punitive damages claim
for three physicians stating:
Pennsylvania has adopted the principles of the
Restatement of Torts (Second) S 908 (2) governing
puni ti ve damages. puni ti ve damages may not be
awarded for misconduct which constitutes ordinary
negligence such as inadvertence, mistake and errors
of jUdgment. See Martin v , Johns-Manvi lle C.QLIh,
508 Pa, 154, 494 A. 2d 1088 (1985). Appellant
failed to allege any facts in its Complaint against
defendant physicians, or hospital, other than those
which constitute ordinary negligence.
~, 533 at 447.
However, the Super ior Court upheld the allegations of puni ti ve
damages against the defendant drug manufacturer.
In upholding
plaintiff's pleadings for punitive damages the Superior Court
stated:
Appellant's complaint alleged that appellee Merck
knew of a serious risk of illness and death
resulting from Metoxin use, and deliberately and
4
Prothoo, - 8
~RAE.ClPE FOR LISTING CASE fO~ ARGUMENT
(Must be typewritten <tod submitted 1.0 duplicate)
TO THE PROTHONOTARY:
Please list the within matter for the next:
(see local rule of court
1/9 for proper forum)
[=:J
LTI
(Check one)
Pre-Trial Argument Court
Argument Court
-- - ------ _...- -- - --- ------ --- .....-
- - -
(ENTIRE CAPTION MUST BE STATED IN FULL)
CAPTION OF CASE
(Plaintiff)
MAURA DANIELLE DIMEO, a minor, and
CATHERINE JEAN SHINDLE, Her'Natural Guardian, and
CATHERINE .JEAN SHINDLE, Individually
vs.
(Defendant)
RAI,PII PRESTON MERCHANT, M, D, and
SI\IPPENSBURG MEDICAL CLINIC. LTD.
vs.
No, 98
- 885
19
1, Stat,e matter to be argued (i,e" plaintiff's motion for new trial,
defendant's demurrer to complaint, etc,):
PRELIMINARY OBJECTIONS
2. Identify counsel who will argue case:
(a) for plaintiff(s): MARCUS A. McKNIGHT, 111, ESQUIRE. IRWIN. McKNIGHL__
& HUGHES. 60 WEST POMFRE'l' STREET, CARLISLE, PA 17013
(b) for Defendant(s): PAUL L._GRILI" ES,QUlRE. PORR & ASSOCIATES. P,C.
1850 WILLIAN PENN WAY, SUITE 209. P. 0, BOX 10696, LANCASTER, PA l7605
"
(c) for other(s) :
3. I will notify all parties in writing within two days that this
h" been ""ed 'or .rgw",n'. 4t?1'. j,
D.'ed ,,"."'"'' 'J.. 10" A<t orney 'or ~iff
( ) Defendant
( ) Other
case
-
I, MOTION TO STRIKE THE WORDS AND PHRASES "RECKLESS", "WANTON",
"OUTRAGEOUS BEHAVIOR" AND "GROSS DISREGARD" AS A BASIS FOR
PUNITIVE DAMAGED FROM PLAINTIFFS I COMPLAINT FOR FAILURE TO
COMPLY WITH PENNSYLVANIA .LAW,
2, Paragraphs 20, 24 and 30 include allegations that the
conduot of Defendant, Dr. Merchant, was reckless, wanton,
outrageous and gross.
3. The Plaintiffs' Complaint lacks the factual allegations
necessary to support that Dr, Merchant acted with evil motive or
that he knew or had reason to know that his conduct involved such
a high degree of probability that subst.antial harm will result to
the Plaintiff.
4. When read in their entirety, the allegations in
plai.ntiffs' Complaint assert no more thon negligent or careless
conduct on the part of Dr, Merchant and do not support a claim for
punitive damages,
5. Under Pennsylvania law, punitive damages are not awarded
for mere inadvertence, mi.stake or errors of judgment which
constitute ordinary negligence.
WHEREFORE, Defendants respectfullY request that this Honorable
Court strike the words and phrases "reckless," "wanton,"
"outrageous behavior/conduct" and "gross disregard," as a basis for
punitive damages, from Paragraphs 20, 24 and 30 of Plaintiffs'
Complaint.
