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HomeMy WebLinkAbout01-1510 FX ,"......",., "'I" ~---" ~' - -.' ", .'~," co. ?_~t i PETERS & W ASILEFSKI By: Charles E. Wasilefski, Esquire Attorney ID #21027 2931 North Front Street Harrisburg, PA 17110-1280 Attorney for Defendant, Jean Wade DEANNA K. COLLINS - Trustee Ad Litem for the ESTATE OF GEORGE G. STEWART, Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO 01 - 1510 Civil Term JEAN WADE, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED MOTION OF DEFENDANT. JEAN WADE. FOR JUDGMENT ON THE PLEADINGS '.;" NOW COMES, Defendant, Jean Wade ("Wade"), by and through her attorneys, Peters & Wasilefski, and f11es this Motion for Judgment on the Pleadings for the following reasons: ;\~ 1. On or about April 9, 2001, Plaintiff filed a Complaint against t: ~: ;~ Defendant, Wade, alleging that on November 7,1998, said Defendant, Wade, breached certain duties to Plaintiff's decedent and was negligent, on that date, in providing improper nursing care resulting in the wrongful death of Plaintiff's decedent. A copy of said Complaint is attached hereto as Exhibit" A" . ,,-- -.- .,--~--,. , "_'_"".,.."", '<' """,- '''<~"''~'..';r-,"WX,''',~_". ~.i,: 2. On or about April 30, 2001, Defendant, Wade, timely filed an Answer with New Matter to Plaintiff's Complaint. In addition to other allegations, Defendant, Wade, pleaded that the Plaintiff's claims are barred by the Statute of Limitations. A copy of the Answer with New Matter is attached hereto as Exhibit "B". 3. Plaintiff has not filed a responsive pIeading to the New Matter, and therefore, for purposes of this Motion for Judgment on the Pleadings, all allegations contained in said New Matter are deemed admitted. 4. In addition to the Plaintiff's claims being barred by the applicable Statute of Limitations, Plaintiff's Complaint fails to state a cause of action and damages upon which relief can be granted in this matter. See Deanna K. Collins. Trustee Ad Litem for the Estate of Geor!!e G. Stewart v. Rosemarv Dailev Bathavic. Civil Action No. 00-7949 Civil Term, Order and Opinion dated August 15, 2001.(Court dismissed a similar Complaint because the complaint failed to allege sufficient facts to support either a wrongful death or survival action). 5. Based upon the allegations contained in the pleadings, Plaintiff's claims are barred by the applicable Statute of Limitations and the Complaint fails to state a claim upon which relief can be granted. WHEREFORE, Defendant, Wade, respectfully requests that the Court 2 :r~ .~". -- ",-,."",.-;-." , ,_~k",': .,",__.,k""'>w';__".'~""",/_",,,,,,- '-f< ""'''"''>0 "..," ~,,' 'I enter judgment for Defendant and dismiss Plaintiffs Complaint. PETERS & W ASILEFSKI B' Charles E. Wasilefski, Esquire Attorney #2I027 2931 North Front Street Harrisburg, PA 17110 [717] 238-7555 Attorneys for Defendant Date: October 3I, 2003 3 '4: ,,~-- -.'0- -"_~""~. - ^~'_ ~~~"~'~" ,-."""" -'_ ~_'"_O'<'~+ - __ F_."-~~"".o,,_ ;,~'i;-"-';;"A<- "& _", . > ~'~J-0~ CERTIFICATE OF SERVICE This is to certify that I, Pamela J. Crum, a Legal Assistant in the law offices of Peters & Wasilefski, have this 2> day O~~~K'Q _ ,2003, served a true and correct copy of the foregoing MOTION OF DEFENDANT, JEAN WADE, FOR JUDGMENT ON THE PLEADINGS upon all parties by depositing same in the United States mail, first class, postage prepaid, addressed to the counsel of record as follows: Deanna K. Collins 46 Willow Street Highspire, P A 17034 ~~~~~ Pamela J. Crum L~ , . ~ ,~- , ." ~ - ~ - '" - ,..-- ,C"" . , 1001 ,:\:-.....:., ;! ,;1 i" l'. ,':;" \) "- ~ ~, DEANNA K. COLLINS-Trustee d litem for the ESTATE OF GEORGE G.STEWART , 'Plainti ff Defendant IN THE CC S< OF COMMON PLEft. S FOR CUMBERLAND COUNTY, PENNSYL VANIA NO: 01-1510 Civil Term CIVIL ACTION-LAW AMENDED COMPLAIN'!' 0 F MEDICAL NEGLIGENCE *** Demand Jurl Tr~l*** ***Date:**~~J:**l*~~~*{****** VS. JEAN WA DE **************************************** I,DEANNA K. COLLINS,recently appointed Trustee Ad litem for the ESTATE of GEORGE G. STEWART, Charge JEAN WADE with the following allegations of Medical Negligence that contributed to the wrongful death situation for George G. Stewart,a former resident of Claremont Nursing and R@alO:flit""tion ? Cel'llter..Ce.rlisle,Pennsylvania 17013. ~~~' ji 05"', ' The Allegations are as follows: .-- \D !.=: ~:o -, , ~~J .',;::: '- --, ~~ Failure to follow Doctor's Orders givel'll verbally by Dr. J~R Scli.iro~M;. D. .~ S~) ~~; '-'-I at aprox. 8:10plll( 11/7/1998)0 cfEAN WADE Breached her Duty by ~er~ai:Jii}1re to -< follow this physician's verbal orders to immediately contact the Family regarding Mr. Stewart's declining health at aprox. 8pm 11/7/1998. jl. Failure to Immediately contact Hilda B. Stewart(wife) after Deanna Collins(daughter) gave a corrected telephone number for contacting Hilda B. Stewart. This Nurse acted on the assumption of alllL Un-Informed Fam:iJ.ly ~eoober relaying a message....that this Nurse never gave to any Family member regarding Mr. Stewart's declining health at aprox. Bpm(11/7/1998). This also is Breach of Duty to perform her Nursing duties for a resident who by this time Was loosing conciousruess and Was ul!llalOle to give adequate verbal directions to staff. Failure on this Nurse's part to Contact The Responsible Legal-Health AdVocate for George G. stewart. :3. BREACH OF DUTY-Failure to adeqUately Assess a Res~dent's declining Health! Status;.....This Nurse Supervisor(3 to Ilpm) on duty at Claremont the evening 0 f 11/7/1998 Was Negligent for her failure to take Prompt, Appropriate EMERGENCY ACTIONS lIlLecessary to ensure the Physical,Mental and Emotional Safety of George G. Stewart(resident) thiel night. This Nurse failed to realize the severe significance of George G. Stewart's falling Blood f'rPj"- (t) II~ _. .1 " '.J' .Jd,; "', ^ - -' ; "~", , ~-,: PressUre as a serious chal in a VITAL SIGN. This re lent,Mr. Stewart, had previously been an alert.ambulatory person. Now HE (Stewart) had to be placed into bed,put om Oxygen and Was loosing conciousness. ~. NEGLECT....by this: JEAN WADE(Nurse). This Nurse is charged with the Neglect of a Care Dependent Person,Mr. Stewart, causil'llg HIM serious bodily il!lljury. This sitUation is considered a CRIME in Pennsylvania Crime Code. T~is too is a Breach of Duty to perform those necessary Nursing Interventions to prevent HARM to a patient... . specifically George G. Stewart. This Nurse faiJLed to Immediately Provide any Emergency Rescue A~tions for Mr. Stewart. $. Failure to Provide Immediate Emergency Care. .for George G. Stewart. This ~s a BREACH of DUTY. This Nurse.JEAN WADE, after failing to realize the seriousness of Mr. Stewart's decling Health at aprox 8pm 11/7/1998. contil!llued to leave Mr. Stewart lay with a severely falling Blood Pressure to aprox. llpm lJL/7/1998,..the end of her shift of JIlJursgg duty, without Providing any Emergency Rescue Nursing Interventions. This Nurse had the edUcational kBowledge and training and could Observe the decling physical changes of Mr. Stewart...but Failed to take any actions by leaving this resident lay without appropriate medical attention. This Nurse left George G. Stewart lay aprox. 3 Hours(documented) . THEREFORE. this ESTATE of GEORGE G. STEWART, via its Plaintiff,DEANNA K. COLLIN. alleges that the combined BREACHES OF DUTY of. this Nurse Supervisor,JEAN WADE. to give safe.adequate, IMMEDIATE EMERGENCY NURSING CARE for GEORGE G. STEWART and her NEGLIGENCE and CARELESS attitude in this Emergency situation contributed to the untimely Wrongful Death of George G. Stewart. The Negligent Actions of this Nurse,JEAN WADE, are very below the expected Normal Standard of Nursing Care a Registered Nurse Supervisor should~ave provided-for this particular resident on the evening of her duty at Claremont on 11/7/1998. r . f~'LlaJ ~~ ,-1-, I" ,-"""'-\", ~ ",~ "- '':':l',j THEREFORE. this ESTATE OF GEORGE G. STEWART PRAYS ~OR A JUDGEMENT IN THE AMOUNT OF: l' / :<,_S~ &tJtJ . Against this Nurse: JEAN WADE(Defendant)Registered Nurse Supervisor(3 to 11 P of Claremont Nursing; and Rehabilitii!tion Center,Carlisle,.Pennsylvania for her BREACH OF NURSING DUTY amd her COMBINED ACTS OF NURSING-MEDICAL NEGLIGENCE which we.. the FAMILY,. situation for GEORGE G. STEWART, Sigmed: '8tPtILLx;:(Jdluy Date: Mrz// 7,d-fn/ alleges contributed to the Wrongful Death former resident of this nursing home facilit (Plaintiff) Trustee Ad litem of said ESTATE Attorney Per Se Il tl Qtl C3 ) r -J - , ~, < ~ l. " ~ > '_'o_~....~' ,_,,~ ;--< . '''$!1'''''-c DEAIDliA K. COLLINS-Truste' \Ii-litem FOR THE ESTATE OF GEORGE ~. STEWART , Plaintiff Defellldant IN THE. 'URT OF COMMON PLE~S FOR CUMBERL,,",D COUNTY ,PENNSYLVANIA NO: 01":1510 Civil Terlll CIVIL ACTION-LAW VS. JEAN WA DE DATE: Itff.lf? .,;2.OVI AMENDED COMPLAINT OF MEDICAL NEGLIGENCE ****DEMAND JURY 'rRIAL***** **********~*~*********~~**~~*********~~****. ****~-~*:!'~*******~~**~~~~~~~~~~~~*~~~~;~~~~~*~~*~~*~ SUMMOHS IN A CIVIL LAWSUIT I,DEANNA K. COLLINS,Trustee Ad litem for the ESTATE OF GEORGE G. STEWART (Plahlltiff) SERVE Upom JEAN WADE(Defendant).out-of-state resident,and her designated Pennsylvania legal counsel A Certified Copy of this recently AMENDED COMPLAINT OF MEDICAL NEGLIGENCE AND A LETTER OF SUMMONS AS FOLLOWS: lega1 counsel: CHARLES E. WASILEFSKI,Esq. 2931 North Front street Harrisburg,Pennsylvania 17110 Defendant: JEAN WADE Served to out-of-state HOME ADDRESS VIA a hired Pro fessional Service Processor. YOU.JEAN WADE,(Defendant), are being sued in this Court for a JUDGEMENT A:MOUNT' of: t- /:J-S: 000 for YOUR MEDICAL NEGLIGENCE that contributed to the untimely,Wrongful Death of GEORGE G. STEWART via DEANNA K. COLLINS(Plaintiff) appointed Trustee Ad litelll for the ESTATE OF GE:ORGE G. STEWART. YOUR Response to this action is Requested by submitting a written ANSWER to tms Court within: 20 DAYS of SERVICE: of this AMENDED COMPLAINT and LETTER OF SUMMONS, and also by sending a COPY OF YOUR ANSWER to the legal counsel for this Plaimtiff. Address of legal counsel for this Plaintiff as follows: DEANNA K. COLLINS 46 Willow Street Highspire,Penna. 17034 Signed: ))?~t: C&-d~ De.te: I;f/.il cr ,~~ I /lO.-.<f'<. ( Jf.) , ./ - I" ,c _~__ ~ I . , -_',_' ".",,i. '.-, PETERS & WASILEFSKI By: Charles E. Wasilefsld, Esquire Attorney II> #21027 2931 North Front Street Harrisburg, PA 17110-1280 Attorney for Defendant, Jean Wade DEANNA K. COLLINS - Trustee Ad Litem for the ESTATE OF GEORGE G. STEWART, Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA NO 01 - 1510 Civil Term (") c <'" :-Urr; CIVIL ACTION - LAw:pr:-; z;X' ci:5~. JURY TRIAL DEM~ :<> 20 ;,,-0 c NOTICE TO PLEAD ~ TO: PLAINTIFF AND HER COUNSEL v. JEAN WADE, Defendant -, ,-,-' '~"-h" o o -n ".. -0 ;;0 L.) a I'll:::!] '.'-.m ~6 ~~=B ~,-;o Om ~ 15 -< .,., ::J:: r:-? :.n (.11 YOU ARE REQUIRED to plead to the within Answer with New Matter within twenty (20) days of service hereof, or a default judgment may be entered against you. PETERS & W ASILEFSKI oj ~3~J~Q . CHARLES E. W ASILEFSKI i \ , Attorney ill #21027 l,) 2931 North Front Street Harrisburg, PA 17110 [7I 7] 238-7555 Attorney of Jean Wade Dated: c./3ujOI ,-,' , , ," ,',-,j;-' ..~- , '_",,_1', "." , ' :,;.J.i-tj PETERS & W ASILEFSKI By: Charles E. WasiIefski, Esquire Attorney ID #21027 2931 North Front Street Harrisburg, PA 17110-1280 Attorney for Defendant, Jean Wade DEANNA K. COLLINS - Trustee Ad Litem for the ESTATE OF GEORGE G. STEWART, Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLANDCOUNT~ PENNSYLVANIA v. NO 01-1510 Civil Term JEAN WADE, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT, JEAN WADE, TO PLAINTIFF'S COMPLAINT NOW COMES, Defendant, Jean Wade ("Wade"), by and through her attorneys, Peters & Wasilefski, and answers Plaintiffs Complaint, as follows: L Defendant, Wade, denies the allegations contained in Paragraph 1 of Plaintiffs Complaint. To the contrary, Defendant, Wade, attempted to contact Responsible Party #1, Hilda Stewart, but discovered that the information given at the time of the admission regarding Mrs. Stewart's telephone was wrong, so she contacted Responsible Party #2, Deanna Collins, to report the change of condition of George G< Stewart to a family membeL In fmiller answer, Defendant, Wade, denies said allegations pursuant to Pa. R.C.P. 1029(e). 'J" ".' " ,. -'~' -~ ,-, ", 'L-! 2. Defendant, Wade, denies the allegations contained in Paragraph 2 of Plaintiffs Complaint. To the contrary, Defendant, Wade, was specifically told not to contact Hilda Stewart by Deanna Collins. Deanna Collins informed Defendant, Wade, that she, Deanna Collins, would speak to Hilda Stewart and get back in touch with Defendant, Wade, with further instructions. Further, Deanna Collins was specifically told about the change of condition of George G. Stewart and she was to inform Hilda Stewart of the change of condition. In further answer, at all times relevant, Defendant, Wade, provided timely and appropriate nursing care in accordance with appropriate nursing practices consistent with the circumstances that then and there existed. In further answer, Defendant, Wade, denies said allegations pursuant to Pa. R<CP. I029(e). 3< Defendant, Wade, denies the allegations contained in Paragraph 3 of Plaintiff s Complaint. All or part of the allegations contained in said paragraph are conclusions of law and no further answer is required. To the extent that an answer may be necessary, Defendant, Wade, specifically denies that she was in any way negligent in her care and treatment of George G. Stewart. To the contrary, at all times relevant, Defendant, Wade, provided appropriate and timely nmsing care in accordance with the applicable nursing standards required under the circumstances of this case. No act or failure to act on behalf of Defendant, Wade, caused or contributed to the alleged injuries and damages sustained by George G. Stewart. In fi.u1:her answer, Defendant, Wade, denies said allegations pmsuant to Pa. R.C. P. I029(e). 2 <,. -. ' -0 l ^ " "~ ',_" -.., ,,,,,.,-' ---,- i1 4. Defendant, Wade, denies the allegations contained in Paragraph 4 of Plaintiff s Complaint. All or part of the allegations contained in said paragraph are conclusions of law and no nuiher answer is required< To the extent that an answer may be necessary, Defendant, Wade, specifically denies that she was in any way negligent in her care and trea1ment of George G. Stewart. To the contrary, at all times relevant, Defendant, Wade, provided appropriate and timely nursing care in accordance with the applicable mrrsing standards required under the circumstances of this case. No act or failure to act on behalf of Defendant, Wade, caused or contributed to the alleged injuries and damages sustained by George G. Stewart. In further answer, Defendant, Wade, denies said allegations pursuant to Pa. R.C. P. 1029(e). 5. Defendant, Wade, denies the allegations contained in Paragraph 5 of Plaintiff's Complaint. All or part of the allegations contained in said paragraph are conclusions of law and no nuiher answer is required. To the extent that an answer may be necessary, Defendant, Wade, specifically denies that she was in any way negligent in her care and treatment of George G. Stewart. To the contrary, at all times relevant, Defendant, Wade, provided appropriate and timely nursing caJ:e in accordance with the applicable nursing standards required lmder the circumstances of this case< No act or failure to act on behalf of Defendant, Wade, caused or contributed to the alleged injuries and damages sustained by George G. Stewart. In further answer, Defendant, Wade, denies said allegations pursuant to Pa. R.C. P. I029(e). WHEREFORE, Defendant, Wade, demands that Plaintiffs Complaint be dismissed< o ~ -'-- ;;;' ,""n' ,I~" ....'",-" . "",0" -~ "t, NEW MATTER 6. George G. Stewart was admitted as a resident at Defendant, Claremont, on November 2, 1998. He was admitted to Room D-2, Bed 2, D wing, an intermediate care unit. 7. George G. Stewart was admitted as a resident at Defendant, Claremont, because his wife, Hilda Stewart, who was his primary care giver at home, was to have smgery and was not able to care for him during her smgical recovery period. Hilda Stewart reported to the nurses that she was to have bilateral endmterectomies done at Holy Spirit Hospital on November 3, I998, the day following Mr. Stewart's admission to Defendant, Claremont. 8. Hilda Stewmt accompanied George G. Stewart for admission. Hilda Stewart provided all the admission information, including her address mld telephone number and designated Deanna Collins, the Stewart's daughter, as the Responsible Party #2. 9. Hilda Stewart informed the nursing staff that she expected that George G. Stewart's stay at Defendant, Clm'emont, would be short. He would remain at Defendmlt, Claremont, only dming her surgical convalescent period. 10. At the time of admission, George G. Stewart and Hilda Stewart signed a Statement of Agreement that stated in part: 1. I hereby authorize the Claremont Nursing mld Rehabilitation Center of Cumberlmld County to provide medical and nursing services to me. I further authOlize the physician in charge of my care to administer any treatment 4 ^ ~ , '<l" t~'_," '"' ;. < t<1i;:rl or treatments that the physician may deem necessary or advisable for my care. II. At the time of admission, George G. Stewart was an 82 year old man who was 5'3" tall, weighed 95 'I. pounds and was diagnosed as having the following conditions: Emphysema (Primary); Senile Dementia, Alzheimer's type; Schizophrenia (three prior admissions to Holy Spirit Hospital; and Peripheral Vascular Disease. 12. Dr. Gawlas saw, examined and provided a treatment plan, including medications for George G< Stewilli that was consistent with his condition at the time of admission. 13. On Saturday, November 7, 1998, at approximately 5:30 P.M., the nursing staff noted what appeared to be a change in George G. Stewart's mentation as a result of this observation, certain medications were held as it was felt that the change may have been due to the affects of the medication and the nursing supervisor was requested to assess him. The nursing supervisor stayed with Mr. Stewart during dinner and assisted in feeding him. He indicated that he was tired and wanted to go to bed early that evening. As a result of this request, the nursing supervisor and a staff nurse assisted Mr. Stewart in going to bed at approximately 7:45 P.M. 14. At the time that George G. Stewart was assisted into bed, the mu'ses obtained his vital signs and assessed his condition. The nursing supervisor then called Dr. Schiro for instructions. Dr. Schiro discontinued the Sinimet and ordered that the Haldol be held. He nuiher ordered the administration of oxygen at 2 liters per minute via nasal cannula-pm for dyspnea. He also ordered that the family be notified of the 5 i~'" - --~ ~ -",';) ..-~~ - , '. ~ ~--,,: ~ . change of condition. At the time of admission, Hilda Stewart did not provide Defendant, Claremont, with an Advanced Medical Directive, which is an optional section of the chart that indicates the resident's or the family's wishes in case of a change of condition. 15. After assisting George G. Stewart into bed, the nursing supervisor attempted to telephone Hilda Stewalt, as directed by Dr. Schiro. At that time, it was discovered that the wrong telephone number had been given at the time of admission< The nursing supervisor then called the Responsible Party #2, Deanna Collins. Deanna Collins was informed that George G. Stewalt had a change of condition and that the nurse supervisor had to speale with Hilda Stewart to inform her of the change of condition. Dealma Collins becalne abusive and indicated that she would speale with her mother and they would get back to the nursing supervisor. Deanna Collins abruptly hung up on the nursing supervisor. Neither Deanna Collins nor Hilda Stewart ever got back to anyone at Defendant, Claremont. 16. During the period following the telephone call to Deanna Collins, the nursing staff closely monitored George G. Stewalt. After the Challge of shifts, nurses constantly attended George G. Stewart. Since neither Deanna Collins nor Hilda Stewart called or came to the facility during the period from when the nursing supervisor on the 3:00 PJvL to 11:00 P.M. shift had spoken to Deanna Collins, a telephone call was placed to Hilda Stewart. Hilda Stewalt had not been made aware of the earlier telephone call to Deanna Collins and was therefore not aware of her husband's Challge of condition< Hilda Stewalt was updated on the change of condition of George G. Stewart, the doctor's orders 6 , " ._c," ~ _ '" "" -,' " '" l' ~" ~ ;,0; received and the notification to her daughter, Demma Collins. At that time, Hilda Stewart indicated that she desired to have fimher treatment given to George G. Stewart at the Carlisle Hospital. 17. Immediately after the telephone conversation with Hilda Stewart, the nursing supervisor contacted Dr. Schiro and updated him on George G. Stewart's condition and the request from Hilda Stewart to have firrther treatment given at the Carlisle Hospital. Dr. Schiro made a telephone order for the transfer of George G. Stewart to Cm'lisle Hospital. Deanna Collins was then informed that George G. Stewart was being trmlsferred to the Carlisle Hospital. 