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HomeMy WebLinkAbout01-7232 FX GARY W. BERRESFORD and IN THE COURT OF COMMON PLEAS OF HARRY S. HART, JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : DOCKET NO. 01-7232 CIVIL KEITH I. SCHORR and SUSAN SCHOOR, as Administrators of the Estate of RYAN K. SCHORR : JURY TRIAL DEMANDED Defendants : NOTICE TO DEFEND 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 serve, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 Bedford Street Carlisle, PA 17013 717-249-3166 GARY W. BERRESFORD and IN THE COURT OF COMMON PLEAS OF HARRY S. HART, JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : DOCKET NO. 01-7232 CIVIL KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR JURY TRIAL DEMANDED Defendants : COMPLAINT AND NOW, comes the Plaintiffs, Gary W. Berresford and Harry S. Hart, Jr. by and through their attorney, Mark K. Emery, Esquire, and file this Complaint, as follows: 1. Plaintiff Gary W. Berresford ("Berresford") is an adult individual currently residing at 408 North Second Street, Wormleysburg, PA 17043, and at all times relevant to this Complaint was a police officer with the West Shore Regional Police Department. 2. Plaintiff Harry . S. Hart, Jr. is an adult individual currently residing at 923 Emanuel Road, Lewisberry, PA 17339, and at all times relevant to this Complaint was a police officer with the West Shore Regional Police Department. 3. Defendant Keith I. Schorr is an adult individual with a last known address of 209 Summer Lane, Enola, PA 17025. 4. Defendant Susan Schorr is an adult individual with a last know address of 1419 Miller Road, Dauphin, PA 17018. 5. Defendants Keith I. Schorr and Susan Schorr are the Administrators of the Estate of Ryan K. Schorr. Said Estate is filed at 21-2000-1083 in the Register of Wills of Cumberland County. 6. On November 18, 2000 Ryan Schorr (hereinafter "Schorr") began acting in a threatening manner to his roommate, and other members of the public. 7. On such date Berresford and Hart were on duty with the West Shore Regional Police Department. 8. Officers Berresford and Hart responded to a warrant commitment involving Schorr, and transported Schorr to Holy Spirit Hospital. 9. Schorr subsequently left the hospital, and returned to his apartment in Wormleysburg, Pennsylvania. 10. Officers Berresford and Hart again responded to the call, and arrived at Schorr's apartment. 11. Upon arriving at Schorr's residence, Officers Berresford and Hart attempted to place Schorr under control peacefully. 12. Schorr immediately became violent, and attacked Officers Berresford and Hart. 13. Schorr attempted to obtain Officer Berresford's firearm, and while doing so discharged the firearm, striking Berresford in the hand. 14. Schorr continued to physically assault Officers Berresford and Hart, including striking or attempting to strike the officers with a knife, metal pots and his fists. 15. Due to Schorrs actions Officers Berresford and Hart have suffered severe physical and psychological injuries, which they still suffer from today. 16. Schorr's conduct was done with malice and/or reckless indifference to the rights of Officers Berresford and Hart. COUNTI ASSAULT 17. Paragraphs 1 through 16 are incorporated fully herein by reference. 18. Schorr's actions were done with the intent to cause harmful or offensive contact and/or the intent to place Officers Berresford and Hart in imminent apprehension of harmful or offensive contact. 19. Officers Berresford and Hart did have an imminent apprehension that Schorr would engage in harmful or offensive contact, such harmful and offensive contact ultimately occurring. WHEREFORE, Plaintiffs Gary W. Berresford and Harry S. Hart, Jr. respectfully request this Honorable Court enter judgment for them, and against the Estate of Ryan Schorr, and further award costs, punitive damages and all other relief allowed by law. COUNT II BATTERY 20. Paragraphs 1 through 19 are incorporated fully herein by reference. 21. Schorr's conduct in attacking Officers Berresford and Hart, and otherwise physically assaulting them, has caused serious physical and psychological damages, such damages continuing as of the present, and shall continue in to the future. WHEREFORE, Plaintiffs Gary W. Berresford and Harry S. Hart, Jr. respectfully request this Honorable Court enter judgment for them, and against the Estate of Ryan Schorr, and further award costs, punitive damages and all other relief allowed by law. COUNT III NEGLIGENCE 22. Paragraphs 1 through 21 are incorporated fully herein by reference. 23. Schorr owed a duty to the public, including Officers Berresford and Hart, to act in a reasonable and safe manner, and to take all actions or precautions to eliminate threatening or violent behavior. 24. Schorr breached such duty by engaging in both a threatening and violent manner, and Officers Berresford and hart have suffered injuries and damages as a result of such breach. WHEREFORE, Plaintiffs Gary W. Berresford and Harry S. Hart, Jr. respectfully request this Honorable Court enter judgment for them, and against the Estate of Ryan Schorr, and further award costs, punitive damages and all other relief allowed by law. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By:_ Mark K. Emery, Esquir Supreme Court I.D. No. 72787 410 North Second Street DATE: ')' p o 3 Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, on this 8th day of July 2003, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Complaint by mailing a true and correct copy by United States first class mail, addressed as follows: Mr. Gerald J. Williams Williams, Cuker and Berezofsky One Penn Center at Suburban Station 1617 J.F.K. Boulevard Suite 800 Philadelphia, PA 19103-1819 LAW OFFICES OF MARK K. EMERY By: ' r c? Mark I . Fnery VERIFICATION We, Gary W. Berresford and Harry S. Hart, Jr., hereby verify that we have read the foregoing Complaint and that the information contained therein is true and correct tot he best of our knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. 40) Gary W. B resford arty . Hart, Jr. DATE: 7` 'U 3 - ?d?kL333?iFbia?5E6N..?aa. e?v? s.?,d ,? s, tn, .?:?+H .?a-L?-PF'uX4k'ebS4 - as:?MSa I-D X711;: -_t ?n P GARY S. BERRESFORD and HARRY S. HART, JR. Plaintiffs, V. KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR COURT OF COMMON PLEAS, CUMBERLAND COUNTY DOCKET NO. 01-7232 CIVIL DEFENDANTS' ANSWER AND NEW MATTER TO PLAINTIFFS' COMPLAINT 1. Admitted. 2. Admitted. 3. Denied. The current address for Keith I. Schorr is 201 Somerset Drive, Shiremanstown, PA 17011. 4. Admitted. 5. Admitted. 6. Denied as stated. At all times relevant to this Complaint, Ryan Schorr suffered from bipolar (manic) disorder - a debilitating psychiatric disorder that results in delusional thinking, hallucinations, and impaired perception and judgment. Because Mr. Schorr's psychiatric condition had worsened in the days leading to November 18, 2000, his family and friends believed that involuntary psychiatric evaluation and treatment had become 1 necessary. On the morning of November 18, 2000, Mr. Schorr's housemate - who perceived Mr. Schorr's conduct to be threatening - requested that an order be issued for an involuntary commitment of Mr. Schorr pursuant to Section 302 of the Pennsylvania Mental Health Procedures Act, 50 P.S. § 7302. While attempting to carry out the involuntary commitment of Ryan Schorr. Plaintiffs Berresford and Hart - West Shore Regional police officers - shot and killed Mr. Schorr. 7. Admitted. 8. Admitted. 9. Admitted. By way of further answer, Mr. Schorr was placed in a "high security" room in the emergency department of Holy Spirit Hospital ("Holy Spirit"). Shortly after his arrival at the Hospital, the security personnel for Holy Spirit left the area. Mr. Schorr was put under no physical restraints nor was he sedated or otherwise medicated. Having become agitated when he arrived at the hospital, Mr. Schorr subsequently rushed past a crisis intervention worker and left Holy Spirit. Thereafter, he returned to his apartment in Wormleysburg, Pennsylvania. 10. Admitted. By way of further answer, defendant Susan Schorr - Ryan Schorr's mother - spoke to Ryan on the telephone after he had left Holy Spirit and arrived at his apartment. Mrs. Schorr ascertained that Ryan was in a highly agitated state. She subsequently reported Ryan's whereabouts and his emotional state to the "911 " operator at Cumberland County's Control Center. The County Control Center contacted Plaintiffs Berresford and Hart, who proceeded to 445 Meadow Drive in search of Mr. Schorr. 11. Denied as stated. When they arrived at Mr. Schorr's residence, Officers Berresford and 2 Hart were equipped with firearms and batons, but in keeping with policy of the West Shore Regional Police Department, they had no instruments of less lethal force. On their second encounter with Mr. Schorr, Plaintiffs possessed not only the knowledge that Mr. Schorr posed a potential threat, but the knowledge that he had fled from Holy Spirit Hospital, where they had taken him for involuntary psychiatric commitment only two hours before. They chose to confront Mr. Schorr alone, unaccompanied by psychiatric personnel or crisis intervention workers who could have helped them to place Mr. Schorr under control peacefully. 12. Denied as stated. Plaintiffs confronted Mr. Schorr in the doorway of his bedroom. The confrontation escalated into a physical struggle between Ryan Schorr and the WSPD officers. Mr. Schorr was struck several times with batons during the initial struggle. 13. Denied as stated. During the struggle between Mr. Schorr and Plaintiffs, Officer Berresford was wounded in the ring finger when his pistol was discharged. It is specifically denied that Mr. Schorr attempted to obtain Officer Berresford's firearm. 14. Admitted in part, denied in part. It is admitted only that Ryan Schorr and plaintiffs engaged in a physical struggle. 15. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph, and therefore, the allegations are denied. 16. Denied. Mr. Schorr's conduct came as a result of psychiatric illness. COUNT I - ASSAULT 17. This paragraph requires no responsive pleading. 18. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no response is required. By way of further answer, Defendants specifically deny that Mr. Schorr acted with specific intent to cause harmful or offensive conduct and/or with the intent to place Plaintiffs in imminent apprehension of harmful of offensive conduct. At the time of this incident, Mr. Schorr lacked the mental capacity to form the specific intent required of this intentional tort. 19. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no response is required. By way of further answer, Defendants are without knowledge or information sufficient to form a belief as to the allegations contained in this paragraph, and therefore, the allegations are denied. WHEREFORE, Defendants respectfully request that judgment be entered in their favor and against Plaintiffs along with fees, costs, interest and other such relief as the Court deems proper. COUNT 11 - BATTERY 20. This paragraph requires no responsive pleading. 21. Denied. Defendants are without knowledge or information sufficient to form a belief as to the allegations contained in this paragraph, and therefore, the allegations are denied. WHEREFORE, Defendants respectfully request that judgment be entered in their favor and against Plaintiffs along with fees, costs, interest and other such relief as the Court deems proper. COUNT III - NEGLIGENCE 22. This paragraph requires no responsive pleading. 23. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no response is required. By way of further response, Defendants specifically deny Plaintiffs' allegations relating to the duty of Ryan Schorr. 24. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no response is required. By way of further response, any injuries sustained by Plaintiffs Beresford and Hart were caused by their own negligence and/or lack of due care for their own well-being or safety. WHEREFORE, Defendants respectfully request that judgment be entered in their favor and against Plaintiffs along with fees, costs, interest and other such relief as the Court deems proper. NEW MATTER Plaintiffs' Complaint fails to state a cause of action upon which relief can be granted. 2. The alleged injuries of Plaintiffs were caused by the negligence and/or recklessness or lack of due care of Plaintiffs and/or those other than Ryan Schorr over whom Mr. Schorr had no control. 3. Any injuries allegedly suffered by Plaintiffs are the result of intervening and/or superceding actions of others and were not proximately caused by the actions of Ryan Schorr and could not have been foreseen by Mr. Schorr. 4. Defendants specifically deny all of the averments and allegations in the Plaintiffs' complaint of duty, breach, negligence, causation, and damages and demands strict proof thereof. 5. The claims asserted by Plaintiffs are barred, in whole or in part, by the Pennsylvania Comparative Negligence Act, 42. P.S. §7102 et seq. 6. The claims asserted by Plaintiffs are barred, in whole or in part, because any alleged damages sustained by Plaintiffs were caused, in whole or in part, by Plaintiffs' assumption of the risk. Plaintiffs are barred from recovering any damages by virtue of the fact that the dangers they allege were open and obvious. 8. With respect to Plaintiffs' allegations of assault and battery, Ryan Schorr lacked the mental capacity to form the specific intent required of these intentional torts. 9. To the extent that Plaintiffs have sustained injuries or damages, Plaintiffs have failed to mitigate those damages as required by applicable law. 10. Plaintiffs have no right to recover the value of any benefits received by plaintiffs, paid on plaintiffs' behalf, or available to plaintiffs from any collateral source. 11. Defendants reserve the right to assert any additional affirmative defenses that become known as a result of discovery or further investigation or proceedings in this case. Respectfully Submitted, WILLIAMS, CUKER & BEREZOFSKY GERALD WILLIAMS DANIEL BENCIVENGA 1617 J.F.K. Boulevard, Suite 800 Philadelphia, PA 19103-1819 215-557-0099 Attorney for Defendants DATED: Z/ 3/r 7 VERIFICATION SUSAN SCHORR hereby states that she is an Administrator of the Estate of RYAN K. SCHORR, the Defendant in this action, and verifies that the statements made in the foregoing Answer to Plaintiffs' Complaint are true and correct to the best of her knowledge, information and belief. The undersigned understands that the statements therein are made subject to penalties of 18 Pa.C.S.A. Sec. 4904 relating to unworn falsification to authorities. SUSAN SCHORR Dated: 14,11, eF40 VERIFICATION KEITH L SCHORR hereby states that he is an Administrator of the Estate of RYAN K. SCHORR, the Defendant in this action, and verifies that the statements made in the foregoing Answer to Plaintiffs' Complaint are true and correct to the best of his knowledge, information and belief The undersigned understands that the statements therein are made subject to penalties of 18 Pa.C.S.A. Sec. 4904 relating to unsworn falsification to authorities. KEITH I. SCHORR Dated: 0/19L' O T CERTIFICATION OF SERVICE I, Daniel Bencivenga, hereby certify that a true and correct copy of Defendants' Answer and New Matter to Plaintiffs' Complaint was sent via first class mail to Mark K. Emery, Esquire, attorney for Plaintiffs Gary S. Berresford and Harry S. Hart, Jr., on January 13, 2003. Dated: 4/ 0 `F Daniel Bencivenga, Esquire G?V .w? kR6?.M`Rt?Sk{1?31?u.?s '4 .; a?x .. [. .. ., xu.,...u.?.._?x&fsfc?l.SifeF3tll?fi '?X?Lx?reE'a6`u%4aw3liat ?. "ffi ?iw.ouuw u+r.? . f'- C ? rn Y tl 'IV ED SEP 2 a 2005 WILLIAMS CUKER BEREZOFSKY BY: Gerald J. Williams, Esquire Identification No.: 36418 One Penn Center At Suburban Station 1617 JFK Boulevard, Suite 800 Philadelphia, PA 19103-1819 w (215) 557-0099 Attorneys for Defendants GARRY S. BERRESFORD and COURT OF COMMON PLEAS, HARRY S. HART, JR. CUMBERLAND COUNTY Plaintiffs, V. DOCKET NO. 01-7232 CIVIL 2001 KEITH 1. SCHORR and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, JURY TRIAL DEMANDED Defendant. ORDER This cause on or before the Court on behalf of plaintiff for pro hac vice motion for special admission of William D. Breit, an out of state attorney as co-counsel. William D. Breit is licensed to practice in the State of Virginia. He is a member in good standing with the State Bar of Virginia, and is able to practice in Virginia courts. He is a partner with the law firm of Breit Law, P.C., with his principal place of business located at P.O. Box 822, Virginia Beach, Virginia 23451. Gerald J. Williams, Esquire of Williams Cuker Berezofsky in Philadelphia, Pennsylvania has respectfully requested this Court admit Mr. Breit, pro hac vice. Because William D. Breit, Esquire is an attorney practicing extensively in the area of defense litigation, who regularly represents defendants in such matters, this Court has no objection to his participating actively in the trial of this cause and all pre-trial proceedings. Accordingly, it is hereby ORDERED and DECREED that William D. Breit, Esquire be and is hereby specially admitted to - I m . _. ?r 7711 7 3141 do a the State Bar of the Commonwealth of Pennsylvania so that he may act as co-counsel representing plaintiff in this proceeding. ??. 22? Zoos Oq ? BY THE COURT: WILLIAMS CUKER BEREZOFSKY BY: Gerald J. Williams, Esquire Identification No.: 36418 One Penn Center At Suburban Station 1617 HK Boulevard, Suite 800 Philadelphia, PA 19103-1819 w (215) 557-0099 Attorneys for Defendants GARRY S. BERRESFORD and COURT OF COMMON PLEAS, HARRY S. HART, JR. CUMBERLAND COUNTY Plaintiffs, V. DOCKET NO. 01-7232 CIVIL 2001 KEITH I. SCHORR and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, JURY TRIAL DEMANDED Defendant. MOTION FOR SPECIAL ADMISSION COMES NOW, Keith Schorr and Susan Schorr, in this case, by and through their attorney, Gerald J. Williams, Esquire, moves the Court to specially admit William D. Breit, an out of state attorney, as co-counsel in this proceeding for the following reasons: I am an attorney in the Commonwealth of Pennsylvania and a partner wit the law firm of Williams Coker Berezofsky, counsel for plaintiff in the above-captioned matter. I make this certified statement in support of the Motion to admit William D. Breit, Esquire to appear pro hac vice in this matter. 