II. KOTION TO STRIKE REFERENCES TO PUNITIVE DAMAGES FROM
PLAINTIFFS' COMPLAINT FOR FAILURE TO COMPLY WITH PENNSYLVANIA
LAW.
6, Paragraphs 1-5, inolusi va, are incorporated herein by
reference as if fully set forth at length.
2
Medical Clinic, LTD, is a Pcnnsylvania Professional Corporation with its primary otlicc located
at 411 South Fayette Street. Shippenshurg, Cumb(\r1and County, Pennsylvania 17257,
j,
On October 28,1992, the plaintift~ Maura Danielle DiMeo, was a student at the Big
Spring Middle Schoolloeatcd in West PennshOl'o Township, Cumberland County, Pennsylvania,
4,
On October 28, 1992, the defendant, Ralph Preston Men:hant, M,D" on behalf oflhe
Shippensburg Medical Clinic, LTD" visited the Big Spring Middle School to provide school
physical examinations to students at said school.
5,
At the time of her physical examination on October 28, 1992, plaintiff, MauJ'll Danielle
DiMeo, was seeking a school physical examination for involvement in extra-curricular school
activities,
6,
On Oetoher 28, 1992, plaintiff, Maul'll Danielle DiMeo, presented hcrself to the
defendant, Ralph Merchant, M,D" for a school physical examination at the Big Spring Middle
School.
7,
During the course of his examination, the defendant, Ralph Merchant, M,D., closed the
door to the room in which thc examination was taking place,
2
16,
13,
The plaintiff, Maltra Dllnlelle DIMeo, has expcrienced intonse emotional distross which
has required counseling,
14,
The plaintiff, Mauru Danietle DiMeo, has also expericnced great embarrassment and
mental anguish directly related to the actions of the defendants,
15,
The plaintiff, Maltra Danietle DiMeo, has experienccd the cost of counseling and
medications required to relieve her emotional distress caused by the actions of the defendants,
These expenses will conti1l\lC into the future,
COUNT I: MAURA DAN.I!!:LLE D1M~_O, A MIN_QR, B.Y
~A TlIERINE JEAN SWINDLE, m:R GUARDIAN, AND
CATHERINI~ JEAN SWINDLE
. --
v.
RALPH PRESTON MERCHANT, M,D.
Paragmphs one (I) through tlfteen (15) of the Complaint are herein incorporated by
reference and lire made a part of this Count.
4
27,
1110 Clinic is liable to the plllintiffs, Milum Danicl\c DiMeo and Catherine Jean Swindle,
for the actions of defendant, Ralph Merchant, M,D., while he was conducting physical
examinations lit thc Big Spring Middle School.
28,
Prior to October 28, 1992, said Shippcnsburg Mmlical Clinic, LTD, had notice that
defendllnt, Ralph Merchant, M,D" was acting inllppropriatcly with his female patients during
medical examinations and failed to takc ad(~quatc steps to intlmn and protcct the minor plaintiff,
Maltra Daniclle DiMco, from thc actions of defcndllnt, Ralph Mcrchant, M,l),
29,
In addition to the above the injury, damagcs, and emotional distrcss to the plaintiff,
Maura Danielle DiMeo, was caused by the negligcnce of defendllnt, Shippensburg Medical
Clinic, LTD" as follows:
a, Failed to exercise sufticient supervision and control of the lIctivities of
the defendant, Ralph Mcrchant, M,D,
b, Failed to provide adequate treatment and counseling to defendant, Ralph
Merchant, M,D, prior to October 28, 1992, in an attcmpt to stop his
inappropriate cxaminations of his fcmale patients;
c, Failed to notify or infonn the plaintiffs that defendant, Ralph Mcrchant,
M,D" had great difficulty ill perfonning appropriate examinations with
some of his fcmale patients,
9
d, FlIiled to provide a nurse or othcr employee during the examination of
plaintiff in ordor to restrain the actions of defendant, Ralph Merchant,
M,D,
30,
The failure of the defendant, Shippensburg Medical Clinic, LTD" to protect the minor
plaintiff, Maura Danielle Di Meo, from the gross and outragcous conduct of the defendant, RlIlph
Merchllnt, M,D" cntitles plaintiffs, Mama Danielle DiMeo and Catherine Jean Swindle, her
guardian, to punitive damages Ii'om said dcfcndant.
