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Home My WebLink About03-5219 DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: - ()3- '5~/9 CI ~i1 ,-, PINNACLE HEALTH SYSTEM d/b/tla PinnacleHealth and Pinnac1eHealth System, : Defendant : JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS To the Prothonotary: Please issue a writ of summons in the above captioned action. Writ of Summons shall be issued and forwarded to the Sheriff of Cumberland County at One Courthouse Square, Carlisle, Pennsylvania 17013. Date: 10/2/2003 :~~7 "._______ Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, P A 17013 Supreme Court 10# 81924 (717) 241-6070 WRIT OF SUMMONS To The Above Named Defendants: PINNACLE HEALTH 409 South Second Street Harrisburg, PA 17104 YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Date: (;.dblq ",'7 ,9C03 /51 C<-Vt'rk vi( ~ntf Prothonotary rI By: . Ae/14 /l1ff1i;~ f4; De~/l ~r- :tr: '-- .,.., , '\ ....,\ '" - '!\ {,~ -i'\- .~. .\:::, .c ~,) '-.', "-,"",- (/ r: :;:-> ~'-"(': ;Li: ,It \. ' OJ -', r::l '/;:1 J S:~ ;.~: -"'" --........, ~~, I.././.....~.. . ~ .... ., j ~<> c::. STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN Mailing Address: P.O. Box 932 Harrisburg, PA 17108-0932 Street Address: 3510 Trindle Road Camp Hill, PA 17011 Telephone: FAX, E-mail: (717) 975-8114 (717) 975-8124 sbanko@margolisedelstein.com Attorney for Defendant IN THE COURT OF COMMON P:wEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v, NO. 03-5219 PINNACLE HEALTH SYSTEM d/b/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendant in the above-captioned matter. MARGOLIS EDELSTEIN Date: Octobertyo, 2003 By: Ste h L. Banko, Jr. Attorney I.D. No. 41727 Attorney for Defendant CERTIFICATE OF SERVICE; I hereby certify that I have served a true and correct copy of the foregoing document on all counsel of record by placing the same in the United States Mail at Camp Hill, Pennsylvania, first- class postage prepaid, on the ~O day of ~~~~, 2003, addressed as follows: Karl E, Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (Counsel for Plaintiff) Barbara J. Smith (") r-~- lJ,'c EP( ~ (.'.) -' r':;: - :::::::. ",-:2:,- ::;--.( ,5;1 .-:.:.) :..., C (...,) Q c-) '-1 C''> ;'r'i '-1 STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN Mailing Address: P.O. Box 932 Harrisburg, FA 17108-0932 Street Address: 3510 Trindle Road Camp Hill, PA 17011 Telephone: FAX, E~mail: (717) 975-8114 (717) 975-8124 sbanko@margolisedelstein.com Attorney for Defendant IN THE COURT OF COMMON PI..EAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v, NO. 03-5219 PINNACLE HEALTH SYSTEM d/b/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please issue a Rule upon Plaintiff to file a Complaint within twenty (20) days from service hereof or suffer judgment non pros, MARGOLIS EDE:C,STEIN Date: October~, 2003 By: . Banko, Jr. J.D. No. 41727 Attorney for Defendant RULE TO THE PLAINTIFF: You are hereby ordered and directed to file your Complaint against Defendant in the above-captioned matter within twenty (20) days of service of this Rule against you or suffer judgment non pros, Date: {)cJ:. ;)1. daB t i. () /~I J. Ll 1- Prothonotary, ~~rland County ;;2L- CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document on all counsel of record by placing the class postage prepaid, on the at Camp Hil:., Pennsylvania, first- 7_0 day of ()~, 2003, same in the United States Mail addressed as follows: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (Counsel for Plaintiff) /J~'"'^- ~~.Td Barbara J. Smith () ~~; -;-1"-;" n'::i! -~".. . ", en -< r:-~ :::-- ~),,:: " ",.- r..~ r-, ,~ => 1,-' ,-,-1 N () ~n ~'.: 1-;' N ,.}~ ". :..) ":;.~ STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN Mailing Address: P.O. Box 932 Harrisburg, PA 17108~0932 Street Address: 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 9V5-8114 FAX, (7171 975-8124 E-mail: sbanko@margolisedelstein.com Attorney for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEKt plaintiff CIVIL ACTION - LAW NO. 03-5219 PINNACLE HEALTH SYSTEM d/b/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMANDED PROOF OF SERVICE I The underS~gned hereby certifies that a true and correct copy of Rule tol File Complaint of Defendant, Pinnacle Health System d/b/t/a ~innacle Health and pinnacle Health System, was I served upon thel person and in the manner indicated below: Service bv First Class Mail: Karl E, Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (Counsel for Plaintiff) Date: October L- 2003 IS EDELSTEIN tV~ .... , By: St phen L. Banko, Jr. Attorney I.D. No, 41727 Attorney for Defendant, Pinnacle Health System CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document on all counsel of record by placing the same in the United States Mail at Camp Hill, Pennsylvania, first- class postage pirepaid, on the 2-.'2.... day of O~, 2003, addressed as fOil lows : Xarl E. Rominger, Esquire 155 South Hanover Street Icarlisle, PA 17013 '(Counsel for Plaintiff) Jf~~ \l7~ Barbara J. Smith --"-'-- L':--~ ,,- >:. ~/.". 'j;' '- o S I.., , :-:) " ., '<~ SHERIFF'S RETURN - OUT OF COUNTY , . CASE NO: 2003-05219 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND VOZENILEK DONNA VS PINNACLE BEALTH SYSTEM DBTA PI R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: PINNACLE HEALTH SYSTEM DBTA PINNACLEHEALTH & PINNACLEBEALT but was unable to locate Them in his bailiwick, He therefore deputized the sheriff of DAUPHIN serve the within WRIT OF SUMMONS County, Pennsylvania, to On October 15th , 2003 , this office was in receipt of the attached return from DAUPHIN sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin Co 25.50 .00 62.50 10/15/2003 ROMINGER & BAYLEY ~~-~~ R. Thomas"'1<;y.t'ne Sheriff of (Cumberland County Sworn and subscribed to before me this -l3A..(. day of 0~ .;Jrm3 A.D. O;{. () 'n-t JRIL Up;,., Prothonotary in 'Fhe Court of Common Pleas ofC..._ '.~rland County, Pennsylvama Donna Vozenilek VS. Pinnacle Health System d/b/t/a PinnacleHealth and Pinnacle Health System SE!lVE: same No. 03-5219 civil Now, October 6, 2003 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk ofthe Plaintiff. ~~~~.R Sheriff of CUlTI berland County, P A Affidavit of Service Now, ,20_, at o'clock M. served the within upon at by handing to a copy of the original and made kno'wn to the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this _ day of ,20_ COSTS SERVICE MILEAGE AFFIDAVIT $ , $ @iiitt of tlr~ ~4~X'iff William T. Tully Solicitor J. Daniel Basile Chief Deputy Mary Jane Snyder Real Estate Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania VOZENILEK DONNA vs County of Dauphin PINNACLE HEALTH SYSTEMS D/B/T/A PINNAC Sheriff's Return No. 2665-T - -2003 OTHER COUNTY NO. 03 5219 AND NOW: October 9, 2003 at 9: 10M served the within WRIT OF SUMMONS upon PINNACLE HEALTH SYSTEMS D/B/T/A PINNACLE by personally handing HEALTH SYSTEM to ROBERT GABLER (RISK MANAGEMENT) 1 true attested copy(ies) of the original WRIT OF SUMMONS and making known to him/her the contents thereof at 409 SOUTH SECOND STREET HARRISBURG, PA 17104-0000 Sworn and SUbSCr;jrd to before me W'S 9TH d..ay f CTOBER, 2003 " . ,-'-tfJip ;1 I c;-. \ hafi;;~..cU i jR~ PROTHONOTARY 'bedff ~ """'ty, By D ut~~ Pa. Sheriff's Costs: $25.50 PD 10/08/2003 RCPT NO 183571 T FRITZ DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA vs. : CIVIL ACTION - LAW : NO: 03-5219 PINNACLE HEALTH SYSTEM dlblt/a Pinnacle Health and Pinnacle Health System: Defendant : JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the foI!owing pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and ajudgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or reliefrequested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER A T ONCE. IF YOU DO NOT HAVE A LA WYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WiTH INFORAMTION ABOUT AGENCIES THA T MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. . Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 Phone: (717) 249-3166 or (800) 990-9108 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the Court, please contact our office. AI! arrangements must be made at least 72 hours prior to any hearing or business before the Court. You must attend the scheduled conference or hearing our office. All arrangements must DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA vs. : CIVIL ACTION - LAW : NO: 03-5219 PINNACLE HEALTH SYSTEM dlbltla Pinnacle Health and Pinnacle Health System: Defendant : JURY TRIAL DEMANDED COMPLAINT AND NOW, comes Plaintiff, by and through her attorney, Karl E. Rominger, Esquire and in support of her Complaint avers as follows: I. Plaintiff Donna Vozenilek is an adult individual residing in Cumberland County, PA. 2. Defendant Pinnacle Health is a hospital I Healthcare provider in Harrisburg, P A. 3. Jurisdiction is proper as the complained of invasions, acts, and publication took place in Cumberland County amongst others 4. Plaintiff received various private medical services from defendant Pinnacle, including mammography. 5. As a medical facility treating plaintiff, pinnacle maintained a file on plaintiff which was labeled with her name, social security number, date of birth, and type of procedure. 6. The purpose of this while was to maintain medical records on Plaintiff, for treatment and diagnosis. 7. Upon information and belief Defendant Pinnacle sought to expand its reputation in the community and lor generate new patients by running a series of advertisements to coincide with Breast Cancer Awareness Month. 8. Defendant prepared such an advertisement and placed the same in various publications of wide circulation, beginning on September 29, 2002 and continuing throughout October of 2002. 9. Defendant included a photo element in said advertisement, which included Dr. Donald Buxton holding the aforementioned folder of Plaintiff. 10. The advertisement showed not only Plaintiff's folder, but also the biographical data contained thereon. 11. Plaintiff's identity, consisting of her name, social security number, and date of birth were thus broadcast to a large segment of the public. 12. Further, the Defendant revealed to the public that a mammogram was performed on Plaintiff, without her consent to release her medical records. 13. Even while aware of the defect in the advertisement, Defendant failed to pull the same, and or prevent additional copies and publications of the ad from occurring. 14. Even after written and oral demand to cease and desist by Plaintiff, Defendant continued publishing her confidential information and medical records. INVASION OF PRIVACY 15. The previous paragraphs are incorporated by reference as if more fully set out herein. 16. Plaintiff had her privacy invaded by Defendant's actions. 17. Defendant was not privileged to do so. 18. There was no legitimate reason to disclose Plaintiff's identity, identity reference points, nor medical procedures procured. 19. Said private information was an intrusion upon seclusion and also constituted publicity given to a private life. 20. The material published was highly offensive and shocks the sensibilities. 21. The information released was not of legitimate public concern. 22. Plaintiff was damaged and continues to suffer damages as a result of this invasion of her privacy, including shock, nervousness, emotional distress, pecuniary loss, pain, suffering, and concern. 23. Defendant's actions were the direct and proximate cause of Plaintiff's harm. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award in her favor in an amount in excess of the statutory limits for compulsory arbitration, including costs of this suit and attorneys fees, and punitive damages. BREACH OF PATIENT CONFIDENTIALITY BY A PHYSICIAN 24. The previous paragraphs are incorporated by reference as if more fully set out herein. 25. Defendant was in the business of treating and providing medical services to Plaintiff. 26. Defendant breached the duty of confidentiality owed plaintiff when defendant released her medical records and other personal information. 27. Defendant did not have Plaintiff's consent. 28. Plaintiff was damaged and continues to suffer damages as a result of this breach, including shock, nervousness, emotional distress, pecuniary loss, pain, suffering, and concem. 29. At the time of the breach Defendant violated the portiones) of HIPPA in effect, and / or those portions of HIPPA yet to be enacted, but which were known to Defendant. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award in her favor in an amount in excess of the statutory limits for compulsory arbitration, including costs of this suit and attorneys fees, and punitive damages. CONVERSION 30. The previous paragraphs are incorporated by reference as if more fully set out herein. 31. Plaintiff possesses an identity, which is composed of her date of birth, name, & social security number. 32. In modern society anyone with these three data points may subsume the identity of the other, and I or use the identity fraudulently. 33. Defendant took Plaintiff's identity, with which Defendant had been entrusted, and placed it in its advertisement, thus giving Plaintiff's identity to the public at large. 34. Plaintiff has thus lost the security inherent to an identity created of three data points. 35. Defendant used Plaintiff's identity for its own financial gain. 36. Plaintiff was damaged and continues to suffer damages as a result of this breach, including shock, nervousness, emotional distress, pecuniary loss, pain, suffering, and concern . 37. Plaintiff continues to suffer as all of her accounts and I or other personal and private records are now subject to review and I or misuse by random third parties who either saw the advertisement, or who someday may see the advertisement. 38. This causes Plaintiff great anxiety. 39. Plaintiff is entitled to be compensated for the value of her identity. PUNITIVE DAMAGES 40. The previous paragraphs are incorporated by reference as ifmore fully set out herein. 41. The conduct of Defendant was shocking and outrageous. 42. The conduct was willful, wanton, and intentional. 43. Defendant took financial gain and I or intended to gain while harming plaintiff. 44. Plaintiff is entitled to punitive damages. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award in her favor in an amount in excess of the statutory limits for compulsory arbitration, including costs of this suit and attorneys fees, and punitive damages. Respectfully submitted, ROMINGER & BAYLEY Date: /L/" v J.... Y, L c- G;. 7 c-) /- Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ill # 81924 Attorney for Plaintiff VERIFICATION I verifY that I am attorney for the petitioner and that the statements made in the foregoing Petition are true and correct to the best of knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. ~ 4904, relating to unsworn falsification to authorities. Date: J ("'v. 2 c.( 'Lc.,';.; .------=:;?- ~ KARL ROMINGER DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 03-5219 PINNACLE HEALTH SYSTEM dIb/t/a Pinnacle Health and Pinnacle Health System: Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Donna V ozenilek, Plaintiff, do hereby certifY that I this day served a copy of the Complaint upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Stephen 1. Banko, Jr., Esquire Margolis Edelstein P. O. Box 932 Harrisburg, PA 17108-0932 ./- ~. Dated:~V. 1 ~ 2063 Karl E. Rominger, Esquire Attorney for Plaintiff " "........," .., <:::11.'" IT,r" 2~ --;.:''>- ~. C' f-~ ):c,. ~~~; :::;J " o c__ ~-\ '..' .~ ~ '" :_J , , '!? :::'1 (..l c') ~' ,--n -) -~~ :J..J -< STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN Mailing Address: P.O. Box 932 Harrisburg, PA 17108-0932 Street Address: 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 975-8114 FAX, (717) 975-8124 E-mail: sbanko@margolisedelstein.com Attorney for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v. NO. 03 -5219 PINNACLE HEALTH SYSTEM d/b/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT, PINNACLE HEALTH SYSTEM d/b/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, TO PLAINTIFF'S COMPLAINT A. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE - PA. R.C.P. NO. 1028(a) (2) 1. Plaintiff commenced the above-captioned action by Praecipe for Writ of Summons. 2. Defendant, Pinnacle Health System ("Pinnacle"), served a Rule to File a Complaint upon Plaintiff and thereafter served upon counsel for Plaintiff a Notice of Intent to Enter Judgment Non Pros. 3. On November 24, 2003, on the tenth day after service of the Notice of Intent to Enter Judgment Non Pros, Plaintiff's counsel filed a Complaint, which included an attorney's Verification. 4. Although the Complaint was filed on or about November 24, 2003, it was not served upon counsel for Pinnacle until December 1, 2003. A copy of Plaintiff's Complaint is attached hereto, incorporated herein by reference and marked as Exhibit A. 5. Pa. R.C.P. No. 1024(C) provides: The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of the person's information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by a party. 6. The Complaint filed on behalf of Plaintiff and purportedly verified by Attorney Rominger, does not contain a Verification as required by Pa. R.C.P. No. 1024(c). Accordingly, said Complaint does not comply with the Pennsylvania Rules of Civil Procedure. 7. Pa. R.C.P. No. 1028(a) (2) provides: -2- Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: * * * (2) Failure of a pleading to conform to rule of court . 8. A Complaint which is not endorsed with a Verification signed by Plaintiff or otherwise in compliance with Pa. R.C.P. No. 1024(c) makes the Complaint a nullity and is properly stricken pursuant to Pa. R,C.P. No. 1028(a) (2). WHEREFORE, Defendant, Pinnacle Health System d/b/t/a pinnacle Health and Pinnacle Health System, prays this Honorable Court enter an Order striking Plaintiff's Complaint pursuant to Pa. R.C.P. No. 1028(a) (2) for failure to conform to Pa. R.C.P. No. 1024 (c) . B. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE - PA. R.C.P. NO. l028(a) (2) 9. The averments contained in paragraphs 1 through 8 hereof are incorporated herein by reference as if set forth in their entirety. 