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HomeMy WebLinkAbout03-5043Luther E. Milspaw, Jr., Esquire Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilspaw~MBLawFirm.com Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM Ua HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :NO. 4275-CV~2002-CV :JURY TRIAL DEMANDED : 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 with in twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the 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: DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 Luther E. Milspaw, Jr., Esquire Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (717)236-0791 Fax LMilspaw(&MB LawFirm. c om Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUB1N, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, 1NC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted guiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notification. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las dcmandas en contra de su persona. Sea avisado que si usted no se defiende, la sin previo aviso o notificacion y por cualquier queja o alivio que es pcdido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. 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 ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 Luther E. Milspaw, Jr., Esquire Attorney I.D. No. ~9226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilspaw~MBLawFirm. com Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O, , HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED COMPLAINT I. PARTIES and JURISDICTION Plaintiffs Rodney K. Rountree and Jay P. Rountree are adult individuals who are the administrators of the Estate of their deceased mother, Phyllis O'Hare ("Mrs. O'Hare"), citizens of the United States, and residents of Shiremanstown, Cumberland County, Pennsylvania, as was the decedent. Defendant, Jon A. Dubin, D.O., ("Dr. Dubin") is an osteopathic physician duly licensed in the Commonwealth of Pennsylvania with his principal place of business in Camp Hill, Cumberland County, Pennsylvania. At all times relevant herein, Dr. Dubin was practicing osteopathic medicine in the specialty of emergency and internal medicine as an employee of Defendant Holy Spirit Health System T/A Holy Spirit Hospital ("Holy Spirit Hospital"), and was acting within the course and scope of his employment. Dr. Dubin had as a patient the decedent Phyllis O'Hare on September 11, 1998, and in the course of treating her, prescribed for her use certain drugs including Biaxin and other products. At all times relevant to this cause of action, Dr. Dubin held himself out to the general public, including Mrs. O'Hare, as a doctor with special knowledge, skill and experience in 3 emergency and intemal medicine. Defendant Holy Spirit Health System T/A Holy Spirit Hospital ("Holy Spirit Hospital") is a business corporation duly authorized to do business in the Commonwealth of Pennsylvania, with its principal administrative offices and hospital facilities, including its emergency room, in Camp Hill, Cumberland County, Pennsylvania. Holy Spirit Hospital advertises and conducts its business throughout Central Pennsylvania including Dauphin County. At all relevant times herein, Holy Spirit Hospital was the employer of Dr. Dubin. Defendant Rite Aid of Pennsylvania, Inc. ("Rite Aid") is a business corporation duly authorized to conduct business in the Commonwealth of Pennsylvania, with its principal administrative offices in Camp Hill, Cumberland County, Pennsylvania. Rite Aid advertises and conducts its business, including the operation of pharmacies, throughout Central Pennsylvania, including Dauphin County. Jurisdiction and venue are proper in Dauphin County, Pennsylvania. II. FACTUAL BACKGROUND Mrs. O'Hare was initially prescribed the drug cisapride, marketed under the brand name Propulsid, for esophageal spasm in January1996 by Dr. John P. McLanghlin. Dr. McLaughlin continued Mrs. O'Hare on Propulsid for the next two years and nine months, and Rite Aid filled her prescriptions, until her death. When receiving prescriptions for Propulsid, Mrs. O'Hare was not prescribed a safe drug but instead was given a drug that causes potentially life-threatening heart problems including QT prolongation, cardiac arrhythmia, ventricular tachycardia, torsades de pointes, ventricular fibrillation, heart disease, hypertensive crises, and other adverse medical conditions. Prior to 1998, physicians, pharmacies and hospital personnel were aware, or should have been aware, of potential life threatening conditions associated with the drug Propulsid. 4 9. In 1998, reports of serious adverse events, including death from heart rhythm disorders and sudden cardiac arrest, prompted the FDA to issue a warning about the drug Propulsid. Therefore, Defendants herein knew, or should have known, about the life threatening conditions associated with the drug Prepulsid and about the FDA warning. 10. Prior to 1998, physicians, pharmacies and hospital personnel were aware, or should have been aware, of potential life threatening conditions associated with the concomitant use of Propulsid and Biaxin. In particular, Clarithromycin (Biaxin) has been known to inhibit the cytochrome P450 3A4 isoenzyme which is mainly responsible for metabolism of cisapride (Propulsid), resulting is increased cisapride blood levels. 11. On September 1 I, 1998, Mrs. O'Hare went to the emergency room of Holy Spirit Hospital complaining of shormess of breath and wheezing. She was seen by Dr. Dubin and other nurses and staffofHoly Spirit Hospital and had several tests conducted. Mrs. O'Hare had been to Holy Spirit Hospital on several previous occasions (02-01-96, 07-19-96, and 4- 16-98) and Dr, Dubin called for and reviewed her previous records. The previous records identified Dr. McLaughlin as her treating physician and reflected her history of taking Prepulsid. Dr. Dubin did not consult with Dr. McLaughlin or any of Mrs. O'Hare's other physicians. That: same day, following his examination, review of Mrs. O'Hare's previous records, and additional testing, Dr. Dubin diagnosed a possible respiratory infection, prescribed a 10 day course of the antibiotic Biaxin for Mrs. O'Hare, and sent her home. 12. The ingestion of Biaxin over the next eight (8) days by Mrs. O'Hare resulted in elevated cisapride blood level in her system. The elevated Cisapride blood level in turn caused QT prolongation, ventficular tachycardia, and resulted in her death on September 19, 1998. The ingestion of Propulsid and Biaxin concomitantly was the direct and proximate cause of her death. 13. All of Mrs. O'Hare's prescriptions for Propulsid from January 18, 1996 through August 5 16, 1998, and her prescription for Biaxin on September 1 I, 1998, were filled at a Rite Aid pharmacy identified as store number 1693. 14. All Defendants herein knew or should have known that the drug Propulsid was not an appropriate drug to treat gastroesophageal reflux disorders, and other esophageal conditions because of its adverse and lethal effects. The Defendants herein also knew or should have known of the dangerous consequences associated with the drugs Propulsid and Biaxin, including serious adverse drug interactions, including death, when Propulsid was taken in combination with Biaxin. 15. Plaintiffs were not aware of and did not ascertain, the reasons for the death of their mother as set forth herein, until on or after early September, 2000. 16. At the time of her death, Mrs. O'Hare was 75 years old and in good health. She was a good, faithful and industrious mother who gave her children wise counsel, advice, help and financial aid, which would have continued had she not met an untimely death. Her death deprived her children of her aid, association, attention, support, comfort, care and society. By reason of her death, her children have been damaged to an extent as yet undetermined, but in an amount in excess of the jurisdictional minimum. In addition, it was also necessary to provide for funeral services, burial, and other expenses of decedent for which Plaintiffs incurred sums which were fair, customary, reasonable, and necessary. 17. Plaintiffs' claim those damages incurred by reason of the decedent's death, and suffered by the decedent prior to her death, as a result of physical pain and suffering, mental pain and suffering, anxiety, emotional distress, loss of enjoyment of life, personal injury and disability. 18. All causes of action as hereinafter set forth are brought as both wrongful death and survival actions. 6 19. 20~ 21. 22. 23. III. CAUSES OF ACTION COUNT I PLAINTIFFS vs JON A. DUBIN, D.O. PROFESSIONAL NEGLIGENCE Plaintiffs incorporate by reference all other paragraphs of this Complaint. Dr. Dubin undertook and contracted to provide medical care for Decedent Phyllis O'Hare, as his patient, and Mrs. O'Hare relied upon him to provide reasonable and prudent medical care. Defendant Dr. Dubin should have been aware that Biaxin was contraindicated for use by Mrs. O'Hare since she was then taking and had been taking Propulsid for over a 2 and ½ year period, and should have been aware that the use of Propulsid and Biaxin in combination would elevate her cisapride blood levels, resulting in QT prolongation, ventricular tachycardia, and her sudden death. Dr. Dubin was aware or should have been aware that, as of September 11, 1998, the day that he prescribed Biaxin for Mrs. O'Hare, that she was taking Propulsid. The negligence of Defendant Dr. Dubin consisted of the following: (a) Prescribing Biaxin and failing to timely discontinue its prescription. (b) Failing to recognize that the concomitant use of Biaxin with Propulsid by the decedent was dangerous and contraindicated. (c) Failing on and after September 11, 1998, to discontinue the prescription of both Propulsid and Biaxin immediately. (d) Failing on and after September 11, 1998, to recommend such other courses of treatment as reasonably required to minimize the consequences to decedent of her ingestion of Propulsid and Biaxin. (e) Failing to consult with Dr. McLaughlin or any of Mrs. O'Hare's other 7 treating physicians. (f) Failing to properly review and consider Mrs. O'Hare's previous records at Holy Spirit Hospital reflecting Mrs. O'Hare's use of Propulsid. (g) Failing to properly follow up Mrs. O'Hare's care. 24. As a direct and proximate result of Defendant Dr. Dubin's negligence, Mrs. O'Hare took the Biaxin as prescribed and the concurrent use of Biaxin and Propulsid resulted in her death. 25. Defendant Dr. Dubin, individually, and by and through his fellow employees, agents, and representatives, failed to exercise that degree of care, skill and learning expected of reasonable and prudent health care providers in their profession. 26. Defendant Dr. Dubin breached his duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Jon A. Dubin, D.O. for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. COUNT II PLAINTIFFS vs HOLY SPIRIT HOSPITAL RESPONDEAT SUPERIOR 27. Plaintiffs incorporate by reference all other paragraphs of this Complaint. 28. Upon information and belief, Dr. Dubin was an employee, agent and/or representative of Defendant Holy Spirit Hospital. Holy Spirit Hospital approved Dr. Dubin's treatment of Mrs, O'Hare and his prescribing of pharmaceuticals for her treatment including Biaxin. 29. Defendant Holy Spirit Hospital is directly liable for the negligent acts and omissions of its employees, agents, and representatives, including Defendant Dr. Dubin. 30. Defendant Holy Spirit Hospital by and through its employees, agents, and representatives, failed to exercise that degree of care, skill and learning expected of reasonable and prudent health care providers in their profession. 31. Defendant Holy Spirit Hospital and Dr. Dubin breached their duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Holy Spirit Hospital for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. COUNT III PLAINTIFFS vs HOLY SPIRIT HOSPITAL CORPORATE LIABILITY 32. Plaintiffs incorporate by reference all other paragraphs of this Complaint. 33. Acting through its administrators, various boards, committees and individuals, Defendant Holy Spirit Hospital is responsible for the standard of professional practice by all individuals who are granted staff privileges within its facilities. 34. Defendant Holy Spirit Hospital breached its duty to Mrs. O'Hare by the following acts and omission: (a) (b) (c) (d) (e) in granting privileges, employing, or otherwise permitting the Defendant Dr. Dubin to treat Mrs. O'Hare in its emergency room; By failing to insure that Dr. Dubin was properly trained and educated in the prescription of drugs; By failing to have a system of checks and balances in place to assure that the drug Biaxin was not prescribed for Mrs. O'Hare where such use was contraindicated in combination with her Propulsid prescription; By failing to select and retain only competent physicians; By failing to oversee all persons who practice medicine within its walls 9 when providing patient care; (f) By failing to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients, including the emergency room treatment that was provided on behalf of Mrs. O'Hare in its facility. 35. Defendant Holly Spirit Hospital breached its duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Holy Spirit Hospital for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. COUNT IV PLAINTIFFS vs DEFENDANT RITE AID NEGLIGENCE 36. Plaintiffs incorporate by reference all other paragraphs of this Complaint. 37. Defendant Rite Aid filled all the prescriptions of Mrs. O'Hare for Propulsid from January 18, 1996 through August 16, 1998, and her prescriptions, including her prescription for Biaxin on September 11, 1998, were filled at a Rite Aid pharmacy identified as store number 1693. 38. The negligence of Defendant Rite Aid consisted of the following: (a) Failing to recognize that the use of Propulsid by Mrs. O'Hare over a two and one-half year period was inappropriate; (b) Failing to recognize that the use of Propulsid in combination with Biaxin was contraindicated; (c) Failing to consult with Dr. Dubin or Dr. McLaughlin regarding the use of Propulsid by Mrs. O'Hare over a two and one-half year period or the use of Propulsid in combination with Biaxin; (d)Failing to warn Mrs. O'Hare regarding her use by of Propulsid over a two 10 and one-half year period or her use of Propulsid in combination with Biaxin; (e) Failing to warn Dr. Dubin or Dr. McLaughlin regarding the use by Mrs. O'Hare of Propulsid over a two and one-half year period or her use of Propulsid in combination with Biaxin; (0 Failing to have a system of checks and balances in place to assure that the drug Biaxin was not prescribed for Mrs. O'Hare since such use was contraindicated when used in combination with Propulsid; (g) Continuing to fill Mrs. O'Hare's prescription for Propulsid, and dispensing her prescription for Biaxin. 39. Defendant Rite Aid breached its duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WItEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Rite Aid for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. By: 130 State Street, P.O. Box 946 Hmrisburg, PA 17108-0946 717-236-3141 Voice 717-236-0791 Fax Email: Lmilspaw@mblawfirm.com ATTORNEY FOR PLAINTIFFS 11 RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs Vo JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM tYa HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW : :NO. 4275-CV-2002-C¥ :JURY TRIAL DEMANDED VERIFICATION I, the undersigned, hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 PA. Section 4904 relating to unsworn falsification to authorities. January 3 I, 2003 K. ROUNTREE 12 Luther E. Milspaw, Jr., Esquire Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice (717) 236-0791 Fax LMilspaw~MBLawFirm. com Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs Vo JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CML ACTION - LAW :NO. 4275-CV-2002-CV : :JURY TRI,~L DEMANDED CERTIFICATE OF SERVICE I hereby certify that on January 31, 2003 a true and correct copy of the foregoing Complaint was served by means of regular United States mail, first class, postage prepaid, upon the following: Craig A. Stone, Esquire Mette Evans & Woodside 3401 N. Front Street Harrisburg, PA 17110 Attorney for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital January 31, 2003 Timothy McMahon, Esquire Marshall Dennehey Warner Coleman & Googin 4200 Crums Mill Road Harrisburg, PA 17110 Att °mey f°r De fendantLulthiliEd iils~~i ~rtnsylvania' In~ / 13 RODNEY K. and JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O.; HOLY SPIRIT HEALTH SYSTEM, t/a HOLY SPIRIT HOSPITAL; and RITE AID OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS DALrPHIN COUNTY, PENNSYLVANIA NO. 4275-CV-2002 CML ACTION - LAW JURY TRIAL DEMANDERS, PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT OF DEFENDANTS DUBIN AND HOLY SPIRIT HOSPITAL Defendants, Jori A. Dubin, D.O. and Holy Spirit Hospital Health System t/a Holy Spirit Hospital, by their counsel, Mette, Evans & Woodside, file the following Brief in support of their preliminary objections. 1. A true and correct copy of the Complaint is attached as Exhibit "A". 2. Rodney K. and Jay P. Roundtree, as co-administrators of the Estate of Phillys O'Hare, deceased, have fried a 4-count complaint against Jon A. Dubin, D.O., Holy Spirit Hospital and Rite Aid of Pennsylvania. 3. This case was commenced by the filing of a Praecipe for Writ of Summons. A complaint was filed on January 31, 2003. PRELIMINARY OBJECTIONS CHALLENGING VENUE 4. Paragraphs 1 through 3 above are incorporated herein by reference as if fully set forth at length. 5. The causes of action alleged in the Plaintiffs' complaint arose in Cumberland County. 6. The claims against Dr. Dubin and Holy Spirit Hospital are Count I, Professional Liability (against Dr. Dubin), and Count II, Respondeat Superior and Count II, Corporate Liability (against Holy Spirit Hospital). 7. According to Statute, these defendants are healthcare providers and this case is a medical professional liability action and/or a medical professional liability claim. 42 Pa. C.S. §5101.1(c). 8. Pursuant to the recently amended Pa. R.C.P. 1006(a)(1), venue in a medical professional liability claim lies only in the county where the cause of action arose. 9. That amended Rule, by the terms of the Order of the Supreme Court enacting it, became effective on January 27, 2003. See Pa. R.C.P. 1006 and Order of Supreme Court attached as Exhibit "B". 10. Amended Rule 1006 applies not only to actions filed ~t~er the effective date but also as to actions pending on that date. Pa. R.C.P. 52(c) ("Unless the Supreme Court specified otherwise, a rule or an amendment to a rule shall apply to actions pending on the effective date.") 11. A pending action is one in which a final resolution ha~ not yet been made. A case is pending from its inception until the rendition o£ final judgment. Black's Law Dictionary, 6~ ed 1990, p. 1134. -2- 12. Where the instant case has been filed outside of Cumberland County, it is improperly before this Honorable Court and venue must be changed. WHEREFORE, these Defendants respectfully request this Honorable Court enter an Order dismissing this case and transferring it to Cumberland County. DATED: February /~, 2003 Respectfully submitted, METTE, EyANS & WOODSIDE BY:~'~/ .gi~- ~ra~ . S Sup. Ct. I. D. ~1~907 kY Kathryn Lease Simpson, Esquire Sup. Ct. I. D. #28960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital -3- Luther E. Milspaw, Jr,, Esquire Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMitsv aw(EMB LawFirm.com Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF TFflZ, ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPI1LIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW _. :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED NOTICE TO DEFEND HAVE BEEN SUED IN COURT. If you wish to defend against the c~rns · forth in the following pages, you must take action with in twenty (20) days after th, s Complaxnt and Notice are served by entering a written appearance personally or by attorney and filing in writ/ag 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 r/ghts important to you. YOU SHOULD TAKE TItIS 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: DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 Luther E. Milspaw, Jr., Esquire Attorney I.D. No, 19226 130 State Street Harcisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilsoaw(~,MB LawFirm. com Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs Vo JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN TI-I~ COURT OF COM-NION PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted guiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene v~ente (20) dias de plazo al partir de la fecha de la demanda y la notifieaeion. Usted debe presentar una aparieneia eserita o en persona o por abogado y arehivar en ta torte en forma eserita sus defensas o sus objeeiones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la sin previo aviso o notification y por eualquier queja o alivio que es pedido en la petieion de demanda. Usted puede perder dinero o sus propiedades o otros dereehos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL. DAD'PI-fIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 2 'Luther E. Milspaw, .Ir., Esquire Attorney I.D. No. 19226 130 State S~-eet Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236o0791 Fax LMilsmw~MBLawFirm. com Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF TI4~. ESTATE OF PHYLLIS O'HA_RE, DECEASED, Plaintiffs JON A. DUBIN, D.O. , HOLY SPIRIT I-~ALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW : :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED : : COMPLAINT I. PARTIES and JURISDICTION Plaintiffs Rodney K. Rountree and Jay P. Rountree are adult individuals who are the administrators of the Estate of their deceased mother, Phyllis O'Hare ("Mrs. O'Hare"), citizens of the United States, and residents of Shiremanstown, Cumberland County, Pennsylvania, as was the decedent. Defendant, Jori A. Dubin, D.O., ("Dr. Dubin') is an osteopathic physician duly licensed in the Commonwealth of Pennsylvania with his principal place of business in Camp Hill, Cumberland County, Pennsylvania. At all times relevant herein, Dr. Dubin was practicing osteopathic medicine in the specialty of emergency and internal medicine as an employee of Defendant Holy Spirit Health System T/A Holy Spirit Hospital ("Holy Spirit Hospital"), and was acting within the course and scope of his employment. Dr. Dubin had as a patient the decedent Phyllis O'Hare on September 11, 1998, and in the course of treating her, prescribed for her use certain drugs including Biaxin and other products. At all times relevant to this cause &action, Dr. Dubin held himself out to the general public, including Mrs. O'Hare, as a doctor with special knowledge, skill and experience in 3 emergency and internal medicine. Defendant Holy Spirit Health System T/A Holy Spirit Hospital ("Holy Spirit Hospital") is a business corporation duly authorized to do business in the Commonwealth of Pennsylvania, with its principal administrative offices and hospital facilities, including its emergency room, in Camp Hill~ Cumberland County, Pennsylvania. Holy Spirit Hospital advertises and conducts its business throughout Central Pennsylvania including Dauphin County. At all relevant times herein, Holy Spirit Hospital was the employer of Dr. Dubin. Defendant Rite Aid of Pennsylvania, Inc. ("Rite Aid") is a business corporation duly authorized to conduct business in the Commonwealth of Pennsylvania, with its principal administrative offices in .Camp Hill, Cumberland County, Pennsylvania. Rite Aid advertises and conducts its business, including the operation of pharmacies, throughout Central Pennsylvania, including Dauphin County. Jurisdiction and venue are proper in Dauphin County, Pennsylvania. II. FACTUAL BACKGROUND Mrs. O'Hare was initially prescribed the drag cisapride, marketed under the brand name Propulsid, for esophageal spasm in January1996 by Dr. John P. McLaughlin. Dr. McLaughlin continued Mrs. O'Hare on Propulsid for the next two years and nine months, and Rite Aid filled her prescriptions, until her death. When receiving prescriptions for Propulsid, Mrs. O'Hare was not prescribed a safe drag but instead wa~ given a drug that causes potentially life-threatening heart problems including QT prolongation, cardiac arrhythmia, ventricular tachycardia, torsades de pointes, ventricular fibrillation, heart disease, hypertensive crises, and other adverse medical conditions. Prior to 1998, physicians, pharmacies and hospital personnel were aware, or should have been aware, of potential life threatening conditions associated with the drug Propulsid. 4 9. In 1998, reports of serious adverse events, including death from heart rhythm disorders and sudden cardiac arrest, prompted the FDA to issue a warning about the drug Prepulsid. Therefore, Defendants herein knew, or should have known, about the life threatening conditions associated with the drug Prepulsid and about the FDA warning. 10. Prior to 1998, physicians, pharmacies and hospital personnel were aware, or should have been aware, of potential life threatening conditions associated with the concomitant use of Prepulsid and Biaxin. In particular, Clarithromycin (Biaxin) has been known to inhibit the cytochrome P450 3A4 isoenzyme which is mainly responsible for metabolism of cisapride (Prepulsid), resulting is increased cisapride blood levels. 11. On September 1 I, 1998, Mrs. O'Hare went to the emergency room of Holy Spirit Hospital complaining of shortness of breath and wheezing. She was seen by Dr. Dubin and other nurses and staffof Holy Spirit Hospital and had several tests conducted. Mrs. O'Hare had been to Holy Spirit Hospital on several previous occasions (02-01-96, 07-19-96, and 4- 16-98) and Dr. Dubin called for and reviewed her previous records. The previous records identified Dr. McLaughlin as her treating physician and reflected her history of taking Prepulsid. Dr. Dubin did not consult with Dr. McLaughlin or any of Mrs. O'Hare's other physicians. That same day, following his examination, review of Mrs. O'Hare's previous records, and additional testing, Dr. Dubin diagnosed a possible respiratory infection, prescribed a 10 day course of the antibiotic Biaxin for Mrs. O'Hare, and sent her home. 12. The ingestion of Biaxin over the next eight (8) days by Mrs. O'Hare resulted in elevated cisapride blood level in her system. The elevated Cisapride blood level in turn caused QT prolongation, ventricular tachycardia, and resulted in her death on September 19, 1998. The ingestion of Prepulsid and Biaxin concomitantly was the direct and proximate cause of her death. 13. All of Mrs. O'Hare's prescriptions for Prepulsid from January 18, 1996 through August 5 14. 15. 16. 17. 18. 16, 1998, and her prescription for Biaxin on September 1 I, 1998, were filled at a Rite Aid pharmacy identified as store number 1693. All Defendants herein knew or should have known that the drug Propulsid was not an appropriate drug to treat gastroesophageal reflux disorders, and other esophageal conditions because of its adverse and lethal effects. The Defendants herein also knew or should have known of the dangerous consequences associated with the drugs Propulsid and Biaxin, including serious adverse drug interactions, including death, when Propulsid was taken in combination with Biaxin. Plaintiffs were not aware of and did not ascertain, the reasons for the death of their mother as set forth herein, until on or after early September, 2000. At the time of her death, Mrs. O'Hare was 75 years old and in good health. She was a good, faithful and industrious mother who gave her children wise counsel, advice, help and financial aid, which would have continued had she not met an untimely death. Her death deprived her children of her aid, association, attention, support, comfort, care and society. By reason of her death, her children have been damaged to an extent as yet undetermined, but in an amount in excess of the jurisdictional minimum. In addition, it was also necessary to provide for funeral services, burial, and other expenses of decedent for which Plaintiffs incurred sums which were fair, customary, reasonable, and necessary. Plaintiffs' claim those damages incurred by reason of the decedent's death, and suffered by the decedent prior to her death, as a result of physical pain and suffering, mental pain and suffering, anxiety, emotional distress, loss of enjoyment, of life, personal injury and disability. All causes of action as hereinafter set forth are brought as both wrongful death and survival actions. 6 IH. CAUSES OF ACTION COUNT I PLAINTIFFS vs JON A. DUBIN, D.O. PROFESSIONAL NEGLIGENCE 19. Plaintiffs incorporate by reference all other paragraphs of this Complaint. 20. Dr. Dubin undertook and contracted to provide medical care for Decedent Phyllis O'Hare, as his patient, and Mrs. O'Hare relied upon him to provide reasonable and prudent medical care. 21. Defendant Dr. Dubin should have been aware that Biaxin was contraindicated for use by Mrs. O'Hare since she was then taking and had been taking Propulsid for over a 2 and fi year period, and should have been aware that the use of Propulsid and Biaxin in combination would elevate her cisapride blood levels, resulting in QT prolongation, ventricular tachycardia, and her sudden death. 22. Dr. Dubin was aware or should have been aware that, as of September 11, 1998, the day that he prescribed Biaxin for Mrs. O'Hare, that she was taking Propulsid. 23. The negligence of Defendant Dr. Dubin consisted of the following: (a) Prescribing Biaxin and failing to timely discontinue its prescription. (b) Failing to recognize that the concomitant use of Biaxin with Propulsid by the decedent was dangerous and contraindicated. (c) Failing on and after September 11, 1998, to discontinue the prescription of both Propulsid and Biaxin immediately. (d) Failing on and after September 11, 1998, to recommend such other courses of treatment as reasonably required to minimize the consequences to decedent of her ingestion of Propulsid and Biaxin. (e) Failing to consult with Dr. McLaughlin or any of Mrs. O'Hare's other 7 treating physicians. (f) Failing to properly review and consider Mrs. O'Hare's previous records at Holy Spirit Hospital reflecting Mrs. O'Hare's use of Proputsid. (g) Failing to properly follow up Mrs. O'Hare's care. 24. As a direct and proximate result of Defendant Dr. Dubin's negligence, Mrs. O'Hare took the Biaxin as prescribed and the concurrent use of Biaxin and Propulsid resulted in her death. 25. Defendant Dr. Dubin, individually, and by and through his fellow employees, agents, and representatives, failed to exercise that degree of care, skill and learning expected of reasonable and prudent health care providers in their profession. 26. Defendant Dr. Dubin breached his duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WltEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Jori A. Dubin, D.O. for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. COUNT II PLAINTIFFS vs HOLY SPIRIT HOSPITAL RESPONDEAT SUPERIOR 27. Plaintiffs incorporate by reference all other paragraphs of this Complaint. 28. Upon information and belief, Dr. Dubin was an employee, agent and/or representative of Defendant Holy Spirt Hospital. Holy Spirit Hospital approved Dr. Dubin's treatment of Mrs. O'Hare and his prescribing of pharmaceuticals for her treatment including Biaxin. 29. Defendant Holy Spirit Hospital is directly liable for the negligent acts and omissions of its employees, agents, and representatives, including Defendant Dr. Dubin. 30. Defendant Holy Spirit Hospital by and through its employees, agents, and representatives, failed to exercise that degree of care, skill and learning expected of reasonable and prudent health care providers in their profession. 31. Defendant Holy Spirit Hospital and Dr. Dubin breached their duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Holy Spirit Hospital for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. COUNT III PLAINTIFFS vs HOLY SPIRIT HOSPITAL CORPORATE LIABILITY 32. Plaintiffs incorporate by reference all other paragraphs of this Complaint. 33. Acting through its administrators, various boards, committees and individuals, Defendant Holy Spirit Hospital is responsible for the standard of professional practice by all individuals who are granted staff privileges within its facilities. 34. Defendant Holy Spirit Hospital breached its duty to Mrs. O'Hare by the following acts and omission: (a) In granting privileges, employing, or otherwise permitting the Defendant Dr. Dubin to treat Mrs. O'Hare in its emergency room; (b) By failing to insure that Dr. Dubin was properly trained and educated in the prescription of drugs; (c) By failing to have a system of checks and balances in place to assure that the drug Biaxin was not prescribed for Mrs. O'Hare where such use was contraindicated in combination with her Propulsid prescription; (d) By failing to select and retain only competent physicians; (e) By failing to oversee all persons who practice medicine within its walls 9 when providing patient care; (f) By failing to formulate, adopt and enforce adequate roles and policies to ensure quality care for its patients, including the emergency room treatment that was provided on behalf of Mrs. O'Hare in its facility. 35. Defendant Holy Spirit Hospital breached its duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WltEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Holy Spirit Hospital for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. COUNT IV PLAINTIFFS vs DEFENDANT RITE AID NEGLIGENCE 36. Plaintiffs incorporate by reference all other paragraphs of this Complaint. 37. Defendant Rite Aid filled all the prescriptions of Mrs. O'Hare for Propulsid from January 18, 1996 through August 16, 1998, and her prescriptions, including her prescription for Biaxin on September 11, 1998, were filled at a Rite Aid pharmacy identified as store number 1693. 38. The negligence of Defendant Rite Aid consisted of the following: (a) Failing to recognize that the use of Propulaid by Mrs. O'I-Iare over a two and one-half year period was inappropriate; (b) Failing to recognize that the use of Propulsid in combination with Biaxin was contraindicated; (c) Failing to consult with Dr. Dubin or Dr. McLaughlin regarding the use of Propulsid by Mrs. O'Hare over a two and one-half year period Or the use of Propulsid in combination with Biaxin; (d) Failing to warn Mrs. O'Hare regarding her use by of Propulsid over a two 10 and one-half year period or her use of Propulsid in combination with Biaxin; (e) Failing to warn Dr. Dubin or Dr. McLaughlin regarding the use by Mrs. O'Hare of Propulsid over a two and one-half year period or her use of Propulsid in combination with Biaxin; (f) Failing to have a system of checks and balances in place to assure that the drug Biaxin was not prescribed for Mrs. O'Hare since such use was contraindicated when used in combination with Propulsid; (g) Continuing to fill Mrs. O'Hare's prescription for Propulsid, and dispensing her prescription for Biaxin. 39. Defendant Rite Aid breached its duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WI-IEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Rite Aid for general and compensatory damages in excess o£ the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. By: R~~ectfully submitted, ,// Luther E. Milspaw, Jr., Esq. / Attorney ID No 19226 / 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 717-236-3141 Voice 717-236-0791 Fax Email: Lmilspaw~mblawfirm.com ATTORNEY FOR PLAINTIFFS 11 RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.C., HOLY SPIRIT HJEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION o LAW : :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED VERIFICATION I, the undersigned, hereby verify that the statements made in the foregoing document are true ~d correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of lg PA. Section 4904 relating to unswom falsification to authorities. Januaxy 31, 2003 K. ROUN'rlOgE 12 Luther E. Milspaw, Jr., Esquixe At~omey].D. No. 19226 130 State Street Harrisburg, PA 17101 (7~7) 236-3141 Voice (717) 236-0791 Fax LMilspaw~MBLawFirm. com Attorney for Plaintiffs~ RO~EY IC AND JAY P. ROUNTREE, CO~ADMINISTRATORS OF THI~ ESTATE OF'PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW : :NO. 4275-CV-2002-CV :JURY TpaAL DEMANDED : CERTIFICATE OF SERVICE I hereby certify that on ~'anuary 31, 2003 a true and correct copy of the..foregoing Complaint was served by means of regular United States mail, first class, postage prepaid, upon the following: Sanuary 31, 2003 Craig A. Stone, Esquire Mette Evans & Woodside 3401 N. Front Street Harrisburg, PA 17110 Attorney for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital Timothy MeMahon, Esquire Marshall Dennehey Warner Coleman & Googin 4200 Crums Mill Road Harrisburg, PA 17110 Attorney for Defendant Rite Aid of Pennsylvania, Inc./ Luther E. Milspaw,~r.~ [ : 13 IN THE SUPREME COURT OF PENNSYLVANIA IN RE: Amendment of Rules of Civil Procedure Governing Venue No. 381 Civil Procedural Rules Docket No. 5 ORDER PER CURIAM: AND NOW this 27t~ day of January, 2003, Pennsylvania Rules of Civil Procedure 1006, 2130, 2156 and 2179 are amended to read as attached hereto. Whereas prior distribution and publication of these amendments would otherwise be required, it has been determined that immediate promulgation of the amendments is required in the interest of justice and efficient administration. This Order shall be processed in accordance with Pa.R,J.A. 103(b) and shall be effective immediately. NOTE: Bracketed matedal is deleted. New material is underscored. Civil Action Rule '1006. (a) Venue. Change of Venue Except as otherwise provided by [S]subdivisions ('a. 1 ), (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law. NOTE: For a definition of transaction or occurrence see Craig v. W, J. Thiele & Sons, Inc,, 395 Pa. 129, 149 A.2d 35 (1959). {'a.1) Except as otherwise provided by subdivision (c), a medical professional liability action may be brouqht a(3ainst a health care provider for a medical professional liability claim only in a county in which the cause of action arose, NOTE; See Section 5101.1(c) of the Judicial Code. 42 Pa.C.S. § 5'101.1(c) for the definitions of "health care provider", "medical professional liability action" and ~medical professional liability claim". (b) Actions against the following defendants, except as otherwise provided in IS]subdivision (c), may be brought in and only in the counties designated by the following rules: political subdivisions, Rule 2103; partnerships, Rule 2130; unincorporated associations, Rule 2156; corporations and similar entities, Rule 2179. NOTE: Partnerships, unincorporated associations, and corporations and similar entities are subject to subdivision (a.1) (3overnin<~ venue in medical professional liabilitv actions. See Rules 2130, 2156 and 2179. (c){.1.) [An] Except as otherwise provided bv paraaraph ('2), an action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of IS]subdivisions (a) or (b). .