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HomeMy WebLinkAbout03-3009DSB In The Court of Common Pleas of York County, Pennsylvania 2003/05/23 44 Uz, 3 6d 9V X-C?L, WOODLAND CTR FOR NURSING Case Number 2001 SU 02251 01 VS Case Type Civil Action CYNTHIA SHEARER CHARLOTTE YONTZ DECEDENT APPEARANCES D 001 YONTZ, CHARLOTTE ESTATE OF ANDES, SAMUEL L 891 OLD SILVER SPRING RD MECHANICSBURG PA 17055 D 002 SHEARER, CYNTHIA ANDES, SAMUEL L 891 OLD SILVER SPRING RD MECHANICSBURG PA 17055 P 001 WOODLAND CENTER FOR NURSING BACKENSTOSE, AMY H 780 WOODLAND AVENUE LEWISBERRY PA 17339 DOCKET ENTRIES 2001/05/04 COMPLAINT IN A CIVIL ACTION 95.00 0055 0031 2001/05/25 PRELIMINARY OBJECTIONS 0.00 TO PLTFS COMPLAINT W/CERT OF SVC 0070 0112 2003/03/06 MOTION 0.00 FOR TRANSFER OF VENUE 0033 0123 2003/04/17 STIPULATION 0.00 TO TRANSFER VENUE W/CERT OF SVC 0056 0374 2003/04/29 ORDER APPROVING STIPULATION 0.00 TO TRANSFER VENUE TO CUMBERLAND COUNTY BY THE 00,62 COURT JOHN S KENNEDY JUDGE 0457 ** E N D O F C A S E P R I N T O U T ** (PROTRI0) q ??R 4? lSRldi d{?3D QJRIS Caw "We 00.'4 'S.,, Uha° ?S 11VGL? a[. ?? 1? Fm?. A(1 ® ?/ i? F nVNVAIAsNN3d LINi-r zo :zi wd ?z tj'nr eo 301±10-,: IH I , IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA Woodland Center for Nursing 780 Woodland Avenue Lewisberry, PA 17339, Plaintiff V. CIVIL COMPLAINT NO.2001-SU-02251-01 Ms. Charlotte Yontz, Decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 cr And ` m Ms. Cynthia Shearer, 891 Old Silver Spring Road Mechanicsburg, PA 17055 personally and as Attorney- in fact for o Charlotte Yontz, Decedent, 00 Defendants ORDER AND NOW, this L day of zl 2003, in consideration of the Stipulation of the Parties it is hereby ordered as follows: This matter is transferred to the Court of Common Pleas of Cumberland County, Pennsylvania. COURT: J. 0 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA Woodland Center for Nursing 780 Woodland Avenue Lewisberry, PA 17339, Plaintiff v Ms. Charlotte Yontz, Decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 And Ms. Cynthia Shearer, 891 Old Silver Spring Road Mechanicsburg, PA 17055 personally and as Attorney- in fact for Charlotte Yontz, Decedent, Defendants CIVIL COMPLAINT NO. 2001 -SU-0225 1 -01 STIPULATION OF PARTIES This Stipulation dated this 251h day of March 2003, given by Woodland Center for Nursing to Ms. Cynthia Shearer and the Estate of Charlotte Yontz and by Ms. Cynthia Shearer and the Estate of Charlotte Yontz to Woodland Center for Nursing is as follows: 1. The P1x n1iF l e !}i CQdi'd.;d utvr "-r Nursing, represcai d by Lhoir attorneys, Capozzi and Associates, P.C. filed a complaint against Defendants, Ms. Charlotte Yontz, decedent, and Ms. Cynthia Shearer, in York County Court of Common Pleas, on May 4`h, 2001. 2. The Defendant, Ms. Cynthia Shearer, opened an estate in the Orphan's Court of Cumberland County, January 16,za@@i -4wm6afcd 21-01-69. 107050 560374 3. Plaintiff, the Woodland Center for Nursing, a third priority creditor, filed a Proof of Claim against the Estate of Charlotte Yontz in Cumberland County, on November 18, 2002. 4. On March 21, 2003, Plaintiff's attorney faxed a notice to Defendant's attorney, Samuel L. Andes, pursuant to York County Local Rule 6034, of Petition to Transfer Venue from York County Court of Common Pleas to Cumberland County Court of Common Pleas, that Plaintiff's attorney was going to present in Motion's court. 5. Defendant's attorney notified Plaintiff's attorney that he was not going to oppose the motion, as he believed Cumberland County Court of Common Pleas was the correct venue. WHEREFORE, we ask this Honorable Court to accept this stipulation of parties to the attached proposed order, and grant Plaintiffs motion to transfer venue to the Cumberland County Court of Common Pleas without Plaintiff's attorney's appearance in Motion's Court. Sant 1L Andecs.:4ftornev for Defendants, Ms. Cynthia Shearer, And the Estate of Charlotte Yontz 525 North Twelfth Street P.O. Box188 Lemoyne, PA 17043 Fax (717) 761-1435 Date: /-/+ I PVI J 203 irAackenstose, Attorney for Plaindf` , Woodland Center for Nursing Capozzi and Associates, P.C. 2933 North Front Street Harrisburg, PA 17110 Fax(717)233-6922 Date: 4/03`03 101091) 560314 IN THE COURT OF COMMON PLEAS YORK COUNTY, PENNSYLVANIA Woodland Center for Nursing 780 Woodland Avenue Lewisberry, PA 17339 Plaintiff, V. CIVIL COMPLAINT NO. 2001-SU-02251-01 Ms. Charlotte Yontz, decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 Ms. Cynthia Shearer, 891 Old Silver Spring Road Mechanicsburg, PA 17055 personally and as attorney in fact for Charlotte Yontz, decedent Defendants, VERIFICATION I, Amy Backenstose, do hereby verify that the facts made in the foregoing Stipulation for the Petition to Transfer Venue are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the penalties contained in Title 18 of the Pennsylvania Consolidated Statutes Section 4904, relating to unsworn falsification to authorities. Amy H. Sac: east Date //1111 Identification No. 87008 CAPOZZI AND ASSOCIATES, P.C. 2933 North Front Street Harrisburg, PA 17110 r 1rwr irw air4 01090 56 031 IN THE COURT OF COMMON PLEAS OF YORK COUNTY IN RE: Estate of Charlotte Yontz . Docket No.: 2110-SU-02251-01 CERTIFICATE OF SERVICE I, Amy Backenstose, do hereby certify that on this m day of 2003, 1 placed in the United States Mail a true and correct copy of the Order to Transfer Venue based on The Stipulation Agreement, addressed to the following: Samuel L. Andes, Esquire Attorney for Defendant 525 North 12th Street Lemoyne, PA 17043 Respectfully submitted, CAPOZZI AND ASSOCIATES, P.C. ?c? IA y Backenstose, Esquire Identification No. 87008 2933 North Front Street Harrisburg, PA 17110 Phone: (717) 233-4101 Attorney for Plaintiff 0 1 ti c.; r rrrrrw 107090560374 Louis J. Capozzi, Jr., Esquire Daniel K. Natirboff, Esquire Michael A. Hynum, Esquire Robert P. Grubb, Esquire Donald R. Reavey, Esquire Doreena C. Sloan, Esquire Daniel J. Pedersen, Esquire Amy H. Backenstose, Esquire Bruce G. Baron, Research Coordinator Tanya L. Zerbe, Paralegal Karen L. Fisher, Paralegal April 16, 2003 Stacia N. Gates, Prothonotary York County Courthouse 28 E. Market Street York, PA 17401 2933 North Front Street Harrisburg, PA 17110 Telephone: (717) 233-4101 Fax: (717) 233-4103 www.capozziassociates.com Offices also in Lancaster, PA And Cherry Hill, NJ Of Counsel: Steven T. Hanford, Esquire Carm Presogna, RN, Esquire Re: Woodland Center for Nursing v. Charlotte Yontz, decedent/Cynthia Shearer, Attorney-in-Fact for Charlotte Yontz Docket No.: 2001-SU-01 Our Matter No.: 4132-01 Dear Ms. Gates: Enclosed for filing, please find the original and 2 copies of the Stipulation to Transfer Venue with regards to the above-referenced matter. Kindly time-stamp the two copies and return to our office in the enclosed self-addressed stamped envelope. Thank you for your assistance in this matter. If you have any questions, please do not hesitate to call us. n Capoz i & Associates, P.C. AHB/as Enclosure cc: Sandy Ernest, Business Manager 4. On or about November 18, 2002, a proof of claim was filed against the Estate by the Plaintiff in the amount of $36,916.50, in Cumberland County. 5. Simultaneously with the filing of the instant Motion, a Motion to remove Cynthia Shearer as Executrix is being filed under Cumberland County's Orphan's Court Docket No. 21-01-69. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an Order in the proposed form transferring the Complaint to the Orphan's Court division of Cumberland County Pennsylvania, and requiring an answer to the Complaint within twenty days the order. Respectfully submitted, CAPOZZI AND ASSOCIATES, P.C. By: my H. Backenstoge Esquire Identification No. 87008 2933 North Front Street Harrisburg, PA 17110 Phone: (717) 233 - 4101 Petitioner and Attorney for Plaintiff Louis J. Capozzi, Jr., Esquire Daniel K. Natuboff, Esquire Michael A. Hynum, Esquire Robert P. Grubb, Esquire Donald R. Reavey, Esquire Doreena C. Sloan, Esquire Daniel J. Pedersen, Esquire Amy H. Backenstose, Esquire Bruce G. Baron, Research Coordinator Tanya L. Zerbe, Paralegal Karen L. Fisher, Paralegal March 5, 2003 Stacia N. Gates, Prothonotary York County Courthouse 28 E. Market Street York, PA 17401 2933 North Front Street Harrisburg, PA 17110 Telephone: (717) 2334101 Fax: (717) 233-4103 www.capozziassociates.com Offices also in Lancaster, PA And Cherry Hill, NJ Of Counsel: Steven T. Hanford, Esquire Carm Presogna, RN, Esquire Re: Woodland Center for Nursing v. Charlotte Yontz, decedent/Cynthia Shearer, Attorney-in-Fact for Charlotte Yontz Docket No.: 2001-SU-01 Our Matter No.: 4132-01 Dear Ms. Gates: Enclosed for filing, please find the original and 2 copies of the Motion to Transfer Venue with regards to the above-referenced matter and a check in the amount of $20.00 for filing fees. Kindly time-stamped the two copies and return to our office in the enclosed self-addressed stamped envelope. Thank you for your assistance in this matter. If you have any questions, please do not hesitate to call us. Sely,??/zv/?a .? A H. Backenstose, Esquire Capozzi & Associates, P.C. AHB/as Enclosure cc: Sandy Ernest, Business Manager IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA Woodland Center for Nursing 780 Woodland Avenue Lewisbery, PA 17339 Plaintiff, V. Ms. Charlotte Yontz, decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 Ms. Cynthia Shearer, 891 Old Silver Spring Road Mechanicsburg, PA 17055 personally and as attorney in fact for Charlotte Yontz, decedent Defendants, CIVIL COMPLAINT NO. 2001-SU-W pov?/- 0 1 MOTION TO TRANSFER VENUE AND NOW, comes the Plaintiff, Woodland Center for Nursing, by and through its attorneys, Capozzi & Associates, P.C. and avers the following: On May 4, 2001, Plaintiff filed a Complaint in the Court of Common Pleas York County, Pennsylvania. 2. Subsequent to the filing of the Complaint, the Defendant filed Preliminary Objections on May 25, 2001. 