2. William D. Breit, Esquire is a practicing attorney duly admitted to the Bar of the State of Virginia in good standing in the highest court of that jurisdiction. Mr. Breit has been involved in personal injury litigation and has represented individuals in these type of actions. Mr. Breit's experience would be an asset to this case. 3. As this case is in defense of a personal injury claim, defendants seek the special admission of Mr. Breit so that he may act as co-counsel for defendants and actively participate in any trial or pre-trial proceedings involved. 4. 1 understand that should this Court determine to admit counsel to appear and participate pro hac vice that I or another member of my firm will sign all pleadings, briefs or other papers filed with the court and that the firm of Williams Cuker Berezofsky shall be held responsible for them in the conduct of the cause and of Mr. Breit as the admitted attorney herein. 5. In accordance with Cumberland County Local Rule 208.3(a)(9), I hereby certify that the full text of the motion and the Proposed Order has been disclosed to all parties, and that concurrence to both the motion and proposed order has been given by each party. WHEREFORE, defendants respectfully request this Court to admit William D. Breit, Esquire pro hac vice to serve as co-counsel for the defendants, along with the undersigned. Respectfully submitted, WILLIAMS CUKE E OFSKY zo._. BY: GERALD J. WILLIAMS, ESQUIRE Counsel for Defendants Keith Schorr and Susan Schorr Dated: g11g10S w, WILLIAMS CUKER BEREZOFSKY BY: Gerald J. Williams, Esquire Identification No.: 36418 One Penn Center At Suburban Station 1617 JFK Boulevard, Suite 800 Philadelphia, PA 19103-1819 w (215) 557-0099 GARRY S. BERRESFORD and HARRY S. HART, JR. Plaintiffs, V. KEITH L SCHORR and SUSAN SCHORR, as personal,representatives of the ESTATE OF RYAN SCHORR, Defendant. Attorneys for Defendants COURT OF COMMON PLEAS, CUMBERLAND COUNTY DOCKET NO. 01-7232 CIVIL 2001 JURY TRIAL DEMANDED CERTIFICATION OF GERALD J. WILLIAMS, ESQUIRE Gerald J. Williams, Esquire, hereby certifies and says: 1. I am an attorney in the Commonwealth of Pennsylvania and a partner with the law firm of Williams Cuker Berezofsky, counsel for defendants in the above-captioned matter. I make this certified statement in support of the motion to admit William D. Breit, Esquire to appear pro hac vice in this matter. 2. As set forth in the Certification of Counsel, Mr. Breit is a member of the bar of the State of Virginia in good standing in the highest court of that jurisdiction, and has agreed to comply with all of the provisions of PA.R.1:21-2, 1:20-1(b) and 1:28-2. 3. I have agreed to serve as co-counsel with Mr. Breit in connection with this proceeding. Of course, his participation is subject to this court's authorization permitting him to appear and participate pro hac vice in this matter. 4. I understand that should this court determine to admit counsel to appear and participate pro hac vice that I or another member of my firm will sign all pleadings, briefs, or other papers filed with the court, and that the firm of Williams Cuker Berezofsky shall be held responsible for him and for the conduct of the cause of them. 5. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfiilly false, I am subject to punishment. Respectfully L GERALD I WILLIAMS Counsel for Plaintiffs Keith Schorr and Susan Schorr Dated: St Defendant. WILLIAMS CUKER BEREZOFSKY BY: Gerald J. Williams, Esquire Identification No.: 36418 One Penn Center At Suburban Station 1617 JFK Boulevard, Suite 800 Philadelphia, PA 19103-1819 w (215) 557-0099 GARRY S. BERRESFORD and HARRY S. HART, JR. Plaintiffs, V. KEITH I. SCHORR and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, Attorneys for Defendants COURT OF COMMON PLEAS, CUMBERLAND COUNTY DOCKET NO. 01-7232 CIVIL 2001 JURY TRIAL DEMANDED CERTIFICATION OF WILLIAM D. BREIT, ESQUIRE William Breit, Esquire, hereby certifies and states: 1. I am an attorney licensed to practice in the State of Virginia in good standing with the State Bar of Virginia and am able to practice in Virginia courts. 2. I am associated with the law firm of Breit, P.O. Box 822, Virginia Beach, Virginia, 23451. 3. I have never been subject to any disciplinary sanctions by any court or any bar association. 4. I am associated in this matter by way of co-counsel, with Gerald J. Williams, Esquire, a partner with the law firm of Williams Cuker Berezofsky, with offices at One Penn Center at Suburban Station, 1617 JFK Blvd, Suite 800, Philadelphia, PA 19103. Gerald J. Williams is a member in good standing of the bar of this court and is qualified to practice pursuant to the PA Bar Admission. 5. I understand that if I am admitted to appear and participate pro hac vice: a. I shall abide by the rules governing the courts of the Commonwealth of Pennsylvania, including all disciplinary rules; b. I shall notify this court immediately of any matter affecting my standing at the bar of any other court; and, c. I shall have all pleadings, briefs, and other papers filed with the court signed by an attorney of record, authorized to practice in this state who shall be held responsible for them in the conduct of the cause and of me as the admitted attorney herein. 6. This is in defense of a personal injury action and I have substantial experience in this type of litigation. In particular, I have litigated similar cases in Virginia and have spent a great deal of time researching, litigating and negotiating the issues in this case. I respectfully request that this court grant this application on behalf of the defendants in the above-captioned matter to permit me to appear and participate pro hac vice. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to D. BREIT, ESQUIRE Dated: September 14, 2005 CERTIFICATE OF SERVICE I, GERALD J. WILLIAMS, hereby certify that on this date I served a true and correct copy of the foregoing application of William D. Breit, Esquire, to practice in this court pursuant to PA.R.1:21-2,1:20-1(b) and 1:28-2. and the relevant proposed Order which, if granted, would permit such practice in this court was mailed by U.S. first class mail, postage prepaid upon the following counsel and parties of record: Mark K. Emery, Esquire Law Offices of Mark K. Emery 410 North Second Street Harrisburg, PA 17101 Counsel for Plaintiffs Gary W. Berresford and Harry S. Hart, Jr. Michael D. Pipa, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112 Counsel for Defendant Holy Spirit Hospital 1*404' GERALD J. WILLIAMS Date: September 14, 2005 brzo c? N c c„ _j cn 01 0 n- t7 ?m GARY W. BERRESFORD and IN THE COURT OF COMMON PLEAS OF HARRY S. HART, JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. DOCKET NO. ©l - 1:234P?, l ?u?l ??2,1 Yl KEITH I. SCHORR and, SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR, Defendants JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a writ of summons against the above-referenced Administrators. Such individuals may be served at: Keith I. Schorr 209 Summer Lane Enola, PA 17025 Susan Schorr 1419 Miller Road Dauphin, PA 17018 Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. DATED:/?,IDeld / Jo hn R. Fenstermacher Supreme Court I.D. #29940 Mark K. Emery Supreme Court I.D. #72787 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiffs T zt_, Co N l-Z c: ,0(/) Commonwealth of Pennsylvania County of Cumberland Gary W. Berresford and Harry S. Hart, Jr. VS. Keith I. Schorr and, Susan Schorr, as Administrators of the Estate of Ryan K. Schorr Keith I. Schorr 209 Swmer Lane Enola, PA 17025 Susan Schorr 1419 Miller Road Dauphin, PA 17018 Court of Common Pleas N,.---01-7232-Civil-Term -------_---- 19 --- --------------- Civil Action ---Law To _Keith_ Z :_Schorr and,_ Susan Schorr?_ as Administrators of the Estate of Ryan K. Schorr You are hereby notified that Gary W. Berresford and Harry S. Hart, Jr. ----------------------- ------------------------------ - Law the Plaintiff has commenced an action in ----------- Civil -A-c- ------- ------------------------------ against you which you are required to defend or a default judgment may be entered against you. (SEAL) ----- Curtis- R=-I'-o-n9------------- - ------------ Prothonotary Date ---- December - 28,-2001----- 19---- ------------------- -- Deputy i 1 1 1 i H --tX n3 , 0 i ((D ? n X i N . Lnn tT i ?C) rt rt R ty x 1 C (nH rWa I i 0 ED ? in m rt i• C i N '0 C rt o n CC Oofi n R ?j j rt h O N Irt I S (D R 0 03 - a F x? n n ? t i r ^G cn m N H n a a x C 1 1 i ?O Ir 11 jN ?N In Ir ly 1 1 I ?o i 1 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2001-07232 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BERRESFORD GARY W ET AL VS SCHORR KEITH I ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: SCHORR SUSAN AS ADMIN OF ESTATE OF RYAN K SCHORR but was unable to locate Her deputized the sheriff of DAUPHIN in his bailiwick. He therefore serve the within WRIT OF SUMMONS County, Pennsylvania, to On January 29th , 2002 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So answers: Docketing 6.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Dauphin Co 30.50 Sheriff of Cumberland County .00 55.50 01/29/2002 FENSTERMACHER & ASSOC Sworn and subscribed to before me this day of j&oa2, A.D. 0, hull?, Prothonotafy CASE"NO: 2001-07232 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BERRESEORD GARY W ET AL VS SCHORR KEITH I ET GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon SCHORR KEITH I AS ADMIN OF ESTATE OF RYAN K SCHORR the DEFENDANT , at 1310:00 HOURS, on the 8th day of January , 2002 at 209 SUMMER LANE ENOLA, PA 17025 KEITH I. SCHORR by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 9.75 Affidavit .00 Surcharge 10.00 .00 37.75 Sworn and Subscribed to before me this day of COOL A. D. P othonotary So Answers: R. Thomas Kline 01/29/2002 FENSTERMACHER & ASSOC By o 11) Deputy Sh iff (off-Tre of t4le S4eri ff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor So Answers, y k e?- Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania BERRESFORD GARY vs County of Dauphin SCHORR SUSAN AS ADMIN OF ESTATE OF Sheriff's Return No. 0062-T - - -2002 OTHER COUNTY NO. 01-7232 NOW:January 23, 2002 at 4:42PM served the within SUMMONS upon SCHORR SUSAN AS ADMIN OF ESTATE OF by personally handing RYAN K SCHORR to HER 1 true attested copy(ies) of the original SUMMONS and making known to him/her the contents thereof at 1419 MILLER RD DAUPHIN, PA 00000-0000 Sworn and subscribed to before me this 24TH day of JANUARY, 2002 C. Lf)OA PROTHONO Y of DaldphintQpunty, Pa. By J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy f Sheriff's Costs: $30.50 PD 01/09/2002 RCPT NO 158608 CANTREL In The Court of Common Pleas of Cumberland County, Pennsylvania SERVE: Gary Berresford et al vs. Keith I. Schorr et al Susan Schorr as admin of estate of Ryan K. Schorr Now, December 31, 2001 No. 01 7232 civil I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. - Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a and made known to So answers, Sheriff of Sworn and subscribed before me this day of 20 COSTS SERVICE _ MILEAGE AFFIDAVIT the contents thereof. County, PA 20, at o'clock M. served the copy of the original. r a GARY W. BERRESFORD and HARRY S. HART, JR., Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 01-7232 CIVIL KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR JURY TRIAL DEMANDED Defendants : ACCEPTANCE OF SERVICE I accept service of the Complaint on behalf of the Defendants Keith I. Schorr and Susan Schorr, Administrators of the Estate of Ryan K. Schorr, and certify that I am authorized to do so. DATE: l U By: l William uker and Berezofsky One Pe n Center at Suburban Station 1617 J.F.K. Boulevard Suite 800 Philadelphia, PA 19103-1819 d ?r ?t co 8o GARY W. BERRESFORD and HARRY S. HART, JR., Plaintiffs V. KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR Defendants AND NOW, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 01-7232 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED 2003, upon careful consideration of Defendants' Preliminary Objections in the Nature of a Demurrer, it is hereby ordered that the Preliminary Objections are denied.' Mark Emery, Esquire 410 North Second Street Harrisburg, PA 17101 For the Plaintiffs Daniel Bencivenga, Esquire Williams Cuker & Berezofsky One Penn Center 1617 JFK Boulevard, Suite 8 Philadelphia, PA 19103 For the Defendants J145- 1) Assumption of risk has no place in an intentional tort action; and 2) "The 'fireman's rule', which provides that a police officer or fire fighter who enters upon the land of another in connection with official duties cannot recover from the possessor of land for subsequent injuries, has not been adopted in Pennsylvania." Holpp v. Fez, Inc., 440 Pa.Super; 512, 516 (1995). :d1 . 4,1 i1J P`J ?1 (`r?`t7 e AUO 0 4 2003 V WILLIAMS, CUKER & BEREZOFSKY By: Gerald J. Williams, Esquire Daniel Bencivenga, Esquire 1617 J. F. K. Boulevard, Ste. 1617 Philadelphia, PA 19101-1819 Attorneys for Defendants GARRY S. BERRESFORD and HARRY S. HART, JR. Plaintiffs, V. KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR COURT OF COMMON PLEAS, CUMBERLAND COUNTY DOCKET NO. 01-7232 CIVIL DEFENDANTS' PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER Pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4), Defendants Keith and Susan Schorr, administrators of the estate of Ryan K. Schorr, hereby petition this Court to dismiss with prejudice the Complaint of Plaintiffs Gary S. Berresford and Harry S. Hart, Jr. for failure to state a claim upon which relief can be granted. In support of demurrer, Defendants aver as follows: Background 1. Plaintiffs' Complaint stems from the November 18, 2000 shooting death of Defendants' son Ryan K. Schorr. Mr. Schorr was killed by Plaintiffs Berresford and Hart - West Shore Regional police officers - as they attempted to carry out an involuntary w "commitment" of Mr. Schorr pursuant to Section 302 of the Pennsylvania Mental Health Procedures Act, 50 P.S. § 7302. 2. At the time of the shooting, Mr. Schorr suffered from bipolar (manic) disorder - a debilitating psychiatric disorder that results in delusional thinking, hallucinations, and impaired perception and judgment. 3. Because Mr. Schorr's psychiatric condition had worsened in the days leading to November 18, 2000, his family and friends believed that involuntary psychiatric evaluation and treatment had become necessary. 4. On the morning of November 18, 2000, with the approval of Mr. Schorr's family, his housemate requested that an order be issued for an involuntary "commitment" of Mr. Schorr. In compliance with § 302, the request was made to the Crisis Intervention Unit at Holy Spirit Hospital ["Holy Spirit"]. Holy Spirit had contracted with Cumberland County to provide "crisis intervention services" in the County with respect to applications for involuntary psychiatric commitments. 6. Pursuant to the arrangement with the County, a "crisis intervention worker" employed by Holy Spirit took and evaluated the application, caused an order to be issued for Mr. Schorr's involuntary commitment, and arranged, through Cumberland County's Control Unit, for the West Shore Regional Police Department ("WSPD") to take Ryan into custody. 7. Plaintiffs Berresford and Hart of the WSPD obtained the order and associated warrant, traveled to Ryan Schorr's apartment, and escorted him to Holy Spirit, where Mr. Schorr was placed in a "high security" room in the hospital's emergency department to await further "processing" under § 302. 8. In the emergency department, Ryan Schorr had become agitated. Shortly after his placement in the "high security" room, the security personnel for Holy Spirit left the area. Mr. Schorr was left without physical restraints, and had not been sedated or otherwise medicated. 9. When Candice Highfield, a crisis intervention worker in Holy Spirit's employ, started to enter the room in order to "read" to Mr. Schorr his rights under § 302, he rushed past her and left the hospital. 10. Approximately two hours later, Ryan Schorr had returned to his home at 445 Meadow Drive in Wormleysburg, PA. His mother, defendant Susan Schorr, telephoned him there, and ascertained that he was in a highly agitated state, in part because an employee of Holy Spirit had left a telephone message concerning his involuntary commitment on his answering machine. 11. Susan Schorr reported Ryan's whereabouts and his emotional state to the "911" operator at Cumberland County's Control Center. The County Control Center contacted WSPD officers Berresford and Hart, who proceeded to 445 Meadow Drive in search of Mr. Schorr. 12. Officers Berresford and Hart were equipped with firearms and batons, but in keeping with WSPD policy, had no instruments of less lethal force. 13. Officers Berresford and Hart entered Ryan Schorr's home through a sliding glass door in the rear of the house. At the time, Mr. Schorr was in an upstairs room of the house. Officers Berresford and Hart proceeded up the stairs, where they confronted Mr. Schorr in the doorway of his bedroom, clothed only in a long coat or robe. 14. The confrontation quickly escalated into a physical struggle between Ryan Schorr and the WSPD officers. During the struggle, Officer Berresford was wounded in the ring finger when his pistol was discharged. Ryan Schorr was struck several times with batons during the struggle. 15. Now totally nude, Ryan Schorr fled the house, and for a brief time, sat in the WSPD officers' patrol car. He then returned to his home where the policemen had remained, and another struggle ensued. 16. During this second struggle, Officer Hart repeatedly fired his pistol at Ryan Schorr, inflicting multiple wounds, and killing Mr. Schorr. 