~. If the action to enforce a Joint or ioint and several liability aoainst two or more defendants includes one or more medical professional liability claims, the action shall be brouoht in any county in which the venue may be laid aoainst any defendant under subdivision ('a. 1 ). (d)(1) For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought. (2) Where, upon petition and hearing thereon, the court finds that a fair and impartial tdal cannot be held in the county for reasons stated of record, the court may order that the action be transferred. The order changing venue shall be certified forthwith to the Supreme Court, which shall designate the county to which the case is to be transferred. NOTE: For the recusal of the judge for interest or prejudice, see Canon 3C of the Code of Judicial Conduct. (3) It shall be the duty of the prothonotary of the court in which the action is pending to forward to the prothonotary of the county to which the action is transferred certified copies of the docket entdes, process, pleadings, depositions and other papers filed in the action, The costs and fees of the petition for transfer and the removal of the record shall be paid by the petitioner in the first instance to be taxable as costs in the case. (e) Improper venue shall be raised by preliminary objection and if not so raised shall be waived. If a preliminary objection to venue is sustained and there is a county of proper venue within the State the action shall not be dismissed but shall be transferred to the appropriate court of that county. The costs and fees for transfer and removal of the record shall be paid by the plaintiff. (f)(1) [Ill Except as orovided bv paraciraph (2). if the plaintiff states more than one cause of action against the same defendant in the complaint pursuant to Rule ']020(a), the action may be brought in any county in which any one of the individual causes of action might have been brought. (2) Except as otherwise provided bv subdivision (c), if one or more of the causes of action stated aclainst the same defendant is a medical professional liability claim, the action shall be brouaht in a county re(3uired bv subdivision (a.1). Partnerships as Parties Rule 2130. Venue (a) Except as otherwise provided by Rule 1006(a.1 ) and by subdivision (c) of this rule, an action against a partnership may be brought in and only in a county where the partnership regularly conducts business, or in the county where the cause of action arose or in a county where a transaction or occurrence took place out of which the cause of actions arose, NOTE: Rule 1006('a.1) (~overns venue in actions for medical orofessional liability. 3 Unincorporated Associations as Parties Rule 2156. Venue (a) Except as otherwise provided by Rule 1006(a.1 ) and by subdivision (b) of this rule, an action against an association may be brought in and only in a county where the association regularly conducts business or any association activity, or in the county where the cause of action arose or in a county where a transaction or occurrence took place out of which the cause of actions arose. NOTE: Rule 1006(a.1) oovems venue in actions for medical professional liability. (b) *** Corporations and Similar Entities as Parties Rule 2179, Venue (a) Except as otherwise provided by an Act of Assembly, by Rule '1006(a. 1) or by subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in the county where its registered office or principal place of business is Jocated; (2) (3) (4) a county where it regularly conducts business; the county where the cause of action arose; or a county where a transaction or occurrence took place out of which the cause of action arose. ,NOTE.: Rule 1006(a.1) ooverns venue in actions for medical professional liability. (b) *** 4 Explanatory Comment Act No. 127 of 2002 amended the Judicial Code by adding new Section 5101.1 providing for venue in medical professional liability actions. Section 5101.1(b) provides (b) General rule. - Notwithstanding any other provision to the contrary, a medical professional liability action may be brought against a heaJth care provider for a medical professional liability claim only in the county Jn which the cause of action arose. This provision has been incorporated into Rule of Civil Procedure 1006 governing venue as new subdivision (a.1). The new subdivision uses the terminology of the legislation. "Medical professional liability action," "health care provider" and "medical professional liability claim" are terms defined by Section 5101.1(c) of the Code. Joint and Several Liability Under new subdivision (c)(2) of Rule 1006, an action to enforce a joint and several liability against two or more health care providers may be brought in any county in which venue may be laid against at least one of the health care providers under subdivision (a.1). Therefore, an action to enforce a joint and several liability against Health Care Provider A that provided treatment in County 1 and against Health Care Provider B that provided treatment in County 2 may be brought in either County 1 or County 2. However, subdivision (c)(2) does not allow an action to enforce a joint and several liability to be brought against a health care provider in a county in which venue may be laid against a defendant that is not a health care provider. Therefore, an action to enforce a joint and several liability against Health Care Provider A that provided treatment in County 1 and against a product manufacturer that does business in County 2 may be brought only in County 1. 5 Multiple Causes of Action Subdivision (f) of Rule 1006 provides that where more than one cause of action is asserted against the same defendant pursuant to Rule 1020(a), venue as to one cause of action constitutes venue as to all causes of action. In an action in which there are asserted multiple causes of action but only one is a claim for medical professional liability, the application of this provision could frustrate Section 5101.1 and result in an action being brought in a county other than the county in which the cause of action for medical professional liability arose. New subdivision (f)(2) limits venue in such cases to the county required by new subdivision (a. 1 ), e.g., the county in which the cause of action for medical professional liability arose. The new venue provision for a medical professional liability claim is to be made applicable not only to individual defendants (Rule 1006(a.1 )) but also to partnerships (Rule 2130(a)), unincorporated associations (Rule 2156(a)) and corporations and similar entities (Rule 2t 79(a)). By the Civil Procedural Rules Committee R. Stanton Wettick, Jr. Chair 6 CERTIFICATE OF SERVICE AND NOW, this day, I hereby certify that I am serving a copy of the foregoing document upon the pemons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules for Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Luther E. Milspaw, Jr., Esquire 130 State Street Harrisburg, PA 17101 Timothy McMahon, Esquire Marshall Dennehey 4200-B Crums Mill Road Harrisburg, PA 17110 DATED: February 19, 2003 METTE, ~v'ANS & WOODSIDE Supren~ Co ~h~/I.D. #~[5907 KATHLEEN DOYLE YANINEK, ESQUIRE Supreme Court I.D. #73445 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital RODNEY IL and JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O.; HOLY SPIRIT HEALTH SYSTEM, t/a HOLY SPIRIT HOSPITAL; and RITE AID OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 4275-CV-2002 CIVIL ACTION - LAW JURY TRIAL DEMANDE~ : BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS OF JON A. DUBIN. D.O. AND HOLY SPIRIT HOSPITAL Defendants, Jon A. Dubin, D.O. and Holy Spirit Hospital Health System t/a Holy Spirit Hospital, by their counsel, Mette, Evans & Woodside, file the following Brief in support of their preliminary objections. I. CONCISE STATEMENT OF REASONS FOR ORAL ARGUMENT Oral argument is requested because the Preliminary Objections may result in a change of venue. Argument before a single judge is requested. Procedural History Plaintiffs commenced this action by the filing of a praecipe for writ of summons. Plaintiffs were ruled to file a complaint and a complaint was filed on January31,2003. Factual History The Complaint avers that Rodney K and Jay P. Rountree are the co- administrators of the estate of their deceased mother, Phyllis O'Hare (Complaint, ¶ 1)~. Dr. Dubin is identified as an osteopathic physician practicing in Camp Hill, Cumberland County, PA (¶ 2) and Holy Spirit Health System is identified as a hospital facility located in Camp Hill, Cumberland County, PA (¶ 3). In September 1998, Mrs. O'Hare is alleged to have sought treatment at Holy Spirit Hospital where she was seen by Dr. Dubin who prescribed the antibiotic Biaxin and sent her home (¶ 11). The Complaint avers that Mrs. O'Hare ingested the Biaxin over the next eight days which allegedly caused her problems and resulted in her death on September 19, 1998 (¶ 12). It is alleged that the combination of the Biaxin and another prescription, Propulsid, cause her death (¶ 12). References to paragraph numbers are to the paragraphs of the Complaint. -2- II. STATEMENT OF QUESTION WHETHER THIS CASE, WHICH NAMES AS DEFENDANTS HEALTHCARE PROVIDERS AND ALLEGES A MEDICAL PROFESSIONAL LIABILITY CLAIM, SHOULD BE GOVERNED BY AMENDED RULE OF CIVIL PROCEDURE, Pa.R.C.P. 1006 MANDATING A CHANGE OF VENUE TO CUMBERLAND COUNTY?. Suggested Answer: Yes. -3- IH. ARGUMENT THIS CASE, WHICH NAMES AS DEFENDANTS HEALTHCARE PROVIDERS AND ALLEGES A MEDICAL PROFESSIONAL LIABILITY CLAIM, IS GOVERNED BY AMENDED RULE OF CML PROCEDURE, Pa.]~. C.P. 1006 WHICH MANDATES A CHANGE OF VENUE TO CUMBERLAND COUNTY. Venue in this matter must be transferred. On January 27, 2003, the Pennsylvania Supreme Court amended Rule of Civil Procedure 1006 by adding a section which provides as follows: Rule 1006 (Venue. Change of Venue) (a.1) Except as otherwise provided by subdivision (c), a medical professional liability action may be brought against a healthcare provider for a medical professional liability claim only in a county in which the cause of action arose. Note: See Section 5101.1(c) of the Judicial Code, 42 Pa. C.S. §5101.1(c) for the definitions of "healthcare provider", "medical professional liability action" and "medical professional liability claim.''2 2 These terms, as defined by Section 5101.1(c), are as follows: "Healthcare provider." A primary healthcare center or a person, including a corporation, university or other educational institution licensed or approved by the Commonwealth to provide healthcare or professional medical services as a physician, a certified nurse midwife, a podiatrist, hospital, nursing home, birth center and, except as to §711(a) of the Act of March 20, 2002 (P.L. 154, No. 13), known as the Medical Care Availability and Reduction of Error (MCARE) Act, an officer, employee or agent of any of them acting in the course and scope of employment. "Medical Professional Liability Action." Any proceeding in which a medical Pa. R.C.P. 1006(a.1). As this provision indicates, medical malpractice actions must be brought in the county in which the alleged malpractice occurred. The question of when the amendment to Rule 1006 became effective is conclusively answered by the Supreme Court's Order announcing the amendment. The Order states: AND NOW this 27th day of January, 2003, Pennsylvania Rules of Civil Procedure 1006... [is] amended to read as attached hereto. Whereas prior distribution and publication of these amendments would otherwise be required, it has been determined that immediate promulgation of the amendments is required in the interest of justice and efficient administration. This order shall be processed in accordance with Pa. R.J.A. 103(b) and shall be immediately effective. (A copy of this order is attached to this Brief.) Given the highlighted language, it is clear that the amendment to Rule 1006 applies to all litigation pending on the date of the Order, January 27, 2003, regardless of when the litigation was filed. While plaintiff may argue that the amendment applies only to actions commenced on or after January 27, 2003, this argument is incorrect. Most importantly, Rule 52 of the Rules of Civil Procedure provides in pertinent part: professional liability claim is asserted, including an action in a Court of Law or an arbitration proceeding. "Medical Professional Liability Claim." Any claim seeking new recovery of damages or loss from a healthcare provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of healthcare services which were or should have been provided. -5- (c) Unless the Supreme Court specifies otherwise, a rule or amendment to a rule shall apply to actions pending on the effective date. Pa. R.C.P. 52(c). Obviously, in this case, the Supreme Court did not "specif[y] otherwise" that is, it did not state that the amendment does not apply to pending actions. Indeed, the Court specifically required, "immediate promulgation" of the venue changes and declared that such changes "shall be effective immediately." Consequently, the venue changes apply to all actions pending on January 27, 2003, even if the actions were filed prior to the amendment's effective date. Applying Rule 52(c), the appellate courts have repeatedly held that an amendment to a rule is applicable to any action that is still pending at the time of the amendment, regardless of when the action was filed. See Manzetti v. Mercy Hospital of Pittsburgh, 776 A.2d 938, 945, n.1 (Pa. 2001) (applying the amended summary judgment rule, Pa. R.C.P. 1035, to a case filed before the amendment and explaining: As our rules of civil procedure state that an amended rule is applicable to all actions pending on the date on which the amendment becomes effective, it is the amended rule, rather than the rescinded rule, that is applicable to this matter. See Pa. R.C.P. Rule 52(c)."); Conner v. Munsev, 620 A.2d 1103, 1105 (Pa. 1993) ("New Rule 238... is to be applied to all cases still pending on appeal as of November 7, 1988, the date of the new Rule's adoption"). Of course, a "pending" action is one in which a final resolution has not yet been made; a case remains pending until all appeals have been exhausted. Black's -6- Law Dictionary~ (64 ed. 1990), p. 1134 ("[A]n action or suit is 'pending' from its inception until the rendition of final judgment."). As a result, an amendment to a rule will be applied even to a case that is on appeal when the amendment becomes effective. See, e.g., Conner, suora.; Calibeo v. Calibeo, 663 A.2d 184, 187 (Pa. Super 1995) ("Because the amended Rules discussed above became effective while the present appeal was pending, they are applicable to the case before us."); Ceresini v. Valley View Trailer Park, 552 A.2d 258 (Pa. Super 1998) ("The Supreme Court has not directed otherwise and new Rule 238 applies to actions pending before us on the effective date of the Rule."). Rule 52(c) and the above case law establish that the amendment to Rule 1006 apply to all currently pending actions. Yet other factors also indicate that this result is proper. First, on the same day that it issued the Order amending Rule 1006, the Supreme Court issued a companion order amending rules regarding the filing of professional liability actions. That Order concluded as follows: "This Order shall be processed in accordance with Pa. R.J.A. 103(b) and shall be effective immediately. The new and amended rules shall be applicable to actions commenced on or after the effective date of this Order." Order amending Rules 229, 1026, 1042, and 4007.2, 1/27/03. This statement clearly reveals the Supreme Court's intent that the professional liability amendments (unlike the venue amendment) will apply only to newly-filed actions, not pending actions. Obviously then, if the Supreme Court had intended to make the amendment to Rule 1006 apply only to cases filed on or after its effective date, it could have and -7- would have done so. The fact that it did not do so, while issuing a companion Order with contrary language, again establishes that the Supreme Court intended the venue amendments to apply immediately to all pending actions. To remove any doubt concerning its intent, the Supreme Court's Order declared that "immediate promulgation" of the venue amendment is necessary to serve "the interest of justice and efficient administration." Order, 1/27/03. The urgency of this language obviously reflects the Supreme Court's concern with the severity of the current medical malpractice insurance crises. In fact, the Court's concern was so great that it bypassed the usual comment period for new procedural rules. This urgency once again establishes that the amendment to Rule 1006 must be deemed to apply immediately to all pending actions. The object in interpreting Rules of Civil Procedure is to "ascertain and effectuate the intention of the Supreme Court." Pa. R.C.P. 127(a). Among the factors to be considered in determining the Court's intent are "the occasion and necessity for the Rule" and "the circumstances under which it was promulgated." Pa. R.C.P. 127(c)(1) and (2). Here, as noted, the obvious intent of the amendment to Rule 1006 is to address the severity of the current medical malpractice insurance crisis. This intent would be frustrated if, despite the Supreme Court's clear language, the Amendment to Rule 1006 is not applied to pending litigation especially where, as here, the case was commenced by writ and the complaint was filed after the effective date of the amended venue rule, as occurred here. The Supreme Court did not intend -8- such an unreasonable result. See, Pa. R.C.P. 128 ("[T]he Supreme Court does not intend a result that is absurd, impossible of execution or unreasonable.") Finally, it is necessary to reconcile the Court's Order with recently-enacted legislation also providing that medical malpractice actions must be filed in the county in which they arose. See, 42 Pa. C.S.A. §5101.1 (Venue in medical professional liability actions) ("(b) a medical professional liability action may be brought against a healthcare provider from a medical professional liability claim only in a county in which the cause of action arose."). Under its express language, Section 5101.1 applies only to actions filed on or after its effective date, December 16, 2002. This statutory language, however, has no bearing on the fact that the Supreme Court's Amendment to Rule 1006 applies to all pending litigation. First, the legislation specifically stated that it applies to causes of action filed on or after the effective date. See S.B. 138, §5 ("The amendment or addition of 42 Pa. C.S. Sections 931 (c) and 5101.1 shall apply to all medical professional liability actions filed on or after the effective date of this section"). The Supreme Court was obviously aware of this statutory language and, if it wanted the amendment to Rule 1006 to apply in a similar fashion, it would have said so. Instead, it declared that the amendment would become effective immediately. More importantly, the Supreme Court has an entirely independent authority to establish and modify venue rules. The Pennsylvania Constitution specifically provides that "the power to change the venue in simple and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law." Article III, §23, Pennsylvania Constitution. As a result, regardless of whether the legislature has concurrent authority to modify venue, the Supreme Court's authority to do so stems directly from the Constitution. As a result, the Supreme Court's Order of January 27, 2003 stands apart from §5101.1.3 For these reasons, venue should be transferred. Aside from the Supreme Court's undeniable authority under the Constitution to make rules affecting venue, the General Assembly has also granted the Supreme Court general supervisory and administrative authority over the unified judicial system and also granted the court certain enumerated powers to effect this authority. 42 Pa. C.S.A. §1701. One of the Court's powers is the power to prescribe and modify general rules governing the practice, procedure and conduct of all courts. 42 Pa. C.S.A. §1722(a). Thus, the Rules of Civil Procedure promulgated by the Supreme Court have the force and the statute. Dombrowski v. City of Philadelohia. 245 A.2d 238, 241 n.4 (Pa. 1968). Therefore, the Rules of Civil Procedure bind the courts of the unified judicial system and those who practice and appear before it. Since Amended Rule 1006 is a rule duly promulgated by the Supreme Court under the authority granted it by the General Assembly, the rule is binding in all Pennsylvania Courts and the parties in cases pending in those courts. For this reason as well, Amended Rule 1006 clearly applies to this case. IV. CONCLUSION For the reasons stated above, the preliminary objections should be granted and venue should be transferred to Cumberland County. Respectfully submitted, METTE/~VANS & WOODSIDE Sup. C)t. I.D. #15907 KATHRYN L. SIMPSON, ESQUIRE Sup. Ct. I.D. #28960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant DATED: February 19, 2003 :317460 _1 -11- CERTIFICATE OF SERVICE AND NOW, this day, I hereby certify that I am serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules for Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Luther E. Milspaw, Jr., Esquire 130 State Street Harrisburg, PA 17101 Timothy McMahon, Esquire Marshall Dennehey 4200-B Crams Mill Road Harrisburg, PA 17110 DATED: February 19, 2003 METrE~/~VANS & WOODSIDE By:~G~' ~'~,L · SupreMe Court l.]Y. #15907 KATHLEEN DOYLE YANINEK, ESQUIRE Supreme Court I.D. #73445 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital RODNEY IC and JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O.; HOLY SPIRIT HEALTH SYSTEM, t/a HOLY SPIRIT HOSPITAL; and RITE AID OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 4275-CV-2002 CIVIL ACTION - LAW JURY TRIAL DEMANDEI~ BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS OF ,ION A. DUBIN. D.O. AND HOLY SPIRIT HOSPITAL Defendants, Jon A. Dubin, D.O. and Holy Spirit Hospital Health System t/a Holy Spirit Hospital, by their counsel, Mette, Evans & Woodside, file the following Brief in support of their preliminary objections. I. CONCISE STATEMENT OF REASONS FOR ORAL ARGUMENT Oral argument is requested because the Preliminary Objections may result in a change of venue. Argument before a single judge is requested. Procedural History Plaintiffs commenced this action by the filing ora praecipe for writ of summons. Plaintiffs were ruled to file a complaint and a complaint was fried on January 31, 2003. Factual History The Complaint avers that Rodney K and Jay P. Rountree are the co- administrators of the estate of their deceased mother, Phyllis O'Hare (Complaint, ¶ 1)~. Dr. Dubin is identified as an osteopathic phy~ician practicing in Camp Hill, Cumberland County, PA (¶ 2) and Holy Spirit Health System is identified as a hospital facility located in Camp Hill, Cumberland County, PA (¶ 3). In September 1998, Mrs. O'Hare is alleged to have sought treatment at Holy Spirit Hospital where she was seen by Dr. Dubin who prescribed the antibiotic Biaxin and sent her home (¶ 11). The Complaint avers that Mrs. O'Hare ingested the Biaxin over the next eight days which allegedly caused her problems and resulted in her death on September 19, 1998 (¶ 12). It is alleged that the combination of the Biaxin and another prescription, Propulsid, cause her death (¶ 12). References to paragraph numbers are to the paragraphs of the Complaint. -2- II. STATEMENT OF QUESTION WHETHER THIS CASE, WHICH NAMES AS DEFENDANTS HEALTHCARE PROVIDERS AND ALLEGES A MEDICAL PROFESSIONAL LIABILITY CLAIM, SHOULD BE GOVERNED BY AMENDED RULE OF CIVIL PROCEDURE, Pa.R.C.P. 1006 MANDATING A CHANGE OF VENUE TO CUMBERLAND COUNTY? Suggested Answer: Yes. III. ARGUMENT THIS CASE, WHICH NAMES AS DEFENDANTS HEALTHCARE PROVIDERS AND ALLEGES A MEDICAL PROFESSIONAL LIABILITY CLAIM, IS GOVERNED BY AMENDED RULE OF CIVIL PROCEDURE, Pa.~,C.P. 1006 WHICH MANDATES A CHANGE OF VENUE TO CUMBE~ COUNTY. Venue in this matter must be transferred. On January 27, 2003, the Pennsylvania Supreme Court amended Rule of Civil Procedure 1006 by adding a section which provides as follows: Rule 1006 (Venue. Change of Venue) (a.1) Except as otherwise provided by subdivision (c), a medical professional liability action may be brought against a healthcare provider for a medical professional liability claim only in a county in which the cause of action arose. Note: See Section 5101.1(c) of the Judicial Code, 42 Pa. C.S. §5101.1(c) for the definitions of "healthcare provider", "medical professional liability action" and "medical professional liability claim."2 2 These terms, as de£med by Section 5101.1(c), are as follows: "Healthcare provider." A primary healthcare center or a person, including a corporation, university or other educational institution licensed or approved by the Commonwealth to provide healthcare or professional medical services as a physician, a certified nurse midwife, a podiatrist, hospital, nursing home, birth center and, except as to §711(a) of the Act of March 20, 2002 (P.L. 154, No. 13), known as the Medical Care Availability and Reduction of Error (MCARE) Act, an officer, employee or agent of any of them ac~ing in the course and scope of employment. "Medical Professional Liability Action." Any proceeding in which a medical -4- Pa. R.C.P. 1006(a.1). As this provision indicates, medical malpractice actions must be brought in the county in which the alleged malpractice occurred. The question of when the amendment to Rule 1006 became effective is conclusively answered by the Supreme Court's Order announcing the amendment. The Order states: AND NOW this 2Th day of January, 2003, Pennsylvania Rules of Civil Procedure 1006... [is] amended to read as attached hereto. Whereas prior distribution and publication of these amendments would otherwise be required, it has been determined that immediate promulgation of the ~mendments is required in the interest of justice and efficient administration. This order shall be processed in accordance with Pa. R.J.A. 103(b) and shall be immediately effective. (A copy of this order is attached to this Brief.) Given the highlighted language, it is clear that the amendment to Rule 1006 applies to all litigation pending on the date of the Order, January 27, 2003, regardless of when the litigation was filed. While plaintiff may argue that the amendment applies only to actions commenced on or after January 27, 2003, this argument is incorrect. Most importantly, Rule 52 of the Rules of Civil Procedure provides in pertinent part: professional liability claim is asserted, including an action in a Court of Law or an arbitration proceeding. "Medical Professional Liability Claim." Any claim seeking new recovery of damages or loss from a healthcare provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of healthcare services which were or should have been provided. -5- (c) Unless the Supreme Court specifies otherwise, a rule or amendment to a rule shall apply to actions pending on the effective date. Pa. R.C.P. 52(c). Obviously, in this case, the Supreme Court did not "speciffy] otherwise" that is, it did not state that the amendment does not apply to pending actions. Indeed, the Court specifically required, "immediate promulgation" of the venue changes and declared that such changes "shall be effective immediately." Consequently, the venue changes apply to all actions pending on January 27, 2003, even if the actions were filed prior to the amendment's effective date. Applying Rule 52(c), the appellate courts have repeatedly held that an amendment to a rule is applicable to any action that is still pending at the time of the amendment, regardless of when the action was fried. See Manzetti v. Mercy Hospital of Pittsburgh, 776 A.2d 958, 945, n.1 (Pa. 2001) (applying the amended summary judgment rule, Pa. R.C.P. 1055, to a case filed before the amendment and explaining: As our rules of civil procedure state that an amended rule is applicable to all actions pending on the date on which the amendment becomes effective, it is the amended rule, rather than the rescinded rule, that is applicable to this matter. See Pa. R.C.P. Rule 52(c)."); Conner v. Munsey, 620 A.2d 1103, 1105 (Pa. 1993) ("New Rule 238... is to be applied to all cases still pending on appeal as of November 7, 1988, the date of the new Rule's adoption"). Of course, a "pending" action is one in which a final resolution has not yet been made; a case remains pending until all appeals have been exhausted. Black's -6- Law Dictionary (6~h ed, 1990), p. 1134 ("lAin action or suit is 'pending' from its inception until the rendition of final judgment."). As a result, an amendment to a rule will be applied even to a case that is on appeal when the amendment becomes effective. See, e.g., Conner, SUl~ra.; Calibeo v. Calibeo, 663 A.2d 184, 187 (Pa. Super 1995) ("Because the amended Rules discussed above became effective while the present appeal was pending, they are applicable to the case before us."); Ceresini v. Valley View Trailer Park, 552 A.2d 258 (Pa. Super 1998) ("The Supreme Court has not directed otherwise and new Rule 238 applies to actions pending before us on the effective date of the Rule."). Rule 52(c) and the above case law establish that the amendment to Rule 1006 apply to all currently pending actions. Yet other factors also indicate that this result is proper. First, on the same day that it issued the Order amending Rule 1006, the Supreme Court issued a companion order amending rules regarding the filing of professional liability actions. That Order concluded as follows: "This Order shall be processed in accordance with Pa. R.J.A. 103(b) and shall be effective immediately. The new and amended rules shall be applicable to actions commenced on or after the effective date of this Order." Order ~mending Rules 229, 1026, 1042, and 4007.2, 1/27/03. This statement clearly reveals the Supreme Court's intent that the professional liability amendments (unlike the venue amendment) will apply only te newiy-filed actions, not pending actions. Obviously then, if the Supreme Court had intended to make the Amendment to Rule 1006 apply only to cases filed on or after its effective date, it could have and would have done so. The fact that it did not do so, while issuing a companion Order with contrary language, again establishes that the Supreme Court intended the venue amendments to apply immediately to ail pending actions. To remove any doubt concerning its intent, the Supreme Court's Order declared that "immediate promulgation" of the venue amendment is necessary to serve "the interest of justice and efficient administration." Order, 1/27/03. The urgency of this language obviously reflects the Supreme Court's concern with the severity of the current medical malpractice insurance crises. In fact, the Court's concern was so great that it bypassed the usual comment period for new procedural rules. This urgency once again establishes that the amendment to Rule 1006 must be deemed to apply immediately to all pending actions. The object in interpreting Rules of Civil Procedure is to "ascertain and effectuate the intention of the Supreme Court." Pa. R.C.P. 127(a). Among the factors to be considered in determining the Court's intent are "the occasion and necessity for the Rule" and "the circumstances under which it was promulgated." Pa. R.C.P. 127(c)(1) and (2). Here, as noted, the obvious intent of the amendment to Rule 1006 is to address the severity of the current medical malpractice insurance crisis. This intent would be frustrated if, despite the Supreme Court's clear language, the Amendment to Rule 1006 is not applied to pending litigation especially where, as here, the case was commenced by writ and the complaint was fried after the effective date of the amended venue rule, as occurred here. The Supreme Court did not intend -8- such an unreasonable result. See, Pa. R.C.P. 128 ("IT]he Supreme Court does not intend a result that is absurd, impossible of execution or unreasonable.") Finally, it is necessary to reconcile the Court's Order with recently-enacted legislation also providing that medical malpractice actions must be filed in the county in which they arose. See, 42 Pa. C.S.A. §5101.1 (Venue in medical professional liability actions) ("(b) a medical professional liability action may be brought against a healthcare provider from a medical professional liability claim only in a county in which the cause of action arose."). Under its express language, Section 5101.1 applies only to actions fried on or after its effective date, December 16, 2002. This statutory language, however, has no bearing on the fact that the Supreme Court's Amendment to Rule 1006 applies to all pending litigation. First, the legislation specifically stated that it applies to causes of action filed on or after the effective date. See S.B. 138, §5 ("The amendment or addition of 42 Pa. C.S. Sections 931(c) and 5101.1 shall apply to all medical professional liability actions filed on or after the effective date of this section"). The Supreme Court was obviously aware of this statutory language and, if it wanted the amendment to Rule 1006 to apply in a similar fashion, it would have said so. Instead, it declared that the amendment would become effective immediately. More importantly, the Supreme Court has an entirely independent authority to establish and modify venue rules. The Pennsylvania Constitution specifically provides that "the power to change the venue in simple and criminal cases shall be -9- vested in the courts, to be exercised in such manner as shall be provided by law." Article III, §23, Pennsylvania Constitution. As a result, regardless of whether the legislature has concurrent authority to modify venue, the Supreme Court's authority to do so stems directly from the Constitution. As a result, the Supreme Court's Order of January 27, 2003 stands apart from §5101.1.8 For these reasons, venue should be transferred. Aside from the Supreme Court's undeniable authority under the Constitution to make rules affecting venue, the General Assembly has also granted the Supreme Court general supervisory and administrative authority over the unified judicial system and also granted the court certain enumerated powers to effect this authority. 42 Pa. C.S.A. §1701. One of the Court's powers is the power to prescribe and modify general rules governing the practice, procedure and conduct of all courts. 42 Pa. C.S.A. §1722(a). Thus, the Rules of Civil Procedure promulgated by the Supreme Court have the force and the statute. Dombrowski v. City of Philadelphia. 245 A.2d 238, 241 n.4 (Pa. 1968). Therefore, the Rules of Civil Procedure bind the courts of the unified judicial system and those who practice and appear before it. Since Amended Rule 1006 is a rule duly promulgated by the Supreme Court under the authority granted it by the General Assembly, the rule is binding in all Pennsylvania Courts and the parties in cases pending in those courts. For this reason as well, Amended Rule 1006 clearly applies to this case. IV. CONCLUSION For the reasons stated above, the preliminary objections should be granted and venue should be transferred to Cumberland County. Respectfully submitted, METTE~,~ANS & WOODSIDE By: Sup. C)t. LB. #15907 KATHRYN L. SIMPSON, ESQUIRE Sup. Ct. I.D. #28960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant DATED: February 19, 2003 :317460_1 -11- CERTIFICATE OF SERVICE AND NOW, this day, I hereby certify that I am serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules for Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Luther E. Milspaw, Jr., Esquire 130 State Street Harrisburg, PA 17101 Timothy McMahon, Esquire Marshall Dennehey 4200-B Crams Mill Road Harrisburg, PA 17110 DATED: February 19, 2003 METRE, F~ANS & WOODSIDE KATHLEEN DOYLE YANINEK, ESQUIRE Supreme Court I.D. #73445 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital RODNEY IL and JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D~q.; HOLY SPIRIT HEALTH SYSTEM, t/a HOLY SPIRIT HOSPITAL; and RITE AID OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 4275-CV-2002 CML ACTION - LAW.~: JURYTRIAL DEMANDED : BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS OF JON A. DUBIN. D.O. AND HOLY SPIRIT HOSPITAL Defendants, Jon A. Dubin, D.O. and Holy Spirit Hospital Health System t/a Holy Spirit Hospital, by their counsel, Mette, Evans & Woodside, file the following Brief in support of their preliminary objections. I. CONCISE STATEMENT OF REASONS FOR ORAL ARGUMENT Oral argument is requested because the Preliminary Objections may result in a change of venue. Argmment before a single judge is requested. Procedural History Plaintiffs commenced this action by the filing of a praecipe for writ of summons. Plaintiffs were ruled to fde a complaint and a complaint was filed on January 31, 2003. Factual History The Complaint avers that Rodney K and Jay P. Rountree are the co- administrators of the estate of their deceased mother, Phyllis O'Hare (Complaint, ¶ 1)~. Dr. Dubin is identified as an osteopatkic phy.sician practicing in Camp Hill, Cumberland County, PA (¶ 2) and Holy Spirit Health System is identified as a hospital facility located in Camp Hill, Cumberland County, PA (¶ 3). In September 1998, Mrs. O'Hare is alleged to have sought treatment at Holy Spirit Hospi~l where she was seen by Dr. Dubin who prescribed the antibiotic Biaxin and sent her home (¶ 11). The Complaint avers that Mrs. O'Hare ingested the Biaxin over the next eight days which allegedly caused her problems and resulted in her death on September 19, 1998 (¶ 12). It is alleged that the combination of the Biaxin and another prescription, Propulsid, cause her death (¶ 12). References to paragraph numbers are to the paragraphs of the Complaint. -2- H. STATEMENT OF QUESTION WHETHER THIS CASE, WHICH NAMES AS DEFENDANTS HEALTHCARE PROVIDERS AND ALLEGES A MEDICAL PROFESSIONAL LIABILITY CLAIM, SHOULD BE GOVERNED BY AMENDED RULE OF CIVIL PROCEDURE, Pa.R.C.P. 1006 MANDATING A CHANGE OF VENUE TO CUMBE~ COUNTY? Suggested Answer: Yes. III. ARGUMENT THIS CASE, WHICH NAMES AS DEFENDANTS HEALTHCARE PROVIDERS AND Al,LEGES A MEDICAL PROFESSIONAL LIABILITY CLAIM, IS GOVERNED BY AMENDED RULE OF CIVIL PROCEDURE, Pa.