3. Upon information and belief, Grant of Letters of Administration was issued appointing Cynthia Shearer as ExecutrV cube Estate on January 16, 2001, in 069090 330123 Cumberland County. IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA WOODLAND CENTER FOR NURSING 780 Woodland Avenue Lewisberry, PA 17339 Plaintiff vs. MS. CHARLOTTE YONTZ, DECEDENT 891 Old Silver Spring Road Mechanicsburg, PA 17055 MS. CYNTHIA SHEARER 891 Old Silver Spring Road Mechanicsburg, PA 17055 personally and as attorney in fact for Charlotte Yontz, decedent Defendants CIVIL ACTION - LAW c ,a NO. 2001-SU-02251-01 DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW come the above-named Defendants, and make the following Preliminary Objections to the Plaintiff's Complaint in this matter: COUNT I - MOTION TO STRIKE 1. Plaintiff's Complaint is contrary to the Rules of Court and the law of Pennsylvania, in the following ways: A. The first count of the Complaint claims it is based upon a written agreement between the Plaintiff and Charlotte Yontz, yet no copy of that agreement is attached by the Rules of Civil Procedure. B. Plaintiff's Complaint asserts a claim against Charlotte Yontz, whom the Plaintiff itself concedes to be deceased, contrary to the law of Pennsylvania which declares an action against a deceased person to be a nullity. C. Plaintiff's Complaint appears ?h?j ?Iaim based upon a theory of contract or implied contract against Cynthia Shearer who was not, according at least to Plaintiff's Complaint, ever a party to such contract or to such implied contract. D. Plaintiff's Complaint purports to assert a claim on the theory of quantum meruit or unjust enrichment against Defendant, Cynthia Shearer, without stating any benefit or enrichment to the said Cynthia Shearer. E. Plaintiff's Complaint, in part, is based upon Plaintiff's claim that Defendant, Shearer breached a fiduciary duty owed to the decedent, Charlotte Yontz. The law of Pennsylvania does not authorize or permit a third party to assert or enforce a fiduciary duty between a principal and agent. F. Plaintiff's Complaint is based, in part, upon a theory asserted by Plaintiff that Defendant, Shearer has a legal responsibility to support her adult mother, that being the decedent, Charlotte Yontz. Plaintiff has no standing or other legal basis, however, to assert or enforce such a claim or right. 2. The above reasons, Plaintiff's Complaint contravenes both the laws of the Commonwealth of Pennsylvania and the rules of civil procedure and, as such, must be stricken. WHEREFORE, Defendants move this court to strike Plaintiff's Complaint. COUNT II - DEMURRER 3. Defendant, Cynthia Shearer demurs the Plaintiff's Complaint in this matter, based upon the following: A. Plaintiff's Complaint fails to state a cause of action against Defendant, Shearer on the basis of contracts on which she was not, and is not, a party. B. Plaintiff's Complaint fails to state a cause of action against Defendant, Shearer on a theory of quantum meruit because it fails to state or identify any benefit to conferred upWOW6W 6?y of Plaintiff's actions. C. Plaintiff's Complaint fails to state a cause of action against Defendant, Shearer with regard to any claim for fiduciary duty or duty to support because the Complaint does not identify any duty which Defendant Shearer owes to Plaintiff. WHEREFORE, Defendant Shearer demurs the Plaintiff's Complaint and prays this Court to dismiss the Complaint against her. Uj S I L. An es Attorney for Defendant Supreme Court ID # 17225 525 North 12Th Street Lemoyne, PA 17043 (717) 761-5361 CERTIFICATE OF SERVICE I hereby certify that I served an original of the foregoing Preliminary Objections upon counsel for the Plaintiff herein by regular mail, postage prepaid, addressed as follows: Jonathan C. James, Esquire Capoai & Associates, P.C. 2933 North Front Street Harrisburg, Pa 17110-1250 Date: 24 May 2001 ,,W el L. Andes Attorney for Defendant SAMUEL L. ANDES ATTORNEY AT LAW 525 NORTH TWELFTH STREET P. O, BOX 168 LEMOYNE, PENNSYLVANIA 17043 TELEPHONE (717) 761-5361 FAX 24 May 2001 (717) 781-1435 Prothonotary York County Courthouse 28 East Market Street York, PA 17401 RE: Woodland Center for Nursing vs. Yontz & Shearer 2001-SU-02251-01 Ladies: Enclosed are Preliminary Objections which I wish to file on behalf of the Defendants in the above matter. Please clock in the extra copy which is enclosed and return that to me in the enclosed envelope. Please contact my office if you need anything further. Sincerely, > - Samue L. Andes amh / Enclosures IN THE COURT OF COMMON PLEAS YORK COUNTY, PENNSYLVANIA Woodland Center for Nursing 780 Woodland Avenue Lewisberry, PA 17339 Plaintiff, V. Ms. Charlotte Yontz, decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 Ms. Cynthia Shearer, 891 Old Silver Spring Road Mechanicsburg, PA 17055 personally and as attorney in fact for Charlotte Yontz, decedent Defendants, CIVIL COMPLAINT NO. Type of Pleading: COMPLAINT Filed on behalf of. Plaintiff Counsel of Record: JONATHAN C. JAMES, Esquire Identification No. 68214 CAPOZZI & ASSOCIATES, P.C. 2933 North Front Street Harrisburg, PA 17110-1250 Telephone: [717] 233 - 4101 [877] 855-0846 [toll free in PA] o D? ?„ n vc r, - 5 77 1 Pr 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 the complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service of the York County Bar Association York County Bar Center 137 East Market Street York, Pennsylvania 17401 Telephone No. (717) 854- 8755 AVISO Le han demandado a usted en la corte. Si usted quiere defenderse de estas de estas demandas expuestas an las paginas signientes, usted tiene veinte (20) dias de plazo al partir de is fecha de la demanda y is notificacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de so persona. Sea avisado que si usted no se defiende, le corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisions de esta demanda. Usted puede perder dinero o sus propiedades u ostros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE, SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Lawyer Referral Service of the York County Bar Association York County Bar Center 137 East Market Street York, Pennsylvania 17401 Telephone No. (717) 854- 8755 121090 550031 2 IN THE COURT OF COMMON PLEAS YORK COUNTY, PENNSYLVANIA Woodland Center for Nursing 780 Woodland Avenue Lewisberry, PA 17339 Plaintiff, V. : CIVIL COMPLAINT : NO. Ms. Charlotte Yontz, decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 Ms. Cynthia Shearer, 891 Old Silver Spring Road Mechanicsburg, PA 17055 personally and as attorney in fact for Charlotte Yontz, decedent Defendants, COMPLAINT AND NOW, comes Plaintiff, Woodland Center for Nursing, 780 Woodland Avenue, Lewisberry, Pennsylvania 17339 by and through its attorneys, Capozzi & Associates, P.C., and avers as follows: 1. Plaintiff, Woodland Center for Nursing, (Woodland), provides long term care and skilled nursing services; Plaintiff is located at 780 Woodland Avenue, Lewisberry, PA 17339, York County. 2. Defendant, Cynthia Shearer is an adult individual residing at 891 Old Silver Spring Road, Mechanicsburg, PA 17055. 3. Defendant Charlotte Yontz, deceased, was an adult individual who last resided at the Plaintiff's nursing facility located at 780 -AN, nue, Lewisberry, PA 17339, York County. (J } 3 4. On information and belief Cynthia Shearer is the daughter of Charlotte Yontz. COUNT 1- BREACH OF CONTRACT 5. Plaintiff hereby incorporates ¶T 1 through 04 of the Complaint as if set forth in full. 6. On or about 22 December 1999 the Defendants requested Woodland admit Charlotte Yontz to the facility so she could receive nursing care and services. 7. On or about 22 December 1999 Woodland admitted Charlotte Yontz to the nursing facility. 8. On or about 22 December 1999, Plaintiff and Defendants executed a contract for nursing care and services in which the Plaintiff represented a promise to provide nursing care and services to Charlotte Yontz and Charlotte Yontz represented a promise to pay for the nursing care and services rendered. 9. Plaintiff rendered nursing care and services to Charlotte Yontz for the duration of o 0 her stay at Plaintiff Woodland's nursing facility. O _.' CD K ::0 ww7 r 10. Each month, Woodland invoiced Charlotte Yontz for the nursing care and -N services rendered. 11. Each month, Charlotte Yontz would refuse to pay the invoices in full. W 12. Due to Charlotte Yontz's refusal to remit payment in full each month for the nursing care and services rendered to her by the Plaintiff, the account for Charlotte Yontz is in arrears in the amount of $36,916.50 (thirty- six thousand, nine hundred sixteen). 13. Woodland has been damaged by Charlottq peach of the contract for nursing care and services. I L U V J V 4 14. Cynthia Shearer is the attorney in fact for Charlotte Yontz and at all times material to this lawsuit did represent herself to the staff and administration of Woodland as the attorney in fact for Charlotte Yontz. 15. On information and belief, Cynthia Shearer had access to the assets and income of Charlotte Yontz, including, but not limited to, on information and belief, her bank account, her checking account, her social security and pension checks, her home and her car. 16. Each month Cynthia Shearer would be copied on the monthly invoice detailing the nursing care and services provided to Charlotte Yontz. 17. Cynthia Shearer has refused to use the income and assets of Charlotte Yontz to pay for the nursing care and services provided to Charlotte Yontz by the Plaintiff. 18. Cynthia Shearer, in refusing to use the income and assets of Charlotte Yontz to pay for the nursing care and services provided to Charlotte Yontz by the Plaintiff has breached the contract. 19. Cynthia Shearer, in refusing to use the income and assets of Charlotte Yontz to pay for the nursing care and services provided to Charlotte Yontz by the Plaintiff has damaged the Plaintiff. WHEREFORE, Plaintiff respectfully requests that this honorable Court enter an Order as follows: a. Granting judgment for Plaintiff and against Defendants in the amount of at least $36,916.50, exclusive of interest and costs; b. Granting Plaintiff its expenses, including reasonable attorney fees incurred in connection with this action; and c. Granting such other relief as the Court deems appropriate. COUNT 2- BREACH OF llv n?ff TRACT 5 20. Plaintiff hereby incorporates T$ 1 through 19 of the Complaint as if set forth in full. 21. On or about 22 December 1999 the Defendants requested Plaintiff Woodland admit Charlotte Yontz to the facility so she could receive nursing care and services. 22. On or about 22 December 1999 Plaintiff Woodland admitted Charlotte Yontz to the nursing facility. 23. On or about 22 December 1999, pursuant to a request for nursing care and services made to the Plaintiff by Charlotte Yontz and Cynthia Shearer, Plaintiff promised to render nursing care and services to Charlotte Yontz provided Charlotte Yontz pay for the services. 24. On or about 22 December 1999 Defendants represented a promise to pay for the nursing care and services rendered. 25. Plaintiff did render nursing care and services to Charlotte Yontz for the duration of her stay at Plaintiff Woodland's nursing facility. 26. Plaintiff and Defendants have an implied contract for the provision of nursing care and services. WHEREFORE, Plaintiff respectfully requests that this honorable Court enter an Order as follows: a. Granting judgment for Plaintiff and against Defendants in the amount of at least $36,916.50, exclusive of interest and costs; b. Granting Plaintiff its expenses, including reasonable attorney fees incurred in connection with this action; and c. Granting such other relief as the Court deems appropriate. COUNT 3- QUANTUM MERUIT 27. Plaintiff hereby incorporates IT 1 through 26 of the Complaint as if set forth in full. 28. At the request of Defendants, Plaintiff Woodland provided Charlotte Yontz with nursing care and services. 29. Defendants knew or should have known that Plaintiff Woodland expected payment for providing Charlotte Yontz with nursing care and services. 30. Plaintiff Woodland had a reasonable expectation of payment for provision of nursing care and services. 