WHEREFORE, the plaintiffs, Maura Danielle DiMeo and Catherine Jean Swindle,
rcquest damagcs from defcndant, Shippensburg Medical clinic, LTD, in an amount in excess of
Twenty-five Thousand and nollOO ($25,000,00) Dollars plus costs and interest as permitted by
law,
COUNT V: CATHERINE JI~AN SWINDLE
v.
RALPH PRESTON MERCHANT, M.D. AND
SHIPPENSBURG MEDICAL CLINIC
. .
31.
Paragraph one (1) through thirty (30) arc herein incorporated by reference and is made a
pllrt of this Count.
10
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Mcdicul Clinic, LTD. is II Pennsylvunia Professionlll Corporation with its prlmllry office located
ut411 South FlIycttc St:'ect, Shipponsburg, Cumbel'illnd County, Plmnsylvllnia 17257,
3,
On October 28, 1992. the plllintif1~ Maura Danie\lc DiMco, was u student utlhe Big
Spring Middle School located in West Pennsboro Township, Cumberland County, Pennsylvunia,
4,
On October 28,1992, the defendant, Ralph Prcston Merchllnt, M,l)" on behulfofthe
Shippenshurg Mcdicul Clinic, LTl)" visited the Big Spring Middle School to provide school
physical eXlIminations to studcnts al said school.
5,
At the time of her physical cxamination on October 28, 1992. plaintiff; MlIum Daniel\e
DiMeo, was secking a school physical examination for involvement in extra.cutTicular school
lIctivities,
6,
On October 28, 1992, plainlift~ Maum Danie\le DiMeo, prcsentcd hcrsclfto the
defendant, Ralph Mcrchant, M,D" for a school physical cXllmination at thc Big Spring Middle
School.
7,
During the course of his examination, the defendant, Ralph Merchllnt, M,D" closcd the
door to the room in which the examination WllS taking placl',
2
8,
During the examination, while she was lying Oil an examination tablll, Ralph Mcrchllnt,
M,D, plllccd his hand on the skin of one bleast at a time and squcczcd thcm, Hc also placed both
hands on the skin on hcr brcasts and squcczed them, Ik also placed his hand into the vaginal
area, He proceeded to wiggle his lingcrs while they wcrc in her vagina,
<),
The actions ofthc defendant, Ralph Merchant. M,D" caused thc immediatc distress of the
plaintift~ Maul'H Danielle DiMeo, She I'Hn from thc cxamination room,
10,
Sincc October 28, 1992, the plaintiff~ Maura Daniclle DiMco, has had great emotional
difficulty with mcn in general and any man placed in a position of authority ovcr her,
II,
Since October 28, 1992, the plaintiff, Maura Daniellc DiMeo, has expcricnccd emotional
difficulty in school, nightmarcs. trouble with slccping, and has had lroubll' cxperiencing any
close relationship with another pcrson,
12,
Slncc October 28, 1992, the plaintlfl~ Mauru Daniellc DiMeo, has cxpericnced severc fcar
of lIny medicul examinations evcn thosc required by a school. This places her health lit great
risk,
3
27,
The Clinic is liable to the pluintifts, Maul'll Daniclle DiMeo und Cathcrine Jean Swindlc,
for the IIl,tions of' delendnnl, Ralph Mcrchllnt, M,D" while hc was conducting physical
examinutions at thr: Big Spring Middle School.