~C.P. 1006 WHICH MANDATES A CHANGE OF VENUE TO CUMBEI~LAND COUNTY. Venue in this matter must be transferred. On January 27, 2003, the Pennsylvania Supreme Court amended Rule of Civil Procedure 1006 by adding a section which provides as follows: Rule 1006 (Venue. Change of Venue) (a.1) Except as otherwise provided by subdivision (c), a medical professional liability action may be brought against a healthcare provider for a medical professional liability claim only in a county in which the cause of action arose. Note: See Section 5101.1(c) of the Judicial Code, 42 Pa. C.S. §5101.1(c) for the definitions of "healthcare provider", "medical professional liability action" and "medical professional liability claim.''2 These terms, as defined by Section 5101.1(c), are as follows: "Healthcare provider." A primary healthcare center or a person, including a corporation, university or other educational institution licensed or approved by the Commonwealth to provide healthcare or professional medical services as a physician, a certified nurse midwife, a podiatrist, hospital, nursing home, birth center and, except as to §711(a) of the Act of March 20, 2002 (P.L. 154, No. 13), known as the Medical Care Availability and Reduction of Error (MCARE) Act, an officer, employee or agent of any of them acting in the course and scope of employment. "Medical Professional Liability Action." Any proceeding in which a medical -4- Pa. R.C.P. 1006(a.1). As this provision indicates, medical malpractice actions must be brought in the county in which the alleged malpractice occurred. The question of when the amendment to Rule 1006 became effective is conclusively answered by the Supreme Court's Order announcing the amendment. The Order states: AND NOW this 27th day of January, 2003, Pennsylvania Rules of Civil Procedure 1006... [is] amended to read as attached hereto. Whereas prior distribution and publication of these amendments would otherwise be required, it has been determined that immediate promulgation of the amendments is required in the interest of justice and efficient administration. This order shall be processed in accordance with Pa. R.J.A. 103(b) and shall be immediately effective. (A copy of this order is attached to this Brief.) Given the highlighted language, it is clear that the amendment to Rule 1006 applies to all litigation pending on the date of the Order, January 27, 2003, regardless of when the litigation was filed. While plaintiff may argue that the amendment applies only to actions commenced on or after January 27, 2003, this argument is incorrect. Most importantly, Rule 52 of the Rules of Civil Procedure provides in pertinent part: professional liability claim is asserted, including an action in a Court of Law or an arbitration proceeding. "Medical Professional Liability Claim." Any claim seeking new recovery of damages or loss from a healthcare provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of healthcare services which were or should have been provided. -5- (c) Unless the Supreme Court specifies otherwise, a rule or amendment to a rule shall apply to actions pending on the effective date. Pa. R.C.P. 52(c). Obviously, in this case, the Supreme Court did not "specif~] otherwise" that is, it did not state that the amendment does not apply to pending actions. Indeed, the .Cour~ specifically required, "immediate promulgation" of the venue changes and declared that such changes "shall be effective immediately." Consequently, the venue changes apply to all actions pending on January 27, 2003, even if the actions were filed prior to the amendment's effective date. Applying Rule 52(c), the appellate courts have repeatedly held that an amendment to a rule is applicable to any action that is still pending at the time of the amendment, regardless of when the action was filed. See Manzetti v. Mercy Hospital of Pittsburgh, 776 A.2d 938, 945, n.1 (Pa. 2001) (applying the amended summary judgment rule, Pa. R.C.P. 1035, to a case filed before the amendment and explaining: As our rules of civil procedure state that an amended rule is applicable to all actions pending on the date on which the amendment becomes effective, it is the amended rule, rather than the rescinded rule, that is applicable to this matter. See Pa. R.C.P. Rule 52(c)."); Conner v. Munsey, 620 A.2d 1103, 110§ (Pa. 1993) ("New Rule 238... is to be applied to all cases still pending on appeal as of November 7, 1988, the date of the new Rule's adoption"). Of course, a "pending" action is one in which a final resolution has not yet been made; a case remains pending until all appeals have been exhausted. Black's -6- Law Dictionary (6~ ed. 1990), p. 1134 ("lAin action or suit is 'pending' from its inception until the rendition of final judgment."). As a result, an amendment to a rule will be applied even to a case that is on appeal when the amendment becomes effective. See, e.g., Conner, supra.; Calibeo v. Calibeo, 663 A.2d 184, 187 (Pa. Super 1995) ("Because the amended Rules discussed above became effective while the present appeal was pending, they are applicable to the case before us,"); Ceresini v. Valley View Trailer Park, 552 A.2d 258 (Pa. Super 1998) ("The Supreme Court has not directed otherwise and new Rule 238 applies to actions pending before us on the effective date of the Rule."). Rule 52(c) and the above case law establish that the amendment to Rule 1006 apply to all currently pending actions. Yet other factors also indicate that this result is proper. First, on the same day that it issued the Order amending Rule 1006, the Supreme Court issued a companion order amending rules regarding the filing of professional liability actions. That Order concluded as follows: "This Order shall be processed in accordance with Pa. R.J.A. 103(b) and shall be effective immediately. The new and amended rules shall be applicable to actions commenced on or after the effective date of this Order." Order ~mending Rules 229, 1026, 1042, and 4007.2, 1/27/03. This statement clearly reveals the Supreme Court's intent that the professional liability amendments (unlike the venue amendment) will apply only to newly-filed actions, not pending actions. Obviously then, if the Supreme Court had intended to make the -mendment to Rule 1006 apply only to cases fried on or after its effective date, it could have and -7- would have done so. The fact that it did not do so, while issuing a companion Order with contrary language, again establishes that the Supreme Court intended the venue amendments to apply immediately to all pending actions. To remove any doubt concerning its intent, the Supreme Court's Order declared that "immediate promulgation" of the venue amendment is necessary to serve "the interest of justice and efficient administration." Order, 1/27/03. The urgency of this language obviously reflects the Supreme Court's concern with the severity of the current medical malpractice insurance crises. In fact, the Court's concern was so great that it bypassed the usual comment period for new procedural rules. This urgency once again establishes that the amendment to Rule 1006 must be deemed to apply immediately to all pending actions. The object in interpreting Rules of Civil Procedure is to "ascertain and effectuate the intention of the Supreme Court." Pa. R.C.P. 127(a). Among the factors to be considered in determining the Court's intent are "the occasion and necessity for the Rule" and "the circumstances under which it was promulgated." Pa. R.C.P. 127(c)(1) and (2). Here, as noted, the obvious intent of the amendment to Rule 1006 is to address the severity of the current medical malpractice insurance crisis. This intent would be frustrated if, despite the Supreme Court's clear language, the Amendment to Rule 1006 is not applied to pending litigation especially where, as here, the case was commenced by writ and the complaint was filed after the effective date of the amended venue rule, as occurred here. The Supreme Court did not intend such an unreasonable result. See, Pa. R.C.P. 128 ("[T]he Supreme Court does not intend a result that is absurd, impossible of execution or unreasonable.") Finally, it is necessary to reconcile the Court's Order with recently-enacted legislation also providing that medical malpractice actions must be filed in the county in which they arose. See, 42 Pa. C.S.A. §5101.1 (Venue in medical professional liability actions) ("(b) a medical professional liability action may be brought against a healthcare provider from a medical professional liability claim only in a county in which the cause of action arose."). Under its express language, Section 5101.1 applies only to actions filed on or after its effective date, December 16, 2002. This statutory language, however, has no bearing on the fact that the Supreme Court's Amendment to Rule 1006 applies to all pending litigation. First, the legislation specifically stated that it applies to causes of action filed on or after the effective date. See S.B. 138, §5 ("The amendment or addition of 42 Pa. C.S. Sections 931(c) and 5101.1 shall apply to all medical professional liability actions filed on or after the effective date of this section"). The Supreme Court was obviously aware of this statutory language and, if it wanted the ~mendment to Rule 1006 to apply in a similar fashion, it would have said so. Instead, it declared that the amendment would become effective immediately. More importantly, the Supreme Court has an entirely independent authority to establish and modify venue rules. The Pennsylvania Constitution specifically provides that "the power to change the venue in simple and criminal cases shall be -9- vested in the courts, to be exercised in such manner as shall be provided by law." Article III, §23, Pennsylvania Constitution. As a result, regardless of' whether the legislature has concurrent authority to modify venue, the Supreme Court's authority to do so stems directly from the Constitution. As a result, the Supreme Court's Order of January 27, 2003 stands apart from §5101.1.3 For these reasons, venue should be transferred. s Aside from the Supreme Court's undeniable authority under the Constitution to make rules affecting venue, the General Assembly has also granted the Supreme Court general supervisory and eam~nistrative authority over the unified judicial system and also granted the court certain enumerated powers to effect this authority. 42 Pa. C.S.A. §1701. One of the Court's powers is the power to prescribe and modify general rules governing the practice, procedure and conduct of all courts. 42 Pa. C.S.A. §1722(a). Thus, the Rules of Civil Procedure promulgated by the Supreme Court have the force and the statute. Dombrowski v. City of Philadeloh£a. 245 A.2d 238, 241 n.4 (Pa. 1968). Therefore, the Rules of Civil Procedure bind the courts of the unified judicial system and those who practice and appear before it. Since Amended Rule 1006 is a rule duly promulgated by the Supreme Court under the authority granted it by the General Assembly, the rule is binding in all Pennsylvania Courts and the parties in cases pending in those courts. For this reason as well, Amended Rule 1006 cle~ly applies to this case. IV, CONCLUSION For the reasons stated above, the preliminary objections should be granted and venue should be transferred to Cumberland County. Respectfully submitted, METTE~EVANS & WOODSIDE Sup. C)t. I.D. # lr~907 KATHRYN L. SIMPSON, ESQUIRE Sup. Ct. I.D. #28960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant DATED: February 19, 2003 :317460 _I -11- CERTIFICATE OF SERVICE AND NOW, this day, I hereby certify that I am serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules for Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Luther E. Milspaw, Jr., Esquire 130 State Street Harrisburg, PA 17101 Timothy McMahon, Esquire Marshall Dennehey 4200-B Crums Mill Road Harrisburg, PA 17110 DATED: February 19, 2003 METTE~/E~ANS & WOODSIDE Supreme Court 1.~. #15907 KATHLEEN DOYLE YANINEK, ESQUIRE Supreme Court I.D. #73445 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendants Jori A. Dubin, D.O. and Holy Spirit Hospital RODNEY IC and JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, X)X)_;_HOLY SPIRIT HEALTH SYSTEM, t/a HOLY SPIRIT HOSPITAL; and RITE AID OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 4275-CV-2002 CML ACTION - LAW JURY TRIAL DEMANDED BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS OF JON A. DUBIN. D.O. AND HOLY SPIRIT HOSPITAL Defendants, Jon A. Dubin, D.O. and Holy Spirit Hospital Health System t/a Holy Spirit Hospital, by their counsel, Mette, Evans & Woodside, ~e the following Brief in support of their preliminary objections. I. CONCISE STATEMENT OF REASONS FOR ORAL ARGUMENT Oral argument is requested because the Preliminary Objections may result in a change of venue. Argument before a single judge is requested. Procedural History Plaintiffs commenced this action by the filing of a praecipe for writ of summons. Plaintiffs were ruled to file a complaint and a complaint was filed on January 31, 2003. Factual History The Complaint avers that Rodney K and Jay P. Rountree are the co- administrators of the estate of their deceased mother, Phyllis O'I-Iare (Complaint, ¶ 1)~. Dr. Dubin is identified as an osteopathic phy.~sician practicing in Camp Hill, Cumberland County, PA (¶ 2) and Holy Spirit Health System is identified as a hospital facility located in Camp Hill, Cumberland County, PA (¶ 3). In September 1998, Mrs. O'Hare is alleged to have sought treatment at Holy Spirit Hospital where she was seen by Dr. Dubin who prescribed the antibiotic Biaxin and sent her home (¶ 11). The Complaint avers that Mrs. O'Hare ingested the Biaxin over the next eight days which allegedly caused her problems and resulted in her death on September 19, 1998 (¶ 12). It is alleged that the combination of the Biaxin and another prescription, Propulsid, cause her death (¶ 12). References to paragraph numbers are to the paragraphs of the Complaint. -2- II. STATEMENT OF QUESTION WHETHER THIS CASE, WHICH NAMES AS DEFENDANTS HEALTHCARE PROVIDERS AND ALLEGES A MEDICAL PROFESSIONAL LIABILITY C~LAIM, SHOUIJ~ BE GOVERNED BY AMENDED RULE OF CIVIL PROCEDURE, Pa.tLC.P. 1006 MANDATING A CHANGE OF VENUE TO CUMBE~ COUNTY? Suggested Answer: Yes. -3- III. ARGUMENT THIS CASE, WHICH NAMES AS DEFENDANTS HEALTHCARE PROVIDERS AND ALLEGES A MEDICAL PROFESSIONAL LIABILITY CLAIM, IS GOVERNED BY AMENDED RULE OF CIVIL PROCEDURE, Pa.~,C.P. 1006 WHICH MANDATES A CHANGE OF VENUE TO CUMBE~ COUNTY. Venue in this matter must be transferred. On January 27, 2003, the Pennsylvania Supreme Court amended Rule of Civil Procedure 1006 by adding a section which provides as follows: Rule 1006 (Venue. Change of Venue) (a. 1) Except as otherwise provided by subdivision (c), a medical professional liability action may be brought against a healthcare provider for a medical professional liability claim only in a county in which the cause of action arose. Note: See Section 5101.1(c) of the Judicial Code, 42 Pa. C.S. §5101.1(c) for the definitions of "healthcare provider", "medical professional liability action" and "medical professional liability claim.''2 2 These terms, as defined by Section 5101.1(c), are as follows: "Healthcare provider." A primary healthcare center or a person, including a corporation, university or other educational institution licensed or approved by the Commonwealth to provide healthcare or professional medical services as a physician, a certified nurse midwife, a podiatrist, hospital, nursing home, birth center and, except as to §711(a) of the Act of March 20, 2002 (P.L. 154, No. 13), known as the Medical Care Availability and Reduction of Error (MCARE) Act, an officer, employee or agent of any of them acting in the course and scope of employment. "Medical Professional Liability Action." Any proceeding in which a medical -4- Pa. R.C.P. 1006(a.1). As this provision indicates, medical malpractice actions must be brought in the county in which the alleged malpractice occurred. The question of when the amendment to Rule 1006 became effective is conclusively answered by the Supreme Court's Order announcing the amendment. The Order states: AND NOW this 27th day of January, 2003, Pennsylvania Rules of Civil Procedure 1006... [is] amended to read as attached hereto. Whereas prior distribution and publication of these amendments would otherwise be required, it has been determined that immediate promulgation of the amendments is required in the interest of justice and efficient administration. This order shall be processed in accordance with Pa. R.J.A. 103(b) and shah be immediately effective. (A copy of this order is attached to this Brief.) Given the highlighted language, it is clear that the amendment to Rule 1006 applies to all litigation pending on the date of the Order, January 27, 2003, regardless of when the litigation was filed. While plaintiff may argue that the amendment applies only to actions commenced on or after January 27, 2003, this argument is incorrect. Most importantly, Rule 52 of the Rules of Civil Procedure provides in pertinent part: professional liability claim is asserted, including an action in a Court of Law or an arbitration proceeding. "Medical Professional Liability Claim." Any claim seeking new recovery of damages or loss from a healthcare provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of healthcare services which were or should have been provided. -5- (c) Unless the Supreme Court specifies otherwise, a rule or amendment to a rule shall apply to actions pending on the effective date. Pa. R.C.P. 52(c). Obviously, in this case, the Supreme Court did not "speciFLy] otherwise" that is, it did not state that the amendment does not apply to pending actions. Indeed, the Court specifically required, "immediate promnlgation" of the venue changes and declared that such changes "shall be effective immediately." Consequently, the venue changes apply to all actions pending on January 27, 2003, even if the actions were filed prior to the amendment's effective date. Applying Rule 52(c), the appellate courts have repeatedly held that an amendment to a rule is applicable to any action that is still pending at the time of the amendment, regardless of when the action was filed. See Manzetti v. Mercy Hospital of Pittsburgh, 776 A.2d 938, 945, n.1 (Pa. 2001) (applying the amended summary judgment rule, Pa. R.C.P. 1035, to a case fried before the amendment and explaining: As our rules of civil procedure state that an amended rule is applicable to all actions pending on the date on which the amendment becomes effective, it is the amended rule, rather than the rescinded rule, that is applicable to this matter. See Pa. R.C.P. Rule 52(c)."); Conner v. Munsev, 620 A.2d 1103, 1105 (Pa. 1993) ("New Rule 238... is to be applied to all cases still pending on appeal as of November 7, 1988, the date of the new Rule's adoption"). Of course, a "pending" action is one in which a final resolution has not yet been made; a case remains pending until all appeals have been exhausted. Black's -6- Law Dictionary (6m ed. 1990), p. 1134 ("[A]n action or suit is 'pending' from its inception until the rendition of final judgment."). As a result, an amendment to a rule will be applied even to a case that is on appeal when the amendment becomes effective. See, e.g., Conner, supra.; Calibeo v. Calibeo, 663 A.2d 184, 187 (Pa. Super 1995) ("Because the amended Rules discussed above became effective while the present appeal was pending, they are applicable to the case before us,"); Ceresini v. Valley View Trailer Park, 552 A.2d 258 (Pa. Super 1998) ("The Supreme Court has not directed otherwise and new Rule 238 applies to actions pending before us on the effective date of the Rule."). Rule 52(c) and the above case law establish that the amendment to Rule 1006 apply to all currently pending actions. Yet other factors also indicate that this result is proper. First, on the same day that it issued the Order amending Rule 1006, the Supreme Court issued a companion order amending rules regarding the filing of professional liability actions. That Order concluded as follows: "This Order shall be processed in accordance with Pa. R.J.A. 103(b) and shall be effective immediately. The new and amended rules shall be applicable to actions co~nmenced on or after the effective date of this Order." Order ~mending Rules 229, 1026, 1042, and 4007.2, 1/27/03. This statement clearly reveals the Supreme Court's intent that the professional liability amendments (unlike the venue amendment) will apply only to newly-filed actions, not pending actions. Obviously then, if the Supreme Court had intended to make the amendment to Rule 1006 apply only to cases fried on or after its effective date, it could have and -7- would have done so. The fact that it did not do so, while issuing a companion Order with contrary language, again establishes that the Supreme Court intended the venue amendments to apply immediately to all pending actions. To remove any doubt concerning its intent, the Supreme Court's Order declared that "immediate promulgation" of the venue amendment is necessary to serve "the interest of justice and efficient administration." Order, 1/27/03. The urgency of this language obviously reflects the Supreme Court's concern with the severity of the current medical malpractice insurance crises. In fact, the Court's concern was so great that it bypassed the usual comment period for new procedural rules. This urgency once again establishes that the amendment to Rule 1006 m~st be deemed to apply immediately to all pending actions. The object in interpreting Rules of Civil Procedure is to "ascertain and effectuate the intention of the Supreme Court." Pa. R.C.P. 127(a). Among the factors to be considered in determining the Court's intent are "the occasion and necessity for the Rule" and "the circumstances under which it was promulgated." Pa. R.C.P. 127(c)(1) and (2). Here, as noted, the obvious intent of the amendment to Rule 1006 is to address the severity of the current medical malpractice insurance crisis. This intent would be frustrated if, despite the Supreme Court's clear language, the Amendment to Rule 1006 is not applied to pending litigation especially where, as here, the case was commenced by writ and the complaint was filed after the effective date of the amended venue rule, as occurred here. The Supreme Court did not intend -8- such an unreasonable result. See, Pa. R.C.P. 128 ("[T]he Supreme Court does not intend a result that is absurd, impossible of execution or unreasonable.") Finally, it is necessary to reconcile the Court's Order with recently-enacted legislation also providing that medical malpractice actions must be filed in the county in which they arose. See, 42 Pa. C.S.A. §5101.1 (Venue in medical professional liability actions) ("(b) a medical professional liability action may be brought against a healthcare provider from a medical professional liability claim only in a county in which the cause of action arose."). Under its express language, Section 5101.1 applies only to actions filed on or after its effective date, December 16, 2002. This statutory language, however, has no bearing on the fact that the Supreme Court's Amendment to Rule 1006 applies to all pending litigation. First, the legislation specifically stated that it applies to causes of action filed on or after the effective date. See S.B. 138, §5 ("The amendment or addition of 42 Pa. C.S. Sections 931(c) and 5101.1 shall apply to all medical professional liability actions filed on or after the effective date of this section"). The Supreme Court was obviously aware of this statutory language and, if it wanted the ~mendment to Rule 1006 to apply in a similar fashion, it would have said so. Instead, it declared that the amendment would become effective immediately. More importantly, the Supreme Court has an entirely independent authority to establish and modify venue rules. The Pennsylvania Constitution specifically provides that "the power to change the venue in simple and criminal cases shall be -9- vested in the courts, to be exercised in such manner as shall be provided by taw." Article III, §23, Pennsylvania Constitution. As a result, regardless of whether the legislature has concurrent authority to modify venue, the Supreme Court's authority to do so stems directly from the Constitution. As a result, the Supreme Court's Order of January 27, 2003 stands apart from §5101.17 For these reasons, venue should be transferred. Aside from the Supreme Court's undeniable authority under the Constitution to make rules affecting venue, the General Assembly has also granted the Supreme Court general supervisory and administrative authority over the unified judicial system and also granted the court certain enumerated powers to effect this authority. 42 Pa. C.S.A. §1701. One of the Court's powers is the power te prescribe and modify general rules governing the practice, procedure and conduct of all courts. 42 Pa. C.S.A. §1722(a). Thus, the Rules of Civil Procedure promulgated by the Supreme Court have the force and the statute. Dombrowski v. City of Philadelphia. 245 A.2d 238, 241 n.4 (Pa. 1968). Therefore, the Rules of Civil Procedure bind the courts of the unified judicial system and those who practice and appear before it. Since Amended Rule 1006 is a rule duly promulgated by the Supreme Court under the authority granted it by the General Assembly, the rule is binding in all Pennsylvania Courts and the parties in cases pending in those courts. For this reason as well, Amended Rule 1006 clearly applies to this case. -10- IV. CONCLUSION For the reasons stated above, the preliminary objections should be granted and venue should be transferred to Cumberland County. Respectfully submitted, METTE,/~VANS & WOODSIDE s soN, Sup. ~. I.D. ~28960 3401 No~h Front Street P.O. Box 5950 Harrisb~g, PA 17110-0950 (717) 232-5000 Atto~eys for Defend~t DATED: February 19, 2003 :317460 _1 -11- CERTIFICATE OF SERVICE AND NOW, this day, I hereby certify that I am serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules for Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Luther E. Milspaw, Jr., Esquire 130 State Street Harrisburg, PA 17101 Timothy McMahon, Esquire Marshall Dennehey 4200-B Crums Mill Road Harrisburg, PA 17110 DATED: February 19, 2003 METTE~/EVANS & WOODSID~E KATHLEEN DOYLE YANINEK, ESQUIRE Supreme Court I.D. #73445 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital \05_A\LIAB\TJM\LLP G\ 117266~JMF~! 8 155\00273 RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE A_rD OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 4275-CV-2002-CV -o CIVIL ACTION - LAW JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT RITE AID OF PENNSYLVANIA, INC. TO PLAINTIFFS' COMPLAINT 1. Plaintiffs instituted this action by filing a Praecipe for the issuance of a Writ of Summons on or about September 17, 2002. 2. Thereafter on January 31, 2003 Plaintiffs filed their Complaint in this action. (A truc and correct copy of Plaintiffs' Complaint is attached hereto as Exhibit "A"). 3. Plaintiffs in their Complaint allege that Defendant Dr. Dubin is a physician whose principle place of business is in Camp Hill, Cumberland County, Pennsylvania. Plaintiffs further allege that Dr. Dubin was practicing medicine at Holy Spirit Health System t/a Holy Spirit Hospital and that Plaintiffs' Decedent was a patient of Dr. Dubin. (See, Exhibit "A" at ¶ 2). 4. Plaintiffs allege in their Complaint that they arc the Administrators of thc Estate of Decedent Phyllis O'Hare and residents of Cumberland County, Pennsylvania. (See, Exhibit "A" at ¶ 1). 5. Plaintiffs further aver in their Complaint that Defendant Holy Spirit Health System t/a Holy Spirit Hospital has its principle administrative offices and hospital facilities in Camp Hill, Cumberland County, Pennsylvania. (See, Exhibit "A" at ¶ 3). 6. Plaintiffs allege in their Complaint that Defendant Rite Aid of Pennsylvania, Inc. has its principle administrative offices in Camp Hill, Cumberland County, Pennsylvania. (It should be noted that pursuant to a Stipulation of Counsel all references to Rite Aid Corporation t/a Rite Aid Pharmacy are withdrawn and replaced with Rite Aid of Pennsylvania, Inc., which Stipulation of Counsel has been fully executed and approved by the Court.) 7. Plaintiffs in their Complaint allege that Rite Aid conducts business in Dauphin County and that therefore jurisdiction and venue are proper in Dauphin County. (See, Exhibit "A" at ¶¶ 4, 5). 8. The material allegations set forth in Plaintiffs' Complaint are such that Plaintiffs' Decedent is alleged to have been under the care of a physician who had prescribed Propulsid beginning in January of 1996. (See, Exhibit "A" at ¶ 6). 9. Plaintiffs allege in their Complaint that on September I1, 1998 Plaintiffs' Decedent was treated at the emergency room of Holy Spirit Hospital and seen by Dr. Dubin and others at that time and location. Plaintiffs further allege that Dr. Dubin prescribed a 10-day course ora certain antibiotic, Biaxin, for the Decedent. (See, Exhibit "A" at ¶ 11). 10. Plaintiffs aver that Decedent's death on September 19, 1998 was due to her ingestion of the Biaxin prescribed by Dr. Dubin. (See, Exhibit "A" at ¶ 12). 11. Finally, Plaintiffs allege that her prescriptions from January 1996 through September of 1998 were filled at a Rite Aid Pharmacy. (See, Exhibit "A" at ¶ 13). 12. Plaintiffs have brought claims for wrongful death and survival. 13. The material allegations set forth in Plaintiffs' Complaint make it abundantly clear that this matter involves a claim for medical professional liability brought against health care providers. 14. The Complaint contains allegations of professional medical negligence that occurred solely in Cumberland County, Pennsylvania. 15. The Complaint does not allege that any medical professional negligence took place in Dauphin County, Pennsylvania. Rather, upon the face of Plaintiffs' Complaint, all of the pertinent alleged professional medical negligence is alleged to have occurred in Cumberland County. Moreover, all parties reside in Cumberland County. 16. Accordingly, Defendant Rite Aid of Pennsylvania, Inc. submits these Preliminary Objections pursuant to Pa.R.C.P. 1028(a)(I) to venue in Dauphin County in this matter. 17. 42 Pa.C.S.A. {}5101.1, which became effective on December 16, 2002 provides in relevant part: (a) Declaration of Policy -- In accordance with §514(a) of the Act of March 20, 2002 (P.L. 154, 113) known as the Medical Care Availability and Reduction of Error (MCARE) Act, and as a matter of public policy, the General Assembly further declares the need to change the venue requirements for medical professional liability actions. (b) General Rule - Notwithstanding any other provision to the contrary, a medical professional liability action may be brought against a healthcare provider for a medical professional claim only in the county in which the cause of action arose. (Applies to actions commenced after December 16, 2002.) 18. On January 27, 2003, the Supreme Court of Pennsylvania promulgated an amendment to Pa.R.C.P. 1006. The Supreme Court stated that immediate promulgation of the amended Pa. R.C.P. is required in the interest of justice and efficient administration, and shall be effective immediately. (emphasis ours) The amendment provides as follows in relevant part: 1006(a)(1) Except as otherwise provided by subsection (c), a medical professional liability action may be brought against a healthcare provider for a medical professional liability claim only in the county in which the cause of action arose. (b) Pertains to venue rules as to partnerships, unincorporated associations and corporations and similar entities contained in Rules 2130, 2156 and 2179, respectively. (c)(1) Except as otherwise provided in (2), an action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is a defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of subdivision (a) or (b). (c)(2) If the action to enforce a joint or joint and several liability against two or more defendants includes one or more professional liability claims, the action shall be brought in any county in which the venue may be laid against any defendant under subdivision (a)(1). 19. The Supreme Court Order amending Rules 1006, 2130, 2156 and 2179 is attached hereto and marked as Exhibit "B", and in accordance with its own terms, is effective immediately. 20. Pa.R.C.P. 52(a) and (c) provides as follows: (a) A Rule or an amendment to a Rule shall be effective upon the date specified by the Supreme Court. (c) Unless the Supreme Court specifies otherwise, a Rule or an amendment to a Rule shall apply to actions pending on the effective date. 21. This matter is an action which was pending on January 27, 2003, and therefore, the amendment to Rule 1006 (2130, 2156, 2179) is applicable to this action. 22. In accordance with Pa. R.C.P. Rules of Construction Nos. 127 and 128, the intent of the Supreme Court as embodied in the Rule amendments mandates that all actions can be brought only in the Common Pleas Court of the county where the medical professional negligence occurred. 23. Defendant Rite Aid of Pennsylvania, Inc. respectfully requests that this action be transferred to the Court of Common Pleas of Cumberland County, Pennsylvania. Venue is improper in the Court of Common Pleas of Dauphin County, Pennsylvania in accordance with Rule 1006 (2130, 2156, 2179) as amended. Proper venue for this action is in the Court of Common Pleas of Cumberland County, Pennsylvania. 24. Defendant's Preliminary Objections are timely. 25. This matter involves a substantial issue of venue under Rule 311 (b)(2) of the Pennsylvania Rules of Appellate Procedure. WHEREFORE, Moving Defendant, Rite Aid of Pennsylvania, Inc., respectfully requests that this Honorable Court enter an Order transferring venue in this action to the Court of Common Pleas of Cumberland County, Pennsylvania in accordance with the mandate of Rule 1006. DATE: r~ , ,~OI '~(J~3 BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN TllX'I O T[-IY/~McMAHON, ESQUIRE I.D. No. Y2918 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant, Rite Aid of Pennsylvania, Inc. Luther E. Milspaw, Jr., Esquire Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilsl)awt~,MB LawFirm.com Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF TH~ ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON-~rLE,O~OF · DAUPHIN COUNTY, PENNS~Iz3~:AN16.~ :CIVIL ACTION - LAW :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED 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 with in twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the 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: DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 Luther E. Milspaw, Jr., Esquire Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilspaw~,,MB LawFirm.com Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O. , HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA : :CIVIL ACTION - LAW : :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted guiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notification. Usted debe prescntar una apariencia escrita o cn persona o por abogado y archivar en 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, la sin previo aviso o notificacion y por cualquier qucja o alivio que es pedido en la peticion de demanda. Usted pucde perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. 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 ENCLrENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7S36 2 Luther E. Milspaw, Jr., Esquire Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilsl~aw(&MBLawFirm.com Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUB1N, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED COMPLAINT I. PARTIES and JURISDICTION Plaintiffs Rodney K. Rountree and Jay P. Rountree are adult individuals who are the administrators of the Estate of their deceased mother, Phyllis O'Hare ("Mrs. O'Hare"), citizens of the United States, and residents of Shiremanstown, Cumberland County, Pennsylvania, as was the decedent. Defendant, Jon A. Dubin, D.O., ("Dr. Dubin") is an osteopathic physician duly licensed in the Commonwealth of Permsylvania with his principal place of business in Camp Hill, Cumberland County, Pennsylvania. At all times relevant herein, Dr. Dubin was practicing osteopathic medicine in the specialty of emergency and internal medicine as an employee of Defendant Holy Spirit Health System T/A Holy Spirit Hospital ("Holy Spirit Hospital"), and was acting within the course and scope of his employment. Dr. Dubin had as a patient the decedent Phyllis O'Hare on September 11, 1998, and in the course of treating her, prescribed for her use certain drugs including Biaxin and other products. At all times relevant to this cause of action, Dr. Dubin held himself out to the general public, including Mrs. O'Hare, as a doctor with special knowledge, skill and experience in 3 emergency and internal medicine. Defendant Holy Spirit Health System T/A Holy Spirit Hospital ("Holy Spirit Hospital") is a business corporation duly authorized to do business in the Commonwealth of Pennsylvania, with its principal administrative offices and hospital facilities, including its emergency room, in Camp Hill, Cumberland County, Pennsylvania. Holy Spirit Hospital advertises and conducts its business throughout Central Pennsylvania including Dauphin County. At all relevant times herein, Holy Spirit Hospital was the employer of Dr. Dubin. Defendant Rite .Aid of Pennsylvania, Inc. ("Rite Aid") is a business corporation duly authorized to conduct business in the Commonwealth of Pennsylvania, with its principal administrative offices in Camp Hill, Cumberland County, Pennsylvania. Rite Aid advertises and conducts its business, including the operation of pharmacies, throughout Central Pennsylvania, including Dauphin County. Jurisdiction and venue are proper in Dauphin County, Pennsylvania. II. FACTUAL BACKGROUND Mrs. O'Hare was initially prescribed the drag cisapride, marketed under the brand name Propulsid, for esophageal spasm in January1996 by Dr. John P. McLaughlin. Dr. McLaughlin continued Mrs. O'Hare on Propulsid for the next two years and nine months, and Rite Aid filled her prescriptions, until her death. When receiving prescriptions for Propulsid, Mrs. O'Hare was not prescribed a safe drug but instead was given a drug that causes potentially life-threatening heart problems including QT prolongation, cardiac arrhythmia, ventricular tachycardia, torsades de pointes, ventricular fibrillation, heart disease, hypertensive crises, and other adverse medical conditions. Prior to 1998, physicians, pharmacies and hospital personnel were aware, or should have been aware, of potential life threatening conditions associated with the drug Propulsid. 4 10. 11. 12. 13. In 1998, reports of serious adverse events, including death from heart rhyttma disorders and sudden cardiac arrest, prompted the FDA to issue a warning about the drug Propulsid. Therefore, Defendants herein knew, or should have known, about the life threatening conditions associated with the drug Propulsid and about the FDA warning. Prior to 1998, physicians, pharmacies and hospital personnel were aware, or should have been aware, of potential life threatening conditions associated with the concomitant use of Propulsid and Biaxin. In particular, CIarithromycin (Biaxin) has been known to inhibit the cytochrome P450 3A4 isoenzyme which is mainly responsible for metabolism of cisapride (Propulsid), resulting is increased cisapride blood levels. On September 11, 1998, Mrs. O'Hare went to the emergency room of Holy Spirit Hospital complaining of shortness ofhreath and wheezing. She was seen by Dr. Dubin and other nurses and staff of Holy Spirit Hospital and had several tests conducted. Mrs. O'Hare had been to Holy Spirit Hospital on several previous occasions (02-01-96, 07-19-96, and 4- 16-98) and Dr. Dubin called for and reviewed her previous records. The previous records identified Dr. McLaughlin as her treating physician and reflected her history of taking Propulsid. Dr. Dubin did not consult with Dr. McLaughlin or any of Mrs. O'Hare's other physicians. That same day, following his examination, review of Mrs. O'Hare's previous records, and additional testing, Dr. Dubin diagnosed a possible respiratory infection, prescribed a 10 day course of the antibiotic Biaxin for Mrs. O'Hare, and sent her home. The ingestion of Biaxin over the next eight (8) days by Mrs. O'Hare resulted in elevated cisapride blood level in her system. The elevated Cisapride blood level in turn caused QT prolongation, ventricular tachycardia, and resulted in her death on September 19, 1998. The ingestion of Propulsid and Biaxin concomitantly was the direct and proximate cause of her death. All of Mrs. O'Hare's prescriptions for Propulsid from January 18, 1996 through August 5 14. 15. 16. 17. 18. 