31. Defendants refused to pay for the nursing care and services provided to Charlotte Yontz. 32. Defendants were unjustly and unconscionably enriched through Defendants' use of Plaintiff Woodland's nursing care and services without providing Plaintiff Woodland with proper and agreed upon payment. WHEREFORE, Plaintiff respectfully requests that this honorable Court enter an Order as follows: a. Granting judgment for Plaintiff and against Defendants in the amount of at least $36,916.50, exclusive of interest and costs; b. Granting Plaintiff its expenses, including reasonable attorney fees incurred in connection with this action; and c. Granting such other relief as the Court deems appropriate. COUNT 4- BREACH OF FIDUCIARY DUTY Cynthia Shearer 33. Plaintiff hereby incorporates I 1 through 32 of the Complaint as if set forth in full. 7 34. Pa. C.S.A. section 5601 (e) states that an agent acting under a power of attorney has a fiduciary relationship with the principal. 35. On information and belief, Cynthia Shearer did at all times relevant and material hereto hold herself out as the attorney in fact for Charlotte Yontz. 36. On information and belief Cynthia Shearer specifically represented herself to the staff and administration of Woodland as the attorney in fact for Charlotte Yontz. 37. On information and belief Cynthia Shearer specifically represented to the staff and administration of Woodland that the staff and administration of Woodland were entirely justified in relying upon her to act as the attorney in fact for Charlotte Yontz. 38. On information and belief, Cynthia Shearer specifically represented to the staff and administration of Woodland that she would use the income and assets of Charlotte Yontz to pay for her nursing care and services. 39. On information and belief, the income and assets of Charlotte Yontz were at all times relevant and material hereto accessed and controlled by Cynthia Shearer. 40. As the attorney in fact for Charlotte Yontz, Cynthia Shearer had a fiduciary duty to act in Charlotte Yontz's best interests. 41. As the attorney in fact for Charlotte Yontz, Cynthia Shearer had a fiduciary duty to use Charlotte Yontz's income and assets to serve her best interests. 42. On information and belief Cynthia Shearer refused to make the income and assets of Charlotte Yontz available to Woodland to pay for her nursing care and services. 43. Cynthia Shearer violated her fiduciary duty to Charlotte Yontz by refusing to use her income and assets to pay for her nursing care and services. 44. As a result of Cynthia Shearer's violation of her fiduciary duty to Charlotte Yontz, Plaintiff has not been paid for the nursing care and services rendered to Charlotte Yontz. 45. Woodland has been damaged by Cynthia Shearer's violation of her fiduciary duty to Charlotte Yontz. WHEREFORE, Plaintiff respectfully requests that this honorable Court enter an Order as follows: a. Granting judgment for Plaintiff and against Defendant in the amount of at least $36,916.50, exclusive of interest and costs; b. Granting Plaintiff its expenses, including reasonable attorney fees incurred in connection with this action; c. Directing Defendant Cynthia Shearer to produce an accounting of the property of Charlotte Yontz and d. Granting such other relief as the Court deems appropriate. COUNT 5- ACTION IN ASSUMPSIT-DUTY TO SUPPORT Cynthia Shearer 46. Plaintiff hereby incorporates ¶¶ 1 through 45 of the Complaint as if set forth in full. 47. As the nursing facility providing Charlotte Yontz with nursing care and services, Woodland had a legal duty to provide care, maintenance and assistance to her. 48. Charlotte Yontz's' average monthly expenses incurred at Plaintiff Woodland's nursing facility are three thousand nine hundred dollars ($3,900.00). 49. Charlotte Yontz's reasonable monthly living expenses incurred at Woodland significantly exceeded her monthly incoitt8.090 55003 9 50. The monthly income of Charlotte Yontz at all times material and relevant to this action was insufficient to adequately provide for her care, maintenance and support. 51. Upon information and belief, Cynthia Shearer had at all times material and relevant to this action, sufficient financial ability to pay for Charlotte Yontz's maintenance and support. 52. Title 62 of the Pennsylvania Statutes Section 1973, et. seq., requires children and spouses with sufficient financial ability to pay for the care and maintenance of their indigent parents, and to provide their parents with financial assistance. 53. Charlotte Yontz is "indigent" within the meaning of Title 62 Section 1973. WHEREFORE, Plaintiff respectfully requests that this honorable Court enter an Order as follows: a. Granting judgment for Plaintiff and against Defendant Cynthia Shearer in an amount to be determined by the court upon reasonable investigation into the Defendant's ability to pay; b. Granting Plaintiff its expenses, including reasonable attorney fees incurred in connection with this action; and c. Granting such other relief as the Court deems appropriate. Respectfully submitted, -A?NDASSOCI S, P.C. AN C. JAMES, l sq 're on No. 68214 11 IS-?MOZZI AND ASSOCIATES, P.C. 2933 North Front Street Harrisburg, PA 17110 (717) 233- 4101 Attorneys for Plaintiff Date: cJ -Look 127090550031 10 IN THE COURT OF COMMON PLEAS YORK COUNTY, PENNSYLVANIA Woodland Center for Nursing 780 Woodland Avenue Lewisberry, PA 17339 Plaintiff, V. CIVIL COMPLAINT NO. Ms. Charlotte Yontz, decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 Ms. Cynthia Shearer, 891 Old Silver Spring Road Mechanicsburg, PA 17055 personally and as attorney in fact for Charlotte Yontz, decedent Defendants, VERIFICATION I, Jonathan C. James, counsel for the Plaintiff, do hereby verify that the facts stated in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. This verification is being made by counsel because no authorized representative of the Plaintiff is available to make this verification. Counsel will substitute a verification of an authorized representative of Plaintiff as soon as it becomes available. This verification is made pursuant to Pa.R.C.P. 1024 and is based on interview, conferences, reports, and records in the file. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. §4904 relating to on sworn falsification to authorities. 11 127090550031 IN THE COURT OF COMMON PLEAS YORK COUNTY, PENNSYLVANIA Woodland Center for Nursing 780 Woodland Avenue Lewisberry, PA 17339 Plaintiff, V. CIVIL COMPLAINT NO. Ms. Charlotte Yontz, decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 Ms. Cynthia Shearer, 891 Old Silver Spring Road Mechanicsburg, PA 17055 personally and as attorney in fact for Charlotte Yontz, decedent Defendants, CERTIFICATE OF SERVICE I certify I am serving a copy of the above captioned Complaint upon the persons and in the manner indicated: Service by process server, pursuant to the Pennsylvania Rules of Civil Procedure, hand delivered to the address below. Ms. Cynthia Shearer, 891 Old Silver Spring Road Mechanicsburg, PA 17055 i Date: J ?? Z- LOO l JOIyA'fHAN C. JAMES, EsqueJ cTentification No. 68214 CAPOZZI AND ASSOCIATES, P.C. 2933 North Front Street Harrisburg, PA 17110 (717) 233- 4101 Attoff7 ff5JU iff C) G rr 12 N Q TI o -r ? "rn y? ? -rn r ? LO < Louis J. Capozzi, Jr., Esquire Steven M. Rollins, Esquire • Daniel K. Natirboff, Esquire Stephen A. Miller, Esquire Jonathan C. James, Esquire Elizabeth S. Antoun, R.N., Esquire Daniel A. Durst, Esquire Michael A. Hynum, Esquire Danielle Wesley, Esquire Bruce G. Baron, Research Coordinator Amy A. Keim, Paralegal Tanya L. Zerbe, Paralegal Shelly R. Gardner, Paralegal m r r? D .,x ASAC?TES P.C. Attorneys at law May 2, 2001 2933 North Front Street Harrisburg, PA 17110 • Telephone (717) 233-4101 Fax (717) 233-4103 Toll Free (877) 855-0846 www. capozziassociates. corn Of Counsel: Steven T. Hanford, Esquire Prothonotary ?? -S?/ 6 P ';? York County Courthouse 28 East Market Street York, PA 17401 Re: Woodland Center for Nursing v. Ms. Charlotte Yontz and Ms. Cynthia Shearer Dear Prothonotary: Enclosed please find an original and three copies of a Complaint as well as a check in the amount of $95.00. Kindly return three time-stamped copies to our office in the enclosed self-addressed stamped envelope. Thank you for your assistance in this matter. Sincerely, m for Y Jonathan C. James, Esquire Enclosures o o n n -G zc 7[ f JC1 n '' c: ? y -rn - ri .T A Q9 _y ' 1Z __ . ?. ? ? S' O T ? ? ?.. `? rn 2 U 'u- +?? - ? ( C? u? j 1? c u,. \ ?• 11111' v' ? 7 ? ( i (?f ? _y ^? a? ?, ?v C 1 ro v Q?^ PRAECIPE LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WOODLAND CENTER FOR NURSING 780 Woodland Avenue Lewisberry, PA 17055 NO.: 2003-3009 CIVIL ACTION - LAW V. Ms. Charlotte Yontz, Decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 and Ms. Cynthia Shearer 891 Old Silver Spring Road Mechanicsburg, PA 17055 Personally and as Attorney In Fact for CharlotteYontz, Deceased. CONSOLIDATED IN THE COURT OF COMMON PLEAS OF CUMBERLAND C Y, PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: § NO.: 21-01-69 ESTATE OF CHARLOTTE YONTZ § CONSOLIDATED § SSN: 196-14-3445 § DATE OF DEATH: November 26, 2000 1. The mater to be argued is Defendants' Preliminary Objections. 2. Counsel who will argue case: (a) For Plaintiff: Michael B. Volk, Esq. Address: 2933 North Front Street Harrisburg, PA 17110 (b) For Defendant: Address: Samuel L. Andes, Esq. 525 North 120' Street Lemoyne, PA 17043 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: June 9, 2004 6 Dated: Apri?, 2004 CAPOZZI & ASSOC[ATES .C By: onald R. Reavey, Esquire Attorney I.D. No. 82498 Michael B. Volk. Eso. Attorney I.D. No. 88553 2933 North Front Street Harrisburg, Pennsylvania 17110-1310 Telephone: (717) 2334101 Attorneys for Plaintiff CERTIFICATE OF SERVICE I certify that I am serving this 6 ? day of r 200!!!i -, a copy of the Plaintiffs Praecipe Listing case for Argument upon the person(s) indicated below by certified mail and first class mail, addressed as follows: VIA CERTIFIED MAIL: 7003-2260-0000-9890-6918 VIA FIRST CLASS MAIL: Samuel L. Andes, Esq. 525 North 12th Street P.O. Box 166 Lemoyne, PA 17043 By: Donald R. Reavey, Esquire Attorney I.D. No. 82498 Michael B. Volk, Esq. Attorney I.D7. No. 88553 2933 North Front Street Harrisburg, Pennsylvania 17110 Telephone: (717) 233-4101 3 f7 N ? ? l c co O G7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WOODLAND CENTER FOR NURSING 780 Woodland Avenue Lewisberry, PA 17055 V. Ms. Charlotte Yontz, Decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 and Ms. Cynthia Shearer 891 Old Silver Spring Road Mechanicsburg, PA 17055 Personally and as Attorney In Fact for CharlotteYontz, Deceased. NO.: 2003-3009 CIVIL ACTION - LAW CONSOLIDATED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: ESTATE OF CHARLOTTE YONTZ NO.: 21-01-69 CONSOLIDATED SSN: 196-14-3445 DATE OF DEATH: November 26, 2000 PLAINTIFF'S RESPONSES TO DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW, comes Plaintiff Woodland Center for Nursing wid in response to the Preliminary Objections of Plaintiff, avers as follows: COUNT 1- MOTION TO STRIIE 1. The averments contained in Paragraph 1 are conclusions of law, to which no reply is necessary. To the extent an answer may be deemed required, the same is specifically denied. Strict proof is demanded at trial if relevant. A. A copy of the written agreement by and between Plaintiff and Charlotte Yontz will be attached to Plaintiff's Amended Complaint. B. Plaintiff will file an Amended Complaint stating, an action against the Estate of Charlotte Yontz. C. The averments contained in Paragraph C are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. D. The averments contained in Paragraph D are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. E. The averments contained in Paragraph E are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. F. The averments contained in Paragraph F are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. 