28,
Prior to October 2R, 1992, said Shippensburg MI,dicul Clinic, L TO, had notice thut
defendant, Ralph Mcrchant, M,D" was acting inappropriatcly with his female patients during
medical examinutions and illlled to takc adequate .>teps to int()11l1 and prntcet the minor plaintiff,
MaUl'a Danielle DiMeo, Irom the actions of defendant, Ralph Merchant. M,D,
29,
In addition 10 thc above the injury, damages, and emotional distress to the plaintiff,
MaUl'lI Danielle DiMeo, was caused by the negligence of defendant, Shippensburg Medical
Clinic, L TD" as follows:
II, Failed to exercise suftkient supervision and control of the activities of
the defendant, Ralph Merchant, M,D,
b, Failed to providc adequate treatment and eOllnscling to defendant, Ralph
Merchant, M,D, prior to October 2R, 199'2, in an attempt to stop his
inappropriate examinations of his female paticnts:
c, Failcd to notify or int(>nll the plaintiffs that defendant, Ralph Merchant,
M,D" had great dift1culty in perfomling appropriate examinations with
some of his female patients,
9
32,
As a dircet consequcncc of the actions of the deli.'l1llnnts, Ralph MCl'0hant, M,D, and the
Shippensburg Medical Clinic, the plaintiff: Catherine Jean Swindk, has expericnccd the expensc
and inconvcnicnec of providing hl'ip to her daughter, MauJ'a [),lIlielle DiMco, who has suffered
emotional damage, heen unable to slcep, or engage at tirncs in normal activitics,
WHEREFORE, the plaintiff~ Cathcrine Jean Swindle, requests damages t1'01ll thc
defcndunts in the amount in cxccss of Twenty Five Thousand and noli 00 ($25,O(lO,OO) Dollm's
with interest and costs as permiltcd by law against the delcnclants, Ralph Preston Merchant,
M,D, and Shippensburg Medical Clinic, LTD,
Respectfully submitted,
IRWIN, McKNIGHT & HUGHES
1f~
By: ,d// /7/1/ L Iff-
Marcl s .f.~:~ tj~~~It~"h'c
60 West Pomli'et ~
Carlisle, Pennsylvania 170 i3
717.249.2353
Suprcrne Court I.D, No: 25476
Attorney lor thc plaintiffs
Maura Danielle DiMeo and
Cutherinc Jean Swindlc
Date: Janual'Y 7, 1999
II
In The Court of Co 111111 on Picas ofCulllhcrland County, Pennsylvania
Maura Duniel1e Dimeo, a minor und Catherine Jean Swindle, her Natural Guardiun
and Cat.herine ,lean swindle, lncliv:iduai ly
VS,
Ralph Preston Merchant, t'i.D.
No, qR~8R~ ('h,.\ 1 1'prm 19__
NoW, .Feb. 23, 199 B 19_, I SHERIFF OF CUMBERLAND COllNTY, PA do hereby deputll,e lhe Sheriff of
Fran k 1 in_County to execute this Writ, this deputation being mode ut the request und risk of the Plaintiff,
~~."~~1~
Sheriff of Cumberland County, Pa,
Affidavit of Service
Now, FEBRUARY 25
wltbln SUMMONS
upon~PH P.B.ESTON MERCHANT
at SHERIFF'S OFFICE
by hunding to DEFENDANT___
attested copy of the original JjJMMONS
DEFENDAN't__ the contents thereof,
1998
8150 o'clock
A ~l. sen'ed the
, at
a true and
and mude known to
So unswers,
~~~~
DEPUTY Sherlffof FRANKLIN Coun~. Pa.
COSTS
SlIorn nnd suhscrlhed heforc
m.thls duvof . 1'1
.....------ . ---~_._- - -.-
SERVICE 18.00 S
Mll,E..\(;F,__ __
AFFIIl..!,Vrr 4 nn
S 22.00
SHERIFF'S OFFICE
I ~)/ LINCOLN WAY leAST, CIIAMBH1SBlJr~G, PENNSYLVANIA 11;>0 I (/11);>r; I :JBlI
I
SHERIFF SERVICE 1 INSTHUCHONS FOFI SH1VIC[ Of pflocress. 1'10""0 typ'! or p,lnl
PROCESS RECEIPT, and AFFIDAVIT OF RETURN j loUlhly.LJo"ol"olll(:tlfl"yooploH
RALPH PRESTON MERCHANT
;> COUIII NLlMIH H
98-885
" IYI'I.OtWtm OHCOMI'I.AII.T
SUMMONS
PlAINTII:fi!-i'
MAUM DANlELLE DIMEO E'l' AL
~I OfTFN: lANl1 f.;1
{ ~,NMAl or INf1IV1!)()!\L cuMf'M~Y C()fll'(JflAII()N. L Ie 10 ~;UllJlc;l Oil ()U;(;HIf' liON OF r'Hm'Utr'( ro III LTVIr:D, AlIACtH:[) on ~;OLD
RALPH PRESTON ~mRCHANT
fl. ADDfll:SS (Slr:JO! or nnJ. Aparllllonl No, Clly, (lorn, lwp., ~llilto and liP Codo)
AT 9612 POSSUM HOLLOW ROAD, SHIPPENSBURG, PA 17257
7. INDICAH UNLlSUAI. SHIVICI [ I COMMON Of I'A [ [ IlLl'lIT[.T i i OIIlU1
Now, 19, I, SHEf~IFF OF FRANKLIN COUNTY, PA, clo horoby depulize Ih8 Sheriff of
Counly 10 oxocuto IIl1S Wril ancl mako relurn Ihoreof according
10 law, Tllis deputat[on being rnode 811he requesl and risk of Ihe plClinlifl.