17. Plaintiffs have now sued the estate of Ryan Schorr in connection with injuries they sustained in the altercation. They seek recovery on theories of Assault (Count I), Battery (Count II) and Negligence (Count III). (Plaintiffs' Complaint attached hereto as Exhibit "A") Plaintiffs. Complaint Fails to Aver Facts Sufficient to Establish a Claim Upon Which Relief can be Granted. 18. On the face of their Complaint, Plaintiffs admit that, when they first encountered Ryan Schorr, they believed that he had been "acting in a threatening manner to his roommate, and other members of the public." (Plaintiffs' Complaint attached hereto as Exhibit "A",16). 19. On their second encounter with Mr. Schorr, Plaintiffs possessed not only the knowledge that Mr. Schorr posed a potential threat, but the knowledge that he had fled from Holy Spirit Hospital, where they had taken him for involuntary psychiatric commitment only two hours before. Id. at 119, 10. Still, they chose to confront Mr. Schorr alone, unaccompanied by psychiatric personnel or crisis intervention workers who could have helped to lessen the danger posed by Mr. Schorr. Instead, Plaintiffs brought their guns and their batons, the tools of a trade in which potential violence is an inherent and anticipated risk. 4 20. Because Plaintiffs' Complaint is premised on the same conduct that initially created the need for their official presence, their recovery here is barred by the "Fireman's Rule." This doctrine recognizes that a person specifically hired to encounter and combat a particular danger is owed no independent tort duty by those who have created the danger. Here, Plaintiffs were employed to encounter, and knowingly did encounter, precisely the risk that brought about their injuries. In compensation for encountering that risk, Plaintiffs received both a salary and workers' compensation benefits to address the potential consequences of the risks inherent in their jobs. Plaintiffs economic loss, already borne though workers' compensation coverage, should not be redoubled in a tort recovery. Heil v. Brown, 443 Pa.Super. 502, 662 A.2d 669 (1995); Orozco v. County of Yolo, 814 F.Supp. 885 (E.D.Ca. 1992); Kaminski v. Town of Fairfield, 216 Conn. 29, 578 A.2d 1048 (1990); Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983); Steelman v. Lind, 97 Nev. 425, 634 P.2d 666 (1981); Garcia v. City of So. Tucson, 131 Ariz. 315, 640 P.2d 117 (1981); Whitten v. Miami-Dade Water & Swer Authority, 357 S.2d 430 (1978); Walters v. Sloan, 20 Cal.2d 199, 571 P.2d 609 (1977); Clark v. Corby, 75 Wis.2d 292, 249 N.W.2d 567 (1977); see Memorandum of Law in Support of Defendants' Preliminary Objection in the Nature of a Demurrer, incorporated herein by reference, Pgs. 5-11. 21. The Fireman's Rule is analogous to the proposition, well settled in Pennsylvania law, that a contractor engaged as an expert to remedy dangerous situations cannot complain of negligence in the creation of the very occasion for his engagement. Atkins v. Urban Redevelopment Authority of Pittsbureh, 489 Pa. 344, 414 A.2d 100 (1980), Palenscar v. Bobb, 439 Pa. 101, 266 A.2d 478 (1970); see Berberian v. Lynn, 3555 N.J. Super. 210, 809 A.2d 865 (2002)(Psychiatric nurse cannot recover intentional tort damages resulting from assault committed by delusional in-patient); Creasy v. Rusk, 730 N.E.2d 659 (Ind. 2000)(same); Anicet v. Gant, 580 So.2d 273 (Fla. App. 1991)(same);. 22. Though courts sometimes analyze the Fireman's Rule as a specialized application of "assumption of the risk" doctrine, in Pennsylvania, "assumption of the risk" exists as a separate bar to Plaintiffs' claims. Because Plaintiffs voluntarily and intelligently chose to encounter the risks that produced their injuries, they were owed no duty of care by Mr. Schorr cannot seek money damages from his estate. Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993)(plurality opinion; Flaherty, J. writing lead opinion); Ruhl v. Philadelphia, 346 Pa. 214, 29 A.2d 784 (1943); Bennett v. Kurland, 21 Pa. D&C.2d 587 (Luzerne County 1959); see Memorandum of Law in Support of Defendants' Preliminary Objection in the Nature of a Demurrer, incorporated herein by reference, Pgs. 3-5. 23. Because there is a complete bar to recovery here, both under the Fireman's Rule and under traditional "assumption of the risk" doctrine, Plaintiffs have not stated a cause of action upon which relief can be granted. WHEREFORE, Defendants respectfully request that this Honorable Court grant their Preliminary Objections in the Nature of a Demurrer, and dismiss with prejudice Plaintiffs' Complaint by issuing an Order in the annexed form. Respectfully submitted, DANIEL BENCIVENGA Attorney I.D. #74198 Attorney for Defendants DATED: 7 0 0 3 C ? ES t mrn ? ?? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next ArgmneTt Court. CAPTION OF CASE (entire caption must be stated in full) GARY S. BERRESFORD and HARRY S. HART, JR. V5. KEITH I. SCHORR and SUSAN SCHORR as Admin gttators of the Estate of RYAN K. SCHORR (Plaintiff) (Defendant) No, 7232 Civil - 2001 . 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant' demuzer to ccmplaint, etc.) : Defendant's demurer to complaint 2. Identify counsel who will argue case: (a) for plaintiff: Mark Emery, Esquire Address: Law Offices of Mark Emery 410 North Second Street Harrisburg, PA 17101 (b) for defendant:, Daniel Bencivenga, Esquire Address: Williams Cuker & Berezofsky One Penn Center 1617 JFK Boulevard, Suite 800 3. I will notify all parties anawr1j glwithin fwb Rdys that this.case has been listed for argument. 4. Argument Court Date: October 22, 2003 Toted: . Attorney for Defendant w C ?z iw CO m -A m ?'. U Z} iP =Z C-2 C-n r ., WILLIAMS, CUKER & BEREZOFSKY By: Gerald J. Williams, Esquire Daniel Bencivenga, Esquire 1617 J. F. K. Boulevard, Ste. 1617 Philadelphia, PA 19101-1819 Attorneys for Defendants GARRY S. BERRESFORD and HARRY S. HART, JR. Plaintiffs, V. KEITH 1. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR COURT OF COMMON PLEAS, CUMBERLAND COUNTY DOCKET NO. 01-7232 CIVIL DEFENDANTS' PRAECIPE FOR ARGUMENT UNDER CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 210-2 TO THE PROTHONOTARY Please refer the following matter to the assigned judge for disposition: Defendants' PreliminM Objections in the Nature of a Demurrer. Respectfully submitted, DANIEL BENCIVENGA Attorney I.D. #74198 Attorney for Defendants DATED: '7/1 3 Ala ", O "M , ' .. .. ..... C cz? O ? T EBY Cr. i ??J _ z rv ?? --__ ___ r`+++r++?1ro'MY?I )lWOJ,?YlliYlil?" - -,y CERTIFICATE OF SERVICE I, Daniel Bencivenga, Esquire, hereby certify that on July 28, 2003, I caused to be served true and correct copies of the foregoing Defendants' Preliminary Objections in the Nature of a Demurrer; Memorandum of Law in Support of Defendants' Preliminary Objections in the Nature of a Demurrer; and Defendants' Praecipe for Argument Under Cumberland County Rule of Civil Procedure 210-21 via United States First Class Mail, postage prepaid, to counsel of record as noted below: Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17102 Daniel Bencivenga, Esquire ?? r.u.?'.a-l uu?.? ..t?? 'd?e"vi?'i?f?`a??0. ?bffsFld? dYYf??rvr?? iwS R?Y?4U?.?+?"B?i?illll `?a.mavstim.-... sveauu?. ..• mw.y?• i? ? .F . `v?= _?hr ..T U y-? {? ?."?? ?''"` lD '.? r r-, _° ;fir r.? 'I'C ?-} i -^^ p { N Y` ? 4 WILLIAMS CUKER BEREZOFSKY BY: Jeffrey P. Nydick, Esquire Identification No.: 53778 One Penn Center At Suburban Station 1617 JFK Boulevard, Suite 800 Philadelphia, PA 19103-1819 : (215) 557-0099 GARRY S. BERRESFORD and HARRY S. HART, JR. COURT OF COMMON PLEAS, CUMBERLAND COUNTY Plaintiffs, V. KEITH I. SCHORR and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, Defendant. DOCKET NO. 01-7232 CIVIL 2001 JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE CLERK: Kindly enter my appearance on behalf of the Defendants' Keith I. Schorr; Susan Schorr, as personal representative of the Estate of Ryan Schorr in the above-captioned matter. Respectfully Submitted, WIL IAMS Cl/UKE/R BEREZOFSKY By: JEFFREY . NYDICK, ESQUIRE Dated: April 12, 2005 Attorney for Defendants' Keith I. Schorr; Susan Schorr, as personal representative of the Estate of Ryan Schorr F:\DATAGSCHORR\Bemsford-Schorr\Pteadings\04.12.05.8ntry of Appearance2.wpd w %k r < CERTIFICATE OF SERVICE I, Jeffrey Nydick, hereby certify that on this date, I served a true and correct copy of the foregoing Entry of Appearance, via U.S. first class regular mail, postage prepaid upon the following counsel and parties of record: Mark K. Emery, Esquire Law Offices of Mark K. Emery 410 North Second Street Harrisburg, PA 17101 Counsel for Plaintiffs Gary W. Berresford and Harry S. Hart, Jr. Michael D. Pipa, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112 Counsel for Defendant Holy Spirit Hospital WILLIAMS CUKER BEREZOFSKY By: 2f `--'?-t FFREY P. NYDICK, ESQUIRE Dated: April 12, 2005 F:\DATAGSCHORR\Beaesfwd-Schoa\Pleadings\04.12.05.EntU of Appemmce2.wpd `5[ - jC7 DE? L eE?? r JU J 2005 „yyl GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 HOLY SPIRIT HOSPITAL, DEFENDANT V. JURY TRIAL DEMANDED KEITH I. SCHORR, ET AL. GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. KEITH L SCHORR, and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, DEFENDANT DOCKET NO. 01-7232 CIVIL 2001 JURY TRIAL DEMANDED PROPOSED ORDER AND NOW, this 24g, day of f 2005, upon careful consideration of the Defendant's unopposed Motion to Consolidate, the Motion to Consolidate is granted and Civil Term dockets 6498-2001 and 7232-2001 are hereby consolidated for all purposes. BY THE COURT /.s l 4 (/ hl-e.®a J. 5 i ? m m c ? P ? fly- l/ V t' l l GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 HOLY SPIRIT HOSPITAL, DEFENDANT V. JURY TRIAL DEMANDED KEITH I. SCHORR, ET AL. GARY W. BERRESFORD AND : IN THE COURT OF COMMON PLEAS HARRY S. HART, JR., : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. : DOCKET NO. 01-7232 CIVIL 2001 KEITH 1. SCHORR, and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, JURY TRIAL DEMANDED DEFENDANT MOTION FOR CONSOLIDATION AND NOW, comes the Defendant, Holy Spirit Hospital, by and through its attorneys, pursuant to Pa.R.C.P. 213, and files the within motion for consolidation, and states in support thereof the following: 1. On February 12, 2002, Plaintiffs Gary W. Berresford and Harry S. Hart, Jr., filed a Complaint in the Cumberland County Court of Common Pleas No. 2001-06498 against Holy Spirit Hospital. (February 12, 2002 Complaint filed against Holy Spirit Hospital attached hereto as Exhibit "A"). 2. This Complaint (Exhibit "A") seeks both actual and punitive damages and sounds in negligence. 3. On July 8, 2003, Plaintiffs Gary W. Berresford and Harry S. Hart, Jr., filed a Complaint in the Cumberland County Court of Common Pleas No. 07232-2001 against Keith I. Schorr and Susan Schorr, as Administrators of the Estate of Ryan Schorr. (July 8, 2003 Complaint filed against Keith I. Schorr and Susan Schorr as Administrators of the Estate of Ryan Schorr attached hereto as Exhibit "B"). 4. This Complaint (Exhibit "B") seeks both actual and punitive damages against the Defendant. 5. Therefore, there are now two cases pending in the Cumberland County Court of Common Pleas involving claims pled by Gary W. Berresford and Harry S. Hart, Jr. arising from the same occurrence. 6. The Plaintiffs in the Complaints (Exhibit "A" and Exhibit "B") are identical and the same attorney, Mark Emery, Esquire, represents them on both Complaints. 7. Both Complaints (Exhibit "A" and Exhibit "B") allege facts arising out of the same occurrence on November 18, 2000. 8. Both Complaints (Exhibit "A" and Exhibit "B") allege that Ryan Schorr was taken to Holy Spirit Hospital pursuant to an Involuntary Commitment Order issued pursuant to § 302 of the Pennsylvania Mental Health Procedures Act. 9. Both Complaints (Exhibit "A" and Exhibit "B") allege that Officers Berresford and Hart, of the West Shore Regional Police Department, transported Ryan Schorr to the Holy Spirit Hospital. 2 r. 10. Both Complaints (Exhibit "A" and Exhibit "B") allege that Ryan Schorr subsequently left the hospital and eventually returned to his apartment in Wormleysburg, Pennsylvania. 11. Both Complaints (Exhibit "A" and Exhibit "B") allege that Officers Berresford and Hart returned to Ryan Schorr's apartment in Wormleysburg, Pennsylvania, to attempt to re- serve the § 302 warrant. 12. Both Complaints (Exhibit "A" and Exhibit "B") allege that Ryan Schorr attacked Officers Berresford and Hart. 13. Both Complaints (Exhibit "A" and Exhibit "B") allege that during this attack, Plaintiff Berresford was wounded in his ring finger when his pistol was discharged as Ryan Schorr attempted to obtain Officer Berresford's firearm. 14. Both Complaints (Exhibit "A" and Exhibit "B") allege that Officers Berresford and Hart suffered harm as a result of Ryan Schorr's attack. 15. Additionally, consolidation will promote the efficient utilization of judicial facilities and personnel and the just and efficient conduct of the actions. 16. Counsel for Plaintiff in the action at Exhibit "A" (Mark Emery, Esquire) was contacted regarding this motion and concurs with this motion. 17. Counsel for Plaintiff in the action at Exhibit "B" (also Mark Emery, Esquire) was contacted regarding this motion and concurs with this motion. 18. Counsel of record for Defendants at Exhibit "B" Attorney Jeffrey Nydick from the firm of Williams, Cooker & Berezofsky, and Attorney Gerald Williams (communicating through William Breit) from that same firm said they will not oppose this motion. 3 WHEREFORE, Defendants, Holy Spirit Hospital respectfully requests this Honorable Court to grant this motion for consolidation of the cases docketed at Nos. 06498-2001 and 07232-2001 for all purposes. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: lje6?MICHAEL D. PIPA, E IRE Attorney I.D. No. 53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorneys for Defendant, Holy Spirit Hospital W -A UARIGM71LLPG1195048ITNMI13246100828 4 GARY W. BERRESFORD and HARRY S. HART, JR., Plaintiffs V. HOLY SPIRIT HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO, 06498-2001 JURY TRIAL DEMANDED - NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attomey and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that V you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOTAFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 248-3100 GARY W. BERRESFORD and IN THE COURT OF COMMON PLEAS OF HARRY S. HART, JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaints fs v DOCKET NO. 06498-2001 HOLY SPIRIT HOSPITAL, Defendant JURYTRIAL DEMANDED COMPLAINT AND NOW come the,Plaintiffs, by and through their attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Complaint, as follows: 1. Plaintiff Gary W. Berreeford is an adult individual currently residing at 408 North Second Street, Wormleysburg. PA 17043, and at all times relevant to this Complaint was a police officer with the Wast Shore Regional Police Department, 2. Plaintiff Harry S. Hart, Jr. is an adult individual currently residing at 923 Emanuel Road, Lewisberry, PA 17339, and at all times relevant to this Complaint was a police ~ with the West Shore Regional Police Department 3. Defendant Holy Spirit Hospital (hereinafter "Holy spirit" is a private hospital organization located at 503 North 21" Street, Camp Hill, PA 17011. 4. Holy Spirit provides certain medical, emergency and crisis Intervention services. 5. Holy Spirit is, upon informS*m and belief, Cumberland County's appointed orisie intervention service provider. 6. On November 16, 2000, Holy Splrlt was contacted by the mother and friend of Ryan Schorr, Susan Schorr and Matthew Gaumer, respectively. 7. Based upon this request and information provided to it, Holy Spirit's crisis intervention unit requested that an involuntary commitment order be issued pursuant to § 302 of the Pennsylvania Mental Health Procedures Act. 8. Pursuant to an agreement with Cumberland County and authority provided to it, Holy Spirit issued an order for Ryan Schorr's involuntary commitment. 8. As evidenced by the issuance of such Order, Holy Spirit was aware that Mr. Schorr posed a dear and present danger to others and was a threat to inflict serious bodily harm to others. 10. Plaintiffs, as officers of the West Shore Regional Police Department, obtained the order and associated warrant. 11. Pursuant to such order and warrant, Plaintiffs traveled to Ryan Schorr's apartment, took Mr. Schorr into custody, and delivered him to Holy Spirit at approximately 8:17 a.m. 12. Upon presenting Mr. Schorr to Holy Spirit, Plaintiffs took him to the receptionist at the emergency room, 13. Mr. Schorr advised the receptionist that he wanted his bodyguard and his limousine and that if he didn't get it, he would kill her, 14. Plaintiffs were subsequently advised to place Mr. Schorr in Room 17 of the emergency department. 15, Room 17 of the emergency department is a specially adapted room used by Holy Spirit for patients that present a potential security risk. 2 16. Upon being placed In Room 17, Mr. Schorr became more and more agitated. 17. Based upon Mr, Schorr's conduct and condition, security was called for assistance. 18. Acting upon this request, one security officer and one emergency department technician arrived on the scene and remained in the area of Room 17. 19. The security officer and technician attempted to place an identification bracelet on Mr. Schores wrist, but such efforts were refused. 20. While attempting to place the identification bracelet on Mr. Schorr'e wrist, Mr. Schorr stated that he Intended to obtain a firearm, buy the hospital and blow it up with everyone in it. 21. Despite Mr, Schorr's clearly agitated and violent demeanor, the security officer left the scene, upon receiving a page, to handle another matter. 22. Based upon the observations and review of the § 302 paperwork, Holy Spirit was aware that Mr. Schorr was very belligerent and homicidal, 23. During the time of his confinement, no decisions were made regarding how to medically treat Mr. Schorr, 24. As a member of the hospital staff opened the door to enter Room 17, Mr. Schorr rushed toward her, pushed her backwards and ran out of the hosptal through the automatic doors located Immediately adjacent to Room 17. 