2 2. The averments contained in Paragraph 2 are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. COUNT 11 - DEMURRER 3. The averments contained in Paragraph 3 are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. A. The averments contained in Paragraph A are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. B. The averments contained in Paragraph B are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. C. The averments contained in Paragraph C are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. WHEREFORE, Plaintiff respectfully requests that the Court dismiss Defendants' Preliminary Objections. Dated: 2? CAPOZZI & ASSOCIATE P:C. By: ?onald R. Reavey, Esquire ttomey I.D. No. 82498 Michael B. Volk, Esq. Attorney I.D. No. 88553 2933 North Front Street Harrisburg, Pennsylvania 17110-1310 Telephone: (717) 233-4101 Attorneys for Plaintiff 4 CERTIFICATE OF SERVICE I certify that I am serving this 2Q?day of 2007 , a copy of the Plaintiff's Answer to Defendants' Preliminary Objections upon the person(s) indicated below by certified and first class mail, addressed as follows: VIA CERTIFIED MAIL: 7003-2260-0000-9890-5423 VL9 FIRST CLASS MAIL: Samuel L. Andes, Esq. 525 North 121h Street P.O. Box 166 Lemoyne, PA 17043 By 8 2933 North Front Street Harrisburg, Pennsylvania 17110 Telephone: (717) 233-4101 Attorney I.D. No. 8249 Michael B. Volk, Esq. Attorney I.D. No. 88553 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WOODLAND CENTER FOR NURSING 780 Woodland Avenue Lewisberry, PA 17055 NO.: 2003-3009 CIVIL .ACTION - LAW CONSOLIDATED V. Ms. Charlotte Yontz, Decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 and Ms. Cynthia Shearer 891 Old Silver Spring Road Mechanicsburg, PA 17055 Personally and as Attorney In Fact for CharlotteYontz, Deceased. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: § NO.: 21-01-69 ESTATE OF CHARLOTTE YONTZ § CONSOLIDATED § SSN: 196-114-3445 DATE OF DEATH: November 26, 2000 PLAINTIFF'S RESPONSES TO DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW, comes Plaintiff Woodland Center for Nursing and in response to the Preliminary Objections of Plaintiff, avers as follows: COUNT 1- MOTION TO STRIKE 1. The averments contained in Paragraph 1 are conclusions of law, to which no reply is necessary. To the extent an answer may be deemed required, the same is specifically denied. Strict proof is demanded at trial if relevant. A. A copy of the written agreement by and between Plaintiff and Charlotte Yontz will be attached to Plaintiff's Amended Complaint. B. Plaintiff will file an Amended Complaint stating an action against the Estate of Charlotte Yontz. C. The averments contained in Paragraph C are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. D. The averments contained in Paragraph D are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. E. The averments contained in Paragraph E are conclusions of law, to which no reply is necessary. To the extent that an appropriate; answer is deemed appropriate, such is specifically denied. Strict prool.`is demanded at trial if relevant. F. The averments contained in Paragraph F are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. 2. The averments contained in Paragraph 2 are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. COUNT 11 - DEMURRER 3. The averments contained in Paragraph 3 are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. A. The averments contained in Paragraph A are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. B. The averments contained in Paragraph B are conclusions of law, to which no reply is necessary. To the extent that an appropriate: answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. C. The averments contained in Paragraph C are conclusions of law, to which no reply is necessary. To the extent that an appropriate answer is deemed appropriate, such is specifically denied. Strict proof is demanded at trial if relevant. WHEREFORE, Plaintiff respectfully requests that the Court dismiss Defendants' Preliminary Objections. v_?' t Dated: CAPOZZI & ASSOCIATES, P.C. A f/ By: R. Reavey, Esquire v I.D. No. 82498 Harrisburg, Pennsylvania 17110-1310 Telephone: (717) 233-4101 Attorneys for Plaintiff' Michael B. Volk, Esq. Attorney I.D. No. 885:53 2933 North Front Street 4 CERTIFICATE OF SERVICE I certify that I am serving this ? ?-, . day of - ?? 2O0 a copy of the Plaintiff's Answer to Defendants' Preliminary objections upon the person(s) indicated below by certified and first class mail, addressed as follows: VIA CERTIFIED MAIL: 7003-2260-0000-9890-5423 VIA FIRST CLASS MAIL: Samuel L. Andes, Esq. .525 North 12th Street P.O. Box 166 Lemoyne, PA 17043 By: Donald R. Reavey, Esquire Attorney I.D. No. 82498 Michael B. Volk, Esq. Attorney I.D. No. 88553 2933 North Front Street Harrisburg, Pennsylvania 17110 Telephone: (717) 233-4101 5 ? C- N 6 Lp - r r.' ?_ ? ?C ? 1 ? ca ro? r Z,+„ =? _? , i?r? "i-- W %-?iT? c: j •• o .:? `n W -? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WOODLAND CENTER FOR NURSING 780 Woodland Avenue Lewisberry, PA 17055 NO.: 2003-3009 CIVIL ACTION - LAW CONSOLIDATED V. Ms. Charlotte Yontz, Decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 and Ms. Cynthia Shearer 891 Old Silver Spring Road Mechanicsburg, PA 17055 Personally and as Attorney In Fact for CharlotteYontz, Deceased. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: § NO.: 21-01-69 ESTATE OF CHARLOTTE YONTZ § CONSOLIDATED § SSN: 196-14-3445 § DATE OF DEATH: November 26, 2000 MOTION FOR SANCTIONS AGAINST DEFENDANT CYNTHIA SHEARER AND NOW, comes Plaintiff, Capozzi & Associates, P.C., by and through its attorneys, Donald R. Reavey, Esquire and Michael B. Volk of the law firm Capozzi & Associates, P.C., hereby file this Motion for Sanctions against the Defendant Cynthia Shearer, for failure to comply with this Court's order directing her to file an account of all actions taken on behalf of Charlotte Yontz including, but not limited to a detailed financial statement of all financial transactions undertaken in her capacity as power of attorney for Charlotte Yontz and as executrix of the estate of Charlotte Yontz, in accordance with Pa. R.C.P. 1530; In support of said Motion, Plaintiff respectfully shows this Honorable Court the following: 1. Movant is Plaintiff, Capozzi & Associates, P.C. 2. The Respondent is the Defendant, Cynthia Shearer. 3. Plaintiff filed a Complaint against the estate of Charlotte Yontz on May 4, 2001. 4. Defendant filed Preliminary Objections to Plaintiffs Complaint on May 24, 2001. 5. Plaintiff filed its Petition for Removal of Cynthia Shearer as Executrix for the Estate of Charlotte Yontz for Mismanagement of the Estate and to Compel Cynthia A. Shearer to Account to the Estate in her Capacity as a Fiduciary to the Decedent on March 7, 2003. 6. The Court entered an order on March 25, 2003, issuing a rule upon Defendant to show cause why Plaintiff is not entitled to an accounting of all transactions of Charlotte Yontz. 7. The parties entered into a stipulation whereby it was agreed to transfer venue of this action to the Cumberland County Court of Common Pleas on April 14, 2003. 8. The Court entered an order consolidating the action :filed in the Court of Common Pleas and the Estate action in the Orphan's Court of Cumberland County, where the estate of Charlotte Yontz was opened. 9. Plaintiff filed a Motion to Make Rule Absolute on December 11, 2003. 10. The Court signed an Order on December 19, 2003 making the /rule absolute, removing Cynthia Shearer as executrix and ordering her to file an account of all actions taken on behalf of Charlotte Yontz, including, but not limited to a detailed 2 statement of all financial transactions undertaken in ]let capacity as power of attorney for Charlotte Yontz and Executrix of the Estate of CharlotteYontz. 11. To date, Defendant has failed to provide an accounting as ordered. 12. Defendant has not formally or informally requested an extension of time to provide the accounting. 13. Defendant's unwillingness to provide an accounting, as ordered, necessitates the Court's intervention. 14. Defendant's failure to respond has resulted in Plaintiff accruing additional attorney fees in the amount of $1,500.00. Furthermore, due to Defendant's contempt of this Court's order, the sanction of Default Judgment in the amount of $36,916.50 is appropriate. WHEREFORE, Defendant respectfully requests that the Court sanction Defendant by entering a Default Judgment in the amount of $36,916.50. In the alternative, Plaintiff requests that Defendant be held in civil contempt and that a warrant issue for her arrest until such time she complies with the Order of this Court. In the alternative, if the Court deems it necessary to first give Defendant an opportunity to respond, it is hereby requested that a rule be entered in the proposed form. Respectfully subm' ed CAPOZZI & AS /Ck.4" By: Donald R. Reavey, Esq. Attorney I.D. No. 82498 Michael B. Volk, Esq. Attorney I.D.#88553 2933 North Front Street Harrisburg, Pennsylvania 17110-1310 Telephone: (717) 2334101 Date: Attorneys for Plaintiff 4 VERIFICATION I, Michael B. Volk, hereby verify that I am an attorney for the Plaintiff. I have sufficient knowledge or information based upon investigation into this matter by my client, to take this Verification. I hereby verify that the statements in the foregoing Motion for Sanctions Against the Defendant are true and correct to the best of my knowledge, information, and belief. I understand that false statements contained herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relative to unswo sif'cation to authorities. Date: Z By: Donald R. Reavey, Esq. Attorney I.D. No. 82498 Michael B. Volk, Esq. Attorney I.D.#88553 2933 North Front Street Harrisburg, Pennsylvania 17110 Telephone: (717) 233-4101 Attorney for Plaintiff CERTIFICATE OF SERVICE I certify that I am serving this 2-8 ` day ofJ-f--V , 2004, a copy of the Plaintiff's Motion for Sanctions Against the Defendant upon the person(s) indicated below by first class mail, addressed as follows: VIA CERTIFIED MAIL: 7003-2260-0000-9890-5416 VIA FIRST CLASS MAIL: Samuel L. Andes, Esq. 525 North 12`x' Street P.O. Box 166 Lemoyne, PA 17043 Date: By. / Donald R. Reavey, Esq. Attorney I.D. No. 82498 Michael B. Volk, Esq. Attorney I.D.