10. Plaintiff's Complaint contains claims for invasion of privacy, breach of patient confidentiality by a physician and conversion. 11. It further contains a claim for punitive damages. 12. In the ad damnum clause of each of these claims (except -3- for conversion), Plaintiff requests: "an award in her favor in an amount in excess of the statutory limits for compulsory arbitration, including costs of suit and attorneys fees, and punitive damages." 13. Pennsylvania law is well-settled that absent an express statutory provision or agreement between the parties, attorney's fees are not recoverable in a tort action. 14. Accordingly, Plaintiff's claims for attorney's fees, as contained in her Complaint, are properly stricken, pursuant to Pa. R.C.P. No. 1028(a) (2), for failure to conform to rule of law. WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System, prays this Honorable Court enter an Order striking Plaintiff's claims for attorney's fees, pursuant to Pa, R.C.P. No. 1028 (a) (2), for failure to conform to rule of law. C. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER - PA. R.C.P. NO. 1028 (a) (4) 15. The averments contained in paragraphs 1 through 14 hereof are incorporated herein by reference as if set forth in their entirety. 16. Contained in Plaintiff's Complaint is a claim for "breach of patient confidentiality by a physician." This claim is embodied in paragraphs 24 through 29 of Plaintiff's Complaint. -4 - 17. As set forth in paragraphs 2 and 5 of her Complaint, Plaintiff recognizes that Pinnacle is a hospital and not a physician. lB. Furthermore, Plaintiff's claim for breach of confidentiality cites no specific statutory provision or other rule of law establishing such a duty. 19. In paragraph 29 of her Complaint, Plaintiff alleges a violation of "HIPPA," but does not specifically identify the Act, the portion or provision so affected and, quite surprisingly, alleges a violation of a provision "yet to be enacted." 20. Pa. R.C.P. No. 1028(a) (4) provides that Preliminary Objections may be filed by any party to test the legal sufficiency of a pleading (demurrer). 21. Pinnacle believes and, therefore, avers that Plaintiff's claim for breach of patient confidentiality by a physician fails to state a claim upon which relief may be granted against pinnacle and, therefore, such claim is properly dismissed pursuant to Pa. R.C.P. No. 102B(a) (4). WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and pinnacle Health System, prays this Honorable Court enter an Order, pursuant to Pa. R.C.P. No. 102B(a) (4), dismissing Plaintiff's claim for breach of patient confidentiality by a physician. -5- D. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION FOR MORE SPECIFIC PLEADING - PA. R.C.P. NO. l028(a) (3) 22. The averments contained in paragraphs 1 through 21 hereof are incorporated herein by reference as if set forth in their entirety. 23. In the alternative to Preliminary Objection C., Pinnacle files this Preliminary Objection, pursuant to Pa. R.C.P. No. 1028 (a) (3), requesting that Plaintiff be required to provide a more specific pleading identifying the basis of her claim for breach of patient confidentiality and specifically identify the term "HIPPA" and each and every portion or provision thereof which Plaintiff believes was violated by pinnacle. WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System, prays this Honorable Court enter an Order, pursuant to Pa. R.C.P. No. 1028(a) (3), requiring Plaintiff to file a more specific pleading with respect to her claim for patient confidentiality, identifying each statute, regulation or decision and the specific provisions thereof which she believes were violated by pinnacle to her detriment. -6- E. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER - PA. R.C.P. NO. l028(a) (4) 24. The averments contained in paragraphs 1 through 23 hereof are incorporated herein by reference as if set forth in their entirety. 25. Beginning with paragraph 30, Plaintiff makes a claim for "conversion. " 26. Pennsylvania law is well-settled that an action for conversion is limited to the wrongful detention of chattels or other property. 27. Pennsylvania law does not recognize a cause of action in conversion of an intangible or inchoate property right unless such intangible rights are merged into a document such as promissory notes, bank checks and stock certificates. 28. Accordingly, Plaintiff's claim for conversion is properly dismissed pursuant to Pa. R.C.P. No. 1028(a) (4) for failure to state a claim upon which relief may be granted. WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System, prays this Honorable Court enter an Order dismissing Plaintiff's claim for conversion, pursuant to Pa. R.C.P. No. 1028(a) (4). -7- F. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE - PA. R.C.P. NO. 1028 (a) (4) 29. The averments contained in paragraphs 1 through 28 hereof are incorporated herein by reference as if set forth in their entirety. 30. Plaintiff makes claim for punitive damages in the ad damnum clauses of her Complaint. 31. In order to state a claim for punitive damages, Plaintiff must allege facts which demonstrate outrageous conduct perpetrated with an evil motive or reckless indifference to the well-being of others in order to subject Pinnacle to liability for punitive damages. 32. If Pinnacle breached a duty to Plaintiff, which is specifically denied, such breach was no more than mere negligence or inadvertence. 33. Under Pennsylvania law, Plaintiff is not entitled to punitive damages on a claim involving mere negligence or even gross negligence. 34. Plaintiff's Complaint, when read in its entirety, fails to state a claim upon which relief may be granted with respect to punitive damages and, therefore, such claim is properly dismissed pursuant to Pa. R.C.P. No. 1028(a) (4). WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System, prays this Honorable -8- Court enter an Order, pursuant to Pa. R.C.P. No. 1028(a) (4), dismissing Plaintiff's claim for punitive damages against Pinnacle, with prejudice. G. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE - PA. R.C.P. NO. l028(a) (2) 35. The averments contained in paragraphs 1 through 34 hereof are incorporated herein by reference as if set forth in their entirety. 36. Plaintiff's claims for punitive damages are properly stricken for failure to conform to rule of law or court, pursuant to Pa. R.C.P. No. 1028 (a) (2). WHEREFORE, Defendant, Pinnacle Health System d/b/t/a pinnacle Health and Pinnacle Health System, prays this Honorable Court enter an Order, pursuant to Pa. R.C.P. No. 1028(a) (2), striking Plaintiff's claim for punitive damages against Pinnacle, with prejudice. H. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER - PA. R.C.P. NO. l028(a) (4) 37. The averments contained in paragraphs 1 through 36 hereof are incorporated herein by reference as if set forth in their entirety. -9- 38. Plaintiff alleges, in paragraph 19 of her Complaint, that the "invasion of privacy" was in the form of both "intrusion upon seclusion" and "publicity given to a private life." 39. Under Pennsylvania law, Plaintiff has not set forth facts sufficient to make a claim for "intrusion upon seclusion" and, therefore, such claim is properly dismissed pursuant to Pa. R.C.P. No. 1028(a) (4). WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System, prays this Honorable Court enter an Order, pursuant to Pa. R.C.P, No. 1028(a) (4), dismissing Plaintiff's claim for invasion of privacy in the form of intrusion upon seclusion, Date: December l , ' 2003 By: MARGOLIS EDELSTEIN < Jr~ St phe L Banko, Jr. y I.D. No. 41727 Attorney for Defendant -10- CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document on all counsel of record by placing the same in the United States Mail at Camp Hill, class postage prepaid, on the II day of Pennsylvania, first- )}~2003, addressed as follows: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (Counsel for Plaintiff) If~ 7~ Barbara J. Smith DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 03-5219 PINNACLE HEALTH SYSTEM dlbltla Pinnacle Health and Pinnacle Health System: Defendant : 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 within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORAMTION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. . Cumberland County Bar Association 2 Liberty A venue Carlisle, PA 17013 Phone: (717) 249-3166 or (800) 990-9108 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the Court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business betore the Court. You must attend the scheduled conference or hearinlUl.!!r..2(5ffoAll arrangements must TRUE copy FROM Ht:li' , In T llS'Umcny wne,(ll.lf, 1 here unto set my ha.lr: ..,~"' the seel of s.ald c~u at CartlslO. ~. d ,\J Do:J fllis . ~ <I .daY~\l _. I\. ~ .1\ [J ~l _. ~, /'/' .. I . U Pro.. nn<:llar)' DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 03-5219 PINNACLE HEALTH SYSTEM dlbltla Pinnacle Health and Pinnacle Health System: Defendant : JURY TRIAL DEMANDED COMPLAINT AND NOW, comes Plaintiff, by and through her attorney, Karl E. Rominger, Esquire and in support of her Complaint avers as follows: 1. Plaintiff Donna Vozenilek is an adult individual residing in Cumberland County, PA. 2. Defendant Pinnacle Health is a hospital I Healthcare provider in Harrisburg, P A. 3. Jurisdiction is proper as the complained of invasions, acts, and publication took place in Cumberland County amongst others 4. Plaintiff received various private medical services from defendant Pinnacle, including mammography. 5. As a medical facility treating plaintiff, pinnacle maintained a file on plaintiff which was labeled with her name, social security number, date of birth, and type of procedure. 6. The purpose of this while was to maintain medical records on Plaintiff, for treatment and diagnosis. 7. Upon information and belief Defendant Pinnacle sought to expand its reputation in the community and lor generate new patients by running a series of advertisements to coincide with Breast Cancer Awareness Month. 8. Defendant prepared such an advertisement and placed the same in various publications of wide circulation, beginning on September 29,2002 and continuing throughout October of 2002. 9. Defendant included a photo element in said advertisement, which included Dr. Donald Buxton holding the aforementioned folder of Plaintiff. 10. The advertisement showed not only Plaintiffs folder, but also the biographical data contained thereon. 11. Plaintiffs identity, consisting of her name, social security number, and date of birth were thus broadcast to a large segment of the public. 12. Further, the Defendant revealed to the public that a mammogram was performed on Plaintiff, without her consent to release her medical records. 13. Even while aware of the defect in the advertisement, Defendant failed to pull the same, and or prevent additional copies and publications of the ad from occurring. 14. Even after written and oral demand to cease and desist by Plaintiff, Defendant continued publishing her confidential information and medical records. INVASION OF PRIVACY 15. The previous paragraphs are incorporated by reference as if more fully set out herein. 16. Plaintiff had her privacy invaded by Defendant's actions. 17. Defendant was not privileged to do so. 18. There was no legitimate reason to disclose Plaintiff's identity, identity reference points, nor medical procedures procured. 19. Said private information was an intrusion upon seclusion and also constituted publicity given to a private life. 20. The material published was highly offensive and shocks the sensibilities. 21. The information released was not of legitimate public concern. 22. Plaintiff was damaged and continues to suffer damages as a result of this invasion of her privacy, including shock, nervousness, emotional distress, pecuniary loss, pain, suffering, and concern. 23. Defendant's actions were the direct and proximate cause of Plaintiff's harm. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award in her favor in an amount in excess of the statutory limits for compulsory arbitration, including costs of this suit and attorneys fees, and punitive damages. BREACH OF PATIENT CONFIDENTIALITY BY A PHYSICIAN 24. The previous paragraphs are incorporated by reference as if more fully set out herein. 25. Defendant was in the business of treating and providing medical services to Plaintiff. 26. Defendant breached the duty of confidentiality owed plaintiff when defendant released her medical records and other personal information. 27. Defendant did not have Plaintiff's consent. 28. Plaintiff was damaged and continues to suffer damages as a result of this breach, including shock, nervousness, emotional distress, pecuniary loss, pain, suffering, and concern . 29. At the time of the breach Defendant violated the portiones) of HIPPA in effect, and I or those portions of HIPPA yet to be enacted, but which were known to Defendant. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award in her favor in an amount in excess of the statutory limits for compulsory arbitration, including costs of this suit and attorneys fees, and punitive damages. CONVERSION 30. The previous paragraphs are incorporated by reference as if more fully set out herein. 31. Plaintiff possesses an identity, which is composed of her date of birth, name, & social security number. 32. In modern society anyone with these three data points may subsume the identity of the other, and I or use the identity fraudulently. 33. Defendant took Plaintiffs identity, with which Defendant had been entrusted, and placed it in its advertisement, thus giving Plaintiff's identity to the public at large. 34. Plaintiff has thus lost the security inherent to an identity created of three data points. 35. Defendant used Plaintiff's identity for its own financial gain. 36. Plaintiff was damaged and continues to suffer damages as a result of this breach, including shock, nervousness, emotional distress, pecuniary loss, pain, suffering, and concem. 37. Plaintiff continues to suffer as all of her accounts and I or other personal and private records are now subject to review and I or misuse by random third parties who either saw the advertisement, or who someday may see the advertisement. 38. This causes Plaintiff great anxiety. 39. Plaintiff is entitled to be compensated for the value of her identity. PUNITIVE DAMAGES 40. The previous paragraphs are incorporated by reference as if more fully set out herein. 41. The conduct of Defendant was shocking and outrageous. 42. The conduct was willful, wanton, and intentional. 43. Defendant took financial gain and I or intended to gain while harming plaintiff. 44. Plaintiff is entitled to punitive damages. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award in her favor in an amount in excess of the statutory limits for compulsory arbitration, including costs of this suit and attorneys fees, and punitive damages. Respectfully submitted, ROMINGER & BAYLEY ?- Date: flu v l.... Y l 0 c:;. 7 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, P A 17013 (717) 241-6070 Supreme Court ill # 81924 Attorney for Plaintiff VERIFICATION I verify that I am attorney for the petitioner and that the statements made in the foregoing Petition are true and correct to the best of knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. ~ 4904, relating to unsworn falsification to authorities. Date: ;( (" v. 2 (i,... 2. v"'.J ~ KARL ROMINGER DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL V ANlA vs. : CIVIL ACTION - LAW : NO: 03-5219 PINNACLE HEALTH SYSTEM dlbltla Pinnacle Health and Pinnacle Health System: Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Donna Vozenilek, Plaintiff, do hereby certify that I this day served a copy of the Complaint upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Stephen 1. Banko, Jr., Esquire Margolis Edelstein P. O. Box 932 Harrisburg, PA 17108-0932 / ;; /" ...-_/ -. Dated/Vu v. 2 I Karl E. Rominger, Esquire Attorney for Plaintiff 'I 206'3 , o ,,~ ~1(~' Z~-: 21_ (f~- -<.., , ~';) ;:;:( 5: ~c~ -p- =2 r~1 ~..J 0>) (jj ":":J -< olf DONNA VOZENILEK Plaintiff vs. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA : CIVIL ACTION - LAW : NO: 03-5219 PINNACLE HEALTH SYSTEM d/blt/a Pinnacle Health and Pinnacle Health System: Defendant : JURY TRIAL DEMANDED NOTICE TO DEFE~m You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or proJX:rty or other rights important to you. YOU SHOULD TAKE TIllS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OUICE SET FORTH BELOW. IF YOU CANNOT AFFORD TO HIRE A LAWYER, TillS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORAMTION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGffiLE PERSONS AT A REDUCED FEE OR NO FEE. . Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Phone: (717) 249-3166 or (800) 990-9108 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the Court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the Court. You must attend the scheduled conference or hearing our office. All arrangements must DONNA VOZENILEK Plaintiff vs. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : CML ACTION - LAW : NO: 03-5219 PINNACLE HEALTH SYSTEM d/b/t/a Pinnacle Health and Pinnacle Health System Defendant : JURY TRW~ DEMANDED AMENDED COMPLAIN~[ AND NOW, comes Plaintiff, by and through her attorney, Karl E. Rominger, Esquire of Rominger, Bayley, & Whare, and in support of her Amended Complaint avers as follows: 1. Plaintiff Donna Vozenilek is an adult individual relliding in Cumberland County, PA. 2. Defendant Pinnacle Health is a hospital I Healthcare provider in Harrisburg, P A. 3. Jurisdiction is proper as the complained of invasions, acts, and publication took place in Cumberland County amongst others. 4. Plaintiff received various private medical services Ii-om defendant Pinnacle, including mammography. 5. As a medical facility treating plaintiff, Pinnacle maintained a file on plaintiff which was labeled with her name, social security number, date of birth, and type of procedure. 