3 25. Hospital staff attempted to pursue Mr. Schorr but were Instructed not to do so and, rather, to wait for the arrival of the hospital security staff. 26. At 9.07 a.m., Holy Spirit contacted 911, which routed its call to Country Control. 27, County Control contacted the West Shore Regional Police, and advised Officers Berresford and Hart of the situation, who then proceeded to the home of Mr. Schorr. 25. Plaintiffs entered Mr. Sc hores apartment and determined that Mr. Schorr was in an upstairs room. 29. While attempting to re-serve the § 302 warrant, a physical confrontation ensued during which Mr. Schorr physically attacked and assaulted the Plaintiffs. 90. During this confrontation, Plaintiff Berresford was wounded in his ring finger when his pistol was discharged after Mr, Schorr gained control of the firearm. 31. In order to protect both himself and Officer Berresford, Plaintiff Hart fired his gun at Mr. Schorr, thereby killing him. 32. Both Plaintiffs received serious physical injuries due to their confrontation with Mr. Schorr. 33. Both Plaintiffs suffered and continue to suffer serious mental distress as a result of this amfrontation, 4 Count I Gary W. Barresford and Harry S. Hart, Jr. v. Holy Spirit Hospital Negligence 34. Plaintiffs Incorporate Paragraphs 9 through 33, more fully set forth herein. 35. Holy Spirit, in Its capacity as a mental health provider and as the crisis intervention unit of Cumberland County, owes a duty to all members of the general public to keep them safe from harm from Individuals placed under its supervision and control. 36. Holy Spirit breached such duty by Its: a. Failure to properly train its staff, including their physicians, crisis intervention employees, emergency room attendees and nurses, in proper security and control measures; b. Failure to provide adequate security in general and in particular at its crisis intervention unit, c. Failure to adequately staff the emergency room and hospital; d. Failure to design, provide or maintain facilities suitable for the detention of mentally ill individuals who have been involuntarily committed; e. Failure to properly diagnose, evaluate and treat Ryan Schorr while under their control and confinement; and f. Failure to property supervise Ryan Schorr while under their control and confinement. Ii 36. Holy Spirit's actions or inactions, as set forth above, are both negligent and grossly negligent. 37. Due to Holy Spirit's negligence and gross negligence, the Plaintiffs have been seriously harmed and continue to suffer such harm. 38. Holy Spirit's actions and inactions were committed in a wanton and reckless manner. WHEREFORE, Plaintiffs respectfully request this Honorable Court enter judgment for them and against Defendant in an amount in excess of $25,000.00 and, further, award punitive damages and all other relief allowable under the law. Respeo0uly submitted, FENSTERMACHER AND ASSOCIATES, P.G. Ma m Supreme Court I.D. 972787 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiffs DATED: 8 VERIFICATION I, Gary W. Berreeford, hereby certify and verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knoWledge, information and belief. I understand that any false statements herein are subject to the penalties of 18 Pa. C. & §4904 relating to unworn falsification to authorities. a W. Beaesford DATE: February 6, 2002 VERIFICATION i, Harry S. Hart, Jr., hereby certify and verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are subject to the penalties of 1 B Pa. C. S. 64ON relating to unswom falsification to authorities. DATE: 1 7;j4 ?.?av2 Harry S. Hart, Jr, CERTIFICATE OF SERVICE AND NOW, an this 14111 day of February, 2002, 1, Mark K. Emery, Esquire, hereby certify that 1 have served the forgoing Complaint by mailing a true and correct copy by Certified Mail, Return Receipt Requested and United states first class mail, addressed as follows; Holy Spirit Hospital 503 North 21' Street Camp Ml, PA 17011 FENSTERMACHER AND ASSOCIATES, P.C. Elf: 4 K. ry GARY W. BERRESFORD and IN THE COURT OF COMMON PLEAS OF HARRY S. HART, JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : DOCKET NO. 01-7232 CIVIL KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR : JURY TRIAL DEMANDED Defendants : NOTICE TO DEFEND 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 serve, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 Bedford Street Carlisle, PA 17013 717-249-3166 EXHIBIT tr --- r 4160 GARY W. BERRESFORD and IN THE COURT OF COMMON PLEAS OF HARRY S. HART, JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : DOCKET NO. 01-7232 CIVIL KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR : JURY TRIAL DEMANDED Defendants : COMPLAINT AND NOW, comes the Plaintiffs, Gary W. Berresford and Harry S. Hart, Jr. by and through their attorney, Mark K. Emery, Esquire, and file this Complaint, as follows: 1. Plaintiff Gary W. Berresford ("Berresford") is an adult individual currently residing at 408 North Second Street, Wormleysburg, PA 17043, and at all times relevant to this Complaint was a police officer with the West Shore Regional Police Department. 2. Plaintiff Harry S. Hart, Jr. is an adult individual currently residing at 923 Emanuel Road, Lewisberry, PA 17339, and at all times relevant to this Complaint was a police officer with the West Shore Regional Police Department. 3. Defendant Keith I. Schorr is an adult individual with a last known address of 209 Summer Lane, Enola, PA 17025. 4. Defendant Susan Schorr is an adult individual with a last know address of 1419 Miller Road, Dauphin, PA 17018. 5. Defendants Keith I. Schorr and Susan Schorr are the Administrators of the Estate of Ryan K. Schorr. Said Estate is filed at 21-2000-1083 in the Register of Wills of Cumberland County. 6. On November 18, 2000 Ryan Schorr (hereinafter "Schorr") began acting in a threatening manner to his roommate, and other members of the public. 7. On such date Berresford and Hart were on duty with the West Shore Regional Police Department. 8. Officers Berresford and Hart responded to a warrant commitment involving Schorr, and transported Schorr to Holy Spirit Hospital. 9. Schorr subsequently left the hospital, and returned to his apartment in Wormleysburg, Pennsylvania. 10. Officers Berresford and Hart again responded to the call, and arrived at Schorr's apartment. 11. Upon arriving at Schorr's residence, Officers Berresford and Hart attempted to place Schorr under control peacefully. 12. Schorr immediately became violent, and attacked Officers Berresford and Hart. 13. Schorr attempted to obtain officer Berresford's firearm, and while doing so discharged the firearm, striking Berresford in the hand. 14. Schorr continued to physically assault Officers Berresford and Hart, including striking or attempting to strike the officers with a knife, metal pots and his fists. 15. Due to Schorrs actions Officers Berresford and Hart have suffered severe physical and psychological injuries, which they still suffer from today. 16. Schorr's conduct was done with malice and/or reckless indifference to the rights of Officers Berresford and Hart. COUNTI ASSAULT 17. Paragraphs 1 through 16 are incorporated fully herein by reference. 18. Schorr's actions were done with the intent to cause harmful or offensive contact and/or the intent to place Officers Berresford and Hart in imminent apprehension of harmful or offensive contact. 19. Officers Berresford and Hart did have an imminent apprehension that Schorr would engage in harmful or offensive contact, such harmful and offensive contact ultimately occurring. WHEREFORE, Plaintiffs Gary W. Berresford and Harry S. Hart, Jr. respectfully request this Honorable Court enter judgment for them, and against the Estate of Ryan Schorr, and further award costs, punitive damages and all other relief allowed by law. COUNT II BATTERY 20. Paragraphs 1 through 19 are incorporated fully herein by reference. 21. Schon's. conduct in attacking Officers Berresford and Hart, and otherwise physically assaulting them, has caused serious physical and psychological damages, such damages continuing as of the present, and shall continue in to the future. WHEREFORE, Plaintiffs Gary W. Berresford and Harry S. Hart, Jr. respectfully request this Honorable Court enter judgment for them, and against the Estate of Ryan Schorr, and further award costs, punitive damages and all other relief allowed by law. COUNT III NEGLIGENCE 22. Paragraphs 1 through 21 are incorporated fully herein by reference. 23. Schorr owed a duty to the public, including Officers Benresford and Hart, to act in a reasonable and safe manner, and to take all actions or precautions to eliminate threatening or violent behavior. 24. Schorr breached such duty by engaging in both a threatening and violent manner, and Officers Berresford and hart have suffered injuries and damages as a result of such breach. WHEREFORE, Plaintiffs Gary W. Berresford and Harry S. Hart, Jr. respectfully request this Honorable Court enter judgment for them, and against the Estate of Ryan Schorr, and further award costs, punitive damages and all other relief allowed by law. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquir7 Supreme Court I.D. o.2787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 DATE: 7' '? 3 Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, on this 8th day of July 2003, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Complaint by mailing a true and correct copy by United States first class mail, addressed as follows: Mr. Gerald J. Williams Williams, Cuker and Berezofsky One Penn Center at Suburban Station 1617 J.F.K. Boulevard Suite 800 Philadelphia, PA 19103-1819 LAW OFFICES OF MARK K. EMERY By: Mark I . emery VERIFICATION We, Gary W. Berresford and Harry S. Hart, Jr., hereby verify that we have read the foregoing Complaint and that the information contained therein is true and correct tot he best of our knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. , Gary W. B resford arty S. Hart, Jr. DATE: 7- 'U 3 4 GARY W.BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS V. HOLY SPIRIT HOSPITAL, DEFENDANT V. GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 KEITH I. SCHORR, and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, DEFENDANT JURY TRIAL DEMANDED IN THE COURT OF'COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO.01-7232 CIVIL 2001 JURY TRIAL DEMANDED - CERTIFICATE OF SERVICE AND NOW, on this 22 day of August 2005, I, Michael Pipa, Esquire, do hereby certify that I have served the foregoing Complaint by mailing a true and correct copy by United States first class mail, addressed as follows: Mark K. Emery, Esquire Law Offices of Mark K. Emery 410 North Second Street Harrisburg, PA 17101 (Counsel for Plaintiffs) Jeffrey Nydick, Esquire - Daniel Bencivenga, Esquire Gerald J. Williams, Esquire Williams, Cuker and Berezofsky One Penn Center at Suburban Station 1617 J.F.K. Boulevard, Ste. 800 Philadelphia, PA 19103-1819 (Counsel for Defendants Keith I. Schorr, Susan Schorr and the Estate of Ryan Schorr) fl n(--/) MICHAEL D. PIPA, E49UIRE Attorneys for Defendant, Holy Spirit Hospital \05 A\LIAB\GMI\LLPG\195048\TNW13246\00828 6 +r) by !^? (= e" •_-+ "TI -? ?"r=- - ?? - "- -;c -, - _; ,.,> 1 -- c GARY W. BERRESFORD AND HARRY S. HART, JR,. PLAINTIFFS V. HOLY SPIRIT HOSPITAL DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 JURY TRIAL DEMANDED GARY W. BERRESFORD and HARRY S. HART, JR., Plaintiffs V. KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 01-7232 CIVIL. JURY TRIAL DEMANDED AND NOW, come the Plaintiffs, by and through their attorney, Mark K. Emery, Esquire, and files this Answer to Defendant Holy Spirit Hospital's Motion for Summary Judgement Pursuant to the Political Subdivision Tort Claims Act, as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 1 5. Admitted upon information and belief. 6. Denied. Plaintiffs were not a parry to the federal action referenced by Defendant, and therefore Plaintiffs do not have sufficient information to either admit or deny the averments in regards to such action, and therefore Paragraph 6 is denied. 7. Denied as a conclusion of law. By way of further response, Plaintiffs incorporate Paragraph 6 herein by reference. 8. Admitted. 9. Denied. Plaintiff cites to no facts of record or other admissible evidence supporting its contention as to the reasons why Defendant Schorr was delivered to Holy Spirit Hospital. By way of further response, Paragraph 9 is based upon a writing, namely the contract entered into between Holy Spirit Hospital and Cumberland and Perry Counties, such contract being a writing which speaks for itself. 10. Paragraph 10 refers to a pleading which speaks for itself and is therefore denied. 11. Paragraph 11 refers to a pleading which speaks for itself and is therefore denied. 12. Admitted. 13. Admitted. 14. Admitted. 15. Admitted. 16. Paragraph 16 refers to an Order which speaks for itself, and is therefore denied. 17. Denied as a conclusion of law. 18. Denied as a conclusion of law. 19. Admitted. 2 20. Admitted. WHEREFORE, Plaintiffs Gary W. Berresford and Harry S. Hart, Jr., respectfully request this Honorable Court dismiss Defendant Holy Spirit Hospital's Motion for Summary Judgement. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By:? Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 DATE: January 3, 2006 Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, this 3`d day of January, 2006, I, Mark K. Emery, Esquire do hereby certify that I have served Plaintiffs' Answer to Defendant Holy Spirit Hospital's Motion for Summary Judgement Pursuant to the Political Subdivision Tort Claims Act by mailing a true and correct copy via United States first class mail, addressed as follows: Michael D. Pipa, Esquire MARSHALL DENNEHEY 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 William D. Breit, Esquire Breit Law, P.C. P.O. Box 822 Virginia Beach, VA 23451 LAW OFFICES OF MARK K. EMERY By: Mark K. Emery I--- . F r Fr-B ( uua GARY W. BERRESFORD AND HARRY S. HART, JR,. PLAIN'T'IFFS V. HOLY SPIRIT HOSPITAL DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 JURY TRIAL DEMANDED GARY W. BERRESFORD and : IN THE COURT OF COMMON PLEAS HARRY S. HART, JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR DOCKET NO. 01-7232 CIVIL JURY TRIAL DEMANDED Defendants ORDER AND NOW, this 8 r- day of February, 2006, upon consideration of Plaintiffs' Motion to Amend Scheduling Order of December 1, 2005 and Strike case form by A?ceenneNt Argument Court List it is hereby ORDERED that Defendant's Motion for Summary Judgement is stricken from the February 15, 2006 Argument Court list, and the Scheduling Order of December 1, 2005 is hereby STAYED until such time as all pending discovery motions are ruled upon. BY THE COURT Kevin A. Hess, J. Distribution: Mark K. Emery, Esquire Michael D. Pipa, Esquire .-? J? d- 02° 0L William D. Breit, Esquire j I k Y GARY W.BERRESFORD AND HARRY S. HART, JR,. PLAINTIFFS V. HOLY SPIRIT HOSPITAL DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 JURY TRIAL DEMANDED GARY W.BERRESFORD and HARRY S. HART, JR., Plaintiffs V. KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 01-7232 CIVIL JURY TRIAL DEMANDED PLAINTIFFS' MOTION TO AMEND SCHEDULING ORDER OF DECEMBER 1, 2005 AND STRIKE CASE FROM ARGUMENT COURT LIST AND NOW, comes the Plaintiffs, by and through their attorney, Mark K. Emery, Esquire, and files this Motion to Amend Scheduling Order of December 1, 2005 and Strike Case from Argument Court List, as follows: 1. As the result of a Status Conference, the Honorable Kevin A. Hess issued a scheduling order dated December 1, 2005. A copy of such Order is attached hereto as Exhibit "A". 2. Pursuant to such Order, discovery was extended to March 1, 2006. 3. In addition, pursuant to the scheduling Order Defendant's Motion for Summary Judgment was to be listed for the February 15, 2006 Argument Court date. Currently Defendant's Motion for Summary Judgment is listed for argument for February 15, 2006. 5. Plaintiff's propounded valid discovery requests upon Defendants on December 30, 2005, such discovery addressing issues which are relevant and material to Defendant's Motion for Summary Judgement. 6. Defendants have served objections to such discovery, and did so only recently on February 1, 2006. Plaintiffs have, concurrently herewith, filed a Motion to Deem Requests Admitted, or Alternatively, Motion to Compel Answers to request for Admissions, and Motion for Sanctions and Attorney's Fees. ("Discovery Motion") A copy of such Motion is attached hereto as Exhibit "B". As the disposition of Plaintiff's Discovery Motion would have direct impact and bearing on the disposition of Defendant's Motion for Summary Judgment, including, but not limited to, the presentation of all relevant and pertinent facts to necessary for the Court to make a determination on summary judgement, it is hereby requested that the Motion for Summary Judgement be stricken from the February 15, 2006 Argument Court list. As it can not be determined at this time when the Discovery motion will be addressed, it is further requested that the scheduling order of December 1, 2005 be stayed until such time as a new scheduling order can be established based upon the conclusion of discovery requested under the Discovery Motion. 10. Pursuant to Local Rule 206-2 counsel for Defendant was advised of the intention to file this Motion and was requested to consent to the request therein. As the courtesy of a response was not provided, it is assumed Defendant does not concur. 2 WHEREFORE, Plaintiffs respectfully request this Honorable Court strike the listing of Defendant's motion for Summary Judgement from the February 15, 2006 Argument Court list, and stay the Scheduling Order of December 1, 2005 until such time as Plaintiff s Discovery Motion is heard and ruled upon. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 DATE: February 7, 2006 Attorney for Plaintiffs Y X GARY W. BERRESFORD and HARRY S. HART, JR., Plaintiffs vs. HOLY SPIRIT HOSPITAL, Defendant GARY W. BERRESFORD AND HARRY S. HART, JR., Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-6498 CIVIL JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-7232 CIVIL KEITH I. SCHORR and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, Defendants JURY TRIAL DEMANDED IN RE: STATUS CONFERENCE ORDER AND NOW, this day of December, 2005, following conference with counsel for the plaintiffs and with counsel for Holy Spirit Hospital, a conference which counsel for Keith I. Schorr et al. did not attend, the following scheduling order is entered: 1. All discovery in this case, including the furnishing of defense expert reports, shall be completed by March 1, 2006. 2. The pending summary judgment motion of defendant, Holy Spirit Hospital, will be listed for argument no later than the session to be held on February 15, 2006. 3. Counsel may list this case for trial during the week of June 12, 2006. EXHIBIT a Inasmuch as counsel for Keith I. Schorr, et al., did not appear at the conference, said counsel shall be estopped from objecting to this scheduling order after December 16, 2005. BY THE COURT, -Al" Hess, J. Mark K. Emery, Esquire For the Plaintiffs Michael D. Pipa, Esquire For the Defendant Gerald J. Williams, Esquire William D. Breit, Esquire For Keith I. Schorr, et al. :rlm I j GARY W. BERRESFORD AND HARRY S. HART, JR,. PLAINTIFFS V. HOLY SPIRIT HOSPITAL DEFENDANT GARY W.BERRESFORD and HARRY S. HART, JR., Plaintiffs V. KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 01-7232 CIVIL JURY TRIAL DEMANDED PLAINTIFFS' MOTION TO DEEM REQUESTS FOR ADMISSIONS ADMITTED OR, ALTERNATIVELY, MOTION TO COMPEL ANSWERS TO REQUEST FOR ADMISSIONS, AND MOTION FOR SANCTIONS AND ATTORNEY'S FEES AND NOW, comes the Plaintiffs, by and through their attorney, Mark K. Emery, Esquire, and files this Motion to Deem Requests for Admissions Admitted or, Alternatively, Motion to Compel Answers to Request for Admissions, and Motion for Sanctions and Attorney's Fees, as follows: On December 1, 2005 a Status Conference was held before the Honorable Kevin A. Hess. EXHIGI I d a a 2. At such Status Conference, inter alia, the Court established a discovery deadline of March 1, 2006. A copy of Judge Hess' Status Conference Order is attached hereto as Exhibit "A". 3. At such Status Conference counsel for Defendant served a Motion for Summary Judgment, raising a defense of qualified immunity. 4. On December 30, 2005 Plaintiffs served upon Defendant a Request for Admissions - Second Set. A copy of these Requests are attached hereto as Exhibit "B". Service, pursuant to Pa. R.C.P. 440 (b), was complete upon mailing on December 30, 2005, and therefore the computation of time commenced that day. Pursuant to Pa. R.C.P. 4014(b), all matters are admitted unless an answer or objection to the Request for Admission is served within 30 days of service. Rather than provide Answers to any of the valid requests for Admissions, Defendants asserted bad faith and meritless objections to all Requests. A copy of Defendant's objections are attached hereto as Exhibit "C". Defendants did not serve their objections to the Request for Admissions until February 1, 2006, which is outside of the time period allowed by statute. The time for service, as set forth in Pa. R.C.P. 4014(b) wold have been no later than January 30, 2006. 8. Defendants timed the service of their baseless objections in order to inhibit Plaintiff's ability to defend their Motion for Summary Judgment, scheduled for Argument Court on February 15, 2006. 2 9. Aside from the fact Defendant served its Objections outside of the time period allowed by statue, Defendant's objections are without merit, and propounded solely for the purpose of inhibiting proper discovery and again delaying the litigation. 10. Defendants lengthy objections are essentially a claim that discovery should not be allowed after a motion for summary judgment is filed. Defendant cites to no statute, caselaw or court ruling as a support for such contention, as no such support exists. 11. Defendant's objections ignore both the Rules of Civil Procedure and this Court's order of December 1, 2005, which specifically establishes a discovery deadline. 12. The Rules of Civil Procedure pertaining to discovery, Pa. R.C.P 4001 et seq., place no time limitation on propounding discovery requests, or in any way limit the use of discovery once a motion for summary judgment is filed. 13. Defendant argues that Pa.R.C.P 1035.3 allows a party to assert in response to a motion for summary judgment that it cannot present evidence essential to justify the opposition to a motion and propose action to be taken to present such evidence. 14. Defendant makes a substantial leap in logic to argue that because Plaintiff did not assert such in their Answer to the Motion for Summary Judgment, they are prohibited from conducting any discovery in order to present a full and complete factual record to the Court in considering Defendant's Motion. 15. Such position ignores that at the Status Conference a continuation of discovery was specifically discussed and agreed upon, thereby negating the need to assert 3 additional discovery was needed in Plaintiffs' Answer to the Motion or Summary Judgment. 16. But for Defendant's bad faith objections, discovery would have been complete in time to supplement the record, as allowed under Pa. R.C.P. 1035.3, prior to the Court's adjudication of the Motion for Summary Judgment. 17. Defendants' objections are for the sole purpose of evading proper discovery requests in order to shield from the Court's determination of its Motion for Summary Judgment facts harmful to its case. 18. Defendant's position that the Request for Admissions were not timely, as baseless as it is, would have been properly asserted by a Motion for Protective Order under Pa. R.C.P. 4012, not by simply filing objections to otherwise valid discovery requests. 19. Defendant has undertaken a course of conduct designed solely to delay the proper adjudication of this matter, such course being a hallmark of its conduct throughout this litigation. WHEREFORE, Plaintiffs respectfully request this Honorable Court deem all Request for Admissions admitted as Defendant failed to timely file its objections, or, alternatively, Order Defendant to serve full and complete answers to the Request for Admissions within 10 days. MOTION FOR SANCTIONS AND ATTORNEYS FEES 20. Paragraphs 1 through 19 are incorporated fully herein by reference. 21. As set forth above, Defendant has failed to make discovery as required under Pa. R.C. P. 4014 and the Court's scheduling order of December 1, 2005. 4 22. Pursuant to Pa.R.C.P. 4019(a)(viii) the Court may sanction Defendant for this bad faith conduct. 23. Defendant's conduct is part and parcel of their dilatory conduct throughout the course of this litigation. 24. Defendant attaches as a support for its baseless objections correspondence from the undersigned, sent over the course of the last year, demanding Defendant to cease their dilatory conduct. Defendant now claims its past dilatory conduct is the justification for delaying this matter even further by filing baseless objections to valid and authorized discovery requests. WHEREFORE, Plaintiffs respectfully request this Honorable Court enter sanctions against Defendant, and further award attorney's fees in an amount to be determined. LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 DATE: February 7, 2006 Attorney for Plaintiffs 5 GARY W. BERRESFORD and IN THE COURT OF COMMON PLEAS OF HARRY S. HART, JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW VS. NO. 01-6498 CIVIL HOLY SPIRIT HOSPITAL, Defendant JURY TRIAL DEMANDED GARY W. BERRESFORD AND IN THE COURT OF COMMON PLEAS OF HARRY S. HART, JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. CIVIL ACTION - LAW NO.01-7232 CIVIL KEITH I. SCHORR and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, Defendants JURY TRIAL DEMANDED IN RE: STATUS CONFERENCE ORDER AND NOW, this " day of December, 2005, following conference with counsel for the plaintiffs and with counsel for Holy Spirit Hospital, a conference which counsel for Keith I. Schorr et al. did not attend, the following scheduling order is entered: 1. All discovery in this case, including the furnishing of defense expert reports, shall be completed by March 1, 2006. 2. The pending summary judgment motion of defendant, Holy Spirit Hospital, will be listed for argument no later than the session to be held on : ebruary 15, 2006. 3. Counsel may list this ca_? Ior u'i8l during the w_ek of June 12, 2006. Inasmuch as counsel for Keith I. Schorr, et al., did not appear at the conference, said counsel shall be estopped from objecting to this scheduling order after December 16, 2005. BY THE COURT, Hess, J. Mark K. Emery, Esquire For the Plaintiffs Michael D. Pipa, Esquire For the Defendant Gerald J. Williams, Esquire William D. Breit Esquire For Keith I. Schorr, et al. :rhn GARY W. BERRESFORD AND HARRY S. HART, IF,. PLAINTIFFS V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 HOLY SPIRIT HOSPITAL DEFENDANT GARY W. BERRESFORD and HARRY S. HART, JR., Plaintiffs JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR Defendants DOCKET N0.01-7232 CIVIL JURY TRIAL DEMANDED PLAINTIFFS' REQUEST FOR ADA USSIONS - SECOND SET TO: Holy Spirit Hospital c/oMichael D. Pipa, Esquire MARSHALL DENNEHEY 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 These Request for Admissions are propounded pursuant to the Pennsylvania Rules of Civil Procedure and are to be answered by the Defendant in accordance therewith. Defendant is required to answer these Requests for Admissions in writing under oath, based upon all information available to her and to her attorneys, employees, and other agents, or representatives. Defendant is also required to serve answers to these Request for Admissions within thirty (30) days, to the offices of Plaintiffs' counsel, The Law Offices of 'lark K. Emery, 410 North Second Street, Harrisburg, PA 17101, and supplement her answers in accordance with the Pennsylvania Rules of Civil Procedure. INSTRUMONS 1. The following Requests for Admissions are to be answered in writing, verified, and served upon the undersigned within thirty (30) days of service upon you. Objections must be signed by the attorney raising the objection. In answering, you must furnish any and all information available to you, your employees, representatives, agents and attorneys. Your answers must be supplemented and amended as required by the Pennsylvania Rules of Civil Procedure. 2. With respect to any claim of privilege or immunity from discovery, you must identify the privilege or immunity asserted and provides sufficient information to substantiate the claim. 3. In lieu of identifying documents in response to these Request for Admissions, you may provide copies of such documents with appropriate references to the corresponding Request. 4. These Requests for Admissions shall be construed and interpreted in accordance with the Pennsylvania Rules of Civil Procedure. "Hospital", as used herein, shall refer to Holy Spirit Hospital and its affiliates. 6. "Schorr", as used herein, shall mean Ryan Schorr. 2 On November 18, 2000, Holy Spirit did not provide treatment to Schorr. ANSWER: 2. Neither Cumberland nor Perry County control the security policies of Holy Spirit Hospital. ANSWER: Neither Cumberland nor Perry Counties control the staffing of security guards, including the number of guards on duty at any one time, at Holy Spirit hospital ANSWER: 4. Neither Cumberland nor Perry County control the training of security guards at Holy Spirit Hospital. ANSWER: Holy Spirit Hospital is a privately owned and operated health care facility. ANSWER: 3 6. Holy Spirit Hospital provides medical services through its emergency rooms services that are in no way affiliated or connected to its contract with Cumberland-Perry Counties Mental Health-Mental Retardation Program. ANSWER: Holy Spirit Hospital maintains insurance coverage separate from Cumberland and Perry Counties. ANSWER: 8, None of Candace Highfield, Carol Joerger, Dr. David Spurrier and Cory Graby are employed by Cumberland or Perry Counties. ANSWER: None of Candace Highfreld, Carol Joerger, Dr. David Spurrier and Cory Graby are under the supervision or control of Cumberland or Perry Counties.. ANSWER: 4 10. The security procedures of Holy Spirit Hospital are not established by Cumberland or Perry Counties. ANSWER: 11. The security procedures of Holy Spirit Hospital are not monitored or reviewed by Cumberland or Perry Counties. ANSWER: 12. The security procedures of Holy Spirit Hospital are established and performed solely under the direction and control of Holy Spirit Hospital. ANSWER: 13. Neither Cumberland nor Perry Counties make payment to Holy Spirit Hospital for the security services or personnel provided or employed by Holy Spirit Hospital. ANSWER: 14. Pursuant to the Cumberland-Perry Counties Mental Health-Mental Retardation Program Contract, Holy Spirit Hospital is "an independent contractor and not an agent, servant, or employee of [Cumberland or Perry] County". ANSWER: 5 15. The Cumberland-Perry Counties Mental Health-Mental Retardation Program Contract does not address or control the security staffing, programs or implementation by Holy Spirit Hospital. ANSWER: DATE: December 30, 2005 Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiffs 6 { CERTIFICATE OF SERVICE AND NOW, this 30th day of December, 2005, I, Mark K. Emery, Esquire do hereby certify that I have served Plaintiffs' Request for Admissions, Second Set by mailing a true and correct copy via United States first class mail, addressed as follows: Michael D. Pipa, Esquire MARSHALL DENNEHEY 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 William D. Breit, Esquire Breit Law, P.C. P.O. Box 822 Virginia Beach, VA 23451 LAW OFFICES OF MARK K. EMERY By: ? Z? - Mark K. Emery GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS V. HOLY SPIRIT HOSPITAL, DEFENDANT IN THE COURT OF COMMORPLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 JURY TRIAL DEMANDED GARY W. BERRESFORD AND IN THE COURT OF COMMON PLEAS HARRY S. HART, JR., CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. DOCKET NO.01 7232 CIVIL 2001 KEITH I. SCHORR, and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, JURY TRIAL DEMANDED DEFENDANT " RESPONSE OF DEFENDANT HOLY SPIRIT HOSPITALT'O PLAINTIFFS' REQUEST FOR ADMISSIONS - SECOND SET Defendant Holy Spirit Hospital objects to the Plaintiffs' Request for Admissions - Second Set in its entirety and to-each-and every one of the fifteen (15) requested admissions in the Second Set. Defendant objects because the request is untimely, would case unreasonable annoyance, oppression, burden and expense, and appears at least in part to have been sought in bad faith. For a significant amount of time, approaching one year, Plaintiffs' through their counsel have repeatedly asserted that discovery in this matter is either complete or near completion and that the case should be listed for trial promptly. Letters from Plaintiffs' counsel to this effect, dated March 18, 2005, July 6, 2005 and August 10, 2005 are attached to this response. 1. F l < ? Further, Plaintiffs represented to the Court in the August 10, 2005 letter and their uncontested Motion for Continuance / Rescheduling that the case was ready for trial. In addition, Plaintiffs' attended a status conference in this case on December 1, 2005, and asked that the case be listed for trial promptly on the basis that all necessary discovery in order to present the case at trial had been completed. Moreover, the substance of Plaintiffs' Request for Admissions - Second Set appear to be directed toward arguments that Plaintiffs might raise in response to a pending Motion for Summary Judgment filed by the Hospital on or about December 1, 2005. Under Pa.R.C.P. No. 1035, a motion for summary judgment maybe filed at the close of all relevant discovery. The Motion for Summary Judgment filed by the Hospital is the second Motion for Summary Judgment filed in this case. Rule 1035 provides a method through which a party opposing summary judgment may supplement the factual record in the case within thirty days or alert the movant and the Court that the opposing party believes that more than thirty days is necessary in order to conduct further discovery to sufficiently develop the factual record. Specially, Rule 1035.3 provides that, within thirty days after the filing for motion a summary judgment, the adverse party must file a response, in which case the adverse party has several options. The options include: "(b) an adverse party may supplement the record or set forth the reasons why the parry cannot present evidence essential to justify opposition to the motion and any action proposed to be taken by the party to present such evidence." Rule 1035.3(b). In response to Holy Spirit Hospital's Motion for Summary Judgment, Plaintiffs' did not supplement the record and did not set forth any reasons why they could not present evidence essential to oppose the motion or any proposed action (such as further discovery). Instead, Plaintiffs simply filed an Answer to the Motion in which they admitted many of the contentions in the Motion, denied others as conclusions of law, and claimed that several of the paragraphs of the Motion refer to pleadings that speak for themselves. In any event, Plaintiffs did not, under Rule 1035.3, assert the need for any further discovery. Defendant Holy Spirit Hospital therefore respectfully submits that discovery in this matter, particularly as it pertains to the Motion for Summary Judgment under the Political Subdivision Tort Claims Act, is closed, primarily at the insistence of Plaintiffs. Defendant Holy Spirit Hospital has listed the Motion for Summary Judgment for disposition pursuant to the Court's Order, which Order was obtained at a status conference during which