#88553 2933 North Front Street Harrisburg, Pennsylvania 17110 Telephone: (717) 233-4101 Attorneys for Plaintiff 6 N r ? '*3 nl 5-; w o m tJ N i7 w -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WOODLAND CENTER FOR NURSING 780 Woodland Avenue Lewisberry, PA 17339 NO. 2003-3009 VS. MS. CHARLOTTE YONTZ, DECEDENT 891 Old Silver Spring Road Mechanicsburg, PA 17055 MS. CYNTHIA SHEARER 891 Old Silver Spring Road Mechanicsburg, PA 17055 personally and as attorney in fact for Charlotte Yontz, deceased CIVIL ACTION - LAW CONSOLIDATED ANSWER OF CYNTHIA SHEARER TO PLAINTIFF'S MOTION FOR SANCTIONS AND NOW comes the above-named Defendant, by her attorney Samuel L. Andes, and answers the Motion for Sanctions filed by the Plaintiff in the above matter, as follows: 1 through 3. Admitted. 4. Admitted. By way of further answer, Defendant Shearer states those preliminary objections have not been resolved and were only recently listed for argument by Plaintiff. 5 through 10. Admitted. 11. It is admitted that the accounting had not been filed as of the time of Plaintiff's Motion. Defendant Shearer, however, has filed her accounts with the Register of Wills contemporaneously with the filing of the Answer to Plaintiff's Motion. Attached hereto and marked as Exhibit A are copies of the Accounts filed by Defendant Shearer. 12. Admitted. However, Defendant Shearer has now filed her accounting. Moreover, a review of the Accounts filed by Defendant Shearer will demonstrate that she never came into control or possession of significant assets and that all of those assets were applied properly for the benefit of Charlotte Yontz or her estate and, as a result, the Plaintiff suffered no prejudice. 13. Denied for the reasons set forth in the Answer to Paragraph 12 above. 14. Denied. Defendant Shearer has no way of knowing what legal fees Plaintiff has occurred in this matter because that information is within the exclusive control of the Plaintiff and so Defendant Shearer denies that averment and demands proof at any hearing. Defendant Shearer further states that the entry of a default judgment in this matter while preliminary objections are pending before this court and in light of the information contained in the Accounts, copies of which are attached hereto, make such a sanction improper. Moreover, Plaintiff's procedure here, by requesting a sanction in the form of default judgment, without any hearings on the merit in the case, is improper and unlawful. WHEREFORE, Defendant Shearer prays this court to deny Plaintiff's Motion and allow the matter to proceed in the normal course of litigation as appropriate. S'6 4Lbl L. Andes Attorney for Defendant Supreme Court ID # 17225 525 North 12m Street Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date: Ir' EL L. AND CERTIFICATE OF SERVICE I hereby certify that I served an original of the foregoing document upon counsel for the Plaintiff herein by regular mail, postage prepaid, addressed as follows: Donald R. Reavey, Esquire 2933 North Front Street Harrisburg, PA 17110-1310 Michael B. Volk, Esquire 2933 North Front Street Harrisburg, PA 17110-11310 Date: 6 May 2004 'A(Y? ??Q11U?Y17? Amy M. -larkins Secretary for Samuel L. Andes WOODLAND CENTER FOR NURSING, Plaintiff IN THE ORPHANS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CHARLOTTE YONTZ, Deceased, and CYNTHIA SHEARER, Defendants ORPHANS COURT DIVISION NO. 21-01-69 FIRST AND FINAL ACCOUNT OF CYNTHIA A. SHEARER A:i AGENT. UNDER POWER OF ATTORNEY FOR CHARLOTTE I. YONTZ PURPOSE OF ACCOUNT: Cynthia A. Shearer is the daughter of Charlotte I. Yontz. Charlotte I. Yontz died on 26 November 2000. Prior to her death, she had appointed Cynthia A. Shearer as her attorney-in-fact. During the final few months of Charlotte II. Yontz's life, Cynthia A. Shearer exercised control over her financial affairs and this account is provided to acquaint interested parties in the transactions that occurred during her handling of her mother's financial affairs. It is important that the information in this Account be examined carefully. Requests for additional information or questions or objections should be discussed with, and directed to Cynthia A. Shearer c/o Samuel L. Andes P.O. Box 168 Lemoyne, PA 17043 I. RECEIPT OF PRINCIPAL The only financial asset owned by Charlotte I. Yontz of which Ms. Shearer took possession or control was a checking account at Mellon Bank, N.A., over which she assumed control on or about 15 August 2000. At the time she assumed control, the account had a balance of: $4,043.23 II. RECEIPT OF INCOME The only income received by Ms. Shearer during her administration of her mother's account were: 1 September 2000 Social Security payment $828.00 3 October 2000 Social Security payment $828.00 3 November 2000 Social Security payment $828.00 Total Receipt of Income $2.484.00 Total Receipts of Income and Principal $6,527.23 III. DISBURSEMENTS During her administration of Mrs. Yontz's account and financial affairs, Ms. Shearer made the following disbursements: 15 August 2000 Cynthia A. Shearer Payment of household and $700.00 other miscellaneous personal expenses for Mrs. Yontz 22 August 2000 Mellon Bank Payment for checks $18.50 13 September 2000 Cynthia A. Shearer Reimbursement for personal $60.00 expenses incurred for Mrs. Yontz 28 November 2000 Cynthia A. Shearer Reimbursement of $800.00 household and personal expenses paid for Mrs. Yontz 20 December 2000 Social Security Automatic withdrawal of Administration Social Security payment for month of November Total disbursements of Principal and Income IV. BALANCE ON HAND FOR DISTRIBUTION Total Receipts of Income and Principal $6,527.23 Total disbursements of Principal and Income ($2,406.50) $4,120.73 $828.00 $2,406.50 The above funds remained in the Mellon Bank checking account at the time of the death of Charlotte I. Yontz and were thereafter distributed to her estate. Cynthia A. Shearer, agent for the said Charlotte I. Yontz pursuant to a Power of Attorney, hereby declares under oath that she has fully and faithfully discharged the duties of her office, that the foregoing First and Final Account is true and correct and fully discloses all significant transactions occurring during the accounting period and that she has properly disclosed all of her dealings and transactions with the assets of the said Charlotte I. Yontz. G ynthia A. Shearer Sworn to and subscribed before me this y 9 '4j? day of Aep lu , 2004. 101- II Not2y Public ao NOTARIAL SEAL LYNN EHRENFELD, NOTARY PUBLIC LEMOYNE BORO., CUMBERLAND CO. MY COMMISSION EXPIRES AUG. 17 2004, L? LJ _0 rrl v U(D (r 3 _, MAY 0 7 2004 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WOODLAND CENTER FOR NURSING 780 Woodland Avenue Lewisberry, PA 17055 V. Ms. Charlotte Yontz, Decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 and Ms. Cynthia Shearer 891 Old Silver Spring Road Mechanicsburg, PA 17055 Personally and as Attorney In Fact for CharlotteYontz, Deceased. NO.: 2003-3009 CIVIL ACTION - LAW CONSOLIDATED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: § NO.: 21-01-69 ESTATE OF CHARLOTTE YONTZ § CONSOLIDATED § SSN: 196-14-3445 § DATE OF DEATH: November 26, 2000 ORDER And now, on t his the Liser ay of a, 2004., upon consideraflon of Plaintiff's Motion foSanctions it yO RED a 1L1`^. &4 {,, r 1. s for Defendant's contempt of this ourt's order, judt is?he hereby entere for VV ?? G Plaintiff in the amount of $36,916.50. 9h/????IC 2. Defendant is hereby ordered to pay Plaintiff reasonable attorney fees in the amount of Iw ` $1,500.00 for the cost of bringing this action for sancrions and judgment is hereby entered for the same amount, in addition to the $36,916.50. tic . cS cc Rd I I Avw uoZ kxlOR'O Ojd 3HI. d0 D!40-miu IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WOODLAND CENTER FOR NURSING 780 Woodland Avenue Lewisberry, PA 17055 V. Ms. Charlotte Yontz, Decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 and Ms. Cynthia Shearer 891 Old Silver Spring Road Mechanicsburg, PA 17055 Personally and as Attorney In Fact for CharlotteYontz, Deceased. NO.: 2003-3009 CIVIL ACTION - LAW CONSOLIDATED IN THE COURT OF COMMON PLEAS OF CUM13ERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: ESTATE OF CHARLOTTE YONTZ § NO.: 21-01-69 § CONSOLIDATED § SSN: 196-14-3445 § DATE OF DEATH: November 26, 2000 PRAECIPE TO WITHDRAW MOTION FOR SANCTIONS TO THE PROTHONOTARY: Please withdraw the Motion for Sanctions previously filed by the Plaintiff in this matter and the requested Order to Show Cause. Defendant has filed an account of actions taken on behalf of Decedent Charlotte Yontz. Respectfully submitted, By: Date: 2 ZdoQ? Donald R. Reavey, Esq. Attorney I.D. No. 82498 Michael B. Volk, Esq. Attorney I.D.488553 2933 North Front Street Harrisburg, Pennsylvania 17110-1310 Telephone: (717) 2334101 Attorneys for Plaintiff CERTIFICATE OF SERVICE I certify that I am serving this 7-1 day of IM. 6, 2004, a copy of the Plaintiffs Motion for Sanctions Against the Defendant up n the person(s) indicated below by first class mail, addressed as follows: VIA FIRST CLASS MAIL: Samuel L. Andes, Esq. 525 North 12`h Street P.O. Box 166 Lemoyne, PA 17043 Hon. George E. Hofer, P.J. One Courthouse Square Carlisle, PA 17013 I Donald R. Reavey, Esq. Attorney I.D. No. 82498 Michael B. Volk, Esq. Attorney LD.#88553 2933 North Front Street Harrisburg, Pennsylvania 17110 Telephone: (717) 233-4101 Attorneys for Plaintiff C7 0 G r ?' .:. N = OCL J . cam' -o x, rY N ?, Ga C:3 J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WOODLAND CENTER FOR NURSING 780 Woodland Avenue Lewisberry, PA 17055 V. Ms. Charlotte Yontz, Decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 and Ms. Cynthia Shearer 891 Old Silver Spring Road Mechanicsburg, PA 17055 Personally and as Attorney In Fact for CharlotteYontz, Deceased. NO.: 2003-3009 CIVIL ACTION - LAW CONSOLIDATED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: § NO.: 21-01-69 ESTATE OF CHARLOTTE YONTZ § CONSOLIDATED § SSN: 196-14-3445 § DATE OF DEATH: November 26, 2000 PRAECIPE TO REMOVE CASE FROM ARGUMENT COURT LIST TO THE PROTHONOTARY: Please remove the above styled and numbered case fi-om the argument Court list for June 9, 2004. CAPOZZI & ASSOCIATES, P.C. Bv:i?/??'v ? 