16, 1998, and her prescription for Biaxin on September 11, 1998, were filled at a Rite Aid pharmacy identified as store number 1693. All Defendants herein knew or should have known that the drug Propulsid was not an appropriate drug to treat gastroesophageal reflux disorders, and other esophageal conditions because of its adverse and lethal effects. The Defendants herein also knew or should have known of the dangerous consequences associated with the drugs Propulsid and Biaxin, including serious adverse drug interactions, including death, when Propulsid was taken in combination with Biaxin. Plaintiffs were not aware of and did not ascertain, the reasons for the death of their mother as set forth herein, until on or after early September, 2000. At the time of her death, Mrs. O'Hare was 75 years old and in good health. She was a good, faithful and industrious mother who gave her children wise counsel, advice, help and financial aid, which would have continued had she not met an untimely death. Her death deprived her children of her aid, association, attention, support, comfort, care and society. By reason of her death, her children have been damaged to an extent as yet undetermined, but in an amount in excess of the jurisdictional minimum. In addition, it was also necessary to provide for funeral services, burial, and other expenses of decedent for which Plaintiffs incurred sums which were fair, customary, reasonable, and necessary. Plaintiffs' claim those damages incurred by reason of the decedent's death, and suffered by the decedent prior to her death, as a result of physical pain and suffering, mental pain and suffering, anxiety, emotional distress, loss of enjoyment of life, personal injury and disability. All causes of action as hereinafter set forth are brought as both wrongful death and survival actions. 6 III. CAUSES OF ACTION COUNT I PLAINTIFFS vs JON A. DUBIN, D.O. PROFESSIONAL NEGLIGENCE 19. Plaintiffs incorporate by reference all other paragraphs of this Complaint. 20. Dr. Dubin undertook and contracted to provide medical care for Decedent Phyllis O'Hare, as his patient, and Mrs. O'Hare relied upon him to provide reasonable and prudent medical care. 21. Defendant Dr. Dubin should have been aware that Biaxin was contraindicated for use by Mrs. O'Hare since she was then taking and had been taking Propulsid for over a 2 and ½ year period, and should have been aware that the use of Propulsid and Biaxin in combination would elevate her cisapride blood levels, resulting in QT prolongation, ventricular tachycardia, and her sudden death. 22. Dr. Dubin was aware or should have been aware that, as of September 11, 1998, the day that he prescribed Biaxin for Mrs. O'Hare, that she was taking Propulsid. 23, The negligence of Defendant Dr. Dubin consisted of the following: (a) Prescribing Biaxin and failing to timely discontinue its prescription. (b) Failing to recognize that the concomitant use of Biaxin with Propulsid by the decedent was dangerous and contraindicated. (c) Failing on and after September 11, 1998, to discontinue the prescription of both Propulsid and Biaxin immediately. (d) Failing on and after September 11, 1998, to recommend such other courses of treatment as reasonably required to minimize the consequences to decedent of her ingestion of Propulsid and Biaxin. (e) Failing to consult with Dr. McLaughlin or any of Mrs. O'Hare's other 7 Ireating physicians. (f) Failing to properly review and consider Mrs. O'Hare's previous records at Holy Spirit Hospital reflecting Mrs. O'Hare's use of Propulsid. (g) Failing to properly follow up Mrs. O'Hare's care. 24. As a direct and proximate result of Defendant Dr. Dubin's negligence, Mrs. O'Hare took the Biaxin as prescribed and the concurrent use of Biaxin and Propulsid resulted in her death. 25. Defendant Dr. Dubin, individually, and by and through his fellow employees, agents, and representatives, failed to exercise that degree of care, skill and learning expected of reasonable and prudent health care providers in their profession. 26. Defendant Dr. Dubin breached his duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Jon A. Dubin, D.O. for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. COUNT H PLAINTIFFS vs HOLY SPIRIT HOSPITAL RESPONDEAT SUPERIOR 27. Plaintiffs incorporate by reference all other paragraphs of this Complaint. 28. Upon information and belief, Dr. Dubin was an employee, agent and/or representative of Defendant Holy Spirit Hospital. Holy Spirit Hospital approved Dr. Dubin's treatment of Mrs. O'Hare and his prescribing of pharmaceuticals for her treatment including Biaxin. 29. Defendant Holy Spirit Hospital is directly liable for the negligent acts and omissions of its employees, agents, and representatives, including Defendant Dr. Dubin. 30. Defendant Holy Spirit Hospital by and through its employees, agents, and representatives, 8 failed to exercise that degree of care, skill and learning expected of reasonable and prudent health (:are providers in their profession. 31. Defendant Holy Spirit Hospital and Dr. Dubin breached their duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Holy Spirit Hospital for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. COUNT III PLAINTIFFS vs HOLY SPIRIT HOSPITAL CORPORATE LIABILITY 32. Plaintiffs incorporate by reference all other paragraphs of this Complaint. 33. Acting through its administrators, various boards, committees and individuals, Defendant Holy Spirit Hospita/is responsible for the standard of professional practice by all individuals who are granted staff privileges within its facilities. 34. Defendant Holy Spirit Hospital breached its duty to Mrs. O'Hare by the following acts and omission: (a) (b) (c) (d) (e) In granting privileges, employing, or otherwise permitting the Defendant Dr. Dubin to treat Mrs. O'Hare in its emergency room; By failing to insure that Dr. Dubin was properly trained and educated in the prescription of drugs; By failing to have a system of checks and balances in place to assure that the drug Biaxin was not prescribed for Mrs. O~Hare where such use was contraindicated in combination with her Propulsid prescription; By failing to select and retain only competent physicians; By failing to oversee all persons who practice medicine within its walls 9 when providing patient care; (f) By failing to formulate, adopt and enforce adequate roles and policies to ensure quality care for its patients, including the emergency room treatment that was provided on behalf of Mrs. O'Hare in its facility. 35. Defendant Holy Spirit Hospital breached its duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Holy Spirit Hospital for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. COUNT IV PLAINTIFFS vs DEFENDANT RITE AID NEGLIGENCE 36. Plaintiffs incorporate by reference all other paragraphs of this Complaint. 37. Defendant Rite Aid filled all the prescriptions of Mrs. O'Hare for Propulsid from January 18, 1996 through August 16, 1998, and her prescriptions, including her prescription for Biaxin on September 11, 1998, were filled at a Rite Aid pharmacy identified as store number 1693. 38. The negligence of Defendant Rite Aid consisted of the following: (a) Failing to recognize that the use of Propulsid by Mrs. O'Hare over a two and one-half year period was inappropriate; (b) Failing to recognize that the use of Propulsid in combination with Biaxin was contraindicated; (c) Failing to consult with Dr. Dubin or Dr. McLaughlin regarding the use of Propulsid by Mrs. O'Hare over a two and one-half year period or the use of Propulsid in combination with Biaxin; (d)Failing to warn Mrs. O'Hare regarding her use by of Propulsid over a two 10 and one-half year period or her use of Propulsid in combination with Biaxin; (e) }railing to warn Dr. Dubin or Dr. McLaughlin regarding the use by Mrs. ()'Hare of Propulsid over a two and one-half year period or her use of Propulsid in combination with Biaxin; (0 Failing to have a system of checks and balances in place to assure that the drag Biaxin was not prescribed for Mrs. O'Hare since such use was contraindicated when used in combination with Propulsid; (g) Continuing to fill Mrs. O'Hare's prescription for Propulsid, and dispensing her prescription for Biaxin. 39. Defendant Rite Aid breached its duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Rite Aid for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. By: i!~ect fully submitted, Attorney ID No 19226 / 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 717-236-3141 Voice 717-236-0791 Fax Email: Lmilspaw~mblawfirm.com ATTORNEY FOR PLAINTIFFS 11 RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., tlOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED VERIFICATION I, the undersigned, hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 PA. Section 4904 relating to unsworn falsification to authorities. January 31, 2003 K. ROUNTREE 12 Luther E. Milspaw, Jr., Esquire Attorney I.D. No. 19226 130 State Stxeet Harrisburg, PA 17101 (717) 236-314t Voice (717) 236-0791 Fax LMilspaw~MBLawFirm.com A~orney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA : :CIVIL ACTION - LAW : :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on January 31,2003 a true and correct copy of the foregoing Complaint was served by means of regular United States mail, first class, postage prepaid, upon the following: Craig A. Stone, Esquire Mette Evans & Woodside 3401 N. Front Street Harrisburg, PA 17110 Attorney for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital January31,2003 Timothy McMahon, Esquire Marshall Dermehey Warner Coleman & Googin 4200 Crums Mill Road Harrisburg, PA 17110 Att°mey f°r De fendantLiitthii~Ed, iil~~~~nnsylvania' Inc' / 13 iN THE SUPREME COURT OF PENNSYLVANIA IN RE: Amendment of Rules of Civil Procedure Governing Venue No. 381 Civil Procedural Rules Docket No, 5 ORDER PER CURIAM: AND NOW this 27th day of January, 2003, Pennsylvania Rules of Civil Procedure 1006, 2130, 2156 and 2179 are amended to read as attached hereto. Whereas prior distribution and publication of these amendments would otherwise be required, it has been determined that immediate promulgation of the amendments is required in the interest of justice and efficient administration. This Order shall be processed in accordance with Pa.R.J.A. 103(b) and shall be effective immediately. NOTE: Bracketed material is deleted. New material is underscored. RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 4275-CV-2002-CV CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on thiskQ\c)x day of February, 2003, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: Luther E. Milspaw, Jr., Esquire Milspaw & Basehore 130 State Street Harrisburg, PA 17101 Attorney for Plaintiffs Craig Stone, Esquire Mette, Evans & Woodside 3401 North Front Street Harrisburg, PA 17110 Attorney for Jon A. Dubin, D.O. and Holy Spirit Health System t/a Holy Spirit Hospital Joann~X~'l. Parr RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 4275-CV-2002-CV JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED BRIEF OF DEFENDANT RITE AID OF PENNSYLVANIA, INC. IN SUPPORT OF PRELIMINARY OBJECTIONS TO VENUE I. Factual Background and Procedural History: Plaintiffs instituted this action by filing a Praecipe for a Writ of Summons on or about September 17, 2002. Thereafter, Plaintiffs filed their Complaint in this matter on January 31, 2003. Counsel for Moving Defendant Rite Aid of Pennsylvania, Inc. received Plaintiffs' Complaint in this matter on February 4, 2003. Thus, Rite Aid of Pennsylvania, Inc.'s Preliminary Objections pursuant to Pa.R.C.P. 1028(a)(1) and Pa.R.C.P. 1006 are timely within the applicable Rules. In their Complaint Plaintiffs allege that Plaintiffs' Decedent Phyllis O'Hare was under the care of, inter alia, Defendant Dr. Dubin and that Dr. Dubin provided certain medical attention, care and/or treatment to Plaintiffs' Decedent on September 11, 1998 at Holy Spirit Hospital in Cumberland County, Pennsylvania. Plaintiffs allege in their Complaint that they themselves are residents of Cumberland County, Pennsylvania. Plaintiffs also allege in their Complaint that Defendant Rite Aid of Pennsylvania, Inc. is headquartered in Cumberland County, Pennsylvania. Nowhere in Plaintiffs' Complaint is it alleged that any medical care and/or treatment was provided whatsoever to Plaintiffs' Decedent in Dauphin County, Pennsylvania. For the reasons set forth below, Defendant Rite Aid of Pennsylvania, Inc. respectfully .~nits that venue in this matter is properly transferred to the Court of Common Pleas of Cumberland County, Pennsylvania. II. Le2al Issue Presented: WHETHER VENUE SHOULD BE TRANSFERRED FROM THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY WHERE THE ALLEGATIONS OF MEDICAL NEGLIGENCE ARE ALLEGED TO HAVE OCCURRED ENTIRELY IN CUMBERLAND COUNTY AND NOT DAUPHIN COUNTY? Suggested Answer: In the Affirmative. III. Legal Argument: Venue should be transferred from the Court of Common Pleas of Dauphin County to the Court of Common Pleas of Cumberland County because the allegations of professional medical negligence are alleged to have occurred entirely in Cumberland County, Pennsylvania and not at all in Dauphin County, Pennsylvania. Venue of this matter must be transferred. On January 27, 2003, the Pennsylvania Supreme Court altered Rule of Civil Procedure 1006 (Venue. Change of Venue) by adding a section which provides as follows: Rule 1006 (Venue, Change of Venue) (a.1) Except as otherwise provided by subdivision (c), a medical professional liability action may be brought against a health care 2 The question of when the amendment to Rule 1006 becomes effective is conclusively answered by the Supreme Court's Order announcing the amendment. The Order states: PER CURIAM: AND NOW this 27* day of January, 2003, Pennsylvania Rules of Civil Procedure 1006, 2130, 2156 and 2179 are amended to read as attached hereto. Whereas prior distribution and publication of these amendments would otherwise be required, it has been determined that immediate promulgation of the amendments is required in the interest of justice and efficient administration. This Order shall be processed in accordance with Pa.R.J.A. 103(b) and shall be effective immediately. Order Amending Rule 1006, 1/27/03 (emphasis added). Given the highlighted language, it is clear that the amendment to Rule 1006 applies to all litigation pending on the date of the Order, January 27, 2003, regardless of when the litigation was filed. While plaintiff will likely argue that the amendment applies only to actions commenced on or after January 27, 2003, this argument is patently incorrect. Most importantly, Rule 52 of the Rules of Civil Procedure provides in pertinent part: (c) Unless the Supreme Court specifies otherwise, a rule or an amendment to a rule shall apply to actions pending on the effective date. Pa.R.C.P. 52(c) (emphasis added). Obviously, in this case, the Supreme Court did not "specitly] otherwise," that is, it did not state that the amendment does not apply to pending actions. Indeed, the Court specifically required "immediate promulgation" of the venue changes and declared that such changes "shall be effective immediately." Consequently, there can be no doubt that the venue changes apply to all actions pending on January 27, 2003, even if the actions were filed prior to the amendment's effective date. 4 Applying Rule 52(c), our appellate courts have repeatedly held that an amendment to a rule is applicable to any action that is still pending at the time of the amendment, regardless of when the action was filed. See Manzetti v. Mercy Hosl~. of Pittsbur~_,h, 776 A.2d 938, 945, n. 1 (Pa. 2001)(applying the amended summary judgment rule, Pa.R.C.P. 1035, to a case filed before the amendment and explaining: "As our rules of civil procedure state that an amended rule is applicable to all actions pending on the date on which the amendment becomes effective, it is the amended rule, rather than the rescinded rule, that is applicable to this matter. See Pa.R.C.P. Rule 52(c)."); Conner v. Munsey, 620 A.2d 1103, 1105 (Pa. 1993)("New Rule 238... is to be applied to all cases still pending on appeal as of November 7, 1988, the date of the new Rule's adoption."). Of course, a "pending" action is one in which a final resolution has not yet been made; a case remains pending until all appeals have been exhausted. Blacks Law Dictionary (6th ed. 1990), p. 1134 ("[A]n action or suit is 'pending' from its inception until the rendition of final judgment."). As a result, an amendment to a rule will be applied even to a case that is on appeal when the amendment becomes effective. See e.g., Conner, supra; Calibeo v. Calibeo, 663 A.2d 184, 187 (Pa. Super. 1995 ("Because the amended Rules discussed above became effective while the present appeal was pending, they are applicable to the case before us."); Ceresini v. Valley View Trailer Park, 552 A.2d 258 (Pa. Super. 1988)("The Supreme Court has not directed otherwise and new Rule 238 applies to actions pending before us on the effective date of the Rule."). Rule 52(c) and the above case law establish that the amendments to Rule 1006 apply to all currently pending actions. Yet other factors also indicate that this result is proper. First, on the same day that it issued the aforementioned Order amending Rule 1006, the Supreme Court issued a companion Order amending roles regarding the filing of professional liability actions. This Order concluded as follows: "This Order shall be processed in accordance with Pa.R.J.A. 103(b) and shall be effective immediately. The new and amended rules shall be applicable to actions commencer on or after the effective date of this Order." Order Amending Rules 229, 1026, 1042, and 4007.2, 1/27/03 (emphasis added). This statement clearly reveals the Supreme Court's intent that the professional liability amendments (unlike the venue amendment) will apply only to newly-filed actions, not to pending actions. Obviously then, if the Supreme Court had intended to make the amendment to Rule 1006 apply only to causes of action filed on or after the effective date, it could have and would have done so. The fact that it declined to do so, while issuing a companion Order with contrary language, again establishes that the Supreme Court intended the venue amendments to apply immediately to all pending actions. To remove any doubt concerning its intent, the Supreme Court's Order declared that "immediate promulgation" of the venue amendment is necessary to serve "the interest of justice and efficient administration." Order, 1/27/03. The urgency of this language obviously reflects the Supreme Court's concern with the severity of the current medical malpractice insurance crisis. In fact, the Court's concern was so great that it bypassed the usual comment period for new procedural rules. This urgency once again establishes that the amendment to Rule 1006 must be deemed to apply immediately to all pending actions. The object in interpreting rules of civil procedure is to "ascertain and effectuate the intention of the Supreme Court." Pa.R.C.P. 127(a). Among the factors to be considered in determining the Court's intent are "the occasion and necessity for the rule" and "the circumstances under which it was promulgated." Pa.R.C.P. 127(c)(1) and (2). Here, as noted, the obvious intent of the amendment to Rule 1006 is to address the severity of the current 6 medical malpractice insurance crisis. This intent would be frustrated if, despite the Supreme Court's clear language, the amendment to Rule 1006 is not applied to pending litigation. The Supreme Court did not intend such an unreasonable result. See Pa.R.C.P. 128 ("IT]he Supreme Court does not intend a result that is absurd, impossible of execution or unreasonable."). Finally, it is necessary to reconcile the Court's Order with recently-enacted legislation also providing that medical malpractice actions must be filed in the county in which they arose. See 42 Pa.C.S.A. 5101.1 (Venue in medical professional liability actions)("(b) A medical professional liability action may be brought against a health care provider for a medical professional liability claim only in the county in which the cause of action arose."). Under its express language, §5101.1 applied only to actions filed on or after its effective date, December 16, 2002.3 This statutory language, however, has no bearing on the fact that the Supreme Court's amendment to Rule 1006 applies to all pending litigation. First, the legislation specifically stated that it applies to causes of action filed on or after the effective date. See S.B. 138, §5 ("The amendment or addition of 42 Pa.C.S sections 931(c) and 5101.1 shall apply to all medical professional liability actions filed on or after the effective date of this section."). The Supreme Court was obviously aware of this statutory language and, if it wanted the amendment to Rule 1006 to apply in a similar fashion, it would have said so. Instead, it declared that the amendment became effective immediately. More importantly, the Supreme Court has entirely independent authority to establish and modify venue rules. The Pennsylvania Constitution specifically provides that "the power to 3 Under its express language, the new statute, formerly designated Senate Bill 138, became effective 60 days alter it was signed by the Governor on October 17, 2002. See S.B. 138, Section 6 ("The remainder of this act shall take effect in 60 days."). The statute provided that it applied to actions filed on or after the effective date, December 16, 2002. Id., §5. change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law." Article III, §23, Pennsylvania Constitution (emphasis added). As a result, regardless of whether the Legislature has concurrent authority to modify venue, the Supreme Court's authority to do so stems directly from the Constitution. As a result, the Supreme Court's Order of January 27th, 2003 stands apart from §5101.1.4 For the reasons set forth above, venue in this matter is not proper in Dauphin County, Pennsylvania and accordingly this action should properly be transferred to the Court of Common Pleas of Cumberland County, Pennsylvania. DATE: BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLIC)VIAl, ~ pOGGII~ 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant, Rite Aid of Pennsylvania, Inc. 4 Aside from the Supreme Court's undeniable authority under the Constitution to make rules affecting venue, the General Assembly has also granted the Supreme Court general supervisory and administrative authority over the unified judicial system and also granted the Court certain enumerated powers to effect this authority. 42 Pa.C.S.A. § 1701. One of the Court's powers is the power to prescribe and modify general rules governing the practice, procedure and conduct of all courts. 42 Pa.C.S.A. § 1722(a). Thus, the Rules of Civil Procedure promulgated by the Supreme Court have the fome of a statute. Dombrowski v. City of Philadelphia, 245 A.2d 238, 241 n.4 (Pa. 1968). Therefore, the Rules of Civil Procedure bind the courts of the unified judicial system and those who practice and appear before it. Since Amended Rule 1006 is a rule duly promulgated by the Supreme Court under the authority granted to it by the General Assembly, the rule is binding on all Pennsylvania courts and the parties in cases pending in those courts. For this reason as well, Amended Rule 1006 clearly applies to this case. 8 RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O~Iare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 4275-CV-2002-CV CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this C~\~'~ day of February, 2003, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: Luther E. Milspaw, Jr., Esquire Milspaw & Basehore 130 State Street Harrisburg, PA 17101 Attorney for Plaintiffs Craig Stone, Esquire Mette, Evans & Woodside 3401 North Front Street Harrisburg, PA 171 I0 Attorney for don A. Dubin, D.O. and Holy Spirit Health System t/a Holy Spirit Hospital Joa~ M. Parr RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID of PENNSYLVANIA, INC., Defendants :IN THE COURT OF COMMON PLEAS OF ;DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW . :NO. 4275.CV-2002-CV : ;JURY TRIAL DEMANDED ORDER AND NOW, this~O day of August, 2003, and pursuant to the Order entered by this Court on July 1, 2003, a copy of which is attached, IT IS HEREBY ORDERED that the Prothonotary of Dauphin County is directed to transfer the record in this matter to the Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania. BY THE COURT: 7 #20 May 2003 Argument Court RODNEY K. and JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O.; HOLY SPIRIT HEALTH SYSTEM, t/a HOLY SPIRIT HOSPITAL; and RITE AID OF PENNSYLVANIA, INC., Defendants ORDER IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 4275 CV 2002 AND NOW, this 1st day of July, 2003, pursuant to the stipulation presented to this Court, IT IS HEREBY ORDERED that the Prelim±nary Objections of Defendants, Jon Dub±n, Holy Spirit Hospital and Rite Aid of Pennsylvania, regarding the change ±n venue are GRANTED, Therefore, this case shall be transferred to the Court of Common P~eas of Cumberland County, Pennsylvania. BY THE COURT: Judge DISTRIBUTION: Luther E. Milspaw, Jr., Esquire, 130 State Street, Harrisburg, PA 17101 Craig Stone, Esquire, and Kathryn L. Simpson, Esquire, 3401N. Front St. Harrisburg, PA 17110 Timothy J. UcMahon, 4200 Crums Mill Road, Suite B. Harrisburg, PA 17108 Argument Court Attorneys FILE 2 Stephen E. Farina Prothonotary OFFICE OF County of Dauphin 03- Front & Market Streets Harrisburg, PA 17101 (717) 780-6520 REO~'~v, i~ Curtis R Long, Prothonotary Cumberland County Court House Hanover & High Streets Carlisle, Pa 17013 AUG 29, 2003 IN RE: Rodney K & Jay P Rountree etal Vs John A Dubin, D.O. etal Dauphin County Dkt No 2002 CV 4275 CV Cumberland County Dkt No. Dear Sir/Madam: By Order of Aug 25, 2003 by Hon Lawrence F. Clark, Jr., Judge The above matter has been transferred to the Court of Common Please of Cumberland County. I am, accordingly, sending originals of all the papers herewith. I Will appreciate the return of the attached receipt address to the Attention: of Ms. Lisandra Garcia. Very truly yours, Stephen E. Farina Prothonotary Stephen E. Farina Prothonotary OFFICE OF ¥ AoTHONOTARy County of Dauphin Front & Market Streets Harrisburg, PA 17101 (717) 780-6520 Curtis R Long, Prothonotary Cumberland County Court House Hanover & High Streets Carlisle, Pa 17013 AUG 29, 2003 1N RE: Rodney K & Jay P Rountree etal Vs John A Dubin, D.O. etal Dauphin County Dkt No 2002 CV 4275 CV Cumberland County Dkt No. Dear Sir/Madam: By Order of Aug 25, 2003 by Hon Lawrence F. Clark, Jr., Judge The above matter has been transferred to the Court of Common Please of Cumberland County. I am, accordingly, sending originals of all the papers herewith. I Will appreciate the return of the attached receipt address to the Attention: of Ms. Lisandra Garcia. Very truly yours, Stephen E. Farina Prothonotary Luther E. Milspaw, Jr., Esquire Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilsoaw(&MBLawFirm. corn Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA : :CIVIL ACTION - LAW : JONA. DUBIN, D.O., HOLY SPIRIT HEALTH : SYSTEM ifa HOLY SPIRIT HOSPITAL :JURY TR/AL DEMANDED and RITE AID CORPORATION, t/a RITE AID : PHARMACY, : Defendants : TO THE PROTHONOTARY: WRIT OF SUMMONS Please issue Writ of Summons in the above captioned action. Writ of Summons shall be issued and forwarded to ( X ) Attorney ( ) Sheriff Luther E. Milspaw, Jr., Esquire 130 State Street Harrisburg, PA 17101 (717) 236-3141 Supreme Ct. ID NO. 19226 Date: July 31, 2002 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PL .t4~NTIFF HAS~ COMMENCED AN ACTION AGAINST YOU. X..~'/~OC'~/~n ~7~t~) /' i i '~. i~, ' Date: IEP 1 7 21102 ¢-' t Prothonotary Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Conunonwealth of Pennsylvania County of Dauphin Sheriff's Return No.4275-CV - - -2002 AND NOW:October 7, WRIT OF SUMMONS DUBIN JON A DO (CUMBERLAND CO) to 2002 GWYN BINNER, ADMIN. SECRETARY at 12:20PM served the within upon by personally handing 1 true attested copy(les) of the original WRIT OF SUMMONS and making known to him/her the contents thereof at HOLY SPIRIT HEALTH SYSTEM 503 N. 21ST ST CAMP HILL, PA 17011-0000 So Answers, Sheriff of Dauphin County, Pa. Plaintiff: ROUNTREE RODNEY K & JAY P CO-ADMIN OF THE ESTATE OF PHYLLIS OHARE DECEASED Sheriff's Costs:S86.00 PD 10/02/2002 RCPT NO 169956 Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 P, tx: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Riaehart Assistant Chief Deputy Commonwealth of Pennsylvania County of Dauphin Sheriff' s Return No. 4275-CV - - -2002 AND NoW:October 7, 2002 WRIT OF SUMMONS HOLY SPIRIT HEALTH SYSTEM T/A HOLY SPIRIT HOSPITAL (CUMBERLAND CO) to GWYN BINNER, ADMIN. SECRETARY of the original WRIT OF SUMMONS to him/her the contents thereof at 503 N. 21ST ST CAMP HILL, PA at 12:20PM served the within upon by personally handing i true attested copy(les) and making known 17011-0000 So Answers, Sheriff of Dauphin County, Pa. Plaintiff: ROUNTREE RODNEY K & JAY P CO-ADMIN OF THE ESTATE OF PHYLLIS OHARE DECEASED Sheriff's Costs:S86.00 PD 10/02/2002 RCPT NO 169956 SHERIFF'S RETURN - CASE NO: 2002-00654 T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROUNTREE RODNEY K ET AL VS DUBIN JON A ET AL REGULAR JASON VIOP~AL , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon HOLY SPIRIT HEALTH SYSTEM T/A HOLY SPIRIT HOSPITAL the 0012:20 HOURS, on the 7th day of October 2002 DEFENDANT at at 503 N 21ST ST C~4P HILL, PA 17011 GWYN BINIqER (ADMIN. by handing SECT) a true and attested copy of WRIT OF SUMMONS to together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6 Service Affidavit 1 Surcharge 00 00 00 00 00 00 So Answers: 10/08/2002 LUTHER E. MILSPAW, By: JR. ty Sheriff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 J.R. Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Plaintiff RODNEY ti2 & .]AY P. ROUNTREE CO- ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE DECEASED VS Defendant HOLY SPIRIT HEAL TH SYSTEM T/A HOLY SPIRIT HOSPITAL No. 4275 CV2002 And Now; October 2, 2002 I, hereby Deputize the Sheriff of CUMBERLAND County, Pennsylvania, to serve the within WRIT OF SUMMONS llpon HOLY SPIRIT HEALTH SYSTEM T/A HOLY SPIRIT HOSPITAL HOLY SPIRIT HEAL TH SYSTEM 503 N. 21sr ST CAMP HILL, PA 17011 According to Law. So Answers Copies: 1 Advanced Costs: $100. O0 J.R. Lotwick, Sheriff of Dauphin County, Pa. (K1NDL Y RETURN THIS DEPUT1ZA TION WITH YOUR RETURN OF SERVICE) RETURN Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255~2660 fax: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assis~mt Chief Deputy Commonwealth of Pennsylvnnia County of Dauphin Sheriff' s Return No. 4275-CV - -2002 AND NOW:October 7, WRIT OF SUF~MONS RITE AID CORPORATION T/A RITE AID P}~%RMACY (CUMBERLAND CO) to MELANIE ANDREWS, LEGAL DEPT. of the original WRIT OF SUMMONS to him/her the contents thereof at 30 HUNTER LANE CAMP HILL, PA 2002 at 12:14PM served the within upon by personally handing 1 true attested copy(les) and making known 17011-0000 SO Answers, Sheriff of Dauphin County, Pa. Plaintiff: ROUNTREE RODNEY K & JAY P CO-ADMIN OF THE ESTATE OF PHYLLIS OHARE DECEASED Sheriff's Costs:S86.00 PD 10/02/2002 RCPT NO 169956 SHERIFF'S RETURN - REGULAR CASE NO: 2002-00654 T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROUNTREE RODNEY K ET AL VS DUBIN JON A ET AL JASON VIOP~AL , Cumberland County,Pennsylvania, who being duly says, the within WRIT OF SUMMONS was RITE AID CORPORATION T/A RITE AID PHARMACY DEFENDANT , at 0012:14 HOURS, on the at 30 HUNTER LANE CAMP HILL, PA 17011 MELANIE ANDREWS (LEGAL DEPT) a true and attested copy of WRIT OF SUMMONS Sheriff or Deputy Sheriff of sworn according to law, served upon the 7th day of October , together with by handing to 2002 and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.35 Affidavit 2.50 Surcharge .00 .00 30.85 Sworn and ~b~scribed to before me this ~lTIl'~day-- of No~ ........... So Answers: R. Thomas Kline 10/08/2002 LUTHER E. MILSPAW, JR. By: Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 J.R. Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Plaintiff RODNEY K. & JAY P. ROUNTREE CO- ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE DECEASED V8 Defendant RITE AID CORPORATION T/A RITE AID PHARMACY No. 4275 cv2002 And Now; October 2, 2002 I, hereby Deputize the Sheriff of CUMBERLAND Collnty, Pennsylvania, to serve the within WRIT OF SUMMONS upon RITE AID CORPORA TION T/A RITE AID PHARMACY at 30 HUNTER LANE CAMP HILL, PA 17011 According to Law. So Answers Copies: 1 Advanced Costs: $I00~00 J.R. Lotwick, Sheriff of Dauphin County, Pa. {KINDLY RETURN THIS DEPUTIZATION WITH YOUR RETURN OF SERVICE) RETURN Sheriff ROUNTREE RODNEY K & JAY P CO-ADMIN OF tTHE ESTATE OF PHYLLIS OHARE DECEASED VS. DUBIN JON A DO (CUMBERLAND CO) HOLY SPIRIT HEALTH SYSTEM 503 N. 21ST ST  CA~4P HILL, PA 17011 (01 COPY) HOLY SPIRIT HF.~&TH SYSTEM T/A HOLY SPIRIT }{OSPITAL (CLrMBERLAI~ID CO) 503 N. 21ST ST CD~4P HILL, PA 17011 (01 COPY) JRITE AI~ CORPORATION T/A RITE AID ~ m,~y ( CO~mERna~D CO) 0 HUNTER LANE CAMP HILL, PA 17011 (01 COPY) No. 427S-CV - - -2002 WHIT OF SI3]~MONS Directions to Sheriff of Dauphin County, PA 10/2/02 CUMBERLAI~D CO. $100.00 MILSPAW LUTHER,JR 130 STATE ST, E.O.BOX 946 HBG, PA 17108 236-0781 RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID CORPORATION, t/a RITE AID PHARMACY, Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA : :CIVIL ACTION ~ LAW :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED INSTRUCTIONS TO THE SHERIFF OF DAUPHIN COUNTY TO THE SHERIFF: Enclosed please find a $46.00 check for your services and a $100.00 check to be forwarded to the Sheriffof Cumberland County, Pennsylvania. Please deputize the Sheriffof Cumberland County to serve the enclosed Writs of Summons herein on the following: Jon A.Dubin, D.O. Holy Spirit Health System 503 N. 21st Street Camp Hill, PA 17011 Holy Spirit Health System tIa Holy Spirit Hospital 503 N. 21st Street Camp Hill, PA 17011 Rite Aid Corporation t/a Rite Aid Pharmacy 30 Hunter Lane Camp Hill, PA 17011 Please advise us when service has been made. October 1, 2002 BY (717) 236-3141; FAX (717) 236~0791 Email: Lmilsp aw(&mblawfirm.com Attorney for Plaintiffs \05_A\LIAB\TJMLLLP G\107366XJMFX15000~50000 RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID CORPORATION tJa RITE AID PHARMACY, Defendants IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 4275-CV-2002-CV CIVIL ACTION - LAW JURY TRIAL DEMANDED -! STIPULATION TO AMEND CAPTION O~ It is hereby stipulated by and between Plaintiff and Defendant Rite Aid of Pennsylvania, Inc. that the caption in this matter is amended. References to Rite Aid Corporation t/a Rite Aid Pharmacy are hereby withdrawn and replaced with Rite Aid of Pennsylvania, Inc. Timoth~J~.'e'''- , Esquire AL~tt?ir;SM?l;/PaaW, Jr., s- AR::°er.~T fo~r?De;fnes~'dlvaantn_~a, Inc. RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. o,275-CV-2002-CV CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this ~'A~ day of October, 2002, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: Luther E. Milspaw, Jr., Esquire Milspaw & Basehore 130 State Street Harrisburg, PA 17101 Attorney for Plaintiff~ Luther E. Milspaw, Jr., Esquire Milspaw & Basehore 130 State Street Harrisburg, PA 17101 Attorney for Holy Spirit Hospital \05_A\LIAB\TJM\LLPG\107366~JMFM 5000~50000 RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaimiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE Ail) CORPORATION tJa RITE AID PHARMACY, Defendants IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 4275-CV-2002-CV CIVIL ACTION - LAW JURY TRIAL DEMANDED STIPULATION TO AMEND CAPTION It is hereby stipulated by and between Plaintiff and Defendant Rite Aid of Pennsylvania, ]nc. that the caption in this matter is mended. References to Rite Aid Corporation t/a Rite Aid Pharmacy are hereby withdrawn and replaced with Rite Aid of Pennsylvania, ]nc. Luther~.~' paw s Tim°th~J~"~i~' Esquire Attorney for Defendant, Rite ,,lid of Pennsylvania, Inc. Date: 8/29/2003 Time: 02:09 PM Page 1 of 2 Dauphin County ROA Report Case: 2002-CV-4275-CV Current Judge: No Judge User: LGARCIA Date 9/17/2002 10/7/2002 10/31/2002 1/31/2003 2/13/2003 2/19/2003 2/24/2003 3/28/2003 4/2/2003 7/1/2003 8/4/2003 8/25/2003 8/29/2003 New Civil Case Filed This Date. Filing: Writ of Summons Paid by: Milspaw, Luther E Jr (attorney for Rountree, Jay P) Receipt number: 0020084 Dated: 9/17/2002 Amount: $90.00 (Check) Judge No Judge No Judge Served Writ of Summons upon Defendant(s) Jan a Dubin Do (Cumberland No Judge Co) Holy Spirit Health System t/a Holy Spirit Hospital (Cumberland Co) and Rite Aid Corporation tJa Rite Aid Pharmacy (Cumberland Co) So Answers, J.R. Lotwick, Sheriff. Paid $86.00 Stipulation to Amend Caption, filed No Judge Complaint, filed No Judge STIPULATION TO AMEND CAPTION APPRVED BY THE COURT. Jeannine Turgeon See STIPULATION TO AMEND CAPTION filed. Copies mailed 2-14-03. Copy to atty 2-f 9-03. Preliminary objections to plaintiffs' complaint of defendants Dubin and Holy No Judge Spirit Hospital, filed Brief in support of preliminary objections of Jan A. Dubin, D.O. and Holy No Judge Spirit Hospital, filed Preliminary objections of defendant Rite Aid of Pennsylvania, Inc. to No Judge plaintiffs' complaint, filed Brief of defendant Rite Aid of Pennsylvania, Inc. in support of preliminary No Judge objections to venue, filed Praecipe to List for Argument, filed by defendant. No Judge Praecipe to List for Argument, filed by counsel for defendants, Holy Spirit No Judge Hospital and Jan A Dubin, DO, filed. Pursuant to the stipulation presented to this Court, It is hereby ordered that Lawrence F. Clark Jr. the Pliminary Objections of Defendants, Jan Dublin, Holy Spirit Hospital and Rite Aid of Pennsylvania, regarding the change in venue are Granted. Therefore, this case shall be transferred to the Court of Common Pleas of Cumberland County, Pennsylvania. Copies dist 7-10-03 Mette, Evans & Woodside, by: Craig A. Stone, Esq. withdraws appearance No Judge on behalf of defendants Jan A. Dubin, D.O. and Holy Spirit Hospital. Miller and Miller, by: G. Thomas Miller, Esq. and Thomas R. Miller, Esq. No Judge enters appearance on behalf of defendants Jan A. Dubin, D.O. and Holy Spirit Hospital. Defendant: Dubin, Jan A Attorney of Record: G Thomas Miller No Judge Defendant: Dubin, Jan A Attorney of Record: Thomas R Miller No Judge Defendant: Holy Spirit Hospital Attorney of Record: G Thomas Miller No Judge Defendant: Holy Spirit Hospital Attorney of Record: Thomas R Miller No Judge Pursuant to the Order enteerd by this Court on Jly 1, 2003, a copy of which Lawrence F. Clark Jr. is attached. IT IS HEREBY ORDERED that the Prothonotary of Dauphin County is directed to transfer the record in this matter to the Prothonotary of the Court of Common Pleas of Cumberland County, Pa. See Order filed copies dist 8/28/03 The above action transferred to the Court of Common Pleas of Cumberland No Judge County. Date: 8/29/2003 Time: 02:09 PM Page 2 of 2 Dauphin County ROA Report Case: 2002-CV-4275-CV Current Judge: No Judge Civil User: LGARCIA Date 8/29/2003 .... NO MORE ENTRIES CASE TRANSFERRED**** TO MIDDLE DISTRICT COURT Judge No Judge I h. r,~;~ ..,.h.,.¢ ,~,, thc-.;~2omg is a filed. \05_A\LIAB\TJM\LLPG\I 35133XJMF\I 8155\00273 RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5043 - CIVIL TERM CIVIL ACTION - LAW JURY TRL~.L DEMANDED NOTICE TO PLEAD TO: Plaintiffs, Rodney K. and J.P. Rountree c/o Luther E. Milspaw, Jr., Esquire Milspaw & Basehore 130 State Street Hamsburg, PA 17101 You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be filed against you. DATE: OC"~-' lO, ~(..~3 BY: Respectfully submitted, MARSH.4&L, DENNEHEY, WARNER, COLEMAN & GOGGIN TIMOm!?' S.