6. The purpose of this file was to maintain medical rec:ords on Plaintiff, for treatment and diagnosis. 7. Upon information and belief Defendant Pinnacle sought to expan<llts reputation in the community and lor generate new patients by running a series of advertisements to coincide with Breast Cancer Awareness Month. 8. Defendant prepared such an advertisement and pla.ced the same in various publications of wide circulation, beginning on September 29,2002 and continuing throughout October of2002. 9. Defendant included a photo element in said advertisement, which included Dr. Donald Buxton holding the aforementioned folder of Plaintiff. 10, The advertisement showed not only Plaintiff's folder, but also the biographical data contained thereon. 11. Plaintiff's identity, consisting of her name, social security number, and date of birth were thus broadcast to a large segment of the public. 12. Further, the Defendant revealed to the public that !L mammogram was performed on Plaintiff, without her consent to release her medical records. 13. Even while aware of the defect in the advertisement, Defendant failed to pull the same, and or prevent additional copies and publications of the ad from occurring. 14. Even after written and oral demand to cease and de,sist by Plaintiff, Defendant continued publishing her confidential information lmd medical records. INVASION OF PRIVACY 15. The previous paragraphs are incorporated by reference as if more fully set out herein. 16. Plaintiff had her privacy invaded by Defendant publicizing her private affairs. 17. Defendant was not privileged to invade Plaintiff's. privacy and intentionally did so. 18. There was no legitimate reason to disclose PlaintiJff"s identity, identity reference points, nor medical procedures procured. 19. Said publication of private information was an intrusion upon seclusion and also constituted publicity given to a private life. 20. The material published was highly offensive and shocks the sensibilities. 21, The information released was not of legitimate public concern. 22. Plaintiff was damaged and continues to suffer damages as a result of this invasion of her privacy, including shock, nervousness, emolional distress, pecuniary loss, pain, suffering, and concern. 23. Defendant's actions were the direct and proximate cause of Plaintiff's harm, WHEREFORE, Plaintiff respectfully requests that this Ho]~orable Court enter an award in her favor in an amount in excess of the statutory limits for compulsory arbitration, including costs of this suit and attorney fees, and punitive damages. BREACH OF PATIENT CONF'IDENTIALITY BY A HEALTHCARE PROVIDER 24. The previous paragraphs are incorporated by rererence as if more fully set out herein. 25, Defendant was in the business of treating and providing medical services to Plaintiff. 26. Plaintiff had a reasonable expectation of privacy regarding the procedures she underwent and her identity when she was treated by Defendant. 27. Defendant breached the duty of confidentiality, CIllstomarily accorded to medical records, of Plaintiff when Defendant released her medical records and other personal information to the public. 28. Defendant did not have Plaintiff's consent to release any ofher information. 29. Plaintiff was damaged and continues to suffer damages as a result of this breach, including shock, nervousness, emotional distress, pecuniary loss, pain, suffering, and concern. 30. At the time of the breach Defendant violated the portion(s) of the Health Insurance Portability and Accountability Act (hereiin after referred to as HIP AA) in effect, and I or those portions of HIP AA that had yet to be enacted, but which were known to Defendant, and which provided the applicable duty of care. See 45 CPR ~160-164 et seq.. (ie see 45 CPR ~ 164.502(a) WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award in her favor in an amount in excess of the statutory limits for compulsory arbitration, including costs of this suit and attorney fee51, and punitive damages. CONVERSION 31. The previous paragraphs are incorporated by reference as if more fully set out herein, 32. Plaintiff possesses an identity, which is composed of her date of birth, name, & social security number. 33. In modem society anyone with these three data points may subsume the identity of the other, and I or use the identity fraudulently to gain access to monies, educational and medical records, et cetera. 34. Defendant took Plaintiff's identity, with which Defendant had been entrusted, and placed it in its advertisement, thus giving Plaintiff's identity to the public at large. 35. Plaintiff has thus lost the security inherent to her identity created of these three data points, as well as exclusive use of that identity. 36. Defendant used Plaintifr s identity in its advertisements for its own financial gain. 37. Plaintiff was damaged and continues to suffer damages as a result of this breach, including shock, nervousness, emotional distress, pecuniary loss, pain, suffering, and concern. 38. Plaintiff continues to suffer as all of her accounts and I or other personal and private records are now subject to review and I or misuse by random third parties who either saw the advertisement, or who somedal7 may see the advertisement. 39. This causes Plaintiff great anxiety. 40. Plaintiff is entitled to be compensated for the value ofher identity, as well as its use. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award in her favor in an amount in excess of the statutory limits for compulsory arbitration, including costs of this suit and attorney fees, and punitive damages. PUNITIVE DAMA(;ES 41. The previous paragraphs are incorporated by reference as if more fully set out herein. 42. The conduct of Defendant was shocking and outrageous. 43. The conduct was willfu~ wanton, and intentional in that, while aware of the defect in the advertisement, Defendant failed to pull the s,ame, and I or prevent additional copies and publications of the ad from occurring. 44. Defendant took financial gain and I or intended to gain while harming plaintiff. 45. Plaintiff is entitled to punitive damages. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award in her favor in an amount in excess of the statutory limits for compulsory arbitration as to all of the counts above, including costs of this suit and attorne~ fees, as well punitive damages. Dated: 10/11/2004 Respectfully lIubmitted, ROMINGEll~ BAYLEY & WHARE 2R '-E ' ar . omtnger, sqUire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Cowt ID # 81924 Attorney for Plaintiff VERlFICA nON I verifY that I am attorney for the petitioner and that the statements made in the foregoing Petition are true and correct to the best of my knowledge and belief The plaintiff was not available at the time of filing to make this verification, but II substitute verification signed by plaintiff will follow. I understand that faIse statements herein are made subject to the penalties of 18 Pa. C. S. ~ 4904, relating to unsworn falsification to authorities. Date: 6 n-- II, 'l (;(;7 / ""'--2 4---- c KARL ROMINGER DONNA VOZENILEK Plaintiff vs. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO: 03-5219 PINNACLE HEALTH SYSTEM dlbltla Pinnacle Health and Pinnacle Health System : Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVIQ; I, Karl E. Rominger, Esquire, attorney for Donna Vm:enilek, Plaintiff, do hereby certifY that I this day served a copy of the Anunended Complaint upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as foIlows: Stephen L. Banko, Jr., Esquire Margolis Edelstein P. O. Box 932 Harrisburg, PA 17108-0932 William H. Catto White and William, LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 Dated: 10/11/2004 ~ Karl E. Rominger, Esquire Attorney for Plaintiff ....., ~::~ -1.:- o C) -; o " ..... :1: 1\ n,!::;:: -orn ,~1]C' C'; I _;1(-:) ~~~ ~- : -.,1 ~:iJ -( !~ ...,;'I~ C2 w -' DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 03-5219 PINNACLE HEALTH SYSTEM dlbltla Pinnacle Health and Pinnacle Health System: Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVIC]~ I, Karl E. Rominger, Esquire, attorney for Donna V ozenilek, Plaintiff, do hereby certify that I this day served a copy of the Substitute Verification upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsy1v:mia, addressed as follows: Stephen L. Banko, Jr., Esquire Margolis Edelstein P. O. Box 932 Harrisburg, PA 17108-0932 William H. Catto White and William, LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 /~- ~. / Karl E. Rominger, Esquire Attorney for Plaintiff Dated: 1 0/12/2004 DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION .. LAW : NO: 03-5219 PINNACLE HEALTH SYSTEM d/b/t/a Pinnacle Health and Pinnacle Health System: Defendant : JURY TRIAL DEMANDED SUBSTITUTE VERIFICATION I verify that I am the petitioner and that the statements made in the foregoing Amended Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. ~ 4904, relating to unsworn falsification to authorities. Date: ()lj f ~ . J (jQ-I I /~,871/?r ~ fJl (JJ;pvM-- Donna V ozenilek (,) (/1 en ....", c~":) c-:, .1;'- a c) -I o "'1/ ::/!._-" /l'IFc' -'fHI7 :~;'lyJ (-~i (~) )~-j; ._':C) "<fn <.~ ';~.' ~:q ru ::c> STEPHEN L. BANKO, JR., ESQUIRE Fa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN Mailing Address: P.O. Box 932 Harrisburg, PA 17108-0932 Street Address: 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 975-8114 FAX: (717) 975-8124 E-mail: sbanko@margolisedelstein.com Attorney for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v. NO. 03-5219 PINNACLE HEALTH SYSTEM d/b/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT, PINNACLE HEALTH SYSTEM d/b/t/a PINNACLE HEALTH AND PINNACLI~ HEALTH SYSTEM. TO PLAINTIFF'S AMENDED COMPLAINT A. PRELIMINARY OBJECTION IN THE NATURE OF }. MOTION TO STRIKE _ PA. R.C.P. NO. l028(a) f~ 1. Plaintiff commenced the above-captioned action by Praecipe for Writ of Summons filed on or about October 3, 2003. 2. Defendant, Pinnacle Health System ("Pinnacle"), served a Rule to File a Complaint upon Plaintiff and thereafter served upon counsel for Plaintiff a Notice of Intent to Enter Judgment Non Pros. 3. On November 24, 2003, on the tenth day after service of the Notice of Intent to Enter Judgment Non Pros, Plaintiff's counsel filed a Complaint, which included an attorney's Verification. 4. On or about December 11, 2003, Pinnacle filed Preliminary Objections to Plaintiff's Complaint. 5. By letter dated December 29, 2003, counsel for Plaintiff confirmed an unlimited extension to file an Amended Complaint. 6. Despite several follow-up inquiries by the undersigned as well as counsel for a defendant in a companion action pending at Docket No. 03-5520 as to the status of the filing of an Amended Complaint, and promises by counsel for Plaintiff to do so, an Amended Complaint was not filed until October 11, 2004, ten (10) months after Pinnacle had filed its Preliminary Objections to the original Complaint. 7. Despite the passing of ten (10) months, the Amended Complaint is all but identical to the original Complaint. 8. With the exception of minor changes in language in several paragraphs, most notably paragraph 30 and the addition of a new paragraph 26, it is submitted that the Amended Complaint does not, in any manner, address the Preliminary Objections previously filed. 9. For example, neither version of the Complaint is endorsed with a verification from the Plainciff. 10. Despite the fact that this case is nearly one year old, coupled with the fact that Pinnacle has raised this issue -2- previously, counsel for Plaintiff did not secure his client's verification even though the Amended Complaint was filed ten (10) months after it would otherwise have been required. 11. Pinnacle is now required to file Preliminary Objections to the Amended Complaint. 12. Pa. R.C.P. No. 1024(c) provides: The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief ard shall set forth the source of the person's information as to ~atters not stated upon his or her own knowledge and the reason why the verification is not made by a party. 13. The Amended Complaint filed on behalf of Plaintiff and purportedly verified by Attorney Rominger, does not contain a Verification as required by Pa. R.C.P. No. 1024(c). Accordingly, said Amended Complaint does not comply with the Pennsylvania Rules of Civil Procedure. 14. Pa. R.C.P. No. 1028(a) (2) provides: Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: -3- * * * (2) Failure of a pleading to conform to rule of court . 15. A Complaint which is not endorsed with a Verification signed by Plaintiff or otherwise in compliance with Pa. R.C.P. No. 1024(c) makes the Complaint a nullity and is properly stricken pursuant to Pa. R.C. P. No. 1028 (a) (2). WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System,. prays this Honorable Court enter an Order striking Plaintiff's l\mended Complaint pursuant to Pa. R.C.P. No. 1028(a) (2) for failure to conform to Pa. R.C.P. No. 1024(c). B, PRELIMINARY OBJECTION IN THE NATURE OF ~, MOTION TO STRIKE _ PA. R.C.P. NO. l028(a) (61 16. The averments contained in paragraphs 1 through 15 hereof are incorporated herein by reference as if set forth in their entirety. 17. Plaintiff's Amended Complaint contains claims for invasion of privacy, breach of patient confidentiality by a healthcare provider and conversion. 18. It further contains a claim for punitive damages. 19. In the ad damnum clause of each of these claims, Plaintiff requests: "an award in her favor in an amount in excess of the statutory limits for compulsory arbitration, -4- including costs of suit and attorneys fees, and punitive damages." 20. Pennsylvania law is well-settled that absent an express statutory provision or agreement between the parties, attorney's fees are not recoverable in a tort action. 21. Accordingly, Plaintiff's claims for attorney's fees, as contained in her Amended Complaint, are properly stricken, pursuant to Pa. R.C.P. No. 1028(a) (2), for failure to conform to rule of law. WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System, prays this Honorable Court enter an Order striking Plaintiff's claims for attorney's fees, pursuant to Pa. R.C.P. No. 1028(a) (2), for failure to conform to rule of law. C. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER _ PA. R.C.P. NO. l028(a) I~ 22. The averments contained in paragraphs 1 through 21 hereof are incorporated herein by reference as if set forth in their entirety. 23. Contained in Plaintiff's Complaint is a claim for "breach of patient confidentiality by a healthcare provider." This claim is embodied in paragraphs 24 through 30 of Plaintiff's Amended Complaint. -5- 24. Furthermore, Plaintiff's claim for breach of confidentiality cites no specific statutory provision or other rule of law establishing such a duty; rather, there is a general citation to a federal regulation. 25. In paragraph 30 of her Amended Complaint, Plaintiff alleges a violation of "HIPPA,H but does not specifically identify the Act, the portion or provision so affected and, quite surprisingly, alleges a violation of a provision "yet to be enacted.H 26. Pa. R.C.P. No. 1028 (a) (4) provide,s that Preliminary Objections may be filed by any party to test the legal sufficiency of a pleading (demurrer). 27. Pinnacle believes and, therefore, avers that Plaintiff's claim for breach of patient confidentiality by a healthcare provider fails to state a claim upon which relief may be granted against Pinnacle and, therefore, such claira is properly dismissed pursuant to Pa. R.C.P. No. 1028 (a) (4). WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System, prays this Honorable Court enter an Order, pursuant to Pa. R.C. P. No. 1028 (a) (4), dismissing Plaintiff's claim for breach of patient confidentiality by a healthcare provider. -6- D. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION FOR MORE SPECIFIC PLEADING - PA. R.C.P. NO. l028(a) (3) 28. The averments contained in paragraphs 1 through 29 hereof are incorporated herein by reference as if set forth in their entirety. 29. In the alternative to Preliminary Objection C., Pinnacle files this Preliminary Objection, pursuant to Pa. R.C.P. No. 1028(a) (3), requesting that Plaintiff be required to provide a more specific pleading identifying the basis of her claim for breach of patient confidentiality and specifically identify each and every portion or provision of "HIPPA" which Plaintiff believes was violated by Pinnacle. WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System, prays this Honorable Court enter an Order, pursuant to Pa. R.C,!'. No. 1028(a) (3), requiring Plaintiff to file a more specific pleading with respect to her claim for patient confidentiality, identifying each statute and the specific provisions thereof which she believes were violated by Pinnacle to her detriment. E. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER _ PA. R.C.P. NO. l028(a) (!l 30. The averments contained in paragraphs 1 through 29 -7- hereof are incorporated herein by reference as if set forth in their entirety. 31. Beginning with paragraph 31, Plaintiff makes a claim for "conversion." 32. Pennsylvania law is well-settled that an action for conversion is limited to the wrongful detention of chattels or other property. 33. pennsylvania law does not recognize a cause of action in conversion of an intangible or inchoate property right unless such intangible rights are merged into a document such as promissory notes, bank checks and stock certificates. 34. Accordingly, Plaintiff's claim for conversion is properly dismissed pursuant to Pa. R.C.P. No. 1028(a) (4) for failure to state a claim upon which relief may be granted. WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System" prays this Honorable Court enter an Order dismissing Plaintiff's claim for conversion, pursuant to Pa. R.C. P. No. 1028 (a) (4). F. PRELIMINARY OBJECTION IN THE NATURE OF Jl MOTION TO STRIKE - PA. R.C.P. NO. 1028 (al I~ 35. The averments contained in paragraphs 1 through 34 hereof are incorporated herein by referencE' as if set forth in their entirety. -8- 36. Plaintiff makes claim for punitive damages in the ad damnum clauses of her Amended Complaint. 