the Motion for Summary Judgment and the thirty day response period were discussed. Defendant Holy Spirit Hospital objects to further discovery now. Defendant respectfully submits that it is burdensome, oppressive, designed to delay a decision on the merits, designed to harass, and otherwise suggestive of bad faith for Plaintiffs to now seek further discovery, especially given the clarity of the applicable rule of procedure. By way of further answer, and without waiving any objection, Defendant Holy Spirit Hospital also objects to the Request for Admissions because the subject matter, including the terms and conditions of the written contract issued by Cumberland and Perry Counties for the provision of mental health crisis intervention services, has already been discussed thoroughly during the depositions in this case. Further, in Plaintiffs' answer to Paragraph 9 of Holy Spirit . Hospital's Motion, Plaintiffs' claim that there is no evidence supporting the Hospital's contention about why Ryan Schorr was brought to the Hospital. However, it is undisputed that the Plaintiff Police Officers were serving a Section 302 a warrant at the time, as they have testified in their depositions and so pled in their Complaint in this action. For Plaintiffs to now suggest that the reason for bringing Ryan Schorr to Holy Spirit Hospital is unknown or not established or in any way a proper subject of further discovery or a genuine issue of fact for trial reflects the unreasonable annoyance, oppression, burden or expense to Holy Spirit Hospital as a result of this proposed discovery and suggests that this discovery is sought in bad faith. Plaintiffs have many times asserted that this matter is ready for trial. Plaintiffs filed an Answer to Holy Spirit Hospital's pending Motion for Summary Judgment and did not, in that Answer, claim that any additional time was necessary in order to supplement the factual record. The factual record for purposes of summary judgment is now closed. Defendant Holy Spirit Hospital therefore respectfully objects to this attempt to conduct discovery relevant to the Motion for Summary Judgment. All other specific objections to each and every one of the fifteen requests are specifically reserved and preserved. Respectfully submitted, MARSHALL, AENNEHEY, WARNER, COLEMAN & GOGGIN DATE: February 1, 2006 BY:-4? MICHAEL D. PIP ESQUIRE PA 53624 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorneys for Defendant, Holy Spirit Hospital LAW OFFICES OF MARK K EMERY 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Mark K. Emery, Esquire Fax (717) 238-98Q4 e-mail memerylaw@aol.com March 18, 2005 Michael D. Pipa, Esquire MARSHALL DENNEHEY 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 RE: Berresford et al. v. Holy Spirit Hospital No. 6498-2001 (Cumberland) Dear Mike: I had left a message for you on March 16, 2005, but have received no response. Therefore, this letter is to inform you that I will wait no longer to move this matter to trial. 1 believe it is fair to say that I have provided the utmost professional courtesy, and my demand now is more than reasonable. I will provide until the end of this month for you to file your contemplated Motion for Summary Judgment. If it is not filed by such time I will fist this matter for trial on April 1, 2005. Thank you. Very truly yours, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery MKElvh D P MAO 2 1 U Y LAW OFFICES OF MARK K. EMERY 410 North Second Street Harrisburg, PA 17102 (717) 238-9883 Mark K. Emery, Esquire July 6, 2005 The Honorable Kevin A. Hess Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Fax (717) 238-9884 e-mail memerylaw@aol.com RE: Berresford et. al. v. Holy Spirit Hospital No. 06498-2001 Dear Judge Hess: Enclosed please find a courtesy copy of Plaintiffs Uncontested Motion for ?-' Continuance/Rescheduling. As stated therein, I am on vacation on the date scheduled for argument on my clients' Motion for Leave of Court to Conduct V U Discovery Relevant to Punitive Damages. I therefore respectfully request a V U 3D rescheduling of that argument. n As also noted. in the Motion, this matter is ready for trial. I am concerned that my conflict of schedule will move the argument back further, thereby delaying the ability to list the matter for trial. I therefore respectfully request that, if possible, the argument be rescheduled at an earlier date and time. I have noted in the Motion dates that opposing counsel, Michael D. Pipa, Esquire, is unavailable. 1 appreciate your consideration of this request, and apologize for any inconvenience it may cause. Thank you. Very truly yours, LAW OFFICES OF MARK K. EMERY By: MKEIvh Enclosure cc: Michael D. Pipa, Esquire (w/enc.) Mark K. Emery JUL - 7 2005 4? LAW OFFICES OF MARK K. EMERY 410 North Second Street Harrisburg, PA 17101 (717) 238.9883 Mark K. Emery, Esquire Fax (717) 238-9884 bC e-mail memerylaw@aol.com August 10, 2005 Michael D. Pipa, Esquire MARSHALLDENNEHEY 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 RE: Berresford et al. v. Holy Spirit Hospital No. 6498-2001 (Cumberland) Dear Mike: I write to specifically put you on notice that upon the resolution of my discovery motion as to punitive damages intend to list this matter for trial. At that time I will move to consolidate this action with the Schorr Estate action. I have confirmed with Holy Spirit's prior counsel that they had concluded discovery. I do not believe any further discovery is necessary, and you have taken no steps to conduct any discovery since you entered your appearance. If you truly believe additional discovery is necessary, then you should commence such immediately. Lastly, I do not believe a status conference is necessary. If that is your belief, than you are certainly able to request one. However, just as with the discovery issue, I will accept no further delays in bringing this matter to trial. Should you have any questions, or wish to discuss this matter further, please contact me. Thank you. AUG y 1. 2005 u' M KE/vh Very truly yours, LAW OFFICES OF MARK K. EMERY Mark K. Emery GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. HOLY SPIRIT HOSPITAL, DEFENDANT DOCKET NO. 06498-2001 JURY TRIAL DEMANDED GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS V. KEITH I. SCHORR, and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO.01-7232 CIVIL 2001 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Michael D. Pipa, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on February 1, 2006, 1 served a copy of the Response of Defendant Holy Spirit Hospital to Plaintiffs' Request for Admissions - Second Set via first class regular mail as follows: Mark K. Emery, Esquire Law Offices of Mark K. Emery 410 North Second Street Harrisburg, PA 17101 William D. Breit, Esquire Breit Law, P.C. Post Office Box 822 Virginia Beach, VA 234 1 Jeffrey Nydick, Esquire Williams; Cuker and Berezofsky One Penn Center at Suburban Station 1617 J.F.K. Boulevard, Ste. 800 Philadelphia, PA 19103-1819 Michael D. Pid?a \05_A\LIAB\MEPT ISC\210651 \KP M\ 13246\00828 x. CERTIFICATE OF SERVICE AND NOW, this 7th day of February, 2006, I, Mark K. Emery, Esquire do hereby certify that I have served Plaintiffs' Motion to Amend Scheduling Order of December 1, 2005 and Strike Case from Argument Court List, by mailing a true and correct copy via United States first class mail, addressed as follows: Michael D. Pipa, Esquire MARSHALL DENNEHEY 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 William D. Breit, Esquire Breit Law, P.C. P.O. Box 822 Virginia Beach, VA 23451 LAW OFFICES OF MARK K. EMERY Byi?? Mark K. Emery ?(€'?xl?La`?NLI b X:K?'suL`w +9Y{(z3Alisl4C'§? 1 ... ...vs uirv CJ ?J T71 ti C-n 01, -< GARY W. BERRESFORD AND HARRY S. HART, JR,. PLAINTIFFS V. HOLY SPIRIT HOSPITAL DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 JURY TRIAL DEMANDED GARY W. BERRESFORD and HARRY S. HART, JR., Plaintiffs V. KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V/DOCKET NO. 01-7232 CIVIL JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW MOTION TO DEEM REQUEST FOR ADMISSIONS ADMITTED OR, ALTERNATIVELY, MOTION TO COMPEL ANSWERS TO REQUEST FOR ADMISSIONS, AND MOTION FOR SANCTIONS AND ATTORNEY'S FEES TO THE PROTHONOTARY: Please withdraw Plaintiffs' Motion to Deem Requests for Admissions Admitted or, Alternatively, Motion to Compel Answers to Request for Admissions, and Motion for Sanctions and Attorney's Fees. Respectfully submitted LAW OFFICES OF MARK K. EMERY By: Marc K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 DATE: February 9, 2006 Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, this 9a' day of February, 2006, I, Mark K. Emery, Esquire do hereby certify that I have served Plaintiffs' Praecipe to Withdraw Motion to Deem Requests for Admissions Admitted or, Alternatively, Motion to Compel Answers to Request for Admissions, and Motion for Sanctions and Attorney's Fees by mailing a true and correct copy via United States first class mail, addressed as follows: Michael D. Pipa, Esquire MARSHALL DENNEHEY 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 William D. Breit, Esquire Breit Law, P.C. P.O. Box 822 Virginia Beach, VA 23451 LAW OFFICES OF MARK K. EMERY By: Mark K. Emery a sp Tl 'i , n-I S^ •K ?2? GARY W. BERRESFORD and HARRY S. HART, JR., Plaintiffs vs. HOLY SPIRIT HOSPITAL, Defendant GARY W. BERRESFORD AND HARRY S. HART, JR., Plaintiffs VS. KEITH I. SCHORR and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-6498 CIVIL JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-7232 CIVIL JURY TRIAL DEMANDED IN RE: PLAINTIFFS' MOTION TO COMPEL ANSWERS ORDER AND NOW, this day of February, 2006, a rule is issued on the defendants to show cause why the relief requested in the within motion to compel ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, Mark K. Emery, Esquire For the Plaintiffs Michael D. Pipa, Esquire For the Defendant Gerald I Williams, Esquire William D. Breit, Esquire For Keith I. Schorr, et al. :rlm '2 ./6.06 L? GARY W. BERRESFORD AND HARRY S. HART, K. PLAINTIFFS HOLY SPIRIT HOSPITAL DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 JURY TRIAL DEMANDED GARY W. BERRESFORD and IN THE COURT OF COMMON PLEAS HARRY S. HART, JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. L /DOCKET NO. 01-7232 CIVIL KEITH I. SCHORR and V SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR JURY TRIAL DEMANDED Defendants ORDER AND NOW, this day of February, 2006, upon consideration of Plaintiffs' Motion to Compel Answers to Requests for Admissions, it is hereby ORDERED that Defendant Holy Spirit Hospital shall serve full and complete Answers to all Request for Admissions within 20 days of the date of this Order. Distribution: Mark K. Emery, Esquire Michael D. Pipa, Esquire William D. Breit, Esquire BY THE COURT Kevin A. Hess, J. I GARY W. BERRESFORD AND HARRY S. HART, JR,. PLAINTIFFS V. HOLY SPIRIT HOSPITAL DEFENDANT GARY W. BERRESFORD and HARRY S. HART, JR., Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 01-7232 CIVIL KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR JURY TRIAL DEMANDED Defendants PLAINTIFFS' MOTION TO COMPEL ANSWERS TO REQUEST FOR ADMISSIONS AND NOW, comes the Plaintiffs, by and through their attorney, Mark K. Emery, Esquire, and files this Motion to Compel Answers to Request for Admissions, as follows: 1. On December 1, 2005 a Status Conference was held before the Honorable Kevin A. Hess. 2. At such Status Conference, inter aiia, the Court established a discovery deadline of March 1, 2006. A copy of Judge Hess' Status Conference Order is attached hereto as Exhibit "A". 3. At such Status Conference counsel for Defendant served a Motion for Summary Judgment, raising a defense of qualified immunity. 4. On December 30, 2005 Plaintiffs served upon Defendant a Request for Admissions - Second Set. A copy of these Requests are attached hereto as Exhibit "B". 5. Rather than provide Answers to any of the valid requests for Admissions, Defendants asserted objections to all Requests. A copy of Defendant's objections are attached hereto as Exhibit "C". 6. Defendants objections are essentially a claim that discovery should not be allowed after a motion for summary judgment is filed. Defendant cites to no statute, caselaw or court ruling as a support for such contention, as no such support exists. 7. Defendant's objections ignore both the Rules of Civil Procedure and this Court's Order of December 1, 2005, which specifically establishes a discovery deadline. 8. The Rules of Civil Procedure pertaining to discovery, Pa. R.C.P 4001 et seq., place no time limitation on propounding discovery requests, or in any way limit the use of discovery once a motion for summary judgment is filed. 9. Defendant argues that Pa.R.C.P 1035.3 allows a party to assert in response to a motion for summary judgment that it cannot present evidence essential to justify the opposition to a motion and propose action to be taken to present such evidence. 10. Defendant's objections argue that because Plaintiff did not assert such in their Answer to the Motion for Summary Judgment, they are prohibited from conducting any discovery aimed presenting a full and complete factual record to the Court in considering Defendant's Motion. 2 11. Such position ignores that at the Status Conference a continuation of discovery was specifically discussed and agreed upon, thereby negating the need to assert additional discovery was needed in Plaintiffs' Answer to the Motion for Summary Judgment. WHEREFORE, Plaintiffs respectfully request this Honorable Court Order Defendant to serve full and complete answers to the Request for Admissions within 20 days of the date of such Order Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, E e Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 DATE: February 9, 2006 Attorney for Plaintiffs 3 GARY W. BERRESFORD and HARRY S. HART, JR., Plaintiffs VS. HOLY SPIRIT HOSPITAL, Defendant GARY W. BERRESFORD AND HARRY S. HART, JR., Plaintiffs VS. KEITH I. SCHORR and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-6498 CIVIL JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-7232 CIVIL JURY TRIAL DEMANDED IN RE: STATUS CONFERENCE ORDER AND NOW, this " day of December, 2005, following conference with counsel for the plaintiffs and with counsel for Holy Spirit Hospital, a conference which counsel for Keith I. Schorr et al. did not attend, the following scheduling order is entered: 1. All discovery in this case, including the furnishing of defense expert reports, shall be completed by March 1, 2006. 2. The pending summary judgment motion of defendant, Holy Spirit Hospital, will be listed for argument no later than the session to be held on February 15, 2006. 3. Counsel may list this case for trial during the week of June 12, 2006. Inasmuch as counsel for Keith I. Schorr, et al., did not appear at the conference, said counsel shall be estopped from objecting to this scheduling order after December 16, 2005. BY THE COURT, Hess, J. Mark K. Emery, Esquire For the Plaintiffs Michael D. Pipa, Esquire For the Defendant Gerald J. Williams, Esquire William D. Breit, Esquire For Keith I. Schorr, et al. :rlm GARY W. BERRESFORD AND HARRY S. HART, JR,. PLAINTIFFS V HOLY SPIRIT HOSPITAL DEFENDANT GARY W. BERRESFORD and HARRY S. HART, JR., Plaintiffs V. KEITH I. SCHORR and SUSAN SCHORR, as Administrators of the Estate of RYAN K. SCHORR Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO, 06498-2001 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 01-7232 CIVIL JURY TRIAL DEMANDED PLAINTIFFS' REQUEST FOR ADMISSIONS - SECOND SET TO: Holy Spirit Hospital c/oMichael D. Pipa, Esquire MARSHALL DENNEHEY 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 These Request for Admissions are propounded pursuant to the Pennsylvania Rules of Civil Procedure and are to be answered by the Defendant in accordance therewith. Defendant is required to answer these Requests for Admissions in writing under oath, based upon all information available to her and to her attorneys, employees, and other agents, or representatives. Defendant is also required to serve answers to these Request for Admissions within thirty (30) days, to the offices of Plaintiffs' counsel, The Law Offices of Mark K. Emery, 410 North Second Street, Harrisburg, PA 17101, and supplement her answers in accordance with the Pennsylvania Rules of Civil Procedure. INSTRUCTIONS 1. The following Requests for Admissions are to be answered in writing, verified, and served upon the undersigned within thirty (30) days of service upon you_ Objections must be signed by the attorney raising the objection. In answering, you must furnish any and all information available to you, your employees, representatives, agents and attorneys. Your answers must be supplemented and amended as required by the Pennsylvania Rules of Civil Procedure. 2. With respect to any claim of.privilege or immunity from discovery, you must identify the privilege or immunity asserted and provides sufficient information to substantiate the claim. 3. In lieu of identifying documents in response to these Request for Admissions, you may provide copies of such documents with appropriate references to the corresponding Request. 4. These Requests for Admissions shall be construed and interpreted in accordance with the Pennsylvania Rules of Civil Procedure. 5. "Hospital", as used herein, shall refer to Holy Spirit Hospital and its affiliates. 6. "Schorr", as used herein, shall mean Ryan Schorr. 