'lam Donald R. Reavey, Esquire Attorney I.D. No. 82498 Michael B. Volk, Esq. Attorney I.D. No. 88553 2933 North Front Street Harrisburg, Pennsylvania 17110-1310 Telephone: (717) 2334101 Attorneys for Plaintiff CERTIFICATE OF SERVICE: I certify that I am serving this day of 200, a copy of the Plaintiff's Praecipe Removing Case from the Argument Court List upon the person(s) indicated below by certified mail and first class mail, addressed as follows: VIA FIRST CLASS MAIL: Samuel L. Andes, Esq. 525 North 12th Street P.O. Box 166 Lemoyne, PA 17043 By: Reavey, Esquire I.D. No. 82498 Michael. B. Volk, Esq. Attorney I.D. No. 88553 2933 North Front Street Harrisburg, Pennsylvania 17110 Telephone: (717) 233-4101 C7 ? C7 s- C, Un IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WOODLAND CENTER FOR NURSING 780 Woodland Avenue Lewisberry, PA 17055 V. Ms. Charlotte Yontz, Decedent 891 Old Silver Spring Road Mechanicsburg, PA 17055 and Ms. Cynthia Shearer 891 Old Silver Spring Road Mechanicsburg, PA 17055 Personally and as Attorney In Fact for CharlotteYontz, Deceased. NO.: 2003-3009 CIVIL ACTION - LAW CONSOLIDATED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: § NO.: 21-01-69 ESTATE OF CHARLOTTE YONTZ § CONSOLIDATED § SSN: xxx-x4-3445 § DATE OF DEATH: November 26, 2000 PRAECIPE LISTING PRELIMINARY OBJECTIONS FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly list the within matter for the next Argument Court, 1. The matter to be argued is Defendants' Preliminary Objections. 2. Counsel who will argue case: (a) For Plaintiff: Andrew R. Eisemann, Esq. Address: Capozzi & Associates, P.C. 2933 North Front Street Harrisburg, PA 17110 (717) 233-4101 (b) For Defendant: Address: Samuel L. Andes, Esq. 525 North 12' Street Lemoyne, PA 17043 (717) 761-5361 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: January 23, 2008 Dated: December 12, 2007 CAPOZZI & ASSQCIATES, P.C. *ndre'w R', Esquire Attorney I. o. 87441 2933 North Front Street Harrisburg, PA 17110-1310 Telephone: (717) 233-4101 Attorneys for Plaintiff 2 CERTIFICATE OF SERVICE I certify that I am serving this day of 2007, a copy of the Plaintiff's Praecipe Listing Preliminary Objections for Argument upon the person(s) indicated below by certified mail and first class mail, addressed as follows: Samuel L. Andes, Esq. 525 North 12th Street P.O. Box 166 Lemoyne, PA 17043 By: 3 r.s .., s .?? t'> ;? ""' °" <?: .r- ??} ,?' P,i w ? c?'+ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA WOODLAND CENTER FOR NURSING, Plaintiff CIVIL ACTION - LAW vs. NO.: 2003-3009 CHARLOTTE YONTZ, DECEASED, and CYNTHIA SHEARER, Defendants PLAINTIFF'S PETITION FOR LEAVE TO AMEND COMPLAINT AND NOW, comes Plaintiff, by and through its attorneys, Capozzi & Associates, P.C., and hereby petitions this Honorable Court for leave to amend the complaint pursuant to Rule 1033 of the Pennsylvania Rules of Civil Procedure, and in support thereof, avers as follows: 1. On May 4, 2001, Plaintiff filed a Complaint against the Defendants in the York County Court of Common Pleas at Docket No. 2001-SU-2251-01. 2. As of May 23, 2003 the action was transferred to Cumberland County Court of Common Pleas, and marked inactive in York County Court of Common Pleas. 3. On or about January 14, 2008, Defendant filed a brief in support of their preliminary objections to Plaintiff's Complaint. 4. By way of agreement of both parties the case was removed from argument on the preliminary objections scheduled for January 23, 2008. 5. Plaintiff now seeks to amend the Complaint in this matter to include averments for Breach of Contract, including attachment of the written agreement, Action in Assumpsit - Duty to Support, with respect to the assets and income of Charlotte Yontz, and to remove Charlotte Yontz as a defendant. 6. Plaintiff alleged mismanagement of the assets and income of Charolotte Yontz and the refusal by the Defendant to use the assets and income to complete the contract, as agreed upon by the Defendant and Plaintiff, to pay for the health care services provided by the Plaintiff to Charlotte Yontz in the original Complaint. 7. Plaintiff raises no new cause of action in its Amended Complaint. A true and correct copy of the proposed Amended Complaint is attached hereto as Exhibit «A" 8. Defendant is not prejudiced by the amendment because the matter has not been scheduled for trial and the Defendant will have adequate time to address the new averments if they so choose. WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant Plaintiff s leave to amend its Complaint. Respectfully submitted, Capozzi & Associates, P.C. Date: Davi agle, Esquire Pa o.: 201707 2933 N. Front Street Harrisburg, PA 17110 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA WOODLAND CENTER FOR NURSING, Plaintiff CIVIL ACTION - LAW vs. NO.: 2003-3009 CYNTHIA SHEARER, as power of attorney responsible party and/or fiduciary for Charlotte Yontz Defendant 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 the complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by 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. LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 AVISO e han demandado a usted en la corte. Si usted quiere defenderse de estas de estas demandas expuestas an las paginas signientes, usted tiene veinte (20) dias de plazo al partir de is fecha de la demanda y is notificacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, le corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisioner de esta demanda. Usted puede perder dinero o sus propiedades u ostros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE, SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Date: q//; UO Respectfully submitted, CAPOZZI AND ASSOCIATES, P.C. By: David C gle, Esquire Pa. . # 201707 2933 North Front Street Harrisburg, PA 17110 (717) 233-4101 Attorney for Plaintiff I % IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA WOODLAND CENTER FOR NURSING, Plaintiff CIVIL ACTION - LAW vs. NO.: 2003-3009 CYNTHIA SHEARER, as power of attorney responsible party and/or fiduciary for Charlotte Yontz Defendant AMENDED COMPLAINT AND NOW, comes Plaintiff, Woodland Center for Nursing, by and through its attorneys, Capozzi & Associates, P.C., and avers as follows: 1. Plaintiff, Woodland Center for Nursing, (Woodland), provided long term care and skilled nursing services. 2. Plaintiff was located at 780 Woodland Avenue, Lewisberry, PA 17339, York County, Pennsylvania. 3. Defendant, Cynthia Shearer is an adult individual with a last know address of 891 Old Silver Spring Road, Mechanicsburg, PA 17055. (Defendant Shearer) 4. Defendant Shearer is the daughter of Charlotte Yontz. 5. On December 22, 1999, Defendant Shearer, as Responsible Party, requested that Woodland admit Charlotte Yontz to Woodland Center for Nursing and executed a written admission agreement (the "Admission Agreement") so that Charlotte Yontz could receive nursing care and services. A copy of the executed Admission Agreement is attached hereto and incorporated herein as Exhibit "A." 6. During the period of her residency at Woodland Center for Nursing, Plaintiff provided nursing care and services to Charlotte Yontz pursuant to the terms of the Admission Agreement. 7. At all times relevant to this action, the nursing care and services rendered met all applicable federal, state, and local standards of care. 8. Woodland Center for Nursing is entitled to monetary compensation for the nursing care and services rendered to Charlotte Yontz. 9. On information and belief, Defendant had access to the assets and income of Charlotte Yontz, including, but not limited to, her bank account, her checking account, and her social security and pension checks. 10. Defendant was provided monthly invoices detailing the nursing care and services provided to Charlotte Yontz. 11. To date Defendant Shearer has failed and refused to use the pay for services rendered to Charlotte Yontz. 12. The account for Charlotte Yontz is currently in arrears in the amount of $36,916.50 (the "Account Invoice"). COUNT I - BREACH OF CONTRACT Cynthia Shearer, Individually, and as Power of Attorney and Responsible Party for Charlotte Yontz 13. Woodland Center for Nursing incorporates paragraphs 1 through 12 of this Complaint as if set forth herein. 14. The Admission Agreement identifies the parties to the Admission Agreement as Charlotte Yontz as the Resident and Defendant Shearer as the Power of Attorney and Responsible Party. 15. Defendant Shearer was the attorney in fact for Charlotte Yontz and at all times material to this cause of action did represent herself to the staff and administration of Woodland as the attorney in fact for Charlotte Yontz. 16. The Admission Agreement states that the "resident/responsible party agrees to pay the full per diem unless or until the resident is eligible to have his/her care paid by Medicare or Medicaid." 17. The Admission Agreement, as explained to Defendant Shearer, provided that the Responsible Parry was required to utilize the funds of the resident in order to make payment for services not covered by Medicare, Medicaid, or other insurance benefits. 18. To the extent that Defendant Shearer failed to remit payment from the income and any other assets of Charlotte Yontz to Woodland Center for Nursing, she is personally liable for any misappropriation of funds. 19. Defendant's failure to remit payment in full and cure the default of the Admission Agreement constitutes a breach of contract. 20. Woodland Center for Nursing has been financially damaged by the failure of Defendant to pay for the nursing care and services that were rendered to the Resident. WHEREFORE, Woodland Center for Nursing demands judgment against Cynthia Shearer in the amount of $36,916.50, plus interest and costs of collection, which sum does not exceed the local limit for arbitration. COUNT II - BREACH OF IMPLIED CONTRACT Cynthia Shearer, Individually, and as Power of Attorney and Responsible Party for Charlotte Yontz If this Honorable Court should find that an express contract did not exist between Plaintiff and Defendants, which is denied, then, in that event, Plaintiff pleads the following alternative cause of action for breach of an implied contract by the Defendants: 21. Plaintiff hereby incorporates paragraphs 1 through 20 of this Complaint as if set forth herein. 22. On or about December 22, 1999, Defendant requested Woodland admit Charlotte Yontz to the facility so she could receive nursing care and services. 23. On or about December 22, 1999, pursuant to a request for nursing care and services made to Woodland, Plaintiff promised to render nursing care and services to Charlotte Yontz in exchange for payment for the services provided. 24. On or about December 22, 1999, Defendant represented to Woodland a promise to pay for the nursing care and services provided from the assets and income of Charlotte Yontz. 25. Woodland did render nursing care and services to Charlotte Yontz during her stay at Woodland's facility. 26. Defendant's failure to remit payment in full using the assets and income of Charlotte Yontz constitutes a breach of the implied contract. 27. Defendant's failure to remit payment in full from the assets of Charlotte Yontz to pay for the nursing care and services provided by Woodland has damaged the Plaintiff. WHEREFORE, Woodland Center for Nursing demands judgment against Cynthia Shearer in the amount of $36,916.50, plus interest and costs of collection, which sum does not exceed the local limit for arbitration. COUNT III - QUANTUM MERUIT Cynthia Shearer, Individually, and as Power of Attorney and/or Responsible Party for Charlotte Yontz If this Honorable Court should find that an express contract did not exist between Plaintiff and Defendants, which is denied, then, in that event, Plaintiff pleads the following alternative cause of action in quantum meruit against the Defendants. 