(~Icl~2t)~IOS, ESQUIRE I.D. No. 5291g' '" 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney fi>r Rite Aid of Pennsylvania, Inc. RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, 1NC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5043 - CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT RITE AID OF PENNSYLVANIA~ INC. TO PLAINTIFFS' COMPLAINT 1. Admitted in part; denied in part. It is admitted only that Plaintiffs are who they say they are. All remaining allegations of this Paragraph are denied by Rite Aid of Pennsylvania, Inc. who after investigation and inquiry lacks information sufficient to form a belief as to the truth thereof. 2. Denied. The allegations set forth in this Paragraph are directed to Defendants other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further response is deemed necessary on behalf of Rite Aid of Pennsylvania, Inc., the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(c) and/or Pa.R.C.P. 1029(e), as applicable. 3. Denied. The allegations set forth irt this Paragraph are directed to Defendants other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further response is deemed necessary on behalf of Rite Aid of Pennsylvania, Inc., the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(c) and/or Pa.R.C.P. 1029(e), as applicable. 4. Admitted. 5. Denied. The allegations set forth in this Paragraph constitute conclusions of law which are denied in accordance with Pa.R.C.P. 1029(e). 6. Admitted in part; denied in part. It is admitted only that Decedent Mrs. O'Hare had certain prescriptions for Propulsid filled at a Rite Aid pharmacy in Cumberland County, Pennsylvania prior to her death. All remaining allegations set forth in this Paragraph are denied pursuant to Pa.R.C.P. 1029(e). 7. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 8. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 9. Denied. The allegations set forth in this. Paragraph constitute conclusions of law within the meamng ofPa. R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 10. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and according][y these allegations are denied and proof thereof is demanded at trial, if relevant. 11. Denied. The allegations set forth in~ this Paragraph are directed to Defendants other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further response i~ deemed necessary on behalf of Rite Aid of Pennsylvania, Inc., the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(c) and/or Pa.R.C.P. 1029(e), as applicable. 12. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 13. Admitted in part; denied in part. It is admitted only that Decedent Mrs. O'Hare had certain prescriptions for Propulsid filled at a Rite Aid pharmacy located in Cumberland County, Pennsylvania between January 1996 and August 1998 as alleged, and further admitted that Decedent's prescription for Biaxin was :filled on or about September 11, 1998 at a Rite Aid pharmacy in Cumberland County, Pennsylvania as alleged. All remaining allegations of this Paragraph are denied as conclusions of law within the meaning of Pa.R.C.P. 1029(e) and to which no further responsive pleading is required and accordingly proof thereof is demanded at trial, if relevant. 14. Denied. The allegations set forth in this. Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 15. Denied. The allegations set forth in this; Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 16. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 17. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 18. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. COUNT I PLAINTIFFS v. JON A DUBIN, D.O. 19. Defendant Rite Aid of Pennsylvania, In,:. incorporates by reference its responses to Paragraphs 1 through 18 above as if set forth at length herein. 20. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 21. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 22. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is de~nanded at trial, if relevant. 23. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 24. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is de:manded at trial, if relevant. 25. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 26. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Peimsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. WHEREFORE, Defendant Rite Aid of Pennsylvania, Inc. demands judgment in its favor and against Plaintiffs together with such other relief as this Court shall deem appropriate. COUNT II PLAINTIFFS v. HOLY SPIRIT HOSPITAL 27. Defendant Rite Aid of Pennsylvania, Inc. incorporates by reference its responses to Paragraphs 1 through 26 above as if set forth at length herein. 28. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 29. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 30. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph arc denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 31. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. WHEREFORE, Defendant Rite Aid of Pennsylvania, Inc. demands judgment in its favor and against Plaintiffs together with such other relief as this Court shall deem appropriate. COUNT III PLAINTIFFS v. HOLY SPIRIT HOSPITAL 32. Defendant Rite Aid of Pennsylvania, Inc. incorporates by reference its responses to Paragraphs 1 through 31 above as if set forth at length herein. 33. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 34. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 35. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is de~nanded at trial, if relevant. WHEREFORE, Defendant Rite Aid of Pennsylvania, Inc. demands judgment in its favor and against Plaintiffs together with such other relief as this Com:t shall deem appropriate. COUNT IV PLAINTIFFS v. RITE AID OF PENNSYLVANIA~ INC. 36. Defendant Rite of Aid of Pennsylvania, Inc. incorporates by reference its responses to Paragraphs 1 through 35 above as if set forth at length herein. 37. Admitted in part; denied in part. It is admitted only that Decedent Mrs. O'Hare had certain prescriptions for Propulsid filled at a Rite Aid pharmacy located in Cumberland County, Pennsylvania between January 1996 m~d August 1998 as alleged, and further admitted that Decedent's prescription for Biaxin was filled on or about September 11, 1998 at a Rite Aid pharmacy in Cumberland County, Pennsylvania as alleged. All remaining allegations of this Paragraph are denied as conclusions of law within the meaning of Pa.R.C.P. 1029(e) and to which no further responsive pleading is required and accordingly proof thereof is demanded at trial, if relevant. 38. Denied. The allegations of negligence set forth in this Paragraph, together with its subparagraphs (a) through (g) are denied as conclusions of law within the meaning of Pa.R.C.P. 1029(e). By way of further answer, all allegations of negligence as set forth in this Paragraph together with its subparagraphs (a) through (g) are denied and proof thereof is demanded at trial, if relevant. 39. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly are denied. By way of further answer, and to the extent that any further response is deemed necessary to these allegations, all allegations set forth in this Paragraph are denied and proof thereof is demanded at trial, if relevant. WHEREFORE, Defendant Rite Aid of Pennsylvania, Inc. demands judgment in its favor and against Plaintiffs together with such other relief as this Com:t shall deem appropriate. NEW MATTER DIRECTED TO PLAINTIFFS 40. No act or omission on the part of Defendant Rite Aid of Pennsylvania, Inc. was a substantial contributing factor in bringing about Plaintiffs' injuries and/or damages, all such injuries and/or damages being expressly denied. 41. The cause and/or causes of action alleged in Plaintiffs' Complaint are barred by the applicable Statute of Limitations. 42. Defendant Rite Aid of Pennsylvania, Inc. neither owed nor breached any duty of care owed to Plaintiffs' Decedent under the circumstances pleaded in Plaintiffs' Complaint. 43. Plaintiffs' injures and/or damages, all such injuries and/or damages being expressly denied, were cause in whole or in part by persons and/or entities over whom Defendant Rite Aid of Pennsylvania, Inc. had neither control nor right of control as a matter of law. 44. Plaintiffs' Complaint fails to state a cause of action as against Rite Aid of Pennsylvania, Inc. upon which relief may be granted as a matter of law. 45. The allegations set forth in Paragraph 15 of Plaintiffs' Complaint regarding Plaintiffs' alleged lack of awareness and/or knowledge of the reasons for the death of their mother until September 2000 are legally insufficient to toll the expiration of the applicable Statute of Limitations as a matter of law. 46. Plaintiffs' Decedent expired on September 19, 1998, as is alleged in Paragraph 12 of Plaintiffs' Complaint; Plaintiffs instituted this cause of action by filing a Praecipe for a Writ of Summons on September 17, 2002 and thus Plaintiffs' claims are time barred as a matter o flaw. WHEREFORE, Defendant Rite Aid of Pennsylvania, h~c. demands judgment in its favor and against Plaintiffs together with such other relief as this Court shall deem appropriate. BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant, Rite Aid of Pennsylvania, Inc. \05_A\LIA B\TJ M\LLPG\t 35131XJMF\I 8155\00273 VERIFICATION I hereby affirm that the following facts are correct: Rite Aid of Pennsylvania, Inc. is a Defendant in the foregoing action and I am authorized to execut. Verification on their behalf. The attached Answer with New Matter to Plaintiffs' Complaint is based information which has been gathered by my counsel in the defense of this lawsuit. The language of the A~ with New Matter to Plaintiffs' Complaint is that of counsel and not of' me. I have read the Answer, and extent that the responses are based upon information which I have given to my counsel, they are tree and c to the best of my knowledge, information and belief. To the extent that the contents of the responses are counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set f the aforesaid responses are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to un,, falsification to authorities. DATE: BY: Dc r~. d~findisi~' Title: PDM Rite Aid of Pennsylvania, Inc. : this upon swer ~ the ,rrect tat of 'th in worn RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT : HEALTH SYSTEM t/a HOLY SPIRIT : HOSPITAL and RITE AID OF : PENNSYLVANIA, INC., : Defendants : : 1N THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, pENNSYLVANIA NO. 03-5043 - CIVIL TERM CWIL ACI'ION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joarme M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this \~ day of October, 2003, served a copy of the foregoing Answer with New Matter to Plaintiffs' Complaint via First Class United States mail, postage prepaid as follows: Luther E. Milspaw, Jr., Esquire Milspaw & Basehore 130 State Street Harrisburg, PA 17101 G. Thomas Miller, Esquire Miller & Ivliller 401 South 32nd Street Camp Hill, PA 17011 AttorneyJbr don A. Dubin, D.O. and Holy Spirit Health System (~anne M. Parr Luther E. Milspaw, Jr., Esquire Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilspaw(&MBLawFirm. com Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID of PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLg~ND COUNTY, PENNSYLVANI CIVIL ACTION - LAW NO. 03-5043-CIVIL TERM Jury Trial Demanded REPLY TO NEW MATTER AND NOW come Plaintiffs by their attorney, Luther E. Milspaw, Jr., Esquire, and reply to the New Matter of Defendant Rite Aid of Pennsylvania, Inc. as follows: 40.- 46. Denied. The allegations set forth in these paragraphs constitute conclusions of law within the meaning of Pa. R.C.P. 1029(e) and accordingly, these allegations are denied and proof thereo is demanded at trial, if relevant. To the extent that any further response is deemed necessary, after reasonable investigation, the Plaintiffs are without knowledge and information sufficient to form a belie as to the truth of the averments. Further, the Verification to Defendant's pleading fails to conform to Rule 1024 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. 1024. WHEREFORE, Plaintiffs demand that the New Matter of Defendant Rite Aid of Pennsylvania, Inc., b{ dismissed, and judgment be entered in Plaintiffs' favor. October 22, 2003 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 717-236-3141 Voice, 717-236-0791 Fax Emil: Lmil spaw~mblawfirm.com ATTORNEY FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that on October 22, 2003 a true and correct copy of the foregoing Answer to New Matter was served by means of regular United States mail, first class, postage prepaid, upon the following: Timothy McMahon, Esquire Marshall Dennehey Wamer Coleman & Googin 4200 Crums Mill Road Harrisburg, PA 17110 Attorney for Defendant Rite Aid of Permsylvania, Inc. Thomas R. Miller, Esquire Miller and Miller 401 South 32na Street Camp Hill, PA 17011 Elizabeth M. Patterson, Paralegal to Luther E. Milspaw, Jr., Esq. 2 Miller and Miller G. Thomas Miller, Esquire Attorney ID No. 07219 Thomas R. Miller, Esquire Attorney ID No. 49801 401 South 32~ Street Camp Hill, PA 17011-5105 RODNEY K. and JAY Co-Administrators of ti of PHYLLIS O'HARE JON A. DUBIN, D.O. HEALTH SYSTEM, t/; HOSPITAL, and RITE PENNSYLVANIA, TO: October 23, 2003 Rodney O'Hare, You are days from servi, Attorneys for Defendants Jon A. Dubm, D.O. and Holy Spirit Hospital ~. ROUNTREE, e Estate deceased, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ~IOLY SPIRIT · HOLY SPIRIT AID OF ~., Defendants : No. 2003-05043 : CIVIL ACTION - LAW NOTICE TO PLEAD ~. and Jay P. Rountree, co-Administrators of the Estate of Phyllis Deceased and Luther E. Milspaw, Jr., Esquire, their attorney hereby notified to plead to the enclosed New Matter within twenty (20) :e hereof, or suffer the entry of a default judgment against you. MILLER and MILLER Miller and Miller G. Thomas Miller, Esquire Attorney 1D No. 07219 Thomas R. Miller, Esquire Attorney ID No. 49801 401 South 32"a Street Camp Hill, PA 17011-5105 RODNEY K. and JAY ] Co-Administrators of th of PHYLLIS O'HARE JON A. DUBIN, D.O. HEALTH SYSTEM, t/~ HOSPITAL, and RITE PENNSYLVANIA, IN~ 1. Admitte 2. It is adh and emergency medici~ of Defendant Holy Spi] Pa. RCP 1029(e). 3. Admitt¢ 4. The alle Holy Spirit Health Sys response. Attorneys for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital ~. ROUNTREE, ~ Estate deceased, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA tOLY SPIRIT HOLY SPIRIT AID OF Defendants No. 2003-05043 : CIVIL ACTION - LAW ANSWER WITH NEW MATTER OF DEFENDANTS JON A. DUBIN, D.O. AND HOLY SPIRIT HEATH SYSTEM t/a HOLY SPIRIT HOSPITAL t on information and belief. tted Jon Dubin, D.O., is an osteopathic physician, specializing in internal ~'. It is further admitted that on September 11, 1998, he was an employee it Hospital. The balance of the averment is denied generally, pursuant to gations of this paragraph are directed to a party other than Dr. Dubin and ems (hereinafter "Answering Defendants"), therefore requiring no 5. Denied. 6-11. Denied 12. It is adh allegations in this parag 13-18. Denied gene 19. Answeri herein by reference. 20-26. Each of thes, WHEREFORE, dismissed, with prejudi 27. Answer herein by reference. 28. It is adh the time of his 1998 m generally pursuant to [ 29-31. Each ot WHEREFORE Plaintiffs' Complaint t merally pursuant to Pa. RCP 1029(e). tted Plaintiffs' decedent died on September 19, 1998. The balance of the 'aph are denied generally pursuant to Pa. RCP 1029(e). :ally pursuant to Pa. RCP 1029(e). COUNT I ~g Defendants responses to paragraphs 1 through 18 are incorporated : allegations is denied generally pursuant to Pa. RCP 1029(e). Defendant Jon A. Dubin, D.O. demands Plaintiffs' Complaint be 3e. COUNT II ng Defendants responses to paragraphs 1 through 26 are incorporated dtted Dr. Dubin was an employee of Defendant Holy Spirit Hospital at atment of Plaintiffs' decedent. The balance of the averment is denied .RCP 1029(e). hese allegations is denied generally pursuant to Pa. RCP 1029(e). Defendant Holy Spirit Health System t/a Holy Spirit Hospital demands dismissed, with prejudice. 2 32. Answerix herein by reference. 33-35. Each oft WHEREFORE Plaintiffs' Complaint ~ 36. Answeri herein by reference. 37-39. The alle Defendants, therefore J WHEREFORE Spirit Hospital demant 40. Plaintiff Pa. CSA § 5524(2), in t 41. The disc 42. Plaintiff with Pa. RCP 2204. 43. Plaintiff wrongful death and sm .COUNT III g Defendants responses to paragraphs 1 through 31 are incorporated aese allegations is denied generally pursuant to Pa. RCP 1029(e). Defendant Holy Spirit Health System t/a Holy Spirit Hospital demands dismissed, with prejudice. COUNT IV ~g Defendants responses to paragraphs 1 through 35 are incorporated ations of these paragraphs are directed to a party other than Answering airing no response. )efendants Jon A. Dubin, D.O. and Holy Spirit Health System t/a Holy ~laintiffs' Complaint be dismissed, with prejudice. NEW MATTER cause of action is barred by the applicable statute of limitations, 42 their cause of action accrued at the time of Phyllis O'Hare's death. overy rule is inapplicable to wrongful death or survival actions. ' claims may be limited or barred as a result of their failure to comply .' claims may be limited or barred by operation of Pennsylvania's rival action statutes, 42 Pa. CSA § 8301, 8302. 3 44. Answeri~ pursuant to the Medical 45. Answeri~ the Healthcare Services 46. Discove~ contributorily or compa a bar to the estate's clai 47. Discove~ that Plaintiffs' deceden' damages which she sus affirmative defense is t] claims of decedent's be 48. Any act Defendant Dubin or by denied, and it is furthe~ or agent of Defendant ] damages claimed by PI 49. Defend; reasoned judgment in any error in his judgm against him. 50. If it is e divergent views of res g Defendants hereby assert all affirmative defenses available to them :are Availability and Reduction of Error Act. Defendants hereby assert all affirmative defenses afforded them under Malpractice Act, as amended. ~ may establish facts sufficient to prove lhat Plaintiffs' decedent was atively negligent, and such affirmative defenses are therefore pleaded as ns and to the derivative claims of decedent's beneficiaries. ? may establish facts that will prove by a preponderance of the evidence knowingly and voluntarily assumed the risk of the alleged injuries and ained, which are nevertheless denied and proof is demanded, and such terefore pleaded as a bar to the estate's claims and to the derivative aeficiaries. of negligence, whether one of commission or omission on the part of any servant, employee or agent of Defendant Holy Spirit Hospital is denied that any actions by Defendant Dubin or by any servant, employee toly Spirit Hospital was a substantial factor in causing the injuries and aintiffs. nt Dubin at all material times exercised his best professional and is treatment and care of Plaintiffs' decedent on September 11, 1998, and nt, which is nevertheless denied, would thrnish no basis for liability 5tablished through discovery and trial preparation that there are two ~ected and substantial medical opinion as to the propriety of Defendant Dubin's emergent care sustain Defendant Dub/ thought doctrine. 51. If Plainti is nevertheless denied, Defendants or their age the defenses of interve~ WHEREFORE Spirit Hospital demanc Dated: October/f-q , 2 nd treatment of decedent, and that one such body of opinion would t's treatment, Defendant Dubin claims the defense of the two schools of 2's' decedent suffered injury as a result of a negligent act or acts, which uch acts were committed by third persons, and not by Answering Its, servants, or employees, and Answering Defendants therefore claim lng and superceding causes. Defendants Jon A. Dubin, D.O. and Holy Spirit Health System t/a Holy Plaintiffs' Complaint be dismissed, with prejudice. 003 MILLER and MILLER Thomas R. Miller, Esquir Attorney ID//49801 401 South 32~a Street Camp Hill, PA 17011 (717) 920-5500 FA)L: (717) 920-5503 Attorneys for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital Subject to 4904, I, F4taaaUC-~ New Matter are tree and Date: October 10,20£ VERIFICATION the penalties for falsification to authorities prescribed by 18 Pa.C.S. :HARNEY, hereby certify that the facts set forth in the Answer and :orrect to the best of my personal knowledge, information and belief. Franchesca J. Charney Director of Risk Management Holy Spirit Hospital Subject t~ 4904, I, Jon, A. Dubin, Matter are true and corr~ VERIFICATION , the penalties for falsification to authorities prescribed by 18 Pa.C.S. D.O., hereby certify that the facts set forth in the Answer and New :ct to the best of my personal knowledge, information and belief. Jon A. Du(~n,~O. Date: October ,20~ }3 Miller and Miller G. Thomas Miller, Esquire Attorney ID No. 07219 Thomas R. Miller, Esquire Attorney ID No. 49801 401 South 32nd Street Camp Hill, PA 17011-5105 I hereby certify served on the ibllowing mail, postage prepaid: Dated: October ~ , 003 Attorneys for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital CERTIFICATE OF SERVICE hat a tree copies of the within Answer with New Matter were tiffs day ounsel of record at the addresses indicated by United States first class ather E. Milspaw, Jr., Esquire 30 State Street '. O. Box 946 Iarrisburg, PA 17108-0946 .~ounsel for Plaintiffs ?imothy J. McMahon, Esquire Aarshall, Dennehey, Wamer, Coleman & Goggin · 200 Crams Mill Road, Suite B tarrisburg, PA 17112 lounsel for Defendant Rite Aid of Pennsylvania, Inc. Thomas ~[. Miller Counsel for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital Luther E. Milspaw, Jr., Esquire Attorney I.D. No. 19226 130 State SUeet Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilspaw~MB LawFirm.¢om A~omey for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, iDECEASED, Plaintiffs JON A. DUBIN, D.O., I~ HEALTH SYSTEM t/a ] HOSPITAL and RITE A PENNSYLVANIA, INC, AND NOW cm New Matter of Defenda follows: 40 - 51. Denier within the mea~ thereof is dema necessary, after OLY SPIRIT [OLY SPIRIT ID of Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 03-5043-CIVIL TERM : : Jury Trial Demanded REPLY TO NEW MATTER ac Plaintiffs by their attorney, Luther E. Milspaw, Jr., Esquire, and reply to the ats Jon A. Dubin, D.O. and Holy Spirit Health S~,stem t/a Holy Spirit Hospital as · The allegations set forth in these paragraphs constitute conclusions of law ing of Pa. R.C.P. 1029(e) and accordingly, these allegations are denied and proof ~ded at trial, if relevant. To the extent that any further response is deemed reasonable investigation, the Plaintiffs are without knowledge and information sufficient to for n a belief as to the truth of the averments. WHEREFORe, Plaintiffs demand that the New Matter of Defendants' be dismissed, and judgment be entered in )laintiffs' favor. li Ily subjin~tted' I October 3 1, 2003 Attorney ID N° PA 1922; 130 State Street, P.O. Box 94~ Harrisburg, PA 17108-0946 717-236-3141 Voice, 717-236-0791 Fax Emil: Lmilspaw~mblawfirm.com ATTORNEY FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that on October 31, 2003 a true and correct copy of the foregoing Answer to New Matter was served by m~ans of regular United States mail, first class, postage prepaid, upon the following: Timothy McMahon, Esquire Marshall Dennehey Warner Coleman & Googin 4200 Crums Mill Road Harrisburg, PA 17110 Attorney for Defendant Rite Aid of Pennsylvania, Inc. Thomas R. Miller, Esquire Miller and Miller 401 South 32~a Street Camp Hill, PA 17011 Attorney for Defendants Dubin and Holy Spirit Hospital Lt~er ~E. Mdspaw, Jr.,~Esq. 2 \05_A~LIAB\TJM\LLPG\1279! ,~JMF\I 8155\00273 RODNEY K. and J.[ co-Administrators of Phyllis O'Hare, dece~ Plaintiffs JON A. DUBIN, D.£ HEALTH SYSTEM HOSPITAL and RIT PENNSYLVANIA, ] Defendants 1. P1 instituted this action of Dauphin County, 2. T under Pa.R.C.P. 211 pursuant to Pa.R.£ Pennsylvania. 3. In 11, 1998 presented Dubin. (A true and Exhibit "A" at ¶ 11). ROUNTREE, :he Estate of led, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HOLY SPIRIT ~a HOLY SPIRIT AID OF qC., NO. 03-5043 - CiVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED r lOTION FOR JUDGMENT ON THE PLEADINGS intiffs are co-Administrators of the Estale of Decedent Phyllis O'Hare and ~y filing a Praecipe for a Writ of Summons in the Court of Common Pleas ennsylvania on or about September 17, 2002. ,~reafter, Defendants filed Preliminary Objections to Venue in this matter 2). Ultimately the parties stipulated that Venue in this matter be transferred ?. 211(C) to the Court of Common Pleas of Cumberland County, heir Complaint, Plaintiffs allege that their Decedent on or about September the Emergency Room of Holy Spirit Hospital where she was seen by Dr. ~rrect copy of Plaintiffs' Complaint is attached hereto as Exhibit "A"; see, 4. PI: substance known as ] antibiotic known as [ 5. In resulted in Decedent' 6. In from January 18, 1~. September 11, 1998 of Pennsylvania, Inc. 7. In against Defendant R that Defendant Rite regard to its furnishir 8. PI~ negligence of Defen Decedent's death. (k 9. Or Answer with New M hereto as Exhibit "B" 10. In Pennsylvania, Inc. ha by the applicable Stal intiffs in their Complaint allege that the Decedent at the time was taking a mpulsid and that on or about September 11, 1998 Dr. Dubin prescribed an [axin. (Id. at¶ 11). their Complaint, Plaintiffs allege that Decedent's ingestion of Biaxin death on September 18, 1998. (Id. at ¶ 12). heir Complaint, Plaintiffs allege that Decedent's prescriptions for Propulsid 76 through August 16, 1998, as well as her prescription for Biaxin on rere filled at a pharmacy which is the responsibility of Defendant Rite Aid (Id. at ¶ 13). 2ount 1V of their Complaint, Plaintiffs allege a negligence cause of action Aid of Pennsylvania, Inc. and in Paragraph 38 of the Complaint allege id of Pennsylvania, Inc. was negligent in certain alleged respects with of Propulsid and Biaxin. I(!_4. at ¶ 38). ntiffs, in their Complaint, allege at Paragraph 39 that the alleged ant Rite Aid of Pennsylvania, Inc. was a direct and proximate cause of Dctober 15, 2003 Defendant Rite Aid of Pennsylvania, Inc. filed an .tier to Plaintiffs' Complaint. A true and correct copy of which is attached ts Answer with New Matter to Plaintiffs' Complaint, Defendant Rite Aid of raised, inter alia, the New Matter defense that Plaintiffs' claims are barred rte of Limitations as a matter of law. 11. In not ascertain the rea~ September 2000." ($ 12. As claims under the Wrc 13. U~ Wrongful Death Stat~ pursuant to 42 Pa.C.~ 14. It extend or toll the Si Death or Survival St: 323 (1987); Anthony 15. It Limitations begins "discovery rule" can of the involved indivi 16. Nc the conclusory and suggest that Plainti~ Limitations. 17. To Plaintiffs' Complainl Plaintiffs' claims are heir Complaint, Plaintiffs allege that "Plaintiffs were not aware of and did ~ns for the death of their mother as set :~'orth herein, until on or at~er early e, Exhibit "A" at ¶ 15). is apparent from the face of Plaintiffs' Complaint, Plaintiffs have brought tgful Death and Survival Statutes. (See, Exhibit "A" at ¶ 18). let applicable Pennsylvania law a cause of action brought under the te must be brought within two years of the death of the individual involved A. § 5524(2). ; well settled Pennsylvania law that the "discovery rule" does not apply to ,tute of Limitations for matters brought pursuant to either the Wrongful tutes. See, Pastiefik v. Duquesne Light Company, 514 Pa. 517, 526 A.2d 7. Koppers Company, Inc., 496 Pa. 119, .436 A.2d 181 (1981). ; well settled under Pennsylvania law that the applicable 2-year Statute of run at the latest upon the death of the involved individual and the t in a Survival Action extend the Statute of Limitations beyond the death lual. Moyer v. Rubfight, 438 Pa. Super. 154, 651 A.2d 1139 (1994). vhere in Plaintiffs' Complaint are there any allegations whatsoever beyond ,gally erroneous assertion at Paragraph 15 of the Complaint that would causes of action are not barred by the applicable 2-year Statute of he contrary, the material and well-pleaded allegations set forth in make it abundantly clear that under the applicable legal principles ndeed time-barred and accordingly Defendant Rite Aid of Pennsylvania, Inc. respectfully req Pleadings and dismis DATE: C) CF. ~l tests that this Honorable Court grants its Motion for Judgment on the this action as against Defendant Rite Aid of Pennsylvania, Inc. BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN TIMO~Fi~tY {(.~I~JA_%ION, ESQUIRE I.D. No. 5291'8 4200 Crmns Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney Jbr Defendant, Rite Aid qf Pennsylvania, Inc. Luther E. Milspaw, Jr., Ese Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (7: LMilspaw(&MB LawFirm.c~ Atlorney for Plaintiffs RODNEY K. AND JAY CO-ADMINISTRATO] OF PHYLLIS O'HAR~ JON A. DUBIN, D.O., i SYSTEM t/a HOLY SP and RITE AID OF PED YOU HAVE B forth in the following and Notice are served writing with the Court' warned that if you fail entered against you by or for any other claim c other rights important t, YOU SHOULI DO NOT HAVE A THE OFFICE SET HELP: DA1 236-0791 Fax · ROUNTREE, S OF THE ESTATE DECEASED, Plaintiffs [OLY SPIRIT HEALTH RIT HOSPITAL qSYLVANIA, INC. Defendants :IN THE COLrRT OF COMMON-~EA:~OF ~7 ::' :DAUPHIN COUNTY, PENNS~.ANI~..~ ];-V} i:: :CIVIL ACTION - LAW :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED NOTICE TO DEFEND ;EN SUED IN COURT. If you wish to defend against the claims set gus, you must take action with in twenty (20) days after this Complaint , entering a written appearance personally or by attorney and filing in >ur defenses or objections to the claims set forth against you. You are ~ do so, the case may proceed without you and a judgment may be te Court without further notice for any money claimed in the Complaint relief requested by the Plaintiff. You may lose money or property or you. TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU WSrER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE RTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL 'HIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 Luther E. Milspaw, Jr., Es~ Attorney I.D No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (71 LMilspaw~MBLawFirm. c Attorney for Plaintiffs RODNEY K. AND JA] CO-ADMINISTRATO OF PHYLLIS O'HAR! JON A. DUBIN, D.O., SYSTEM t/a HOLY S1~ and RITE AID OF PET LE }lAN DEM dcmandas cxpuestas cn de la dcmanda y la notit y archivar cn la corte cn~ persona. Sea avisado qu~ o alivio que es pcdido cn dcrcchos importantes par: LLEVE ESTA £ ABOGADO O SI NO TI EN PERSONA O LLAP, ENCUENTRA ESCRIT ASSISTENCIA LEGAL DA ire ~236-0791 Fax m P. ROUNTREE, ~S OF THE ESTATE DECEASED, Plaintiffs OLY SPIRIT HEALTH RIT HOSPITAL ~SYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED NOTICIA qDADO A USTED EN LA CORTE. Si usted guiere defenderse de estas paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha ¢ion. Usted debe presentar una apariencia escrita o en persona o pot abogado ~rma escrita sus defensas o sus objeciones a las demandas en contra de su si usted no se defiende, la sin previo aviso o notificacion y por cualquier queja ~ peticion de demanda. Usted puede perder dinero o sus propiedades o otros usted. ~MANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ~NE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA E POR TELEFONO A LA OFICINA CUYA DIRECCION SE , ABA JO PARA AVERIGUAR DONDE .SE PUEDE CONSEGUIR JPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 2 Luther E. Milspaw, Jr., Est Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (71 LMilspaw{~MB LawFirm.c~ Attorney for Plaintiffs RODNEY K. AND JAY CO-ADMINISTRATOI OF PHYLLIS O'HAR[ JON A. DUBIN, D.O., ] SYSTEM Ua HOLY SP and RITE AID OF PEiX 1. Plaintiffs Rodin administrators c citizens of the Pennsylvania, 2. Defendant, Jor in the Common, Cumberland Co osteopathic med of Defendant Hr was acting withi decedent Phyllis prescribed for 1 relevant to this including Mrs. ( 236-0791 Fax · ROUNTREE, S OF THE ESTATE DECEASED, Plaintiffs [OLY SPIRIT HEALTH RIT HOSPITAL qSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :NO. 4275-CV-2002-CV :JURY TRIAl, DEMANDED COMPLAINT I. PARTIES and JURISDICTION K. Rountree and Jay P. Rountree are adult individuals who are the the Estate of their deceased mother, Phyllis O'Hare ("Mrs. O'Hare"), fited States, and residents of Shiremanstown, Cumberland County, was the decedent. ,. Dubin, D.O., ("Dr. Dubin") is an osteopathic physician duly licensed ,ealth of Pennsylvania with his principal place of business in Camp Hill, nty, Pennsylvania. At all times relevant herein, Dr. Dubin was practicing cine in the specialty of emergency and internal medicine as an employee y Spirit Health System T/A Holy Spirit Hospital ("Holy Spirit Hospital"), and t the course and scope of his employment. Dr. Dubin had as a patient the ~'Hare on September 11, 1998, and in the course of treating her, use certain drugs including Biaxin and other products. At all times ruse of action, Dr. Dubin held himself out to the general public, 'Hare, as a doctor with special knowledge, skill and experience in 3 emergency and Defendant Hol, business corpc Pennsylvania, v emergency root advertises and ¢ County. At all r Defendant Rite authorized to ct administrative advertises and, Central Pennsyl Jurisdiction and Mrs. O'Hare wa Propulsid, for e: McLaughlin co~ and Rite Aid fil When receiving but instead was including QT pr pointes, ventrict medical conditit Prior to 1998, pl been aware, of ntemal medicine. ~irit Health System T/A Holy Spirit Hospikal ("Holy Spirit Hospital") is a on duly authorized to do business in the Commonwealth of [th its principal administrative offices and hospital facilities, including its in Camp Hill, Cumberland County, Pe~msylvania. Holy Spirit Hospital nducts its business throughout Central Pennsylvania including Dauphin levant times herein, Holy Spirit Hospital was the employer of Dr. Dubin. ,id of Pennsylvania, Inc. ("Rite Aid") is a business corporation duly ~duct business in the Commonwealth of Pennsylvania, with its principal Yfices in Camp Hill, Cumberland County, Pennsylvania. Rite Aid ~nducts its business, including the operation of pharmacies, throughout 'ania, including Dauphin County. venue are proper in Dauphin County, Pennsylvania. II. FACTUAL BACKGROUND initially prescribed the drug cisapfide, marketed under the brand name ~phageal spasm in January1996 by Dr. John P. McLaughlin. Dr. :inued Mrs. O'Hare on Propulsid for the next two years and nine months, ~'d her prescriptions, until her death. ~rescriptions for Propulsid, Mrs. O'Hare was not prescribed a safe drug yen a drug that causes potentially life-tln:eatening heart problems [ongation, cardiac arrhythmia, ventficular tachycardia, torsades de ar fibrillation, heart disease, hypertensive crises, and other adverse y'sicians, pharmacies and hospital personnel were aware, or should have ~tential life threatening conditions associated with the drug Propulsid. 9. In 1998, reports and sudden cart Therefore, Defe conditions asso~ 10. Prior to 1998, t been aware, of of Propulsid an the cytochrome cisapride (Prop~ 11. On September complaining ot nurses and staff been to Holy $ 16-98) and Dr. identified Dr. ~ Propulsid. Dr. physicians. Th records, and adc prescribed a 10 12. The ingestion ol cisapride blood prolongation, ve The ingestion ol of her death. 13. All of Mrs. O'H~ >f serious adverse events, including death from heart rhythm disorders ac arrest, prompted the FDA to issue a warning about the drug Propulsid. tdants herein knew, or should have known, about the life threatening [ated with the drug Propulsid and about the FDA warning. ~,sicians, pharmacies and hospital personnel were aware, or should have ,tential life threatening conditions associated with the concomitant use Biaxin. In particular, Clarithromycin (Biaxin) has been known to inhibit ~450 3A4 isoenzyme which is mainly responsible for metabolism of [sid), resulting is increased cisapride blood levels. 1998, Mrs. O'Hare went to the emergency room of Holy Spirit Hospital ortness of breath and wheezing. She was seen by Dr. Dubin and other )fHoly Spirit Hospital and had several tests conducted. Mrs. O'Hare had rit Hospital on several previous occasions (02-01-96, 07-19-96, and 4- ,ubin called for and reviewed her previous records. The previous records :Laughlin as her treating physician and reflected her history of taking Jbin did not consult with Dr. McLaughlin or any of Mrs. O'Hare% other same day, following his examination, review of Mrs. O'Hare's previous tional testing, Dr. Dubin diagnosed a possible respiratory infection, ay course of the antibiotic Biaxin for Mrs. O'Hare, and sent her home. Biaxin over the next eight (8) days by Mrs. O'Hare resulted in elevated :vel in her system. The elevated Cisapride blood level in turn caused QT ttricular tachycardia, and resulted in her death on September 19, 1998. Propulsid and Biaxin concomitantly was the direct and proximate cause ~e's prescriptions for Propulsid from January 18, 1996 through August t6, 1998, and pharmacy ident 14. All Defendants appropriate dm conditions bec~ should have and Biaxin, inc was taken in co 15. Plaintiffs were: mother as set fc 16. At the time ofh good, faithful a~ and financial al, death deprived society. By rea~ undetermined, lc was also necess: for which Plaint 17. Plaintiffs' claim by the decedent and suffering, m disability. 18. All causes ofacl survival actions. :r prescription for Biaxin on September 11, 1998, were filled at a Rite Aid fled as store number 1693. ~erein knew or should have known that the drug Propulsid was not an to treat gastroesophageal reflux disorders, and other esophageal lse of its adverse and lethal effects. The Defendants herein also knew or wn of the dangerous consequences associated with the drugs Propulsid ~ding serious adverse drug interactions, including death, when Propulsid ~bination with Biaxin. ot aware of and did not ascertain, the reasons for the death of their th herein, until on or after early September, 2000. ~r death, Mrs. O'Hare was 75 years old aad in good health. She was a d industrious mother who gave her children wise counsel, advice, help which would have continued had she not met an untimely death. Her :r children of her aid, association, attention, support, comfort, care and In of her death, her children have been damaged to an extent as yet in an amount in excess of the jurisdictional minimum. In addition, it to provide for funeral services, burial, and other expenses of decedent frs incurred sums which were fair, customary, reasonable, and necessary. hose damages incurred by reason of the decedent's death, and suffered ,rior to her death, as a result of physical pain and suffering, mental pain dety, emotional distress, loss of enjoyment of life, personal injury and on as hereinafter set forth are brought as both wrongful death and 6 19. Plaintiffs incor 20. Dr. Dubin und{ O'Hare, as his prudent medici 21. Defendant Dr. i Mrs. O'Hare si year period, an~ combination w, ventricular tact 22. Dr. Dubin was that he prescrib 23. The negligence (a) (b) (c) (d) (c) III. CAUSES OF ACTION COUNT I PLAINTIFFS vs JON A. DUBIN, D.O. PROFESSIONAL NEGLIGENCE orate by reference all other paragraphs of this Complaint. Xook and contracted to provide medical care for Decedent Phyltis atient, and Mrs. O'Hare relied upon him to provide reasonable and care. }ubin should have been aware that Biaxin was contraindicated for use by ce she was then taking and had been taking Propulsid for over a 2 and ½ should have been aware that the use of Propulsid and Biaxin in uld elevate her cisapride blood levels, resulting in QT prolongation, ,cardia, and her sudden death. ware or should have been aware that, as of September 11, 1998, the day Biaxin for Mrs. O'Hare, that she was taking Propulsid. YDefendant Dr. Dubin consisted of the following: rescribing Biaxin and failing to timely discontinue its proscription. ailing to recognize that the concomitant use of Biaxin with Propulsid by t¢ decedent was dangerous and contraindicated. ailing on and after September 11, 1998, to discontinue the prescription of )th Propulsid and Biaxin immediately. iiling on and after September 11, 1998, to recommend such other mrses of treatment as reasonably required to minimize the consequences decedent of her ingestion of Propulsid and Biaxin. liling to consult with Dr. McLaughlin or any of Mrs. O'Hare's other 7 24. As a direct an{: the Biaxin as p~ death. 