37. In order to state a claim for punitive damages, Plaintiff must allege facts which demonstrate outrageous conduct perpetrated with an evil motive or reckless indifference to the well-being of others in order to subject Pinnacle to liability for punitive damages. 38. If Pinnacle breached a duty to Plaintiff, which is specifically denied, such breach was no more than mere negligence or inadvertence. 39. Under Pennsylvania law, Plaintiff is not entitled to punitive damages on a claim involving mere negligence or even gross negligence. 40. Plaintiff's Amended Complaint, when read in its entirety, fails to state a claim upon which relief may be granted with respect to punitive damages and, therefore, such claim is properly dismissed pursuant to Pa. R.C.P. No. 1028(a) (4). WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System, prays this Honorable Court enter an Order, pursuant to Pa. R.C.P. No. 1028(a) (4), dismissing Plaintiff's claim for punitive damages against Pinnacle, with prejudice. -9- G. PRELIMINARY OBJECTION IN THE NATURE OFA MOTION TO STRIKE - PA. R.C.P. NO. l028(a)~ 41. The averments contained in paragraphs 1 through 40 hereof are incorporated herein by reference as if set forth in their entirety. 42. Plaintiff's claims for punitive damages are properly stricken for failure to conform to rule of law or court, pursuant to Pa. R.C.P. No. 1028 (a) (2). WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System, prays this Honorable Court enter an Order, pursuant to Pa. R.C.P. No. 1028(a) (2), striking Plaintiff's claim for punitive damages against Pinnacle, with prejudice. H. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER - PA. R.C.P. NO. l028(a) utL 43. The averments contained in paragraphs 1 through 42 hereof are incorporated herein by reference as if set forth in their entirety. 44. Plaintiff alleges, in paragraph 19 of her Amended Complaint, that the "invasion of privacy" was in the form of both "intrusion upon seclusion" and "publicity given to a private life." -10- 45. Under Pennsylvania law, Plaintiff has not set forth facts sufficient to make a claim for "intrusion upon seclusion" and, therefore, such claim is properly dismissed pursuant to Pa. R.C.P. No. 1028 (a) (4). WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System, prays this Honorable Court enter an Order, pursuant to Pa. R.C.P. No. 1028(a) (4), dismissing Plaintiff's claim for invasion of privacy in the form of intrusion upon seclusion. M LIS EDELSTEIN Date: October VI) , 2004 By: St en L. Banko, Jr. Attorney 1.0, No. 41727 Attorney for Defendant -11- CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document on all counsel of record by placing the same in the United States Mail at Camp Hill, Pennsylvania, first- class postage prepaid, on the 2...0 day of ()~ , 2004, addressed as follows: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (Counsel for Plaintiff) ;:J ~__ :/d--d. Barbara J. Smith PRAECIPE FOR LISTING CASE Fon ARGUMENT (Must be typewritten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter far the ne:Kt Argunent Court. ---------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption nlJSt be stated in full) Donna Vozenilek ( Plaintiff) vs. Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System ( Defendant) No. 03-5219 Civil Term 2003 1. State matter to be argued (i.e., plaintiff's rrotion for new trial, defendant's denurrer to carplaint, etc.): Defendant Preliminary Objections 2. Identify counsel who will argue case: Karl E. Rominger (a) far plaintiff: 155 S. Hanover st. Address: Carlisle, PA 17013 (b) far defendant: Stephen L. Banko J'r. P.O. Box 932 Harrisburg, PA 17108 Address : 3. I will notify all parties in writing within tlliO days that this case has been listed far argunent. 4. Argunent Court Date: 12/8/2004 I ~...__._- . ..------- -..~.. Attorney for Plaintiff ~ted: 0 '" 0 '--::::> c:: <"-"") -11 -wI"'" ..z::- ::; ("; " =r=: :'"i r,", : a f~:n -.,.. . ~ r- , -oz ='0 00 0 : '- ':rJ'~ -0 --I) , ::t: ~(''5 () :",l"n C ~ ~:-:j ~- ""..::0- -1 J:- ~~ -, 00 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argunent Court. CAPTION OF CASE (entire caption must be stated in full) Donna Vozenilek ( Plaintiff) vs. Donald R. Buxton, M.D., et al. ( Defendant) No. 03 Civil 5219 X.N:J{ 2003 1. State matter to be argued (Le., plaintiff's rrDtion for new trial. defendant's denurrer to canplaint. etc.): Preliminary Objection of Defendant, Donald R. Baxton,M.D. 2. Identify counsel who will argue case: (a) for plaintiff: Address: (b) for defendant: William H. Catto, Esquire Address: White & Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 3. I will notify all paXties in writing within bilo days that this case has been listed for a.rgunent. 4. Argunent Court Date: February 2, 2004 Dated: LV~~ Jl~/~ Attorney far Donald R. Buxton, M.D. ~J ~; ~ , C") ~ ~.) (~ ,~) IN THE COURT OF COMMON PLEAS OF CUMBERLA1\D COUNTY, PENNSYLVANIA SHARON E. KEATING, Plaintiff, Civil Action - Law vs. No. 03-5523 THE BEACON GROUP, INC., BEACON GROUP, INC., HAMPDEN COMMONS CONDOMINIUM ASSOCIATION AND HAMPDEN CENTER INCORPORATED, Defendants, JURY TRIAL DEMANDED LIBERTY EXCAVATORS, INC., Additional Defendant. NOTICE TO PLEAD TO: The Beacon Group, Inc. and Beacon Group, Inc. c/o Mark Digiovanni, Esquire Devlin & Devine 100 W. Elm Street, Suite 200 Conshohocken, PA 19428-2041 You are hereby notified to file a written response to the enclosed New Matter and Cross- Claim within twenty (20) days from service hereof or a judgment may be entered against you. BY Robert A. erman, No. 074 Attorney for Additional Defendant, Liberty Excavators, Inc. 110 South Northern Way York, PA 17402 Telephone: (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHARON E. KEATING, Plaintiff, Civil Action - Law vs. No. 03-5523 THE BEACON GROUP, INC., BEACON GROUP, INC., HAMPDEN COMMONS CONDOMINIUM ASSOCIATION AND HAMPDEN CENTER INCORPORATED, Defendants, JURY TRIAL DEMANDED LIBERTY EXCAVATORS, INC., Additional Defendant. NOTICE TO PLEAD TO: Hampden Commons Condominium Association c/o Shawn E. Smith, Esquire Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, P A 17108-0999 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be red against you. BY obert A. Lermim, No. 07< 0 Attorney for Additional Defendant, Liberty Excavators, Inc. 110 South Northern Way York, PA 17402 Telephone: (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHARON E. KEATING, Plaintiff, Civil Action - Law vs. No. 03-5523 THE BEACON GROUP, INC., BEACON GROUP, INC., HAMPDEN COMMONS CONDOMINIUM ASSOCIATION AND HAMPDEN CENTER INCORPORATED, Defendants, JURY TRIAL DEMANDED LIBERTY EXCAVATORS, INC., Additional Defendant. NOTICE TO PLEAD TO: Sharon Keating, Plaintiff c/o Lawrence A. Katz, Esquire Joseph A. Coffey, Jr., Esquire Coffey, Kaye, Myers & Olley Two Bala Plaza, Suite 718 Bala Cynwyd, P A 19004-1514 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. BY Rooert A. Lerm,ill, No. 074 Attorney for Additional Defendant, Liberty Excavators, Inc. 110 South Northern Way York, PA 17402 Telephone: (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLV ANlA SHARON E. KEATING, Plaintiff, Civil Action - Law vs. No. 03-5523 THE BEACON GROUP, INC., BEACON GROUP, INC., HAMPDEN COMMONS CONDOMINIUM ASSOCIATION AND HAMPDEN CENTER INCORPORATED, Defendants, JURY TRIAL DEMANDED LIBERTY EXCAVATORS, INC., Additional Defendant. ANSWER. NEW MATTER AND CROSS-CLAIMS OF ADDITIONAL DEFENDANT. LIBERTY EXCAVATORS. INC.. TO JOINDER COMPLAINT OF HAMPDEN COMMONS CONDOM1NIUM ASSOCIATION AND NOW comes Additional Defendant Liberty Excavators, Inc. by its counsel Robert A. Lerman and Griffith, Strickler, Lerman, Solymos & Calkins: and files the following Answer, New Matter, and Cross-Claim to a Joinder Complaint of Hampden Commons Condominium Association and avers as follows: 1. Admitted upon information and belief. 2. Admitted but qualified to state that Answering Defendant's principal place of business is located at 4402 Gettysburg Road, Camp Hill, PennsyJlvania 17011 and not the address indicated in Paragraph 2 of the Joinder Complaint nor does .Answering Defendant utilize the indicated Post Office Box. 3. Admitted upon information and belief. 4. Admitted but qualified to state that the Amended Complaint is a written document which speaks for itself. 5. Admitted upon information and belief. 6. Admitted in part and denied in part. It is admitted that Defendant Hampden Commons Condominium Association entered into a contract with Additional Defendant Liberty Excavators, Inc. whereby Additional Defendant would be responsible for the removal of snow from the parking lot of the shopping center at which Plaintiff claims to have been injured. It is denied that a copy of the contract entered into between Defendant Hampden Commons Condominium Association and Additional Defendant Liberty Excavators, Inc. covering the period of the alleged accident is attached to the Joinder Complaint as Exhibit C and averred to the contrary, that the contract document was not attached. By way of further response, it is averred that the agreement between Defendant Hampden Commons Condominium Association and Additional Defendant Liberty Excavators, Inc. covering the period of the alleged accident for removal of snow from the parking lot of the shopping center at which Plaintiff claims to have been injured consists of written and verbal agreements whereby Additional Defendant agreed to provide equipment, equipment operators, and materials as needed when snow accumulation reached two inches or greater automatically and to provide "on call" snow removal services upon request and call back by Hampden Commons Condominium Association and/or the individual tenants of the Hampden Commons Condominium Association shopping center, in exchange for agreed upon compensation on a time and materials basis. By way of further response, attached hereto and collectively marked Exhibit 1 are documents which constitute the written portion of the agreement between Answering Additional Defendant and Hampden Commons Condominium Association in effect at the time of Plaintiff's alleged incident. By way of further Answer it is averred that Liberty Excavators, Inc. fulfilled the terms and conditions of its contractual agreement with Hampden Commons Condominium Association and carefully, lawfully, properly, and prudently performed the snow removal activities as required. 2 7. Denied. It is denied that Additional Defendant Liberty Excavators, Inc. was, at all times material hereto, responsible for the maintenance of the parking lots in question, including but not limited to the removal of snow and ice. On the contrary, it is specifically denied that Additional Defendant was, at all times material hereto, responsible for the maintenance of the parking lot in question. By way of further Answer, it is averred that Answering Additional Defendant properly fulfilled its contractual obligations and legal duties and responsibilities and as more fully described in response to Paragraph 6 above, which response is incorporated herein by reference as if fully set forth at length. 8. Denied. To the extent the allegations set forth in Paragraph 8 constitute a conclusion of law, no response is required. To the extent a response is deemed required, it is denied that Additional Defendant Liberty Excavators, Inc. is alone liable to Plaintiff jointly and/or severally liable over to Defendant Hampden Commons Condominium Association and/or liable or over to Defendant for contribution and/or indemnity on the cause of actions that have been asserted by the Plaintiff and strict proof thereof is hereby demanded. WHEREFORE, Additional Defendant Liberty Excavators, Inc. demands judgment in its favor and against Defendant Hampden Commons Condominium Association together with costs of suit. By way of further Answer, Additional Defendant Liberty Excavators, Inc. asserts the following: NEW MATTER 9. Additional Defendant, Liberty Excavators, Inc., incorporates herein by reference, as if fully set forth at length, its Answer to Joinder Complaint of Hampden Commons Condominium Association, Paragraph Nos. 1 - 8, inclusive, as hereinabove set forth. 3 10. The Joinder Complaint of Defendant Hampden Commons Condominium Association fails to state a cause of action against Additional Defendant Liberty Excavators, Inc. upon which relief can be granted. 11. Additional Defendant Liberty Excavators, Inc. cannot be held solely or directly liable to Plaintiff for Plaintiffs alleged injuries and damages inasmuch as Plaintiffs slip and fall occurred on January 9, 2002 and more than two years have expired since Plaintiffs alleged fall prior to the Joinder of Additional Defendant Liberty Excavators, Inc. as a party to this litigation by virtue of the Joinder Complaint of Hampden Commons Condominium Association. 12. Any claims Plaintiff may have or attempts to assert against Additional Defeudant Liberty Excavators, Inc. are barred by the expiration of the applicable statute of limitations 13. The claims of Hampden Commons Condominium Association and its Joinder Complaint against Additional Defendant Liberty Excavators, Inc. may be time barred. 14. Plaintiff s claims may be barred by Plaintiff s assumption of a known and obvious risk. 15. Plaintiffs claim may be barred or diminished by Plaintiffs contributory and/or comparative negligence. 16. Some or all of Plaintiffs injuries and damages, if any, may have been caused by individuals or entities other than Answering Additional Defendant over whom Answering Additional Defendant had no responsibility or control. 17. Plaintiff may have failed to mitigate her damages. 18. Plaintiffs claims may be barred in whole or III part by the Workers' Compensation Act. 19. Plaintiffs comparative negligence may have consisted of the following: 4 a. Failing to look where she walking; b. Failing to keep a proper lookout; b. Failing to take appropriate and proper pr1ecautions for her own safety; d. Failing to observe a condition she now cIaims was hazardous, defective or unsafe; e. Failing to exercise prudent and appropriate care and safety for her own well being; f. Failing to observe and avoid a condition she now complains constituted a dangerous, hazardous, or unsafe condition; g. The condition of which Plaintiff now complains of was or should have been known to her; and h. Failing to exercise reasonable care for her own safety under the circumstances existing. 20. Plaintiffs alleged injuries and damages may have preexisted or preceded the date of her alleged fall and were not caused or aggravated by her alleged fall. 21. Plaintiffs alleged injuries and damages may have been sustained subsequent to the date of her alleged fall and were not caused by her alleged fall. 22. Plaintiff has recovered from the injuries she allegedly sustained as a result of her fall. 23. Additional Defendant had no actual or constructive knowledge of any dangerous, unsafe, defective, or hazardous condition that Plaintiff and/or Joining Defendant Hampden Commons Condominium Association claims existed. 24. At all times relevant, through its authorized agents, servants, and employees, Additional Defendant Liberty Excavators, Inc. acted carefully, lawfully, and prudently with due care under the circumstances. 5 25. Additional Defendant Liberty Excavators, Inc. fulfilled its contractual duties and obligations and is not liable or responsible for Plaintiff's allege:d injuries and damages. 26. If Plaintiff is entitled to recover from any party, which recovery is expressly denied, then Defendant Hampden Commons Condominium Association is alone liable to Plaintiff or liable over to Additional Defendant, Liberty Excavators, Inc. by way of contribution and/or indemnification based upon any theory of liability proven against Defendants The Beacon Group, Inc. and/or Beacon Group, Inc. as alleged in Plaintiffs Complaint. 27. If Additional Defendant Liberty Excavators, Inc. is found liable to the Plaintiff, all such liability being expressly denied, its liability is secondary and passive to the liability of Hampden Commons Condominium Association which liability is primary and active. CROSS-CLAIM PURSUANT TO PA.R.C.P. 2252(d) 28. Additional Defendant, Liberty Excavators, Inc., incorporates herein by reference, as if fully set forth at length, its Answer and New Matter to the Joinder Complaint of Hampden Commons Condominium Association, Paragraph Nos. 1 - 27, inclusive, as hereinabove set forth. 29. If Plaintiff is entitled to recover from any party, which recovery is expressly denied, then Defendants identified as the Beacon Group, Inc. and Beacon Group, Inc., are alone liable to Plaintiff or liable over to Additional Defendant, Lib€~rty Excavators, Inc. by way of contribution and/or indemnification based against any theory of liability proven against Defendants The Beacon Group, Inc. and/or Beacon Group, Inc. as alleged in Plaintiff's Complaint. 6 30. If Additional Defendant Liberty Excavators, Inc. is found liable to the Plaintiff, all such liability being expressly denied, its liability is secondary and passive to the liability of The Beacon Group, Inc. and/or Beacon Group, Inc. which liability is primary and active. WHEREFORE, Additional Defendant Liberty Excavators, Inc. demands judgment in its favor and against The Beacon Group, Inc. and/or Beacon Group, Inc. together with costs of suit. By: R ERT A. LERlVlAN, E I.D. #07490 Attorney for Additional Defendant, Liberty Excavators" Inc. 110 South Northem Way York, PA 17402 717-757-7602 Dated: December 10, 2004 7 VERIFICATION L e<,tv L. {S-1J 11 ffir To the extent that the foregoing contains legal conclusions or opinions, I hereby state that my Verification is made upon the advice of counsel, upon whom I have relied in the filing this document. This Verification is made subject to the penalties of 18 Pa. C.S. 9 4904 related to unsworn falsifications to authorities. LIBERTY EXCAVATORS, INC. Dated:~ BY: ~1& tj)o\~ Exhibit 1 - '0:: Liberty Excavcltors, Inc. 4410 GETrYSBURG ROAD' P.O. BOX :i17' CAMP HILL, PA 17001-0517 PHONE (717l761-B461 . FAX (717) 731-4634 Seprernberl8,2001 HAMPDE}Il COMMONS. CONDOMINlUM ASSOCIATION . 