18< Upon information received mld believed, Deanna Collins, at the time of the initial telephone call, was in the process of getting ready to go out on a date and did not telephone her mother, Hilda Stewart, to inform her of George G. Stewart's change of condition so that firrther instructions could be given to Defendant, Claremont, as to the family's desires for treatment in light of the change of condition. If there was a delay in treatment as alleged by Plaintiff, which is denied since George G. Stewart received appropriate care and treatment consistent with his change in condition pending further communication with the fmnily, that delay was the result of Responsible Party #2 not meeting her responsibilities. 19. George G. Stewart's illness and eventual death was the result of the natural deterioration of his physical condition resulting from age mld the illnesses that he had and not as a result of any act or failure to act by Defendant, Claremont, its nursing 7 'I" . . "1 <_"~ i ,I . ; , '"' - . ,-"- , " '<~ :11 staff, its employees, agents, or servan s, or the physicians attending to George G. Stewart I: during his residence at Defendant, Claremont 20. All ofPlaintiff'~ alleged i~uries and damages are the result of acts or failure to act on behalf of third pmii:es over whom Defendant, Wade, had no control. 21. The alleged negligence of Defendant, Wade, occurred on November 7, 1998. Plaintiff did not file this action until April 9, 2001, five (5) months after the Statute of Limitations would have run on this action. TIlerefore, all of Plaintiff s " claims in this action are barred by the $tatute of Limitations. WHEREFORE, Defel1dant, Wade, demands that Plaintiffs Third 1 Amended Complaint be dismissed. PETERS & W ASILEFSKl /~\ n L IlSL rh: !UJl cG ,(2, Charles E. W asilefski, Esq~e " Attorney #21027 i \ 2931 North Front Street \i Harrisburg, PA 17110 [717] 238-7555 Attorneys for Defendmlt, Jean Wade Date: April 30, 2001 8 "",,,,,- 1-. I , ,-c__;,;... _, i ~, - - '.-, ,~,",'-J vERIFICATION Ii I, Charles E. Wasilefski, Esquire, attorney for Defendant, Jean ! Wade, in this matter, verifY that the s~tements made in the foregoing Answer with New Matter are true and correct to thf best of my knowledge, information and belief. The undersigned understands that his ~tatements are made subject to the penaIties of 18 ,I Pa. C.S.A. Section 4904 relating to upsworn falsification to authorities< Dated: April 30, 200I &a21{z1.~ Charles E. Wasilefski, ES~ lIe "- c, '" ',--j',< '-,,"* -" ., <,~, -"";;^.". ';-., ">-' CERTIFICATE OF SERVICE This is to certify that I, Pamela J. Crum, a Legal Assistant in the law offices of Peters & Wasilefski, have this 2>::> day of ~\L~ \ , 2001, served a true and correct copy of the foregoing ANSWER WITH NEW MATTER OF DEFENDANT, JEAN WADE, TO PLAINTIFF'S COMPLAINT upon all parties by depositing same in the United States mail, first class, postage prepaid, addressed to the counsel of record as follows: Deanna K. Collins 46 Willow Street Highspire, PA 17034 ~~}- ~-~~~ Pamela J. Crum . -:-;;'~""':"'~"I"" '0-'; :j'--::.iliitl ~~~ ,.- '-'~~~tidr,"~- ~a}~~~~iiitliili.~~~k 'A__,," "lU _~.J" , -".' (') c-r C C ',,) . -'T', s: " ~ :~:J V (J) Co:) !~"i ", L-::: ?J Z -.,,~, -.'- L_ -,-', .----.--, (/) -'~.. -:;::J -< <,- So:; (1, r- (5 <~ -ry :r: =-H >= 0 :::t ~)1') z C) J> C C::? Ben ~ --I :;) ~~ :D f" -< ;~, . DEANNA K. COLLINS-Trustee Ad liteml for the ESTATE OF GEORGE G. STEWAR~ Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY,PENNSYLVANIA NO: 01-1510 Civil Term VS. CIVIL ACTION-LAW JURY TRIAL DEMANDED JEAN WADE Defendant i , --J PTATNTTFF'S RESPONSE TO DEFENDANT'S ANSWFR TO THIS PLAINTIFF'S COMPLAINT This Plaintiff REQUESTS this Court. not dismiss this Complaint but to let this Case Proceed into JURY TRIAL. , Plaintiff asserts Defendant,JEAN WADE,via her attorney failed in its Answer to show any significant evidence why this complaint spould be dismissed. This Plaintiff Responds to the Answers of Defendant,JEAN WADE, as follows: 1. This Plaintiff,in regard to par~graph 1 of this Plaintiff's Complaint, still alleges Ms. Wade did not try to call Hilda B. Stewart at aprox. 8pm on Nov.7,1998 as she claims in her answer. There exist other Admission papers with the correct phone number to reach Hilda Stewart.. Ms. Deanna Collin was never delegated as the #2 Responsible Party for George G. Stewart.. Ms. Collins is listed merely as the ONLY OTHER CONTACT PERSON. Deanna Collins was never told there was any change of health status of Mr. Stewart. Ms. Collins was never told Mr. Stewart had to be assisted with his evening meal.. ..that he had to be placed into bed or tbat there f were any vital sign changes or other physical/mental problems for Mr. Stewart occurring at all. This Plaintiff's allegations are still contrary to any/all answers of denial of Defendant,Wade,as she claims. 2.In regard to Plaintiff's Complaint:Paragraph #2: This Plaintiff asserts Ms. Collins never told Defendant,JEAN WADE,not to contact Hilda B. Stewart(wife) at all. Ms. Collins was never told any health status changes for Mr. Stew~rt...however, Ms. Collins did say she would be calling Mrs. Stewaft later this evening(Nov.7,1998). 1/ 1"- '-' ,~',o "'-, "j,.'_c' '-'h "-,~~ Ms.Collins only told Jean Wade,defepdant, that she would later call her mother,Hilda Stewart to inform her ~hat her home phone number had to be corrected. This Plaintiff still all~dges that there never existed any assumed/inferred implication that Ms. Collins would inform Hilda Stewart of any declining health changes for Geprge G. Stewart on Nov. 7,1998 at aprox. 8:25pm when Jean Wade supposedly contacted Ms. Collins. Again this Plaintiff asserts Ms. Collins was n~ver provided by Defendant,Wade, any information for Mr. Stewart this eyening to ever indicate that there we~e changes of health status or problem~ occurring. There existed no messages to relay to Hilda Stewart via Ms. Coll~ns for Ms. Collins was specifically never told that Mr. Stewart had an ~ltered mentation shortly around supper-time Nov.7,1998...or that he had to be placed into bed with Oxygen.. .or that he had significant changes in his Vital Signs. Ms. Collins could not relay any information to Hilda Stewart for this'Plaintiff stillalledges that Jean Wade,defendant,failed to properly notify any family member of Mr. Stewart's: declining health this evening of Noy.7,1998. Therefore, this Plaintiff alledges Jean Wade,defendant,Breached her Nursing Duty by her documented notes to lmmediately contact Hilda Stewart after the correct home phone number for Hilda Stewart was given to her by M~. Collins at 8:25pm Nov.7,1998. and expected another person to perf9rm her nursing obligation to notify the Responsible Party for Mr. Stewart per Dr. John Schiro's orders at aprox. 8:10pm Nov.7,1998. as docume~ted in Claremont Nursing records. 3. In regard to Plaintiff's Paragraph #3. of Plaintiff's Complaint: This Plaintiff still<alledges that Defendant,Jean Wade,failed to acknowledge at aprox. 8:10pm that George G. Stewart presented with a serious emergency situation on Nov.7,1998. This Nurse according to factual documented evidence(Claremont Nursing Notes) failed to perform any emergency nursing actions during this time when it was fact that Mr. Stewart had a very fallen Blood Pressure..... .Rapid Respirations and a very Observable Altered Mentation.. ..even as early as 5:30pm during Mr. Stewart's evening meal when this man had to be assisted with his meal. This is fact,not conclusion of law as Defendant,Wade, implies in her Answer. It is also documented that during Ms. Wade's entire time of duty this "' rl .1; nurse never performed any emergency nursing care for Mr. Stewart... ....... leaving this man lay from aprox. ':8'pm Nov.7,1998 until the end of her shift at aprox. Ilpm without performing the Stk.dards of Nursing Care that is expected of a Registered Nurse-Shift Supervisor for a Resident in an Emergency 1.~1 - , ,-I . "" ....:' ~ ,.-, ">,,,-, " '~<" '1. 3 (u-J'd) Circumstance as George G.Stewart presen~ the evening of Nov.7,1998. in Claremont records. This Plaintiff alledges Jean Wade's Nursing care for Mr. Stewart was not timely or specifically adequate to prevent harm or death to this man on Nov. 7,1998 per facts documented.Therefore, this Plaintiff still alledges Jean Wade,Defendant, was Negligent an0 Breached her Nursing duties on this evening a.s follows: th. Failure to Perform her Obligation to inform Hilda Stewart-Primary Responsible Party-after Ms. Collins gave the correct home phone number for reaching Hilda Stewart. She made an Assumption of Fact. ~6 Failure to Provide Emergency Nursing Interventions for Mr. Stewart to protect from har~ or death.***Fact no act of nur_sing emergency care during her shift performed by Jean Wade, defendant. C. Failure of Jean Wade to re-contact Dr. John Schiro in a reasonable time when it was apparent no family member had returned a phone call regarding Mr. Stewart's declining health. (Nov. 7,1998) ~. Failure to properly Assess the apparent Physical/Mental changes of Mr. Stewart:Negligence to Observe,Monitor or Assess an Emergency situation. Therefore, this Plaintiff asserts that according to the documented Claremont record$ that Jean Wade,defendant neither performed timely or adequate nursing care for George G. Stewart during her time for duty at Claremont to prevent serious bodliy damages from occuring that this Plaintiff alledges contributed to this man's untimely Wrongful Death. Therefore, this Plaintiff again,REQUESTS this Court not dismiss this Complaint but to let this Case Proceed into,JURY TRIAL_ to settle this dispute. Plaintiff Responds to Defendant's Answer with NEW MATTER. (sJ ~ -,. "j~ NEW MATTER 1. STATUTES OF LIMITATIONS are sometimes based on DATE OF DISCOVERY, not always the date of occurance. ..;as defendant,Jean Wade, via her attorney claims. Ms. Collins did noli realize a problem existed regarding the contact call to Ms. Collins at 8:25pm on Nov.7,1998 by Mrs. Wade. This Plaintiff still alledges Ms. C01lins was never informed by Wade that Mr. Stewart ever was in a declining health situation this evening. Therefore,Ms. Collins did not closely review Claremont Records on this Issue until a Third Party informed Ms. Collins that Mr. Stewart should have been sent to the Emergency Room of a hospital as early as supper-time and specifically at aprox. 8:10pm N0v.7,1998 when Dr. John Sciro was initially called regarding Mr. Stewart's declining health and most. likely this physician realized the severity of the circumstances when , he requested family be contacted and informed. This doctor wanted the Primary Responsible Party for Mr. Stewart Immediately notified. This Plaintiff still alledges Jean Wade,defendant,was negligent to follow this doctor's verbal orders at 8:10pm Nov.7,1998. facts are presented in Claremont Records,specifically. This Third Party informant contacted Ms. Collins :March 11,2001 at aprox. 6:30pm(Sunday) at her home, Therefore,Date of Actual Discovery of a Problem with the call by Jean Wade,defendant, became apparent at this time.Therefore,this Plaintiff asserts the Complaint was filed within proper STATUTES OF LIMITATIONS, this is contrary to defendant's answer. ~.George G. Stewart completed his Advanced Medical Directives in 1992 and from that time to present....Ms. Collins was never delegated as his Legal Health Advocate/Responsible Party. This Plaintiff alleges Jean Wade, defendant, made an Assumption of Fact. .....for it can be proven within Claremont admission documents Ms. Collins was the only other contact yer"on at that time.... ..George G., Stewart was placed at Claremont on a temporary basis...not permanently. 3. George G. Stewart's Adyanced Medical Directives were not given to Claremont at the time of his admission Noy.2,1998... .they were in a storage unit elsewhere. These documents were not an admission requirement. Therefore, this Plaintiff asserts ~r. Stewart should have been provide~ nursing service as thoueh these documents never existed. Therefore,Plaintiff - i ~ >, 1-' ,,-, , ."', , ~ ' -,,- "-\' 3 (~~J Acknowledges defendant,Jean Wade's,Negligence to realize that Mr. Stewart was a so-called "FULL CODE" status resident of Claremont. This nurse specifically at aprox. 8:10pm Nov.7,1998 after discovery of a very fallen Blood Pressure for Mr. Stewart,with Rapid Respiration and Apical Pulses , and Altered Mentation failed to provide any timely rescue Interventions for this man...as reported in Claremont Nursing Records for Stewart. A "FULL CODE" status requires a nurse to do all Emergency Procedures within her knowledge/education to prevent bodily harm or death to a person. Therefore, this Plaintiff asserts Jean Wade,defendant,was Negligent (BREACH'OF DUTY)cto'give,..:.timely,adequate emergency nursing procedures to Mr. Stewart. ..the entire time of her duty Nov.7,1998. This is not a conclusion of law but well document fact per Claremont records that Defendant,Wade, never provid~the following required emergency procedures: 1. Failed to Call 911 for Ambulance to send to hospital 2. Failure to Re-Contact Dr. John Schiro with;'" tl..- reasonable time 3. Failure to use good nursing judgement to Assess Mr. Stewart's condition as an Emergency ~ *********Failure to Act Independently in an Emergency Situation Penna. Dept. of Health Nursing Home Regulations specify that a Registered Nurse or other licensed personnel should use their own judgement to perform necessary Emergency Care for a resident(Mr. good Stewart) without the orders of a Physician or other licensed Supervisor to prevent bodily harm or death. Therefore, this Plaintiff ~1~Jk~e$ Jean Wade,defendant, blamed other parties for her failure to act in this emergency. This Nurse failed to act in a responsible manner in regard to Mr. Stewart on the evening of Nov.7,1998.This was below the set STANDARD of NURSING CARE that Jean Wade,defendant,was required to perform for Mr. Stewart. ~.Hilda Stewart(wife) was never informed at admission Nov.2,1998 that George G. Stewart could use his own Pharmacy or Physician while he was a resident of Clarefuont. Ms.~Collind.gaOelalcopy of PenBa~ Dept~.of 'gigB booklet to Hilda Stewart shortly after his admission...after being told his own doctor would not be providing his medical services. This Plaintiff still alledges Claremont violated Mr. Stewart's "Patient Bill of Rights~Therefore,T~is Plaintiff alleges defendant(Wade) also violated Mr. Stewart's "Rights~ by her failure to properly contact Mr. Stewart's Primary Responsible p~rty,Hilda Stewart. , 8j "-'; . . , 6.Hilda B. Stewart has provided documented evidence that she did give the Claremont admissions staffers her correct home phone number at George G. Stewart's time of admission Nov. 2,1998. Her home phone number appears correct on several papers. Hilda Stewart is a very alert,competent person. She has had this same home phone number over 25 Y8ARS. Therefore,this Plaintiff alledges Claremont admissions personnel made the error during intake admission procedures,not as this defendant,Wade, claims in her answer. 7, This Plaintiff alledges a problem did exist by negligence of Admissions Office to have available Hilda Stewart's correct phone number.This Plaintiff has evidence that Jean Wade,defendant,never called the incorrect phone number that Claremont had on Emergencj( Contact document for George G. Stewart. Also, Jean Wade,defendant, made an Assumption of Fact delegating Deanna Collins as the #2 Responsible Party. It is fact that Ms. Collins only appears as the ONT.Y OTHER CONTACT PERSON on the same paper as the signature and personal info. of Primary Responsible Party. Ms. Collins was never informed by Hilda Stewart or other parties that she was th~ #2 Responsible Party to anyone,specifically Mr. Stewart. 8. The Claremont referral doctor,Dr. Michael Gawles,who provided Mr. Stewart's entrance physical exam at Claremont never had substantial medical evaluations done to diagnose George Stewart with.. ..Alzheimer's type Senile Dementia....Parkinson1s Disease,Peripheral Vascular Disease or Schizophrenia as this defendant(Wade) via her attorney claims. Therefore, this doctor did not take into consideration Mr. Stewart1s own Physician's Diagnoses or Physical exam of Mr. Stewart his own doctor performed Oct.30,1998 prior to admission at Claremont. There existed only 1 Primary illness prior to admission: Mild Emphysema and none of the above. 9. Dr, Michael Gawles neVer provide4any treatment plan other than the perscribing of medications. This doctor never instructed any other Daily NURSING PROCEDURES nor did he provide a specific Nursing Care Plan. Nurses are required to establish their own individual Nursing Care plans for each resident to establish the needs and interventions necessary to improve or maintain the health of residents... .on an individual daily basis as specific needs present as symptoms or daily tasks problems. Therefore,this Plaintiff still all~ges no Nursing Care Plan was ever establish~ '91 Mf' ~tewart while he was a resldent at Claremont. ~J ~- ,~ " , ",~.- .", "'"~""'jf'~,": 10. It is admitted by defendant,Jean Wade, that at aprox. 5:30pm Nov.7,1998 George G. Stewart had to have specific medications witheld due to a noticable altered mentation and having to be assisted with his evening.rneal.< Th~ facts documented that a verbal order from Dr. John Schiro regarding the witholding of certain medications is not noted until 8:10pm Nov.7,1998. Therefore, this Plainti~ accUSes Jean Wade, defendant, of Practicing Medicine without: <Q ltcE!l'lsQ.,~ There exists a time interval of aprox. 3 Hours....also this same nurse placed Mr. Stewart on Oxygen at the time he was placed into bed which defendant states as being at 7:45pm Nov. 7,1998......therefore a time lapse of aprox. 20-25minutes until the doctor gave his verbal order to place Mr. Stewart on Oxygen. This Plaintiff alledges defendant was over-stepping her bounds to perform safe,adequate nursing care for Mr. Stewart....for this same doctor could have make other medical decisions for this resident.This Plaintiff asserts def~dant was irresponsible and negligent in her actions. 11. It is fact Claremont faciltiy was cited by Penna. Dept. of Health for NON-COMPLIANCE to perform adequate,safe,timely Emergency Procedures for Mr. Stewart during the time of his declining health from Nov.7,1998 thru the ~arly AM hours of Nov. 8,1998. It is established that this facility had to update its Emergency Nursing Procedures.....Staff had to refresh themselves in required documentation procedures........Therefore,this plaintiff alledges defendant(Wade) was negligent to perform the basic requirements that are expected of a licensed Registered Nurse acting especially as the 3pm tollpm Shift Supervisor at Claremont at this time. Therefore, this Plaintiff claims Jean Wade was negligent. 12. Jean Wade,defendant,via her attorney, received "Hearsay" information regarding the actions or whereabouts of Ms. Collins the evening of Nov.7,1998. The remarks by defendant that Ms. Collins failed to contact Hilda Stewart regarding Mr. Stewart and was supposedly on some date presents Ms. Collins as an irresponsible person...who acted out of disregard toward or respect for . either of her parenti. These statements are malicious and detcLmental to the Plaintiff of this.Case,specifically myself,Ms~'1Collins whohas had to aSSume the responsiblity of all legal actions for the Estate of George G. Stewart. Ms. Collins has proof that she was home the entire evening of Nov.7,1998. into the early AM hours of Nov.8,1998. This shall be disclosed at a later time. ('1) ~,..,- 13. Ms, Collins never told Jean Wade not to contact Hilda Stewart on Nov.7,1998 at aprox. 8:25pm during conversation. Again this Plaintiff alledges Jean Wade defendant, failed to act Independently to use her own good judgement to try to contact the #IResponsible Party for Mr. Stewart. Specifically after Ms. Collins had given a correct home phone number to reach Hilda Stewart.... .and a return call from Mrs. Stewart never came in a reasonable time. This Plaintiff alledges that perhaps this Jean Wade should not have been a Registered Nurse Supervisor since it has been established this nurse failed to ever use her own "good judgement" in making decisions. Perhaps this nurse is incapable of thinking for herself, as evidenced in the Claremont records. 