2 1. ' On November 18, 2000, Holy Spirit did not provide treatment to Schorr. ANSWER: 2. Neither Cumberland nor Perry County control the security policies of Holy Spirit Hospital. ANSWER: 3. Neither Cumberland nor Perry Counties control the staffing of security guards, including the number of guards on duty at any one time, at Holy Spirit hospital ANSWER: 4. Neither Cumberland nor Perry County control the training of security guards at Holy Spirit Hospital. ANSWER: Holy Spirit Hospital is a privately owned and operated health care facility. ANSWER: 3 6. Holy Spirit Hospital provides medical services through its emergency rooms services that are in no way affiliated or connected to its contract with Cumberland-Perry Counties Mental Health-Mental Retardation Program. ANSWER: Holy Spirit Hospital maintains insurance coverage separate from Cumberland and Perry Counties. ANSWER: 8. None of Candace Highfield, Carol Joerger, Dr. David Spurrier and Cory Graby are employed by Cumberland or Perry Counties. ANSWER: None of Candace Highfield, Carol Joerger, Dr. David Spurrier and Cory Graby are under, the supervision or control of Cumberland or Perry Counties.. ANSWER: 4 10. The security procedures of Holy Spirit Hospital are not established by Cumberland or Perry Counties. ANSWER: 11. The security procedures of Holy Spirit Hospital are not monitored or reviewed by Cumberland or Perry Counties. ANSWER: 12. The security procedures of Holy Spirit Hospital are established and performed solely under the direction and control of Holy Spirit Hospital. ANSWER: 13. Neither Cumberland nor Perry Counties make payment to Holy Spirit Hospital for the security services or personnel provided or employed by Holy Spirit Hospital. ANSWER: 14. Pursuant to the Cumberland-Perry Counties Mental Health-Mental Retardation Program Contract, Holy Spirit Hospital is "an independent contractor and not an agent, servant, or employee of [Cumberland or Perry] County". ANSWER: 5 15.' The Cumberland-Perry Counties Mental Health-Mental Retardation Program Contract does not address or control the security staffing, programs or implementation by Holy Spirit Hospital. ANSWER: DATE: December 30, 2005 Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiffs 6 CERTIFICATE OF SERVICE AND NOW, this 30a' day of December, 2005, I, Mark K. Emery, Esquire do hereby certifythat I have served Plaintiffs' Request for Admissions, Second Set by mailing a true and correct copy via United States first class mail, addressed as follows: Michael D. Pipa, Esquire MARSHALL DENNEHEY 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 William D. Breit, Esquire Breit Law, P.C. P.O. Box 822 Virginia Beach, VA 23451 LAW OFFICES OF MARK K. EMERY Mark K. Emery GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS V. HOLY SPIRIT HOSPITAL, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 JURY TRIAL, DEMANDED GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS V. KEITH I. SCHORR, and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO, 01-7232 CIVIL 2001 JURY TRIAL DEMANDED RESPONSE OF DEFENDANT HOLY SPHUT HOSPITAL TO PLAINTIFFS' REQUEST FOR ADMISSIONS - SECOND SET Defendant Holy Spirit Hospital objects to the Plaintiffs' Request for Admissions - Second Set in its entirety and to each and every one of the fifteen (15) requested admissions in the Second Set. Defendant objects because the request is untimely, would case unreasonable annoyance, oppression, burden and expense, and appears at least in part to have been sought in bad faith. For a significant amount of time, approaching one year, Plaintiffs' through their counsel have repeatedly asserted that discovery in this matter is either complete or near completion and that the case should be listed for trial promptly. Letters from Plaintiffs' counsel to this effect, dated March 18, 2005, July 6, 2005 and August 10, 2005 are attached to this response. Further, Plaintiffs represented to the Court in the August 10, 2005 letter and their uncontested Motion for Continuance f Rescheduling that the case was ready for trial. In addition, Plaintiffs' attended a status conference in this case on December 1, 2005, and asked that the case be listed for trial promptly on the basis that all necessary discovery in order to present the case at trial had been completed. Moreover, the substance of Plaintiffs' Request for Admissions - Second Set appear to be directed toward arguments that Plaintiffs might raise in response to a pending Motion for Summary Judgment filed by the Hospital on or about December 1, 2005. Under Pa.R.C.P. No. 1035, a motion for summary judgment maybe filed at the close of all relevant discovery. The Motion for Summary Judgment filed by the Hospital is the second Motion for Summary Judgment filed in this case. Rule 1035 provides a method through which a party opposing summary judgment may supplement the factual record in the case within thirty days or alert the movant and the Court that the opposing party believes that more than thirty days is necessary in order to conduct fiuther discovery to sufficiently develop the factual record. Specially, Rule 1035.3 provides that, within thirty days after the filing for motion a summary judgment, the adverse party must file a response, in which case the adverse party has several options. The options include: "(b) an adverse party may supplement the record or set forth the reasons why the party cannot present evidence essential to justify opposition to the motion and any action proposed to be taken by the party to present such evidence." Rule 1035.3(b). 2 In response to Holy Spirit Hospital's Motion for Summary Judgment, Plaintiffs' did not supplement the record and did not set forth any reasons why they could not present evidence essential to oppose the motion or any proposed action (such as further discovery). Instead, Plaintiffs simply filed an Answer to the Motion in which they admitted many of the contentions in the Motion, denied others as conclusions of law, and claimed that several of the paragraphs of the Motion refer to pleadings that speak for themselves. In any event, Plaintiffs did not, under Rule 1035.3, assert the need for any further discovery. Defendant Holy Spirit Hospital therefore respectfully submits that discovery in this matter, particularly as it pertains to the Motion for Summary Judgment under the Political Subdivision Tort Claims Act, is closed, primarily at the insistence of Plaintiffs. Defendant Holy Spirit Hospital has listed the Motion for Summary Judgment for disposition pursuant to the Court's Order, which Order was obtained at a status conference during which the Motion for Summary Judgment and the thirty day response period were discussed. Defendant Holy Spirit Hospital objects to further discovery now. Defendant respectfully submits that it is burdensome, oppressive, designed to delay a decision on the merits, designed to harass, and otherwise suggestive of bad faith for Plaintiffs to now seek further discovery, especially given the clarity of the applicable rule of procedure. By way of further answer, and without waiving any objection, Defendant Holy Spirit Hospital also objects to the Request for Admissions because the subject matter, including the terms and conditions of the written contract issued by Cumberland and Perry Counties for the provision of mental health crisis intervention services, has already been discussed thoroughly during the depositions in this case. Further, in Plaintiffs' answer to Paragraph 9 of Holy Spirit Hospital's Motion, Plaintiffs' claim that there is no evidence supporting the Hospital's contention about why Ryan Schorr was brought to the Hospital. However, it is undisputed that the Plaintiff Police Officers were serving a Section 302 a warrant at the time, as they have testified in their depositions and so pled in their Complaint in this action. For Plaintiffs to now suggest that the reason for bringing Ryan Schorr to Holy Spirit Hospital is unknown or not established or in any way a proper subject of further discovery or a genuine issue of fact for trial reflects the unreasonable annoyance, oppression, burden or expense to Holy Spirit Hospital as a result of this proposed discovery and suggests that this discovery is sought in bad faith. Plaintiffs have many times asserted that this matter is ready for trial. Plaintiffs filed an Answer to Holy Spirit Hospital's pending Motion for Summary Judgment and did not, in that Answer, claim that any additional time was necessary in order to supplement the factual record. The factual record for purposes of summary judgment is now closed. Defendant Holy Spirit Hospital therefore respectfully objects to this attempt to conduct discovery relevant to the Motion for Summary Judgment. All other specific objections to each and every one of the fifteen requests are specifically reserved and preserved. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATE: February 1, 2006 BY: L MICHAEL D. PIP ESQUIRE PA 53624 4200 Cru ns Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorneys for Defendant, Holy Spirit Hospital 4 { LAW OFFICES OF MARK K. EMERY 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Mark K. Emery, Esquire March 18, 2005 Michael D. Pipa, Esquire MARSHALL DENNEHEY 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Fax (717) 238-98Q4 e-mail memerylaw@aol.com RE: Berresford et al. v. Holy Spirit Hospital No. 6498-2001 (Cumberland) Dear Mike: I had left a message for you on March 16, 2005, but have received no response. Therefore, this letter is to inform you that I will wait no longer to move this matter to trial. I believe it is fair to say that I have provided the utmost professional courtesy, and my demand now is more than reasonable. I wiil provide until the end of this month for you to file your contemplated Motion for Summary Judgment. If it is not filed by such time I will list this matter for trial on April 1, 2005. Thank you. Very truly yours, MKE/vh LAW OFFICES OF MARK K. EMERY By: Mark K. Emery Gr 7? 7i D -? MAR 2 1 -? 5 LAW OFFICES OF MARK K EMERY 410 North Second Street Harrisburg, PA 17102 (717) 238-9883 Mark K. Emery, Esquire Fax (71?) 238-9884 e-mail memerylaw@aol.com July 6, 2005 The Honorable Kevin A. Hess Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Berresford et. al. v. Holy Spirit Hospital No. 06498-2001 Dear Judge Hess: Enclosed please find a courtesy copy of Plaintiffs Uncontested Motion for Continuance/Rescheduling. As stated therein, I am on vacation on the date ^ scheduled for argument on my clients' Motion for Leave of Court to Conduct Discovery Relevant to Punitive Damages. I therefore respectfully request a DD rescheduling of that argument. As also noted. in the Motion, this matter is ready for trial. I am concerned C9 that my conflict of schedule will move the argument back further, thereby delaying the ability to list the matter for trial. I therefore respectfully request that, if possible, the argument be rescheduled at an earlier date and time. I have noted in the Motion dates that opposing counsel, Michael D. Pipa, Esquire, is unavailable. I appreciate your consideration of this request, and apologize for any inconvenience it may cause. Thank you. Very truly yours, LAW OFFICES OF MARK K. EMERY By: MKE/vh Enclosure cc: Michael D. Pipa, Esquire (w/enc.) Mark K. Emery 11?@ 0 T M II JUL - 7 2005 1 13 a???p -lva's LAW OFFICES OF MARK K. EMERY 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Mark K. Emery, Esquire Fax (717) 238-9884 F e-mail memerylaw@aol.com August 10, 2005 Michael D. Pipa, Esquire MARSHALL DENNEHEY 4200 Crums Mill Road, Suite B Harrisbura, PA 17112 RE: Berresford et al. v. Holy Spirit Hospital No. 6498-2001 (Cumberland) Dear Mike: I write to specifically put you on notice that upon the resolution of my discovery motion as to punitive damages intend to list this matter for trial. At that time I will move to consolidate this action with the Schorr Estate action. I have confirmed with Holy Spirit's prior counsel that they had concluded discovery. I do not believe any further discovery is necessary, and you have taken no steps to conduct any discovery since you entered your appearance. If you truly believe additional discovery is necessary, then you should commence such immediately. Lastly, I do not believe a status conference is necessary. If that is your belief, than you are certainly able to request one. However, just as with the discovery issue, I will accept no further delays in bringing this matter to trial. Should you have any questions, or wish to discuss this matter further, please contact me. Thank you. T Fr; Very truly yours, LAW OFFICES OF MARK K. EMERY AUG 1 1 2005 CA MK vh By. Mark K. Emery 4 , r 1 GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS V. HOLY SPIRIT HOSPITAL, DEFENDANT i 1 ! 1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 JURY TRIAL DEMANDED GARY W.BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS V. KEITH 1. SCHORR, and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 01-7232 CIVIL 2001 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Michael D. Pipa, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on February 1, 2006, I served a copy of the Response of Defendant Holy Spirit Hospital to Plaintiffs' Request for Admissions - Second Set via first class regular mail as follows: Mark K. Emery, Esquire Law Offices of Mark K. Emery 410 North Second Street Harrisburg, PA 17101 William D. Breit, Esquire Breit Law, P.C. Post Office Box 822 Virginia Beach, VA 23451 Jeffrey Nydick, Esquire Williams, Cuker and Berezofsky One Penn Center at Suburban Station 1617 J.F.K. Boulevard, Ste. 800 Philadelphia, PA 19103-1819 1"029?? Michael D. P' \05_A\L1ABWEP\D1SC\21065 DKPM\13246\00828 , r 1 CERTIFICATE OF SERVICE AND NOW, this 7u day of February, 2006, I, Mark K. Emery, Esquire do hereby certify that I have served Plaintiffs' Motion to Amend Scheduling Order of December 1, 2005 and Strike Case from Argument Court List, by mailing a true and correct copy via United States first class mail, addressed as follows: Michael D. Pipa, Esquire MARSHALL DENNEHEY 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 William D. Breit, Esquire Breit Law, P.C. P.O. Box 822 Virginia Beach, VA 23451 LAW OFFICES OF MARK K. EMERY Mark K. Emery ? ? X 0 CERTIFICATE OF SERVICE 1 0 AND NOW, this 9a' day of February, 2006, I, Mark K. Emery, Esquire do hereby certify that I have served Plaintiffs' Motion to Compel Answers to Request for Admissions by mailing a true and correct copy via United States first class mail, addressed as follows: Michael D. Pipa, Esquire MARSHALL DENNEHEY 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 William D. Breit, Esquire Breit Law, P.C. P.O. Box 822 Virginia Beach, VA 23451 LAW OFFICES OF MARK K. EMERY By: Mark K. Emery r t C') N C's ^t ? . w 014t F ,0r. GARY W.BERRESFORD and HARRY S. HART, JR., Plaintiffs VS. HOLY SPIRIT HOSPITAL, Defendant GARY W. BERRESFORD AND HARRY S. HART, JR., Plaintiffs VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-6498 CIVIL JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-7232 CIVIL KEITH I. SCHORR and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, Defendants JURY TRIAL DEMANDED IN RE: PLAINTIFFS' MOTION TO COMPEL ANSWERS ORDER AND NOW, this Z f' day of March, 2006, argument on the plaintiffs' motion to compel answers to request for admissions set for April 6, 2006, is continued to Thursday, May 4, 2006, at 2:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Ato Vw JHI -. % 4. S Mark K. Emery, Esquire For the Plaintiffs Michael D. Pipa, Esquire For the Holy Spirit Hospital Gerald J. Williams, Esquire William D. Breit, Esquire For Keith I. Schorr, et al. 'j-'36-06 :rlm R GARY W. BERRESFORD and HARRY S. HART, JR., Plaintiffs V HOLY SPIRIT HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . CIVIL ACTION - LAW NO. 01-6498 CIVIL . JURY TRIAL DEMANDED GARY W. BERRESFORD and IN THE COURT OF COMMON PLEAS OF HARRY S. HART, JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V :,/NO. 01-7232 CIVIL KEITH I. SCHORR and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, JURY TRIAL DEMANDED Defendants IN RE: PLAINTIFF'S MOTION TO COMPEL ANSWERS ORDER OF COURT AND NOW, this 4th day of May, 2006, following argument thereon, the motion of the plaintiff to compel answers to outstanding requests for admissions is granted, and the defendant Holy Spirit Hospital is directed to file answers to said requests for admissions within thirty days. The Prothonotary is directed to list Holy Spirit Hospital's pending motion for summary judgment at the next regular session of Argument Court, to be held on July 12, 2006. The parties to file their briefs in accordance with local rule. In the event that a dispute should arise concerning any answers to the request for admissions, counsel are authorized to contact the court in an attempt to resolve the matter by an informal conference. By the Court, Kevi A. Hess, J. I f M 01-6498 CIVIL & 01-7232 CIVIL Mark K. Emery, Esquire For Plaintiff Geoffrey S. McInroy, Esquire For Holy Spirit Hospital :bg s ! of / Q 0PP eE ti/QJ5 a '?'Aev 0/(B ES ka GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS V. HOLY SPIRIT HOSPITAL, DEFENDANT GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS V. KEITH I. SCHORR, and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06499-2001 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 01-7232 CIVIL 2001 JURY TRIAL DEMANDED ANSWERS OF DEFENDANT HOLY SPIRIT HOSPITAL TO PLAINTIFFS' REQUEST FOR ADMISSIONS - SECOND SET AND NOW, comes Defendant Holy Spirit, through its counsel, and answers Plaintiffs' Request for Admissions - Second Set, as follows: 1. On November 18, 2000, Holy Spirit did not provide treatment to Schorr. ANSWER: Denied. As a preliminary matter, Holy Spirit objects to this request because the word "treatment" is ambiguous, capable of differing interpretations, and has not been defined specifically by the Plaintiffs. Without waiving this objection, and in light of the provisions of the Mental Health Procedures Act and the written agreement between Holy Spirit Hospital and Cumberland and Perry Counties, pursuant to which Holy Spirit Hospital provided services to Ryan Schorr as part of the Cumberland-Perry Counties Mental Health/Mental Retardation program, it is specifically denied that Holy Spirit Hospital did not provide treatment to Ryan Schorr. To the contrary, it is undisputed that Ryan Schorr was transported to Holy Spirit Hospital for Crisis Intervention Services under a warrant for involuntary commitment under the Mental Health Procedures Act. The warrant for treatment was executed by a delegate of Cumberland County in order to cause Ryan Schorr to be delivered, albeit against his will, to Holy Spirit Hospital for crisis intervention treatment under the Mental Health Procedures Act. Crisis intervention treatment was therefore the sole reason that Ryan Schorr presented to Holy Spirit Hospital on November 18, 2000. Ryan Schorr was therefore delivered to the Cumberland-Perry Counties Crisis Intervention Treatment Unit at Holy Spirit Hospital and, from the moment of his arrival on the premises, was considered to be and treated as a "client" of the County under the Contract. The health care personnel therefore attended immediately to Ryan Schorr. A medical treatment chart was opened and, Ryan Schorr, as a mental health patient, received initial intake and triage services. Among other things, Ryan Schorr was examined by a physician, David Spurrier, M.D. Dr. Spurrier's treatment of Ryan Schorr included an initial history and physical and assessment. These treatment services cannot legally be provided in Pennsylvania without a medical license. These treatment services were provided to Ryan Schorr under the auspices of Crisis Intervention services as part of the Cumberland-Perry Counties Mental Health/Mental Retardation Program, and for no other reason. The treatment provided by health care personnel, including Dr. Spurrier, is reflected in the record of medical treatment that has been produced during discovery in this case. 2. Neither Cumberland nor Perry County control the security policies of Holy Spirit Hospital. ANSWER: Denied. The response to request number one above is incorporated herein by reference. As set forth therein, all events at Holy Spirit Hospital that relate to this case occurred as part as the delivery of mental health crisis intervention services under the Mental Health Procedures Act and the Cumberland-Perry Counties Mental Health/Mental Retardation (Crisis Intervention) Program. The Mental Health Crisis Intervention Services include security policies and concerns. Under the contract pursuant to which such services are provided, Cumberland and Perry Counties have extensive audit and inspection rights, including the right to conduct walk-through inspections of the premises to evaluate, among other things, security issues. To the extent that the Counties desire, they retain the contractual right and obligation to discuss and address any security concerns related to the Program. The Counties further have the contractual right to control the security policies of Holy Spirit Hospital as applied to Crisis Intervention Treatment Services provided under the County Mental Health/Mental Retardation Program. 