415 EAST 5.2ND STREET 171H FLOOR'SUITE AC ~WYORK NY 10022 " . Attention: Mr. Oa\.1~rSchwUtz SubjeCT:: . Snow Removal bear CuStOtner: . . . . We are pl~.1O~ -pareqaipnient '~d mateJiil Taies'on~nc,u~oval'se:rvice$'for1be -winter of 200 1 -: 2002. Our rates are USt~d on the following page, which include eqUipment. operatoi'., fuel and seI\'ice rates,aswelllis Ul;lterial prices. . .... . . . . . If yoti:shoUJd ha~any ~her qUestiOns or ccincerns: pl~~ give 'LIS a ~1I~We hope the information whicllwe Supplied has .beCnof' help for you' to more. aCcunlte.ty asses:s. our company ancl how we Would perform for you thi6~eq;ezlsaii .;' .. " ." -' - - '. " - .','- . . < . '.', . -: ',~ - - ", - .., - . . . Pleat,enOtifY.Our: . company ~lIl14ri1'U" possible. if. you' ihoal,~ . b~iDtereslecl' U. r~DiDgour' . . semceafor !b~DPt1o....iDg.~DO"': o!l~lL}t sbC)Uldbe.DOtedtbat cmr compaoy will only take on a limited number of co.atra.et.t fortbe~Dter .won to iOlUre pr:oper sletricine to our customers.: _. '.__:', ';,' : .;,,'_ ;:-'-;'f"",." ....;::,.<!:',":."._c:..- .!,~,...,~.- :'_' "'.. . '. <_ -", . _ - _", . f_ ~ . .' ~ ",,"'. -." -- . :-~' ...'. - ~'-,~"-, '.'. '" '," The following mforrnaiion is llitach,ecl for your ~w: - . : ,- ': -.., ',- ,~ -.j....,. · EquipnientfLatiOl I Miiteii~ Reiiml Rate sJieei' .' ., . '. certi$tc of ~~~.a. .(~: .iiatlirri3ticatty -renews for~T 26()2, . Snow RCmovaf Acknowledgei11ent Fcirin . . .'. .'. ','. -', . - ., ,- - " '. ,- '. .. . - - . We look forward to b~ly ~gcareofyoUr snow removal n~~ this winter. ..;;;;;~-XL. LIBERTY EXCA V A1'()RS, INC. Richard C. Kalbach, President . BACKHOES Cat 416 wlcab Cat 416 w/cab JD'310 0 w/cab .'Cat 416 w/cab Cat 416 w/cab Cat 416. w/cab .- JD 310 w/cab ' J0-410 w/cab JD310SE.w/cab JD 710 w/cab Cat 426 wlcab , , ~'" Tri-axleOump Truck " Ten wheel Dump Truck .' DumoTruck w/plow & spreader, . LowDed Trailer Snowblower wI laborer . , . Laborer MATERIALS: u, _ . ,,',',.'. . . ",' . -;-. " .. . _ '. ' 1. PENN.oOT ANTI.SKID MATERIAL (CRUSHED LIMESTONE): price I ton 2. ANTI.SKID . SALT MIXTURE: price I ton 3. SAl 1:1, . price/ton 4. SAND SALT MIX: .' I'price I ton 5. CALCIUM CHLORIDE.: .' Iprice/SOlb bag NOTE: Truck wI rotary spreader for applyine: materials: priceI hr. I "j Note: -Equipment rental rates ilre subjec:tto chanlfe after May 1, 200A! and due to any future fluctuations of fuel cost. 1 . ,I _ Rates include fuet, servicing and operators. 6% PA Sales Tax not included on rates. ':. Date: Sept. 18, 2001 '-'- RUBBER TIRE LDRS Bobcat 773 Skid Steer Bobcat 773 Skid Steer Komatsu WA30 Loader J0444 Loader Cat .950E Loader Volvo 120 Loader' Kawasaki 95Z Loader . . .... GRADERS' ..'. Catl40G Grader cat 140G.' Grader cat 140 G Grader Cat 140 G Grader.. Cat 140 G Grader Cat 12-G Gi"ader cat 12 . Grader JD 770A, '. Grader Galion A606 Grader ..---'- . Snow Equipmt..2-00-1 2002 SNOW ReMOVAL EQUIPMENT & RATES 2001/2tJ02 SEASON . Equip. # Condition EliJcket cap. L.54 ~ L.S7 L.36 . L.4 L.3S' " L.55 L~31, , , .75; cy .1S; cy .75i c:y 2 c:y . 4 c:y 4 c:y 5 c:y VerY good . Excellent -- Very good Good Very Slood . Very good ~. Very good ~, , '. . . . G~8-, ..... '. G~11 .. G~12 G.13. . . G.14 .' ... G-4 G.lO . G.s... n . G.9" - .' .,' ;::3~' . '6.74 B.79 .' B-82 '. B.85 .B.86 . B.99.' B.85 ..... .:, B-86 -, B.98. '. .8.69 . . "8.95 . Vervgood Excellent .Excellent. '.' Vervgbod .. VerY goOd Good, - Verv godii . Goqd.;# '. .' Good.'.; --.- . I' :- - , " . . . 1 r;y ley ley lc}t .', .1 cy 1 cy . leY: 1 cy . . . 1 Cy " . ....1.50cy. . . 1 cy ". .' fEi.Ceilent I EXcellent . .. Excellt:mt . Excellent , :Exceltent Excellent . Excellent Excellent ,Excellent .. Excellent .~. .. .. Excellent . .,...., . . . . ,'--. '." II) cy 8 cy.. . . , .' . . . '. I price I hr., - . ~'price I hr. . . " . Rate/hr. . . . - $93.00 $93.00 $93.00 ,$108.00 $145.00 .. $145.00 $160.00 .- I .$130.00 '. . . $130.00 . $130.00 $130.00 . . $130;00 $120:00. $120.00 $118.00 $11 ROO , $93.00 $93.00 $93.00 '$93.00 $93.00 . .' $93.00 . $93_00 "7 '$93~OO .. . S93~OO $108:00 $93~OO . . . $90~OO $84:00 $84.00 $115.00 $68.00 --.- $48.00 ':, . . $30.00 $57;00 $99:00 $77.00 $35.00 $84.00 , Liberty Excavfltors, Inc. 4410 GETTYSBURG ROAD. P.O. BOX 517. CAMP HILL, PA 17001-0517 PHONE (717) 761-8461 . FAX (717)731-4634 September 18,.2001 . . . . - - - HAMPDEN COMMONS CO:Nt)OI\1INIUM ASSOCIATION 41SEAsr S2ND STREET 1'7TI1 FLOOR SUITE he .- NEW YORK NY 10022 - . . - . ' '- "." . A1TENTtON~_MR.DAvID SCHWARTZ ." REFERENCE: SNOW REMOV Ai. CONTRACT Dear CUstomer: . ;~- -:- ~ '-,,-, - . ~ . Please' sign this fozm -as 'Written 'CO~d'illll<4ion ~l-'l"l>"ing jotJ:r 'deSire1o,'111;m: 'LIBER.TY'EX'CA:'VA ToRs. INC. perfonri your snow remOVal needs for this Wintei' season as discuSsed and wascoriBrmed vCtbally' With your co~reccnt1y. ." . infOrination, pt~'~ 'OS'a eaR. '. ""2./1 0) . . ' . . . . . . . . ~ - ~e?J~. LmERTYEXCAVATOR.S., INe,.' . . . . . . . .-- . - - . -... .~ I IMPORTANT NtWE: '1'Irir~",.~, ~lDefrsza eDI'1- '- ~,.u,.u" ~'Ezc.., ~ -r-x-.. '7ltt..404) 1..... -, . - LmERTY EXC., INC. e 4410 GETI'YSBURG RD. P.O. BOX 517 CAMP HllL, PA 17001-0517 TEL (717) 761-8461 FAX (717) 731-4634 WORKORDER# DATE 12701 0]/07/02 JOB NAME JOB # & COST CODE HAMPDEN COMMONS 20203(030) CUSTOl\tfER Hampden Commons Condominium Association CUSTOMER # 26800 SNOW REMOVAL OPERA TED EQUIPMENT: HOURS TOTAL EQUIPMENT NUMBER RATE WORKED AMOUNT Grader 130.00 5.00 650.00 416 Backhoe 93.00 3.00 279.00 416 Backhoe 93.00 5.00 465.00 416 Backhoe 93.00 1.00 93.00 Nobilization 115.00 1.00 115.00 Selt Truck 84.00 1.50 126.00 0.00 0.00 0.00 0.00 EQUIPMENT TOTAL 1,728.00 NA TERlALS: UNIT OF TOTAL DESCRIPTION RATE UNITS MEASURE AMOUNT Salt 99.00 4.00 Tons 396.00 0.00 0.00 0.00 MATERIAL TOTAL 396.00 MISCELLANEOUS: TOTAL DESCRIPTION RATE UNITS AMOUNT 0.00 0.00 0.00 MISCELLANEOUS TOTAL 0.00 SUB-TOTAL 2,124.00 PA STATE SALES TAX 6% 127.44 TOTAL AMOUNT $ 2,251.44 "J .' /',. - No. 1 2701 1 . ~ . LIBERT'\: "EXCAVATORS,._NC. I::QUIPMENT I OPERATOR (Lessor) RENTAL AGREEMENT P.O. BOX 517. CAMP HILL, PA 17001-0517 LESS EE )/19111~ lJJI"t./ t1 J'H /1'" MJ ADDRESS -'. ... AGREEMENT C-"' '\ JOB NO. ,-~O;t0,-~ 0 ~Q) DATE /- ~ -d 2. JOB LOCATION ~~IIJ If p.7lt~ DESCRIPTIONOFWORK ~PdW !It:l4dvlt'(.., Lessor agrees 10 renlthe belOw described equipment plus op.rator 10 Less.. on the lollowilg le,ns and conditions. 1. Lessee wIK pay a per-hoUf charge lo Lassor..,d Lessors published :at.. in a.islenca at '.lIlI8 ol rental. Time will be veritled at tha conclusion of each r.nlal day 2 Lessee will assume custody and conlrol ol, and will supervise and direct all wel1< 01 equipment and op.llltor. 3. Lessee will indemn~y and save halTUless Liberty Excavalors, Inc. from all losses and liabijilies arising auf of us. of this equipm.nt which is fl custody or conlrolol Lessee, even ij caused by negligence, in whole or in part, by any oth'lI paJly hereto or any other incIvidual or entity 4. Damage ,esutting from abuse of equipment by L.ss.. or at L.ss.e's direction wilt b. rflll8ired at the expens. of the L.....e. 5. Lessee'. representalive signinglllis eweemen! hereby represents 10 Uberty Excavators, Inc thai he is acting within Ihe scope 01 his employment responsibillies NAME & EQUIPMENT LABOR Hours Rate 8T 8T OT OT AMOUNT Hours Rate AMOUNT EQUIPMENT 5 3 .5 MATERIAL / MISC. QUANTITY J./ a AMOUNT p' SUMMARY Amount Tax LABOR :I..f 'Cf; Signeture by Lesse.'s F'.presenlaliv. Tim. Verifi.d By /-7-o;l. Dale on Lessee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHARON E. KEATING, Plaintiff, Civil Action - Law vs. No. 03-5523 THE BEACON GROUP, INC., BEACON GROUP, INC., HAMPDEN COMMONS CONDOMINWM ASSOCIATION AND HAMPDEN CENTER INCORPORATED, Defendants, JURY TRIAL DEMANDED LIDERTY EXCAVATORS, INC., Additional Defendant. CERTIFICATE OF SERVICE AND NOW, this lOth day of December 2004, I, Robert A. Lerman, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify that I have this date served a copy of the Answer, New Matter and Cross-Claims of Additional Defendant, Liberty Excavators, Inc., to Joinder Complaint of Hampden Commons Condominium Association by United States Mail, addressed to the party or attorney of record as follows: Lawrence A. Katz, Esquire Joseph A. Coffey, Jr., Esquire Coffey, Kaye, Myers & Olley Two Bala Plaza, Suite 718 Bala Cynwyd, PA 19004-1514 (Counsel for Plaintiff) Shawn E. Smith, Esquire Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, P A 17108-0999 (Counsel for Hampden Commons Condominium Association) Mark Digiovanni, Esquire Devlin & Devine 100 W. Elm Street, Suite 200 Conshohocken, P A 19428-2041 (Counsel for Beacon Defendants) klr/liberty-anm RICKLER, LERMAN, OS & ~2S BY Robert A. Lerman, No. 0749P Attorney for Additional Defendant, Liberty Excavators, In~. 110 South Northern Way York, PA 17402 (717) 757-7602 -, ( , r--.".) ..::.. :1 , L) , , ( '-J ..;:'. r;,? ,r." .r;, . ,-) -n ---j 'T\ I .\ , !) ,) - , " '. '~ . : \ ~1 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS DONNA VOZENILEK TERM, -VS- CASE NO: 03-5219 PINNACLE HEALTH SYSTEM As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of STEPHEN L. BANKO JR., ESQ. certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be servedj (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE: 01/10/2005 MC on behalfJ1 ',/}. T PH N L. BANKO~ Attorney for DEFENDANT )~ DEl1-538236 74900-LOJ.. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: COURT OF COMMON PLEAS DONNA VOZENlLEK TERM, -VS- CASE NO: 03 -5219 PINNACLE HEALTH SYSTEM NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO JRULE 4009.21 MECHANICSBURG FAMILY MEDICAL RECORDS TO: KARL E. ROMINGER, ESQ., PLAINTIFF COUNSEL MCS on behalf of STEPHEN L. BANKO JR., ESQ. intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is wai ved or if no obj ection is made, then the subpoena. may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 12/20/2004 MCS on behalf of STEPHEN L. BANKO JR., ESQ. Attorney for DEFENDANT CC: STEPHEN L. BANKO JR., ESQ. - 57550.4 -00088 Any questions regarding this matter, contact THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-287495 74900 -CO 1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF ClJMBERLAND DONNA VOZENILEK FileNo. 03-5219 vs. PINNACLE HEALTH SYSTEM SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for MRCHANICSBURG F AMIL Y (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: **** SEE A IT ACHED RIDER **** at The MCS Group Inc 1601 Market Street Suite 800 Philadelphia P A 1910'3 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: ADDRESS: STEPHEN L. BANKO JR.. ESO. 3510 TRlNDLE RD CAMP HILL. PA ]7011 TELEPHONE: (215) 246-0900 SUPREME COURT ID #: A TIORNEY FOR: Defendant ~JA~~ J~~~ .bep ty Date: Seal of the Court 74900-01 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: MECHANICSBURG FAMILY PRACTICE CENTER 122 S. FILBERT ST, MECHANICSBURG, PA 17055 RE: 74900 DONNA MARIE VOZENlLEK Prior approval is required for fees in excess of $100.00 for hospitals, $50.00 for all other providers. Entire medical file, including but not limited to any and all records, correspondence to and from the consulting and treating physicians, files, memoranda, handwritten notes, history and physical reports, medicationl prescription records, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any exanlination, diagnosis or treatment pertaining to: Dates Requested: up to and including the present. Subject: DONNA MARIE VOZENILEK 321 CORNMAN ROAD, CARLISLE, PA 17013 Social Security #: 196-48-1819 Date of Birth: 12-20-1956 SU10-539526 74900-LOl c -c:::, r--...) C~,..., (":.;-~) C.." c) 'J --l :!~ (1-; ~- ..,_;,1-< -"..j> ..".- -; .~ J"'.J C,_) (..'-; - '.~ - DONNA VOZENILEK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW PINNACLE HEALTH SYSTEM dfb/t/a Pinnacle Health and Pinnacle Health System, Defendant NO. 03-5219 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE HOFFER, P.J., HESS and OLER, JJ. ~ER OF COURT AND NOW, this L{ day of March, 2005, upon consideration of Defendant's preliminary objections to Plaintiffs amended complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: I. Defendant's motion to strike Plaintiffs demand for attorney's fees is granted; 2. Defendant's demurrer to Plaintiffs claim for breach of patient confidentiality is denied; 3. Defendant's motion for a more specific pleading with respect to Plaintiffs claim for breach of patient confidentiality is denied, subject to a construction of the claim which excludes as a basis for it any violation of the Health Insurance Portability and Accountability Act; 4. Defendant's demurrer to Plaintiffs claiim for conversion is granted and the claim is dismissed; and 5. Defendant's motion to strike Plaintiffs claim for punitive damages is denied. /KarI E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Plaintiff t/Stephen L. Banko, Jr., Esq. P.O. Box 932 Harrisburg, P A 17108-0932 Attorney for Defendant BY THE COURT, j 9S :Z lid '1- dVtI SuDZ i-,3vl{)i\U;.HCdd 3tJl .:fO 3JU:to-G31l3 - ----- DONNA VOZENILEK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW PINNACLE HEALTH SYSTEM d/blt/a Pinnacle Health and Pinnacle Health System, Defendant NO. 03-5219 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE HOFFER, P.J., HESS and OLER, JJ. OPINION and ORDER OF COURT HOFFER, PJ., March 4, 2005. In this civil case, a patient has sued a hospitalfhealthcare provider for invasion of privacy, breach of patient confidentiality by a healthcare provider, and conversion, seeking compensatory damages, punitive damages, and attorney's fees as a result of an incident in which the defendant allegedly revealed medical and other information about the plaintiff in an advertisement.l For disposition at this time are preliminary objections filed by Defendant to Plaintiff's amended complaint.2 The preliminary objections consist of a motion to strike the request for attorney's fees, a motion in the nature of a demurrer to dismiss the claim for breach of patient confidentiality, a motion for a more specific pleading with respect to the claim for breach of patient confidentiality, a motion in the nature of a demurrer to dismiss the claim for conversion, and a motion to strike the claim for punitive damages.3 This matter was argued on December 8, 2004. ] Plaintiff's amended complaint, filed October 11,2004. 2 Defendant's preliminary objections to Plaintiffs amended complaint, filed October 21,2004. 3Id. A preliminary objection in the form of a motion to strike the amended complaint for lack of a proper verification has not been addressed in Defendant's brief, presumably because a substitute For the reasons stated in this opinion, the preliminary objections will be sustained in part and denied in part. STATEMENT OF FACn[ The allegations of Plaintiff's amended complaint may be summarized as follows. Plaintiff is Donna V ozenilek, an adult individual residing in Cumberland County, Pennsylvania.4 Defendant IS Pinnacle Health System, a hospital/healthcare provider situated in Dauphin County, Pennsylvania.5 Plaintiff received medical services from Defendant, including a mammogram.6 Commencing on September 29, 2002, Defendant caused an advertisement to be published which included a photograph of Plaintiff's file folder, revealing her name, social security number and date of birth.7 The advertisement further indicated that her medical history included a mammogram.8 Plaintiff had not consented to the public release of this information.9 Defendant continued to publish the information following a demand by Plaintiff that it stop.1O It did, however, discontinue the practice by October 31, 2002.1' As noted, the amended complaint contains counts for invasion of privacy, breach of confidentiality by a healthcare provider, and conversion. 12 The count for verification was filed, and this aspect of the preliminary objections will he regarded as abandoned. See e.c.R.p. 210-7 (issues raised but not briefed to be deemed abandoned). See Brief in Support of Preliminary Objections of Defendant, Pinnade Health System d/b/t/a Pinnacle Health and Pinnacle Health System, to Plaintiffs Amended Complaint, submitted November 20, 2004; Plaintiffs Substitute Verification, filed October 12, 2004. 4 Plaintiff's amended complaint, para. 1. 5Id. at para. 2. 6 Id. at para. 4. 7 Id. at paras. 8-11. 8Id. at para. 12. 9Id. 10 Id. at para. 14. II See id. at para. 8. 12 Id. at paras. 1-40. 2 breach of confidentiality includes a reference to the Health Insurance Portability and Accountability Act (HIPPA), while noting that its enactment postdated the events at issue.13 The count for conversion identil1es the object converted as Plaintiff's identity and the motive for conversion as "financial gain.,,14 Relief requested by Plaintiff includes attorney's fees and punitive damages. 15 Defendant's preliminary objections to Plaintifj"s amended complaint were filed on October 21,2004. In her brief in opposition to the preliminary objections, Plaintiff concedes that her claim for attorney's fees incurred in the prosecution of this action can not be sustained.I6 Plaintiff also acknowledges that her claim for breach of confidentiality is being brought on common law principles and not under the Health Insurance Portability and Accountability Act (HIPP A).17 DISCUSSION Motion to strike claim for attorney's fees. Based upon Plaintiff's concession on this point, Defendant's preliminary objection in the form of a motion to strike Plaintiffs claim for attorney's fees will be sustained. Demurrer to claim for breach of patient corifidentiality by healthcare provider. This court has previously recognized a common law cause of action [or breach of conl1dentiality in the context of unauthorized public disclosure of a patient's medical treatment by her physician. McKay v. Geadah, 39 Cumberland L.J. 20, 50 Pa. D. & C.3d 435 (1988) (Bayley, J.). While adding nothing to this cause of action, the reference in Plaintiff's complaint to the Health Insurance Portability and Accountability Act does not deprive the claim of its common law 1J Id. at para. 30. 