14. There is Medical Information to prove that George G. Stewart did not die of a "Natural death" as claimed by defendant(Wade). Most medical texts prove that the Strept-Pneumonia that Mr. Stewart was later diagnosed as having is a progressive illness that has specific symptoms that could have been more closely observed,monitored and assessed by this Jean Wade during her time of duty at Claremont Nov.7,1998. Untreated disease is not a natural death as claimed by defendant, specifically since this nurse had medical training in the care and treatment of illnesses. This Plaintiff alledges this Jean Wade neglected to use her knowledge/education of nursing to give timely,adequate emergency nursing care for Mr. Stewart. This Plaintiff claims this nurse(Wade) Breached her Duty by not properly observing,monitoring or assessing Mr. Stewart as a trained, skilled nurse of her educational background should have done. This Plaintiff asserts Negligence on her part. 15. Ms. Collins has obtained the advice of expert medical personnel to evaluate all information on this case. There will be substantial evidence to prove the allegations that the damages caused to Mr. Stewart's body during the time of his declining health, specifically by negligence of Jean Wade,defendant, that such damages contributed to and caused , George G. Stewart to die of an unnatural,untimely Wrongful Death,wn.~k is contrary to any and all answers of defendant(Wade) in her answers to this complaint. Therefore,this Plaintiff REQUESTS this Court not to dismiss this Complaint but to let this Case Proceed into ~URY TRIAL to settle this dispute. Signed :~~ ~-74(L.{'1e<e-j/djlhn D ate: '--jira-vrf / ~ f2JJ-O I (8' J ~~""'Iiiiii__~!J,i.i;lrilllilffijl~Jtjl'~~:Ml,*,-~c~;li""~W",'h"'I~.liMIE,\iIiIl "-."'~~"......""......"."""'~ ~it,;,JI'" ~- \!f" o s;::: o;:-~ Iff:' -~,' . c:: f~. fl(5 ~(....:::. --:;-;; ::::{ -( . c:') .j;;- ~-IiiIi1i_i'il1~ <:::> -C) q ::!l: ;.:-,.... -< "--i "7] co ,-,:'~":~j ~~;(~) ~~T\j "'-'." -C -.;; lJ :- I.':) , o. ',_c" , , ""- ..~ ' - ,< ,'_' " ;'-~;,--r,.,', ~\ ,__ , , fr:- PETERS & W ASlLEFSKI By: Charles E. Wasilefski, Esquire Attorney ill #21027 2931 North Front Street Harrisburg, P A 17110-1280 Attorney for Defendant, Jean Wade DEANNA K. COLLINS - Trustee Ad Litem for the ESTATE OF GEORGE G. STEWART, Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO 01 - 1510 Civil Term JEAN WADE, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: PLAINTIFF AND HER COUNSEL YOU ARE REQUIRED to plead to the within Answer with New Matter within twenty (20) days of service hereof, or a default judgment may be entered against you. PETERS & W ASILEFSKI Dated: t..13rOI ~Q3&1.,,1:Q CHARLES E. WASILEFSKI U Attorney ID #21027 2931 North Front Street Harrisburg, PA 17I10 [717] 238-7555 Attorney of Jean Wade " """ ,,~ . , ,-- -- t, ~ - ~ -:; ....' ,-" ",-";,, "'". -'<-- PETERS & W ASILEFSKI By: Charles E. Wasilefski, Esquire Attorney ill #21027 2931 North Front Street Harrisburg, PA 17110-1280 Attorney for Defendant, Jean Wade DEANNA K. COLLINS - Trustee Ad Litem for the ESTATE OF GEORGE G. STEWART, PIaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYL VANIA v. NO 01 -1510 Civil Term JEAN WADE, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT, JEAN WADE, TO PLAINTIFF'S COMPLAINT NOW COMES, Defendant, Jean Wade ("Wade"), by and through her attorneys, Peters & Wasilefski, and answers Plaintiffs Complaint, as follows: 1. Defendant, Wade, denies the allegations contained in Paragraph 1 of Plaintiffs Complaint. To the contrary, Defendant, Wade, attempted to contact Responsible Party #1, Hilda Stewart, but discovered that the information given at the time of the admission regarding Mrs. Stewart's telephone was wrong, so she contacted Responsible Party #2, Deanna Collins, to report the change of condition of George G. Stewart to a family member. In further answer, Defendant, Wade, denies said allegations pursuant to Pa. R.ep. I029(e). ,:.', < - --,." ~- " ',-- ~ ;-",' '_.l -,,'_,_"__, ,',w-' ,~ ,--, -r ~'~'i: , ,-- ~ 2. Defendant, Wade, denies the allegations contained in Paragraph 2 of Plaintiffs Complaint. To the contrary, Defendant, Wade, was specifically told not to contact Hilda Stewart by Deanna Collins. Deanna Collins informed Defendant, Wade, that she, Deanna Collins, would speak to Hilda Stewart and get back in touch with Defendant, Wade, with further instructions. Further, Deanna Collins was specifically told about the change of condition of George G. Stewart and she was to inform Hilda Stewart of the change of condition. In further answer, at all times relevant, Defendant, Wade, provided timely and appropriate nursing care in accordance with appropriate nursing practices consistent with the circumstances that then and there existed. In further answer, Defendant, Wade, denies said allegations pursuant to Pa. R.C.P. I029(e). 3< Defendant, Wade, denies the allegations contained in Paragraph 3 of Plaintiff s Complaint. All or part of the allegations contained in said paragraph are conclusions of law and no further answer is required. To the extent that an answer may be necessary, Defendant, Wade, specifically denies that she was in any way negligent in her care and treatment of George G. Stewart. To the contrary, at all times relevant, Defendant, Wade, provided appropriate and timely nursing care in accordance with the applicable nursing standards required under the circumstances of this case. No act or failure to act on behalf of Defendant, Wade, caused or contributed to the alleged injuries and damages sustained by George G< Stewart. In further answer, Defendant, Wade, denies said allegations pursuant to Pa. R.C. P. I029(e). 2 .('. ''',' _J,,' - : ,~-,,,---- ".-" --. _,co. - ,,,__,, ,",,,, ", ,'_ ~' _~"_ -,;-,'''' '-"",'::J 4. Defendant, Wade; denies the allegations contained in Paragraph 4 of Plaintiffs Complaint. All or part of the allegations contained in said paragraph are conclusions of law and no further answer is required. To the extent that an answer may be necessary, Defendant, Wade, specifi~ally denies that she was in any way negligent in her care and treatment of George G< Stewart. To the contrary, at all times relevant, Defendant, Wade, provided appropriate, and timely nursing care in accordance with the applicable nursing standards required under the circumstances of this case. No act or failure to act on behalf of Defendant, Wade, caused or contributed to the alleged injuries and damages sustained by George G. Stewart. In further answer, Defendant, Wade, denies said allegations pursuant to Pa. RC. P. 1029(e). 5. Defendant, Wade; denies the allegations contained in Paragraph 5 of Plaintiffs Complaint. All or part of the allegations contained in said paragraph are conclusions of law and no further answer is required. To the extent that an answer may be necessary, Defendant, Wade, specifically denies that she was in any way negligent in her care and treatment of George G. Stewart. To the contrary, at all times relevant, Defendant, Wade, provided appropriate and timely nursing care in accordance with the applicable nursing standards required under the circumstances of this case. No act or failure to act on behalf of Defendant, Wade, caused or contributed to the alleged injuries and damages sustained by George G. Stewart. In further answer, Defendant, Wade, denies said allegations pursuant to Pa. RC. P. I029(e). WHEREFORE, Defendant, Wade, demands that Plaintiff s Complaint be dismissed. 3 .--" ,~' - ~~ -,^ __--I , .-_-1_ ,.-n _{ ',,,y,' ',_'~~A',,,,,,~, '.~. NEW MATTER 6, George G. Stewart was admitted as a resident at Defendant, Claremont, on November 2, I998. He was admitted to Room D-2, Bed 2, D wing, an intermediate care unit. 7. George G. Stewart was admitted as a resident at Defendant, Claremont, because his wife, Hilda Stewart, who was his primary care giver at home, was to have surgery and was not able to care for him during her surgical recovery period. Hilda Stewart reported to the nurses that she was to have bilateral endarterectomies done at Holy Spirit Hospital on November 3, 1998, the day following ML Stewart's admission to Defendant, Claremont. 8. Hilda Stewart accompanied George G. Stewart for admission. Hilda Stewart provided all the admission information, including her address and telephone number and designated Deanna Collins, the Stewart's daughter, as the Responsible Party #2. 9. Hilda Stewart informed the nursing staff that she expected that George G. Stewart's stay at Defendant, Claremont, would be short. He would remain at Defendant, Claremont, only during her surgical convalescent period. 10. At the time of admission, George G. Stewart and Hilda Stewart signed a Statement of Agreement that stated in part: L I hereby authorize the Claremont Nursing and Rehabilitation Center of Cumberland County to provide medical and nursing services to me. I further authorize the physician in charge of my care to administer any treatment 4 ~ - n or treatments that the physician may deem necessary or advisable for my care. 11. At the time of admission, George G. Stewart was an 82 year old man who was 5'3" tall, weighed 95 V. pounds and was diagnosed as having the following conditions: Emphysema (Primary); Senile Dementia, Alzheimer's type; Schizophrenia (three prior admissions to Holy Spirit Hospital; and Peripheral Vascular Disease. 12. Dr. Gawlas saw, examined and provided a treatment plan, including medications for George G. Stewart that was consistent with his condition at the time of admission. 13. On Saturday, November 7, 1998, at approximately 5:30 P.M., the nursing staff noted what appeared to be a change in George G. Stewart's mentation as a result of this observation, certain medications were held as it was felt that the change may have been due to the affects of the medication and the nursing supervisor was requested to assess him. The nursing supervisor stayed with Mr. Stewart during dinner and assisted in feeding him. He indicated that he was tired and wanted to go to bed early that evening. As a result of this request, the nursing supervisor and a staff nurse assisted Mr. Stewart in going to bed at approximately 7:45 P.M. 14. At the time that George G. Stewart was assisted into bed, the nurses obtained his vital signs and assessed his condition. The nursing supervisor then called Dr. Schiro for instructions. Dr. Schiro discontinued the Sinimet and ordered that the Haldo1 be held. He further ordered the administration of oxygen at 2 liters per minute via nasal cannula-pm for dyspnea. He also ordered that the family be notified of the 5 <-" ,"^ , " . ,,;-;'+;-. >' '-, H " :....<'{.,,' :-1 ! change of condition. At the time of admission, Hilda Stewart did not provide Defendant, Claremont, with an Advanced Medical Directive, which is an optional section of the chart that indicates the resident's or the family's wishes in case of a change of condition. 15. After assisting George G. Stewart into bed, the nursing supervisor attempted to telephone Hilda Stewart, as directed by Dr. Schiro. At that time, it was discovered that the wrong telephone number had been given at the time of admission< The nursing supervisor then called the Responsible Party #2, Deanna Collins. Deanna Collins was informed that George G. Stewart had a change of condition and that the nurse supervisor had to speak with Hilda Stewart to inform her of the change of condition. Deanna Collins became abusive and indicated that she would speak with her mother and they would get back to the nursing supervisor. Deanna Collins abruptly hung up on the nursing supervisor. Neither Deanna Collins nor Hilda Stewart ever got back to anyone at Defendant, Claremont. 16. During the period following the telephone call to Deanna Collins, the nursing staff closely monitored George G< Stewart. After the change of shifts, nurses constantly attended George G. Stewart. Since neither Deanna Collins nor Hilda Stewart called or came to the facility during the period from when the nursing supervisor on the 3:00 P.M. to I 1:00 P.M. shift had spoken to Deanna Collins, a telephone call was placed to Hilda Stewart. Hilda Stewart had not been made aware of the earlier telephone call to Deanna Collins and was therefore not aware of her husband's change of condition. Hilda Stewart was updated on the change of condition of George G. Stewart, the doctor's orders 6 ""~', "-,'--~" -<, "~;, ".''-' "-;'t~<'-"''''-_ '_',_-o_"~",,, -"'-";"''''''"i{ received and the notification to her daughter, Deanna Collins. At that time, Hilda Stewart indicated that she desired to have further treatment given to George G. Stewart at the Carlisle Hospital. 17. Immediately after the telephone conversation with Hilda Stewart, the nursing supervisor contacted Dr. Schiro and updated him on George G. Stewart's condition and the request from Hilda Stewart to have further treatment given at the Carlisle Hospital. Dr. Schiro made a telephone order for the transfer of George G. Stewart to Carlisle Hospital. Deanna Collins was then informed that George G. Stewart was being transferred to the Carlisle Hospital. 18. Upon information received and believed, Deanna Collins, at the time of the initial telephone call, was in the process of getting ready to go out on a date and did not telephone her mother, Hilda Stewart, to inform her of George G. Stewart's change of condition so that further instructions could be given to Defendant, Claremont, as to the family's desires for treatment in light of the change of condition. If there was a delay in treatment as alleged by Plaintiff, which is denied since George G. Stewart received appropriate care and treatment consistent with his change in condition pending further commlmication with the family, that delay was the result of Responsible Party #2 not meeting her responsibilities. 19. George G. Stewart's illness and eventual death was the result of the natural deterioration of his physical condition resulting from age and the illnesses that he had and not as a result of any act or failure to act by Defendant, Claremont, its nursing 7 ," - ,', d _"=- .',--- '~,..",,,'" , ~.'!tj staff, its employees, agents, or servants, or the physicians attending to George G< Stewart during his residence at Defendant, Claremont. 20. All of Plaintiff s alleged injuries and damages are the result of acts or failure to act on behalf of third parties over whom Defendant, Wade, had no controL 21. The alleged negligence of Defendant, Wade, occurred on November 7, 1998. Plaintiff did not file this action until April 9, 2001, five (5) months after the Statute of Limitations would have run on this action. Therefore, all of Plaintiff s claims in this action are barred by the Statute of Limitations. WHEREFORE, Defendant, Wade, demands that Plaintiffs Third Amended Complaint be dismissed. PETERS & W ASILEFSKI Charles E. Wasilefski, Esqui Attorney #21027 2931 North Front Street Harrisburg, PA 17110 [717] 238-7555 Attorneys for Defendant, Jean Wade Date: April 30, 2001 8 - ~, " ,-, .'M"_~>r.';-j, ."" L'< ".- " - ..;,,"'~~ . ' VERIFICATION I, Charles E. Wasilefski, Esquire, attorney for Defendant, Jean Wade, in this matter, verify that the statements made in the foregoing Answer with New Matter are true and correct to the best of my knowledge, information and belief. The undersigned understands that his statements are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Dated: April 30, 200I . """"'", -" ,~'~ >..~,~~"" "', -. ,"",. - lianf . . CERTIFICATE OF SERVICE This is to certify that I, Pamela J. Crum, a Legal Assistant in the law offices of Peters & Wasilefski, have this 2P day Of~~ \ , 2001, served a true and correct copy of the foregoing ANSWER WITH NEW MATTER OF DEFENDANT, JEAN WADE, TO PLAINTIFF'S COMPLAINT upon all parties by depositing same in the United States mail, first class, postage prepaid, addressed to the counsel of record as follows: Deanna K. Collins 46 Willow Street Highspire, PA 17034 ~~~~~-~ Pamela J. Crum -~ . . DEANNA K. COLLINS-Trustee Ad l1t.e1!l for the ESTATE OF GEORGE G. STEWART Plai1!Jitiff VS. IN-THE COlJiPl~-OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA NO: 01-1510 Civil Term CIVIL ACTION-LAW JEAN WADE -K AHEND!;l) COMPLAIN'!' OF Defendant MEDICAL QGLIG:EN'CE *** Demand JUr~ T~l*** ** **** ** * ** *** ** * ***** ** * * ************** ** *Da te: **(tC^'I**v****~P;f/**** * I,DEANNA K. COLLINS,recemU;w ap:poin-ted Trustee Ad litem for tbie ESTATE of GEORGE G. STEWART~ ~arge JEAN WADE with the followirrg allegations of Medical N:egligence that corrtrihuted to th.e wrongful deatliJ: situatioJlll for George G.. Stewart,a former resident 0 f Claremont Nursing and Reha lbili tatioD CeJlllter ,Carlisle ,PenJlllsyl vaJlllia 17013. The Allegations are as follows: ~~ Failure to follow Doctor!s Orders givew verbally by Dr. Johw Schiro,M.D. at a:prox. 8:10pm!( 11/7/1998). J;EAN W.ADE Breached her Duty by her failure to follow this physiciaJi'll's verbal orders to immediately contact the Family rej'arding Mr. stewart's declining health at aprox. 8pl!! 11/7/1998., jt. Failure to Immediately contact Hilda B. Stewart(wife) after DeanDa Col1ins(daughter) gave a corrected tele:phone number for contacting Hilda B. stewart . This Nurse acted Or!! thie assumption 0 f all UDi-Il'tformed Familly, melllber relaying a message....tbat this Nurse never gave to any, Family member regarding Mr. stewart's declining healtliJi at aprox. 8:p_(11/7/1998).. Tbis also is Breach of Duty to perform her Nursing duties for a resident who by tbis time Was loosing conciousne~s and was unable to giv~ adequate verbal directio!lis to staff. Failure on this Nurse's part to CO\ll)tact Tn.e Responsible Legal-Health Advocate for George G. Stewart. 3. BREACH OF DUTY-Failure to adequ,iltely Assess a Reside!lit's declini!li.g Healtli1l Status;.....'fhis Nurse Supervisor(3 to llpm) om duty at Claremont the evenin:g of 11/7 /1998 Was lfegligel!llt for her failure to take Prompt, Appropriate EMERGENCY ACTIOllt'g l!llece.ssary to el!llsure the Physical~Mel!lltal al!lld Emotiollllal Safety of George G. Stewart(resident) this ni~t. This Nurse failed to realize the severe significance of George G. Stewart's fallimg Blood f<fV<l<-- -{A I - ,.~=~,..c..' ~ 1. ~ , ~".. _1 , l~!lijj--="~~ ~ _..b~l@"$iltf~' Pressure as a serious chal!llge in a VITAL SIGN. This resident,Mr. Stewart~ had previously been anll alert,ambulatory personll. Now; HE (Stewart) lrlad to be placed i!rllto bed,put Ol!ll Oxygen and was loosil!llg cOlilciousness. ~ NEGLECT....b~ this JEAN WADE(Nurse). This Nurse is charged with the Neglect of a Care Dependent Person',Mr. .stewart, causil!.llg HIM serious bodil;}\' injury. This situatiol!.llie considered a CRIME il!.ll Penl!.llsylva~a Crime Code. Tbis toe is a Breach of Duty to perform those necessarl Nursing Intervel!lltiol!llS to prevent lifARM to a patient... .specificall;J George G. .stewart. Tbis Nurse faiJLed to Immediatel;J Provide allliy Emergel!llcy Rescue ActiO!rlls for Mr. Stewart. !f. Failure to Provide Immediate Emergency Care..for George G. Stewart. This as a BREACH of DUTY. This Nurse,JFAN WADE, after failing to realize the seriousness of Mr. Stewart's declin.g Hea-lth at aprox. 8pm 11/7/1998. contil!.lllilied to leave Mr. Stewart lay with a, severely falling Blood Pressure to aprox. 11plll' 11/7/1998.. .the e!rlld of her sliJiift of l1IIursw duty, without Providing any ElIliergency Rescue Nursing IllDtervent1ons. This Nurse had the educational kllDowledge and trai~ng al1lld could Observe the de cling physical chamges of Mr. Stewart....but Failed to take army actions o;r leavill.g this residemt )La;y; without appropriate medical attention. Thil!f Nurse left George G. Stewsrt la;r aprox. 3 Hou~s(documel!llted) . THEREFORE. th15 ESTATE of GEORGE G. STEWART. via its Plail!lltiff.DEANNA K. COLLINS, alleges that the cOllllilil!lled BRlilACHE.s OF DUTY of this Nurse Superv,isor,JEAN WADE. to give safe,adequate, IMMEDIATE EMERGENCY NURSING CARE for GEORGE G. STEWART al!.lld her NEGLIGENCE aDd CARELES.s attitude in this Emergel!llcy situatiol1ll comtributed to the umtilllely Wrongful DeatIDJ. of George G. Stewart. The Negligent Actiol!lls of this Nurse.JF.AN WADE, are very; below the expe.cted Normal Stamdal'd of Nursillllg Care a Ileglstered Nurse .supervisor should have proviaed.for this particular resident on the evening of her duty at Claremont Olm 11/7/1998. Ifo1e..O..) - ~ -f ~~- "~- "-~llgLIiW. ,', " \Il:b~1i: THEREFORE. this ESTATE OF GEORGE G. STEWART PRAYS FOR A JUDGEMENT IN THE AMOUNT OF: t / ~ o-th) . . Agairnst this Nurse: JE,AN WADE(Defendal!lt)Registered Nurse SUpervisorO to 11 pm: of Clare~ont Nursing and Rehabilit~t1on Center,Carlisle,Pennsylvan1a tb~ her BRF,ACH OF NURSING DUTY amd her COMBINED ACTS OF NURSING-MEDICAL N!EGLI GDCE whi chi we.." the FAMIL,Y. situatiorn for GEORGE G. STEWART. Sig!!lled:~~~ Date: ~ r :J ;)...()-(J-f alleges comtributed to the Wromgful Death former residernt 0 f this nursing home facility. (Plainti ff) Trustee Ad 11 tem 0 f said ESTA TE Attorney: Per Se PD-f~ C3 ) I .,-, ~-~~- ^ "~ilL!a~ '''''''''''''~i DEAN'NfA K.