25. Defendant Dr. ] representatives. reasonable and 26. Defendant Dr. ] and proximate, WHEREFOR] Defendant Jon A. Dubi jurisdictional minimun 27. Plaintiffs incor 28. Upon infonnat Defendant Hol' Mrs. O'Hare a 29. Defendant Hol' its employees, 30. Defendant Hol, · eating physicians. ailing to properly review and consider Mrs. O'Hare's previous records at [oly Spirit Hospital reflecting Mrs. O'Hare's use of Propulsid. ailing to properly follow up Mrs. O'Hare's care. ~roximate result of Defendant Dr. Dubin"s negligence, Mrs. O'Hare took :scribed and the concurrent use of Biaxin and Propulsid resulted in her ,ubin, individually, and by and through his fellow employees, agents, and failed to exercise that degree of care, skill and learning expected of ~rudent health care providers in their profession. abin breached his duties to Mrs. O'Hare, and such breach was a direct rose of Mrs. O'Hare's death. Plaintiffs demand judgment be entered in their favor and against the D.O. for general and compensatory damages in excess of the :osts, and such other relief as the court deems just and appropriate. COUNT II PLAINTIFFS vs HOLY SPIRIT HOSPITAL RESPONDEAT SUPERIOR >rate by reference all other paragraphs of this Complaint. and belief, Dr. Dubin was an employee, agent and/or representative of pirit Hospital. Holy Spirit Hospital approved Dr. Dubin's treatment of his prescribing of pharmaceuticals for her treatment including Biaxin. Spirit Hospital is directly liable for the negligent acts and omissions of ;ents, and representatives, including Defendant Dr. Dubin. Spirit Hospital by and through its employees, agents, and representatives, 8 failed to exerci prudent health 31. Defendant Hol' such breach w WHEREFOR Defendant Holy Spirit jurisdictional minimur 32. Plaintiffs incor 33. Acting through Holy Spirit Ho~ individuals wh* 34. Defendant Hol, and omission: (a) (b) (c) (d) (e) e that degree of care, skill and learning expected of reasonable and are providers in their profession. Spirit Hospital and Dr. Dubin breached their duties to Mrs. O'Hare, and . a direct and proximate cause of Mrs. O'Hare's death. Plaintiffs demand judgment be entered in their favor and against the >spital for general and compensatory damages in excess of the costs, and such other relief as the court deems just and appropriate. COUNT III PLAINTIFFS vs HOLY SPIRIT HOSPITAL CORPORATE LIABILITY orate by reference all other paragraphs ox* this Complaint. ts administrators, various boards, committees and individuals, Defendant )ital is responsible for the standard of professional practice by all are granted staff privileges within its facilities. Spirit Hospital breached its duty to Mrs. O'Hare by the following acts granting privileges, employing, or otherwise permitting the Defendant Dubin to treat Mrs. O'Hare in its emergency room; y failing to insure that Dr. Dubin was properly trained and educated in te prescription of drugs; y failing to have a system of checks and balances in place to assure that te drug Biaxin was not prescribed for Mrs. O'Hare where such use was )ntraindicated in combination with her Propulsid prescription; y failing to select and retain only competent physicians; y failing to oversee all persons who practice medicine within its walls (t) 35. Defendant Hol direct and proy WHEREFORI Defendant Holy Spirit jurisdictional minimun 36. Plaintiffs incor 37. Defendant Rite 18, 1996 throu Biaxin on Sep number 1693. 38. The negligence (a) (b) (c) (d) ,hen providing patient care; y failing to formulate, adopt and enforce: adequate rules and policies to asure quality care for its patients, including the emergency room eatment that was provided on behalf of Mrs. O'Hare in its facility. Spirit Hospital breached its duties to Mrs. O'Hare, and such breach was a nate cause of Mrs. O'Hare's death. Plaintiffs demand judgment be entered in their favor and against the ospital for general and compensatory damages in excess of the . costs, and such other relief as the court deems just and appropriate. COUNT IV PLAINTIFFS vs DEFENDANT RITE AID NEGLIGENCE xate by reference all other paragraphs of this Complaint. kid filled all the prescriptions of Mrs. O'Hare for Propulsid from January ~ August 16, 1998, and her prescriptions,~ including her prescription for nber 11, 1998, were filled at a Rite Aid pharmacy identified as store ~fDefendant Rite Aid consisted of the following: ailing to recognize that the use of Propulsid by Mrs. O'Hare over a two id one-half year period was inappropriate; ailing to recognize that the use of Propulsid in combination with Biaxin as contraindicated; filing to consult with Dr. Dubin or Dr. IvlcLaughlin regarding the use of · opulsid by Mrs. O'Hare over a two and one-half year period or the use 'Propulsid in combination with Biaxin; tiling to warn Mrs. O'Hare regarding her use by of Propulsid over a two 10 (e) (f) 39. Defendant Rit proximate cause of M WHEREFOR] Defendant Rite Aid for minimum, costs, and si ad one-half year period or her use of Pro pulsid in combination with iaxin; ailing to warn Dr. Dubin or Dr. McLaughlin regarding the use by Mrs. ~'Hare of Propulsid over a two and one-half year period or her use of ropulsid in combination with Biaxin; ailing to have a system of checks and balances in place to assure that the mg Biaxin was not prescribed for Mrs. ()'Hare since such use was ~ntraindicated when used in combination with Propulsid; lontinuing to fill Mrs. O'Hare's prescription for Propulsid, and dispensing er prescription for Biaxin. lid breached its duties to Mrs. O'Hare, :and such breach was a direct and O'Hare's death. Plaintiffs demand judgment be entered in their favor and against the :neral and compensatory damages in excess of the jurisdictional ~ other relief as the court deems just and appropriate. R~fect fully submitted, //~ By: LA~ohernre~'l~iilI~opa~J2r~' r~sq. ~ 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 717-236-3141 Voice 717-236-0791 Fax Email: Lmilspaw~mblawfirm.com ATTORNEY FOR PLAINTIFFS 11 RODNEY K. AND JA~t CO-ADM1NISTRATO] OF PHYLLIS O'HARI JON A. DUBIN, D.O. , SYSTEM t/a HOLY S1~ and RITE AID OF PE1~ I, the undersigne correct to the best of my statements herein are ma falsification to authoritie January 31, 2003 P. ROUNTREE, S OF THE ESTATE DECEASED, Plaintiffs OLY SPIRIT HEALTH RIT HOSPITAL NSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA : :CIVIL ACTION - LAW :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED VERIFICATION , hereby verify that the statements made in the foregoing document are true and nowledge, information and belief. I understand that false e subject to the penalties of 18 PA. Section .4904 relating to unswom 12 Luther E. Milspaw, Jr., Es, Attorney I.D. No. 19226 130 State S~-eet Harrisburg, PA 17101 (717) 236-3141 Voice (717) 236-0791 Fax LMilspaw@MBLawFirm.~ Attorney for Plaintiffs RODNEY K. AND JA] CO-ADMINISTRATO OF PHYLLIS O'HARI JON A. DUBIN, D.O. SYSTEM t/a HOLY and RITE AID OF PEi' I hereby certify Complaint was served the following: Attorney A January 31, 2003 ire itl P. ROUNTREE, ',S OF THlg ESTATE DECEASED, Plaintiffs iOLY SPIRIT HEALTH YRIT HOSPITAL NSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL AC'lION - LAW :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED CERTIFICATE OF SERVICE hat on January 31, 2003 a true and correct copy of the foregoing means of regular United States mail, first class, postage prepaid, upon Craig A. Stone, Esquire Mette Evans & Woodside 3401 N. Front Street Harrisburg, PA 17110 r Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital Timothy McMahon, Esquire Marshall Dennehey Wamer Coleman & Googin 4200 Crums Mill Road Harrisburg, PA 17110 tomey for Defendant Rite Aid of Pennsylvania, Inc./ 13 \05_A\LIA B\TJM\LLPG\135133UMF\18155\00273 RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plainti frs JON A. DUB1N, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND ,COUNTY, PENNSYLVANIA TO: NO. 03-5042. - CIVIL TERM C1VIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD Plaintiffs, Rodney K. and J.P. Rountree c/o Luther E. Milspaw, Jr., Esquire Milspaw & Basehore 130 State Street Harrisburg, PA 17101 You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a defanlt judgment may be filed against you. DATE: OCT, lO, 2CIc--53 BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Rite Aid of Pennsylvania, Inc. RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, 1NC., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5043 - CIVIL TERM CIVIL ACTION - LAW : JURY TRU~.L DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT RITE AID OF PENNSYLVANIA~ INC. TO PLAINTIFFS' COMPLAINT 1. Admitted in pan; denied in part. It is admitted only that Plaintiffs are who they say they are. Ali remaining allegations of this Paragraph are denied by Rite Aid of Pennsylvania, Inc. who after investigation and inquiry lacks information sufficient to form a belief as to the truth thereof. 2. Denied. The allegations set forth in this Paragraph are directed to Defendants other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further response is deemed necessary on behalf of Rite Aid of Pennsylvania, Inc., the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(c) and/or Pa.R.C.P. 1029(e), as applicable. 3. Denied. The allegations set forth in ~his Paragraph are directed to Defendants other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. TO the extent that any further response is deemed necessary on behalf of Rite Aid of Pennsylvania, Inc., the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(c) and/or Pa.R.C.P. 1029(e), as applicable. 4. Admitted. 5. Denied. The allegations set forth in this Paragraph constitute conclusions of law which are denied in accordance with Pa.R.C.P. 1029(e). 6. Admitted in part; denied in part. It is admitted only that Decedent Mrs. O'Hare had certain prescriptions for Propulsid filled at a Rite: Aid pharmacy in Cumberland County, Pennsylvania prior to her death. All remaining allegations set forth in this Paragraph are denied pursuant to Pa.R.C.P. 1029(e). 7. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 8. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 9. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 10. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. I 1. Deafied. The allegations set forth in this Paragraph are directed to Defendants other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further response is deemed necessary on behalf of Rite Aid of Pennsylvania, Inc., the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(c) and/or Pa.R.C.P. 1029(e), as applicable. t 2. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning ofPa. R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 13. Admitted in part; denied in part. It is admitted only that Decedent Mrs. O'Hare had certain prescriptions for Propulsid filled at a Rite Aid pharmacy located in Cumberland County, Pennsylvania between January 1996 anti August 1998 as alleged, and further admitted that Decedent's prescription for Biaxin was filled on or about September 11, 1998 at a Rite Aid pharmacy in Cumberland County, Pennsylvania as alleged. All remaining allegations of this Paragraph are denied as conclusions of law within the meaning of Pa.R.C.P. 1029(e) and to which no further responsive pleading is required and accordingly proof thereof is demanded at trial, if relevant. 14. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 15. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 16. D~nied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning ofPa. R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demande~l at thal, if relevant. 17. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 18. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. COUNT I PLAINTIFFS v. JON A DUBIN, D.O. 19. Defendant Rite Aid of Pennsylvania, Inc. incorporates by reference its responses to Paragraphs 1 through 18 above as if set forth at length herein. 20. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 21. Denied. The allegations set forth in this Paragxaph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent ~that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 22. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid ofi Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent ihat any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 23. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 24. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly nc, further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is den-tanded at thal, if relevant. 25. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. I029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 26. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. WHEREFORE, Defendant Rite Aid of Pennsylvania, Inc. demands judgment in its favor and against Plaintiffs together with such other relief as this Couv: shall deem appropriate. COUNT II PLAINTIFFS v. HOLY SPIRIT HOSPITAl, 27. Defendant Rite Aid of Pennsylvania, Inc. incorporates by reference its responses to Paragraphs 1 through 26 above as if set forth at len~Ih herein. 28. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly ne~ further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 29. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 30. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 31. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of .Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is de~nanded at trial, if relevant. WHEREFORE, Defendant Rite Aid of Pennsylvania, Inc. demands judgment in its favor and against Plaintiffs together with such other relief as this Court shall deem appropriate. COUNT III PLAINTIFFS v. HOLY SPIRIT HOSPITAl, 32. Defendant Rite Aid of Pennsylvania, Inc. incorporates by reference its responses to Paragraphs 1 through 31 above as if set forth at length herein. 33. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 34. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 35. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. WHEREFORE, Defendant Rite Aid of Pennsylvania, In,:. demands judgnnent in its favor and against Plaintiffs together with such other retiefas this Court shall deem appropriate. COUNT IV PLAINTIFFS v. RITE AID OF PENNSYLVANIA~ INC. 36. Defendant Rite of Aid of Pennsylvania, In,:. incorporates by reference its responses to Paragraphs I through 35 above as if set forth at length herein. 37. Admitted in part; denied in pan. It is admitted only that Decedent Mrs. O'Hare had certain prescriptions for Propulsid filled at a Rite Aid pharmacy located in Cumberland County, Pennsylvania between January 1996 and August 1998 as alleged, and further admitted that Deccdent's prescription for Biaxin was filled on or about September 11, 1998 at a Rite Aid pharmacy in Cumberland County, Pennsylvania as alleged. All remaining allegations of this Paragraph arc denied as conclusions of law within the meaning of Pa.R.C.P. 1029(e) and to which no further responsive pleading is required and accordingly proof thereof is demanded at trial, ifrelcYant. 38. Denied. The allegations of negligence set fi)rth in this Paragraph, together with its subparagraphs (a) through (g) arc denied as conclusions of law within the meaning of Pa.R.C.P. 1029(e). By way of further answer, all allegations of negligence as set forth in this Paragraph together with its subparagraphs (a) through (g) are denied and proof thereof is demanded at trial, if relevant. 39. Denied. The allegations set forth in this Paragraph constitute conclusions of la;v within the meaning of Pa.R.C.P. 1029(c) and accordingly are denied. By way of further answer, and to the extent that any further response is deemed necessary to these allegations, all allegations set forth in this Paragraph are denied and proof thereof is demanded at trial, if relevant. WHEREFORE, Defendant Rite Aid of Pennsylvania, Inc. demands judgment in its favor and against Plaintiffs together with such other relief as this Coup: shall deem appropriate. NEW MATTER DIRECTED TO PLAINTIFFS 40. No act or omission on the part of Defendant Rite Aid of Pennsylvania, Inc. was a substantial contributing factor in bringing about Plaintiffs' injuries and/or damages, all such injuries and/or damages being expressly denied. 41. The cause and/or causes of action alleged in Plaintiffs' Complaint are barred by the applicable Statute of Limitations. 42. Defendant Rite Aid of Pennsylvania, Inc. neither owed nor breached any duty of care owed to Plaintiffs' Decedent under the circumstances pleaded in Plaintiffs' Complaint. 43. Plaintiffs' injuries and/or damages, all such injuries and/or damages being expressly denied, were cause in whole or in part by persons and/or entities over whom Defendant Rite Aid of Pennsylvania, Inc. had neither control nor right of control as a matter of law. 44. Plaintiffs' Complaint fails to state a cause of action as against Rite Aid of Pennsylvania, Inc. upon which relief may be granted as a matter of law. 45. The allegations set forth in Paragraph 15 of Plaintiffs' Complaint regarding Plaintiffs' alleged lack of awareness and/or knowledge of the reasons for the death of their mother until September 2000 are legally insufficient to toll tire expiration of the applicable Statute of Limitations as a matter of law. 46. Plaintiffs' Decedent expired on September 19, 1998, as is alleged in Paragraph 12 of Plaintiffs' Complaint; Plaintiffs instituted this cause of action by filing a Praecipe for a Writ of Summons on September 17, 2002 and thus Plaintiffs' claims are time barred as a matter of law. WHEREFORE, Defendant Rite Aid of Pennsylvania, In,:. demands judgment in its favor and against Plaintiffs together with such other relief as this Court shall deem appropriate. DATE: (~T' J~t 2rtOa'~ BY: Respectfully submitted, MARSHALL, DENNEItEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-35;05 Attorney for Defendant, Rite Aid of Pennsylvania, Inc. \05_A\LIAB\TJM\LLPG\135131UMFXl 8155\00273 VERIFICATION I hereby affirm that the following facts are correct: Rite Aid of Pennsylvania, Inc. is a Defendant in the foregoing action and I am authorized to execute this Verification on their behalf. The attached Answer with New Matter to Plaintiffs' Complaint is based upon information which has been gathered by my counsel in the defense of this lawsuit. The language of the Answer with New Matter to Plaintiffs' Complaint is that of counsel and not oftne. I have read the Answer, and to the extent that the responses are based upon information which I have given to my counsel, they are tree and correct to the best of my knowledge, information and belief. To the extent that *:he contents of the responses are that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid responses are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities. DATE: BY: Donald Bfindisi Title: PDM Rite Aid of Pennsylvania, Inc. RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t~a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, 1NC., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5043 - CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIHCATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this \~'¥' day of October, 2003, served a copy of the foregoing Answer with New Matter to Plaintiffs' Complaint via First Class United States mail, postage prepaid as follows: Luther E. Milspaw, Jr., Esquire Milspaw & Basehore 130 State Street Harrisburg, PA 17101 G. Thomas Miller, Esquire Miller & Miller 401 South 32nd Street Camp Hill, PA 17011 Attorney for Jon A. Dubin, D.O. and Holy Spirit Health System (,_~arme M. Parr RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, FNC., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5043 - CIVIL TERM CIVIL ACTION - LAW : JURY TRLAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this g.~_ day of November, 2003, served a copy of the foregoing Motion for Judgment on the Pleadings via First Class United States mail, postage prepaid as follows: Luther E. Milspaw, Jr., Esquire Milspaw & Basehore 130 State Street Harrisburg, PA 17101 G. Thomas Miller, Esquire Miller & Miller 401 South 32nd Street Camp Hill, PA 17011 Attorney for Jon A. Dubin, D.O. and Holy Spirit Health System Miller and Miller G. Thomas MiIler, Esquire Attorney ID No. 07219 Thomas R. Miller, Esquire Attorney ID No. 49801 401 South 32"a Street Camp Hill, PA 17011-5105 Attorneys fc~r Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital RODNEY K. and JAY P. ROUNDTREE, Co-Administrators of the Estate of PHYLLIS O'HARE, deceased, Plaintiffs JON A. DUB1N, D.O., HOLY SPIRIT HEALTH SYSTEM, t/a HOLY SPIRIT HOSPITAL, and RITE AID OF PENNSYLVANIA, INC., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No. 03-5043-CIVIL TERM CIVIL ACTION - LAW MOTION FOR JUDGMENT ON THE PLEADINGS OF DEFENDANTS JON A. DUBIN, D.O. AND HOLY SPIRIT HEATH SYSTEM t/a HOLY SPIRIT HOSPITAL 1. Plaintiffs' decedent died on September 19, 1998, allegedly as a result of elevated cisapride (brand name "Propulsid") blood levels which caused cardiological complications. (Complaint ¶ 12). 2. Plaintiffs fault Defendant Jon A. Dubin, D.O., an emergency room physician and employee of Holy Spirit Health System for allegedly prescribing decedent an antibiotic, "Biaxin", on September 11, 1998, which resulted in an elevation of Plaintiff's blood levels of cisapride which she had been taking since 1996. (Complaint ¶ 6, 10, 11) 3. Defendant Holy Spirit Hospital is faulted on vic.arious and corporate liability theories in regard to Dr. Dubin's alleged negligence regarding September 11, 1998 emergency room treatment of decedent. (Complaint Counts II, III) 4. Via Writ of Summons, Plaintiffs commenced this wrongful death malpractice action on September 17, 2002. The Complaint was filed January 31, 2003, in Dauphin County and pursuant to preliminary objection and stipulation of the parties, it was transferred to Cumberland County by Order of Court dated July 1,2003. The Cumberland County Complaint was filed on September 24, 2003. 5. Defendants Dubin and Holy Spirit Health System answered the Cumberland County Complaint on October 24, 2003, and averred as their first affirmative defense the statute of limitations. (Answer ~ 40, 41) 6. Plaintiffs allege in paragraph 15 of their Complaint that they "were not aware of and did not ascertain, the reasons for the death of their mother as set forth herein, until on or after early September, 2000." 7. However, the discovery role, even to the extent the phrase "on or after early September, 2000" connotes a date on or subsequent to September 17, 2000, is not applicable in death actions. 8. The cause of action in a wrongful death or survival action accrues and the limitations period begins to mn at the time of the injured party's ,death. 9. Therefore, Plaintiffs' cause of action should have been commenced within two years ofdecedent's September 19, 1998, date of death, or by no later than September 19, 2000, not September, 2002. 2 10. Plaintiffs' cause of action is therefore time-barred and must be dismissed. WHEREFORE, Defendants Jon A. Dubin, D.O. and Holy Spirit Health System t/a Holy Spirit Hospital request their motion for judgment on the pleadings be granted and Plaintiffs' Complaint against them dismissed, with prejudice. Dated: November 4 ,2003 MILLER and MILLER By: t'/~a~ Thomas R.~liller, Esquire Attorney ID# 49801 401 South 32nd Street Camp Hill, PA 17011 (717) 920-5500 FAX' (717,1 920-5503 Attorneys fi)r Defendants Jon A. Dub:in, D.O. and Holy Spirit Hospital Miller and Miller G. Thomas Miller, Esquire Attorney ID No. 07219 Thomas R. Miller, Esquire Attorney ID No. 49801 401 South 32nd Street Camp Hill, PA 17011-5105 Attomeys for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital CERTIFICATE OF SERVICE I hereby certify that a true copies of the within Motion tbr.Jud~,mmnt on the Plcadings this day served on the following counsel of record at the addresses indicated by UnitedShares hrst' class mail, postage prepaid: Luther E. Milspaw, Jr., Esquire 130 State Street P. O. Box 946 Harrisburg, PA 17108-0946 Counsel for Plaintiffs Timothy J. McMahon, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 Counsel for Defendant Rite Aid of Pennsylvania, Inc. Dated: Novetnber,~, 2003 Counsel for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital 4 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next term of Argument Court. CAPTION OF CASE (entire caption must be stated in full) RODNEY K. and JAY P. ROUNDTREE, Co-Administrators of the Estate of PHYLLIS O'HARE, deceased, (Plaintiff) VS. JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM, t/a HOLY SPIRIT HOSPITAL, and RITE AID OF PENNSYLVANIA, INC., (Defendant) No. 03-5043 Civil Action - Law 2003 1. State matter to be argued (i.e., plaintiff's motion for new trial. Defendant's demurrer to complaint, etc): Defendants Jori A. Dubin, D.O. and Holy Spirit Heath System t/a Holy Spirit Hospital's Motion for Judgment on the Pleadings 2. Identify counsel who will argue case: (a) for plaintiffs: Luther E. Mispaw, Esquire address: P.O. Box 946 Harrisburg, PA 17108-0946 (b) for defendants Jon A. Dubin, D.O. and Holy Spirit Heath System t/a Holy Spirit Hospital: Thomas R. Miller, Esquire address: 401 South 32nd Street Camp Hill, PA 17011 For defendant Rite Aid of Pennsylvania, Inc.: Timothy J. McMahon, Esquire address: 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 3. I will notify all parties in writing within two days that this case has been listed for argument. __ 4. Argument Court Date: February 4, 2004 Dated: December 1, 2003 Attorney fo D~Jexiuants Jon A. Dubin, D.O. and Holy Spirit System t/a Holy Spirit Hospital PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY/OF CUMBERLAND COUNTY: please list the within matter for the next: [] Pre-Trial Argument Court [] Argument Court CAPTION OF CASE (entire caption must be stated in full) RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate o£ Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, iNC., Defendants NO, iN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5043 - CIVIL TERM CiVIL ACTION - LAW JURY TRIAL DEMANDED 5043 Civil Term 20 03 State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to compliant, etc.): Defendant, Rite Aid of Pennsylvania, Inc..'s Motion for Judgment on the Pleadings. Identify counsel who will argue case: (a) for Plaintiffs: Luther E. Milspaw, Esquire - PO Box 946, Harrisburg, PA 17108-0946 (b) (c) for Defendants, Jon A. Dubin, D.O. and Holy Spirit Health System t/a Holy Spirit Hospital:Thomas R. Miller, Esquire - 401 South 32"d Street, Camp Hill, PA 17011 for Defendant, Rite Aid of Pennsylvania, Inc.: Timothy J. McMahon, Esquire - 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112 I will notify all parties in writing within two days that this case has been listed for argument._ Argument Court Date: February 4, 2004 ~lmothy J. MdcMa~on (Attorney for Defendant, Rite Aid of Pennsylvania, Inc.} Dated: 12-3-03 \05_A\LIAB\TJM\LLPG\138968XJMF\l 8155\00273 RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE A1D OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, pENNSYLVANIA NO. 03-5043 - CIVIL TERM CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this 3rd day of December, 2003, served a copy of the foregoing Praecipe for Listing Case for Argument via First Class United States mail, postage prepaid as follows: Luther E. Milspaw, Jr., Esquire Milspaw & Basehore 130 State Street Harrisburg, PA 17101 G. Thomas Miller, Esquire Miller & Miller 401 South 32nd Street Camp Hill, PA 17011 Attorney for don A. Dubin, D.O. and Holy Spirit Health System - ~anh'~ M. Parr 1%o RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUB1N, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, 1NC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5043 - CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED MOTION FOR PROTECTIVE ORDER SUBMITTED ON BEHALF OF DEFENDANT~ RITE AID OF PENNSYLVANIA~ INC. Defendant Rite Aid of Pennsylvania, Inc. by and through its counsel, Marshall, Dennehey, Warner, Coleman & Goggin, pursuant to Rule 4012 of the Pennsylvania Rules of Civil Procedure, hereby moves this Honorable Court for a Protective Order and in support thereof states the following: 1. Plaintiffs are co-Administrators of the Estate of Decedent Phyllis O'Hare and instituted this action by filing a Praecipe for a Writ of Summons in the Court of Common Pleas of Dauphin County, Pennsylvania on or about September 17, 2002. 2. Subsequently, each Defendant respectively filed Preliminary Objections to Venue in this matter under Pa.R.C.P. 21 l(c). 3. Ultimately, the parties stipulated that Venue in this matter should be transferred pursuant to Pa.R.C.P. 211 (c) to the Court of Common Pleas of Cumberland County, Pennsylvania. 4. Accordingly, on August 25, 2003, the Honorable Judge Clark of the Court of Common Pleas of Dauphin County entered an Order that this case be transferred to the Court of Common Pleas of Cumberland County, Pennsylvania. (A true and correct copy of Judge Clark's Order is attached hereto as Exhibit "A"). 5. The Venue Rule requires that it is the Plaintiffs responsibility to pay any fees associated with the transfer of Venue. 6. The Cumberland County Prothonotary could not provide a docket number until the transfer fee had been paid. 7. On or about September 24, 2003, Plaintiff finally paid the Venue transfer fee and the case was assigned the docket number 2003-05043. 8. On October 15, 2003, Defendant Rite Aid of Pennsylvania, Inc. filed its Answer with New Matter. 9. On or about October 22, 2003, Plaintiffs filed their Reply to Defendant Rite Aid of Pennsylvania's New Matter. 10. On or about October 23, 2003, Defendants Dubin and Holy Spirit Hospital filed its Answer with New Matter. 11. On or about October 31, 2003, Plaintiffs filed their Reply to Defendants Dubin and Holy Spirit's New Matter. 12. All pleadings in this matter are now closed. 13. On November 4, 2003, Defendant Rite Aid of Pennsylvania, Inc., pursuant to Rule 1034 of the Pennsylvania Rules of Civil Procedure filed a Motion for Judgment on the Pleadings primarily based upon the fact that Plaintiffs' claims under the Wrongful Death and Survival Statutes are time barred by the applicable two-year Statute of Limitations. (A true and correct copy of Defendant Rite Aid of Pennsylvania's Motion for Judgment on the Pleadings is attached hereto as Exhibit "B"). 14. On or about November 4, 2004, Defendants Dubin and Holy Spirit Hospital filed their Motion for Judgment on the Pleadings pursuant to Rule 1034 of the Rules of Civil Procedure. 15. Defendant Rite Aid of Pennsylvania's Motion for Judgment on the Pleadings has been listed for Argument for February 4, 2004. 16. The granting of this Motion, which is inevitable based upon the fact that Plaintiffs' claims are clearly time barred, would draw this matter to a close without the added extra expense of completing discovery. 17. Rule 4012 of the Pennsylvania Rules of Civil Procedure provides that the court, upon a motion by a party, may make an order prohibiting, or in this case at least staying, discovery in order to protect a party from unreasonable annoyance, embarrassment, oppression, burden or expense. 18. On or about November 24, 2003, Plaintiffs served a Request for Production of Documents directed to Rite Aid of Pennsylvania, Inc. upon Defendant Rite Aid. (A true and correct copy of Plaintiffs' Request for Production of Documents directed to Defendant Rite Aid of Pennsylvania, Inc. is attached hereto as Exhibit "C"). 19. In the request, Plaintiffs ask Defendant to provide, inter alia, any and all documents for the past thirteen years, which, notwithstanding Defendants' dispositive Motion for Judgment on the Pleadings, would cause reasonable annoyance and expense to Defendant Rite Aid of Pennsylvania. 20. In the Request for Production of Documents, Plaintiff also asks for confidential and privileged information for which they are not entitled to under any Rule. 21. Defendant Rite Aid of Pennsylvania believes, and therefore avers, that Plaintiffs' Request for Production of Documents should be stayed until the disposition of Defendant's Motion for Judgment on the Pleadings. 22. The courts have held that it is an unreasonable annoyance to subject defense to discovery in order to help plaintiffprepare for a case that may be dismissed and never come to trial, based upon the fact that dispositive objections or motions were pending and awaiting determination. See, e.g. Chait & Company v. Republican State Committee, 30 Pa. D. & C. 2d 678 (Dauphin C.C.P. 1963) (a true and correct copy of this decision is attached hereto as Exhibit "D"). WHEREFORE, for all of the foregoing reasons, and based upon good cause shown, Defendant Rite Aid of Pennsylvania, Inc. respectfully requests this Honorable Court to enter a Protective Order prohibiting, or at the very least staying, all discovery until this Court has had ample opportunity to dispose of Defendants' Motions for Judgment on the Pleadings. DATE: D~:~. I[ , ~OO3 Respectfully submitted, MARSHALL, DENNEItEY, WARNER~ COLEMAN & GOGGIN BY: TIM (~--~' o J.0 c a ON, ESQUn I.D. No. 52918 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant, Rite Aid of Pennsylvania, Inc. RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID of PENNSYLVANIA, INC., Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA : :CIVIL ACTION - LAW : :NO. 4275-CV-2002-CV : :JURY TRIAL DEMANDED · : : ORDER /3=< AND NOW, this~,) day of August, 2003, and pursuant to the Order entered by this Court on July 1, 2003, a copy of which is attached, IT IS HEREBY ORDERED that the Prothonotary of Dauphin County is directed to transfer the record in this matter to the Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania. BY THE COURT: ,AU6 ~s 2~ I h~re~ c~ ~ d that the foregoing is a true and c0rr,ct copyhol tho original filed. J ', Prot~loao~ry Distribution: Luther E. Milspaw, Jr., Esquire, 130 State Street, Harrisburg, PA 17101 G. Thomas Miller, Esquire, 401 S. 32"d Street, Camp Hill, PA 17011 Timothy J. McMahon, Esquire, 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112 \05_A\LIA B\TJM~LLPG\ 127956XJMFX! 8155\00273 RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM ifa HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5043 - CIVIL TERM CIVIL ACTION - LAW c> cz, JURY TRIAL DEMANDED MOTION FOR JUDGMENT ON THE PLEADINGS Plaintiffs are co-Administrators of the Estate of Decedent Phyllis O't~'e an"~l instituted this action by filing a Praecipe for a Writ of Summons in the Court of Common Pleas of Dauphin County, Pennsylvania on or about September 17, 2002. 2. Thereafter, Defendants filed Preliminary Objections to Venue in this matter under Pa.R.C.P. 21 I(C). Ultimately the parties stipulated that Venue in this matter be transferred pursuant to Pa.R.C.P. 211(C) to Pennsylvania. 3. the Court of Common Pleas of Cumberland County, In their Complaint, Plaintiffs allege that their Decedent on or about September 11, 1998 presented to the Emergency Room of Holy Spirit Hospital where she was seen by Dr. Dubin. (A true and correct copy of Plaintiffs' Complaint is attached hereto as Exhibit "A"; see, Exhibit "A" at ¶ 11). 4. Plaintiffs in their Complaint allege that the Decedent at the time was taking a substance known as Propulsid and that on or about September 11, 1998 Dr. Dubin prescribed an antibiotic known as Biaxin. (Id. at ¶ 11). 5. In their Complaint, Plaintiffs allege that Decedent's ingestion of Biaxin resulted in Decedent's death on September 18, 1998. (id. at ¶ 12). 6. In their Complaint, Plaintiffs allege that Decedent's prescriptions for Propulsid from January 18, 1996 through August 16, 1998, as well as her prescription for Biaxin on September I 1, 1998 were filled at a pharmacy which is the responsibility of Defendant Rite Aid of Pmmsylvania, Inc. (Id. at ¶ 13). 7. In Count IV of their Complaint, Plaintiffs allege a negligence cause of action against Defendant Rite Aid of Pennsylvania, Inc. and in Paragraph 38 of the Complaint allege that Defendant Rite Aid of Pennsylvania, Inc. was negligent in certain alleged respects with regard to its furnishing of Propulsid and Biaxin. (Id. at ¶ 38). 8. Plaintiffs, in their Complaint, allege at Paragraph 39 that the alleged negligence of Defendant Rite Aid of Pennsylvania, Inc. was a direct and proximate cause of Decedent's death. (id.) 9. On October 15, 2003 Defendant Rite Aid of Pennsylvania, Inc. filed an Answer with New Matter to Plaintiffs' Complaint. A tree and correct copy of which is attached hereto as Exhibit "B". 10. In its Answer with New Matter to Plaintiffs' Complaint, Defendant Rite Aid of Pennsylvania, Inc. has raised, inter alia, the New Matter defense that Plaintiffs' claims are barred by the applicable Statute of Limitations as a matter of law. 11. In their Complaint, Plaintiffs allege that "Plaintiffs were not aware of and did not ascertain the reasons for the death of their mother as set forth herein, until on or after early September 2000." (See, Exhibit "A" at ¶ 15). 12. As is apparent from the face of Plaintiffs' Complaint, Plaintiffs have brought claims under the Wrongful Death and Survival Statutes. (See, Exhibit "A" at ¶ 18). 13. Under applicable Pennsylvania law a cause of action brought under the Wrongful Death Statute must be brought within two years of the death of the individual involved pursuant to 42 Pa.C.S.A. § 5524(2). 14. It is well settled Pennsylvania law that the "discovery role" does not apply to extend or toll the Statute of Limitations for matters brought pursuant to either the Wrongful Death or Survival Statutes. See, Pastierik v. Duquesne Li~jat Company, 514 Pa. 517, 526 A.2d 323 (1987); Anthony v. Koppers Company, Inc., 496 Pa. 119, 436 A.2d 181 (1981). 15. It is well settled under Pennsylvania law that the applicable 2-year Statute of Limitations begins to run at the latest upon the death of the involved individual and the "discovery rule" cannot in a Survival Action extend the Statute of Limitations beyond the death of the involved individual. Moyer v. Rubrip_J~t, 438 Pa. Super. 154, 651 A.2d 1139 (1994). 16. Nowhere in Plaintiffs' Complaint are there any allegations whatsoever beyond the conclusory and legally erroneous assertion at Paragraph 15 of the Complaint that would suggest that Plaintiffs' causes of action are not barred by the applicable 2-year Statute of Limitations. 