28. Plaintiff hereby incorporates paragraphs 1 through 27 of the Complaint as if set forth herein. 29. At the request of the Defendant, Woodland provided nursing care and services to Charlotte Yontz. 30. Defendant knew or should have known that Plaintiff Woodland expected payment for providing Charlotte Yontz with nursing care and services. 31. Woodland had a reasonable expectation of payment for providing nursing care and services to Charlotte Yontz. 32. Defendant has refused to pay for the nursing care and services provided to Charlotte Yontz. 33. Defendant was unjustly enriched through Charlotte Yontz's use of Woodland's nursing care and services without providing Woodland with proper and agreed upon payment. 34. The unjust enrichment received by the Defendant has damaged Woodland in an amount equal to the value of the services provided. WHEREFORE, Woodland Center for Nursing demands judgment against Cynthia Shearer in the amount of $36,916.50, plus interest and costs of collection, which sum does not exceed the local limit for arbitration. COUNT IV - BREACH OF FICUCIARY DUTY Cynthia Shearer, Individually, and as Power of Attorney and/or Responsible Party for Charlotte Yontz 35. Plaintiff hereby incorporates paragraphs 1 through 34 of this Complaint as if set forth herein. 36. Pa. C.S.A. section 5601 (e) states that an agent acting under a power of attorney has a fiduciary duty with the principal. 37. On information and belief, Cynthia Shearer did at all times relevant hereto did hold herself out as the attorney in fact for Charlotte Yontz. 38. On information and belief Defendant specifically represented to the staff and administration of Woodland Center for Nursing that she was the attorney in fact for Charlotte Yontz. 39. On information and belief, Defendnat specifically represented to the staff and administration of Woodland Center for Nursing that they were entirely justified in relying upon her to act as the attorney in fact for Charlotte Yontz. 40. On information and belief, Defendant specifically represented to the staff and administration of Woodland Center for Nursing that she would use the income and assets of Charlotte Yontz to pay for her nursing care and services. 41. On information and belief, the income and assets of Charlotte Yontz were at all times relevant hereto accessed and controlled by Defendant. 42. Woodland reasonably relied on Defendant's representations including, but not limited to, that she would: a. Make the income and assets of Charlotte Yontz available to Woodland for payment of nursing care and services rendered. b. Provide timely all information required to execute a Medical Assistance application on behalf of Charlotte Yontz. c. Be available to make decisions on behalf of Charlotte Yontz with respect to relevant aspects of care and services rendered to her. 43. As the attorney in fact for Charlotte Yontz, Defendant had a fiduciary duty to act in Charlotte Yontz's best interest. 44. As the attorney in fact for Charlotte Yontz, Defendant had a fiduciary duty to use Charlotte Yontz's income and assets to serve her best interests. 45. Defendant refused to make the make the income and assets of Charlotte Yontz available to Woodland to pay for her nursing care and services. 46. Defendant violated her fiduciary duty to Charlotte Yontz by refusing to use her income and assets to pay for her nursing care and services. 47. Woodland, by virtue of the contract with Charlotte Yontz is an intended third party beneficiary of the agency relationship that existed between Charlotte Yontz and Defendant. 48. Woodland, in relying on Defendant's representations, has been damaged by Defendant's violation of her fiduciary duty to Charlotte Yontz. WHEREFORE, Woodland Center for Nursing demands judgment against Cynthia Shearer in the amount of $36,916.50, plus interest and costs of collection, which sum does not exceed the local limit for arbitration and direct Defendant to produce and accounting of the property of Charlotte Yontz. COUNT V -ACTION IN ASSUMPSIT - DUTY TO SUPPORT Cynthia Shearer 49. Plaintiff hereby incorporates paragraphs 1 through 48 of this complaint as if set forth herein. 50. Title 23 of the Pennsylvania Statutes §4601 et. seq., 23 P.S. §4601 (the "Support Law"), requires children and spouses with sufficient financial ability to pay for the care and maintenance of their indigent parents, and to provide their parents with financial assistance while they remain in a publicly supported nursing facility. 51. Woodland had a legal duty to provide care, maintenance and assistance to Charlotte Yontz. 52. Charlotte Yontz's average monthly expenses incurred at Woodland Center for Nursing are three thousand nine hundred dollars ($3,900). 53. Charlotte Yontz's reasonable monthly living expenses incurred at Woodland Center for Nursing significantly exceeded her monthly income. 54. The monthly income of Charlotte Yontz, at all time relevant to this action, was insufficient to provide for her care maintenance and support. 55. Charlotte Yontz was "indigent' within the meaning of the Support Law. 56. Defendant knew or should have known that Charlotte Yontz's reasonable monthly living expenses significantly exceeded her monthly income. 57. Upon information and belief, Defendant had sufficient financial ability to pay for Charlotte Yontz's maintenance and support. J . 58. This Court has proper jurisdiction under the Support Law to hold Charlotte Yontz's daughter financially liable, in whole or in part, to reimburse Woodland Center for Nursing for nursing care and services provided to Charlotte Yontz. 59. Woodland has been financially damaged by Defendant's failure and refusal upon demand to reimburse Woodland for the nursing care and services rendered in the amount of $36,916.50. 60. As Charlotte Yontz's daughter, Defendant is financially liable for retroactive support to Woodland in accordance with the Pennsylvania Duty to Support Law. WHEREFORE, Woodland Center for Nursing demands judgment against Cynthia Shearer in the amount of $36,916.50, plus interest and costs of collection, which sum does not exceed the local limit for arbitration. COUNT VI - ACTION FOR ACCOUNTING PURSUANT TO Pa.R.C.P NO. 1530 Cynthia Shearer 61. Plaintiff hereby incorporates paragraphs 1 through 60 of this Complaint as if set forth herein. 62. Due to the Defendant's wrongful conduct described herein, including dissipating, misappropriating, and conversion of Charlotte Yontz's assets, Plaintiff is entitled to an accounting of a. All transactions and dealings with relation to her duties as a power of attorney or fiduciary over the assets and property of Charlotte Yontz; b. All profits and losses as a result of any investments or businesses run during her tenure as the power of attorney or fiduciary on behalf of Defendant Charlotte Yontz; c. A listing of all of Charlotte Yontz's assets and liabilities during the entire time Defendant acted as power of attorney or fiduciary for Charlotte Yontz, and had control of Charlotte Yontz's assets and property, and any actions taken by the power of attorney or fiduciary with regard to the assets and property of Charlotte Yontz. 63. Defendant is a constructive trustee of the funds and assets she wrongfully appropriated and converted to her own use. 64. Defendant should account for all of Charlotte Yontz's funds spent for her personal use and that of her family friends and pay back such misapplied funds to Woodland as was her obligation as a power of attorney or a fiduciary. 65. Defendant should account for any overvaluation, if any, of Charlotte Yontz's assets and pay back the difference between the actual value of the assets and the misrepresentation of their value. 66. Defendant should account for wrong conversion, dissipation, and sale of Charlotte Yontz's property and return the items or their value to pay for Charlotte Yontz's obligations. 67. As a party to the power of attorney or fiduciary relationship between Defendant and Charlotte Yontz, Woodland is also entitled to a full and complete inspection of any books or records in the possession of Defendant pertaining to her actions as a power of attorney or a fiduciary. WHEREFORE, Plaintiff demands judgment in its favor and against Defendant and for an order directing Defendant to produce all books and records for inspection relating to her actions as power of attorney or fiduciary, account for all of the transactions, dealings, assets and liabilities of Defendant's transactions as power of attorney or fiduciary and such other relief that the Court may deem appropriate. 01 . Respectfully Submitted, CAPOZZI AND ASSOCIATES, P.C. Date: Vi e Atto D. No. 201707 Cap zzi & Associates, P.C. 2933 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA WOODLAND CENTER FOR NURSING, Plaintiff CIVIL ACTION - LAW vs. NO.: 2003-3009 CYNTHIA SHEARER, as power of attorney responsible party and/or fiduciary for : Charlotte Yontz Defendant VERIFICATION I, David C. Dagle, Esq. do hereby verify that the facts stated in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. This verification is being made by counsel because no authorized representative of the Plaintiff is available to make this verification. Counsel will substitute a verification of an authorized representative of Plaintiff as soon as it becomes available. This verification is made pursuant to Pa. R.C.P. 1024 and is based on conferences, reports, and records in the file. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to sworn falsification to authorities. avid C agle Atto ey for Plaintiff Admission Agreement Woodland Center For Nursing and C n Q 41? (Resident or Responsible Party) hereby agree to the following terms and agree ents providing for care of:o " PL- C) 11l ?-- Y UY, tZ_ (Name of Resident) Facility Agrees: 1. To provide room and board, including therapeutic diets, nursing care, and related routine services as ordered by resident's attending physician in accordance with accepted medical and nursing practices. 2. To obtain the services of a licensed physician of the resident's choice or the services of another licensed physician, if a personal physician has not been designated or. is not available, as well as such medications as the physician may order. 3. To arrange for transfer of the resident to an appropriate medical facility upon physician order and to notify the responsible party prior to such transfer, except in the case of an emergency. 4. To refund all advance payments in the event of a discharge or death on a prorated basis. 5. When appointments are made by the facility for those residents medically capable to be transported by standard vehicle, the responsible party will be notified and requested to transport their family member. If the responsible party in unable to provide this service, the family will then make available this transport service. Upon use of this service, the family releases the facility of any liability for personal injury. 