<COLLINS-Trustee Ali-1it~lII FOR THE ESTATE OF GEORGE G. STEWART Plaintiff Defel1dal1t IN THE .cOURT OF GOMMON PLE>P,S FOR CUMBERLAND COUNTY,PENNSYLVANIA NO: 01-1510 Civil Terlll CIVIL ACTION-LAW AMENDED COMPLAINT OF MEDICAL NEGLIGENCE VS. JEAN WADE DATE: At A;{ r } 'J..IJ-d I ****nEMAND JURY TRIAL***** **************************************** ***************************~~******~~** SUMMOHS IH A CIVIL LAWSUIT I.DEANNA K. COLLINS. Trustee Ad liteliil for the ESTATE OF GEORGE G. STEWART (Plail1tiff) SERVE WPOllID JEAN WADE(Defendamt) ,out-of-state residel1lt.and her desigl'llated Pennsyl vallll1a legal counsel A Certified Copy of this recently AMENlDED COMPLAINT OF MEDICAL NEGLIGENCE AND A LETTER OF SUMMONS AS FOLLOWS: legal counsel: CHARLES E. WASILEFSKI,Esq.. 2931 Nortn Frol1t Street Harrisburg,PeDl'llsylvallll1a 17110 Defel1dant: JEAN WADE Served to out-ot-state HOME ADDRESS VIA a lilct.red Pro tessiolll\8.1 Service Processor.. YOU,JEAN WADE,(Defendal1t), are being sued in t~is Court for a JUDGEMENT kMOUNT' 0 f: t- / J-S: 0 D 0 for YOUR MEDICAL NEGLIGENCE that contributed to the untiliilely,Wrongful Death of GEORGE G. STEWART via DEANNA K. COLLINS(Plaintiff) appoi~ted Trustee Ad litellll for the ESTATE OF GEORGE G. STEWART. YOUR Respolilise to this action is Requested by submJi ttililig a wri ttell. ANSWER to tMs Court witMn: ;Z 0 DAYS of SERVICE of this AMENDED COMPLAINT and LETTER OF SUMMONS, Sllll'<1 also by sendin.g a COpy OF YOUR ANSWER to the lega~ cOUllisel for this: Plaimt1ff. Address of legal counsel for this Plai:!lltiff as follows: DEANNA K. COLLINS 46 Willow Street Highspire.PenDa.. 17034 Signed: ~x: C~ Date: fttvr:d. 1 )~~I f&cjf [if) ~dfitiW,""Vi;t;fui,~.df;-';]i;~<';;j[t<,'hrt~'V~; ,-td-t'oii:c-d;'",,,t',, :'l-"f',_,.;_'" ""'~."~';-"-/' ii,!,,;;b~~K!~IIl,__i',ili!.:~~l<W.~"',~1lOU~allM-iJ;';;oJlI!:,"Ill_!!!I!!!!~'''''''''''=~-~'- , ~, ^',"- , -~ .,-."",, Q l.--: ::2'~ -oct.' S2~? ,%.l". ~~-~~ ~C;- *~-~.! :Pc ~ -< v ,~_"" ,,^', ^,"~'..~N' 9 - ,.". ~z I 1.;-0 '-1-: , , '...:: . .Q.' - ~ ~.~ 0::> - ,+<, ~; , DEANNA K. GOLLIN-Trustee Ad litem for the ESTATE OF GEORGE G. STEWART Plaintiff VB J:B;A:NWA:1JE Defelllldanx Date: April 9.2001 y , , , IN THE COURT OF COMMON PLEAS O.!'" CUMBERLAND COUNTY,PENNSYLVANIA CIVIL ACTION-LAW NO: O~= ]L5~O CIVIL TERM AMENDED COMPLAINT OF MEDI CAL NEGLI GENCE ** DEMAND Jl1RY TRIAL ** of . !!FA~!VIT OF SERy;rgE I.DEANNiA K. COL1nfS,Trustee Ad 11 tem for the ESTATE OF GEORGE G. STEWART. PLUDfTU'F. SERVED UlpO/llli JEAN WADE,Defendalllt. out-oC-state reside\!lJ.t and Iler d~usigJlliatelf Pennsylvama legal counsel a Certified COP:T of this recelllltlly ANEJllll.. COMPLAINT of MEDICAL NEGLIGENCE(dated:: April 9,2001) ami: a LETTER OF sumroJfS as follows: CHARLES E. WASIL~FSKI,Esq. Z9J.l North Frollllt street Earrisburg~Pe~sylvamia 17110 legal coull.sel: ilefelllldant: JIAJt WADE Z2 W.. 8elllleva Dri'T8 Tempe.Arizolllla ~5282 YlillW Cliellllt is lJieillllg< llUed in this Cour't illll the Amount of: , / ;;<.5) 0 ()() for. Judgememt in this case. YOUR RESPON~l!: to this Action. is requested by submitting an ANSWER to this Court witMn ~o Days of Service of tMs Complaint and attached Letter of SumllmOllI:s. Also selllld copy of ;Jour ANSWER to the legal counselL for Pla:IL.tmJt1!f to' address below: Dea.1lllD8. K. CollllliS 46 Willow street ~ Hig)ll:sp~re.. Pelllll!lla. 17034 Siped:. ,~K.~l.f Date: 'f/f}.~) ml U.S. Postal Service Delivery Confirmation Receipt ~ ~ fT1 ~ CHECIl OIIE (POSTAl. USl DNl.l) f &rPriority Mail tr Standard MaII:(Bl (See_) PS Fonn 152, March 1999' ._ '" """,'f""'~ .......~,< ~ ~ ,,~_ .IJ1!M\P......,. "~""1 ~ ~ ~.'~~~/ CG'~ ~ ' 0'.j;Ad 1(;;(-dO / @ 1J..';))..ph1. . ,~l "~"~ _~I'ilI , . ~~' , ,,~~~~ 1Iiiil!limi. Ii o-~"~'-j'-C-4~ ',~~"",,~,:,.ti]}.lilw.ilSIiiiHl~'~",';"+;' ", . . >... - cc. - f>:;;, j:! ,. w;::J a z.. . : ::J.~, " ~?';ii~ x: Oz z::::" ()~ 91-- ~ o~ C' .:-;~ 5:! c:.1C-~ '-0 ':::f "" :'5~ .-. cc.LlJ ~ 'ttz ::r: CL LUtu I~~> ,~Q t'5., """ ..... c Q r., 1\ ~!lllIl!"<l r (",J::J'f -~'"" 'Ii%,~~l . n.GL~~i5(:,:'J+. II C\:.. <' . , ,- ,. ,~ ~ ~ . ,- ,,>^.,,~ .'. ,,~ . , - - - "';:"' ~~.~ -""~~>- '!; ~'. , ~:o ",! ! i: :'i I"~ I: ~-, !-: i:! , i:i Ii I:; I'! I' II 11~ "- _,,,,_,, J ~"-,, ,,- . .~ ~ ~~' ou,~- ~ '~ A , 01-1510 c:,,;\ 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 compIaint 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 FIM> OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENuE CARLISLE, PENNSYLVANIA 17013 TELEPHONE: 717-249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accomodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. _.e~~"""""""';;W;;~~,"b--- ~~ ,,~ .~, -LJ~~~'""'~~Mj"-oo~lm!i! 'llliiI "=<I~~~i:; , Df~1NNA K. COLLINS-Trustee i .. ~ for the ESTATE OF GEORGE ';, Ad liteM G. STEWAWr Plaintiff IN THE COURT OF COlif11l10N PI,EAS FOR CUtYtBERLAND COUNTY,PENNSYLVANIA NO: 01-1510 Civil Ter CIVIL ACTION-LAW : ""**oli' DErYl AND JURY TRIAL CQlttPLAINT OF (l'{EDICAL NEGLIGENCE vs JEAN WADE Defendant Date: lY!aJctV j(j;) c2N / I,DEANNA K. COLLINS,RECENTLY APPOINTED Trus~ee Ad litem for the ESTATE of GEORGE G. STEWART Charge JEAN WADE with the following allegations of (Y1 EDICAL NEGLIGENCE that contributed to the wrongful death situatiam for George G. Stewart, a form er Resident of Clare~ont Nursing and Rehabilitation Center,Carlisle,Pennsylvania 1701]. The allegations are as follows: (1) Failure to follow Doctor's Orders given verbally by Dr. John SChiro,p\D. at aprox. 8:10p (11/7/1998) Jean Wade BREACHED her DUTY by her failure to follow doctor's verbal orders to illlm ediately contact the Fam ily regarding George G. Stewart1s d~clining health at aprox. ~;Nov. 7,1998. (2)Failure to ~mediately Contact Hilda B. Stewart(wife) after Deanna Collins gave corrected telephone nuJ1'l ber for contacting Hilda Stewart. This Nurse acted on the AssuMption of an UN-INPORH1ED FAMILY PARTY relaying a tYt essage ....;.tthat this Nurse never gallte. to any Fal'1'1ily rMm6er regarding George G. Stewart's declining health at aprox. 8p(11/7/1998). This is a BREACH of DUTY to perform her Nursing duties for a Resident who by this t~was loosin1 conciousness and was unable to ~ive adequate verbal directions to staff. Failure on her part to CONTACT THE RESPONSIBLE Legal-Health Advocate for George Stewart. (]) BREACH of DUTY-Failure to Adequ~tely A'fjlt/$ a Residents Declining Health Status... .this Register:edNurse Supervisor(Jp to 11p) on duty at Clareh10nt the night of Nov. 7,1998 was Negligent for her failure to take Prompt, appropriate Em ergency Actions necessary to ensure the Physical, yY\ ental and emotional safety of George G. Stewart on this night. This Nurse failed to realize that George Stewart's falling Blood Pressure was a serious vital sign. This Resident also was previously alert.a~bulatory and now had to be put into bed on Oxygen and was loosing conciousness. (4) Neglect....This Nurse is charg~d with Neslect of a Care Dependent Person causing serious bodily injury.....which is a Crime in the Pennsylvania Crime Code. This also is a BREACH of DUTY to Perform those Necessary NursiI)-g Interventions to prevent \1\!-rAjt to a patient, Tf,/5 N/,(R.s:e..~;Jed'tr; pf'()vnJe- tt-/J'fGm.$.'Af-t/lCj Mi('l.?.as''#r /I1/t.. '5!ew,MT ,t~,=.~~~")""",,,~ J ~ ~ ~I ,",I -~ 1lIItW~-= ,- ~' ....L:\ I t" (5) Failure to Provide Immediate E ergency Care for George G. Stewart . I'his also is a BREACH of Duty. This iW Supervisor(3p to 11p) Jean \'/ade,f.,/J,~~, after failing to realize the y 6t;J1r. Stewart's condition left this Resident lay with a falling Blood ressure fro~aprox. 8p(11/7/1998) until the end of her shift at aprox 11p(1 /7/1998), She had the knowledge and could observe the declining ~edical cond'tion of George Stewart of which the FaMily was never told or Inform d about...yet Deanna Collins was to relay afttessage of his poor Health 0 Hilda Stewart(IMPOSSIBLEIIII) George Stewart was left laying with a decling Blood Pressure for aprox, 3 Hours (docu /1'\ ented) . (6) Failure to use good Nursing Jud Jean Wade,RN was Negligent to use Assess a Resident's declining healt contact the FaYY\ily Responsible Par (1) Again Notified the On-Call Doct I' (2) Used her own JudgefV\ ent to Call 911 for an Ambulance (3) Again call any Favrtily Il'\~mb~ra~ter not being able to iMprove this Resident' s condition after the firsk1/2 hou:r;/'d~lJNnrse is charged with this resident,~Ge<orge Stewart lay 6~er 3hours with no Emergency Care. (4) Tell the truth of George Stewa~~'s declining Health Status to any Fa~ily party....This Nurse failedl to Infor~any faW\ily party on her shift before leaving her duty as Shift sJ~ervisor. Ii I e Jtt ent in an E r>1ergency Situation. er Nurs~ Education to Properly Status and inspite of inability to Nurse should have -- leavingl Therefore, this Estate alleges thaiJ, the COf'l bined Breac~eaoJiiBNursing duty to give safe,adequate ~mergency care 'for George Stewart and her Negligence and Careless attitude am this ErY\ ergency situation contributed to the unti:J'l1ely wrongful death of George G. Stewar . The Negligent Actions of this Nurse are very below the Nor~al Standard of Care required of A Registered Nurse Supervisor in an EMergency si tuat' on. Therefore, the ESTATE OF GEORGE G. STEWART PRAYS FOR A JUDGEI'1ENT IN THE AMOUNT of 1 t1 ' this Jean Wade, ,f,jv'. 5:~, l'iegistered Nurse Supervisor of CIa e J'\'(ont Nursing and Rehabili tatior Center of which George G. Stewart was a Resiqent and who we the Beneficiaries of said Estate allege contributed l'iItl1Elrouar.tWegligent Acts which resulted in the untilMely,wrong ful death of 11\ r. ~tewart. i . -" d~~ ~~/*""',v4d/'H;" .~lgne : ,. :::O--{Lor- -rt.-e 0,1; r- cr-( Date: M I</;) dC'd / / ,: 6:6(}l:r~.4;, ':J1EWI1f(f ~ ~.~ , . L~ r -.~ ",",l .. 1... ,- ,,' "'-"R.'" I ,DEANNA K. COLLINS-Trustee Ad li telfl ~ for the ESTATE OF GEORGE G. STEWART Plaintiff Defendant IN THE COURT OF COJl1JttON PLEAS FOR CU/YI BERLAND COUNTY, PENNSYLVANIA NO: Civil TerM CIVIL ACTION-LAW 'H'*~fDEtI'\ AND JURY TRIAL COmPLAINT OF /11 EDICAL NEGLIGENCE Date: SUIr1tt\ONS IN A CIVIL <LAWSUIT , VS Jean Wade I,DEM\NA K. COLLINS,Trustee Ad liteM for the ESTATE OF GEORGE G. STEWART SERVE UPON Defendant Jefu~ Wade,RN Supervisor,of Clarem ont Nursing and Rehabilitation Center,Carlisle,Pennsylvania 17013 via Defendant's Attorney: Charles E. Wasilefski,Esq. 2931 North Front Street Harrisburg, Penna. 17110 A Certified Copy of thie COMplaint of f1'\ EDICAL NEGLIGENCE and a LET'rER OF SUIllIl'l ONS. YOUR Client,Jean Wade, is being sued in this Court for the Acts of fi1 EDICAL NEGLIGENCE contributing to the wrongful death situation of George G. Stewart in the JUDGE/II!ENT Afrl OUNT of t / ~57 rJ-tkJ YOUR Response to this action is requested by s'lbWl i tting an ANSWER to the Court within Q:(f) 'tYjS of SERVICE of this COM plaint and LETTER of SUi1lfl10NS,sending a copy of you Answer to: Deanna K. Collins 46 Willow Street Highspire,Penna. 17034 Signed~I((Y~ Va te : f/Ulrtecff! ~ I ~,Ch? I . :_,,;(liil!Mi,*,,"".1i,~i'j;Jit~il!4_dl~LI~_'ki"':;~'lJi; ;'!i<C!!;;\"1kt"~U,,",ir~'_"i-'U'.,, ',,:i ~,"L"'~'_ :i1'" ' >-. ~ ~_"':: UJc-: ~?~~~ ,. ; ("1) ~~:" (~..; f ! LUL-l^ ._J u: h~:;, .x ~ ~ ;---.'- LI- o C") N >- !-.- Z ;5~ '--)ry. :~~~ .,-;,~~~ <;v,,> j"~ i..IJW (':.10- "'" ~ :::> () 9 '- .,":.... .,~ .CO Ir:.:::: '~r.: ...~- ._..~ .:::> - 'ci - C4- <:s c::,., t '^ ~ Q <..J ~ ::> \ f-.r) ",,;.',1:' ~ ~ cs. <::~ "- C ! " lr\ j- L,,~>Ai L~"'liSJ~~~~~-w,Mik"l0J;iMii~~,,~~L_~, ,,,,2,, ~, '- (}- 0<, 'J '- ~ ,">0 " ~"""'I -j- ~ : I! I .1 , I I. " II II .;,.....; .' '. '" _ ,_, _ ~ "r .,.. '1'...-. ~ .', 'H'_'."^'",_~,_;";i- ,",-C_',~ 1-~'" C,,~_,,;C.~ _"<,"",,_.-,,, ~ -__ ';;;.oi,_~,,_, ,_ , . DEANNA K. COLLINS, Trustee Ad Litem for the Estate of GEORGE G. STEWART, Plaintiff IN TIiE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA I v. I' I CIVIrj ACTION - LAW , , I , , , NO. 0~-1510 CIVIL TERM I i ORDIf. OF COURT , 8th day of June~ 2004, upon consideration of Plaintiff's Motion , , I JEAN WADE, Defendant AND NOW, this for Continuance, the motion is denied. I IBYTHECOURT, 1 1 ,J. 'I Deanna K. Collins 471 High Street Bressler, PA 17113 Plaintiff, pro se Charles E. Wasilefski, Esq. 2931 N. Front Street Harrisburg, P A 17110 Attorney for Defendant . ~ l'/Jr-o'f .Mfl ~ :rc 'D~'"'U;'j ;;,~',::,,;, '-L"~ljjiWli~~t'JitMl!fj~ili- t irn ~Bi~~If~!iJ'\tt.iIili:~OO~Mt '1- --'~=', "'''''.;'';;'' A;;_ )...Jx{"):-:n ,'J'" -1__:::C.j-Mfj....... .'.'10 ~; I :01 ~!\1 (1- ~mr ~Ofil AbVJONOH10i:!d 3Hl. ::10 ::i'1j<.IJ('\J"l'j -,v..J-',,,--'--U:l! ~--~ ~" r,' "',,- " ~'. ,,-. "''cll9 c__. ,--- ~, " , '~ J~ 1'04 jI" .~. j)f 1tlfE. GJ(tff 0 F (JJ fYlMPJN PLEM -Fa t- ~U4NJ) VJ I-'ftI^,~ q L if*" i 11 .tWTlj J NO~ 0/-&0 CVILre.r-Yf\ Gv IL. 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'"" = ~ .L- ~- c:: z o -01 .-1 rn:D r- -om :09 00 :;j --ri .~-n ~~o Orr. ~\ >~ ;D -< , ..,- -u r c;..) " - -',~ ~ f ~.' . <w__. , ~~ '-, . '" ~- -'. '~'.h";l" , /8 HAY 1 7 2004 ~' PETERS & W ASILEFSKI By: Charles E. Wasilefski, Esquire Attorney ill #21027 2931 North Front Street Harrisburg, PA 17110-1280 Attorney for Defendant, Jean Wade DEANNA K. COLLINS - Trustee Ad Litem for the ESTATE OF GEORGE G. STEWART, Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO 01 - 1510 Civil Term JEAN WADE, Defendant CIVIL ACTION - LA W JURY TRIAL DEMANDED BRIEF IN SUPPORT OF MOTtON OF DEFENDANT. JEAN WADE. FOR JUDGMEN . ON THE PLEADINGS I. Procedural Backlrround This is a matter that purp<!lrtedly arises as a result of alleged negligence in providing care to George Stewart, dece!l.'!ed, at the Claremont Nursing and Rehabilitation Center on November 7, 1998. Plaintiff originally brought this action by filing a Complaint on April 9, 2001, five (5) mOllths after the Statute of Limitations had expired. On or about April 30, 2001, Defendant, Jean Wade ("Wade"), timely filed and Answer with New Matter to Plaintiffs Complaitlt. In addition to other allegations, Defendant, Wade, pleaded that Plaintiffs claims are barred by the Statute of Limitations. In the three (3) years since Defendant, Wade, filed the Answer with New Matter, Plaintiff has not filed a responsive pleading to the New Matter; and therefore, all allegations contained in said New Matter are deemed admitted. .......... T - , -,-'I,", ' -" ,- i~ "-", Defendant, Wade, has filed a Motion for Judgment on the Pleadings and it is this motion that is currently pending before this Court. II. Factual Backl!round Defendant, Wade, filed an Answer with New Matter to Plaintiffs Complaint on April 30, 2001. Over three years have elapsed and Plaintiff has failed to file a responsive pleading to the New Matter. As a result of Plaintiff's failure to file a responsive pleading to the New Matter filed by Defendant, Wade, all facts that are contained in the New Matter are deemed admitted for purpose of this Motion for Judgment on the Pleadings. The following facts are based upon those admissions. This is a matter that arises as a result of alleged nursing home malpractice involving the care and treatment received by George Stewart while a resident at the Claremont Nursing and Rehabilitation Center ("Claremont") during the period November 2, 1998 to November 8,1998. Mr. Stewart was born on May 16, 1916 and was 82 years old at the time that he was a resident at Claremont. Mr. Stewart was admitted as a resident at Claremont on November 2, 1998. He was admitted to Room D-2, Bed 2, D wing, an intermediate care unit. It is reported that he was admitted as a resident at Claremont because his wife, Hilda Stewart, who was his primary caregiver at home, was to have surgery and was not able to care for him during her surgical recovery period. Mrs. Stewart reported to the nurses that she was to have bilateral endarterectomies done at Holy Spirit Hospital on November 3, 1998, the day following Mr. Stewart's admission to Claremont. Hilda Stewart accompanied Mr. Stewart for admission. Mrs. Stewart provided all the admission information, including her address and telephone number and 2 - - ,-,- ",,' ,"- ,'- '"'-\~ 1 designated Deanna Collins, their daughter, as the Responsible Party #2. She also informed the nursing staff that she expected that Mr. Stewart's stay at Claremont would be short. He would remain at Claremont only during her surgical convalescent period. At time of admission, George and Hilda Stewart signed a Statement of Agreement that stated in part: 1. I hereby authorize Claremont Nursing and Rehabilitation Center of Cumberland County to provide medical and nursing services to me. I further authorize the physician in charge of my care to administer any treatment or treatments that the physician may deem necessary or advisable formy care. At the time of admission, George Stewart was an 82-year-old man who was 5'3" tall, weighted 95 Y. pounds, and was diagnosed as having the following conditions: Emphysema (primary); Senile Dementia, Alzheimer's type; Schizophrenia (three previous admissions to Holy Spirit Hospital for this condition); and Peripheral Vascular Disease. Mr. Stewart was seen by Dr. Gawlas at the time of admission. He was examined and provided a treatment plan, which included medications that were consistent with Mr. Stewart's condition at the time of admission. On Saturday, November 7, 1998, at approximately 5:30 p.m., the nursing staff noted what appeared to be a change in Mr. Stewart's mentation. As a result of this observation, certain medications were held as it was felt that the change may have been due to the affects of the medication and a nursing supervisor, Defendant, Wade, was requested to assess him. Defendant, Wade, stayed with Mr. Stewart during dinner and assisted in feeding him. He indicated that he was tired and wanted to go to bed early that evening. As a result of this request, Defendant, Wade, and a staff nurse assisted Mr. 3 '-'-" I~ __ - ".-j '-; oj, ~ ~ " ! Stewart in going to bed at approximately 7:45 PM. At the time that Mr. Stewart was assisted into bed, the nnrses obtained his vital signs and assessed his condition. Defendant, Wade, then called Dr. Schiro for instructions. Dr. Schiro discontinued the Sinimet and ordered that the Haldo be held. He further ordered the administration of oxygen at two liters per minute via nasal cannula - pm for dyspnea. He also ordered that the family be notified of the change of condition. At time of admission, Hilda Stewart did not provide Claremont with any Advanced Medical Directive, which is an optional section of the chart that indicates the residents or the family wishes in case of a change of condition. After assisting Mr. Stewart into bed, Defendant, Wade, attempted to telephone Hilda Stewart, as directed by Dr. Schiro. At that time, it was discovered that the wrong telephone number had been given by Hilda Stewart at the time of admission. Defendant, Wade, then called the Responsible Party #2, Deanna Collins. Ms. Collins was informed that Mr. Stewart had a change of condition and that Defendant, Wade, had to speak with Hilda Stewart to inform her of the change of condition. Ms. Collins provided the correct telephone number but became abusive and indicated that she would speak with her mother and they would get back to Defendant, Wade. Ms. Collins abruptly hung up the telephone on Defendant, Wade. Neither Ms. Collins nor Hilda Stewart ever got back to anyone at Claremont. It is believed that Ms. Collins, at the time of this initial telephone call, was in the process of getting ready to go out on a date and did not telephone her mother, Hilda Stewart, to inform her of Mr. Stewart's change of condition so that further instructions could be given to Claremont as to the families desires for treatment in light of the change of condition. If there was a delay in treatment as alleged 4 ',. -' ..:;';" '~'-' ..........-.~ .~~ ~~, -~< ~ J_~ ~ U " '" ~' __ __'_.fu' .v__r" ,- '-'- '''''''-IlMl}A by Plaintiff, which is denied since Mr. Stewart received appropriate care and treatment consistent with this change of condition pending further communication with the family, that delay was the result of Ms. Collins not meeting her responsibilities. During the period following the telephone call to Ms. Collins, the nnrsing staff closely monitored Mr. Stewart. After the change of shifts, nnrses constantly attended Mr. Stewart. Since neither Ms. Collins nor Hilda Stewart called or came to the facility dnring the period from when Defendant, Wade, the nnrsing supervisor, on the 3:00 p.m. to 11:00 p.m. shift, had spoken to Ms. Collins, a telephone call was placed to Hilda Stewart. Hilda Stewart had not been made aware of the earlier telephone call to Ms. Collins and was therefore not aware of her husband's change of condition. Hilda Stewart was updated on the change of condition of Mr. Stewart, the doctor's orders and the notification to her daughter, Ms. Collins. At that time, Hilda Stewart indicated that she desired to have further treatment given to Mr. Stewart at the Carlisle Hospital. Immediately after the telephone conversation with Hilda Stewart, the nnrsing supervisor on the 11 :00 pm to 7:00 am shift contacted Dr. Schiro and updated him on Mr. Stewart's condition and the request from Hilda Stewart to have further treatment given at the Carlisle Hospital. Dr. Schiro made a telephone order for the immediate transfer of Mr. Stewart to Carlisle Hospital. The family was then informed that Mr. Stewart was being transferred to the Carlisle Hospital. Mr. Stewart was then transferred to the Carlisle Hospital for further treatment. Mr. Stewart's illness and eventual death was a result of the natnral deterioration of his physical condition resulting from age and illnesses thathe had and not as a result of any act or failnre to ad by Defendant, Claremont, its nnrsing staff, its 5 ~" ~-~ ""-"~ .. .1" ~ '"~. '"'' -<,'. , '-F! employees, agents, or servants, or the physicians attending to Mr. Stewart dnring his residence at Claremont. Mr. Stewart died on November 9, 1998 after receiving further treatment at the Carlisle Hospital. III. Lee:al Discussion A. Scope of Review by the Court pursuant to a Motion for Judgment on the Pleadings In reviewing a matter before the Court on a Motion for Judgment on the Pleadings "... the court must accept as true all facts well pleaded and inferences reasonably deducible therefrom: and judgment should be entered only where it is clear that no meritorious ...