14Id. at paras. 31, 36, 40. 15 Plaintiffs amended complaint, ad damnum clauses and paras. 41-45. 16 Plaintiffs Brief in Opposition to Defendant's Preliminary Objections, at 2, submitted December 7, 2004. In so conceding, Plaintiff notes that legal expenses incurred in remedying a conversion may be compensable; however, it is not suggested that this type of legal expense has been incurred by Plaintiff herein. 17 !d. at 2-3. 3 viability. Accordingly, Defendant's demurrer to the claim for breach of patient confidentiality by a healthcare provider will be denied. Motion for more specific pleading with respect to claim for breach of patient confidentiality by healthcare provider. "In the alternative to [Defendant's demurrer to Plaintiffs claim for breach of patient confidentiality by a healthcare provider, Defendant] . . . [has] request[ed] that Plaintiff be required to provide a more specific pleading identifying the basis of her claim. . . and specifically identify[ing] each and every portion or provision of 'HIPPA' which Plaintiff believes was violated by [Defendant]."I8 On a motion for a more specific pleading with respect to a claim, [t]he question to be decided is... whether [the] pleading informs an opponent with accuracy and completeness of the specific basis on which recovery is sought so that he or she may know without question upon what grounds to make his or her defense. 2 Goodrich Amram 2d SI017(b):21, at 265 (1991). In the present case, subject to a construction that no claim under the Health Insurance Portability and Accountability Act is being asserted, the count of Plaintiff's amended complaint relating to breach of patient confidentiality by a healthcare provider is sufficiently informative as to its basis to enable Defendant to formulate a defense. For this reason, Defendant's motion for a more specific pleading will be denied. Demurrer to claim for conversion. The Restatement (Second) of Torts describes the tort of conversion as follows: (1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. IS Defendant's preliminary objections to Plaintiffs' amended complaint, at para. 29, filed October 21,2004. 4 (2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important: (a) the extent and duration of the actor's exercise of dominion or control; (b) the actor's intent to assert a right in fact inconsistent with the other's right of control; (c) the actor's good faith; (d) the extent and duration of the resulting interference with the other's right of control; (e) the harm done to the chattel; (f) the inconvenience and expense caused to the other. Restatement (Second) of Torts S222A (1965). The nature of conversion at the present time is expressed in the following Comment to Section 222A of the Second Restatement: The modern law of conversion began with Fouldes v. Willoughby, 8 M. & W. 540, 151 Eng. Rep. 1153 (1841), where the court first drew a distinction betwel~n a mere trespass interfering with possession of a chattel, and a conversion, which must involve some exercise of the ddendant's hostile dominion or control over it. From this there has developed the present rule, which regards conversion as an exercise of the defendant's dominion or control over the chattel, as distinguished from a mere interference with the chattel itself, or with the possession of it. Since any interference with the chattel is to some extent an exercise of "dominion," the difference between the two becomes almost entirely a matter of degree. * * * * . . . In conversion the measure of damages is the full value of the chattel, at the time and place of the tort. Where the defendant satisfies the judgment in the action for conversion, title to the chattel passes to him, so that he is in effect required to buy it at a forced judicial sale. Conversion is therefore properly limited, and has been limited by the courts, to those serious, major, and important interferences with the right to control the chattel which justifY requiring the defendant to pay its full value. 5 * * * * . . . In each case the question to be asked is whether the actor has exercised such dominion and control over the chattel, and has so seriously interfered with the other's right to control it, that injustice he should be required to buy the chattel. Restatement (Second) of Torts S222A, Comment (a), (d) (1965) (emphasis added). Thus, "conversion entails a more serious deprivation of the owner's rights [than trespass to chattel,] such that an award of the full value of the property is appropriate." Academy Industries, Inc. v. PNC Bank, N.A., 2002 WL 1472342, *7 (Phila. Co. 2002). "The present tort [of conversion] evolved from the common law action of trover." Northcraft v. Michener, 319 Pa. Super. 432, 440, 466 A.2d 620, 624 (1983). "[H]istorically the action for trover was limited to the conversion of tangible personalty." Evans v. American Stores Co., 3 Pa. D. & C.2d 160, 161 (Phila. Co. 1955). However, the tort has evolved to include "some forms of property which were beyond the scope of common law trover." Northcraft, 319 Pa. Super. at 440, 466 A.2d at 625. "The process of expansion has stopped with the kind of intangible rights which are customarily merged in, or identified with some document." Id. at 441, 466 A.2d at 625. A domain name has been held by one court, applying Pennsylvania law, to be outside of the category of property which can be subject to actionable conversion. Famology.com, Inc. v. Perot Sys. Corp., 158 F. Supp. 2d 589 (E.D. Pa. 2001). In the present case, where the property allegedly converted was Plaintif1"s name, social security number, birthdate and history of a rather common medical test, where the alleged conversion consisted of an advertisement of limited duration of medical services by her healthcare provide:r, and where there is no indication that Plaintiff was deprived of her own use of these items or suffered any pecuniary loss from the alleged conversion, the action of Defendant does not represent an exercise of such dominion and control over property subject to 6 converSIon, or such a senous interference with Plaintiff's control over such property, that Defendant should, in justice, be requir1ed to buy the property from Plaintiff. For this reason, the court finds itself persuaded by Defendant's argument that Plaintiff's claim for conversion can not be maintained. Motion to strike claim for punitive damages. "'Punitive damages 'are . . . awarded against a person to punish him for his outrageous conduct.'" Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355,358 (1963) (citations omitted). " 'Punitive damages are awarded only .,. for acts done with a bad motive or with a reckless indifference to the interests of others.''' Chambers, 411 Pa. at 344, 192 A.2d at 358 (citations omitted). In the present case, one of the allegations of Plaintiffs amended complaint is that Defendant persisted, albeit for a limited period, in conduct which breached its obligation of patient confidentiality and violated Plaintiff's right to privacy after being advised of the offending contents of its advertisement and of Plaintiff's demand that its publication be terminated. The court is not in a position, at this stage of the proceedings, to rule as a matter of law that no reasonable finder of fact could conclude that such conduct represented a reckless indifference to the rights of Plaintiff. 7 STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN Mailing Address: P.O. Box 932 Harrisburg, FA 17108-0932 street Address: 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 975-8114 FAX; (717) 975-8124 E-mail: sbanko@margolisedelstein.com Attorney for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v. NO. 03-5219 PINNACLE HEALTH SYSTEM d/b/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JUEY TRIAL DEMANDED PETITION OF DEFENDANT. PINNACLE H:E:ALTH SYSTEM. FOR STATUS CONFERENCE, 1. Plaintiff commenced the above-captioned action by Praecipe for Writ of Summons filed on or about October 3, 2003. 2. Defendant, Pinnacle Health System (~Pinnacle"), served a Rule to File a Complaint upon Plaintiff and thereafter served upon counsel for Plaintiff a Notice of Intent to Enter Judgment Non Pros. 3. On November 24, 2003, on the tenth day after service of the Notice of Intent to Enter Judgment Non Pros, Plaintiff's counsel filed a Complaint, which included an attorney's Verification. 4. On or about December 11, 2003, Pinnacle filed Preliminary Objections to Plaintiff's Complaint. 5. By letter dated December 29, 2003, counsel for Plaintiff confirmed an unlimited extension to file an Amended Complaint. 6. Despite several follow-up inquiries by the undersigned as well as counsel for a defendant in a cOJnpanion action pending at Docket No. 03-5520 as to the status of the filing of an Amended Complaint, and promises by counsel for Plaintiff to do so, an Amended Complaint was not filed until October 11, 2004, ten (10) months after Pinnacle had filed i~s Preliminary Objections to the original Complaint. 7. Despite the passing of ten (10) months, the Amended Complaint was all but identical to the oriqinal Complaint. 8. Pinnacle filed Preliminary Objections to Plaintiff's Amended Complaint and those Preliminary ObJections were argued before a panel of this Honorable Court on December 8, 2004. The parties are currently awaiting a decision on Pinnacle's Preliminary Objections. 9. Beginning on December 14, 2004, counsel for Pinnacle attempted to schedule the deposition of Plaintiff. 10. After discussion with Plaintiff's counsel, it was agreed that the depositions of Plaintiff and the representatives of Pinnacle would be held on Wednesday, March 2, 2005, beginning at 10:00 A.M. 11. Accordingly, counsel for Pinnacle, under cover letter dated December 30, 2004, forwarded to Plaintiff's counsel a -2- Notice for Plaintiff's deposition on March 2, 2005. 12. On Monday, February 28, 2005, two (2) business days prior to the scheduled start of the depositions, secretary to Plaintiff's counsel contacted the office of Pinnacle's counsel indicating that due to then impending weather conditions, a previously scheduled appearance in the United States District Court was postponed until Wednesday, March 2, 2005, and, therefore, the depositions would have to be cancelled. Secretary to Plaintiff's counsel was unable to provide new dates for the scheduling of the deposition and, accordinCjly, they have not been rescheduled. 13. This case has now been languishing for nearly one and one-half years and Plaintiff has shown no motivation to move this case forward. 14. Moreover, for reasons unknown to Pinnacle, this lawsuit has been the subject of at least one front page article in the Harrisburg Patriot-News and Pinnacle is not being afforded the opportunity to defend and vindicate its rights in what it believes to be a case without significant merit. 15. It lS submitted that there is simply no reason for this case to have languished for as long as it has and, therefore, it is submitted that reasonable deadlines are necessary to avoid further delays and to expedite this litigation. 16. Defendant, therefore, requests a s:atus conference in -3- order to establish deadlines for: a. completion of pleadings; b. completion of discovery; c. submission of Plaintiff's expert reports; d. submission of Defendant's expert reports; e. submission of Plaintiff's rebuttal reports (if any) ; f. the filing of dispositive motions; g. the scheduling of a trial date. WHEREFORE, Defendant, Pinnacle Health System d/b/t/a Pinnacle Health and Pinnacle Health System, prays this Honorable Court schedule a Status Conference in order to set deadlines as requested above. MARGOLIS EDEI,STEIN Date: March 'I ,2005 By: S e n L. Banko, Jr. Attorney 1.0. No. 41727 Attorney for Defendant -4- CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document on all counsel of record by placing the same in the United States Mail at Camp Hill, class postage prepaid, on the r day of Pennsylvania, first- IfI?t.........(I ,2005, addressed as follows: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (Counsel for Plaintiff) ;J~,// ~ , Barbara J. Smith .---- ....\ -.-' "-i' d"-' ,1.,_' --"~ L:l' - DONNA VOZENILEK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW PINNACLE HEALTH SYSTEM dlb/t/a Pinnacle Health and Pinnacle Health System, Defendant NO. 03-5219 CIVIL TERM ORDER OF COURT AND NOW, this 8th day of March, 2005, it appearing that the praecipe listing case for argument filed by William H. Catto, Esq., at this term and number on December 14, 2004, was improvidently filed (apparently having been intended to apply to a case docketed at No. 03-5220 Civil Term), it is stricken. BY THE COURT, Arl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Plaintiff ~phen L. Banko, Jf., Esq. P.O. Box 932 Harrisburg, P A 17108-0932 Attorney for Defendant r / I / (/,' . (jL/~ ! Ji'fesley Ole- ., {J ) JNiIliam H. Catto, Esq. White & Williams LLP 1800 One Liberty Place Philadelphia, P A 19103 :rc ~! ~; .(" "! 'I,. i:) 8,,, \',:iH SC:JZ ": 'y IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Mt\R 1 II ?(ln~ ~ji"- DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v. NO. 03-5219 PINNACLE HEALTH SYSTEM d/b/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMANDED ORDER ]j>cS - ,~ AND NOW, this tttK day of viA!> cl upon consideration of the Petition of Defendant, Pinnacle Health System, for Status Conference, IT IS HEREBY ORDERED AND DECREED that a Status Conference will be held before the Honorable II ltlJ:.: '4 (kL'"'L ."A , , in Courtroom No. I J I ;; of the Cumberland County Courthouse on the II it day of 'j.'A " .C "U (" , I , 2005, at //:00 ^ o'clock -t-.M. BY THE COURT: VI I " > ~ i;;</ J. ( " -, ~ _~ I /------ .0> ( C) .\tp ,. c. :i .)F-.. STEPHEN L. BANKO, JR., ESQUIRE Fa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN Mailing Address: P.O. Box 932 Harrisburg, PA 17108-0932 Street Address: 3510 Trindle Road Camp Hill, FA 17011 Telephone: (717) 975-8114 FAX: (717) 975-8124 E-mail: sbanko@margolisedelstein.com Attorney for 0 endant IN THE: COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - L W v. NO. 03-5219 PINNACLE HEALTH SYSTEM d/b/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMAN ED NOTICE TO PLEAD TO: Donna Vozenilek, Plaintiff c/o Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Attorney for Plaintiff You are hereby notified to file a written response enclosed New Matter within twenty (20) days from service or a default judgment may be entered against you. the ereof MARGOLIS EDELSTEIN "J.) '1/\) \) '> Date: -) By: Jr. 41727 Attorney for Defendant STEPHEN L. BANKO, JR., ESQUIRE Fa. Supreme Court T. D. No. 41727 MARGOLIS EDELSTEIN MaiLing Address: P.O. Box 932 Harrisburg, PA 17108-0932 Street Address: 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 975-8114 FAX: (717) 975-8124 E-mail: sbanko@margolisedelstein.com Attorney for D endant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - L W v. NO. 03-5219 PINNACLE HEALTH SYSTEM d/b/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMAN ED ANSWER AND NEW MATTER OF DEFENDANT PINNACLE HEALTH SilsTEM D/B/T/A PINNACLE HEALTH AND PINNACLE HEALTH SYSTEI TO PLAINTIFF'S AMENDED COMPLAINT 1. Admitted in part and denied in part. As to P1, ~ntiff's current whereabouts, after reasonable investigation, DefE ~dant, Pinnacle Health System ("Defendant"), is without knowledc ~ or information sufficient to form a belief as to the truth ~ said averments and, therefore, they are denied. 2 . Denied as stated. Pinnacle Health System is a on- profit corporation which is the parent company for and Of rator of various health care facilities and has a principal pIa e of business in Harrisburg, PA. 3. Denied. The allegations contained in this para raph state a legal conclusion cO which no response is necessar By way of further answer, however, Defendant admits that ve ue is proper in Cumberland County. 4. Admitted. 5. Denied as stated. Pinnacle Health System oper tes a facility in Cumberland County known as the Fredricksen 0 tpatient Center. At that facility, there lS a Mammography Center which provided services to Plaintiff. At that facility, a fil was maintained for the services provided to Plaintiff. The ront of the file jacket does include the name, Social Security n mber, patient's date of birth and the fact that the service pr vided was mammography. 6. Denied as stated. The purpose of a medical fi e is to document services provided. 7. Admitted in part and denied in part. What app ars to be paragraph 7 of the Amended Complaint, starts in mid-s tence. However, it is believed and, therefore, averred that PIa tiff is alleging that, in conjunction with the mammography servi s provided at the Fredricksen Outpatient Center, Pinnacle aced various advertisements in several outlets for the purpos of informing the public of the Mammography Center during Br st Cancer Awareness Month. To the extent that this is, in ct, the allegation contained in paragraph 7 of Plaintiff's Compl 'nt, such allegation is admitted. 8. Admitted in part and denied in part. It is -2- specifically denied that the advertisement which was pub ished and circulated beginning on September 29, 2002, and cont nuing thereafter, was specifically prepared for the purpose of making the public aware of mammography services during Breast C ncer Awareness Month. To the contrary, that advertisement wa prepared months before and was again utilized in a sligh ly different format during the period set forth in Plaintif 's Amended Complaint. 9. Admitted. 10. Denied as stated. It is specifically denied t at the "biographical datan set forth on Plaintiff's "foldern co ld be seen or read in all of the publications in which it appe red. 11. Denied. The answer contained in paragraph 10 ereof is incorporated herein by reference as if set forth in its By way of further answer, with respect to Plaintiff's characterization that biographical data was "broadcast t a large tirety. segment of the public,n after reasonable investigation, fendant is unable to admit or deny that allegation. 