8, SPECIAL INSTRUCTIONS OR OltlER INFORMATION THAT Will ASSIST IN EXPEDITING SERVICE:
SERVE
..
'1111H,II (,r HMfIKIIIICO'lfITy
NOTE ONLY AppLIcABLE ON WRIT OF EXECUTION: N,B, WAIVER OFWATCHMAN ~A"ydopUIY shorifilovYlnn upon or olloohinn any properly uncler
within writ may Inave sarno without <1 ,"'I<1tchm<ll1, in c'lIstocly 01 w110f110VfIr IS 10l.lmllll po')sflssiofl, after nollfying porson of hwy or flttachmonl. withoul Habilily on
U)~_pm!gf _SllCh deputy ()( lhe shArilf 10 any plain!HI herolrl IUf Hny lo~,:;, ejo,;trur;lion or rornovill of any such p_rop(lrlytlOlolO ~hElrifl's sfllf.llherfJof.
9, SIGN. AT.U. .RE..OI ATT..O..R.. N.EY or O.lhor ORIGINATOR. [10 Tf'LEpHO.N.E...N.LJM.B.EH [II. DATE
_nC~J~BERLAND COUNTY SHERIFF . I
12, SEND NOTICE OF SERVICE COPV TO NAME AND ADDRESS BELOW: (This oroo mu,,1 be compleled II nollco Is 10 be mollod)
R. THOMAS KLINE, ONE COURTHOUSE SQUARE, CARLISLE, PA J 7013
SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE
I' I k I I I lit .} SI NATURE ctLAul lOri/Pc! FCSO D[lllIly or C10rk cUlCj Tlllo 114 I1dto flol'OIvocl 1-1~..;. E~I)jfitt.'n".'f.ln,.'rifl(.1 elate
,.5, ae now oc go roCOlp 0 If} Wfll ~ i r- _
or compla,nt os inclioo'acl a!Jovo. \.. . a~/a..--!{ I 2-24-'98 3-20-98 u
16. lllOroby CERTIFY anci RETURN that I; 0 ror<;nndlly c;wvnil 1 i h IV(' Ip(jdll'lJIClnrll (, 01 ',llrw 0 <IS sl!owllln "f-lullli-Hlo,s", [I havo oxocutocl as stlOwn in
"Flonmrks", tho writ or complaint dfl~cri ml or) tho indiviclual. comp<HlY, r;nrpClrflti()ll, ole, ,:It tho actclros~j sllown atJOvo or on ltlfJ Iflclividui'tl. company,
corp?~alion, etc" at ttl0 mlclross insortocl boiow hy hancllllHI fI TRUE flIvi ATTESTED COPY thnrool
17. LJ I horolly cortify ami roturn iI NOT FOUND hncau::io I Wllllrwllln to 1(J'~dtu t11n indlvidudl, cOfllp,my, corporalinfl, ok:" namocl above, (Soo rommks bolow)
HL N[lnw flrlcl-tiiln--of individual sorvocl (il not shown nlJOv(J) .- I' 19"I,-puf~(lIllJl ~\;'i1dld'l iI\)flllp(j <I"inullnn HHn, .