6. To notify the resident or responsible party of increases in fees thirty (30) days prior to implementation. 7. To bill monthly for services not covered under the per diem rate or by third party payers. Services not covered in the per diem rate include therapies, medications and treatments, barber and beauty services, personal laundry, toiletries, and medical supplies. 8. To submit any claim for payment to Medicare, Medicaid, or insurances as appropriate. Resident or Responsible Party Agrees: 1. To receive nursing care and treatment, provided at Woodland Center for Nursing. 2. To provide such personal clothing and effects as needed by the resident. EXH IT Admission Agreement, Page 2 3. To provide such spending money as needed by the resident. 4. To make payment for services which are not covered be Medicare, Medicaid or other insurance benefits. Other services and products not normally furnished by the facility will be furnished upon request by the resident unless medically contraindicated as documented by the resident's physician in the resident's medical record. The facility shall have the right to implement new services or products from time to time. Charges for such new services and products will be announced 30 days in advance by the facility. 5. To permit photographs, tape recordings, and video tapes to be taken in connection with services provided by Woodland Center for Nursing. Such photographs, video tapes, and tape recordings may be published, exhibited, shown or otherwise used by Woodland Center for Nursing for any purpose of education, or publicity. The resident will not be identified by name in connection with the public use of this material except for newspaper publicity photos. I grant this consent and waive all rights I may have to royalties or other compensation with any such use. Yes 6'.S - or, No 6. To consent to the release of such personal and clinical records to authorized agents, consultants, and employees'for the facility as may be necessary to comply with government reimbursement or payment policies and standards and to respond to payer inquiries relating to the care provided for which payment is sought by this institution. 7. To claim clothing or effects within fourteen (14) days of discharge. Any clothing or personal effects not claimed in 14 days will be deemed to have been abandoned. To permit the facility to assist in the opening and/or reading of personal mail at my request. I further authorize the administrator, business office manager, or their designee to open financially-related mail addressed to me. I understand that the information from these sources concerning payment for my care will be placed in my financial file and will be available to me upon my request. Yes ex or, No 9. To comply with the Reserved Bed policy, a bed will be held vacant during the resident's temporary absences from the facility as indicated below: a. Medicare or Private Insurance: Does not cover bed hold. The resident and responsible party will be contacted to determine if arrangements need to be made to pay for bed hold fee, or reapply* for return to the facility. Admissions Agreement, Page 3 b. Private Pay: The resident and responsible party will be contacted to determine if arrangements need to be made to pay for bed hold fee or reapply* for return to the facility. c. Medical Assistance (Medicaid): 1. For Hospitalization: Medicaid will pay for up to fifteen (15) consecutive days. For hospitalizations over fifteen (15) days, the resident and responsible party will be responsible for the Medicaid per diem rate or reapply* for return to the facility. 2. For Therapeutic Leave: (As ordered by-the attending physician and included in the resident's plan of care) Medicaid will pay a maximum of thirty (30) days per calender year. For therapeutic leave longer than that stated above, the resident and responsible party representative will be responsible for the full per diem rate or reapply* for return to the facility. *Resident will be readmitted to the facility immediately upon first availability of a bed if the resident requires and is eligible for the services provided by the facility. 10. To permit all medications,, as ordered by the physician, to be obtained on the resident's behalf by Woodland Center for Nursing from facility's contract pharmacy provider. Ordering and receiving medications from a non-contract pharmacy must comply with facility medication procedures. Delegation of authority for management of resident fund account: The resident has the right to manage his/her financial affairs and Woodland Center for Nursing does not require residents to deposit their personal funds with the facility. Upon written authorization of a resident, Woodland Center for Nursing will manage an account for the resident's personal funds. All resident funds are deposited with a local bank in an interest bearing account. The resident has access to these funds through the Business Office of Woodland Center for Nursing during regular business hours daily Monday through Friday. When a resident authorizes Woodland Center for Nursing staff to manage his/her resident fund account, a quarterly report of the account is prepared for the resident. Admission Agreement, Page 4 If a resident chooses not to authorize Woodland Center for Nursing to manage his/her resident account, the resident must maintain adequate documentation of all expenditures and income for the Department of Public Welfare's Medical Assistance Eligibility regulations, and in general, comply with all applicable financial requirements of the Federal and State government and Woodland Center for Nursing. I have received, read and understood the Financial Requirements for admission to Woodland Center for Nursing. I, therefore, intending to be legally bound: C Authorized the administration of Woodland Center for Nursing to manage my resident fund account. My authorization shall extend to expenditures, disbursements, receipts, accounting and reporting. I specifically direct that the present authorization shall survive the resident's subsequent incompetency/incapacity and remain fully enforceable thereafter. Choose to manage my own funds. I shall manage the funds in accordance with Medical Assistance Eligibility regulations. Further, I shall submit all applications and reports to appropriate government agencies on a timely basis, and in general, comply with all applicable financial requirements of the Federal and State government and Woodland Center for Nursing. I understand that failure to submit appropriate applications and reports to government agencies, or otherwise comply with any and all applicable financial requirements, will result in discharge from Woodland enter for Nursing. Signature p D t7 Date Medicare, Medicaid and all third party insurance authorization to permit payment: I authorize Woodland Center for Nursing to apply for benefits on my behalf for services rendered while a resident at Woodland Center for Nursing. I request that payment of authorized Medicare, Medicaid and third party insurance benefits be made directly to Woodland Center for Nursing for any services furnished including physician, therapy and psychiatric services as this applies to the resident. I authorize any holder of medical information about me to be released to the Health Care Financing Administration and its agents or my designated medical insurer any information needed to determine these benefits. Signature L ?2.ea'C1d? Date Admission Agreement, Page S Discharge Notification: The resident or responsible party signing this agreement may terminate this agreement on five (5) day written notice. If written notice is not received in the appropriate time frame, the resident/responsible party signing the agreement will be liable for payment of per diem for the remainder of the notification period. The facility will not discharge or transfer a resident unless... 1. It is necessary for the resident's welfare and the resident's needs cannot be met in the facility. 2. The resident's transfer or discharge is appropriate because he/she has improved sufficiently and no longer needs the services provided. 3. The health or safety of the other individuals in the facility would be endangered. 4. After reasonable and appropriate notice, resident fails to pay (or have the stay paid under Medicare or Medicaid) for a stay in the facility. 5. The facility ceases to operate. In the event that a discharge or transfer is necessary and, except in an emergency, the facility will give 30 days advance written notice to the resident, to any legal representative, responsible party and to others required by law to receive this notice. In the event of an emergency, the facility will give as much notice as is possible under the circumstances. Payment Arrangements: On Woodland Center for Nursing will admit C 4AP-- LUTE. The resident/responsible party herein agrees to pay the full per diem unless or until the resident is eligible to have his/her care paid for by Medicare or Medicaid. The undersigned states that he/she has authority to handle funds of the resident, and that he/she has read this document in full and has had the opportunity to ask questions and receive a complete explanation of each and every item. The undersigned agrees to utilize the funds of the resident which the undersigned handles in order to make payment for services which are not covered by Medicare, Medicaid, or other insurance benefits, and to otherwise handle the funds of the resident so as to pay for the services provided by the facility which are not covered by Medicare, Medicaid, or other insurance benefit V. Signature Date ?? Admission Agreement, Page 6 Statements are to be sent to: Name d ;Ce26 Address By signing this document, I consent to all of the items described. I have had the opportunity to ask questions and receive a complete explanation of each and-every item. I understand the importance of this consent as it relates to each of these items. This document is being signed by GO iG? V S ,4 (Print Name) The relationship of the undersigned to the resident is: r- P__ Self Attorney in Fact-Attach copy of Power of Attorney Court Appointed Guardian-Attach copy of Court Order Other-Explain Signature of Resident or Responsible Party Date Signature and title of Woodland Center for Nursing representative: A III I - Date ?_-2 - 55' September, 1999 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA WOODLAND CENTER FOR NURSING, Plaintiff CIVIL ACTION - LAW vs. NO.: 2003-3009 CHARLOTTE YONTZ, DECEASED, and CYNTHIA SHEARER, Defendants CERTIFICATE OF SERVICE I hereby certify that on the /p?7I *? day ofc-?-44r 2008, Plaintiff's Petition for Leave to Amend Complaint was served upon the following parties counsel via United States Mail, first class postage prepaid, and addressed as follows: Samuel L. Andes, Esq. 525 North Twelfth Street Lemoyne, PA 17043 Date: q/ulif 4iX.a Esq. +.? ?:•- r tip.. r `? ?3 ? + ?? + f ?s .-? ,- .? c;-t ..,?