[ cause of action] is raised." Necho Coal Company v. Denise Coal Company, 387 Pa. 567 (l957). "On a motion for Judgment on the Pleadings by the defendant, the complaint, answer and reply to averments of new matter in the answer are considered, and all facts pled by the plaintiff, which are relevant and material, must be accepted as admitted even though denied." AUl!henbau!!h v. North American Refractories Company. 426 Pa. 211 (1967). In the instant case, the Plaintiff did not file a response to the New Matter filed by Defendant, Claremont, and therefore all facts pleaded in the New Matter are deemed admitted for purpose of this Motion for Judgment on the Pleadings. In conducting its inquiry, the court should confme itself to the pleadings themselves and any documents or exhibits properly attached to them. McAllister v. Millville Mutual Insurance Co., 433 Pa. Super. 330, 334, 640 A.2d 1283, l285 (1994); Jones v. Travelers Insurance Co., 356 Pa. Super. 213, 217, 514 A.2d 576, 578 (1986); Gallo v. J.C.Pennev Casualty Insurance Co., 6 ...,;,,~ . '1 ___' I,; ,- ~ L ." ~ ,. " , ~ -, ""'"'""'~]~ 328 Pa. Super. 267, 270, 476 A.2d 1322, 1324 (1984). A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of law. Giddin!!s v. Tartler. 130 Pa. Cmwlth. 175, 177, 567 A.2d 766, 777, 567 A.2d 766, 767 (1989). Neither party can be deemed to have admitted either conclusions of law or unjustified inferences. Sinn v. Burd, 486 Pa. 146, 149, 404 A.2d 672, 674 (1979); Jones v. Travelers Inc., 356 Pa. Super. 213, 217, 514 A.2d 576, 578 (1986). A motion for judgment on the pleadings is similar to a demurrer. It may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Citicorp North America. Inc. v. Thornton, Pa. Super. ,707 - - A2d 536, 538 (1998). B. Based upon the Pleadings, there are no disputed issues of fact lIllld Defendant, Wade, is entitled to judgment as a matter of law. First, Plaintiff filed this case five (5) months after the Statute of Limitations had expired. All of Plaintiffs claims are barred by the Statute of Limitations. Plaintiff has alleged in the Complaint that the alleged offending acts committed by Defendant, Wade. occurred on November 7, 1998. Plaintiffs claims in this matter are governed by the two (2) year Statute of Limitations. The Statute of Limitations applicable to both Wrongful Death Actions and Survival Actions appears at 42 Pa. C. S. Section 5524(2) and provides that "[a]n action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another" must be commenced within two 7 ...."""" =~~"~_IL "-"-'- .. ".,;.. " ~ years. The two year period begins to run "from the time the cause of action accrued..." 42 Pa.C.S. Section 5502(a). In the instant case, therefore, if the alleged offending actions took place on November 7, 1998, then Plaintiff would have had to bring this action no later than November 7,2000. In this matter, George Stewart died on November 9, 1998. Under the Wrongful Death Action, the action must be brought within two (2) years following the death of the deceased, which is when the any alleged pecuniary loss is sustained by the beneficiaries of the person whose death has been caused by the tort of another. Baum!!art v. Keene Bnilding Products Corooration, 430 Pa. Super. 162, 172, 633 A.2d 1189, 1194 (1993)(en banc). Under this circumstance, Plaintiff would have had to commence the Wrongful Death Action no later than November 9, 2000. However, Plaintiff did not commence this action until April 9, 2001, more than five (5) months after the applicable Statute of Limitations had run on the Survival Action and exactly five (5) months after the Statute of Limitations would have run on the Wrongful Death Action. Therefore, Plaintiffs claims are barred and this matter must be dismissed. As indicated above, the facts admitted in the record are fully contained in the New Matter filed by Defendant, Wade. Because of this admission by Plaintiff, this Court is obligated to use said facts in rendering its opinion in this case. Plaintiffs Complaint raises only one cause of action for Wrongful Death based upon alleged medical negligence. Plaintiff's Complaint is based upon legal conclusions, which are not admitted for this Motion. The only facts that are pertinent are those admitted by Plaintiff as cont!lined in the New Matter filed by Defendant, 8 "J' ~~~'.;,~~. ,'~ .;,,',~' ",;j ~" ~=; i" ~,,' . .~, _ ,.'" ",,<J.;:!,! Wade. Based upon those facts, there is no basis for any conclusion that there was medical negligence in this case. This case is similar to the case brought by Plaintiff against Rosemary Bathavic in this Court at Deanna K. Collins. Trnstee Ad Litem for the Estate of Geore:e G. Stewart v. Rosemary Dailey Bathavic, Cumberland County Civil Action No. 00-7749 in which this Court dismissed the action because the Complaint failed to allege sufficient facts to support either a wrongful death or survival action. See Order and Opinion dated August 15, 2001, attached hereto as Exhibit 1. In the instant matter, Plaintiff alleges only a Wrongful Death claim based upon alleged medical negligence. There are absolutely no allegations that would indicate that Plaintiff was alleging a cause of action based upon a Survival Action. A Survival Action is statutory in nature and appears at 42 Pa. C.S.A. Secition 8302, which states: All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants. In reviewing Plaintiffs Complaint, it is clear from the language contained therein that Plaintiff intended to fIle a Wrongful Death Action only. There is no reference to a Survival Action. In analyzing the Complaint, to which Defendant, Wade, filed an Answer with New Matter, it is clear that the Plaintiff did not plead sufficient facts to support a recovery in a Survival Action. However, another view of this aspect of the claim is that Plaintiff never intended to bring a claim for damages in a Survival Action. First, the Complaint, by the very language in the Complaint, limit the action to a Wrongful Death Action. Second, an analysis of the claims contained in the Complaint 9 ~ . " ~, ~... L~,~" , 'I " i " ~ " j,;,j clearly reveal that the Plaintiff never made any claims that would be appropriate in a Survival Action. Therefore, it appears that Plaintiff never intended to make claims pursuant to a Survival Action. A survival action continues, in the personal representative of a decedent, the right of action which accured to the deceased at common law because of a tort. Pezulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942). See also, Tulewicz v. Southeastern Pa. Transportation Authoritv, 529 Pa. 588, 606 A.2d 427 (1992). The damages in a Survival Action are measured by the pecuniary loss to the decedent. Fisher v. Dve, 386 Pa. 141, 125 A.2d 472 (1956). Damages considered pecuniary losses to the decedent include compensation for the decedent's conscious pain and suffering from the time of injury until his death and for the decedent's loss of earning power, less personal maintenance expenses, until the end of his working life-span. Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994). Regarding pain and suffering, no recovery for this is possible if the decedent was unconscious from the time of injury until death. Nye v. Pennsylvania Department of Transportation, 331 Pa. Super. 209, 480 A.2d 318 (l984). In the instant matter, Plaintiff alleges that George Stewart had lost consciousness. A close reading of the Complaint shows that Plaintiff did not plead damages that would even remotely establish a sufficient basis for a Survival Action. Even if the Court would allow an amendment to the Complaint to include damages that may be considered claims within a Survival Action, such inclusion would be made after the Statute of Limitations had run and therefore an improper amendment in an attempt to include a Survival Action after the Statute of Limitations had run. No subsequent amendment of the Complaint would 10 ,j .,.;' ,. ,j, allow the action to be converted to a Survival Action since the Statute of Limitations would have been expired. Pennsylvania law is clear on this issue: ... once the statute of limitations has expired, if a proposed amendment constitutes a simple correction of the name of a party, it should be allowed, but if the amendment in effect adds a new party, it should be prohibited. Jacob's Air Conditioninl! and Heatinl! v. Associated Heatinl! and Air Conditioning. 366 Pa. Super. 430, 531 A.2d 494 (1987). ... Although the Rules of Civil Procedure authorize liberal amendment of pleadings to secure proper determination on the merits, such amendments must not be so liberally allowed as to redraft a legislated statute of limitations. Hoare v. Bell TeleDhone Company of Pa., 509 Pa. 57, 500 A.2d 1112 (1985). VasBinder v. Van Durn Co., 35 Pa. D&C. 4th 234 (Clearfield County 1996). The Pennsylvania Supreme Court in Aivazo!!lou v. Drever Furnaces. et al, 418 Pa. Super. 111, 613 A.2d 595 (1992), citing and quoting the Pennsylvania Supreme Court in Girardi v. Laauin Lumber Company, 232 Pa. 1,81 A. 63 (1911), stated: The allowance of the amendment would have brought new parties on the record. Under the rule established by our cases this cannot be done. Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action or bring in a new party. ...if [the effect of the amendment] is to bring in a new party [or a new cause of action] it will be refused. AivazOl!lou v. Drever Furnaces. et aI, supra at 599-600. In the instant case, the initial Complaint contained no reference to a Survival Action nor did it contain any claim for damages that would comply with damages that could be recovered pnrsuant to a Survival Action. The Complaint was made after the Statute of Limitations would have expired and therefore any attempt to amend the Complaint at this time to include elements of a Survival Action would be barred by the Statute of Limitations. 11 "0',. . ~ ~ ~ .," "'';:'',i -- - , . """ ~~ . Wjt';-l With regard to a cause of action pursuant to a Wrongful Death Action, the Plaintiff has at all times identified this action as of Wrongful Death Action. The Wrongful Death Act provides the following: (a) General Rule. - An action may be brought, under procednres prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injnred individual dnring his lifetime and any prior actions for the same injnries are consolidated with the wrongful death claim so as to avoid duplicate recovery. (b) Beneficiaries. - Except as provided in subsection (d), the right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased, whether or not citizens or residents of the Commonwealth or elsewhere. The damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy and without liability to creditors of the deceased person under the statutes of this Commonwealth. (c) Special Damages. - In an action brought under subsection (a), the plaintiff shall be entitled to recover, in addition to other damages, damages for reasonable hospital, nnrsing, medical, funeral expenses and expenses of administration necessitated by reason of injnries causing death. (d) Action by personal representative. - If no person is eligible to recover damages under subsection (b), the personal representative of the deceased may bring an action to recover damages for reasonable hospital, nnrsing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death. 42 Pa. C.S.A. Section 8301. , The Pennsylvania Supreme Court discussed the purpose of the Wrongful Death Act as follows: 12 ~ -. _10. " , '-~ - ~' i,_ - ~ '- " <- ~ '!lIuitMlmlltllo The purpose of the Wrongful Death Act is "to compensate certain enumerated relatives of the deceased for the pecuniary loss occasioned to them through deprivation of the parts of the earnings of the deceased which they would have received from him had he lived." Berrv v. Titus, 346 Pa. Super. 376, 381, 499 A.2d 661, 664 (l985)(quoting Mannine: v. Capelli, 270 Pa. Super. 207, 211, 411 A.2d 252, 254 (1979). See Linehaue:h v. Lehr, 352 Pa. Super. 135, 305 A.2d 303 (l986)(purpose of the wrongful death statute is to compensate the decedent's survivors for their pecuniary losses; it does not compensate the decedent's estate). "[O]nly those persons who stand in a family relation to the deceased are statutorily authorized to recover damages." Berrv, 346 Pa. Super. at 381, 499 A.2d at 664 (quoting Manninl!, 270 Pa. Super. at 210, 41l A.2d at 254). A family relation is defined to require a showing the pecuniary loss by the relatives seeking damages as a result of the wrongful death of the decedent; there must be pecuniary loss by one in a family relation before there is any recovery and damages. Berrv, supra; Mannine:, supra. Succinctly stated: [a]n action for wrongful death may be brought by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death. 42 Pa. C.S. Section 8301 (d); Pa. R.C.P. 2202 (a). The damages recovered are not part of the decedent's estate, but rather are compensation to individual members of the family for their loss. It is an action unknown to the common law. Tulewicz v. S.E. Pit. Trans. Auth., 529 Pa. 588, 596, 606 A.2d 427,431 (1992); seeMcFadden v. May, 325 Pa. 145,189 A. 483 (1937). Hode:e v. Loveland, _ Pa. Super. _, 690 A.2d 243, 245-246 (1997). In order for a family member to recover pnrsuant to the Wrongful Death Act, there must be an allegation that there was a pecuniary loss to the family member claiming damages. A pecuniary loss in this context is defined as and dependent upon the fact that the decedent contributed financial support to the family member with "reasonable frequency," and that the family member had a reasonable expectation of futnre financial support from the 13 ~~~~~ "~ , ~ m' . ~' "':o"Occ~' ~ "~'~i decedent. Berry v. Titus, 346 Pa. Super. 376, 38l-382, 499 A.2d 661, 664 (1985) (quoting Mannine: v. Capelli, 270 Pa. Super. 207, 21l, 41l A.2d 252, 254 (1979). As this Court had applied the law regarding the claim pnrsuant to the Wrongful Death Act in the Bathavic case, a similar analysis should be performed in this case. In the Bathavic case this Court analyze the circumstances as follows: In the court's view, Plaintiff has not alleged sufficient facts to permit recovery in a wrongful death action. To recover under the Wrongful Death Act, Plaintiff was show that she suffered pecuniary loss as a result of the death of the decedent. Plaintiff, however, has not averred any facts that suggest that the decedent contributed support to Plaintiff with "reasonable frequency," or that she was deprived of expected support because of his death. The facts, as alleged, suggest that Plaintiff and the decedent were involved in a "business relationship" and that she lost a recording contract with an independent producer due to the death of George Stewart. These facts do not rise to the level of the deprivation of expected contributions from the decedent as contemplated by the statute. Deanna K. Collins. Trustee Ad Litem for the Estate of Geore:e G. Stewart v. Rosemary Dailey Bathavic, Cumberland County Civil Action No. 00-7749 - attached as Exhibit 1. The Pennsylvania Superior Court affirmed the lower court's decision in stated: "After our review of the certified record, we must agree with the trial court's reasoning. Even if the facts Appellant has alleged onr true, her facts are insufficient to stated cause of action for either a survival or wrongful death action." Deanna Collins, Trustee Ad Litem for the Estate of Georl!:e G. Stewart v. Rosemary Dailev Bathavic, Superior Court of Pennsylvania Docket No. l469 MDA 200l, a copy of said opinion is attached hereto as Exhibit 2. Similarly, a review of the Complaint in the instant matter will result in a similar decision. First, Plaintiff filed this action five (5) months after the Statute of 14 - ~" ," , " ,,1, . ' - " ~ ;, .', '"~"~ ~ Limitations had run; and therefore, this matter is barred by the Statute of Limitations. Second, the Plaintiff does not alleged sufficient facts to state a cause of action for either a survival or wrongful death action. Although the Complaint is entitled Wrongful Death Action, Plaintiff has not stated sufficient facts to support a Wrongful Death Action; and therefore, this Court, as it did in the Bathavic case, must dismiss this action and find in favor of Defendant, Wade, on this Motion for Judgment on the Pleadings. Respectfully submitted, PETERS & W ASILEFSKI Charles E. Wasilefski, Esquire Attorney #2l 027 2931 North Front Street Harrisbnrg, PA 17110 [717] 238-7555 Extension 110 Attorneys for Defendant, Jean Wade Date: May 18,2004 15 . ..1 ~ "^ i.._. _ <,''"' '-.0'>'" ~ .' ~ '- -- C" CERTIFICATE OF SERVICE This is to certify that I, Pamela J. Crum, a Legal Assistant in the law offices of Peters & Wasilefski, have this ~ day Of~",,- , 2004, served a true and correct copy of the foregoing BRIEF OF ][)EFENDANT, ~ADE, IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS upon all parties by depositing same in the United States mail, first class, postage prepaid, addressed to the counsel of record as follows: Deanna K. Collins 46 Willow Street Highspire, PA 17034 ~\).~~~~ Pamela J. Crum ~~"~ j '.' ;' h, ~ - DEANNA K. COLLINS, Trustee Ad Litem for the ESTATE OF GEORGE G. STEWART, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. CIVIL ACTION - LAW ROSEMARY DAILEY BATHAVIC, Defendant NO. 00-7949 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT BEFORE HOFFER. P.J., OLER and GUIDO. JJ, ORDER OF COURT AND NOW, this 15th day of August, 2001, after careful consideration of the Preliminary Objections of Defendant, Plaintiffs Answer, and the briefs and arguments in support thereof, and for the reasoris stated in the accompanying opinion, Defendant's demurrer is sustained and Plaintiffs complaint is dismissed. Defendant's motion to strike references to Hilda B. Stewart is deemed moot. BY THE COURT, Deanna K. Collins 46 Willow Street Highspire, P A l7034 Plaintiff, Pro Se ;;f" ' arles E. Wasilefski 2931 North Front Street Harrisburg, PA 17110-l280 Attorney for Defendant 'rDUE Cu"".~" v <:':o,,"\~r. k::::r'nQf1\ ; i r'j rff"~,........t~~ ~ ~&"~~4~''''''> .,l.'? In Testimonywherecl, I hera unto set my h::md and the seal of said Court at CarHsle, PJ.. fhts f)1b dar. fJf~i'J~ ~ .:Joof 'JJI,~ (,. hn / Pratho otarf ~, ..:~~". '. '!t!'; ~\UE ",I to ,~.~ . , _ ~ .l."~ ' ~'~~.. "" ,n, '"""<~ DEANNA K. COLLINS, Trustee Ad Litem for the ESTATE OF GEORGE G. STEWART, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CML ACTION - LAW ROSEMARY DAILEY BATHA VIC, Defendfult NO. 00-7949 CML TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT BEFORE HOFFER. P.J.. OLER and GUIDO. JJ. OPINION and ORDER OF COURT OLER, J., August l5, 2001. This case arises out of allegedly negligent care provided by Defendant Rosemary Dailey Bathavic, a nurse for the Claremont Nursing and Rehabilitation Center, which purportedly resulted in the death of a resident of that facility, George G. Stewart, on November 9, 1998.1 On November 9, 2000, Plaintiff Deanna K. Collins filed a complaint on her own behalf as the daughter of the decedent. 2 In a series of amendments, the caption of the original complaint was modified to name Plaintiff as "trustee ad litem" for the estate of George G. Stewart,3 and to include as a co-Plaintiff Hilda B. Stewart, purportedly the widow of the decedent.4 The amended complaints stated that Plaintiff sought compensation for the losses in the value of the 1 Am. Comp!. Medical Negligence and Wrongful Death, filed Jan. 22, 200l, at 3 (hereinafter Fourth Am. Comp!.). 2 Comp!. Medical Negligence which resulted in a wrongful death situation, filed Nov. 9, 2000 (hereinafter Comp!.) 3 Fourth Am. Compl at 1. 4 Am. Comp!. Medical Negligence and Wrongful Death, filed Dec. 8, 2000, at 1 (hereinafter Third Am. Camp!.). ,~'~ c '.;, ;.. .'~.ii.' estate of the decedent, including the value of Plaintiffs music recording contract, which was allegedly lost due to the death ofthe decedent.5 Defendant filed preliminary objections which were collectively denominated a "demnrrer," raising issues as to standing and capacity to. sue, conformity to law or rule of court, inclusion of scandalous and imp~rtinent matter, specificity, and legal sufficiency. 