RALPH PRESTON MERCHANT f031([11I1I III 1110 (loID'I(ldlll',~ \1~HJ,11 plole,! of
I ilbo{Jo [I ..___ __
?L 00'110 of Sorvico 22, limo
20. Adciross 01 whnrn SOIvtJcI ((;Ol\lpIOIO only if difforont thelll <;hown <lhovo) (StrofJt 01' RFO, Aparlmont No.,
City, 8ora, Twp, Stalo ancl Zip Coelo)
SHERIFF'S OFFICE
2-25-98
8:50AM
AM
PM
r:ST
FDST
23. ATTEMPTSi. OaIO! Milo.
24. AdvflnCfJ Costs
30. flEMAHKS:
oop,ln1.1 Date .'Mlles .[ Oop,lnl, 1.0ate.lmMI'eo. .[OePlnt:\
25. Sorvico Costs 12G, Notary Cmt. [27, Milonge or Postage
18.0_0m.. . ..4.00 I .
Data
[MIIOO[OOP In1.10010 [ Mlio.r Oop,I"1.
[28, Total Costs 129. COST DUE OR REFUND
22.00 28.00 REFUND
, ---,-.-------------------
31 AFFIA4 nnel SlJb~H nborl to tlolortJ rno ltlls
34 "OYP'dl :EB~~...... 1998", ""I"."""''''''''''''''
37 '-f-!t, W)<l" '," '" [
MY C~ISSID~Xldflt' _____.____ .!
:18. I ACKNOWIt:DG.,L fIE ;LII' 1.[.)II1lID1l\.Ifi.~~~"I;.TUflN SIG1ATUflE l
01 AUTHOf1[ZHI [S' HNtMIlIOItVFII~l~~~,I"lIR(Y I'uh[rr;
ChMlbnrsburg, Frrmklln Gotmly
[(:~i() 11111l _~ML C~~~f!~~'\~.l9!2.t~lrfl.!_Nov, 4, 20(~__
I ISSUING AIHIIOIIII '(
25TH
. ~-~SO..-.;
& ...um r-o--
!;'_'IHlllollllf,'I,1 .
[lOll' ~';luHlI! GUS ALEXIOU
:U Onto
2-25-98
:lfi Dll!o
SHERIFF OF FRANKLIN COUNTY
1:"1') IJdtllflflClll'fnrl
';~.... "::tIl
SJ-IERIFF'S OFFICE
15711NCOLN WAY EAST, CHAMBERSBURG, PENNSYLVANIA 17201 (717) 261.3877
SHERIFF SERVICE
PROCESS RECEIPT. and AFFIDAVIT OF RETURN
1. Pi:i\lNTtFFi SI
[ I~STRUOTIONS- FOR SERVIOE OF PROOESS ~I.a.. type or print
I.glbly Do not detach any copl..,
-- - --- - ..-
- - 2.-00URT NUMBER
MAUEA \lANU:L1,j,; IlHll':O J':T AI, .~(HW5. .. .... ...
illEFENDAN17si 4. TYPE OF WRIT OR COMPLAINT:
HAl,"ll I'HESTON HElleHANT SlJN~IONS
--- .. -"----- ----- u_ ,_. ____un. ,".
{ !J NAME or INDIVIDUAL, COMPANY, COnpOflAlION Ere, 10 Sf.fWtCE orl OESGfllPTtON OF PROPERTY TO m: I EVIEO, ArrACHEO on SOlD
RAl.PI/ PltfWTON ~n:I([;MNT _ _ _ ._ _ _ _ . _._.._
fi ADDRESS (Slrool or RFD, Apartmonl No ,Oily, Bora, Twp , Slale und ZIP Codo)
_.AL...._...%l:!. POSSIJN I/OI,l,OH R.t>AD. (~IIIPl'ENSgl"{U. f'A J-'2S~ __... __.
7, INDICATE UNUSUAL SERVICE: [I COMMON OF PA. [J DEPUTIZE I] OTHER
Noyi~~:'::':==_._ ..' "'19. ... u ,i.SHERIFFOFFRANKLiN COUNTY, pA:; do-hereby deputize theSheriiiof
-.......-..-....--- . County to 'execute this Writ and make return thereof accordin!;
to law, This deputation being made at the request and risk of the plaintiff, . .... ..-- ..---:. . s"","i.o' .,,^"",,'!.c:o~"':I......._-_.-~---
i-sPEcIAi~iNSTRucTioNsoFfofHER-INFORM'AfioN r"HAfwfL"CAssist" IN -exPEtiiriNG'SERVICIE- ---------_,_
SERVE
.