12. Denied as stated. The answers contained in pa graphs 'f set 10 and 11 hereof are incorporated herein by reference as forth their entirety. To the extent that Plaintiff's biographical data can be read in an advertisement, it is dmitted that anyone reading the advertisement would understand t t a mammogram had been performed. It is further admitted th this -3- information, to the extent it was disseminated, was done so without Plaintiff's consent. 13. Denied. Immediately upon learning of the fact on or about October 7, 2002, that in certain publications Plai tiff's biographical data could be seen and read, Defendant spec fically attempted to pull such advertisements from all outlets trough which it had been disseminated. It is admitted, however that despite Defendant's best effort to ensure that the adver isement was pulled, it did appear in several locations after tha date. 14. Denied. The answer contained in paragraph 13 ereof is incorporated herein by reference as if set forth in its ntirety. By way of further answer, it is specifically denied that Plaintiff "orallyH demanded that Defendant cease and des st from circulating the publication. To the contrary, it is bel ved and, therefore, averred that a representative of Defenda spoke with Plaintiff on or about October 7, 2002, to explain w t had occurred. Plaintiff did not express any concern and, in act, indicated that although she was not aware of the publica 'on, understood what had occurred. Defendant specifically de 'es that it willingly or knowingly permitted the dissemination of Plaintiff's biographical data after Pinnacle had determi d that such had previously occurred. INVASION OF PRIVACY 15. The answers contained in paragraphs 1 through hereof -4- are incorporated herein by reference as if set forth in heir entirety. 16. Denied. The allegations contained in this par graph states a legal conclusion to which no response is necess ry. 17. Denied. The answers contained in paragraphs 1 and 16 hereof are incorporated herein by reference as if set fo th their entirety. 18. Denied. The answer contained in paragraph 17 ereof is incorporated herein by reference as if set forth in its ntirety. 19. Denied. The answer contained in paragraph 17 ereof is incorporated herein by reference as if set forth in its ntirety. 20. Denied. The answer contained in paragraph 17 ereof is incorporated herein by reference as if set forth in its ntirety. 21. Denied. The answer contained in paragraph 17 incorporated herein by reference as if set forth in its 22. Denied. The answer contained in paragraph 17 reof is tirety. reof is tirety. at incorporated herein by reference as if set forth in its By way of further answer, with regard to any allegation Plaintiff was Udamaged and continues to suffer damages," Defendant is without knowledge or information sufficient 0 form a belief as to the truth of said averments and, therefor they are denied. 23. Denied. The answer contained in paragraph 22 incorpcrated herein by reference as if set forth in its -5- reof is tirety. WHEREFORE, Defendan~, Pinnacle Health System, deman s judgment in its favor and against Plaintiff. BREACH OF PATIENT CONFIDENTIALITY BY A HEALTHCARE PR IDER 24. The answers contained in paragraphs 1 through 3 hereof are incorporated herein by reference as if set forth in heir entirety. 2'- :J. Admitted in part and denied in part. The answ r contained in paragraph 2 hereof is incorporated herein b reference as if set forth in its entirety. 26. Admitted. 2"/ , . Denied as stated. The answers contained in pa graph 17 hereof is incorporated herein by reference as if set its entcirety. 2t:. Admitted. 29. Denied. The answer contained in paragraph 22 incorporated herein by reference as if set forth in its rth in reof is tirety. 30. By Order and Opinion of the Honorable George E. Hoffer, dated March 4, 2004, Plaintiff has been precluded from m ing a claim under the Health Insurance Portability and Account ility Act ("HIPA"). Accordingly, and upon advice of counsel, on the part of Defendant is required. WHEREFORE, Defendant, Pinnacle Health System, judgment in its favor and against Plaintiff. -6- answer mands CONVERSION 31.-40. Pursuant to the Order and Opinion of the H norable George E. Hoffer, dated March 4, 2004, Plaintiff's claim for conversion has been dismissed and, accordingly, on the a vice of counsel, no answer on the part of Defendant is required. WHEREFORE, Defendant, Pinnacle Health System, judgment in its favor and against Plaintiff. PUNITIVE DAMAGES emands 41. The answers contained in paragraphs 1 through 0 hereof are incorporated herein by reference as if set forth in heir entirety. 4 ~~ . Denied. The answer contained in paragraph 17 incorporated herein by reference as if set forth in its 43. Denied. The answer contained in paragraph 17 incorporated herein by reference as if set forth in its 44. Denied. The answer contained in paragraph 17 incorporated herein by reference as if set forth in its 45. Denied. The answer contained in paragraph 17 incorporated herein by reference as if set forth in its WHEREFORE, Defendant, Pinnacle Health System, judgment in its favor and against Plaintiff. NEW MATTER reof is tirety. reof is tirety. reof is tirety. reof is tirety. mands 46. The answers contained in paragraphs 1 through 4 hereof -7- are incorporated herein by reference as if set forth in heir entirety. 47. Plaintiff's claim, if any, are barred by the a plicable statute of limitations. 48. Plaintiff has failed to state a claim for inva ion of privacy upon which relief may be granted. 49. Plaintiff has failed to state a claim for a br ach of patient confidentiality upon which relief may be granted 50. Plaintiff has failed to state a claim for puni ive damages upon which relief may be granted. WHEREFORE, Defendant, Pinnacle Health System, judgment in its favor and against Plaintiff. MARGOLIS EDELSTEIN Date: ~\~\0( By: L. Banko, Jr. 1.0. No. 41727 Attorney for Defendant -8- emands VERIFICATION I, ROBERT T. GABLER, DIRECTOR, RISK MANAGEMENT, PIN ACLE HEALTH, state that I have read the foregoing document; a d that the facts stated therein are true and correct to the bes of my knowledge, information and belief. I understand that any false statements herein are m de subject to penalties of 18 Pa. C.S.A. Section 4904, rela ing to unsworn falsification to authorities. Date: J)J- /oJ--' ,7 ,- ../Cv7(. // ROBERT T. GABLER, DIR TOR RISK MANAGEMENT PINNACLE HEALTH Answer to j;ntended Complaint/57 550.4-00088 CERTIFICATE OF SERVICE I hereby certify that I have served a true and corr ct copy of the foregoing document on all counsel of record by pI cing the day of pennsylvani ~ , first- same in the United States Mail at Camp Hill, class postage prepaid, on the 2~( , 2005, addressed as follows: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (Counsel for Plaintiff) Barbara J. Smith C} ~~. ~",:\ 1C:Y;' .~~; ,...' c-;:~ ',ij; -' -- ,'. ;i:l N ,,,, ".-. ~-"< ;~ (v,!c:<~ :i Q, .... "'1::9 rnC; :"<,'0 'C),(: ~.'~! '~1d r,~: (-j ~;~{n -v :;J;. (~~? ~t!:. - ~ ------ T-- - " DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLltAS OF : CUMBERLAND COUNTY, PENN~,YLV ANIA vs. : CIVIL ACTION - LA W : NO: 03-5219 PINNACLE HEALTH SYSTEM d/b/t/a Pinnacle Health and Pinnacle Health System: Defendant : JURY TRIAL DEMANDEQ ANSWER TO DEFENDANT'S NEW MATTER i 46. Is a conclusion oflaw and requires no answer. By way of further ahswer. if n answer]s required the same is denied and strict proof of the same is demandci:! at trial. 47. Is a conclusion oflaw and requires no answer. By way of further a~swcr. i1'<jn answer is rcql1T~d the same is denied and strict proof of the same is demande~ at trial. 48. is a conclusion of law and requires no answer. By way of further ariswer. if a\1 answer is required the same is denied and strict proof of the samc is demanded, at trial. 49. Is a conclusion of Jaw and requires no answer. By way of further anfwer, if ah answcr is required the same is denied and strict proof of the same is demandedi at trial. 50. [s a conclusion oflaw and requires no answer. By way offurthcr an$wcr, ifm\ answer is required the same is denied and strict proof of the same is demandcd,at trial. . WHEREFORE, Plaintiff respectfully requests that this Honorable Court en er an award in her favor in an amount in excess of the statutory limits for compulsory arbitra ion as to all of the counts above, as well punitive damages. Respectfully submitte~, ROMINGER, BA YLIEY & WARE .;2 - . f Date:l{-I- O~ Karl E. Rominger, Esq(uire 155 South Hanover St~eet Carlisle, P A 170] 3 (717) 241-6070 Supreme Court lD # 811924 Attorney for Plaintiff DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PL AS OF : CUMBERLAND COUNTY. PENNS LV ANIA vs. : CIVIL ACT]ON - LA W : NO: 03-5219 PINNACLE HEALTH SYSTEM d/blt/a Pinnacle Health and Pinnacle Health System: , Defendant : JURY TR]AL DEMANDEq CERTIFICATE OF SERVICE I L Karl E. Rominger. Esquire, attorney for Donna V ozenilek, do her~by certi( that I this day served a copy of the Answer to Defendant's New Matter upon the fOIl+wing by epositing i same in the United States mail, postage prepaid, at Carlisle, Pennsylvania. ardresscd s follows: PINNACLE HEALTH c/o: Stephen 1. Banko. Jr. 3510 Trindle Road Camp Hill, PA 170] I (717)975-8114 c./ _ I - tJ 5 Respectfully submitted, \ ROMINGER, BAYLEY & WH RE Dated: . i , I i K I E. Rominger. Esqui~e 155 South Hanover Street Carlisle, PA 170]3 (717) 24] -6070 Supreme Court lD # 81924 Attorney for PlaintifT ~, ,:,:' (;':J ~-.J. (J -to ::;1 "r,." Ii: r<) ,.~ .~) ~-- c.:.:. DONNA VOZENILEK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, CIVIL ACTION - LAW PINNACLE HEALTH SYSTEM d/b/t/a, Pinnacle Health and pinnacle Heal th System, Defendant NO. 03-5219 CIVIL TERM ORDER OF COURT AND NOW, this 11th day of April, 2005, upon consideration of the Petition of Defendant, pinnacle Health System, for Status Conference, and following a conference held in the chambers of the undersigned judge on today's date in which Plaintiff was represented by Karl E. Rominger, Esquire, and Defendant was represented by Stephen L, Banko, Jr., Esquire, and pursuant to an agreement of counsel, a discovery deadline for completion of all depositions, service of and response to interrogatories, and exchange of expert reports, is established for Friday, July 1, 2005. By the Court, ~rl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 For the Plaintiff > !~uL ~ () { 1'1, O!) ~tephen L. Banko, Jr., Esquire P.O. Box 932 Harrisburg, pa 17108-0932 For the Defendant pcb '.{V, <; h..' 60 : I [,Ie! 'i I tldv SOOZ <""0, ~ PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and sutrnitted in duplicate) TO THE PROTHOlUI'ARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( xx) for JURY trial at the next tenn of civil court. for trial without a jury. ----------------------------------------- CAPTION OF CASE (entire caption must be stated in full) DONNA VOZENILEK, (check one) (XX) Civil Action - Law Appeal from Arbitration (other) (Plaintiff) vs. PINNACLE HEALTH SYSTEM/d/b/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, The trial list will be called on02/14/06 and Trials commence on 3/13/06 (Defendant) Pretrials will be held on 2/22/06 (Briefs are due 5 days before pretrials.) vs. (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 03-5219 Civil XNXXXXXXXXXXX Indicate the attorney who will try case for the party who files this praecipe: Stephen L. Banko, Jr., Esquire Margolis Edelstein, 3510 Trindle Road, Camp Hill, PA 17011 (717)760-7501 Indicate trial counsel for other parties if known: Karl E. Rominger, Esquire, 155 South Hanover Street, Carlisle, PA 17013 This case is ready for trial. Signed: BANKO, JR., ESQUIRE Print Narre: December 3"0, 2005 Attorney for: DEFENDANTS Date: JIf CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document on all counsel of record by placing the same in the United States Mail at ?o Camp Hill, Pennsylvania, first-class postage prepaid, on the b.~ ,2005, addressed as follows: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (Counsel for Plaintiff) day of /f~~ -:;r'c,Ld Barbara J. Smith ~ .-- , ,!;-- ." - ..- " ,.-') "'{1 .-\ -:::. ;., -"~~ . DONNA VOZENILEK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 03-5219 CIVIL TERM PINNACLE HEALTH SYSTEM d/b/t/a Pinnacle Health and Pinnacle Health System, C'; Defendant CIVIL ACTION - Ll,W -\-1 ;-Tj .. , -')'1 :-=1 c., " (~.> IN RE: PRETRIAL CONFERENCE J',- A pretrial conference was held WednesGl.3.Y' ':'0 .., .., L' ~,':2 February 22, 2006, before the Honorable Edward E. Guido, Judge. Present for the Plaintiff was Karl E. Rominger, Esquire, and present for the Defendant was Stephen L. Banko, Jr., Esquire. This is a suit arising from unauthorized publication of a file folder of Plaintiff's medical records containing her name, Social Security, and date of birth. The parties estimate that it will take two days to try. There are no complicated legal issues. Defendants have indicated a w~llingness to stipulate to the circulation of the various print media listed in Plaintiff's pretrial memorandum so as to avoid calling the editors of those publications. Plaintiffs have agreed to stipulate to the authenticity and contents of her medical records so that Defendant need not call the nedical providers and records keeper to testify in that regard. The parties are directed to file their requested points for charge at the beginning of trial. They also will file supplemental points at a later time as agreed by the trial judge. Plaintiffs have requested $175,000.00. Defendants have offered nothing. Therefore, settlement does not appear to be likely. Plaintiff's counsel has also indicated that he will be signing a stipulation previously forwarded to him regarding the testimony of Nurse Kelly. Consequently, the Defendant need not call Nurse Kelly at the time of trial. The stipulation is not to the truth of the facts, but merely to the fact that Nurse Kelly would testify to those facts if she were called as a witness at trial. Edward E. Guido, J. Karl E. Rominger, Esquire For the Plaintiff Stephen L. Banko, Jr., Esquire For the Defendant Prothonotary Court Administrator srs DONNA VOZENILEK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. 03-5219 CIVIL PINNACLE HEALTH SYSTEMS d/b/tla Pinnacle Health and Pinnacle Health System Defendant CIVIL ACTION - L AW IN RE: JURY TRIAL ORDER OF COURT AND NOW, this 8th day of March, 2006, in preparation of the Jury Trial scheduled for jury selection to begin at 10:30 a.m. March 13, 2006 and the trial to begin as soon as jury selection is completed; IT IS ORDERED AND DIRECTED that each party in this case shall file with the Court the following: 1. Both parties are directed to prepare an exhibit list pursuant to the example attached. Two copies of this exhibit list shall be provided to the Court prior to the commencement of trial. All visual aids used in the case shall be disclosed to the opposing party. 2. Counsel for each party is directed to file with the Court on or before 12:00 noon on March 10, 2006, a list of the numbered standard jury instructions the party is requesting. If a party is proposing a unique jury instruction or requesting significant modification of a standard instruction it shall provide the full text of the proposed instruction to the Court by 12:00 noon, March 10,2006. 3. On or before 12:00 noon on March 10, 2006, the parties will provide a proposed verdict slip to the Court for review. ~rl E. Rominger, Esquire Attorney for Plaintiff ~phen L. Banko, Jr., Esquire Attorney for Defendant Court Administrator ." . , (]~Lil -~Q~ ~-~,-- ...:J o By the Court, ~l~ M. L. Ebert, Jr. <",'\1 "~I : \ - IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA (, V 14./) ~ / ---- DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v. NO. 03-5219 PINNACLE HEALTH SYSTEM d/b/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant mRY TRIAL DEMANDED PLAINTIFF'S 1st MOTION IN LIMINE And comes Plaintiff by and through her counsel and m,~kes the following motion in limine as follows: I. Defendant has indicated that it wishes to introduce the transcript of Donald Jefferies' deposition testimony. 2. Jefferies is believed to have died within the last month, although this is based on Defense Counsel's representations only. 3. Said transcript was not made with the intent for it to be used at trial, and not all matters were explored by Plaintiff with said witness. 4. A letter dated June 3, 2005 was provided by Jefferies when complying with a subpoena Plaintiff had issued. (Attached) 5. Said letter is referenced by Jefferies in the Deposition, and as such it is ratified. 6. That letter is needed to complete the res gestea of Jefferies' testimony, if the transcript is utilized. 7. To allow the deposition testimony to be admitted would be more prejudicial than probative, unless the Jefferies letter, attached hereto, is also provided for the juries review. Wherefore Plaintiff asks that the transcript of Donald Jefferies be barred from use unless, the letter referenced therein, and attached hereto, and contained in Plaintiff s file in response to a previous subpoena, is also admitted into evidence and read to the jury. Respectfully Submitted, Rominger, Bayley & Whare Date: March 13,2006 ) ISI .