6 Defendant also filed a preliminary objeption in the form of a motion to strike references to Hilda B. Stewart, on the ground that ~he was being added as a party plaintiff after the applicable two-year statute of limitations had run. 7 By order of court dated May 18,' 2001, Plaintiff was directed to file an answer to the preliminary objections, and both piarties were directed to conduct depositions for purposes of development of a record, pjlrsuant to Pennsylvania Rule of Civil Procedure 206.7.8 Plaintiff filed an answer to the ,preliminary objections and submitted a brief in support thereof, but no depositions have ~een filed. Based upon the record as it exist$, and for the reasons stated in the accompanying opinion, a demurrer will be sustained. Because of this disposition, Defendant's motion to strike references to Hilda B. Stewart wilL be deemed moot. STATEMENT OF FACTS The present action at law was commenced on November 9, 2000, by the filing of a document titled "Complaint of Medical Negligence which resulted in a wrongful death situation." The caption listed Deanna K.Collins as the Plaintiff. The complaint consisted of a one-page claim for $85,000.00 by Pl!aintiff as the daughter of George G. Stewart, due to unspecified negligence on the part of DefendaI;).t which resulted in the death of 5 E.g., Fourth Am. CompI. at 4. In the interest of a cohesive disposition of issues, the court will treat Plaintiff's second, third and fourth amended complaints as a connected series. Op. and Order ofCt., dated May 18,2001, at 2 n.6; see Pa. R.C.P. l26. 6 Def.'s Prelim. Objections, filed Jan. 1l,.200l, paras. 8-ll. 7 Id. at l. 8 Op. and Order ofCt., dated May l8, 200l, at 8. 2 ~~" _ L, ~ I ^ ", 0, ^__- "'~hv'.: . . Plaintiffs father, a resident of Claremont Nursing and Rehabilitation Center.9 The complaint did not specifY the nature of the losses for which damages were being sought. The complaint contained the observation that "the Estate of George G. Stewart is pursuing a Wrongful Death Lawsuit of its own."lO On November l6, 2000, without leave of court or agreement of the parties, Plaintiff filed a (first) amended complaint. It replicated the original complaint, with the addition of a more formal notice to defend. lIOn December 4, 2000, Defendant filed preliminary objections to the amended complaint, raising issues as to standing and capacity to sue, conformity to law or rule of court, inclusion of scandalous and impertinent matter, specificity, and legal sufficiency. [2 On December 6, 2000, in response to the preliminary objections and as permitted by Pennsylvania Rule of Civil Procedure 1028(c)(l), Plaintiff filed a (second) amended complaint, titled "Amended Complaint of Medical Negligence and Wrongful Death." It was filed in the name of "Deanna K. Collins-Plaintiff (Trustee ad litem for the Estate of George G. StewartD)," and purported to represent the interests of "myself and all the beneficiaries of said Estate whom I legally represent and initially failed to mention. ,,[3 The (second) amended complaint was basically in narrative form and contained several specific allegations as to negligence leading to the death of the 82-year-old decedent. The complaint alleged that Defendant, as a nurse at Claremont Nursing and Rehabilitation Center, failed to act according to her duty to provide medical aid to the decedent after she became aware that he was in a "comatose condition.,,14 The complaint 9 Comp!. 10 Id. II See Am. Compi. Medical Negligence which resulted in a wrongful death situation, filed Nov. 16,2000 (hereinafter First Am. Compi.) [2 Def.'s Prelim. Objections, filed Dec. 4, 2000, paras. l-6. 13 Am. Compl. Medical Negligence and Wrongful Death, filed Dec. 6, 2000, at 1 (hereinafter Second Am. Compi.). [4 Second Am. Compi. at 1. 3 - "" " , ~ . - , ~ , ~'t:'ki '. indicated that the decedent remained in this condition for more than an honr before he was taken to a hospital, where he died soon after, apparently without regaining consciousness .IS The (second) amended complaint included claims for damages in the amount of $85,000 based on the "Pain-Suffering, Personal, and Financial losses due to the untimely death of [George G.] Stewart.,,16 It alleged that Plaintiff recently had signed an "Independent recording contract," for which she would perform songs composed by the decedent, and that the loss ofthis contract "was a significant financial loss to the value of the Estate.,,!7 On December 8, 2000, without leave of court or agreement of the parties, Plaintiff filed a (third) amended complaint, titled "Amended Complaint of Medical Negligence and Wrongful Death." It basically reiterated the allegations of the prior amended complaint; however, the caption was revised again to name as plaintiffs "Hilda B. Stewart-Executrix & Deanna K. Collins (Daughter)-Plaintiffs In Pro ,-Per for Estate of George G. Stewart;" The complaint stated that the plaintiffs were "[a]cting Jointly together As In Pro Per Plaintiffs," and that Plaintiff represented the interests "of myself and all the beneficiaries of said Estate whom I legally represent.,,18 On January II, 200l, Defendant filed preliminary objections to the (third) amended complaint. The objections included a motion to strike references to Hilda B. Stewart, executrix, on the ground that she was being added as a party plaintiff after tile applicable two-year statute of limitations period had runl9 and a "demurrer" to the underlying claims which was based upon the following specific contentions: Plaintiff lacks standing and capacity to bring suit against Defendant, Bathavic, for the death of George G. Stewart. 15 Jd. at 2-3. 16 Jd. at 4. 17Id. 18 Third Am. Compl. at 1. 19 See Def.'s Prelim. Objections, filed Jan. ll, 2001. 4 . "'- , ;.- "",,,~,,, ,'" H1L~ Plaintiff lacks standing and capacity to bring suit against Defendant, Bathavic, for medical negligence. Plaintiffs Complaint fails to conform to law or rule of court and includes scandalous and impertinent matter. Plaintiff's Complaint is legally insufficient and must be dismissed.2o In response to these preliminary objections, Plaintiff filed a (fourth) amended complaint, titled "Amended Complaint of Medical Negligence and Wrongful Death," in which the reference to Hilda B. Stewart as a plaintiff was deleted. The complaint named "Deanna K. Collins-Trustee Ad litem for the Estate of George G. Stewart" as the plaintiff and stated that Deanna K. Collins had been "appointed Trustee Ad litem for the Estate of George G. Stewart." It otherwise basically reiterated the allegations of the prior amended complaint. 21 Notwithstanding the latest amended pleading, the parties proceeded to oral argument on the earlier preliminary objections on February l4, 2001. About a month after the oral argument, Plaintiff filed a (fifth) amended complaint, without leave of court or agreement of the parties, and beyond the time for doing so of right in response to preliminary objections.22 The (fifth) amended complaint has been stricken by the court as untimely.23 In an opinion dated May l8, 2001, the court found that the record was insufficient to dispose of the preliminary objections, specifically regarding "the history, in terms of the personal representative, of the estate of George G. Stewart. . . [and] the financial relationship between the decedent and his daughter.,,24 For purposes of development of a record for disposition of Defendant's preliminary objections, the court issued a rule to show cause upon Plaintiff, in which Plaintiff was directed to file an answer to the 20Id. paras. 8-11. 21 See Fourth Am. Compi. 22 Am. CampI. (1) Medical Negligence (2) Wrongful Death, filed March 16, 2001 (hereinafter Fifth Am. Compi.). 23 Gp. and Order of Ct., dated May 18,2001, at 8. 24Id. at 5-6 (footnote omitted). 5 ,-,..' ~. ,,~'-"';. -, _i-:' preliminary objections and both parties were directed to complete depositions and submit briefs on the matter. 25 Plaintiff filed an answer and submitted a brief, but no depositions have been filed by either party.26 With respect to Plaintiffs status as personal representative of the decedent's estate, Plaintiffs answer averred that Hilda B. Stewart had "renunciated" her position as personal representative on November 7, 2000, and that, therefore, "during the filing of the Original Complaint and all other Complaints [the estate of George G. Stewart] was without a Personal Representative.'.27 Plaintiff averred that she had been appointed as personal representative for the estate of George G. Stewart on March 5, 200l, and that she had acted in "Good Faith" in filing the prior complaints.28 With respect to the financial relationship between the decedent and Plaintiff, the answer basically reiterated allegations in the prior complaints. Plaintiff averred that she and her father had been involved in a "business relationship," and that she recently had obtained an "Independent recording contract" to record songs composed by the decedent.29 The answer alleged that the "Estate lost financial gains due to incompletion of this musical project.,,30 25 Id. at 8. The court stated that the preliminary objections would be decided under Pa. R.C.P. 206.7. Id. 26 Plaintiff actually filed two answers to the preliminary objections. Plaintiff filed the first answer on May 29, 200l, but this answer was deemed insufficient as a response to the preliminary objections. Order of Ct., dated May 31, 2001. The court, however, permitted Plaintiff an opportunity to file an amended answer "in accordance with. . . the order of May 18,2001, on a timely basis." Id. On June 6, 200l, Plaintiff filed an amended answer. Pl.'s Answer to Order of Ct., filed June 6, 2001. All citations in this opinion to Plaintiffs answer to the preliminary objections refer to the amended answer. 27 Pl.'s Answer to Order ofCt., filed June 6, 200l, at 5. 28 Id. 29 Id. at 7, 9. 30 !d. 6 ~"~ L _ .~"~~ '1 'L <" '=' .' j, "',, ",,;. , ' "&i~< DISCUSSION Statement of Law Preliminary Objections. In reviewing a preliminary objection in the nature of a demurrer, which challenges the legal sufficiency of a complaint, the court must "must accept all material facts set forth in the complaint as well as all the inferences reasonably deducible therefrom as true." Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619,621 (1995). If a court orders the parties to take depositions for the purposes of development of a record on preliminary objections, and depositions are not conducted, all facts properly pleaded in the answer to the preliminary objections will be deemed admitted. Pa. RC.P. 206.7(c). A preliminary objection in the nature of a demurrer should be sustained only when, "on the facts averred, the law says with certainty that no recovery is possible." Powell, 539 Pa. at 489,653 A.2d at 621. Survival Action. The basic statutory provision respecting survival of actions appears at 42 Pa. C.S.A. S 8302, and provides as follows: All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants. Act of July 9, 1976, P.L. 586, No. 142, S 2,42 Pa. C.S.A. S 8302 (West 1998 & Supp. 2001). A survival action "merely continues in [the decedent's] personal representatives the right of action which accrued to the deceased. . . because of the tort." Tulewicz v. Southeastern Pa. Transp. Auth., 529 Pa. 588,597,606 A.2d 427, 43l (1992) (quoting Pezzulli v. D'Ambrosia, 344 Pa. 643,26 A.2d 659 (1942)). Only losses suffered by the decedent are recoverable in a survival action. ld. at 597, 606 A.2d at 431. Damages represent compensation for the decedent's pain and suffering from the time of injury until his or her death and for the decedent's loss of earning power, less personal maintenance expenses, until the end of his or her estimated working life-span. Kiser v. Schulte, 538 Pa. 219, 226, 648 A.2d 1,4 (1994). No recovery for pain and suffering of the decedent is possible if the decedent was unconscious from 7 the time of injury until death. Nye v. Pa. Dep't ofTransp., 33l Pa. Super. 209,214,480 A.2d 318,321 (1984). Wrongful Death Action. The Wrongful Death Act provides, in pertinent part, as follows: An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another. . . . . . . [T]he right of action .created by this section shall exist only for the benefit of the spouse, children or parents of the deceased . . . . The damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent. . . . Act of July 9, 1976, P.L. 586, No. 142, S 2, as amended, 42 Pa. C.SA SS 8301(a), (b) (West 1998 & Supp. 200l). Damages recovered under this statute "are not part of the , decedent's estate, but rather are compensation to individual members of the family for their loss." Tulewicz, 529 Pa. at 596, 606 A.2d at 431. The purpose of the Wrongful Death Act is "to compensate certain enumerated relatives of the deceased for the pecuniary loss occasioned to them through deprivation of the part of the eamings of the deceased which they would have received from him had he lived." Manning v. Capelli, 270 Pa. Super. 207, 211, 411 A.2d 252, 254 (1979); accord Hodge v. Loveland, 456 Pa. Super. 188, 193, 690 A.2d 243,246 (l997). Accordingly, in order to recover under the statute, plaintiffs must show that they suffered pecuniary loss resulting from the death of the decedent Hodge, 456 Pa. Super. at 193, 690 A.2d at 246. A recovery for pecuniary loss, as defined in this context, is dependent upon a showing that the decedent contributed support to the family member with "reasonable frequency," and that the family member had a reaisonable expectation of future support from the , decedent. Berry v. Titus, 346 Pa. Super. 376, 38l-82, 499 A.2d 661, 664 (l985) (quoting Manning, 270 Pa. Super. at 211,411 A.2d at 254). Applicaticm of Law to Facts Survival Action. In the court's view, Plaintiff has not alleged sufficient facts to permit recovery in a survival action. In a survival action, the personal representative of the estate of the decedent may recover damages to which the decedent would have been 8 . ,<, ,,~," ' ,,-<~', 'j entitled both for pain and suffering from the time of injury until death and for lost earning potential, less personal maintenance expenses, over the decedent's estimated life-span. Plaintiff Collins, however, seeks recovery for losses sustained by Plaintiff, including loss of consortium and of her "Independent recording contract.,,3] Plaintiff has not asserted a claim based upon a contention that the decedent experienced pain or suffering from the time of the negligent act until his death,32 that the decedent had any significant earning potential which was lost, or that this earning potential would have exceeded his personal maintenance costs. In short, Plaintiff has not alleged any pertinent losses sustained by the decedent, and, therefore, cannot recover damages in a survival action.33 Wrongful Death Action. In the court's view, Plaintiff has not alleged sufficient facts to permit recovery in a wrongful death action. To recover under the Wrongful Death Act, Plaintiff must show that she suffered pecuniary loss as a result of the death of the decedent. Plaintiff, however, has not averred any facts that suggest that the decedent contributed support to Plaintiff with "reasonable frequency," or that she was deprived of expected support because of his death. The facts, as alleged, suggest that Plaintiff and the decedent were involved in a "business relationship" and that she lost a recording contract with an independent producer due to the death of George G. Stewart.34 These facts do not rise to the level of the deprivation of expected contributions from the decedent as contemplated by the statute. The court, in the order dated May l8, 2000, found Plaintiffs complaint to be insufficient in terms of the financial relationship between Plaintiff and the decedent, and issued a rule upon Plaintiff with a view toward supplementation of the record in this area. 3] PI.'s Answer to Order of Ct., filed June 6, 200l, at 7,9. 32 In fact, the complaint suggests that decedent was comatose and unconscious from the time of the alleged negligent act until his death. Fourth Am. CampI. at 2-4. 33 Because of the disposition of the preliminary objections on other grounds, the court will not address Plaintiffs ability to amend the caption of the complaint to identify Plaintiff as personal representative of the estate of decedent following the expiration of the two-year statute of limitations period. 34 PI.'s Answer to Order ofCt., filed June 6, 2001, at 7,9. 9 '. ' "~ - -- ~ -, .' ""~ "i"" , Plaintiff's answer, however, merely repeated previous allegations. Because Plaintiff's answer failed to remedy the defects identified by the court, and, thus, failed to present a viable claim, the court must sustain Defendant's demurrer and dismiss the complaint. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this lSth day of August, 2001, after careful consideration of the Preliminary Objections of Defendant, Plaintiff's Answer, and the briefs and arguments in support thereof, and for the reasons stated in the accompanying opinion, Defendant's demurrer is sustained and Plaintiffs complaint is dismissed. Defendant's motion to strike references to Hilda B. Stewart is deemed moot. BY THE COURT, Isl J. Weslev Oler. Jr.. J. J. Wesley 0ler, Jr., J. Deanna K. Collins 46 Willow Street Highspire, P A l7034 Plaintiff, Pro Se Charles E. Wasilefski 293l North Front Street Harrisburg, PA l7110-1280 Attorney for Defendant 10 ~- ~ I" '" , , - .. ", ~~~~::", ,'~ -'~! SEP 11 2002 J.S22019/02 DEANNA K. COLLINS, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA vs. ROSEMARY DAILEY BATHAVIC, Appellee No. 1469 MDA 2001 Appeal from the Order entered August 15, 2001 In the Court of Common Pleas of Cumberland County Civil, No. 00-7949 Civil Term BEFORE: JOYCE, KELLY, and CAVANAUGH, JJ. MEMORANDUM: F fL E D SEP 1 0 2002 Appellant, Deanna Collins, appeals from the order of the Court of , Common Pleas of Cumberland County, which sustained Appellee's preliminary objections and dismissed Appellant's cause of action with prejudice. We affirm. The relevant facts and procedural history have been set forth in the trial court opinion as follows: The present action at law was commenced on November 9, 2000, by the filing of a document titled "Complaint of Medical Negligence which resulted in a wrongful death situation." The caption listed Deanna K. Collins as the Plaintiff. The complaint consisted of a one-page claim for $85,000.00 by [Appellant] as the daughter of George G. Stewart, due to unspecified negligence on the part of [Appellee] which resulted in the death of [Appellant's] father, a resident of Claremont Nursing and Rehabilitation Center.9 The complaint did not specify the nature of the losses for which damages were being sought. The complaint contained the observation that "the Estate of George G. Stewart is pursuing a Wrongful Death Lawsuit of its own."lO MlI'-'--~ ,-- -.i'"i..."J~ _ , ,.J"_ ~ . '- ,~ - ~, ""'~. J.S22019/02 9 Compl. 10 Id. On November 16, 2000, without leave of court or agreement of the parties, [Appellant] filed a (first) amended complaint. It replicated the original complaint, with the addition of a more formal notice to defendY On December 4, 2000, [Appellee] filed preliminary objections to the amended complaint, raising issues as to standing and capacity to sue, conformity to law or rule of court, inclusion of scandalous and impertinent matter, specificity, and legal sufficiency.12 11 See Am. Compl. Medical Negligence which resulted in a wrongful death situation, filed Nov. 16, 2000 (hereinafter First Am. Compl.) 12 [Appellee's] Prelim. Objections, filed Dec. 4, 2000, paras. 1-6. On December 6, 2000, in response to the preliminary objections and as permitted by Pennsylvania Rule of Civil Procedure 1028(c)(1), [Appellant] filed a (second) amended complaint, titled "Amended Complaint of Medical Negligence and Wrongful Death." It was filed in the name of "Deanna K. Collins-Plaintiff (Trustee ad litem for the Estate of George G. Stewart[)]," and purported to represent the interests of "myself and all the beneficiaries of said Estate whom I legally represent and initially failed to mention."13 13 Am. Compl. Medical Negligence and Wrongful Death, filed Dec. 6, 2000, at 1 (hereinafter Second Am. Compl.). The (second) amended comlPlaint was basically in narrative form and contained several specific allegations. as to negligence leading to the death of the 82-year-old decedent. The complaint alleged that [Appellee], as a nurse at Claremont Nursing and Rehabilitation Center, failed to act according to her duty to provide medical aid to the decedent after she became aware that he was in a "comatose condition.14 The complaint indicated that the - 21- ^ ,- c, . ,~, ~ . -. ~- -. --",,'.~ J.S22019/02 decedent remained in this condition for more than an hour before he was taken to a hospital, where he died soon after, apparently without regaining consciousness.1s 14 Second Am. Compl. at 1. 1S Id. at 2-3. The (second) amended complaint included claims for damages in the amount af $85,000 based on the "Pain- Suffering, Personal, and Financial losses due to the untimely death of [George G.] Stewart."16 It alleged that [Appellant] recently had si~ned an "Independent recording contract," for which she would perform songs composed by the decedent, and that the loss of this contract "was a significant financial loss to the value of the Estate."17 16 Id. at 4. 