NOTE ONLY APPLlciilile'ONWiliTO'FEXECUTION,'N:O:WAliiEll-OFWATCHMAN':"Any'aepuly.siierlfl levYing upo,,""r attaching any p,ap.rty unde,-.
wilhln writ may leave same wilhouf a watchman, in cllstody of whomever is found in possession, alter notlfying person of levy or attachmenl, without Uablllly on
~~f~~~~tU~~~K~6~~~~h;.r~\~~,a~~f~~~~~~f!/!1.!o.r anYJO~S'd.!l!llrtICllaDnrrema'ol~lli~ ~'lrL~u~~~W~n~ill;,~~~ sl!n't";~ s~~;~.reof~._____
CU~ilIERLAND COUNTY sm:tUFJ;' I
. .-.-..--....-.-----.~........-.......~ .....-.......-.....,-....--- """- -.~-..---.._..J__._._.___~_._
12, SEND NOTICE OF SERVICE COpy TO NAME AND ADDRESS BELOW: (Thl. ar.a muat be completed It notlc. I. to be melted)
R. THOMAS KLINE, ONI': GOUHTHOUSE SQUAIU:. CARLISLE. PA 17()jJ
, SPACE BELOW FOR USe-OF SHERIFF ONLY - PO NOT WRli'EBELOW THIS LINE .." .. ".
~a.~~~~~~;~~;/fnc~;!;~;~;t"r.,~~AT~::::t~~:::~~~~c~el~~rl~nlle ]1\::e4~~~~e~~~~;~~~~~~arl~ date .
16, I h.r.by CERTIFY and .RETURN th~e'SanallY served, II have le~al o'lldenc. 01 servlc. as shown In "R.marks', 0 have execul.d as shown In
.Remarks~, the wrll or complaint describ6d on Ihe individual, company, corporation, ole., al the address shown above or on lhe Individual, company,
.---.E"rpor,,!lon, ,"'-~~~h~_addr.s.slnse'I.9b.IOWbLI1~~dllng "-l'~.lI~_and~TT.E~TEDY_l?~,(II1"~.,~,_.__.________,___._",.
17. D I hereby cartlfy'and return a NOT FOUND because I am unable to IDOale lhe IndIvidual, company, corporation, etc., named above, (See rilmarks below)
lB:-NIim. and 11110 oi'indlvldual sONodl./f. no-i-ShOW. n.a-b. iWO) '.-. -.. -.' .--....~. ... .. .-.-.. ..---.----rw:A-;;;;,~.~';"''''bl. .OO 'M ""',.... th." __
RAI,PU P~~~~.!l)~~~"-~C II~NT._ '__ ....~..___. m~__ ---m.__._J~=~g d" ~:~~'.,,"':"'" "'''~' ~.'" .'
20, ~~~~~~r~,'.~;,~..~~Z:~Jc~~~:~)>nIY II dlfforenllh.n shown a. bove) (Street 0.'. RFD, Apert"'.nl NO"... r Dalo 01 s.~.Ic. 22 Time, ~~r
. SHERm" S OFFl CEo , /_L~-:/5C::9W"? 8: ~jM ~~sr
:3, A:~.MP~~~a]~II.:I'" "L"'I""'T"''"'l"'''l':'--:E'i'''"l~t ,.;. '.,o;[ ~.. "
~~vance ~o::..__w._ ~5, ls:~v~C(:~~SIS_e,~::~,~~~rtt~lIe~:~::s~~~..~ 2:2rt~~osts 2:~;~r~~~~;"" i'
30. REMARKS:
----- --..._-_.".._~...,"----
31, AFFIRMED and subscrlb.d to before m. this .'_ (S.TJL..
SO ANSWER,---.-----.