3. Neither Cumberland nor Perry Counties control the staffing of security guards, including the number of guards on duty at any one time, at Holy Spirit Hospital. ANSWER: Denied. The answer to request number 2 above is incorporated herein by reference. By way of further answer, as part of the audit and inspection rights reserved to the Counties, County personnel have the right to study the sufficiency of staffing and to request additional security staff as part of the delivery of Mental Health Crisis Intervention Treatment Services under the Contract. 4. Neither Cumberland nor Perry County control the training of security guards at Holy Spirit Hospital. ANSWER: Denied. The answer to request number 2 above is incorporated herein by reference. By way of further answer, as part of the audit and inspection rights reserved to the Counties, County personnel have the right to study the sufficiency of training and to request additional training for security staff as part of the delivery of Mental Health Crisis Intervention Treatment Services under the Contract. 5. Holy Spirit Hospital is a privately owned and operated health care facility. ANSWER: Admitted in part. It is admitted that the facility is privately owned. It is denied that the facility is privately "operated" in all respects, to the extent that "operation" is understood in the context of this case. To the contrary, the responses to all requests above are incorporated herein by reference. As set forth therein, Mental Health Crisis Intervention Treatment Services are delivered through a program operated in close conjunction with Cumberland and Perry Counties. 6. Holy Spirit Hospital provides medical services through its emergency rooms services that are in no way affiliated or connected to its contract with Cumberland-Perry Counties Mental Health-Mental Retardation Program. ANSWER: Objection. This request relates to information that is not relevant in any way to the claims raised in this case, which claims arise out of Crisis Intervention services provided pursuant to the Cumberland-Perry Counties Mental Health-Mental Retardation (Crisis Intervention) Program. Without waiving this objection, it is admitted that Holy Spirit Hospital provides medical services through its emergency department that are in no way affiliated or connected to its contract to provide mental health treatment as part of the Cumberland- Perry Counties Mental Health-Mental Retardation Program. 7. Holy Spirit Hospital maintains insurance coverage separate from Cumberland and Perry Counties. ANSWER: The objection to request number 6 above is incorporated herein by reference. Without waiving this objection, this request is admitted in part and denied in part. For purposes of the Mental Health Crisis Intervention Services at issue in this case, it is specifically denied that Holy Spirit Hospital maintains insurance coverage separate from Cumberland and Perry Counties. To the contrary, the insurance that Holy Spirit Hospital maintains related to the provision of Mental Health Crisis Intervention Treatment Services is maintained in conjunction with Cumberland and Perry Counties through the contract between Holy Spirit Hospital and Cumberland and Perry Counties for Crisis Intervention Services. To the extent that Holy Spirit Hospital conducts activities that are not part of the Crisis Intervention Services Program, it is admitted that Holy Spirit Hospital maintains insurance coverage separate from Cumberland and Perry Counties. 8. None of Candace Highfield, Carol Joerger, Dr. David Spurrier and Cory Graby are employed by Cumberland or Perry Counties. ANSWER: The objections to request 6 and 7 above are incorporated herein by reference. Without waiving those objections, request no. 8 is admitted with clarification and explanation. Although persons involved in the provision of Crisis Intervention services under the Program are employed by Holy Spirit Hospital, portions of their salary and wages are paid by the Counties pursuant to the contract for the provision of Mental Health Crisis Intervention Treatment Services. The use of County funds to pay wages and salaries is reflected clearly in the annual budget and monthly program expenditures reports that Holy Spirit Hospital is required to submit to the County. Those documents are attached to this answer as Exhibit B. Further, as part of the utilization of County funds to pay the wages of persons involved in the delivery of Mental Health Crisis Intervention Treatment Services, Holy Spirit Hospital is required to follow certain other County employment policies and procedures, including the state and County civil service job codes and other County employment rules. 9. None of Candace Highfield, Carol Joerger, Dr. David Spurrier and Cory Graby are under the supervision or control of Cumberland or Perry Counties. ANSWER: The responses to all of the requests above are incorporated herein by reference, including in particular the responses to requests No. 1 and 6-8. Persons involved in the provision of Crisis Intervention services under the County Program, may from time to time also perform tasks and provide services that are not part of the Crisis Intervention Services provided under the contract with Cumberland and Perry Counties. It is admitted that, at those times, such personnel are not under the supervision or control of Cumberland or Perry Counties. On the other hand, personnel engaged in providing Crisis Intervention services under the Contract are, at those times, subject to the provisions of the Contract. Through the contract, Cumberland and Perry Counties impose certain duties and obligations upon those providing County Mental Health Crisis Intervention Services. Moreover, the County, in part, funds the wages and salaries of those personnel, as illustrated in Exhibit F to the Appendix in Support of Summary Judgment filed by Holy Spirit Hospital in this case. Through the Contract, the Counties retain the right to control the activities of these personnel and others involved in the provision of Mental Health Crisis Intervention Treatment Services. 10. The security procedures of Holy Spirit Hospital are not established by Cumberland or Perry Counties. ANSWER: Admitted in part and denied in part. The responses to all of the requests above are incorporated herein by reference. As set forth therein, Holy Spirit Hospital provides County Crisis Intervention services under the auspices of the Contract with Cumberland and Perry Counties. Security procedures of the hospital are directly relevant and important to the provision of County Crisis Intervention services under the Contract. To the extent that security procedures are involved in and impact upon the County Crisis Intervention services provided under the Contract, it is specifically denied that those security procedures are not established by Cumberland or Perry Counties. The contract with the Counties grants to the Counties broad audit and inspection rights and requires Holy Spirit Hospital to meet certain minimum standards for the operation of those parts of its facilities that are utilized in the County Crisis Intervention Services provided under the Perry-Cumberland Counties Mental Health-Mental Retardation Program. In this fashion, Cumberland and Perry Counties retain the right to establish security procedures. 11. The security procedures of Holy Spirit Hospital are not monitored or reviewed by Cumberland or Perry Counties. ANSWER: Admitted in part and denied in part. The responses to all of the requests above are incorporated' herein by reference. As set forth therein, Holy Spirit Hospital provides County Crisis Intervention services under the auspices of the Contract with Cumberland and. Perry Counties. Security procedures of the hospital are directly relevant and important to the provision of County Crisis Intervention services under the Contract. To the extent that security procedures are involved in and impact upon the County Crisis Intervention services provided under the Contract, it is specifically denied that those security procedures are not monitored or reviewed by Cumberland or Perry Counties. The contract with the Counties requires Holy Spirit Hospital to submit periodic reports and grants to the Counties broad audit and inspection rights. The County Contract further requires Holy Spirit Hospital to meet certain minimum standards for the operation of those parts of its facilities that are utilized in the County Crisis Intervention Services provided under the Perry-Cumberland Counties Mental Health-Mental Retardation Program. In this fashion, Cumberland and Perry Counties retain the right to monitor and review security procedures. 12. The security procedures of Holy Spirit Hospital are established and performed solely under the direction and control of Holy Spirit Hospital. ANSWER: This request is redundant because it seeks the same information sought in request number 10 above, except that the information is requested in the positive formulation of the statement in this request. Therefore, the response to request number 10 above is incorporated herein by reference, so that it is specifically denied that the security procedures of Holy Spirit Hospital are established solely under the direction and control of Holy Spirit Hospital. To the contrary, security procedures related to the provision of County Crisis Intervention services under the Contract are a collaborative effort between the hospital and the Counties, and are established and performed under the direction and control of the Counties. 13. Neither Cumberland nor Perry Counties make payment to Holy Spirit Hospital for the security services or personnel provided or employed by Holy Spirit Hospital. ANSWER: Denied. It is specifically denied that no payment is made by the Counties for security services provided by Holy Spirit Hospital. To the contrary, funds received from Cumberland and Perry Counties under the contract are allocated according to budget and expenditure reports provided to the County, and disbursed to different operating departments within the hospital, including the security operations. Therefore, a portion of County funds are and have always been utilized to fund security services at Holy Spirit Hospital. 14. Pursuant to the Cumberland-Pent' Counties Mental Health-Mental Retardation Program Contract, Holy Spirit Hospital is "an independent contractor and not an agent, servant, or employee of [Cumberland or Perry] County." ANSWER: Admitted with explanation. It is admitted that the language quoted in this request appears in the Contract. However, by way of explanation, the Plaintiffs served this request after Defendant Holy Spirit Hospital filed a Motion for Summary Judgment, asserting immunity under the Political Subdivision Tort Claims Act (PSTCA). As a general legal proposition, the grant of immunity applies broadly to agents or employees of local governmental units and may also apply in a similar fashion to independent contractors. The applicable interpretative and precedential case law makes clear that the terms and conditions of a contract with a local governmental unit are not dispositive of the immunity issue. Rather, the terms and conditions of a contract are only one factor to be considered in light of the overall relationship between the parties to the contract. All of the responses to the requests above are incorporated herein by reference. As set forth therein, County funds are allocated to security services and to the wages and salaries of employees directly involved in the provision of County Crisis Intervention services. In addition, the Counties retain substantial contractual rights to inspect and control the program. County Crisis Intervention Services are a collaborative effort between the Counties and Holy Spirit Hospital. Therefore, Holy Spirit Hospital is properly entitled to PSTCA immunity regardless of the term of the Contract that characterizes it as an independent contractor. 15. The Cumberland-Perry Counties Mental Health-Mental Retardation Program Contract does not address or control the security staffing, programs or implementation by Holy Spirit Hospital. ANSWER: Denied. The responses to requests i through 14 above are incorporated herein by reference. As set forth therein, it is specifically denied that the contract does not address or control the security, staffing, programs or implementation by Holy Spirit Hospital. To the contrary, as set forth at length in the responses above, which are incorporated herein by reference, County funds are allocated, in part, to security and the Counties retain broad rights to control activities conducted as part of the County Crisis Intervention Program, including security. 'Tt' - i DATE: AM" _, 2006 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: , . MICHAEL D. PIPA, E QUIRE PA 53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorneys for Defendant, Holy Spirit Hospital VERIFICATION The undersigned hereby verifies that the statements in the foregoing Answers of Defendant Holy Spirit Hospital to Plaintiffs' Request for Admissions - Second Set are based upon information that has been furnished to counsel by me and information that has been gathered by counsel in the preparation of the defense of this lawsuit. I have read the Answers of Defendant Holy Spirit Hospital to Plaintiffs' Request for Admissions - Second Set and to the extent that it is based upon information that I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the Answers of Defendant Holy Spirit Hospital to Plaintiffs' Request for Admissions - Second Set are that of counsel, I have relied upon my counsel in making this verification, The undersigned also understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unworn falsification to authorities. Date: a3 0? Steve Bucciferro Director of Mental Health Services Holy Spirit Hospital GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS V. HOLY SPIRIT HOSPITAL, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06498-2001 JURY TRIAL DEMANDED GARY W.BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS V. KEITH I. SCHORR, and SUSAN SCHORR, as personal representatives of the ESTATE OF RYAN SCHORR, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 01-7232 CIVIL 2001 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Michael D. Pipa, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do 3+,'-Q hereby certify that on MW , 2006, I served a copy of the Answers of Defendant Holy Spirit Hospital to Plaintiffs' Request for Admissions - Second Set via first class regular mail as follows: Mark K. Emery, Esquire Law Offices of Mark K. Emery 410 North Second Street Harrisburg, PA 17101 Mark Cuker, Esquire Williams Cuker Berezofsky One Penn Center at Suburban Station 1617 JFK Boulevard, Suite 800 Philadelphia, PA 19103-1819 Michael D. Pipa \05 A\L1AB\MDPIPA\DISC\217591\KAMOYERS\13246\00828 r? ? c7 n N D ID -17 CD -G O Gary W. Berresford and Harry S. Hart, Jr. vs Case No. Keith I. Schoor and Susan Schorr as the Administrator or the Estate of Ryan K. Schorr Statement of Intention to Proceed To the Court: 01-7232 Plaintiffs Gary W. Berre s f ord intends to proceed with the above captioned matter. & Harry S. Hart, Jr Print Name Mark K. Emery, Esq. Sign Name Date: /0-6"•OJ_ Attorney for Plaintiff R Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been temlinated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. OF TFF0' FN!0TAPY 2009 OCT -8 PM 2: 31 .V ?'