17 Id. On December 8, 2000, without leave of court or agreement of the parties, [Appellant] filed a (third) amended complaint, titled "Amended Complaint of Medical Negligence and Wrongful Death." It basically reiterated the allegations of the prior amended complaint; however, the caption was revised "gain to name as [Appellants] "Hilda B. Stewart-Executrix & Deanna K. Collins (Daughter)-[Appellants] Irh Pro Per for Estate of George G. Stewart." The complaint stated that the plaintiffs were "[a]cting Jointly together A~ In Pro Per Plaintiffs," and that [Appellant] represented the interests "of myself and all the beneficiaries of said Estate whom I legally represent.,,18 18 Third Am. Compl. at 1. On January 11, 2001, [Appellee] filed preliminary objections to the (third). amended complaint. The objections included a motiq>n to strike references to Hilda B. Stewart, executrix, on tthe ground that she was being added as a party plaintiff' after the applicable two-year statute of limitations period had run19 and a "demurrer" to the underlying claims whicrn was based upon the following specific contentions: - 31- , - '~(j ,,,' .~ ,., .' ;.,...;;,~ - ". " : 0-' co- J.S22019/02 [Appellant] lacks standing and capacity to bring suit against [Appellee], Bathavic, for the death of George G. Stewart. [Appellant] lacks standing and capacity to bring suit against ~Appellee], Bathavic, for medical negligence. [Appellant's] Complaint fails to conform to law or rule of court and includes scandalous and impertinent matter. [Appellant's] Complaint is legally insufficient and must be dismissed.2o 19 See [Appellee's] Prelim. Objections, filed Jan, 11, 2001. 20Id. paras. 8-11. In response to these preliminary objections, [Appellant] filed a (fourth) amended complaint, titled "Amended Complaint of Medical Negligence and Wrongful Death," in which the reference to Hilda B. Stewart as a plaintiff was deleted. The complaint named "Deanna K. Collins- Trustee Ad litem for the estate of George G. Stewart" as the [Appellant] and stated that Deanna K. Collins had been "appointed Trustee Ad litem for the Estate of George G. Stewart." It otherwise basically reiterated the allegations of the prior amended compl'aint.21 21 See Fourth Am. Compl. Notwithstanding the latest amended pleading, the parties proceeded to oral argument on the earlier preliminary objections on February 14, 2001. About a month after the oral argument, [Appellant] filed a (fifth) amended complaint, without leave of court or agreement of the parties, and beyond the time for doing so of right in response to preliminary objections,22 The (fifth) amended complaint has been stricken by the court as untimely.23 - 41- , -- '2~< , --<"~ ,-"~" .~ ."."~:"t;i , " J.522019/02 22 Am. Compl. (1) Medical Negligence (2) Wrongful Death, filed March 16, 2001 (hereinafter Fifth Am. Comp!.). 230p. and Order of Ct., dated May 18, 2001, at 8. In an opinion dated May 18, 2001, the court found that the record was insufficient to dispose of the preliminary objections, specifically regarding "the history, in terms of the personal representative, of the estate of George G. Stewart...[and] the financial relationship between the decedent and his daughter. ,,24 For purposes of development of a record for disposition of [Appellee's] preliminary objections, the court issued a rule to show cause upon [Appellant], in which [Appellant] was directed to file an answer to the preliminary objections and both parties were directed to complete depositions and submit briefs on the matter.25 { 24 rd. at 5-6 (footrwte omitted). 25 rd. at 8. The court stated that the preliminary objections would be decided under Pa.R.C.P. 206.7. rd. [Appellant] filed an answer and submitted a brief, but no depositions have been filed by either party.26 With respect to [Appellant's] status as personal representative of the decedent's estate, [Appellant's] answer averred that Hilda B. Stewart had "renunciated" her position as personal representative on November 7, 2000, and that, therefore, "during the filing of the Original Complaint and all other Complaints [the estate of George G. Stewart] was without a Personal Representative.27 [Appellant] averred that she had been appointed as personal representative for the estate of George G. Stewart on March 5, 2001, and that she had acted in "Good Faith" in filing the prior complaints.28 26 [Appellant] actually filed two answers to the preliminary objections. [Appellant] filed the first answer on May 29, 2001, but this answer was deemed insufficient as a response to the preliminary objections. Order of Ct., dated May 31, 2001. The - 5 ~ ."" -~ , , L "'" -.--l'"" ,. 'd';,:i J.S22019/02 court, however, permitted [Appellant] an opportunity to file an amended answer "in accordance with ... the order of May 18, 2001, on a timely basis." Id. On June 6, 2001, [Appellant] filed an amended answer. PI.'s Answer to Order of Ct., filed June 6, 2001. All citations in this opinion to [Appellant's] answer to the preliminary objections refer to the amended answer. 27 [Appellant]'s Answer to Order of Ct., filed June 6, 2001, at 5. 28 Id. With respect to the financial relationship between the decedent and [AppellantL the answer basically reiterated allegations in the prior complaints. [Appellant] averred that she and her father had been involved in a "business relationship/, and ,that she recently had obtained an "Independent recording contract" to record songs composed by the decedent.29 The answer alleged that the "Estate lost financial gains due to incompletion of this musical project."30 29 Id. at 7, 9. 30 Id. (Trial Court Opinion, filed August 15, 2001, at 2-6). The court sustained Appellee's demurrer, and dismissed Appellant's complaint. Appellant timely filed an appeal from this order. On appeal, Appellant presents the following "Questions Involved" for our review: THE RIGHT OF THIS [APPELLANT] TO AMEND COMPLAINT AFTER STATUTES OF LIMITATIONS TO BE THE PROPER APPOINTED EXECUTOR/TRUSTEE AD LITEM OF THE ESTATE AND MAINTAIN ALL CLAIMS OF COMPLAINT FOR A LAWSUIT. - 6i- """'...., ~ '. 1- ~, -- ,"" , ;..;.,--,~;:~ , J.S22019/02 THE RIGHT OF [APPELLANT] TO MAINTAIN CLAIMS OF: 1. SURVIVAL ACTION AND 2. WRONGFUL DEATH ACTION CONSIDERING CURRENT U.S. COPYRIGHT LAWS. THE QUESTION OF WHETHER A [TRIAL] COURT CAN PROPERLY ASCERTAIN ALL MEDICAL AND OTHER FACTS WITHOUT EXPERT TESTIMONY AND EVIDENCE TO SUBSTANTIATE ANY AND ALL [OF APPELLANT'S] CLAIMS WITHOUT ANY DOUBTS AND PREVENTING THIS [APPELLANT] PROPER DUE PROCESS OF LAW BY THE CONTINUANCE OF A JUST TRIAL BY JURY. THE ULTIMATE QUESTIONS...SHOULD [APPELLANT'S] AMENDING BE PERMITTED [AND] SHOULD THIS [APPELLANT'S] CASE [HAVE] BEEN DISMISSED BY [TRIAL] COURT. (Appellant's Brief at 4). As a prefatory matter, although this Court is willing to construe liberally materials filed by a pro se litigant, pro se status generally confers no special benefit upon an appellant. Strawn v. Strawn, 664 A.2d 129 (Pa.Super. 1995). In other words, a pro se litigant is granted the same rights, privileges, and consideration as those accorded an appellant represented by counsel, but is not entitled to any particular advantage simply because the appellant lacks legal training. Cole v. Czegan, 722 A.2d 686, 687 (Pa.Super. 1998) (citing O'Neill v. Checker Motors Corp., 567 A.2d 680, 682 (Pa.Super. 1989)). Accordingly, a pro se litigant must comply with the procedural rules set forth in the Pennsylvania Rules of Court. Jones v. Rudenstein, 585 A.2d 520, 522 (Pa.Super. 1991), appeal denied, 529 Pa. 634, 600 A.2d 954 (1991). "[A]ppellant has a duty to file a comprehensible brief and to raise and develop properly [her] appellate - 7 i- " I ;~-~ .~" t - ,~ '-' ~~~ ''', ,"'" ~ ',6, J.S22019/02 issues." Cole, supra. This Court may quash or dismiss an appeal if an appellant fails to conform to the requirements set forth in the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101; Lairdv. Ely & Bernard, 528 A.2d 1379 (Pa.Super. 1987), appeal denied, 520 Pa. 576, 549 A.2d 136 (1988). The applicable rules of appellate procedure mandate that an appellant's brief shall consist of the following matters, separately and distinctly entitled and in the following order; (1) Statement of jurisdiction. (2) Statement,of both the scope and review and the standard of review. (3) Order or other determination in question. (4) Statement of the questions involved. (5) Statement of the case. (6) Summary of the argument. (7) Argument for the appellant. (8) A short conclusion stating the precise relief sought. (9) The opinions and pleadings specified in Subdivisions (b) and (c) of this rule. Pa.R.A.P. 2111. Further, Briefs and reproduced records shall conform in all material respects with the requirements of these rules as nearly as the circumstances of the particular case will admit, otherwise they may be suppressed, and, if the defects are in the brief or reproduced record of the appellant and are - 81- > ~ - , .~-I- ~" ", ,,"' "'~;i; 3.522019/02 substantial, the appeal or other matter may be quashed or dismissed. Pa.R.A.P. 2101 (emphasis added). See also Pa.R.A.P. 2114-2119 '(addressing specific requirements of each subsection of brief on appeal). For example, The argument [section] shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part-in distinctive type or in type distinctively displayed-the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent. Pa.R.A.P. 2119(a) (emphasis added). In the instant case" Appellant has elected to proceed pro se. Generally, Appellant's brief lacks legal and factual substance, making our ability to review her issues difficult, if not impossible. Additionally, Appellant's statement of the case, summary of argument, and argument sections are rambling collections of assertions and opinions, in contravention of Rule 2117. See Pa.R.A.P. 2117 (mandating that all argument be excluded from statement of case section). Moreover, Appellant's argument section is a confusing album of conclusions of law, punctuated by phrases in all capital letters, underlined sections, and phrases penned in stream of consciousness, unsupported by any legal authority. See Pa.R.A.P. 2119(a) (requiring discussion of contentions on appeal plus legal argument and citations supporting those contentions). The argument itself is a string of general statements and references to Appellant's version of the facts. This - 91- "" ,,, ,'- , ~ ' ',- ~, ,'"'~ 'J"l~~'1 J.S22019/02 Court will not act as counsel for Appellant and formulate her arguments for her. Consequently, in accordance with Rule 2101 and Laird, supra, we dismiss all but one of Appellant's issues raised on appeal. In all fairness to Appellant, we will address the one issue that we were able to glean from her brief; i.e., whether the trial court erred in sustaining Appellee's preliminary objections in the nature of a demurrer and dismissing her claims with prejudice. The relevant scope and standard of review of orders sustaining preliminary objections in the nature of a demurrer are as follows: Our review of a trial court's sustaining of preliminary objections in the nature of a demurrer is plenary. Such preliminary objections should be sustained only if, assuming the averments of the complaint to be true, the plaintiff has failed to assert a legally cognizable cause of action. We will reverse a trial court's decision to sustain preliminary objections only if the trial court has committed an error of law or an abuse of discretion. Kramer v. Dunn, 749 A.2d 984, 990 (Pa.Super. 2000) (internal citations omitted). Where the complaint fails to set forth a valid cause of action, a preliminary objection in the nature of a demurrer is properly sustained. McArdle v. Tronetti, 627 A.2d 1219, 1221 (Pa.Super. 1993), appeal denied, 537 Pa. 622, 641 A.2d 587 (1994). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Id. In response to this issue, the trial court stated as follows: - 1Q - ~, -'01 """'- " " i',. .;.;;.;; ~'" .... Jij,jiS:,;' J.522019/02 Survival Action. The basic statutory provision respecting survival of actions appears at 42 Pa.C.5.A. 9 8302, and provides as follows: All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants. Act of July 9, 1976, P.L. 586, No. 142, 9 2, 42 Pa.C.5.A. 9 8302 (West 1998 & 5upp. 2001). A survival action "merely continues in [the decedent's] personal representatives the right of action which accrued to the deceased...because of the tort." Tulewicz v. Southeastern Pennnsylvania Transp. Authority, 529 Pa. 588, 597, 606 A.2d 427, 431 (1992) (quoting Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942)). Only losses suffereq by the decedent are recoverable in a survival action. Id.,at 597, 606 A.2d at 431. Damages represent compensation for the decedent's pain and suffering from the time of injury until his or her death and for the decedent's loss of earning power, less personal maintenance expenses, until the end of his or her estimated working life-span. Kiser v. Schulte, 538 Pa. 219, 226, 648 A.2d 1, 4 (1994). No recovery for pain and suffering of the decedent is possible if the decedent was unconscious from the time of injury until death. Nye v. Com., Dep't of Transp., 480 A.2d 318, 321 ([Pa.5uper.] 1984). Wrongful Death Action. The Wrongful Death Act provides, in pertinent part, as follows: An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.... ...[T]he right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased.... The damages recovered shall be distributed to the beneficiaries in the - u- -- '''''' .,' ,",' f . ~ -0/., J.S22019/02 proportion they would take the personal estate of the decedent.... Act of July 9, 1976, P.L 586, No. 142, 9 2, as amended, 42 Pa.C.S.A. 99 8301(a), (b) (West 1998 & Supp. 2001). Damages recovered under this statute "are not part of the decedent's estate, but rather are compensation to individual members of the family for this loss." Tulewicz[, supra] 529 Pa. at 596, 606 A.2d at 431. The purpose of the Wrongful Death Act is "to compensate certain enumerated relatives of the deceased for the pecuniary loss occasioned to them through deprivation of the part of the earnings of the deceased which they would have received from him had he lived." Manning v. Capelli, 411 A.2d 252, 254 ([Pa.Super.] 1979); accord Hodge v. Loveland, 690 A.2d 243, 246 ([Pa.Super.] 1997)[, appeal denied, 555 Pa. 701, 723 A.2d 672 (1998)]. Accordingly, in order to recover under the statute, plaintiffs must show that they suffered pecuniary loss resulting from the death of the decedent. Hodge[, supra] at 246. A recovery for pecuniary loss, as defined in this context, is dependent upon a showing that the decedent contributed support to the family member with "reasonable frequency," and that the family member had a reasonable expectation of future support from the decedent. Berry v. Titus, 499 A.2d 661, 664 ([Pa.Super.] 1985)[, appeal dismissed as improvidently granted, 517 Pa. 58, 534 A.2d 756 (1987)] (quoting Manning[, supra] at 254). Application of Law to Facts Survival Action. In the court's view, [Appellant] has not alleged sufficient facts to .permit recovery in a survival action. In a survival action, the personal representative of the estate of the decedent may recover damages to which the decedent would have been entitled both for pain and suffering from the time of injury until death and for lost earning potential, less personal maintenance expenses, over the decedent's estimated life-span. [Appellant] Collins, however, seeks re,covery for losses sustained by [Appellant], including loss of consortium and of her "Independent recording COIntract. ,,31 [Appellant] has not - 12 - "', .,~u'''~~ "-'>, l~i/' "' : i ,,' ~ ' . .L- 4l, J.522019/02 asserted a claim based upon a contention that the decedent experienced pain or suffering from the time of the negligent act until his death,32 that the decedent had any significant earning potential which was lost, or that his earning potential would have exceeded his personal maintenance costs. In short, [Appellant] has not alleged any pertinent losses sustained by the decedent, and, therefore, cannot recover damages in a survival action.33 31 [Appellant]'s Answer to Order of Ct., filed June 6, 2001, at 7, 9, 32 In fact, the complaint suggests that decedent was comatose and unconscious from the time of the alleged negligent act until his death. Fourth Am. Compl. at 2-4. 33 Because of the disposition of the preliminary objections on Qther grounds, the court will not address [Appellant's] ability to amend the caption of the complaint to identify [Appellant] as personal representative of the estate of decedent following the expiration of the two-year statute of limitations period. Wrongful Death Action. In the court's view, [Appellant] has not alleged sufficient facts to permit recovery in a wrongful death action. To recover under the Wrongful Death Act, [Appellant] must show that she suffered pecuniary loss as a result of the death of decedent. [Appellant], however, ha$ not averred any facts that suggest that the decedent contributed support to [Appellant] with "reasonable frequency," or that she was deprived of expected support because of his death. The facts, as alleged, suggest that [Appellant] and the decedent were involved in a "business relationship" and that she lost a recording contract with an independent producer due to the death of George G. 5tewart.34 These facts do not rise to the lev~1 of the deprivation of expected contributions from the decedent as contemplated by the statute. 34 [Appellant]'s Answer to Order of Ct., filed June 6, 2001, at 7,9. - 13 - -; '-, ~""~'I~',! , , .~ , , ,-", '--,'~"" --'"i;, f "'.. .. J.522019/02 The court, in the order dated May 18, 2000, found [Appellant's] complaint to be insufficient in terms of the financial relationship between [Appellant) and the decedent, and issued a rule upon [Appellant) with a view toward supplementation of the record in this area. [Appellant's] answer, however, merely repeated previous allegations. Because [Appellant's] answer failed to remedy the defects identified by the court, and, thus, failed to present a viable claim, the court must sustain [Appellee's) demurrer and dismiss the complaint. (Trial Court Opinion at 7-9). After our review of the certified record, we must agree with the trial court's reasoning. Even if all of the facts Appellant has alleged are true, her facts are insufficient to state a cause of action for either a survival or . wrongful death action. Moreover, Appellant's failure to adhere to the trial court's order to provide more information about her financial relationship with her father leads us to the inevitable conclusion that Appellant had no additional information to provide and her claims were speculative at best. The trial court gave Appellant substantial leeway to demonstrate why her action should not be dismissed. Thus, we see no error of law or abuse of discretion in the court's decision to sustain Appellee's preliminary objections, as Appellant has failed to assert a legally cognizable cause of action. See Kramer, supra; McArdle, supra. Accordingly, we affirm. Order affirmed. - 14- , ., ~ ,-. J.522019/02 Date: . '~ -lli- . ',~ , < ~ ~" " ~ --<- < "<"','""-",, - __,' . ",,' ,">__"'-':.' ~~,,_" ,--; ,~;SO";;','"," ' - ",I DEANNA K. COLLINS, TRUSTEE AD LITEM FOR THE ESTATE OF GEORGE G. STEWART, Plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. : CIVIL ACTION - LAW JEAN WADE, Defendant : NO. Ol-1510 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this l7th day of August, 2004, after careful consideration of the Defendant's motion for judgment on the pleadings, and for the reasons stated in the accompanying opinion, Defendant's motion for judgment on the pleadings is granted and Plaintiffs complaint is dismissed. BY THE COURT, vi< 0/1 r., J. Wesley Ole tfi'Seanna K. Collins 46 Willow Street Highspire, P A l7034 Plaintiff, pro Se > vCharles E. Wasilefski, Esquire 293l North Front Street Harrisburg, P A 1711 0-1280 Attorney for Defendant ::';:I~-jgj~i'm~~M~~~i!l!l*Mm~tii~:j~lliMl!~lillf'fi'51ia';iIiJ;j~~'Ml~~IiM"- ,'" ",-" " \:/;N\.'/\:<L~~:JN }\li\l:iC(" , ' 0"" .(' UJ L (, r... 'U nu ~- , UtI' ~'..h< <3d -'(~'rJ;"'18 <'"I'd hn~7 .;; I':> {,J'J{, ,~",.,~.,,~!r,!l!,F\}..:d' ::Lll :10 }../~,\~\l;,\l.Un.1_\,J~ ~"..... - .- j~)ijjO-G:r\\j J <" .. ,. -~, "'" '~>', -,",,,~~ .. ", .~. .'. I ~,' ,,- -, - ,,' ~" -'"~ ~"'~"'" ,'",'N~~'~ "';c,'-,j.;;",,~. ',o''''','-'_"J'~'''"",,_,,~.i.'