......-.- -....."...-.-.... ......--- ~_._--_... ~... -
32 SlflnlllliW of 33, Date
Onr "h"u" ,;11;; ^ IiE:U Ol! 2".25-98
-.. " 3!\~-S~.l',ffilolSheilji"..---_._-_._-------~.- 38. Dale ,
. U 'slflfRIFFOr FRANKLIN coUNTY. - --
34, day o,.....__f.i~:I~RU~J:~'{.__..._
"~
19ljl)
-... ._--~..._-----
37, ._.~ . ..- --.---". --i;;;,ih~n.~i,I-~,:I-~I);,ifIN,;i,;,v ro.,i,11<'
MY COMMISSION EXPIRES
38:'IACKNOWLEDGe'REctipTOF.tHe SHER1",,;sREtunNSlclNAtUREj'
_Qf.".!J.1J.IQBI~DI!l(;lJINq I\lJTHOflITYMmTITbE, u.,' . m
u~.='u'.--=~=:__J::: R"''''
~-....,..,...;
'~,-
FCtiO.lllfH1
PORR & ASSOCIATES, P,C,
BY: Daniel L. Grill
Identification No. 65339
1850 William Penn Way
suite 209
P.O. Box J.0696
Lancaster, PA 17605.0696
(717) 390.3020
Attorneys for Defendant:
Ralph Preston Merchant, M,D.
and Shippensburg Medical
Clinic, Ltd.
IN THE COURT OF COMMON Pl,EAS
OF CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
MAURA DANIELLE DIMEO, a Minor,
and CATHERINE ,JEAN SWINDLE,
Her Natural Guardian, and
CATHERINE JEAN SWINDLE,
Indi viduall.y,
No. 98-885
plaintiffs
v.
RALPH PRESTON MERCHANT, M.D, and
SHIPPENSBURG MEDICAL CLINIC, LTD.,
Defendants
JURY TRIAL DEMANDED
NO.TIeE TO PLEAD
TO: MarcuS A. McKnight, III, Esquire
Irwin, McKnight & Hughes
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013-3222
may be entered against you.
You are hereby notified to plead
within twenty (20) days from service t
PO R &
Dated: ~/11~
By:
Daniel L. Grilli
Attorney for Defendants
Ralph Preston Merchant, M.D.
and Shippensburg Medical
clinic, I"td.
36. Plaintiffs are required to first exhaust their rights
under any insuranqe policy including, but not limited to, claims
under accident and health insurance, workers' compensation, Blue
Cross and Blue Shield, and all other coverages except for policies
of an insolvent insurer.
37. It is believed and therefore averred that certain or all
of Plaintiff's medical and other bills for which Plaintif,f seeks
recovery in this action were paid or are/were payable under
accident and health insurance, Blue Cross and Blue Shield, workers'
compensation insurance, or other insurance,
38. Plaintiffs' recovery or rights to recovery under all
other insurance reduces any amounts payable by the Pennsylvania
Property and Casualty Insurance and Guaranty Association; to the
same extent, Plaintiffs' claim against answering Defendants is also
reduced.
39. Plaintiffs' Complaint fails to state a claim upon which
relief can be granted,
40. Plaintiffs' claims are barred by the applicable statute
of limi tations.
41. Answering Defendants at all times pertinent hereto
strictly adhered to the applicable standard(s) of care, and no
conduct of answering Defendants was a proximate cause of the
alleged injuries or damages to Plaintiffs.
7
",,-
42. Plaintiffs I claims are barred and/or limited by the
provisions of the Pennsylvania Health Care Services Malpractice
Act.
43. Plaintiffs' alleged damages were caused solely by the
acts, conduct., negl igence, carelessnesR and/or recklessness of
individuals and/or entities over whom answering Defendants had no
control, nor any right to control, nor any duty to control.
44, Rule 238 concerning damages for delay is unconstitutional
and all allegations or assertions for delay damages are barred.
45. Section 606 of the Health Care Services Malpractice
Act provides that, in the absence of a special contract in writing,
a healthcare provider is neither a warrantor nor a guarantor of a
cure, and such provision bars the claims of the Plaintiffs in this
case.
WHEREFORE, Answering Defendants Ralph Preston Merchant, M.D,
and Shippensburg Medical Clinic, Ltd. demand that judgment be
entered in their favor, dismissing the Plaintiffs' Complain and
awarding costs, counsel fees and
relief as provid d by
applicable law.
BYI
Daniel L. Grill
Attorney for Defendants
Ralph Preston Merchant, M.D.
and Shippensburg Medical
Cl inic, l,td.
8
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