-/ ---- Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff To: Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 3 June 2005 From: Don Jeffrey The Cat's Pajamas Design Studio 322 Gettysburg Pike Mechanicsburg, PA 17055 Subj: Matter of Donna Vozenilek v Pinnacle Health System Mr: Rominger: I have very little to offer you in the way of anything to substantiate or dispute the plaintiff's claims. My relationship with Pinnacle was severed well over a year ago, and as part of the agreement, I was to archive all materials I produced for them on CD [I had wor~ed for them for more than six years on a freelance basis], and forward them to the client. I do not keep tearsheets of my advertisements, unless they are impressive full color magazine items for my portfolio, simply because of the sheer volume of business I did with them. All of my Pinnacle files, both electronic and hard copy, were discarded when our relationship was disbanded. It was not done out of malice. I simply needed the storage room [Pinnacle was a large client that required a lot of work] and an enormous amount of disk drive space was being taken up by a client that was no longer active. In a nutshell, I can tell you the standard procedure of producing an ad for Pinnacle; I am supplied copy from the client, as well as a professionally shot photograph to use in the Layout. It is the client's responsibility to make certain the shots are model-released, and it would never have even occurred to me to look for an actual name on a chart in a photograph.And if I HAD seen a name, I would have assumed it was a faux mock-up for the sake of the photograph. I used the supplied photograph, designed the ad and submitted it for client approval They okayed the ad, and it was subsequently forwarded to the Patriot News [I no longer have the files, so I am not aware if it ran anywhere else]. That is the sum total of what I remember from the ad; you have to understand that at the height of our business relationship [I am essentially a one-man shop], we were regularly churning out several ads a week, in varying sizes, for varying newspapers and magazines. Plus billboards and ancillary materials such as brochures, flyers, posters, newsletters, etc. So this was only one of dozens of marketing materials being produced at the same time. The long and short of it is, if there is anything you need of mine, Pinnacle now has it in it's possession. If I can be of any further assistance, please don't hesitate to contact me. I apologize for the lack of letterhead. I am phasing out my design company to pursue a different line of business and did not want to invest in additional letterhead that would ultimately be wasted. ~gar9S Don Jeffrey, owner The Cat's Pajamas 717 -691-9006 voice 717-691-9031 fax Invoice DATE INVOICE NO. 10/18/'01 S448 BILL TO Kim Paytll! PinnldeHulth SYltem "meting &, Public Relations P.O. 80x 8100 Harrisburg. PA 111 01-8100 JOB DESCRIPTION Hew ad services as noted: NICU: "Edythe" ad [A Sigll 01 RelielJ TERMS DUE DATE P.O.NO. Net 30 11111/'02 rrEM DESCRIPTION HRS. RATE SERVICE DATE AMOUNT Dtsign of ad in new Pinnacle "template" series promoting RadioloiY "A ligh 01 Relief IEdythe ad Onginal ad rtsiladlreconfigurtd as 4-<oloriblack +white as noItd lor the following publications. All lilts either emailed or delivered on disk to participating publicatioos PW'iot.News [original runl4-<] Chambershurg Public Opinion (b +w) lewistown Sentinel (b+w) Carlisle SeRlinel [4-<J Central PellA Bul JmI [b+wJ Central PA magazine [Iv. pageJ4-c] Harrisburg magazine [lull pagel4-<J 004 Design/Electronic layout 7 H.OO 001 Administration moo s 40.00 200.00 l ~. , Total $725.00 DONNA VOZENll-EK Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 03-5219 PINNACLE HEALTH SYSTEM d/b/t1a Pinnacle Health and Pinnacle Health System: Defendant NOTICE To: Don Jeffrey Cats Pajamas 322 Old Gettysburg Pike Mechanicsburg, Pa 17055 You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, _tVltJAa) .J::FfP.ej~ certif'y to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the subpoena issued on May 13, 2005 have been produced. Date 5/ D,/6\ Si~~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v. NO. 03-5219 PINNACLE HEALTH SYSTEM dlb/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Plaintiff, do hereby certify that I this day served a copy of the Plaintiff's MotiiJn In Limine upon the following by hand, addressed as follows: Stephen 1. Banko, Esquire MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 170 I I Respectfully Submitted, Rominger, Bayley & Whare Date: March 13, 2006 IS//- Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff , "('j I -c ( ,. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA OVI/ /--.. DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v. NO. 03-5219 PINNACLE HEALTH SYSTEM d1b/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMANDED ANSWER TO DEFENDANT'S MOTION(S) IN LIMINE ;,nd comes Plaintiff by and through her counsel and answers Defendant's Motion(s) in limine as follows: I. Admitted 2. Admitted in part. Denied in part. It is denied that the violation was merely technical in nature, and it is denied that the Invasion was limited to just two version ofInvasion of Privacy. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted 7. Admitted 8. Admitted in part. Denied in part. Defense Counsel has failed to state the reasons for the delay, which included the preparation of stipulations and agreements to remove one of the Defendant's at this docket, as well as other defendants in a related suit at another docket. This lengthy process was in fact expected by the Defendant, and hence the granting of an unlimited extension without qualification. 9. Admitted in part. Denied in part. Again, the significant differences were in the parties pursued, and their removal was only granted after Pinnacle agreed not to point the blame for their bad acts at the other potential defendants. 10. Admitted. ~ 11. Admitted. By way of further answer delay was occasioned by mutual scheduling issues, as attorney Banko and undersigned are both apparently in high demand. 12. Denied. The status conference was filed because the insurer of Pinnacle tanked into Bankruptcy, and Defense Counsel needed to ask the Court for Comity in the matter, and in fact sought a stay of Trial, but permission to proceed with a case management schedule, in which Plaintiff whole heartedly joined in with. 13. Denied. No formal discovery occurred until this point. 14. Admitted. 15. Admitted. 16. Admitted. 17. Admitted in part. Denied in part. It is admitted that the interrogatory was not directly amended, but rather was supplemented by implication with the pre-trial statement. 18. Admitted. 19. Admitted. 20. See previous answers. 21. Admitted. 22. Denied. Informal discovery and exchanges took place between the then more numerous parties. 23. Denied. Defense Counsel came to Court asking for Comity in an Order staying the matter, from a court in New Jersey, because Pinnacle choose to be insured by an Insurer of questionable solvency, and wished to await the results of that insurance companies bankruptcy, before determining how much of their own monies might have to be spent on Defense Counselor Verdict. 24. Denied. The editors of those organizations were referenced in the Pretiral Memorandum. 25. Admitted. 26. Admitted. 27. Admitted in part. Denied in part. Plaintiff will not be calling any newspaper employees, and will instead admit the subject material through the previously identified witnesses as much as is possible. However, Defendant is still bound to stipulate to circulation figures for the papers, which are appended hereto. Wherefore, Plaintiff agreeing not to call said witnesses, the matter is moot. " ,I 28. See previous paragraphs. 29. Admitted in part. Denied in part. It is actually 3 claims sounding in Invasion of Privacy for 15 separate publications, and it is - 600,000 instances of Breach of Confidentiality by a Healthcare Provider, which does noty appear to be subject to the one publication rule. 30. Admitted. Except for the time spent dealing with the aftermath, and additional time it now takes to access accounts. 31. Admitted. 32. Admitted in part. Denied in part. It is admitted that Pennsylvania Law requires treatment for "emotional distress", however except for Intrusion upon seclusion, there is no case requiring a proof of Medical Treatment for either of the other two Privacy torts so plead, nor for the separate and distinct action for Breach of Confidentiality by a Healthcare Provider, for which mental distress is recoverable. 33. Is a conclusion oflaw and requires no answer, by way of further answer the same is denied. Wherefore, Defendant's request should be denied. 34. Previous answers hereby incorporated by reference. 35. See previous answers. 36. Admitted. 37. Admitted. By way offurther answer, the Breach of Confidentiality claim actually has a two year limit, as it best falls under 42 Pa.C.S. 9 5524. Two year limitation. By way of further answer, if it does not then it falls under 42 Pa.C.S. 9 5527. Six year limitation. 38. Denied. The cause of action accrues on the date of publication, or when it is discovered. Pinnacle itself claims it was unaware of its bad acts until at least October 6, 2002. 39. Denied. 40. Admitted in part. Denied in part. It is admitted that a cause of action for the prior acts under an invasion of privacy theory is so limited. It is denied that the same is true for the Breach of Confidentiality Claims. Further, those prior acts are relevant as two the outrageousness and I or willful disregard that Pinnacle displayed, and the "full story" is what the jury is free to evaluate visa vi the punitive damages claim. 41. Denied. See answer to 40. 42. Denied in part. Intrusion Upon Seclusion requires no public or widespread publication, nor does Breach of Confidentiality. Wherefore Defendant's motion should be denied. 43. Previous paragraphs incorporated as if more fully set out herein. 44. Admitted as two Invasion of Privacy, excepting Intrusion upon Seclusion. 45. Admitted, but see Graham v. Todav's Spirit 503 Pa. 52, 58 CPa. 1983 l, "Likewise, if the defamatory statement is contained in two separate editions, then two separate causes of action exist." 46. The failure to retrieve is relevant, as Pinnacle could have stopped the Harrisburg Magazine from being released, and I or gone to public locations and collect the papers, or paid to have them redacted after the fact. It is more a measure of damages, and an issue for Punitive considerations. If you claim you negligently let the stroller go down the hill, but could have caught up to it and stopped it, but chose not to, it is relevant in determining ones frame of mind, and or scienter. 47. Denied. 48. Denied. It is not a claim that is at issue here. 49. True, but not as to confidentiality, as the statutory section cited is linked to Defamation and the related Privacy Torts. Wherefore Defendant's motion should be denied. Respectfully Submitted, Rominger, Bayley & Whare Date: March 13,2006 / ISI / -- .... Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff - IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v. NO. 03-5219 PINNACLE HEALTH SYSTEM d1b/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Plaintiff, do hereby certify that I this day served a copy of the Plaintiff's Answer to Dfendant's Motion In Limine upon the following by hand, addressed as follows: Stephen L. Banko, Esquire MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania l701 1 Respectfully Submitted, Rominger, Bayley & Whare Date: March 13, 2006 ISI /~--- Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff c t"-, " " c...) c; < IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW V. NO. 03-5219 PINNACLE HEALTH SYSTEM, d/b/t1a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMANDED VERDICT SLIP 1. Given the admission of the Defendant, Pinnacle Health System that its conduct constituted an invasion of privacy-breach of the patient confidentiality, do you find that the Plaintiff sustained any compensable injury or harm? Yes~ No o If your answer to question number 1 is "No," skip question number 2 and proceed to question number 3. Otherwise, proceed to question number 2. 2. To be answered only if your answer to question number 1 was "Yes." What amount do you find represents fair compensation to Plaintiff? rJ50b ~ $ 3. Do you find that any conduct on the part of Pinnacle or any of its employees was outrageous, malicious, wanton, willful, or oppressive, or shows reckless indifference to the rights of others? Yes -2-.. No / 'j.,-- If your answer to question number 3 is "No," do not answer question number 4 and return to the courtroom. Otherwise, proceed to question number 4. 4. What amount do you award Plaintiff for punitive damages? $ < ~ !Il.j I O~ . 10- .. JURY QUESTION 1 PART 1 Under Pennsylvania law a punitive damage claim based on reckless indifference must be supported by evidence sufficient to establish that 1. A defendant had a subjective appreciation of the risk of harm to which the Plaintiff was exposed; and that 2. He acted. or failed to act as the case may be, in conscious disregard of this risk. In this case the phrase "rights of others" is a patient's rig hI to have her medical records kept confidential. PART 2 The answer to your question is that no compensatory damages have already been awarded. While mention was made of nominal damages this is a matter set by law and is of no consequence to you. You alone determine what, if any, compensatory damages should be awarded to the plaintiff. Again, at this stage no compensatory damages have been awarded. --~.. " .-.'.~ JfJl6/ · . \. (jaP) Y oa &;'XiA'~ ~ fiIW t J ' 5/1u"'" 'I " ? ~rjiMf !/j){f~C<- 'fD ~ '2trrolfS q d11fl45 ' Q()f,WJ~ J ' ~~ 160.: . , , ! \ , \ \ 4/601 ' , kJIP- i>;J Y to Ir'UI!Yf '" P;'1 Mtt#t? Ii, Affl'/J/^1 .~S{ 0"- ,T>f/L ! \ \ \ I \ \ \ \ \ \ \ \ I \ \ \ ~1 /("'-rW.0? {JjJfl.d6/l.-5 ___.1- .. CASE NO.: # q :j)OI\^tl. V02.e."dtk DOCKET NO.: () 3- S-c:7/ q VS Juror # Name 15 53 \) 34 19 20 58 - 2J . 38 36 .r-- bb r1 :33 24 -"'r; 11 (, 31 29 I -~ 27 :-i ~~ 1~ 1 37 57 17 61 72 39 50 28 49 40 ::1 ~ i<. :-; "; Monday, March 13, 2006 CARTER, DEBRA K. KOV ANIC, ROBERT Q C:T ATTPRV, CJ---l~RVT A ALBRIGHT, THOMAS S. BORGER, MARK C. KING, STEPHEN BELL, DAVID D. -=RER~JJ;:, tHeI L\EL P.\TRICI-: KRYZANAUSKAS, DOROTHY OAKES, JOHN C / Judge _ CIeri<1l'rolh _ ~aff _ COURTROOM NO.: ~V Pinn4.(h H~u.Jf4 S'5+e", e.+o../ , DATE: 0.3-/3 - 0& Random No. -1952499752 -1944035777 -1805235t'l4- -1800108559 -1445035384 -1084022295 -908817787 -/Q:J:JObL54 -688845124 -615378594 3 WILSON, WILLIAM K. rRlTI5, jARANbLL ______~ _.____----------.--~48550185tr- -340673251 l-lnL..LI1>JC~TfVOR'fII, C}..ROL Il\J L. SIGEL, RONALD :;H1::'.KIUAl~, JULIn. n.. BOOTH, JEREMY COGD, T~I\lI\Jlt1::'.l< BARRICK, DANETTE -1 ~o1B~4~5 -121211953 4YB8~SSS b - \ ['1- .j) -c fl P4 253359819 f, /' ---.----3-34~ l/...> 799954276 P 3 ~J:37SS93g 1~- b-'-f 1259391503- 1260202772 1428742393 1472915515 1519817953 1587314445 1646545910 1734138517 1966936067 2112357194 YULr1.UIVI, Tv'yTILLIn.lvI D.lI vvuuu!1:Il<!G, JOIlN AI~DRE',V (A'~1) JECREST, KEN~l1iTH rIA 9."''9) tb...J:: CALLAHAN, JAMES MCGEE, PAUL HOCKENSMITH, ROGER L. RUPP, RUBY ANDERSON, KIMBERLY A. VOGEL, JAY F. CUMMINGS, BRENDA KUTZ, DENNIS SEIFERT, GARY R. Page 1 of 1 DONNA VOZENILEK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW PINNACLE HEALTH SYSTEM, d!b!t!a Pinnacle Health and Pinnacle Health System, NO. 03-5219 Defendant IN RE: NOMINAL DAMAGES ORDER OF COURT AND NOW, March 14, 2006, after trial, and upon stipulation of the parties, nominal damages in the amount of $50.00 are awarded to the plaintiff. By the Court, M C~"~ %~\ ~rl E. Rominger, Esquire For the Plaintiff ~ephen L. Banko, P.O. Box 932 Harrisburg, Fa. 17108-0932 For the Defendant :mtf DZ : II 11V 02 (JV~1 SODl J L^!'(,'. ,.' (". i,.' ::i'Hi .JO I\O.,':"\'j,.;v,;_.,.,1,-~J -' ;:I 3:} :L!C-{:jll.:J IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v. NO. 03-5219 PINNACLE HEALTH SYSTEM dlbltla PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMANDED PRAECIPE TO ENTER JUDGMENT TO THE PROTHONOTARY: Please enter judgment against the Defendants on the Verdict entered on March 14, 2006 in the amount of $2,500.00 for the above-captioned matter. Respectfully Submitted, ROMINGER, BAYLEY & WHARE Date: C\\CvL\c ):J-, -,wblo / Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, P A 17013 (717) 241-6070 Court 1.0. # 81924 Attorney for the Plaintiff . " IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYL VANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v. NO. 03-5219 PINNACLE HEALTH SYSTEM dlbltla PINNACLE HEALTH AND PINNACLE HEAL TH SYSTEM, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Plaintiff, do hereby certify that I this day served a copy of the aforementioned document upon the following by depositing same in the United States Mail, first class postage prepaid, and Facsimile at Carlisle, Pennsylvania, addressed as follows: Stephen L. Banko, Jr., Esquire 3510 Trindle Road Camp Hill, PA 17011 Respectfully Submitted, ROMINGER, BA YLEY & WHARE Date: ('1",<> ) 2, 1.0<.'6 /-- - Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, P A 17013 (717) 241-6070 Supreme Court I.D. # 81924 Attorney for the Plaintiff r ,- . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW V. NO. 03-5219 PINNACLE HEALTH SYSTEM, d/b/tJa PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMANDED VERDICT SLIP 1. Given the admission of the Defendant, Pinnacle Health System that its conduct constituted an invasion of privacy-breach of the patient confidentiality, do you find that the Plaintiff sustained any compensable injury or harm? Yes .-& No o If your answer to question number 1 is "No," skip question number 2 and proceed to question number 3. Otherwise, proceed to question number 2. 2. To be answered only if your answer to question number 1 was "Yes." What amount do you find represents fair compensation to Plaintiff? J50b ~ $ 3. Do you find that any conduct on the part of Pinnacle or any of its employees was outrageous, malicious, wanton, willful, or oppressive, or shows reckless indifference to the rights of others? Yes~ No /7--- If your answer to question number 3 is "No," do not answer question number 4 and return to the courtroom. Otherwise, proceed to question number 4. 4. What amount do you award Plaintiff for punitive damages? $ ~ ~fl'i/O(" IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v. NO. 03-5219 PINNACLE HEALTH SYSTEM dIb/t/a PINNACLE HEALTH AND PINNACLE HEALTH SYSTEM, Defendant JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE Please discontinue and mark satisfied the above captioned matter on behalf of the Plaintiffs. The Defendant's have satisfied the jury's verdict. Respectfully Submitted, Rominger, Bayley & Whare Date !fry, I (1/ JoO& 7- KarJ'E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ill # 81924 Attorney for Plaintiff f-..,) .--~J c; ':':0'1 .-e fil C', c__> r..) (J!