17. To the contrary, the material and well-pleaded allegations set forth in Plaintiffs' Complaint make it abundantly clear that under the applicable legal principles Plaintiffs' claims are indeed time-barred and accordingly Defendant Rite Aid of Pennsylvania, Inc. respectfully requests that this Honorable Court grants its Motion for Judgment on the Pleadings and dismiss this action as against Defendant Kite Aid of Pennsylvania, Inc. DATE: 0 C~-- ~1 t ~Q~ BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant, Rite Aid of Pennsylvania, Inc. Luther E. Milspaw, Jr., Esquire Atlorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilspaw(&~MBLawFirm.c om Atlorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF TH~ ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON~LE~OF · DAUPHIN COUNTY, :CIVIL ACTION - LAW :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED 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 with in twenty (20) days after this Complaint and Notice are served by entei-ing 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: DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 Luther E. Mitspaw, Jr., Esquire Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilspaw~,,MBLa wFirm.com Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O. , HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW : :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED NOTICIA LE ItAN DEMANDADO A USTED EN LA CORTE. Si usted guiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la cone en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la sin previo aviso o notificacion y pot cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. 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 ABA JO PARA AVERIGUAR DON-DE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 Luther E. Mitspaw, Jr., Esquire Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilspawCb~MB LawFirm.com Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA : :CIVIL ACTION - LAW :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED COMPLAINT I. PARTIES and JURISDICTION Plaintiffs Rodney K. Rountree and Jay P. Rountree are adult individuals who are the administrators of the Estate of their deceased mother, Phyllis O'Hare ("Mrs. O'Hare"), citizens of the United States, and residents of Shiremanstown, Cumberland County, Pennsylvania, as was the decedent. Defendant, Jon A. Dubin, D.O., ("Dr. Dubin") is an osteopathic physician duly licensed in the Commonwealth of Permsylvania with his principal place of business in Camp Hill, Cumberland County, Pennsylvania. At all times relevant herein, Dr. Dubin was practicing osteopathic medicine in the specialty of emergency and internal medicine as an employee of Defendant Holy Spirit Health System T/A Holy Spirit Hospital ("Holy Spirit Hospital"), and was acting within the course and scope of his employment. Dr. Dubin had as a patient the decedent Phyllis O'Hare on September 11, 1998, and in the course of treating her, prescribed for her use certain drugs including Biaxin and other products. At all times relevant to this cause of action, Dr. Dubin held hi msel f out to the general public, including Mrs. O'Hare, as a doctor with special knowledge, skill and experience in emergency and internal medicine. Defendant Holy Spirit Health System T/A Holy Spirit Hospital ("Holy Spirit Hospital") is a business corporation duly authorized to do business in the Commonwealth of Pennsylvania, with its principal administrative offices and hospital facilities, including its emergency room, in Camp Hill, Cumberland County, Pennsylvania. Holy Spirit Hospital advertises and conducts its business throughout Central Pennsylvania including Dauphin County. At all relevant times herein, Holy Spirit Hospital was the employer of Dr. Dubin. Defendant Rite Aid of Pennsylvania, Inc. ("Rite Aid") is a business corporation duly authorized to conduct business in the Commonwealth of Pennsylvania, with its principal administrative offices in Camp Hill, Cumberland County, Pennsylvania. Rite Aid advertises and conducts its business, including the operation of pharmacies, throughout Central Pennsylvania, including Dauphin County. Jurisdiction and venue are proper in Dauphin County, Pennsylvania. II. FACTUAL BACKGROUND Mrs. O'Hare was initially prescribed the drug cisapride, marketed under the brand name Propulsid, for esophageal spasm in January1996 by Dr. John P. McLaughlin. Dr. McLaughlin continued Mrs. O'Hare on Propulsid for the next two years and nine months, and Rite Aid filled her prescriptions, until her death. When receiving prescriptions for Propulsid, Mrs. O'Hare was not prescribed a safe drug but instead was given a drug that causes potentially life-threatening heart problems including QT prolongation, cardiac arrhythmia, ventricular tachycardia, torsades de pointes, ventricular fibrillation, heart disease, hypertensive crises, and other adverse medical conditions. Prior to 1998, physicians, pharmacies and hospital personnel were aware, or should have been aware, of potential life threatening conditions associated with the drug Propulsid. 9. In 1998, reports of serious adverse events, including death from heart rhythm disorders and sudden cardiac arrest, prompted the FDA to issue a warning about the drug Propulsid. Therefore, Defendants herein knew, or should have known, about the life threatening conditions associated with the drug Propulsid and about the FDA warning. 10. Prior to 1998, physicians, pharmacies and hospital personnel were aware, or should have been aware, of potential life threatening conditions associated with the concomitant use of Propulsid and Biaxin. In particular, Clarithromycin (Biaxin) has been known to inhibit the cytochrome P450 3A4 isoenzyme which is mainly responsible for metabolism of cisapride (Propulsid), resulting is increased cisapride blood levels. 11. On September 11, 1998, Mrs. O'Hare went to the emergency room of Holy Spirit Hospital complaining of shortness of breath and wheezing. She was seen by Dr. Dubin and other nurses and staffofHoly Spirit Hospital and had several tests conducted. Mrs. O'Hare had been to Holy Spirit Hospital on several previous occasions (02-01-96, 07-19-96, and 4- 16-98) and Dr. Dubin called for and reviewed her previous records. The previous records identified Dr. McLaughlin as her treating physician and reflected her history of taking Propulsid. Dr. Dubin did not consult with Dr. McLaughlin or any of Mrs. O'Hare's other physicians. That same day, following his examination, review of Mrs. O'Hare's previous records, and additional testing, Dr. Dubin diagnosed a possible respiratory infection, prescribed a I 0 day course of the antibiotic Biaxin for Mrs. O'Hare, and sent her home. 12. The ingestion of Biaxin over the next eight (8) days by Mrs. O'Hare resulted in elevated cisapride blood level in her system. The elevated Cisapride blood level in tum caused QT prolongation, ventricular tachycardia, and resulted in her death on September 19, 1998. The ingestion of Propulsid and Biaxin concomitantly was the direct and proximate cause of her death. 13. All of Mrs. O'Hare's prescriptions for Propulsid from January 18, 1996 through August 16, 1998, and her prescription for Biaxin on September 11, 1998, were filled at a Rite Aid pharmacy identified as store number 1693. 14. All Defendants herein knew or should have known that the drug Propulsid was not an appropriate drug to treat gastroesophageal reflux disorders, and other esophageal conditions because of its adverse and lethal effects. The Defendants herein also knew or should have known of the dangerous consequences associated with the drugs Propulsid and Biaxin, including serious adverse drug interactions, including death, when Propulsid was taken in combination with Biaxin. 15. Plaintiffs were not aware of and did not ascertain, the reasons for the death of their mother as set forth herein, until on or after early September, 2000. 16. At the time of her death, Mrs. O'Hare was 75 years old and in good health. She was a good, faithful and industrious mother who gave her children wise counsel, advice, help and financial aid, which would have continued had she not met an untimely death. Her death deprived her children of her aid, association, attention, support, comfort, care and society. By reason of her death, her children have been damaged to an extent as yet undetermined, but in an amount in excess of the jurisdictional minimum. In addition, it was also necessary to provide for funeral services, burial, and other expenses of decedent for which Plaintiffs incurred sums which were fair, customary, reasonable, and necessary. 17. Plaintiffs' claim those damages incurred by reason of the decedent's death, and suffered by the decedent prior to her death, as a result of physical pain and suffering, mental pain and suffering, anxiety, emotional distress, loss of enjoyment of life, personal injury and disability. 18. All causes of action as hereinafter set forth are brought as both wrongful death and survival actions. III. CAUSES OF ACTION COUNT I PLAINTIFFS vs JON A. DUBIN, D.O. PROFESSIONAL NEGLIGENCE 19. 20. 21. 22. 23. Plaintiffs incorporate by reference all other para~aphs of this Complaint. Dr. Dubin undertook and contracted to provide medical care for Decedent Phyllis O'Hare, as his patient, and Mrs. O'Hare relied upon him to provide reasonable and prudent medical care. Defendant Dr. Dubin should have been aware that Biaxin was contraindicated for use by Mrs. O'Hare since she was then taking and had been taking Propulsid for over a 2 and ½ year period, and should have been aware that the use of Propulsid and Biaxin in combination would elevate her cisapride blood levels, resulting in QT prolongation, ventricular tachycardia, and her sudden death. Dr. Dubin was aware or should have been aware that, as of September 11, 1998, the day that he prescribed Biaxin for Mrs. O'Hare, that she was taking Propulsid. The negligence of Defendant Dr. Dubin consisted of the following: (a) Prescribing Biaxin and failing to timely discontinue its prescription. (b) Failing to recognize that the concomitant use of Biaxin with Propulsid by the decedent was dangerous and contraindicated. (c) Failing on and after September 11, 1998, to discontinue the prescription of both Propulsid and Biaxin immediately. (d) Failing on and after September 11, 1998, to recommend such other courses of treatment as reasonably required to minimize the consequences to decedent of her ingestion of Propulsid and Biaxin. (e) Failing to consult with Dr. McLaughlin or any of Mrs. O'Hare's other 7 treating physicians. (f) Failing to properly review and consider Mrs. O'Hare's previous records at Holy Spirit Hospital reflecting Mrs. O'Hare's use of Propulsid. (g) Failing to properly follow up Mrs. O'Hare's care. 24. As a direct and proximate result of Defendant Dr. Dubin's negligence, Mrs. O'Hare took the Biaxin as prescribed and the concurrent use of Biaxin and Propulsid resulted in her death. 25. Defendant Dr. Dubin, individually, and by and through his fellow employees, agents, and representatives, failed to exemise that degree of care, skill and learning expected of reasonable and prudent health care providers in their profession. 26. Defendant Dr. Dubin breached his duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Jon A. Dubin, D.O. for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. COUNT II PLAINTIFFS vs HOLY SPIRIT HOSPITAl. RESPONDEAT SUPERIOR Plaintiffs incorporate by reference all other paragraphs of this Complaint. Upon information and belief, Dr. Dubin was an employee, agent and/or representative of Defendant Holy Spirit Hospital. Holy Spirit Hospital approved Dr. Dubin's treatment of Mrs. O'Hare and his prescribing of pharmaceuticals for her treatment including Biaxin. Defendant Holy Spirit Hospital is directly liable for the negligent acts and omissions of its employees, agents, and representatives, including Defendant Dr. Dubin. Defendant Holy Spirit Hospital by and through its employees, agents, and representatives, 27. 28. 29. 30. failed to exercise that degree of care, skill and learning expected of reasonable and prudent health care providers in their profession. 31. Defendant Holy Spirit Hospital and Dr. Dubin breached their duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Holy Spirit Hospital for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. COUNT III PLAINTIFFS vs HOLY SPIRIT HOSPITAl, CORPORATE LIABILITY 32. Plaintiffs incorporate by reference all other paragraphs of this Complaint. 33. Acting through its administrators, various boards, committees and individuals, Defendant Holy Spirit Hospital is responsible for the standard of professional practice by all individuals who are granted staffprivileges within its facilities. 34. Defendant Holy Spirit Hospital breached its duty to Mrs. O'Hare by the following acts and omission: (a) (c) (d) (e) In granting privileges, employing, or otherwise permitting the Defendant Dr. Dubin to treat Mrs. O'Hare in its emergency room; By failing to insure that Dr. Dubin was properly trained and educated in the prescription of drags; By failing to have a system of checks and balances in place to assure that the drug Biaxin was not prescribed for Mrs. O'Hare where such use was contraindicated in combination with her Propulsid prescription; By failing to select and retain only competent physicians; By failing to oversee all persons who practice medicine within its walls 9 when providing patient care; (f) By failing to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients, including the emergency room treatment that was provided on behalf of Mrs. O'Hare in its facility. 35. Defendant Holy Spirit Hospital breached its duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WHEREFORE, Plaintiffs demand.judgment be entered in their favor and against the Defendant Holy Spirit Hospital for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. COUNT IV PLAINTIFFS vs DEFENDANT RITE AID NEGLIGENCE 36. Plaintiffs incorporate by reference all other paragraphs of this Complaint. 37. Defendant Rite Aid filled all the prescriptions of Mrs. O'Hare for Propulsid from January 18, 1996 through August 16, 1998, and her prescriptions, including her prescription for Biaxin on September 11, 1998, were filled at a Rite Aid pharmacy identified as store number 1693. 38. The negligence of Defendant Rite Aid consisted of the following: (a) Failing to recognize that the use of Propulsid by Mrs. O'Hare over a two and one-half year period was inappropriate; (b) Failing to recognize that the use of Propulsid in combination with Biaxin was contraindicated; (c) Failing to consult with Dr. Dubin or Dr. McLaughlin regarding the use of Propulsid by Mrs. O'Hare over a two and one-half year period or the use of Propulsid in combination with Biaxin; (d) Failing to warn Mrs. O'Hare regarding her use by of Propulsid over a two 10 and one-half year period or her use of Propulsid in combination with Biaxin; (e) Failing to warn Dr. Dubin or Dr. McLaughlin regarding the use by Mrs. O'Hare of Propulsid over a two and one-half year period or her use of Propulsid in combination with Biaxin; (f) Failing to have a system of checks and balances in place to assure that the drug Biaxin was not prescribed for Mrs. O'Hare since such use was contraindicated when used in combination with Propulsid; (g) Continuing to fill Mrs. O'Hare's prescription for Propulsid, and dispensing her prescription for Biaxin. 39. Defendant Rite Aid breached its duties to Mrs. O'Hare, and such breach was a direct and proximate cause of Mrs. O'Hare's death. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against the Defendant Rite Aid for general and compensatory damages in excess of the jurisdictional minimum, costs, and such other relief as the court deems just and appropriate. By: R~Iect fully submitted, ///ff 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 717-236-3141 Voice 717-236-0791 Fax Email: Lmilspaw~mblawfinn.com ATTORNEY FOR PLAINTIFFS 11 RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :NO. 4275-CV-2002-CV :Jt/RY TRIAL DEMANDED VERIFICATION I, the undersigned, hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 PA. Section 4904 relating to unsworn falsification to authorities. January31,2003 K. ROUNTREE 12 Luther E. Milspaw, Jr., Esquire Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice (717) 236-0791 Fax LMilspaw~MBLawFirm. com Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC. Defendants :IN THE COURT OF COMMON PLEAS OF :DAUPHIN COUNTY, PENNSYLVANIA : :CIVIL ACTION - LAW : :NO. 4275-CV-2002-CV :JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on January 31, 2003 a true and correct copy of the foregoing Complaint was served by means of regular United States mail, first class, postage prepaid, upon the following: Craig A. Stone, Esquire Mette Evans 8,: Woodside 3401 N. Front Street Harrisburg, PA 17110 Attorney for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital January 31, 2003 Timothy McMahon, Esquire Marshall Dennehey Warner Coleman & Googin 4200 Crums Mill Road Harrisburg, PA 17110 Attorney for Defendant Rite Aid of Pennsylvania, Inc./ LU ~ h~c~p~/// 13 \05_A\LIAB\TJM \LLPG\ 135133~/MFXl 8155\00273 RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUB1N, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE Afl) OF PENNSYLVANIA, 1NC., Defendants IN THE COURT OF COMMON PLEAS CUMBER.LAND COUNTY, PENNSYLVANIA TO: NO. 03-5043 - CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD Plaintiffs, Rodney K. and J.P. Rountree c/o Luther E. Milspaw, Jr., Esquire Milspaw & Basehore 130 State Street Harrisburg, PA 17101 You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be filed against you. DATE: OCT' IO, ~(.X~3 BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN iT.D~VI. ~52YgJ~i c~l~ ON, ESQUIRE 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Rite Aid of Pennsylvania, Inc. RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUB1N, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE A1D OF PENNSYLVANIA, INC., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5043 - C1VIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT RITE AID OF PENNSYLVANIA~ INC. TO PLAINTIFFS' COMPLAINT Admitted in part; denied in part. It is admitted only that Plaintiffs are who they say they are. All remaining allegations of this Paragraph are 'denied by Rite Aid of Pennsylvania, Inc. who after investigation and inquiry lacks information sufficient to form a belief as to the truth thereof. 2. Denied. The allegations set forth in this Paragraph are directed to Defendants other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further response is deemed necessary on behalf of Rite Aid of Pennsylvania, Inc., the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(c) and/or Pa.R.C.P. 1029(e), as applicable. 3. Denied. The allegations set forth in this Paragraph are directed to Defendants other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further response is deemed necessary on behalf of Rite Aid of Pennsylvania, Inc., the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(c) and/or Pa.R.C.P. 1029(e), as applicable. 4. Admitted. 5. Denied. The allegations set forth in this Paragraph constitute conclusions of law which are denied in accordance with Pa.R.C.P. 1029(e). 6. Admitted in part; denied in part. It is admitted only that Decedent Mrs. O'Hare had certain prescriptions for Propulsid filled at a Rite Aid pharmacy in Cumberland County, Pennsylvania prior to her death. All remaining allegations set forth in this Paragraph are denied pursuant to Pa.R.C.P. 1029(e). 7. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 8. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 9. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning ofPa. R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 10. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 11. Denied. The allegations set forth in this Paragraph are directed to Defendants other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further response is deemed necessary on behalf of Rite Aid of Pennsylvania, Inc., the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(c) and/or Pa.R.C.P. 1029(e), as applicable. 12. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 13. Admitted in part; denied in part. It is admitted only that Decedent Mrs. O'Hare had certain prescriptions for Propulsid filled at a Rite Aid pharmacy located in Cumberland County, Pennsylvania between January 1996 and August 1998 as alleged, and further admitted that Decedent's prescription for Biaxin was filled on or about September 11, 1998 at a Rite Aid pharmacy in Cumberland County, Pennsylvania as alleged. All remaining allegations of this Paragraph are denied as conclusions of law within the meaning of Pa.R.C.P. 1029(e) and to which no further responsive pleading is required and accordingly proof thereof is demanded at trial, if relevant. 14. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 15. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 16. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 17. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning ofPa. R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 18. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa. R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. COUNT I PLAINTIFFS v. JON A DUBIN, D.O. 19. Defendant Rite Aid of Pennsylvania, Inc. incorporates by reference its responses to Paragraphs 1 through 18 above as if set forth at length herein. 20. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 21. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Permsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 22. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 23. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 24. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 25. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 26. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. WHEREFORE, Defendant Rite Aid of Pennsylvania, Inc. demands judgment in its favor and against Plaintiffs together with such other relief as this Court shall deem appropriate. COUNT I1 PLAINTIFFS v. HOLY SPIRIT HOSPITAL 27. Defendant Rite Aid of Pennsylvania, Inc. incorporates by reference its responses to Paragraphs 1 through 26 above as if set forth at length herein. 28. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 29. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 30. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. I029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 31. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. WHEREFORE, Defendant Rite Aid of Pennsylvania, Inc. demands judgment in its favor and against Plaintiffs together with such other relief as this Court shall deem appropriate. COUNT I11. PLAINTIFFS V. HOLY SPIRIT HOSPITAl, 32. Defendant Rite Aid of Pennsylvania, Inc. incorporates by reference its responses to Paragraphs 1 through 31 above as if set forth at length herein. 33. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 34. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. 35. Denied. The allegations set forth in this Paragraph are directed to a Defendant other than Rite Aid of Pennsylvania, Inc. and accordingly no further responsive pleading is required. To the extent that any further responsive pleading is deemed required from Rite Aid of Pennsylvania, Inc. then the allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e) as conclusions of law and proof thereof is demanded at trial, if relevant. WHEREFORE, Defendant Rite Aid of Pennsylvania, Inc. demands judgment in its favor and against Plaintiffs together with such other relief as this Court shall deem appropriate. COUNT IV PLAINTIFFS v. RITE AID OF PENNSYLVANIA~ INC. 36. Defendant Rite of Aid of Pennsylvania, Inc. incorporates by reference its responses to Paragraphs 1 through 35 above as if set forth at length herein. 37. Admitted in part; denied in part. It is admitted only that Decedent Mrs. O'Harc had certain prescriptions for Propu]sid filled at a Rite Aid pharmacy located in Cumber]and County, Pennsylvania between January 1996 and August 1998 as alleged, and further admitted that Decedent's prescription for Biaxin was filled on or about September 11, 1998 at a Rite Aid pharmacy in Cumberland County, Pennsylvania as alleged. All remaining allegations of this Paragraph are denied as conclusions of la;v within the meaning of Pa.R.C.P. 1029(e) and to which no further responsive pleading is required and accordingly proof thereof is demanded at trial, if relevant. 38. Denied. The allegations of negligence set forth in this Paragraph, together with its subparagraphs (a) through (g) are denied as conclusions of law within the meaning of Pa. RC.P. 1029(e). By way of further answer, all allegations of negligence as set forth in this Paragraph together with its subparagraphs (a) through (g) are denied and proof thereof is demanded at trial, if relevant. 39. Denied. The allegations set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly are denied. By way of further answer, and to the extent that any further response is deemed necessary to these allegations, all allegations set forth in this Paragraph are denied and proof thereof is demanded at trial, if relevant. WHEREFORE, Defendant Rite Aid of Pennsylvania, Inc. demands judgment in its favor and against Plaintiffs together with such other relief as this Court shall deem appropriate. NEW MATTER DIRECTED TO PLAINTIFFS 40. No act or omission on the part of Defendant Rite Aid of Pennsylvania, Inc. was a substantial contributing factor in bringing about Plaintiffs' injuries and/or damages, all such injuries and/or damages being expressly denied. 41. The cause and/or causes of action alleged in Plaintiffs' Complaint are barred by the applicable Statute of Limitations. 42. Defendant Rite Aid of Pennsylvania, Inc. neither owed nor breached any duty of care owed to Plaintiffs' Decedent under the circumstances pleaded in Plaintiffs' Complaint. 43. Plaintiffs' injuries and/or damages, all such injuries and/or damages being expressly denied, were cause in whole or in part by persons and/or entities over whom Defendant Rite Aid of Pennsylvania, Inc. had neither control nor right of control as a matter of law. 44. Plaintiffs' Complaint fails to state a cause of action as against Rite Aid of Pennsylvania, Inc. upon which relief may be granted as a matter of law. 45. The allegations set forth in Paragraph 15 of Plaintiffs' Complaint regarding Plaintiffs' alleged lack of awareness and/or knowledge of the reasons for the death of their mother until September 2000 are legally insufficient to toll the expiration of the applicable Statute of Limitations as a matter of law. 46. Plaintiffs' Decedent expired on September 19, 1998, as is alleged in Paragraph 12 of Plaintiffs' Complaint; Plaintiffs instituted this cause of action by filing a Praecipe for a Writ of Summons on September 17, 2002 and thus Plaintiffs' claims are time barred as a matter of law. WHEREFORE, Defendant Rite Aid of Pennsylvania, Inc. demands judgment in its favor and against Plaintiffs together with such other relief as this Court shall deem appropriate. DATE: (_~T~ JC~t ).C,3a2'~ BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN /. DIM.. NOlo .~291~I~ ~N, ESQUIRE 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant, Rite Aid of Pennsylvania, Inc. ',05 A\LIAB\TJM\LLPG\135131 ~IMFM 8155\00273 VERIFICATION I hereby affirm that the following facts are correct: Rite Aid of Pennsylvania, Inc. is a Defendant in the foregoing action and I am authorized to execute this Verification on their behalf. The attached Answer with New Matter to Plaintiffs' Complaint is based upon information which has been gathered by my counsel in the defense of this lawsuit. The language of the Answer with New Matter to Plaintiffs' Complaint is that of counsel and not of me. I have read the Answer, and to the extent that the responses are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. To the extent that the contents of the responses are that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid responses are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to author/ties. DATE: BY: Donald Brindisi Title: PDM Rite Aid of Pennsylvania, Inc. RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, 1NC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5043 - CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this \~a~ day of October, 2003, served a copy of the foregoing Answer with New Matter to Plaintiffs' Complaint via First Class United States mail, postage prepaid as follows: Luther E. Milspaw, Jr., Esquire Milspaw & Basehore 130 State Street Harrisburg, PA 17101 G. Thomas Miller, Esquire Miller & Miller 401 South 32nd Street Camp Hill, PA 17011 Attorney for Jori A. Dubin, D.O. and Holy Spirit Health System ~anne M. Parr RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5043 - CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this,.~ day of November, 2003, served a copy of the foregoing Motion for Judgment on the Pleadings via First Class United States mail, postage prepaid as follows: Luther E. Milspaw, Jr., Esquire Milspaw & Basehore 130 State Street Harrisburg, PA 17101 G. Thomas Miller, Esquire Miller & Miller 401 South 32nd Street Camp Hilt, PA 17011 Attorney for Jon A. Dubin, D.O. and Holy Spirit Health System LUTHER E. MILSPAW, JR., ESQUIRE Attorney I.D. #19226 130 State Street Harrisburg, PA 17101 (717)236-3141 VOICE (717)236-0791 FAX Imilspaw(~mblawfirm.com Counsel for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID of PENNSYLVANIA, INC., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 03-5043-CIVIL TERM : Jury Trial Demanded PLAINTIFFS RODNEY lC AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE~ DECEASED, REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT RITE AID OF PENNSYLVANIA, INC. TO: Defendant Rite Aid of Pennsylvania, Inc. ATTN: Timothy McMahon, Esquire Marshall Dennehey Warner Coleman & Googin 4200 Crums Mill Road Harrisburg, PA 171 I0 Pursuant to Pennsylvania Rules of Civil Procedure 4001 et al. and 4009.1 et al. specifically, you each arc hereby requested to produce the below listed documents and items for purposes of discovery. This material will be examined and photocopied; photograph negatives will be processed and photographs reproduced. Said documents or tangible things are to be produced at the offices of LUTHER E. MILSPAW, JR., ESQUIRE, 130 State Street, Harrisburg, PA 17101, within thirty (30) days of the date of service hereof. Plaintiffs' attorney will be responsible for these documents so long as they are in his possession. Copying will be done at Plaintiffs expense and the documents will be properly returned after copying has been completed. This request is intended to cover all documents in the possession, custody and control of Answering Defendant, their agents employees, representatives, insurance carriers and attorneys, for the deceased, Phyllis O'Hare for the period beginning January 1, 1990 through the present. This request is deemed to be continuing so that if any document or object responsive to these requests later becomes available or falls into the possession, custody and control of the Answering Defendants, their agents, employees, representatives, insurance carriers or attorneys, any response to these requests shall be timely supplemented. DEFINITIONS AND INSTRUCTIONS 1. If you object to the production of any document on the grounds that the attorney-client, attorney work-product, or any other privilege is applicable thereto, you shall, with respect to that document: a. State its date; b. Identify its author; c. Identify each person who prepared or participated in the preparation of the document; d. Identify each person who received it; e. Identify each person from whom the document was received; f. State the present location of the document and all copies thereof; g. Identify each person who has ever had possession, custody or control of it or a copy thereof; and h. Provide sufficient information concerning the document and the circumstances thereof to explain the claim or privilege and to permit the adjudication of the propriety of that claim. 2. If documents or other tangible things requested are outside the possession, custody, or control of Answering Defendants, but you have knowledge of the person or entity in whose custody, control or possession the document or tangible thing resides, it is required that you set forth that information. DOCUMENTS REQUESTED 1. Please provide a copy of any and all documents, charts, notes, consultations, physicians' prescriptions and any and all tangible documents which form part and parcel of the records maintained for Plaintiffs' deceased, Phyllis O'Hare for the period from January 1, 1990 to the present. 2. Please provide the identity and current address of all individual pharmacists or other individuals who participated in filling the prescriptions for Propulsid (Cisapride) and Biaxin (Clarithromycin) for Plaintiffs' deceased, Phyllis O'Hare for the period from January 1, 1995 through September 19, 1998. 3. Please provide any and all investigations, interviews, notes of interviews or information ascertained, whether taken by an attorney, paralegal, claims adjust~r, risk management people, insurance agents, or the like, regarding the claims made in this case. 4. Please provide all documents reflecting the procedures and protocol concerning the filling of prescriptions, information and warnings provided to Plaintiffs' deceased, Phyllis O'Hare, or to other customers who also had prescriptions filled for Propulsid or Biaxin. 5. Please provide a copy of all procedures and protocols addressing or relating to the warnings given to customers and/or physicians when drugs are prescribed which are contraindicated to other drugs for which the customer has been prescribed and/or filled Plaintiffs' deceased, Phyllis O'Hare for the period from January 1, 1990 to the present. 6. Please provide a copy of all documents received from the United States Food and Drug Administration regarding the use of Cisapride or the contraindicated use of Cisapride with Clarithromycin, Plaintiffs' deceased, Phyllis O'Hare for the period from January I, 1990 to the present. 7. Please provide a copy of all documents received from the manufacturers of Cisapride and Clarithromycin regarding the use of Cisapride or the contraindicated use of Cisapride with Clarithromycin, eg, "Dear Pharmacist" letters. 3 8. Please provide a copy of all advertisements and/or commercials run in all forms of print and broadcast media which contain any reference to any policy or protocol of Defendant Rite Aid of Pennsylvania, Inc. to warn customers when drugs prescribed are contraindicated for them for any reason, for the period from January 1, 1990 to the present. 9. Please provide protocol or procedure in place for identifying sensitivities or contraindications for any drugs which require prescriptions before being sold, for the period from January 1, 1990 to the present. November 21, 2003 Respectfully submitted Luther l~. Mil~pa~v, J~., Attorney for Plaintiffs ~squire 4 RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O. , HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID of PENNSYLVANIA, INC., Defendants IN TI41~ COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-5043-CIVIL TERM Jury Trial Demanded CERTIFICATE OF SERVICE I hereby certify that on November 21, 2003, a true and correct copy of Plaintiffs Rodney K. and Jay P. Rountree, Co-Administrators of the Estate of Phyllis O'Hare, Deceased, Request for Production of Documents Directed to Defendants Jon A. Dubin, D.O. and Holy Spirit Health System tYa Holy Spirit Hospital was served by regular mail upon the following: Timothy McMahon, Esquire Marshall Dennehey Wamer Coleman & Googin 4200 Crams Mill Road Harrisburg, PA 17110 Attorney for Defendant Rite Aid of Pennsylvania, Inc. November 21, 2003 Thomas R. Miller, Esq. Miller and Miller 401 S. 32na Street Camp Hill, PA 17011 Attorney for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital Luther E. Milspaw, Jr., Esquire / ! 5 Get a Document - by Citation - 30 Pa. D. & C.2d 678 Page 1 of 5 Service: Get by LEXSEE® Citation: 30 Pa. D&C.2d 678 .gO Pa. D. & C. 2d 678, *; 1965 Pa. D. & C. LEXIS 132, ** Lawrence G. Chait & Company, [nc., v. Republican State Committee no. 783 COMMON PLEAS COURT OF DAUPHIN COUNTY, PENNSYLVANIA 30 Pa. D. & C.2d 678; :1963 Pa. D. & C. LEXIS 132 August 12, 1963, Decided DISPOSITION: [*'1] Motion dismissed. CORE TERMS: demurrer, deposition, preparation, oral examination, discovery, protective order, purposes of discovery, interrogatories, annoyance, depose, notice, question of jurisdiction, respectfully, above-named, cause of action, properly served, subject matter, promotional, advertising, outstanding, privileged, presently, assumpsit, premature, accorded, disposed, supplied, deponent, raising, pleaded COUNSEL: John H. Beam, for plaintiff. Hurwitz, Klein, Meyers & Benjamin, for defendants. JUDGES: Before Sohn, P..1., Herman, Kreider, Miller and Shelley, JJ. Hiller, .1., dissenting. OPINIONBY: Shelley OPINION: Motion for protective order. [*679] This matter comes before us on a motion of the above-named individual defendants for a protective order against their oral examination by plaintiff for the purposes of discovery and for use as evidence in the above action proposed to be taken by plaintiff pursuant to written notice served on their counsel. Plaintiff instituted an action in assumpsit against the above-named defendants wherein it seeks to recover for advertising and promotional services. The basis for the action is an alleged oral "client-agency contractual relationship" contract. The complaint avers: "25. All services performed by plaintiff were performed at the specific instance and request of and accepted by Defendant Republican State Committee by its duly authorized officers and agents, Defendants George I. Bloom, William M. Donovan, William Keisling and Phillip T. Sharpies." The individual defendants have filed objections (:1) in the nature of a demurrer, on the [**2] basis that the complaint fails to aver any prima facie individual responsibility of the individual defendants for the alleged services [*680] rendered; (2) raising a question of jurisdiction over the individual defendants because of improper service upon them; and (3) a motion for a more specific complaint. http://www.lexis.com/research/retrieve?_m dc5bSb29d9f9dd2d909ceaa42fb46aa9&csvc=... 12/4/2003 Get a Document - by Citation - 30 Pa. D. & C.2d 678 Page 2 of 5 There was endorsed on the preliminary objections a notice to plead, but no answer has as yet been filed to the preliminary objections. Thereupon, despite the outstanding undetermined preliminary objections, plaintiff served notice on defendants' counsel requiring defendants to submit to oral examination for the purposes of discovery and for use as evidence in this action or for both purposes: ". · . on all matters not privileged, which are relevant and material to the issues and subject matter involved in the pending action, including but not limited to the facts of the contract, events leading up thereto and to transactions and negotiations between the parties to the said action .... " Upon receipt of this notice the individual defendants filed their motion for a protective order to which an answer has been filed and is presently before us for determination. Plaintiff [**3] filed the notice for the oral examination of the four individual defendants pursuant to Rule 4007(a) of the Pennsylvania Rules of Civil Procedure which provides: "(a) Any party may take the testimony of any person, including a party, for the purpose of discovery by deposition upon oral examination or written interrogatories of the identity and whereabouts of witnesses. Subject to the limitations provided by Rule 4011, the deponent may also be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the action and will substantially aid in the preparation of the pleading or the preparation or trial of the case." ['681] In their motion for a protective order, the individual defendants assigned as reasons (1) that because William M. Donovan, William Keisling and Phillip T. Sharpies were not properly served and made a party to this action, this court has no jurisdiction over the said defendants and no legal authority exists for the taking of their depositions in the matter herein sought; (2) that no depositions or discovery proceeding should be had on the merits until the preliminary objections in the nature of demurrer have been disposed [**4] of; and (3) that because of the preliminary objections filed by them may result in the dismissal of plaintiff's action against them, the taking of depositions by plaintiff at this time constitutes an undue burden and annoyance and an unreasonable expense to the defendants. The basis for defendants' motion is Pa. R. C. P. 4011, which provides that: "No discovery or inspection shall be permitted which . . . (b) causes unreasonable annoyance, embarrassment, expense or oppression to the deponent or any person or party; . Defendants rely on Deans v. Pollock-Timblin Co., Inc., 14 D. & C. 2d 455 (1958), and Dussell y_. Ka_uf...m_._a._n___Co_n_s}£~_c~i_o_n Co.,_I_n_(;_.~. 10 D. & C. 2d 505 (1957)~ both of which hold in substance that a defendant will not be compelled to answer interrogatories filed by the plaintiff before preliminary objections to the complaint are disposed of. Plaintiff calls to our attention Frantz v. Erickson, 11 Cumb. 95 (1960), which holds that discovery proceedings, at a time when preliminary objections in the nature of a demurrer have been filed, are not premature. The reason for the rule in the Frantz case was the long adopted practice of the court of [**5] permitting plaintiff to file an amended complaint before final dismissal of any action on a demurrer. With respect to the demurrer [*682] herein under consideration, we are inclined to agree with the ruling in the Deans and Dussell cases. Defendants not only ask us in their preliminary objections to dismiss the complaint for failure to plead a cause of action against defendants, but have likewise asked us to strike the return of service made upon defendants, William M. Donovan, William Keisling, and Phillip T. http://www.lexis.corn/research/retrieve?_m=dc5b8b29d9fgdd2d909ceaa42 fb46aa9&csvc=... 12/4/2003 Get a Document - by Citation - 30 Pa. D. & C.2d 678 Page 3 of 5 Sharpies because they were not properly served pursuant to Pa. R. C. P. 1009 and that, therefore the return of the service as made on them is void as a matter of law. Our disposition of the question of jurisdiction is appealable under the Act of Harch 5, 1925, P. L. 23, 12 PS § 672. While the practice under Rule 1017(b) (1) is designed to replace the practice under the Act of 1925, the right to appeal under the act is expressly preserved: Pa. R. C. P. 1451(b) (7); Dozor Aqency v. Rosenberg, 403 Pa. 237, 240 (1961). It would, therefore, seem to be an unreasonable annoyance to the three defendants last above-named to require them to take time away from their [**6] affairs and subject themselves to detailed examination to help plaintiff in the preparation of a case that, as a result of the preliminary objections now pending and awaiting determination, may be dismissed and never come to trial. The basic test to be applied in ruling upon plaintiff's request to require defendants to submit to oral examination for purposes of discovery is whether the request will substantially aid in the preparation of the pleadings or the preparation or trial of the case as provided by Pa. R. C. P. 4007(a). A plaintiff under this rule may secure discovery (1) to aid in the preparation of his pleadings, or (2) to aid in the preparation for trial of the case. Plaintiff cannot contend that the request which it filed was for the purpose of aiding it in the preparation of its complaint, since its complaint has [*683] already been filed and served, and it would seem inherent in the portion of the rule permitting discovery to "aid in the.., preparation or trial of the case," that the case must be at issue. As we view the matter, therefore, plaintiff's request was filed too late to "aid in the preparation of the pleadings" and too early to "aid in the.., preparation [**7] or trial of the case." Our conclusion is in accord with the views of the editors of Goodrich-Amram, § 4005(a)-5: "If no interrogatories are needed in connection with the pleadings, but interrogatories are to be served to get information to aid in the preparation of the case for trial, they will be postponed until the pleading stage of the action is over." While our ruling in this matter as it refers to jurisdiction relates only to the three defendants, William M. Donovan, William Keisling and Phillip T. Sharpies, it would serve no useful purpose at this time to require the other individual defendant, George ]. Bloom, to submit to oral examination, for the matter of the demurrer is still undisposed of. For the foregoing reasons, we make the following Order And now, August 12, 1963, plaintiff's motion to compel defendants to submit to oral examination for the purposes of discovery and for use as evidence in this action, or for both purposes, is dismissed. DISSENTBY: Miller DISSENT: Dissenting Opinion Hiller, .1., August 12, 1963.--I respectfully dissent from the majority's conclusion which denies plaintiff the right to take the oral deposition of the defendant Bloom. While this defendant, [**8] along with the others, has filed preliminary objections to the complaint in the nature of a demurrer and a motion for more specific complaint, he has not raised any question of jurisdiction. [*684] I do not feel that such outstanding preliminary objections should bar the taking of Bloom's deposition. At the time of argument, plaintiff's counsel frankly stated that he has pleaded all of the facts known and available to him and his client; therefore, he cannot assess the merit of these preliminary objections until he has an h~tp://www~~exis~c~m/research/retrieve?-m=dc5b8b29d9f9dd2d9~9ceaa42fb46aa9&csvc=... 12/4/2003 Get a Document - by Citation - 30 Pa. D. & C.2d 678 Page 4 of 5 opportunity to depose the individual defendants and determine the exact nature of their relationship with the defendant Republican State Committee and the part each of them played in the transaction which gives rise to this assumpsit action. Plaintiff's counsel further indicated at argument that only after the taking of such depositions would he be able to determine whether his complaint should be amended to meet the preliminary objections, or whether he should proceed with the complaint as drawn. Thus, as a practical matter, plaintiff should be accorded the right to depose defendant Bloom, because this "will substantially aid [the plaintiff] in the preparation [**9] of the pleadings...": Pa. R. C. P. 4007(a). This may well produce the salutary effect of expediting the litigation by removing the ground for defendants' preliminary objections. Conversely, refusal of discovery at this time appears to be only delaying the inevitable since it is likely that, if Bloom's demurrer is sustained, plaintiff would nevertheless be accorded the right to amend its complaint, as to him, bringing us within the conclusion reached by the Cumberland County court in Frantz v. Erickson, 11 Cumb. 95 (1960). The language of President Judge Shughart in that case seems most apposite (p. 97): "Defendants also contend that discovery in this instance is premature, because preliminary objections in the nature of a demurrer have been filed. It is true that if the demurrer were sustained the taking of the deposition would be unnecessary. On the other hand, this court has long adopted the practice of permitting the plaintiff to file an amended complaint before final dismissal [*685] of any action on a demurrer. Therefore, if the demurrer were sustained, the depositions might be required to aid him in the preparation of the amended complaint. If the demurrer is overruled, [**~.0] the fact that depositions were taken previously will expedite the fitigation." (Italics supplied.) The majority relies on Dussell v. Kaufman Construction Co.~!Inc., ~_0_._D_;. & C._2d 50._5_(1957~)~ and Deans v. Pollock-Timblin Co., Inc., 14 D. & C. 2d 455 (1958). Dussell, however, ignores the possibility that plaintiff would be permitted to amend after the sustaining of a demurrer, while Deans assumes, we think incorrectly, that no amendment would be made. This assumption is indicated in the following quotation from the Deans opinion (p. 456): "... If the demurrer is sustained, and no amendment of the complaint is made, the witness will not have been needlessly annoyed by being required to give a deposition that will never be used." (Italics supplied.) Further, we have here an additional fact which apparently was not present in either the Dussell or Deans cases, viz., the admission of plaintiff's counsel that he is presently unable to determine the merit of defendant's preliminary objections, and his additional statement that he has pleaded all available facts and must depose defendant in order to determine the advisability of amending his complaint. [**ll] For the foregoing reasons, and also in view of this court's heretofore announced lenient attitude toward discovery (e. g., see Cloder v. Horvath, 27 D. & C. 2d 180 (1962)), I respectfully dissent from this portion of the majority's conclusion, and would instead grant plaintiff leave to take the oral deposition of defendant Bloom. I concur with the majority's conclusion as to the depositions of the other defendants, Donovan, Keisling [*686] and Sharpies, but only for the reason that they have challenged the jurisdiction of the court, alleging defective service and that they are thus not properly befor the court and not parties to this action. If these defendants are not parties, the discovery rules do not accord plaintiff the right to depose them in this manner, and it is logical that the jurisdictional question should be determined before their depositions are ordered. However, if this jurisdictional issue should be resolved adversely to these defendants, then, for the reasons heretofore stated, I would accord plaintiff the right to take their depositions also. Thus, while I concur with the result reached by the majority in refusing http://www.~exis.c~m/research/retrieve?-m=dc5b8b29d9~dd2d9~9ceaa42~M6aa9&csvc=... 12/4/2003 Get a Document - by Citation - 30 Pa. D. & C.2d 678 Page 5 of 5 the depositions of these defendants [**~.2] at this time, I must respectfully disagree with the other reasons advanced in support of such conclusion. Service: Get by LEXSEE® Citation: 30 Pa. D&C.2d 678 View: Full Date/Time: Thursday, December 4, 2003 - 11:05 AM EST * Signal Legend: !~1 - Warning: Negative treatment is indicated ~- Caution: Possible negative treatment ~1, - Positive treatment is indicated ~1 - Citing Refs. With Analysis Available I~1 - Citation information available * Click on any Shepard's signal to Shepardize®that case. About LexisNexis I Terms and Conditions CoDyrioht © 2003 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. http://www.~exis~c~m/res~arch/retrieve?-m=dc5b8b29d9f9dd2d9~9ceaa42fb46aa9&csvc=~~~ 12/4/2003 RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5043 - CIVIL TERM CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this ~_~ day of December 2003, served a copy of the foregoing Motion for Protective Order Submitted on Behalf of Defendant, Rite Aid of Pennsylvania, Inc., via First Class United States mail, postage prepaid as follows: Luther E. Milspaw, Jr., Esquire Milspaw & Basehore 130 State Street Harrisburg, PA 17101 Thomas R. Miller, Esquire Miller & Miller 401 South 32nd Street Camp Hill, PA 17011 Attorney for Jon A. Dubin, D.O. and Holy Spirit Health System ~x,x~hne M. Parr DEC 1 7 2003 \05_A\LIAB\TBM\LLPG\I 39413UMF\I 8155\00273 RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, 1NC., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5043 - CIVIL TERM CWIL ACTION - LAW JURY TRiAL DEMANDED ORDER AND NOW, this /g"day of ~ _, 2003, upon consideration of the foregoing Petition, it is hereby ORDERED that: 1. A Rule is issued upon the Respondent Rountree to show cause why the Petitioner, Rite Aid of Pennsylvania, Inc. is not entitled to the relief requested; 2. Respondent shall file an Answer to the Petition within 2-~ days of this date; 3. The Petition shall be decided under Pa.R.C.P. 206.7; 4. Argument shall be held on ~-/'a~ , ,.~ ~ of the Cumberland County Courthouse; and , in Courtroom 5. Notice of the Entry of this Order shall be provided to all parties by the Petitioner Rite Aid of Pennsylvania, Inc. BY THE COURT: RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs Vo JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and R/TE AID of PENNSYLVANIA, INC., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 03-5043-CIVIL TERM : Jury Trial Demanded PLAINTIFFS' ANSWER TO DEFENDANT RITE AID OF PENNSYLVANIA INC.'S .MOTION FOR PROTECTIVE ORDER AND NOW, come Plaintiffs by their attorney, Luther E. Milspaw, Jr., Esquire, and answer the Motion for Protective Order filed on behalf of Defendant Rite Aid of Pennsylvania, Inc., as follows: 1 through 12. Admitted. 13 through 16. Denied. The Defendants' respective Motiohs for Judgment on the Pleadings are bases on Defendants' assertions that is it inevitable that Plaintiffs' claims under the Wrongful Death and Survival Statute are time-barred by the applicable two year Statute of Limitations. To the contrary, this issue is a genuine one to be determined by this Court after reflection on the unique facts in this case. 17 through 18. Admitted. 19. Denied. Plaintiffs' renuest for ~ ...... · -~ uu,~m~ents ~s moaest and reasonable and will not cause reasonable annoyance or expense to Defendant Rite Aid of Pennsylvania. 20. Denied. There is nothing that the Plaintiffs have requested which is confidential or privileged or to which they are not entitled. 21. Denied. Plaintiffs do not believe that its Request for Production of Documents should be stayed until the disposition of Defendant's Motion for Judgment on the Pleadings. It is Plaintiffs desire to keep this case moving along as expeditiously as possible. 22. Denied. As stated so eloquently by the Honorable G. Thomas Miller, Esquire in his dissenting opinion in Chait & Company v. Republican State Committee, 30 Pa. D.&C. 2d 67~ ~DauChin C.C.P. 1963), going forward with the Plaintiffs' modest discovery will produce the salutary effect of expediting the litigation. Although the procedural posture of this case is different from the case in Chait &Com an v. Re ublican State Committee 30 Pa. D.&C. 2d 678 Dau hin C.C.P. _1963), Judge Miller's rational remains sound. WHEREFORE, it is requested that the Motion of Defendant Rite Aid of Pennsylvania, Inc. for a Protective Order, be denied. By: Respectfully submitted, ~~i~J.~oE~ q~ 46 Harrisburg, PA 17108-0946 717-236-3141 Voice; 717-236-0791 Fax Lmilspaw@mblawfirm.com ATTORNEy FOR PLAINTIFFS 2 CERTIFICATE OF SERVICE I hereby certify that on January 7, 2004 a true and correct copy of the foregoing Plaintiffs' Answer to Defendant Rite Aid of Pennsylvania, Inc.'s Motion For Protective Order was served by means of regular United States mail, first class, postage prepaid, upon the following: Timothy McMahon, Esquire MarshalI Dennehey Warner Coleman & Googin 4200 Crums Mill Road Harrisburg, PA 17110 Attorney for Defendant Rite Aid of Pennsylvania, Inc. Thomas R. Miller, Esq. Miller and Miller 401 S. 32na Street Camp Hill, PA 17011 Attorney for Defendants Jon A. Dubin, D.O. and Holy Spirit Hospital RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs VS. JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC., Defendants 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-5043 CIVIL IN RE: MOTION OF DEFENDANT RITE AID OF PENNSYLVANIA, INC. FOR PROTECTIVE ORDER ORDER AND NOW, this ~, * day of February, 2004, following argument thereon, the motion of defendant Rite Aid for protective order is GRANTED to the extent that discovery is STAYED pending disposition of a pending motion for judgment on the pleadings. In the event that said motion is resolved in favor of the plaintiffs, the defendant Rite Aid shall respond to the outstanding discovery within thirty (30) days but delimited as follows: 1. Any responses shall not include the names of customers of Rite Aid other than the plaintiffs' decedent. 2. Where information is sought over a term of years it shall be furnished for the years 1992 through 2000 inclusive. BY THE COURT, 'A. Hess, J. Luther Milspaw, Esquire For the Plaintiffs Thomas R. Miller, Esquire Timothy McMahon, Esquire :rim RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs VS. JON A. DUB1N, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC., Defendants 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-5043 CIVIL IN RE: DEFENDANTS' MOTIONS FOR JUDGMENT ON THE PLEADINGS AND NOW, this judgment on the pleadings is GRANTED. BEFORE HESS AND GUIDO, J.J. ORDER · ~o day of April, 2004, the motion of the defendants for BY THECOURT, Luther Milspaw, Esquire For the Plaintiffs Thomas R. Miller, Esquire Timothy McMahon, Esquire For the Defendants · Hess, J. :rlm RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs VS. JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-5043 CIVIL 1N RE: DEFENDANTS' MOTIONS FOR JUDGMENT ON THE PLEADINGS BEFORE HESS AND GUIDO, J.J. OPINION AND ORDER Plaintiffs, Rodney K. and J.P. Rountree, are co-Administrators of the Estate of decedent, Phyllis O'Hare. The plaintiffs instituted this action by filing a praecipe for a writ of summons in the Court of Common Pleas of Dauphin County, Pennsylvania, on or about September 17, 2002. Thereafter, the defendants filed preliminary objections to venue. Ultimately, the parties stipulated that venue in this matter would be transferred to Cumberland County. Eventually a complaint was filed. In their answers, the defendants raised the statute of limitations. Before the court, now, are the motions of the defendants for judgment on the pleadings. Plaintiffs' decedent died on September 19, 1998. Her alleged cause of death was the result of elevated cisapride blood levels which caused cardiological complications. The cardiological complications which were the cause of Ms. O'Hare's death were allegedly brought about by her ingestion of incompatible drugs, Propulsid and Biaxin. Plaintiffs allege that defendant, Jon A. Dubin, D.O., an emergency room physician and employee of Holy Spirit Health System, was at fault for prescribing the antibiotic, "Biaxin", on September 11, 1998. In 03-5043 CIVIL their complaint, plaintiffs allege that the decedent was taking Propulsid at the time when Dr. Dubin prescribed the contraindicated drug, Biaxin. Plaintiffs also allege that decedent's prescription for Propulsid as well as the prescription for Biaxin were filled at a pharmacy owned and operated by defendant, Rite Aid of Pennsylvania, Inc. The defendant, Holy Sprit Hospital, is faulted on vicarious and corporate liability theories with respect to Dr. Dubin's alleged negligence in the emergency room treatment of the decedent. The plaintiffs have brought their claims under our wrongful death and survival statutes. According to the Judicial Code, a cause of action brought under the wrongful death statute must be brought within two years of the death of the individual involved. The praecipe for a writ of sununons was filed in this case two years after the statute of limitations had run. The plaintiff contends, however, that the statute of limitations was tolled by virtue of the discovery role because, for some period of time, the cause of Ms. O'Hare's death was not known nor was it reasonably ascertainable even by the exercise of due diligence. The case law, in Pennsylvania, is clear that the discovery rule does not toll the statute of limitations for matters brought pursuant to the wrongful death or survival statutes. In Anthony v. Koppers Co., Inc., 436 A.2d 181 (Pa. 1981), survival and wrongful death actions were brought by the estate of certain employees against the employer and builders of coke ovens claiming that emissions from the ovens caused the employees to contract lung cancer that ultimately resulted in their deaths. The then applicable statute of limitations for wrongful death actions stated "the action shall be brought within one year after the death, and not thereafter." The Supreme Court held that the clear wording of the statute militated against the application of the discovery rule. 2 03-5043 CIVIL In Pastierik v. Duquense Light Co., 526 A.2d 323 (Pa. 1987), the Supreme Court dealt with the present statute of limitations. This statute provides, "The following actions and proceedings must be commenced within two years ... (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another." 42 Pa.C.S.A. 5524(2). Notwithstanding the considerable difference between this language and the statute dealt with in Anthony, the Supreme Court again concluded that there was no application of the discovery role for wrongful death cases. With respect to the survival action, the Supreme Court concluded that the date on which the victim could ascertain the existence of a cause of action could not be later than the date of death. Thus, both the wrongful death and survival actions were barred. In his dissent, Justice Larson observes that the decision in Anthony was no more than a plurality. He emphasizes the change in the language of the statute of limitations provision. He goes on to make the case that there is no logical basis for barring the application of the discovery rule in wrongful death cases. Justice Larson's dissent was joined, however, by only one other justice of the Supreme Court. Were the issue before us one of first impression, it is possible that we would give the arguments of the plaintiffs favorable consideration. Since the Supreme Court has spoken to the issue, however, we are bound by its pronouncements.~ ~ The plaintiffs also advance certain constitutional arguments in support of the application of the discovery rule to wrongful death actions. These arguments do not, however, address themselves to the constitutionality of legislation but rather to the constitutionality of the Supreme Court's interpretation of that egislation. It would surprise us greatly to learn that we had the authority to declare unconstitutional a holding of the Pennsylvania Supreme Court. 3 03-5043 CIVIL ORDER AND NOW, this 2. o ~ day of April, 2004, the motion of the defendants for judgment on the pleadings is GRANTED. BY THE COURT, Luther Milspaw, Esquire For the Plaintiffs Thomas R. Miller, Esquire Timothy McMahon, Esquire For the Defendants :rim y2 Hess, J. 4 Luther E. Milspaw, Jr., Esquire Attorney I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilspaw~MBLawFirm. com Attorney for Plaintiffs RODNEY K. AND JAY P. ROIYNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUB1N, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID of pENNSYLVANIA, INC., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW · NO 03-5043-CIVIL TERM : Jury Trial Demanded NOTICE OF APPEAL Notice is hereby given that Rodney K. and Jay P. Rountree, Co-Administrators of the Estate of Phyllis O'Hare, Deceased, hereby appeal to the Superior Court of Pennsylvania from the Order entered in this matter on the 20t~ day of April, 2004. This Order has been entered on the Docket as evidenced by the attached copy of the docket entry. May 13, 2004 Han'isburg, PA 17108-0946 (717) 236-3141; FAX (717) 236-0791 Email: Lmil sp aw(~mblawfirm.com Attorney for Plaintiffs Luther E. Milspaw, Jr., Esquire ARomey I.D. No. 19226 130 State Street Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilsp aw(~MB LawFirm.c om Attorney for Plaintiffs RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs Vt JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID of PENNSYLVANIA, INC., Defendants : IN THE COURT OF COMMON PLEAS · . CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 03-5043-CML TERM · ' Jury Trial Demanded STATEMENT OF COUNSEL PURSUANT TO R.A.P. No. 904 This is an appeal from a Grant of Motion for Summary Judgment. There is no transcript of anyproceedings. May 13, 2004 Luther E. Milspaw, Jr., E'~qt~re Supreme Court ID # PA19226 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 (717) 236-3141; FAX (717) 236-0791 Email: Lmilspaw~mblawfirm.com Attorney for Plaintiffs RODNEY K. AND JAY P- ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, Plaintiffs JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID of PENNSYLVANIA, INC., Defendants · IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, pENNSYLVANIA : CIVIL ACTION - LAW : NO. 03-5043-CIVIL TERM : Jury Trial Demanded CERTIFICATE OF SERVICE I hereby certify that on May 13, 2004 a true and correct copy of the foregoing Plaintiffs' Notice of Appeal was served by means of regular United States mail, first class, postage prepaid, upon the following: Timothy McMahon, Esquire Marshall Dennehey Warner Coleman & Googin 4200 Crums Mill Road Harrisburg, PA 17110 Attorney for Defendant Rite Aid of Pennsylvania, Inc. Thomas R. Miller, Esq. Miller and Miller 401 S. 32na Street Camp Hill, PA 17011 Attorney for Defendants Jon A. Dubin, D.O. and F[oly Spirit Hospital The Honorable Kevin A. Hess Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013 The Honorable Edward E. Guido Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013 Taryn Dixon, Court Administrator Cumberland County Court of Comme,n Pleas One Courthouse Square Carlisle, PA 17013 /~ Luther E. Milspaw, Jr. PYS511 2003-050'43 Reference No..: Case TvDe ..... : WRIT OF SUMMONS Ju~gmeh% ..... %: .00 Judge Assignea: Disposed Desc.: ............ Case Comments ............. Cumberland County Prothonotary's Office ~ivil Case Print ROUNTREE RODNEY K ET AL (rs) DUBIN JON A ET AL Filed ........ : Time ......... : Execution Date Jury Trial .... Disposed Date. Higher Crt 1. Higher Crt 2.: Page 1 9/24/2003 8:54 0/00/0000 o/oo/oooo General Index Attorney Info ROUNTREE RODNEY K PLAINTIFF MILSPAW LUTHER E JR (ADMINISTP~ATOR OF ESTATE) NO ADDRESS PROVIDED PLAINTIFF MILSPAW LUTHER E JR MILSPAW LUTHER E JR ROUNDTREE JAY P (ADMINISTRATOR OF ESTATE) NO ADDRESS PROVIDED O'HARE PHYLLIS (DECEASED) NO ADDRESS PROVIDED DUBIN JON A DO NO ADDRESS PROVIDED HOLY SPIRIT HEALTH SYSTEMS NO ADDRESS PROVIDED RITE AID OF PA INC NO ADDRESS PROVIDED PLAINTIFF DEFENDANT DEFENDANT DEFENDANT * Date Entries FIRST ENTRY .............. 9/24/2003 WRIT OF SUMMONS 9/17/2002 NEW CIVIL CASE FILED THIS DATE FILING: WRIT OF SUMMONS PD BY LUTHER E M~LSPAW JR ESQ - FOR JAY P RO~DTREE - RECEIPT #0020084 DATED 9/17/02 AMOUNT $90.00 (CHECK) lO/O7/2oo2 UPON DEF JON A DUBIN DO (CUMBERLAND CO) HOLY SPIRIT HEALTH SYSTEM T/A HOLY SPIRIT (CUMBERLAND CO) AND RITE AID CORP T/A RITE AIF PHARMACY (CUMBERLAND CO) SO ANSWERS JR LOTWICK SHERIFF PAID $86.00 STIPULATION TO AMEND CAPTION FILED 10/31/2002 1/31/2003 2/13/2003 2/19/2003 2/24/2003 3/28/2003 4/02/2003 7/01/2003 COMPLAINT FILED STIPULATION TO AMEND CAPTION APPROVED BY THE COURT SEE STIPULATION TO AMEND CAPTION FILED COPIES MAILED 2/14/03 COPY TO ATTY 2/19/03 ~L~Y $~JECTIONS TO PLF COMPLAINT OF DEF DUBIN & HOLY SPIRIT HOSPITAL FILED BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS OF JON A DUBIN DO & HOLY SPIRIT HOSPITAL FILED FILED BRIEF OF DEF RITE AID OF PA INC IN SUPPORT OF PRELIMINARY OBJECTIONS TO VENUE FILED PRAECIPE TO LIST ARGUMENT FILED BY DEF ~3~6~-~ LIST FOR ARGUMENT FILED BY COUNSEL FOR DEF HOLY SPIRIT HOSPITAL & JON A DUBIN DO FILED ~6~U~-~-~-~IPULATION PRESENTED TO THIS COURT - IT IS HEREBY ORDERED THAT THE PRELIMINARY OBJECTIONS OF DEF(S) JON DUBLIN, HOLY SPIRIT & RITE AID OF PA - REGARDING THE CHANGE IN VENTJE ARE GR3~NTED. THEREFORE THIS CASE ~iH~3BE TP~SFERED TO THE COURT OF COMMON PLEAS OF COPIES DIST 7/ / PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2006~05~43 ROUNTREE RODNEY K ET AL (vs) DUBIN JON A ET AL Filed ........ : 9/24/2003 Reference No..: Time ......... : 8:54 Case Type ..... : WRIT OF SUMMONS 0/00/0000 Judgmeht ...... : .00 Execution Date Jury Trial .... Judge Assigned: Disposed Date. 0/00/0000 Disposed Desc.: Higher Crt 1.: ............ Case Comments ............. Higher Crt 2.: 8/04/2003 METT EVANS & WOODSIDE BY CP~AIG A STONE ESQ WITHDRAWS APPEAR3kNCE ON BEHALF OF DEF(S) JON A DUBIN DO & HOLY SPIRIT HOSPITAL DEF JON A DUBIN - ATTY OF RECORD - G THOMAS MILLER DEF JON A DUBIN - ATTY OF RECORD IS THOMAS R MILLER DEF HOLY SPIRIT HOSPITAL - ATTY OF RECORD G THOMAS MILLER DEF HOLY SPIRIT HOSPITAL - ATTY OF RECORD - THOMAS R MILLER 8/25/2003 PURSUANT TO THE ORDER ENTEERD BY THIS COURT ON 7/1/03 A COPY OF WHICH IS ATTACHED - IT IS HEREBY ORDERED THAT THE PROTHONOTARY OF DAUPHIN CO IS DIRECTED TO TRANSFER THE RECORD IN THIS MATTER TO THE PROTHONOTARY OF THE COURT OF COMMON PLEAS OF CUMBERLAiqD CO PA SEE ORDER FILED COPIES DIST 8/28/03 THE ABOVE ACTION TRANSFERED TO THE COURT OF COMMON PLEAS OF 8/29/2003 8/29/2003 9/24/2003 10/15/2003 10/23/2003 10/27/2003 11/03/2003 11/04/2003 11/06/2003 12/02/2003 12/04/2003 12/16/2003 12/18/2003 NO MORE ENTRIES CASE TRAIqSFERRED TO MIDDLE DISTRICT COURT __ WRIT OF SUMMONS . - .................. ~-~-~-~-~-6~-~]~-~-~-PENNSYLVANIA INC TO PLAINTIFFS' COMPLAINT BY TIMOTHY J MCMAHON ESQ REPLY TO NEW MATTER BY LUTHER E MILSPAW JR ESQ FOR PLFF HEALTH SYSTEM T/A Mom ....... - -~ - _ ..................... ~L~-~6-~-~- ]-~-Lo~-~-~LS]?AW JR ESQ FOR PLFFS FOR DEFT~ _ .................. HOLY SPIRIT HEALTH SYSTEM T/A HOLY SPIRIT HOSPITAL - BY THOMAS R MILLER ESQ FOR DEFTS .......................................................... ~&~2-FOR LISTING CASE FOR ARGUMENT - DEFTS ~ON,A DUBIN DO AND HOLY SPIRIT HEALTH SYSTEM T/A HOLY SPIRIT HOSPITAL S MOTION FOR ~GMENT ON THE PLE~INGS - BY ~ON A D'UBIN ES~ ............................................................. ~PE FOR LISTING CASE FOR ARGUMENT - DEFT RITE AID OF Pa INC'S MOTION FOR JUDGMENT ON THE PLEADINGS - BY TIMOTHY J MCMAHON ESQ FOR DEFT .................................. ~$~$~-~6[-~$~6~-$[5~-~U6~T~ED ON BEHALF OF DEFT RITE AID OF PA INC - TIMOTHY J MCMAHON ESQ FOR DEFT RESPONDENT - RESPONDENT SHALL FILE AN ANSWER TO PETITION WITHIN 20 DAYS OF THIS DATE - ARGUMENT SHALL BE HELD ON 2/5/0~ AT 2:30 AM IN CR 4 - BY THE COURT KEVIN A HESS J COPIES MAILED 12/18/03 ................................................................... 1/07/2004 PLAINTIFF'S ANSWER TO DEFT RITE AID OF PA INC'S MOTION FOR PROTECTIVE ORDER - BY LUTHER E MILSPAW JR ESQ FOR PLFF ................................... 2/06/200~ $[56[-]-5A~6-~2~26~-]-~-~[~$TISN oP DEFT RITE AID OF PA INC ~OR PROTECTIVE ORDER - DATED 2/6/04 - GR3~N'TED - TO THE EXTENT THAT DISCOVERY IS STAYED PENDING DISPOSITION OF PENDING MOTION FOR JUDGMENT ON THE PLEADINGS - BY THE COURT KEVIN A HESS J COPIES MAILED ................................................................... 4/21/2004 OPINION AND ORDER - DATED 4/20/04 - IN RE DEFTS' MOTION FOR JUDGMENT ON THE PLEADINGS - IS GRANTED - BY THE COURT KEVIN A HESS J COPIES MAILED .............. LAST ENTRY .............. PYS511 Cumberland County Prothonotary's office Page 3 Civil Case Print 200G~05043 ROUNTREE RODNEY K ET AL (rs) DUBIN JON A ET AL Filed ........ : 9/24/2003 Reference No..: Time ......... : 8:54 Case Type ..... : WRIT OF SUMMONS Execution Date 0/00/0000 Ju~gmeh~ ...... : .00 Jury Trial .... Judge Assigned: DisDosed Date. 0/00/0000 Disposed Desc.: Higher Crt 1.: ............ Case Comments ............. Higher Crt 2.: . . Escrow Information * Fees Debits Beg Bal Pymts/Adj End Bal * WRIT OF SUMMONS 35.00 35.00 o00 TA~ ON WRIT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 55.50 -~- .oo Information * End of Case ............. ************************* ~RUE COPY FROM RECORD m Testimony wlmreoi, t here unto'set my bane ,,. . Received in Superior Court JUN 0 2 2004 MIDDLE IN THE SUPERIOR COURT OF PENNSYLVANIA RODNEY K. AND JAY P. ROUNTREE, CO-ADMINISTRATORS OF THE ESTATE OF PHYLLIS O'HARE, DECEASED, APPELLANTS JON A. DUBIN, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID of PENNSYLVANIA, INC., APPELLEES : Superior Court Docket No. 774 MDA 2004 : Trial Court Docket Nos. 03-5043 CIVIL TERM DESIGNATION OF RECORD Pursuant to Pa.R.A.P. 2154(a) Appellants, pursuant to Pa. R.A.P. 2154(a) designates: A. The following parts of the records to be reproduced: Page number from original record Date Document Certified Docket Entries: 1 09/17/2002 Writ of ;Summons 16-29 01/31/2003 Complaint 106-118 10/15/2003 119-120 10/23/2003 121-129 10/27/2003 130-131 11/03~003 132-164 11/04/2003 165-168 11/06/2003 233-237 04/21/2004 Answer with New Matter of Defendant Rite Aid of Pennsylvania, Inc.. To Plaintiffs' Complaint by Timothy J. McMahon, Esq. for Defendant Reply to New Matter by Luther E. Milspaw, Jr., Esq. for Plaintiffs Answer with New Matter of Defendants Jon A. Dubin, DO and Holy Spirit Hospital Health System T/A Holy Spirit by Thomas R. Miller, Esq. For Defendants Reply to New Matter by Luther E. Milspaw, Jr., Esq. For Plaintiffs Motion for Judgment on the Pleadings by Timothy J. McMahon, Esq. for Defendant Motion for Judgment on the Pleadings of Defendants Jon A. Dubin, DO and and Holy Spirit Hospital Health System T/A Holy Spirit by Thomas R. Miller, Esq. For Defimdants Opinion and Order dated 04/20/04 in re Defendants' Motion for Judgment on the Pleadings is granted by the Court Kevin A. Hess B. The following issues for review: Should Plaintiffs Be Permitted to Continue: with Their Wrongful Death and Survival Actions Because They Commenced this Lawsuit Within Two Years of the Date When They Ascertained the Reasons for the Death of Their Mother; ° Does Denying the Plaintiffs the Protection of the Discovery Rule Violate the Remedies Clause of the Pennsylvania Constitution and the Privileges and Immunities Clause of the U.S. Constitution; Does Denying the Plaintiffs the Protection of the Discovery Rule Violate the Equal Protection Clauses of the U.S. and Pennsylvania Constitutions; Does Denying the Plaintiffs the Protection of the Discovery Rule Violate the Due Process Clauses of the U.S. and Pennsylvania Constitutions. Harrisburg, PA 17101 (717) 236-3141 Voice; (717) 236-0791 Fax LMilspaw~MBLawFirm.com Attorney for Appellants Dated June 2, 2004 CERTIFICATE OF SERVICE I hereby certify that on June 2, 2004 a true and con:ect copy of the foregoing Appellants' Designation of Record was served by means of regular United States mail, first class, postage prepaid, upon the following: Timothy McMahon, Esquire Marshall Dennehey Warner Colema~n & Googin 4200 Crums Mill Road Harrisburg, PA 17110 Attorney for Defendant Rite Aid of Permsylvania, Inc. Thomas R. Miller, Esq. Miller and Miller 401 S. 32nd Street Camp Hill, PA 17011 Attorney for Defendants Jon A. Dubin, D.O. mad Holy Spirit Hospital The Honorable Kevin A. Hess Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013 The Honorable Edward E. Guido Cumberland County Court of Common Pleas One Courthouse Square'. Carlisle, PA 17013 Taryn Dixon, Court Administrator Cumberland County Court of Conunon Pleas One Courthouse Square Carlisle, PA 17013t / ~ Lurer E. Milspaw, Jr. [ J-A36025-04 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.65.37 RODNEY K. AND JAY P. ROUNTREE FOR THE ESTATE OF PHYLLIS O'HARE, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellants Ii 6j SV43 ~ v. JON A. DUBIN & HOLY SPIRIT HOSPITAL AND RITE AID OF PENNSYLVANIA, INC., Appellees No. 774 IIIJDA 2004 Appeal from the Order entered April 20, 2004, In the Court of Common Pleas of Cumberland County, Civil Division at No. 03-5043-Civil Term BEFORE: FORD ELLIOTT, JOYCE and BECK, JJ. MEMORANDUM: FILED: Ji:lnuary 10, 2005 Appellants, Rodney K. and Jay P. Rountree for the Estate of Phyllis O'Hare, appeal from the April 20, 2004 order of the Court of Common Pleas of Cumberland County that granted the motions for judgment on the pleadings filed by Appellees, Jon A. Dubin, Holy Spirit Hospital and Rite Aid of Pennsylvania, Inc. For the following reasons, we affirm. On September 17, 2002, Appellants commenced a wrongful death and survival action against Appellees. In their complaint, Appellants averred that their mother, Phyllis O'Hare, died on September 19, 1998, as a result of her concomitant ingestion of two prescription drugs, Biaxin and Propulsid. Appellees filed an answer and new matter to the complaint. Thereafter, Appellees filed motions for judgment on the pleadings, in which they stated that Appellants' action was barred by the two-year statute of limitations for J-A36025-04 wrongful death and survival actions since Appellants did not bring the action within two years of their mother's death. On May 13, 2004, the trial court granted Appellees' motion for judgment on the pleadings. In the opinion accompanying the order, the trial court explained that the two-year statute of limitations began to run on Appellants' claims, at the latest, on the date of the decedent's death, that Appellants filed the action nearly four years after the death, and that the discovery rule was inapplicable. See Pastierik v. Duquesne Light Company, 514 Pa. 517, 520, 526 A.2d 323, 325 (1987), citing Anthony v. Koppers Co., 496 Pa. 119,436 A.2d 181 (1981) (holding that the statute of limitations for wrongful death and survival actions begins, at the latest, on the date of death and that "the period for bringing wrongful death and survival actions was not to be extended by the discovery rule"). This appeal followed. When reviewing an order granting a motion for judgment on the pleadings, our scope of review is plenary. Pentlong Corp. v. GLS Capital, Inc., 573 Pa. 34, 43 n.9, 820 A.2d 1240, 1245 n.9 (2003). Further, "[t]he appellate court must decide whether the trial court committed an error of law or whether the pleadings disclosed facts that should have gone to the jury." Id. In their brief, Appellants contend that the trial court committed an error of law when it relied upon the Pastierik decision. Appellants' Brief, at 10. Appellants do not argue that their case is distinguishable from 2 ]-A36025-04 Pastierik. Rather, they have asserted that "it is time to reexamine the rule pronounced in Pastierik." Appellants' Brief, at 12. As we lack the authority to reexamine or depart from any rule pronounced by the Supreme Court, we may not examine this issue. See Moses v. T.N. T. Red Star Express, 725 A.2d 792, 801 (Pa. Super. 1999) (stating that the Superior Court, as an intermediate appellate court, is obligated to follow the precedent set down by the Supreme Court of Pennsylvania). In their remaining issues, Appellants contend that denying them the protections of the discovery rule violates the Remedies, Equal Protection and Due Process Clauses of the Pennsylvania Constitution and the Privileges and Immunities, Equal Protection and Due Process Clauses of the United States Constitution. Appellants' Brief, at 20, 23, and 27. As an intermediate appellate court, we will not review the correctness of our Supreme Court's decision in Pastierik under the guise of a constitutional challenge. See Gravinese v. Johns-Manville Corporation, 471 A.2d 1233, 1237 (Pa. Super. 1984) (en bane) (deeming it inappropriate that an appellant ask the Superior Court to review the correctness of the Supreme Court's holding in Anthony v. Koppers, Co., supra under the color of a constitutional challenge). Finding that the trial court did not commit an error of law by following Supreme Court precedent, and recognizing that we lack the authority to review the rule pronounced in Pastierik, we affirm the order granting Appellees' motions for judgment on the pleadings. 3 J-A36025-04 Order affirmed. Date: 4 " (-' "~ \ 1 il'- ~'''''. r-i -- (:,:} . ~.~. c-" ()\ -