~' oj '''',,,,,,.n,''.,,,,~~ DEANNA K. COLLINS, TRUSTEE AD LITEM FOR THE ESTATE OF GEORGE G. STEWART, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW JEAN WADE, Defendant NO. Ol-15l0 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE OLER and GUIDO, JJ. OPINION and ORDER OF COURT Oler, J., August l7, 2004. This case was commenced by Plaintiff, referring to herself as "trustee ad litem for the Estate of George G. Stewart," by filing a document on March 16, 2001, entitled "Complaint of Medical Negligence."] In fact, Plaintiff is the administratrix of the estate, having succeeded the decedent's spouse as personal representative on March 5, 2001.2 Without leave of court, and in the absence of an agreement between the parties,3 Plaintiff filed a similarly titled amended complaint on April 9, 2001.4 1 See Plaintiffs Original Complaint, entitled "Complaint of Medical Negligence," filed March 16, 200 I. 2 See In Re: Estate of George G, Stewart, Orphans' Court Division No. 21-99-504. A "trustee ad litem" is defmed by Black's Law Dictionary, 7ili ed" as a trustee appointed by the court; this designation is inapposite to the Plaintiff. Plaintiff was granted letters of administration d.b.n.c.t.a. (de bonis non cum testamento annexo) by the Cumberland County Register of Wills on March 5, 200 I, after the executrix of the estate, Hilda Stewart, renounced her position. 3 See Pa. R.C.P. 1033. 4 See Plaintiff's Amended Complaint, entitled "Amended Complaint of Medical Negligence," filed April 9, 2001 [hereinafter Amended Complaint at pg.--"I. I ,"-~ ~ '"'" ,.', ~C ',", H'" - .' ~' ',.' 0 '-"'., '~"'~:'~",-.'""oiJ'~," "~,C',::.;'id;;:~' _:;..,_+, I Although Plaintiffs amended complaint consisted largely of conclusions of law, and a rambling narrative, it purported to be a wrongful death action.5 On April 30, 200l, Defendant filed an answer with new matter to the amended complaint. 6 On May 18, 200l, Plaintiff filed a document entitled "Plaintiffs Response to Defendant's Answer to This Plaintiffs Complaint," which seems to have been intended to respond to Defendant's answer, and to reply to Defendant's new matter.? The fifteen paragraphs appearing under the heading "New Matter," however, did not directly correlate with the sixteen paragraphs of Defendant's new matter. 8 On November 4, 2003, Defendant filed a motion for judgment on the pleadings,9 to which no response was filed by Plaintiff. The motion contended that Plaintiff failed to state a claim upon which relief could be granted, and that the statute of limitations for a wrongful death action had run prior to the filing of the original complaint.lO On May 18, 2004, Defendant filed a preacipe to list the matter for argument.I1 On June 9, 2004, argument was held on Defendant's 5 Amended Complaint at pgs. 1,3. Plaintiffs Amended Complaint contains the following language: "I, Deanna K. Collins. . . charge [Defendant] with the following allegations of Medical Negligence that contributed to the wrongful death situation for [Decedent]. . . ." Amended Complaint at pg. I (emphasis added). The ad damnum clause reads as follows: "Therefore, this [sic] ESTATE OF GEORGE G. STEWART PRAYS FOR A JUDGMENT IN THE AMOUNT OF: $125,000.[00] Against [Defendant] . . . for her [actions] . . . which we, the family, alleges [sic] contributed to the Wrongful Death situation for [Decedent]... ." Amended Complaint at pg. 3 (emphasis added). 6 See Answer with New Matter of Defendant, Jean Wade, to Plaintiffs Complaint, filed April 30, 2001 [hereinafter Defendant's Answer at para. ---' or Defendant's New Matter at para.~. 7 See generally Plaintiffs Response to Defendant's Answer to This Plaintiffs Complaint, filed May 18,2001. 8 Compare Plaintiff s Response to Defendant's Answer to This Plaintiff s Complaint at para, l- IS, filed on May 18,2001, with Defendant's New Matter at para. 6-21, filed April 30, 2001. 9 See Motion of Defendant, Jean Wade, for Judgment on the Pleadings, filed November 4,2003. 10 See Motion of Defendant, Jean Wade, for Judgment on the Pleadings. II See Praecipe for Listing Case for Argument, filed May 18, 2004. 2 ,,~ ,,"","'''" ~"' , , ""0. ,~ ;'c,..." " ~,,', i ,~~, ,~ '"',~ " ,(, " " " .. :<;,> ,,< ~C- motion.12 Plaintiff did not file a brief with the argument court, nor did she appear before the court for argument.13 STATEMENT OF FACTS In ruling on a motion for judgment on the pleadings, the court must treat all well-pleaded allegations of the party opposing the motion as true and draw all reasonable inferences favorable to that party. Necho Coal Co, v. Denise Coal Co" 387 Pa. 567, 568, l28 A.2d 77l, 772 (1957). Averments requiring a responsive pleading by the nonmoving party, however, which are either not responded to or not adequately addressed, are also to be credited. See, e.g., Pisiechko v. Diaddorio, 230 Pa. Super. 295, 30l, 326 A.2d 608, 6ll (l974). Pennsylvania Rule of Civil Procedure 1 0 17 defines "pleadings" to include "a complaint, an answer thereto, [and] a reply if the answer contains new matter or a counterclaim. . .." Pa. R.C.P. lOl7. If Plaintiffs well-pleaded allegations are credited, and if averments of Defendant's new matter to which a proper response has not been made are also credited, the facts may be stated as follows: Defendant, Jean Wade, was employed at the Claremont Nursing and Rehabilitation Center14 as a nurse supervisor on November 7, 1998Y Plaintiffs decedent, George G. Stewart, had been admitted to the facility on November 2, 1998.16 At the time of Mr. Stewart's admission, he was eighty-two years of age, 12 A motion for continuance of the argument filed by Plaintiff on June 4, 2004, was denied by the court on June 8, 2004. Order of Court, June 8, 2004. 13 With respect to the rules and procedures of the Argument Court of the Cumberland County Court of Common Pleas, a party seeking an order from the court must file two copies of a brief with the court administrator, as well as a copy with opposing counselor an unrepresented party, twelve days before the date set for argument, which contains a statement of facts and a discussion of the issue(s) with reference to relevant authority. See Cumberland County Rule of Court 210-6. A responding party must furnish a brief in a similar fashion five days prior to the date set for argument. Id. 14 Amended Complaint at pp. 1,3. 15 See Amended Complaint at pp. 1-2. 16 Defendant's New Matter at para. 6. 3 ~~ ,=- ',W ~' -'.,'., ,'.,"", -, _',k,'" ". __, , ,--,.;,^, 1i weighed approximately 95 pounds and suffered from "mild emphysema.,,17 Plaintiff was Mr. Stewart's daughter.18 At approximately 5:30 p.m.19 on the evening of November 7, 1998, the nursing staff noticed that Mr. Stewart's condition had begun to change.20 Mr. Stewart required a nurse's assistance in order to dine that evening,21 which was unusual, and by approximately 7:45 p.m. he indicated to nursing personnel that he wished to retire early.22 After helping Mr. Stewart to bed, the staff checked his vital signs, and, based upon the information gathered thereby, called a physician named John Schiro.23 At approximately 8:10 p.m., Dr. Schiro issued a verbal directive to Defendant to notifY family members of Mr. Stewart's declining health.24 One of the issues in dispute is whether Defendant, in fact, complied with this directive in a timely fashion.25 After realizing that the telephone number of record for Mr. Stewart's spouse was incorrect, Defendant made contact with Plaintiff, the only other contact person listed in the facility's records,z6 at approximately 8:25 p.m,z7 During the ensuing conversation, Plaintiff provided Defendant with Mrs. Stewart's 17 Plaintiff's Response to Defendant's Answer to This Plaintiff's Complaint at para. 8; Defendant' s New Matter at para. II. 18 Amended Complaint at pg. I. 19 Defendant's New Matter at para, 13. 20 Amended Complaint at pp. 1-2, 21 Defendant's New Matter at para. 13, 22 Defendant's New Matter at para. 13, 23 Defendant's New Matter at para. 14; see also Plaintiff s Response to Defendant's Answer to This Plaintiff's Complaint at para. 2. 24 Amended Complaint at pg. I. 25 Compare Amended Complaint at pg. I, with Defendant's Answer at para.!. 26 Plaintiff's Response to Defendant's Answer to This Plaintiff s Complaint at para. 2. 27 Amended Complaint at para. 2; see Plaintiff's Response to Defendant's Answer to This Plaintiff's Complaint at para. 13. 4 J-:; '" , ", t' , ' ; ,q"~ " .- ~"""", ""~oL.;~"';'-';, ',~~l:t> 'i '_", ,',,< ,~,'"."it~" ,~' ',-;'"~,;;",c;"/"'" -" ,C correct telephone number.28 Mrs. Stewart was contacted by the staff of Claremont sometime later in the evening when no one from Mr. Stewart's family had called back or arrived at the facility. 29 Throughout the evening, Mr. Stewart's condition continued to deteriorate as evidenced by falling blood pressure and periods of unconsciousness. 30 During this period, according to Plaintiff, Defendant did too little with regard to the care provided to Mr. Stewart.31 At some point in the evening, staff again attempted to, and did, in fact, contact Mrs. Stewart.32 Once informed of the events that had transpired, Mrs. Stewart indicated her desire to have all further treatment provided at the Carlisle Hospita1.33 Mrs. Stewart's request was promptly honored, and Dr. Schiro ordered Mr. Stewart's transfer to the Carlisle Hospita1.34 Plaintiff alleges that Mr. Stewart died as a result of Defendant's failure to act in an appropriate manner-specifically, to contact Mrs. Stewart immediately, so as to allow her the opportunity to request that her spouse be transferred to the Carlisle Hospital more expeditiously.35 Mr. Stewart was eventually diagnosed with strept- pneumonia.36 According to Plaintiff, the Claremont facility was subsequently cited by the Pennsylvania Department of Health for "NON-COMPLIANCE to perform adequate, safe, [and] timely Emergency Procedures for Mr. Stewart during the time of his declining health from Nov. 7, 1998[,] thru the early AM 28 Plaintiff's Response to Defendant's Answer to This Plaintiffs Complaint at para. 13; Defendant's New Matter at para. 15; see Defendant's New Matter at para. 16. 29 Defendant's New Matter at para. 16. 30 Amended Complaint at pp. 1-2. 31 Plaintiffs Response to Defendant's Answer to This Plaintiffs Complaint at para. 13; Amended Complaint at pg. 2. 32 Defendant's New Matter at para. 16. 33 Defendant's New Matter at para. 16. 34 Defendant' s New Matter at para. 17. 35 Plaintiff's Response to Defendant's Answer to This Plaintiff s Complaint at para. 15. 36 Plaintiff s Response to Defendant's Answer to This Plaintiff s Complaint at para. 14. 5 '" ~ ,--, "-' " ,."",,-,,'". ~-, "-",-',,,^ , .',," '''>''"~.''''';_L'';' "r ;",',>'),s, ,~.."" hours of Nov. 8, 1998.,,37 The date of Mr. Stewart's death was November 9 , 1998.38 Although the events giving nse to the instant action took place in November, 1998, Plaintiff initiated the litigation on March 16, 2001,39 approximately two years and four months after the events complained of occurred.40 Plaintiff alleges that she was without actual knowledge of the Defendant's purported negligence until she was contacted on March 11, 200l, at approximately 6:30 p.m., by an unnamed "third party inforrnant.,,41 Plaintiff maintains, therefore, that March 11, 200l, is the date of discovery and should begin the running of the statute oflimitations.42 DISCUSSION Statement of Law Judgment on the Pleadings. A motion for judgment on the pleadings is provided for in the Pennsylvania Rules of Civil Procedure. See Pa. R.C.P. l034. A case can be decided and a judgment on the pleadings entered "only. . . where no material facts remain in dispute." Williams by and through Williams v. Lewis, 319 Pa. Super. 552, 555, 466 A.2d 682, 683 (1983) (citing Pennsylvania Ass'n of State Mental Hosp. Physicians, Inc. v. State Employees' Ret. Bd., 484 Pa. 3l3, 320 n.ll, 399 A.2d 93, 96 n.ll (l979)). Additionally, "[0 ]nly where the moving party's right to prevail is so clear that a trial would be a fruitless exercise should a judgment on the pleadings be entered." Id. (citing Nevling v. Natoli, 290 Pa. Super. l74, 177,434 A.2d 187, l88 (l98l)). 37 Plaintiff's Response to Defendant's Answer to This Plaintiffs Complaint at para. II. 38 See In Re: Estate of George G. Stewart, Orphans' Court Division No. 21-99-504, Pet. for Probate and Grant of Letters, filed Mar. 1,2001. 39 Plaintiff's Original Complaint, filed Marcil 16, 200 I, 40 See Amended Complaint at pp. 1-2, 41 Plaintiff's Response to Defendant's Answer to This Plaintiffs Complaint at para. 1. 42 Plaintiff s Response to Defendant's Answer to This Plaintiff s Complaint at para. I. 6 ,'" j" """,,,.--> -- ,"~',",",'" ,~, --, .. -j" -~ '~'A ' ' c_ O,"'~ ;",'- '"i Pro Se Status. Pro se status does not, in and of itself, confer some special benefit upon the litigant who chooses to proceed in such a manner. Strawn v. Strawn, 444 Pa. Super. 390, 396, 664 A.2d 129, 132 (1995). Stated otherwise, a litigant who chooses, for whatever reason, to represent himself or herself is not entitled to any particular advantage based upon his or her lack of legal training. Cole v. Czegan, 722 A.2d 686, 687 (Pa. Super 1998). Indeed, the Pennsylvania Supreme Court has stated that "any layperson choosing to represent [himself or herself] in a legal proceeding must, to some reasonable extent, assume the risk that [his or her] lack of expertise and legal training will prove [his or her] undoing." Vann v. Commonwealth, Unemployment Compo Bd. of Review, 508 Pa. l39, l48, 494 A.2d 108l, 1086 (1985) (quoting Groch v. Commonwealth, Unemployment Comp, Bd. of Review, 8l Pa. Commw. 26, 30, 472 A.2d 286, 288 (l984)). Wrongful Death Action. The Wrongful Death Act provides, in pertinent part, as follows: (a) General Rule.-An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another. . . . (b) Beneficiaries.-[T]he right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased . . .. The damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy Act of July 9, 1976, P.L. 586, 112, as amended, 42 Pa. C.S.A. 11830l(a), (b). Damages recovered under this statute "are not part of the decedent's estate, but rather are compensation to individual members of the family for their loss." Tulewicz v. Southeastern Pennsylvania Transp. Auth., 529 Pa. 588, 596, 606 A.2d 427, 43l (1992). 7 L,. , '.1 "'-,,,". ,"',,~ '",je,",' - , ~= C,,,,'. ". -0 . ,,' ~'" The purpose of the Wrongful Death Act is to "compensate certain enumerated relatives of the deceased for the pecuniary loss occasioned to them through deprivation of the part of the earnings of the deceased which they would have received from him had he lived." Manning v. Capelli, 270 Pa. Super. 207, 211,411 A.2d 252, 254 (1979); accord Hodge v. Loveland, 456 Pa. Super. l88, 193, 690 A.2d 243, 245-46 (l997). Accordingly, in order to recover under the statute, a plaintiff must show that a member of one of the enumerated classes suffered pecuniary loss resulting from the death of the decedent. Hodge, 456 Pa. Super. at 193, 690 A.2d at 246. A recovery for pecuniary loss, as defmed in this context, is dependent upon a showing that the decedent contributed support to the family member with "reasonable frequency," and that the family member had a reasonable expectation of future support from the decedent. Berry v. Titus, 346 Pa. Super. 376, 38l-82, 499 A.2d 66l, 664 (1985) (quoting Manning, 270 Pa. Super at 2ll, 4ll A.2d at 254). Statute of Limitations. With respect to the limitations period applicable to the filing of a wrongful death action, the Pennsylvania Legislature has provided: The following actions and proceedings must be commenced within two years: * * * * (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another. . . . Act of July 9, 1976, P.L. 586, !} 2, as amended, 42 Pa. C.S.A. !}5524. Generally, "a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period." Bradley v, Ragheb, 429 Pa. Super. 616, 620, 633 A.2d 192, 194 (l993) (quoting Pocono Int'l Raceway, Inc. v, Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983)). Therefore, it has been said that "[t]he statutory period begins to run 'as soon as the right to institute and maintain 8 l' ~~ ,~ - - -- ~ ":0',. '" -',j ," ;"",",,'" -, ~ .";~:,,',,',,, "~ "", " ,,' . ". ,,'';'>.'' ,"-' " :.' ",,',! a suit arises; lack of knowledge, mistake or misunderstanding do[ es] not toll the running of the statute. . ..''' Bradley, 429 Pa. Super. at 620, 633 A.2d at 194 (quoting Pocono Int'l Raceway, Inc" 503 Pa. at 84, 468 A.2d at 47l); see also A. McD. v. Rosen, 423 Pa. Super. 304, 307, 62l A.2d l28, 130 (l993). "In most cases, the statute of limitations begins to run on the date the injury is sustained. Once the prescribed statutory period has expired, a plaintiff is thereafter barred from commencing suit." Bradley, 429 Pa. Super. at 620,633 A.2d at 194. In some limited circumstances, however, a plaintiff will be unable to determine whether a cause of action exists until some time after a causative event has occurred. In an appropriate case, the Discovery Rule will apply with respect to the statute of limitations. The Pennsylvania Superior Court has stated the following with respect to the Discovery Rule: The discovery rule provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed period, the period of limitation does not begin to run until discovery of the injury is reasonably possible. Under the discovery rule, the limitations period will be tolled until the "plaintiff knows, or in the exercise of reasonable diligence should have known, (l) that he has been injured, and (2) that his injury has been caused by another's conduct." When presented with an assertion of applicability of the discovery rule, a court must, before it applies the exception, "address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action." The plaintiffs conduct is to be evaluated in terms of what she should have known at a particular time by following a course of reasonable diligence. "If a party has the means of discovery within his [or her] power but neglects to use them, his [or her] claim will still be barred." Bradley, 429 Pa. Super. at 62l, 633 A.2d at 194-95 (citations omitted). 9 ~-- - "'0" ,'''' "',';; " ,~ '--' ;',., '","- i.' ,'C{,~~.i ,,,', ,-" , ;, '" ',",' ,J -~-.o_ ,,''''' .",'" .~< ,,' "'lIl~L-c Application of Law to Facts In the court's view, Plaintiff has failed to allege sufficient facts to permit recovery for wrongful death. There are no allegations in the pleadings reflecting any pecuniary loss occasioned to Plaintiff, or any other qualified claimant under the Wrongful Death Act, as a result of decedent's death, and, therefore, recovery in a wrongful death action is not supportable. Additionally, Plaintiff and her predecessor, as decedent's personal representative, did not, in the court's view, act with reasonable diligence to discover the allegedly negligent actions of Defendant at the time in question to warrant the application of the Discovery Rule. If one assumes Plaintiffs allegations to be true, Plaintiff and Mrs. Stewart were aware on the date in question that either Defendant herself, or someone on the nursing staff of the Claremont facility, had failed to contact Mrs. Stewart in a timely manner. A person using reasonable diligence, in the court's view, would have begun pursuing the issues complained of well before the filing of the instant action. Indeed, "[i]fa party has the means of discovery within his [or her] power but neglects to use them, his [or her] claim will still be barred." Burnside v. Abbott Laboratories, 35l Pa. Super. 264, 292, 505 A.2d 973, 988 (l985). For the forgoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this l7th day of August, 2004, after careful consideration of the Defendant's motion for judgment on the pleadings, and for the reasons stated in the accompanying opinion, Defendant's motion for judgment on the pleadings is granted and Plaintiffs complaint is dismissed. BY THE COURT, sf J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. lO Deanna K. Collins 46 Willow Street Highspire, P A l7034 Plaintiff, Pro Se Charles E. Wasilefski, Esquire 293l North Front Street Harrisburg, PA l71l0-l280 Attorney for Defendant 11 ~~._~....",,,,,,,,,,,,,",,,,,.......[iiIil " ""'I!J~ir fW" ~s ~ *,_ """ ~ ~o ~, ~~'>V;',",,"""" ''''.=",<,- ",,", ,-~,.~",,,,,., ",'" --,.' --,.".~__, ,~,' ','^' '1. " ',~,- ',,' "~ - - ,-, ~'"' ,"""..' ,..,-, "."., "1 :, - . " i J ,~ ..........I".'~" , ''"''~';'--'''~R-J PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY IOF CUMBERLAND COUNTY: Please list the within matter for the next: o Pre-Trial Argument Court @ Argument Court CAPTION OF CASE (entire caption must be stated in full) Deanna K.Collins Trustee Ad Litem for the Estate of George G. Stewart (plain tiff) vs. Jean Wade (Defendant) vs. . No. 1510 Civil Tp..rm oW ..D.l.- 1. State matter to be argued (i. e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion for Judgmentoon the Fleadings 2. Identify counsel who will argue case: (a) for plaintiff:, Deanna K. Collings 46 Willow Street, Highspire, PA 17034 (b) for defendant: Charles E. Wasilefski, Esquire 2931 North Front Street Harrisbung, PA 17110-1250 3. I will notify all parties in writing within two days that this case has been listed for argument._ ~ (Attorney for Defendant ) Dated: May 118, 2004 , ~~!t -" ,..'''~il!itimllmlfj~'; ;'1ii!F',j,,",~,,, ~ '- -~ ~ ~, ~~ ;~;i.~iI<~<L'I~lMH~~i~~IJ.lJil""'--"'iII.rl. ~,~ , - ,~,~ T<... ,~ , :.aw"_"'""~ ,"', 0;,'. ,'j .' ',,< . "." ;..) ~:f 0-5: FS,;.'- ..-~ ~ ' f>~ ~ <:: =< C;) ..,.. "< -'<'-- "" = """ """" ~ 5;;;:; -.,.",; o -,-, ::;:1 m2:r r- ::orr? _;:}D 5;;01: ,..,- ~(;tj nrn ~! :2:1 """ Q -0 =x: .J::- f: