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Home My WebLink About03-5220 DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: - 03.- s;uo c; ,:,1 Donald R. Buxton, MD & Carol Looney, R.T. 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 ID# 81924 (717) 241-6070 WRIT OF SUMMONS To The Above Named Defendants: Donald R. Buxton, MD & Carol Looney, R.T. c/o PINNACLE HEALTH 409 South Second Street Harrisburg, PA 17104 YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. dlllLl4Jvtf ;;irr;{} Prothonotary v ^ By:-"ilf,uA'1 //I #Ji/iI;; 6eluty Date: L"9-:;:;tA J c9w3 ...~ -- -L. ;<..-' -<) ~ ~'J ~ \;" ~ 0; ,. -.::-: \~ ""\'"'~ '.....~ ., --::J\ o '-~ -," "-... -Pt: ' q} !_- <''1 , ~". " ) t',", .::'<.- i_, ~~ " .;;..-. t , -(.~- , J;;< ?::::, c'" 9 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@maraolisedelstein.com Attorney for Defendant, Carol Looney, R.T. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v. NO. 03-5220 DONALD R. BUXTON, M.D, and CAROL LOONEY, R.T., Defendant JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendant, Carol Looney, R.T., in the above-captioned matter, MARGOLIS EDELSTEIN Date: Octobe~, 2003 By: St p n L. Banko, Jr. Attorney I.D. No. 41727 Attorney for Defendant, Carol Looney, R.T. 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 ;)~~. , 2003, addressed as follows: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (Counsel for Plaintiff) /!~~ Barbara J. Smith -----' I ~ V~ C) r, CJ ~.~ C_' -n .:7) "1:.1 , ') n --j ~:'. ~,.) ~~ r::~ , ( ~) .;:~ c '-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: FAX, E-mail: (717) 975-8114 (717) 975-8124 sbanko@maraolisedelstein.com Attorney for Defendant, Carol Looney, R.T. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v. NO. 03-5220 DONALD R. BUXTON, M.D. and CAROL LOONEY, R.T., 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 EDELSTEIN Date: October~, 2003 By: S en L. Banko, Jr. Attorney I.D. No. 41727 Attorney for Defendant, Carol Looney, R.T. RULE TO THE PLAINTIFF: You are hereby ordered and directed to file your Complaint against Defendant, Carol Looney, R.T., in the above-captioned matter within twenty (20) days of service of this Rule against you or suffer judgment non pros. Date: Or). .;2/. dC03 /5/ tud.o. /-J Prothonotary, ~rland County peL CERTIFICATE OF SERVIC~ 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 ;z., 0 day of ()~, 2003, addressed as follows: Karl E_ Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (Counsel for Plaintiff) /1~,^-/~ Barbara J. Smith -'-1";' (D ~' , (I) r-: " C) ~,; -< , C' Co,) ;:::) ~, -l o -., ~, f',) ,~ C'} , C~) -." :,~ h~ ":':1 'j> "J;! ~ .:"') b{)(\(\~ \j \:,""2(,,- \Q.\L ~\""X' <<. In the Court of Common Pleas of Cumberland County, Pennsylvania vs. \iJrm J J ~. ~J-J. \'i\ , Jv\ b c- ---J- [.0,\0\ \.-OOf\Q.l. \f..I. , I tkJe0L_ \- O~'<)";;l..dO No. _ Civil. 1>0 "on "? }r, ). To the P(O+h<o"".Lr1; PI'IA<'<2. (t-IS<;,,-E' C-. l-Je',{- of <;VIl-\V' " (c,c\';onor,l ~-t.",,..... \" To Th<< ab,oQ n~(heJ j,,-{,,-,,~~_h, bOI'<<ld i<, IlL.,d-., A 1"10 r C " r (J \ 1-001'Q'-1. ( l? ,I. C}v !Y.l'r'l.ck \4""I1-~ L-lo'1 ~Th. '5'{(<,)-s+- Ihrr,..,bA) 6'ft flJO'-I Prothonotm"y JiJ a [Jtl7 (I/) 'C' ' I Attorney for Plaintiff f\A., G~.,,~\ 1- \rJhC<.r~, 'K~: ~">,.r 8"-t1t-i OF {(."'1)-/'1)11 , '~li j r No. Term, 19 _ I' s n.. r..' T. ".-. ...j..,. ('(:..' 2:::;Q ....... CU!v. . ':~;':::.', ;:.j ';1 :! ,C", ~"'. l-'C\I\iC\t" '-. '-"v'e\/' ,( j~, VUj: \/{If\/''t' '" I ""f " ,~...\ YS. PRAECIPE Filed 19 , Atty. 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 (717) 975-8114 (717) 975-8124 sbankO@raroolisedelstein.com Attorney for Defendant, Carol Looney, R.T. Telephone: FAX, E-mail: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYINANIA DONNA VOZENILEKf i Plaintiff I ~. DONALD R. BUXTOL, M.D. and CAROL LOONEY, RfT., I Defendant PROOF OF SERVICE CIVIL ACTION - LAW NO. 03-5220 JURY TRIAL DEMANDED The undersigned hereby certifies that a true and correct copy of Rule to File Complaint of Defendant, Carol Looney, R.T., I , I was served upori the 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 ~ 2003 By: EDELSTEIN ep n L. Banko, Jr. Attorney I.D. No. 41727 Attorney for Defendant, Carol Looney, R.T. CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoin~ document I same in the Uni~ed States I class postage ptepaid, on on all counsel of record by placing the Mail at Camp Hill, Pennsylvania, first- the d--;z. day of ()~, 2003, addressed as fotlOWS: *arl E. Rominger, Esquire 155 South Hanover Street farlisle, PA 17013 ~counsel for Plaintiff) /J~ k~~ Barbara J. Smith .--/' tLd ,V o ~~ -, / -:',:::\ ~<~ --. , ',,) "",\ :..'''1 =< SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-05220 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND VOZENILEK DONNA VS BUXTON DONALD R MD ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: BUXTON DONALD R MD but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within WRIT OF SUMMONS 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 31.50 .00 68.50 10/15/2003 ROMINGER & BAYLEY S~~ R: Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this .2.5.-ul day of (JJ~ ,) vV3 A.D. (1. u-rl~.J ~., "---n Prothonod_rf' SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-05220 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND VOZENILEK DONNA VS BUXTON DONALD R MD ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: LOONEY CAROL R T but was unable to locate Her in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within WRIT OF SUMMONS On October )5th , 2003 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 16.00 10/15/2003 ROMINGER & BAYLEY so. answe~.~~. ~. _._cc. ~~ -="" =---- /- ~;;~~ . Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this day of A.D. Prothonotary In The Court of Common Pleas tI_ "":umberland County, Pennsylvania Donna Vozenilek VS. Donald R. Buxton MD et al SERVE: Donald R. Buxton MD No. 03-5220 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 of the Plaintiff. ~("'/ /~. r ....~-<4~ Sheriff of Cumberland County, P A Affidavit of Service Now, ,2D_,at 0' clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this day of , 2D_ COSTS SERVICE l'vfILEAGE AFFIDAVIT $ $ @ffitt of :t4~ ~4~:riff 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 171 0 1 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania VOZENILEK DONNA vs County of Dauphin BUXTON DONALD R MD Sheriff's Return No. 2666-T - -2003 OTHER COUNTY NO. 03 5220 I, Jack Lotwick, Sheriff of the County of Dauphin, State of pennsylvania, do hereby certify and return, that I made diligent search and inquiry for BUXTON DONALD R MD C/o PINNACLE HEALTH the DEFENDANT named in the within WRIT OF SUMMONS and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, October 9, 2003 NEED BETTER ADDRESS. QUANTUM IMAGING & THERAPEUTIC ASSOCIATION 52 GRUMBACHER ROAD SUITE 12 YORK PA 17402. PHONE NUMBER IS 764 8503 St-erLII1J C'-. [f)aMMJ t1f-YW PROTHONOTLy , , So Answers, J frJM- Sworn and subscribed to before me this 9TH day of OCTOBER, 2003 Sheriff of Dauphin County, Pa. By Deputy Sheriff Sheriff's Costs: $31.50 PD 10/08/2003 RCPT NO 183570 In Th.e Court of Common Pleas r. ':::umberland County, Pennsylvania Donna Vozenilek VS. Donald R. Buxton MD et al SERVE: Carol Looney R. T . No. 03-5220 civil Now October 6, 2003 , , I, SHERlFF 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 of the Plaintiff. ~("/ /4' r "'~~4.%~ . Sheriff of Curnberland County, PA Affidavit of Service Now, ,20~,at 0' clock M. served the within upon at . by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before methis_dayof ,20_ COSTS SERVICE MILEAGE AFFIDAVIT $ $ @iiite of tltt~ ~4~:riff 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 BUXTON DONALD R MD Sheriff's Return No. 2666-T - -2003 OTHER COUNTY NO. 03 5220 AND NOW:October 9, 2003 at 9 : lOAM served the wi thin WRIT OF SUMMONS upon LOONEY CAROL R.T. C/O PINNACLE HEALTH to ROBERT GABLER (RISK MANAGEMENT) by personally handing 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 subscribed to before me this 9TH day of~TOBER, 2003 I \ ,-)~oAr/it) c;_. (+)ali~~')~'l~ So Answers, Jf~ PROTHONOTARY :~rm o~'~~ ,. De ty Sheriff Sheriff's Costs: $31.50 PD 10/08/2003 RCPT NO 183570 T FRITZ ROMINGER & BAYLEY LAW OFFICES 155 SOUTH HANOVER STREET 717.241.6070 · 800.734.2132 · FAX: 717.241.6878 CARLISLE, PENNSYLVANIA 17013 ADVOCACY - ADVICE - ANSWERS --------- DONNA VOZENILEK : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA laW@romingerla www.romingerla vs_ : CIVIL ACTION - LAW :NO: -.03-5:J.J.O Donald R. Buxton, MD & Carol Looney, R.T. 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. ...- -7 /"~.-' Date: 10/2/2003 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PAl 7013 Supreme Court ID# 81924 (717) 241-6070 WRIT OF SUMMONS Donald R. Buxton, MD & Carol Looney, R.T. clo PINNACLE HEALTH 409 South Second Street Harrisburg, PA 17104 lRUE COPY FROM RECOR In Testimony wMreof, I here unto set my t and tile ~ of said Court at CariWa. ~ This. 2:bA day o~~- ~UUf /17;7 ~h:Z>J . ~ . Protho OIlIry To The Above Named Defendants: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. (:i~ I!;:' Prothonotary 1J Date: ~~ J.. ~Cio3 By:..~'-RL'''47~ " n 'be~uty DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA vs. : CIVIL ACTION - LAW : NO: 03-5220 Donald R. Buxton, MD & Carol Looney, R.T. 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 propt:rty 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. . Cwnberland 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 Cwnberland County is required by law to comply with the Americans with Disabilities Act of 1990. For infonnation 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, PENNSYL VANIA : CIVIL ACTION - LAW : NO: CCO 03-5220 Donald R Buxton, MD & Carol Looney, RT. 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 Ronald R Buxton is a Dr. believing to have privileges with at practice at Pinnacle. (hereinafter collectively referred to with co -defendant as Defendant Pinnacle) 3. Health. Defendant Carol Looney is an employ of Pinnacle Health. 4. Jurisdiction is proper as the complained of invasions, acts, and publication took place in Cumberland County amongst others. (hereinafter collectively referred to with co _ defendant as Defendant Pinnacle) 5. Plaintiff received various private medical services from defendant Pinnacle, including mammography. 6. 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. 7. The purpose of this while was to maintain medical records on Plaintiff, for treatment and diagnosis. 8. 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. 9. 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. 10. Defendant included a photo element in said advertisement, which included Dr. Donald Buxton holding the aforementioned folder of Plaintiff. 11. The advertisement showed not only Plaintiff's folder, but also the biographical data contained thereon. 12. Plaintiff's identity, consisting of her name, social security number, and date of birth were thus broadcast to a large segment of the public. 13. Further, the Defendant revealed to the public that a mammogram was performed on Plaintiff, without her consent to release her medical records. 14. 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. 15. Even after written and oral demand to cease and desist by Plaintiff, Defendant continued publishing her confidential information and medical records. INVASION OF PRIVACY 16. The previous paragraphs are incorporated by reference as if more fully set out herein. 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 / or other personal and private records are now subject to review and / or misuse by random third parties who either saw the advertisement, or who someday may see the advertisement. 39. This causes Plaintiff great anxiety. 40. Plaintiff is entitled to be compensated for the value of her identity. PUNITIVE DAMAGES 4 I. 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 willful, wanton, and intentional. 44. Defendant took financial gain and / 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, including costs of this suit and attorney fees, and punitive damages. Respectfully submitted, ROMINGER & BAYLEY /-~ Date: II -l 7 - .. J 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. 9 4904, relating to unsworn falsification to authorities. Date: II' l c/, - 0 J ---) / KARL ROMINGER DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA vs. : CIVIL ACTION - LAW : NO: 03-5220 Donald R. Buxton, MD & Carol Looney, R.T. 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 L. Banko, Jr., Esquire Margolis Edelstein P. O. Box 932 Harrisburg,PA 17108-0932 7- Dated: 11-----2 Y ~ a ~ Karl E. Rominger, Esquire Attorney for Plaintiff """ " !~;. 11". ~ U~i -< r-: ~ ". (") C~. o Cd .,~ :-:; r) -;1 ..i f,) .1':"" lirl C,) 1-:; :"'" (:'j in S? ::) .j;"" . :\ ~ -, DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAl"D COUNTY, PENNSYLVANIA vs_ : CIVIL ACTION - LAW : NO: 03 - 5220 Donald R. Buxton, MD & Carol Looney, R.T. Defendant : JURY TRIAL DEMANDED PRAECIPE TO REISSUE WRIT OF SUMMONS To the Prothonotary: Please reissue the writ of summons in the above captioned action. Date: 12/3/03 ~-~ ------ /KliI-I E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Supreme Court ID# 81924 (717) 241-6070 -_.. .a'IIL'-T.l1'.aJl..J." '-"A..I.1Il' """ ~l.". ............... ".--.. , LAW OFFICES - :5 SOUTH HA~OVER STREET 717.241.6070 · 800.734.2132 · FAX: 717.241.6878 laW@romingerlaw.co \RLlSLE"; PENNSYLVANIA 17013 ADVOCACY - ADVICE - ANSWERS www.romingerlaw.co DONNA VOZENILEK : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW :NO: - C)0_;:-~"10 ") ':J,~"'" Donald R. Buxton, MD & Carol Looney, R.T. 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: I 0/2/2003 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Supreme Court ID# 81924 (717) 241-6070 Donald R. Buxton, MD & Carol Looney, R.T. c/o PINNACLE HEALTH .409 South Second Street Harrisburg, P A 17104 lRUE CO?"'f FROM RECORD _.... . h -- ".t ,,,,.. 0.,0" H1 T~jiiKir;,y ,.5~~~:~'~f, 1 ''.era tmllJ ~~.; ~,)i ",<;;\1 }nd the Sl'Ji,1 oi :;.~\d Court at C,,:ll:;~~. f~th~ {". ,'!,:d "'Y ~. ,f" ,/ 25 "IS ~'j iJ<</," /L' ,,_ 'l' .,' 'b 1.__ \ I iy.,,,, /I; /( ," -~' " ,LI_. , ( Pvo\!1o (llal"V WRIT OF SUMMONS To The Above Named Defendants: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Date: (Y--:cCt.,7f:<;'f J r") ;)C'OJ C ~.., I ' ....,.. ,./ 'Y ~.J 4/' ,{.I0~' '~. 11"1:~ Prothonotary U 1);/ cY'" /.",--:6,( j, '/ , By: ~Ii, ).,W, /// ffiI N',1f Deputy o !;; "'- "'TJ{J' mlT'.' Z:J:. ZC ~~ ~C ~C "'"0 .Pc ~ .. . -.-<1., <:) W '=' rrt n I W -0 ::r 't? o w o ""TI -~ :.1;:n l'r_ -ryfTI ~6 .-J:=i=f ~;~(:; Onl ';;! ::0 -< 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) 975~81l4 (717) 975~8124 sbanko@marqolisedelstein.com Attorney for Defendant, Carol Looney, R.T. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA VOZENILEK, Plaintiff CIVIL ACTION - LAW v. NO. 03-5220 DONALD R. BUXTON, M_D. and CAROL LOONEY, R.T., Defendant JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT, CAROL LOONEY, R.T., 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, Carol Looney, R. T. ("Ms. Looney"), 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 Ms. Looney 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 the aforesaid Rule of Civil Procedure. WHEREFORE, Defendant, Carol Looney, R.T., 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 for conversion), Plaintiff requests: "an award in her favor in -3- 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, Carol Looney, R.T., 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) (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. 17. As set forth in paragraph 3 of her Complaint, Plaintiff recognizes that Ms. Looney is an employee of pinnacle Health and -4- not a physician. 18. 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 30 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. Ms. Looney 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 Ms. Looney and, therefore, such claim is properly dismissed pursuant to Pa. R.C.P. No. 1028 (a) (4). WHEREFORE, Defendant, Carol Looney, R.T., 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 physician. 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 -5- hereof are incorporated herein by reference as if set forth in their entirety. 23. In the alternative to Preliminary Objection C., Ms. Looney 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 Ms. Looney. WHEREFORE, Defendant, Carol Looney, R.T., 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 Ms. Looney to her detriment. E. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER - PA. R.C.P. NO. 1028 (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. If -6- 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, Carol Looney, R.T., 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 A MOTION TO STRIKE - PA. R.C.P. NO. l028(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 -7- well-being of others in order to subject Ms. Looney to liability for punitive damages. 32. If Ms. Looney 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, Carol Looney, R.T., 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 Ms. Looney, with prejudice. G. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE - PA. R.C.P. NO. 1028 (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 -8- to Pa. R.C.P. No. 1028(a) (2). WHEREFORE, Defendant, Carol Looney, R.T., 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 Ms. Looney, with prejudice. H. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE - PA. R.C.P. NO. 1028 (a) (2) 37. The averments contained in paragraphs 1 through 36 hereof are incorporated herein by reference as if set forth in their entirety. 38. Pa. R.C.P. No. 1020(a) provides, inter alia, that: Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief. 39. Plaintiff's Complaint identifies two (2) individual Defendants and contains only two (2) counts. 40. In fact, from a reading of the Complaint, it is impossible to determine which allegation applies to which Defendant. 41. It is believed and, therefore, averred that, in accordance with Pa. R.C.P. No. 1020, each specific cause of action against each specific defendant must be set forth in a separate count which contains an individual demand for relief. -9- 42. Pa. R.C.P. No. 1028(a) (2) provides for the filing of a Motion to Strike where a pleading fails to conform to law or rule of court. 43. Accordingly, it is believed and, therefore, averred that Plaintiff's Complaint, as currently drafted, is properly stricken for failure to comply with Pa. R.C.P. No. 1020. WHEREFORE, Defendant, Carol Looney, R.T., prays this Honorable Court enter an Order, pursuant to Pa. R.C.P. Nos. 1028(a) (2) and 1020, striking Plaintiff's Complaint for failure to comply with rule of court. 1. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER - PA. R.C.P. NO. 1028 (a) (4) 44. The averments contained in paragraphs 1 through 43 hereof are incorporated herein by reference as if set forth in their entirety. 45. Plaintiff alleges, in paragraph 20 of her Complaint, that the "invasion of privacy" was in the form of both "intrusion upon seclusion" and "publicity given to a private life." 46. 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, Carol Looney, R.T., prays this -10- 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. MARGOLIS EDELSTEIN Date: December \\, 2003 By: ~~ Ste~~n L. Banko, Jr. Attorney I.D. 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 /1 day of Jk~ ~"-- 2003, addressed as follows: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (Counsel for Plaintiff) /J~\7~ Barbara J. Smith ~ DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 03-5220 Donald R. Buxton, MD & Carol Looney, R.T. 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 reliefrequested 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 Avenue Carlisle, PAl 70 13 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 TRUE COPY FROM RECORD In T3Stlmony wMroof, I here unto set my llane "r · ~.ld ~ou at Ca... r1lsIe . Pl. I his . dily of /f1.Y~ ;... ~ r-.J . 111\ () . L .. . ~ .. lq'" ~,- ~ '1ft ~oth'1nOf;'lfV DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA vs. : CIVIL ACTION - LAW : NO: CCO 03-5220 Donald R. Buxton, MD & Carol Looney, R.T. 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 Ronald R. Buxton is a Dr. believing to have privileges with at practice at Pinnacle. (hereinafter collectively referred to with co -defendant as Defendant Pinnacle) 3. Health. Defendant Carol Looney is an employ of Pinnacle Health. 4. Jurisdiction is proper as the complained of invasions, acts, and publication took place in Cumberland County amongst others. (hereinafter collectively referred to with co - defendant as Defendant Pinnacle) 5. Plaintiff received various private medical services from defendant Pinnacle, including mammography. 6. 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 ofprocedure. 7. The purpose of this while was to maintain medical records on Plaintiff, for treatment and diagnosis. 8. Upon information and beliefPefendant 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. 9. 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. 10. Defendant included a photo element in said advertisement, which included Dr. Donald Buxton holding the aforementioned folder ofPlaintitI: 11. The advertisement showed not only Plaintiff s folder, but also the biographical data contained thereon. 12. Plaintiff s identity, consisting of her name, social security number, and date of birth were thus broadcast to a large segment of the public. 13. Further, the Defendant revealed to the public that a mammogram was performed on Plaintiff, without her consent to release her medical records. 14. Even while aware of the defect in the advertisement, Defendant failed to pull the same, and or prevent additional copies and publications ofthe ad from occurring. 15. Even after written and oral demand to cease and desist by Plaintiff, Defendant continued publishing her confidential information and medical records. INVASION OF PRIVACY 16. The previous paragraphs are incorporated by reference as if more fully set out herein. 17. Plaintiff had her privacy invaded by Defendant's actions. 18. Defendant was not privileged to do so. 19. There was no legitimate reason to disclose Plaintiff's identity, identity reference points, nor medical procedures procured. 20. Said private information was an intrusion upon seclusion and also constituted publicity given to a private life. 2!. The material published was highly offensive and shocks the sensibilities. 22. The information released was not of legitimate public concern. 23. 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. 24. 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 ofthe statutory limits for compulsory arbitration, including costs of this suit and attorney fees, and punitive damages. BREACH OF PATIENT CONFIDENTIALITY BY A PHYSICIAN 25. The previous paragraphs are incorporated by reference as ifmore fully set out herein. 26. Defendant was in the business of treating and providing medical services to Plaintiff. 27. Defendant breached the duty of confidentiality owed plaintiff when defendant released her medical records and other personal information. 28. Defendant did not have Plaintiff's consent. 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 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 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 modern society anyone with these three data points may subsume the identity of the other, and / or use the identity fraudulently. 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 an identity created of three data points. 36. Defendant used Plaintiffs identity 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 / or other personal and private records are now subject to review and / or misuse by random third parties who either saw the advertisement, or who someday may see the advertisement. 39. This causes Plaintiff great anxiety. 40. Plaintiff is entitled to be compensated for the value of her identity. PUNITIVE DAMAGES 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 willful, wanton, and intentional. 44. Defendant took financial gain and / 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, including costs of this suit and attorney fees, and punitive damages. Respectfully submitted, ROMINGER & BAYLEY /-s Date:! ! - l. 1 - 4 .5 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 tile best of knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C. s. 94904, relating to unsworn falsification to authorities. Date: 11'2.. cf' 0 J .~ ~// KARL ROMINGER DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 03-5220 Donald R. Buxton, MD & Carol Looney, R.T. Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Donna Vozenilek, Plaintift~ 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. P A 17108-0932 Dated: II -----2 Y - ., f -----;/ ~~-- Karl E. Rominger, Esquire Attorney for Plaintiff 0 c: (;) c ?: ".::J -u l' , fT\ " ) -:" -" ~ ,- - r-, ,!J [; -on <='--- ~~ :>. ( :....; , ., "- '-~) , ,n ._, SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-05220 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND VOZENILEK DONNA VS BUXTON DONALD R MD ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: BUXTON DONALD R MD but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within WRIT OF SUMMONS On January 23rd , 2004 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep York County 52.40 .00 89.40 01/23/2004 ROMINGER & BAYLEY ~~:=- ~::. /. OTIIaS Kl ine Sheriff of Cumberland County -~ Sworn and subscribed to before me "" this ;/.1~ day o~ 021Jt)<-( A. D. ~r' Q "'"nuf}.lu A.J~ , Prothonotary' r f DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW :NO: - cJ3.. 5~i)O Donald R. Buxton, MD & Carol Looney, R.T. Defendant : JURY TRIAL DEMANDED 0 C,':'; C ......., -;;::'" :::> -0 ft -:-") rnr ----1 -;;>' -~. ~- , 7, if"c I' -<~ ~,~-- } ~i. " ":r>- .. ~:~j '.Z~-~~ ..;;.. ...; ~ c': f'..) .')'If"'\ ---i -? -,.~ :::0 :...:> :0 -< -< 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 OCT 2 7 2003 Karl E. Rominger, Esquire I SS South Hanover Street Carlisle, P A 17013 Supreme Court ID# 81924 (717) 241-6070 RECEIVED OFFICE OF SHERIFF YORK PA AM :3~ JO PM WRIT OF SUMMONS Donald R. Buxton, MD & Carol Looney, R.T. c/o PINNACLE HEALTH 409 South Second Street Harrisburg, PA 17104 , ,., ,""J n.~'i~O"Or'i THUF: I2,OP'( frk.fll f"it~'_, ',.,U . .. .' .. I....~,:, ~l .W' flJro!' rft ,1'I.'.;,;:....,.u 1 ___..,'ii' ;,~_ <',"4;;.)) I) ;'''~~,''1 ,~'J(~i't ~l \Ad~~1f1. ~4" ,..... .~'/f',) .~ <)055 1~_)~,!.. c" ~..!Iff- ,. & -~_... _~~/J71. ,'. ,..._ - f.!-f'. "';_",~~,,,,:,_"'_;"',"';_. ,..,.... .. To The Above Named Defendants: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Is! C:wd!4 J:. IoN? Prothonotary (/ By: c/ltMJ #p . tItlIiJd, Deiltl Date: @:;1;;l~( ~ ;;C03 ,_. r r .",."';"-.. r t -':~:::::;;:;I"'~'" n,lII'U\~_.__IIOstNesS FOMRS-(717)225>0383- FAX (717) 225-0367 I" t" e eo .0 ,<:) ~ ,-, ---:=.--.=-._.._-=-~ II n COUNTY OF YORK OFFICE OF THE SHERIFF SERVICE CALL (717) 771-9601 28 EAST MARKET ST., YORK. PA 17401 SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN ~i!li~hGt. panSE: .CIfiItY UNI. i 11IRU. 12 DO .mACH .AfIY......... 2. C.oURT-NlJ.r,tSER, , 1 Uj-5:L~U 8d.hl:1! 4. TYPE OF WRIT OR COMPLAINT 1. PLAINTIFF/51 Donna Vozenilek 3. DEFENDANTISI Donald R. Buxton MD et al Writ of Smrnons, reissued { 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE lEVIED, ATTACHED, OR SOLD. Donald R. Buxton MD 6. ADDRESS (STREET OR RFO WITH BOX NUMBER. APT. NO.. CI~ BORO. 1WP.. STATE AND ZIP CODE) 629 ~~ to. LeMsWr"( AT 52 Cnnnb.:achcr Ro~ Qll;+f=) 1? y"rlr- D7\ 1711f)') '("'\,'"l:IT'\+lllYl Tm~+n.(1 ^' 7'hpr~"+-":''''' 1\~BOC) 7. INDICATE SERVICE: 0 PERSONAL D PERSON IN CHARGE )( DEPUTIZE &.?~.;.fl9~ 0 1ST CLASS MAIL 0 POSTED :JaTHER NOW October 24 , 20 ~ I, SHERIFF OF_C;OUNTY, PA, do hereby deputize the sheriff of York COUNTY to execute ~ke return th cording to law. This deputization being made at the request and risk of the piaintiff. .r /?~~ J__ #" , SHERIFF OF ~OUNTY O.llllberlaOO. OUT OF COUNTY CUMBERLAND SERVE .. 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: XlXl>>"X Xll'X tXlXlllnX ADVANCE FEE PO BY CUMBERLAND COUNTY SHERIFF'S DEPT. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.S. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriff's sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE 110. TELEPHONE NUMBER \ 11. DATE FILED RETNST. 717-241-6070 10 77 ~on~ /2-3-O~ SHERIFF OF CUMBERLAND lINl COUNTY. 1 <;OURTHOUSE Sr), rARI T<;LF Pa 171)13 SPACE BElOW FOR USE OF THE SHSRlFF - DO NOT WRITE BELOW THIS LINE 13 I acknowledge receipt of the writ 114. DATE RECEIVED L15. Expiration/HearingDate orcompla;nt as;nd;cated above. Rand aM. Ah re n s / RA T ./ 10- 2 7 -200 3 ~ l-l.l.-~ ' 16. HOW SERVED: PERSONAL ( ) RESIDENCE ( \) POSTED ( ) POE IV SHERIFF.S OFFICE ( ) OTHER M"" I S~til"MARKS BELOW 17013 Karl E. Rominqer, Esq. 155 S. Hanover St. Carlisle PA 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed jf notice is to be mailed). 17. Cl I hereby certify and retu a NOT FOUND because I am unable to locate the individual, company, etc. name above. (See remarks below.) _'\J'''flND TITLE OF I~ ~D;;~ERVED I L~7SS.~~ ~T S"u7\ABOvEtlat;;r;p to Defend~) 1'?2(9~~ 120 ir~J ~~I lo~r41f-W:~:t~,:~~5~1aJ;~TI~I~ Int IDate~M;le't1DateITImaIM;lesr Int IDarelTImelM;lesllnt 22. REMARKS !fJ()UeD/SeC ~A-c/L $:>.evite /f-7Telt1I'r L/Ale."t-( 23 Mva~I~~125- N/F 126. M;I"'.'lle 127. Postagel~SubTotal 129. Pound I ~. Notary 31. SUrc/19.13Uot.Coslsj ~ cw.~,~~ti $75.00 1'6,DQ 3Z'!O 1-'0,40 I:><.m l:J;(.if{} CJd.LO 'lJf7'ftt 34. Foreign County Costs 135 Advance Costs 136 Service Costs 137 Notary Certp38 elPostedlNot Fou 139 Total Costs 41 AFFIRMED and subscnbed to bafore me thIs 15t~t f ~'AN~I ~ 42 dayof Jan. ,20 0443~V:~No-6.RY .~ O:P'~~:~" ~ ~ _ __~_~__~~'NO 7o.RY 46 S'gnarureofYo /?.J.../ --- r. Ot31131 Seal 1 Coun!yShenff " =, ,",nesV. Vangreen Not8,,"';L ' WILllAM M. HOSE, SHE IFF OF YORK COUNTY City of York, York COLlnty, h"-. :o"i;-' commission Expires Mar. 2':~._ :: ~;!~3 01-15-2004 48. Signature of Foreign County Sheriff SO. I ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE OF AUTHORIZED ISSUING AUTHORITY AND TITLE 49. DATE 151. DATE RECEIVED 1. WHITE -Issuing Authority 2. PINK-Attomey 3. CANARY. Sheriffs Office 4. BLUE - Sheriff's Office .'" COUNTY OF YORK OFFICE OF THE SHERIFF SERVICE CALL (717) 771.9601 28 EAST MARKET ST.. YORK. PA 17401 I i. i I'; , SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN INSTRUCTIONS PLEASE TYPE ONLY LINE 1 THRU 12 DO NOT DETACH ANY COPIES PLAINTIFF/Sf Donna Vozeni 1 er-. 3. DEFENDANT/SI ['{'nald ~. I:~Jxton [liD i:-t' c] V:lri t', {>1 ,"~t.;rml!>rSr 1.::. LFSl.il=>t1 ~E { ;~i~i~i~~:~~~~:~~~~H]:;~;::;~::~::::.~;~:;;;:";~;;,~~;;~;~~~~;;L~'E:r.:~:C::.:_~:~;"c,:(Pi."'\'~' ., 7 INDICATE SERVICE OPERSONA~'" cJPERSONI'NCHA~GE '-XiDEPUTIZE (~liii'L," ;:'-'~T~L;S.~~;'L . "OPOSTED'. "~T~ER NOW edoeel :!,: , 20 '~ I, SHERIFF 0 I t'5UNTY, PA, do hereby deputize the sheriff of York COUNTY to execute thi~d&1'i1lke return th cording to law. This deputization being made at the request and risk of the plaintiff...r. ~~ hP"" ~ SHERIFF 0 COUNTY ~J.,j'nh(~r li::':lnn 2. CD.IIRl"'U~' ER.... {, ).~ '," / ",..~"...J.,-4-. "',,-<- ~ ~ "..., '. ---':--.'. '" 4 TYPE OF WRIT OR COMPLAINT !oI, 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE ') 1" t. ;. (~J! q r '! ;"'1: H~::) i /'~: :!":l!lfX V,fY D1XI:tljf;q-x ;j ~) Ii f~ :',! t i ':~> [I;l ;~y Cl::'~H~'r~tJ~(>';f'Cfl~.!!'jTY SHFPJ f'~: I, ')~ !'1 NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N,B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof. 1 '1"11 .j 110. TELEPHONE NUMBER. I ,'\ [t0ES'L~D . /1 7 - ? .I! i - r; ~i ? n l1......T~),~"r',;I.(:'~ <""") :/ - (,',j .~ 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE K a r- i r ~ I D ,r, 1 '1 q t.": ('.. E SO. I~) r) ~:l. H;~ n n v:.,!" ~, t'" ,":" j' 1 i 0:; 1,':1. P I~ 12, SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). ') H f. H [ F F ;, r r: ~~~~ \:(E~~w" t'6~ L~~ 19~T ;HE ~H~~I~~ ~ g~~~~;\~FIIN~JL6:W tH;sdLlN~ 7', .~ . 13 ~;::;~~~;:sr~;;~~t::t::::~ !~ Ci n n it f'i. ;, n r I~ n s ! R t~ T ./ 11~. :~T~ ~E~~:;~~ J . ,~_~~=.;;~~~;;e;~;~~ate 16. HOW SERVED PERSONAL ( RESIDENCE (,) POSTED ( ) POE (yr.'" SHERIFF'S OFFJCE ( ) OTHER \,,--1/< ! SEE~EM~K~BELOW 17. U I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc. name above. (See remarks below.) '\.'NA1;A~D TI~L~ OF 'f'VI~.J:" ~ER~D I LlS~ ADDRESS H~RE IF NOT,SHOWN ABOVE(Relatio:,hIP!O Defeo~aot), ,. \'9/ ~:11t~"11~ 120;' oJ:B~:Je \/~tiE~~tSl ;"'..~kl';,.~\1' ~. I'~; I' ,;' I~Dat">I' n~;l. "it, l !'~t ..~o~te!I' n~e I~M!Jesl'lo' I D~te ,'nme r.' ~I~'" '1;1'.I~Dale I n. 'me..1 MHe' [' I;' I Date I nme I Mil:, .1'0' (11"<' r~~~.IJ_1 t!( ;;:,' A.~,,!)'> l.;.., ,_ '!.' "r" , f"- ) ,"l,-' j,.. ;',ii'.f',').I - 22. REMARKS: /r 1,1')'.1 ii--::" i,\ / <'~ f:,l;' !i ,., ~''<,.",!,"/' _.I' ,'. .J. --'(- ,Ii; ,;",( 4' ,-;=--,:" .' ,.') ( ", ) /" .I' I., .... _~/ ,.-- ~~W~, 41. AFFIRMED and subscribed to before me this 1 '~, t >, 42. day of J ,t ' , 20 k..L 43':,):->'-'''-'''/, i .'-H~Y I NOTARY 23. .~~v~nceCosts 1.~\ServiceCostsI25. N/F 126. Mi~eage 127. postagej{=,~>,\subTotal 129. Pound 1 ~.)o. Notary 131. surchg.13~.-,;O~.costsl33 CostsDu;orRetund ICheckNo \\ 7~, f1 n ! 0 t. .- .."J{-- (~ Lt-)..:?<;", ,~.,I.): '" !f ,"~, 34, Foreign County Costs 135, Advance Costs \36. Service Costs 137. Notary Cert. 13~. ~ilE't~.fefPosted/Not FOjU.r?) 139. 'T~tal Costs 'r 40 Co~ts D~e or R~fund i ; . I:--SO ANSVjI!RS ~'/,1.. r.." f7;'-:'?J'h/ ,.-//,..-, ''',' ?' ; "/ '.vn/( (A.,L{.'jC.. ,"/''?1./U./(;''/'''<<' H(lSF~ ";,HEqF~F or YORK. CiJUMTV 44,_Signature of - Dep. Sheriff , 46. Signature of York./ County Sheriff \',:ILLft\M .....:..-:- 4S.p~.;i-[",: : 47" DArE' ! . 48. Signature of Foreign County Sheriff 50. I ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE OF AUTHORIZED ISSUING AUTHORITY AND TITLE ~1. ~~. ')- 49. DATE -'i'it' 151. DATE RECEIVED 1, WHITE - Issuing Authority 2. PINK - Attomey 3. CANARY - Sheriff's Office 4, BLUE - Sheriff's Office ~(; DONNA VOZENILEK Plaintiff vs. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO: 03-5220 Donald R. Buxton, MD & Carol Looney, R.T. Defendant : JURY TRIAL DEMANDED NOTICE TO DEFE]~ 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 judgmen't 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 HA VB A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORAMTION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELlGffiLE PERSONS AT A REDUCED FEE OR NO FEE. . Cumberland County Bar Associaltion 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 infonnation a.bout 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, PENNSYL VANIA : CIVIL ACTION - LAW : NO: 03-5220 Donald R Buxton, MD & Carol Looney, RT. Defendant : JURY TRIAL DEMANDED AMENDED COMPLAINT AND NOW, comes Plaintiff, by and through her attorney, Kllrl E. Rominger, Esquire of Rominger, Bayley & Whare, and in support of her Amended Complaint avers as follows: I. Plaintiff Donna Vozenilek is an adult individual residing in Cumberland County, PA 2. Defendant Ronald R Buxton is a Dr. believing to have privileges with at practice at Pinnacle Health. 3. Jurisdiction is proper as the complained of invasions, a,cts, 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 maintail'led 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 Buxton sought to expand his reputation in the community and lor generate new patients by running a series of advertisements to coincide with Breast Cancer Awareness Month. 8. Defendant by himself or in conjunction with Pinnacle Health prepared such an advertisement and placed the same in various publicalions of wide circulation, beginning on September 29,2002 and continuing throughout October of2002. 9. Defendant included a photo element in said advertisement, which included Defendant Dr. Donald Buxton holding the aforementioned folder ofI'laintiff. 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 ,lid 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 referell(:e as if more fully set out herein. 16. Plaintiff had her privacy invaded by Defendant public:izing her private affairs. 17. Defendant was not privileged to invade Plaintifrs privacy and intentionally did so. 18. There was no legitimate reason to disclose Plaintifrs 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 I:oncern. 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 ofPlaintifrs 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 attorney fees, and punitive damages. BREACH OF PATIENT CONIlDENTIALITY BY A HEALTHCARE PROVIDER 24. The previous paragraphs are incorporated by referenc:e 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, customarily 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 of her infurmation. 29. Plaintiff was damaged and continues to suffer damages as a result of this breach, including shock, nervousness, emotional distress, pecuJlliary 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 (herein after referred to as IDP AA) in effect, and / or those portions ofIDP AA that had yet to be enacted, but which were known to Defendant, and which provided the applicable duty of care. See 45 CFR ~160-l64 et seq.. (ie see 45 CFR ~ 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 fees, and punitive damages. CONVERSION 31. The previous paragraphs are incorporated by referenc:e 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 modern society anyone with these three data points. may subsume the identity of the other, and / or use the identity fraudulently to gain acc:ess 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 b~ 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 Plaintiff's identity in its advertisementll 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 / or other personal and private records are now subject to review and / or misuse by rallldom third parties who either saw the advertisement, or who someday may see the advertisement. 39. This causes Plaintiff great anxiety. 40. Plaintiff is entitled to be compensated for the value of her 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 willful, wanton, and intentional in tbat, while aware of the defect in the advertisement, Defendant failed to pull the same, and I or prevent additional copies and publications of the ad from occurring. 44. Defendant took financial gain and / or intended to gain! while harming plaintiff. 45. Plaintiff is entitled to punitive damages. WHEREFORE, Plaintiff respectfully requests that this HonoIlible 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 attorney fees, as well punitive damages. Respectfully submitted, ROMINGER & BAYLEY Dated: 10/1 1/2004 0- Karl E. Rominger, Esquire 155 South ]flanover Street Carlisle, P A 17013 (717) 241-6070 Supreme Court In # 81924 Attorney for Plaintiff YERlFICA TlON I verify that I am attorney for the petitioner and that tbe 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 a substitute verification signed by plaintiff will follow. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. ~ 4904, relating to unsworn fulsification to authoJities. Date: Cc f (~ L cull ~\RLRO~GER DONNA VOZENILEK Plaintiff vs. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO: 03-5220 Donald R. Buxton, MD & Carol Looney, R. T. Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVjrCE I, Karl E. Rominger, Esquire, attorney for Donna Vozlenilek, Plaintiff, do hereby certify that I this day served a copy of the Amended Complaint upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, 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: 10/11/2004 0 ..." 0 c:::;::. c: c.::l -n ....:- C) ..... 'r (,) [11 -'n -l r;~ C:J (J:) r, :-:'"," -:1 ::::11: (~ , , rn C) 'j (....) -'. C) DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 03-5220 Donald R. Buxton, MD & Carol Looney, R.T. 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 Substitute Verification 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 William H. Catto White and William, LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 -) / /~/.L---........ . Karl E. Rominger, Esquire Attorney for Plaintiff Dated: 10/12/2004 DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 03-5220 Donald R. Buxton, MD & Carol Looney, R.T. 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. S 4904, relating to unsworn falsification to authorities. Date: !Ja /Q. f;'.J<'1n1 / .-<1fY77/11'<:~ I ~JJu1d... Donna V ozen ," ~ CJ 5:.""2 -n a C) -J N c..) en \.0 DONNA VOZENILEK CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, v. NO. 03-5220 DONALD R BUXTON, M.D. and CAROL LOONEY, RT. Defendants. ORDER AND NOW, this _ day of , 2004, upon consideration of the Preliminary Objections of Defendant, Donald R Buxton, M.D., it is hereby ORDERED and DECREED that the Preliminary Objections are GRANTED. The following claims are dismissed with prejudice from Plaintiff s Amended Complaint: (1) invasion of privacy/intrusion upon seclusion; (2) breach of doctor-patient confidentiality; (3) conversion; and (4) all claims for attorney's fees. Dr. Buxton shall file an answer to the remaining claim, invasion of privacy/public disclosure of private facts, within 20 days of the date of this order. BY THE COURT: 1. DOCS]H 1662504vl ORIGINAL WHITE AND WILLIAMS LLP BY: William H. Catto, Esquire Edward M. Koch, Esquire Identification No. 73251; 76337 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7000 Attorney for Defendant, Donald R. Buxton, MD, DONNA VOZENILEK CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, v. NO. 03-5220 DONALD R BUXTON, M.D. and CAROL LOONEY, RT. Defendants. PRELIMINARY OBJECTIONS Defendant, Donald R Buxton, M.D., by and through his attorneys, White and Williams LLP, hereby preliminarily objects to Plaintiffs Amended Complaint pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure, and in support thereof, avers as follows: BACKGROUND 1. In recognition of Breast Cancer Awareness Month in October 2002, Pinnacle Health, a charitable organization, initiated a limited advertising campaign that included ads in print media to promote its various services. See Amended Complaint ~~ 7 -14 (attached as Exhibit A). 2. In one photograph, three healthcare providers at Pinnacle Health are depicted in an office setting. See Amended Complaint ~~ 7-14 (Exhibit A). DOCS]H 1662504vl 3. One of the healthcare providers in the photograph, Donald R. Buxton, M.D., is holding a patient's mammogram chart that Plaintiff alleges is hers. See Amended Complaint ~~ 7-14 (Exhibit A). 4. Plaintiff alleges that her name, date of birth, and social security number are displayed on the chart in the photograph. See Amended Complaint ~~ 7-14 (Exhibit A). 5. Out of these facts, Plaintiff alleges that Defendants have committed the torts of invasion of privacy and conversion, and breached the doctor-patient confidentiality under the federal Health Insurance Portability and Accountability Act ("HIP AA',).I 6. Other than subjective mental anguish, Plaintiff alleges no economic damages as a result of the publication of the photograph. 7. Defendant, Dr. Buxton, now preliminarily objects to Plaintiffs Amended Complaint. GROUNDS FOR MOTION 8. Preliminary objections may be filed on the grounds of legal insufficiency of a pleading, which is commonly referred to as a "demurrer." Pa. R. Civ. P. 1028(4). 9. A complaint should be dismissed on demurrer where it appears that the plaintiffs complaint, on its face, cannot sustain a claim. Chichester Sch. Dist. v. Chichester Educ. Ass'n, 750 A.2d 400,402 (Pa. Commw.), appeal denied, 568 Pa. 668, 795 A.2d 980 (2000). 10. Plaintiffs claims for invasion of privacy/intrusion upon seclusion, breach of doctor-patient confidentiality, conversion, and attorney's fees are legally deficient and should therefore be dismissed with prejudice. 1 Although Plaintiff also asserted a claim for punitive damages, that claim as it relates to Dr. Buxton has been dismissed by Stipulation. -2- DOCS]H 1662504vl 11. The tort of intentional intrusion upon seclusion requires: (1) an intentional intrusion; (2) upon the seclusion or private affairs of another; (3) which is substantial and highly offensive to a reasonable person. Harris v. Easton Pub. Co., 335 Pa. Super. 141, 153,483 A.2d 1377, 1383 (1984); Restatement (Second) of Torts ~ 652B. 12. Here, Dr. Buxton was simply holding a medical chart in the advertisement to give the photograph a sense of context that the persons depicted were healthcare providers in a medical environment. 13. Plaintiff does not allege - nor can she - that Dr. Buxton intentionally held the mammogram chart in the photograph for the purpose of disclosing Plaintiff s personal biographical information. 14. Rather, to the extent that the biographical information is apparent from the photograph, such a disclosure was made only through mistake or inadvertence. 15. Therefore, because Plaintiff cannot demonstrate that the disclosure was intentional, this Court need not go any further to determine that Plaintiff cannot make out a claim for the tort of invasion of privacy/intrusion upon seclusion. 16. Plaintiff also cannot sustain a claim for breach of the doctor-patient confidentiality because the breach must be intentional. Haddad v. Gopal, 787 A.2d 975,980-81 (Pa. Super. 2001), appeal denied, 572 Pa. 705, 813 A.2d 842 (2002). That cannot be demonstrated here for the reasons discussed above. 17. Also, because the alleged disclosures could not have served to blacken the reputation of Plaintiff, Plaintiff cannot sustain a claim for breach of the doctor-patient confidentiality with reference to 42 Pa. C.S.A. ~ 5929. Woods v. National Life and Acc. Ins. Co., 347 F.2d 760, 764 (3d Cir. 1965) -3- [K)CS_PHI662504vl 18. Moreover, because HIPAA provides no private right of action, see, ~, University of Colorado Hosp. v. Denver Pub. Co., 2004 WL 1925986, *3 (D. Colo. Aug. 2, 2004), any reliance upon HIP AA by Plaintiff to sustain a claim for breach of the doctor-patient confidentiality is misplaced. 19. Plaintiff next attempts to state a cause of action for conversion. 20. She alleges that Defendants "took Plaintiffs identity, with which Defendant had been entrusted, and placed it in an advertisement, thus giving Plaintiffs identity to the public at large." See Amended Complaint at ~ 33 (Exhibit A). 21. The intent required for conversion is an intent to exercise dominion or control over the goods in question which is inconsistent with the rights of the plaintiff. Prudential Ins. Co. of Am. v. Stella, 994 F. Supp. 318, 323-24 (E.D. Pa. 1998). 22. The law requires that the interference with the dominion or control of a chattel be willful in order to establish conversion. Western Min. Corp.. Ltd. v. Standard Terminals. Inc., 577 F. Supp. 847,851 (W.D. Pa.), affd, 745 F.2d 49 (3d Cir. 1984). 23. Because Dr. Buxton did not intend to exercise dominion and control over the Plaintiffs identity and give it to others, he cannot be liable for conversion. 24. Conversion also cannot lie because the information alleged to appear in the photograph is not a chattel of an existing nature that may be the subject of conversion. See,~, Northcraft v. Edward C. Michener Assocs.. Inc., 319 Pa. Super. 432, 447, 466 A.2d 620, 628 (1983) (noting that conversion is limited to chattel of an existing nature). 25. Plaintiffs incorporeal "identity" simply cannot be the subject of conversion. 26. Finally, in each of Plaintiffs ad damnum clauses, Plaintiff seeks the recovery of attorney's fees. -4- DOCS_PH 1662504vl 27. However, Plaintiff has failed to identity statutory authorization, a clear agreement between the parties, or some other established exception which might entitle her to attorney's fees as required by law. Merlino v. Delaware County, 556 Pa. 422, 425, 728 A.2d 949, 951 (1999); Lavelle v. Koch, 532 Pa. 631, 638, 617 A.2d 319,323 (1992) 28. Therefore, Plaintiffs claim for attorney's fees must be stricken. WHEREFORE, Defendant, Dr. Buxton, respectfully requests that Plaintiffs claims for invasion of privacy/intrusion upon seclusion, breach of doctor-patient confidentiality, , conversion, and attorney's fees be dismissed with prejudice. Respectfully submitted, By: WHITE AND WILLIAMS LLP ~tIA~ William H. Catto, Esquire Edward M. Koch, Esquire Identification No. 73251; 76337 1800 One Liberty Place Philadelphia, P A 19103-7395 215.864.7000 Attorney for Defendant, Donald R. Buxton, MD. Dated: November 22,2004 -5- DOCS_PH 1662504vl WHITE AND WILLIAMS LLP BY: William H. Catto, Esquire Edward M. Koch, Esquire Identification No. 73251; 76337 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7000 Attorney for Defendant, Donald R. Buxton, MD. DONNA VOZENILEK CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, v. NO. 03-5220 DONALD R BUXTON, M.D. and CAROL LOONEY, RT. Defendants. MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY OBJECTIONS I. STATEMENT OF FACTS In recognition of Breast Cancer Awareness Month in October 2002, Pinnacle Health, a charitable organization, initiated a limited advertising campaign that included ads in print media to promote its various services. In one photograph, three healthcare providers at Pinnacle Health are depicted in an office setting. One of the healthcare providers in the photograph, Donald R Buxton, M.D., is holding a patient's mammogram chart that Plaintiff alleges is hers. Plaintiff alleges that her name, date of birth, and social security number are displayed on the chart in the photograph. See Amended Complaint" 7-14 (attached as Exhibit A). Out of these facts, Plaintiff alleges that Defendants have committed the torts of invasion of privacy and conversion, and breached the doctor-patient confidentiality under the federal DOCS]H 1662504vl Health Insurance Portability and Accountability Act ("HIP AA"). 2 Other than subjective mental anguish, Plaintiff alleges no economic damages as a result of the publication of the photograph. Defendant, Dr. Buxton, now preliminarily objects to Plaintiffs Amended Complaint. II. DISCUSSION A. STANDARD FOR PRELIMINARY OBJECTIONS It is well settled that in ruling on preliminary objections, the court must accept as true all well-pleaded facts and all inferences reasonably deductible therefrom. However, the court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. Dorfman v. Pennsylvania Social Servs. Union Local 668, 752 A.2d 933, 936 (Pa. Commw. 2000). Moreover, surmise and conjecture can play no part in the decision. Schuylkill Navy v. Langbord, 728 A.2d 964, 968 (Pa. Super. 1999). Preliminary objections may be filed on the grounds of legal insufficiency of a pleading, which is commonly referred to as a "demurrer." Pa. R. Civ. P. 1028(4). Preliminary objections in the nature of a demurrer require the court to resolve issues solely on the basis of the pleading with no other evidence being considered. Mellon Bank. N.A. v. Fabinvi, 437 Pa. Super. 559, 567,650 A.2d 895, 899 (1994). A complaint should be dismissed on demurrer where it appears that the plaintiffs complaint, on its face, cannot sustain a claim. Chichester Sch. Dist. v. Chichester Educ. Ass'n, 750 A.2d 400,402 (Pa. Commw.), appeal denied, 568 Pa. 668, 795 A.2d 980 (2000). 2 Although Plaintiff also asserted a claim for punitive damages, that claim as it relates to Dr. Buxton has been dismissed by Stipulation. -2- IX)CS_PH1662504vl B. PLAINTIFF CANNOT SUSTAIN A CLAIM FOR INVASION OF PRIV ACYIINTRUSION UPON SECLUSION Following the Restatement (Second) of Torts formulation, Pennsylvania recognizes four causes of action that are generally considered invasions of privacy: (1) intrusion upon seclusion; (2) appropriation of name or likeness;3 (3) publicity given to private life; and (4) publicity placing a person in a false light. Harris v. Easton Pub. Co., 335 Pa. Super. 141, 153,483 A.2d 1377, 1383 (1984). Plaintiff here has asserted only intrusion upon seclusion and publicity given to private life. See Amended Complaint at ~~ 15-21 (Exhibit A). As discussed below, it is apparent from the pleading that Plaintiff cannot make out a claim for intrusion upon seclusion.4 The tort of intentional intrusion upon seclusion finds its roots in the Restatement (Second) of Torts ~ 652B. This Section provides: One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. Restatement (Second) of Torts S 652B (adopted in Pennsylvania in Harris at 153, 483 A.2d at 1383). Broken down into its constituent part, the tort consists of three elements: (1) an intentional intrusion; (2) upon the seclusion or private affairs of another; (3) which is substantial and highly offensive to a reasonable person. Id.; Restatement (Second) of Torts S 652B. The Restatement, as adopted in Pennsylvania, makes clear that this cause of action is an intentional tort; that is, one of knowing malfeasance. O'Donnell v. United States, 891 F.2d 1079, 1083 (3d Cir. 1989) ("We emphasize that the intrusion, as well as the action, must be 3 This tort is applicable only when one takes the name or likeness of another for one's own benefit. Corabi v, Curtis Pub. Co., 441 Pa. 432, 471-72, 273 A.2d 899, 918-19 (1971). There is no allegation that Dr. Buxton or any other Defendant appropriated Plaintiff's name or likeness for their own benefit. 4 By attacking only Plaintiff's claim for inclusion upon seclusion here, Dr. Buxton in no way suggests that Plaintiff can make out a claim for publicity given to private life. -3- DOCS]H 1662504vl intentiona1."); Aronson v. Sprint Spectrum. L.P., 767 A.2d 564, 568 (Pa. Super.) ("to state a cause of action for invasion of privacy under Pennsylvania law, [a plaintiff] must allege that there was an intentional intrusion"), appeal denied, 566 Pa. 632, 781 A.2d 137 (2001); McGuire v. Shubert, 722 A.2d 1087, 1092 (Pa. Super. 1998) (same), appeal denied, 560 Pa. 707, 743 A.2d 921 (1999). "Intent" is defined elsewhere in the Restatement to mean "that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it." Restatement (Second) of Torts ~ 8 (quoted in O'Donnell, 891 F.2d at 1083). An actor commits an intentional intrusion only when "he believes, or is substantially certain, that he lacks the necessary legal or personal permission to commit the intrusive act." O'Donnell at 1083. Here, Dr. Buxton was simply holding a medical chart to give the photograph a sense of context that the persons depicted were healthcare providers in a medical environment; which, for the same reason, is why Dr. Buxton is wearing a doctor's coat and why Nurse Looney is wearing her nurse identification badge. Thus, the mammogram file held by Dr. Buxton merely provided context to the photograph. Plaintiff does not allege - nor can she - that Dr. Buxton intentionally held the chart in the photograph for the purpose of disclosing Plaintiffs personal biographical information. Rather, to the extent that the biographical information is apparent from the photograph, such a disclosure was made only through mistake or inadvertence. But mere mistake or inadvertence is insufficient to sustain a claim for intentional intrusion upon seclusion. O'Donnell, 891 F.2d at 1083; Aronson, 767 A.2d at 568; McGuire, 722 A.2d at 1092. .4- DOCS_PH 1662504vl Therefore, because Plaintiff cannot demonstrate that the disclosure was intentional, this Court need not go any further to determine that Plaintiff cannot make out a claim for the tort of invasion of privacy/intrusion upon seclusion. C. PLAINTIFF CANNOT SUSTAIN A CLAIM FOR BREACH OF THE DOCTOR-PATIENT CONFIDENTIALITY 1. Breach of the Doctor-Patient Confidentiality is an Intentional Tort Although Pennsylvania appears to recognize a cause of action for breach of the doctor- patient confidentiality, the tort is a limited one. Haddad v. Gopal, 787 A.2d 975, 980-81 (Pa. Super. 2001), appeal denied, 572 Pa. 705, 813 A.2d 842 (2002). In Haddad, a woman brought suit against a physician for breach of the doctor-patient confidentiality when the doctor told the patient's husband over the telephone that she had a sexually transmitted disease. The court held that those facts established a cause of action for breach of the doctor-patient confidentiality. Id. at 981. Although the Superior Court did not outline the elements of the claim in that case, implicit within the decision is that the disclosure must be intentional. All the cases cited by the court arose in the context of an intentional disclosure. See Horne v. Patton, 287 So.2d 824 (Ala. 1973) (intentional disclosure of confidential information to plaintiffs employer); MacDonald v. Clinger. 446 N.Y.S.2d 801 (N.Y. App. Div. 1982) (psychiatrist revealed confidential information to plaintiffs wife); Doe v. Roe, 400 N.Y.S.2d 668 (N.Y. Sup. Ct. 1977) (psychiatrist, without plaintiffs consent, published a book containing verbatim accounts of plaintiffs feelings); Schaffer v. Spicer, 215 N.W.2d 134 (S.D. 1974) (in a custody case, psychiatrist gave to the attorney of the patient's ex-husband an affidavit containing information with regard to his patient's mental health, which was deemed inadmissible at hearing); Berry v. Moench, 331 P.2d -5- DOCS]H 1662504vl 814 (Utah 1958) (doctor revealed information about plaintiff to another doctor for the purpose of conveying the information to the parents of a woman contemplating marriage to plaintiff). Again, Plaintiff here does not suggest that the disdosure of her information was intentional. For this reason, this case is distinguishable from this Court's decision in McKay v. Geadah, 50 Pa. D. & C.3d 435 (C.P. Cumberland 1988) (Bayley, J.). In that case, a woman was injured in an automobile accident and received surgical treatment for facial injuries she sustained in the accident. Nine years after her treatment concluded, the doctor who performed the facial surgery used photographs of the woman at a career day at a local school and discussed the medical treatment provided without the woman's consent. By chance, the woman's son was present at the career day and, as a result, was mortified, embarrassed, and distraught. The woman sued alleging breach of the doctor-patient confiden1tiality and invasion of privacy sounding in publicity given to private life. In its opinion, this Court analyzed the nature of the cause of action of breach of doctor-patient confidentiality, and recognized that it was an intentional tort. Id. at 441 (citing Hammonds v. Aetna Cas. & Sur. Co., 243 F. Supp. 793 (N.D. Ohio 1965)) (noting that a physician could be liable for intentional, unauthorized divulgence of confidences). Unlike the doctor in McKay who sought to affirmatively speak about the medical treatment rendered to a former patient to an audience, Dr. Buxton here intended only to have his picture taken in a medical setting. The photograph included a medical chart for context which is alleged to be Plaintiffs. Dr. Buxton simply did not intend to disdose Plaintiffs information. 2. The Information Disclosed Does Not :Blacken the Plaintiff's Reputation It is anticipated that Plaintiff will refer to the Pennsylvania doctor-patient confidentiality statute, codified at 42 Pa. C.S.A. ~ 5929, as this Court did in McKay, in an attempt to define her -6- DOCS]H 1662504vl claim. That statute generally prohibits a doctor from disclosing information that will blacken the character of the patient outside the litigation context. It provides in full: No physician shall be allowed, in any civil matter, to disclose any information which he acquired in attending the patient in a professiional capacity, and which was necessary to enable him to act in that capacity, which shall tend to blacken the character of the patient, without consent of said patient, except in civil matters brought by such patient, for damages on account of personal injuries. 42 Pa. C.S.A. ~ 5929 (emphasis added). Here, the disclosures alleged by Plaintiff are merely her name, social security number, date of birth, and the fact that she had a mammogram perti)rmed. The disclosure of such information cannot be said to be a disclosure that "blackened" her character. A very similar disclosure under this statute was addressed by the Third Circuit in Woods v. National Life and Acc. Ins. Co., 347 F.2d 760 (3d Cir. 1965). In Woods, a life insurance beneficiary sued a life insurance company for recovery under a policy after the death of the insured. The insurance company refused to pay because it learned that the insured had answered falsely some questions about his medical history in the application. At trial, the court excluded the testimony of one of the insured's physicians who would have testified that he treated the insured for a medical condition that would have raised red flags in the insurance application if disclosed by the insured. The court noted that the testimony as to certain biographical and treatment information was admissible, as it would not have blackened the reputation of the insured: [The] name, address and so forth, and a few items concerning the patient's health history entered in his records . . . would not have rl~vealed any information obtained by communications from the patient. The reve:aling of a name, address and other identifying data given by the patient is not a communication which tends to blacken the character of the patient. Id. at 764. -7- DOCS]H 1662504vl Accordingly, because the alleged disclosures could not have served to blacken the reputation of Plaintiff, Plaintiff cannot sustain a claim for breach of the doctor-patient confidentiality with reference to 42 Pa. C.S.A. ~ 5929. 3. IDP AA Provides No Private Right of Action Next, Plaintiff alleges a violation of HIPAA to provide a basis for her breach of the doctor-patient confidentiality claim. Tellingly, Plaintiff does not identify a specific statutory provision, but simply cites to "45 C.F.R. ~160-164, et seq." ~~ee Amended Complaint at ~ 30 (Exhibit A). These provisions are the federal regulations used to implement HIP AA. But even assuming that Plaintiff can eventually identify a relevant statutory or code provision, Plaintiff does not have a private right of action for violation of HIP AA. Rather, HIP AA violations are generally enforced by the Secretary of Health and Human Services and not by private citizens. Court reaching the issue have uniformly concluded that no private right of action exists under HIP AA, whether express or implied. ~ee,~, University of Colorado Hoso. v. Denver Pub. Co., 2004 WL 1925986, *3 (D. Colo. Aug. 2, 2004); O'Donnell v. Blue Cross Blue Shield of Wyoming, 173 F. Supp. 2d 1176, 1180 (D. Wyo. 2001); Means v. Indeoendent Life and Acc. Ins. Co., 963 F. Supp. 1131, 1135 (M.D. Ala. 1997); Brock v. Provident Am. Ins. Co., 144 F. Supp. 2d 652, 657 (N.D. Tex. 2001); Wright v. Combined Ins. Co. of Am., 959 F. Supp. 356, 363 (N.D. Miss. 1997). Therefore, any reliance upon HIPAA by Plaintiff to create a private cause of action is misplaced. -8- DOCS]H 1662504vl D. PLAINTIFF CANNOT SUSTAIN A CLAIM :FOR CONVERSION Plaintiff next attempts to state a cause of action for conversion. She alleges that Defendants have "took Plaintiffs identity, with which Defendant had been entrusted, and placed it in an advertisement, thus giving Plaintiffs identity to the public at large." See Amended Complaint at ~ 33 (Exhibit A). In order to sustain a claim for conversion under Pennsylvania law, one must prove: (1) an act of willful interference; (2) with a chattel; (3) done without lawful justification; (4) which seriously deprives or interferes with the lawful right of another person to possess or control it. Pittsburgh Const. Co. v. Griffith, 834 A.2d 572, 581 (Pa. Super. 2003), appeal denied, 852 A.2d 313 (2004); Norriton East Realty Corp. v. Central-Penn Nat. Bank, 435 Pa. 57,60-61,254 A.2d 637,638-39 (1969). As to the first element, it is important to note that the intent required for conversion is an intent to exercise dominion or control over the goods in question which is inconsistent with the rights of the plaintiff. Prudential Ins. Co. v. Am. v. Stella, 994 F. Supp. 318, 323-24 (RD. Pa. 1998). The law requires that the interference with the dominion or control of a chattel be willful in order to establish conversion. Western Min. Corp.. Ltd. v. Standard Terminals. Inc., 577 F. Supp. 847, 851 (W.D. Pa.), affd, 745 F.2d 49 (3d Cir. 1984). The intent to convert must coincide with the actual deprivation of the chattel. Gottesfeld v. Mechanics & Traders Inc. Co., 196 Pa. Super. 109, 115-16, 173 A.2d 763, 766 (1961). As set forth at length above, Dr. Buxton did not intend to exercise dominion and control over the Plaintiff's identity and give it to others. -9- IX>CS_PH1662504vl He was merely holding a medical file to give context to the:: photograph that happens to be Plaintiff s. Conversion also cannot lie because the information alleged to appear in the photograph is not a chattel of an existing nature that may be the subject of conversion. See,~, Northcraft v. Edward C. Michener Assocs.. Inc., 319 Pa. Super. 432, 447, 466 A.2d 620, 628 (1983) (noting that conversion is limited to chattel of an existing nature). Although intangible rights may sometimes be the subject of conversion, such rights are limited to those which are customarily merged in, or identified with some document. Id. For example, stock may not be converted by a stock certificate may. Id. Plaintiffs incorporeal "identity'" is simply not the subject of conversIon. E. PLAINTIFF CANNOT RECOVER ATTORNEY'S FEES In each of Plaintiff s ad damnum clauses, Plaintiff seeks the recovery of attorney's fees. Such a damages claim is unfounded in law. Pennsylvania courts adhere to the "American Rule." That is, absent an express statutory authorization, a clear agreement by the parties, or some other established exception, attorneys' fees are unavailable to a suc,cessful litigant in a claim under Pennsylvania law. Merlino v. Delaware County, 556 Pa. 422, 425, 728 A.2d 949, 951 (1999); Lavelle v. Koch, 532 Pa. 631,638,617 A.2d 319,323 (1992), Plaintiff has failed to identify statutory authorization, a clear agreement between the parties, or some other established exception which might entitle her to attorney's fees. The reason for this is clear: None exists. Therefore, Plaintiff s claim for attorney's fees must be stricken. -10- DOCS]H 1662504vl III. CONCLUSION This Court should grant a demurrer as to Plaintiff s claim for invasion of privacy/intrusion upon seclusion, breach of doctor-patient confidentiality, conversion, and attorney's fees. Respectfully submitted, By: WHITE Al~D WILLIAMS LLP ~~I4A(&t# William H. Catto, Esquire Edward M. Koch, Esquire Identification No. 73251; 76337 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7000 Attorney for Defendant, Donald R, Buxton, MD. Dated: November 22, 2004 -11- DOCS_PH 1662504vl WHITE AND WILLIAMS LLP BY: William H. Catto, Esquire Edward M. Koch, Esquire Identification No. 73251; 76337 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7000 Attorney for Defendant, Donald R. Buxton, MD. DONNA VOZENILEK CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, v. NO. 03..5220 DONALD R. BUXTON, M.D. and CAROL LOONEY, RT. Defendants. CERTIFICATE OF SERVIC]~ I hereby certify that a true and correct copy of the foregoing Preliminary Objections and Memorandum of Law in support thereof has been served by first class mail this 22nd day of November 2004 upon the following: Karl E. Rominger, Esquire ROMINGER & BAYLEY 155 South Hanover Street Carlisle, PA 171013 Stephen L. Banko, Jr., Esquire MARGOLIS EDELSTEIN P. O. Box. 932 Harrisburg, P A 17108-0932 By: WHITE AND WILLIAMS LLP ~<< ft1/{pt:U William H. Catto, Esquire Edward M. Koch, Esquire Identification No. 73251; 76337 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7000 Attorney for Defendant, Donald R. Buxton, MD, DOCS_PH 1662504vl DONNA VOZENILEK Plaintiff vs. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO: 03-5220 Donald R Buxton, MD & Carol Looney, RT. Defendant : JURY TRIAL DEMANDED n "" l-'_"l 0 ( -n C".! :-:j (" i .! -"" I I", ; c ) - " r -. , .. c , <. ... '- ". NOTICE TO DEFENI! You have been sued in court, If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attomey and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that 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 TIllS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OlifICE SET FORTH BELOW. IF YOU CANNOT AFFORD TO IllRE 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 Associa1tion 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. 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 : CIVIL ACTION - LAW : NO: 03-5220 Donald R Buxton, MD & Carol Looney, RT. Defendant : JURY TRIAL DEMANDED AMENDED COMPLAINT 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 residing in Cumberland County, PA 2. Defendant Ronald R Buxton is a Dr. believing to have privileges with at practice at Pinnacle Health. 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 plaintitT, pinnacle maintained a file on plaintiff which was labeled with her name, social security number, date ofbirlh, 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 Buxton sought to expand his reputation in the community and lor generate new patients by running a series of advertisements to coincide with Breast Cancer Awareness Month. 8. Defendant by himself or in conjunction with Pinnacle Health prepared such an advertisement and placed 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 advertiseme:nt, which included Defendant Dr. Donald Buxton holding the aforementioned folder ofPlaintitI 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, D€~fendant 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 rec:ords. INVASION OF PRIVACY 15. The previous paragraphs are incorporated by reference 2LS ifmore fully set out herein. 16. Plaintiff had her privacy invaded by Defendant publicizilng 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 Plaintiff' s idl~ntity, 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, emotional distre~~, pecuniary loss, pain, suffering, and concern. 23:Defendant's actions were the direct and proximate causc;~ 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 attorney fees, and punitive damages. BREACH OF PATIENT CONFInENTIALITY BY A HEAL THCARE PROVIDER 24. The previous paragraphs are incorporated by reference ns 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, customarily 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 of her 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 portiones) of the Health Insurance Portability and Accountability Act (herein after referred to as mP AA) in effect, and / 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 CFR ~ 160-164 et seq.. (ie see 45 CFR ~ 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 fees, 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 Of use the identity fraudulently to gain accel;s 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 Plaintiff'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 someday may see the advertisement. 39. This causes Plaintiff great anxiety. 40. Plaintiff is entitled to be compensated for the value ofhl~r 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 DAMAGI:S 41. The previous paragraphs are incorporated by reference lIS if more fully set out herein. 42. The conduct of Defendant was shocking and outrageomL 43. The conduct was willful, wanton, and intentional in that, while aware of the defect in the advertisement, Defendant failed to pull the same, 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 attorney fees, as well punitive damages. Respectfullly submitted, ROMINGER & BAYLEY Dated: 1011112004 (/1,- Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, P A 17013 (717) 241-6070 Supreme Court ID # 8 I 924 Attorney fClr Plaintiff VERIFICA 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 bc~lief. The plaintiff was not available at the time of filing to make this verification, but a substitute verification signed by plaintiff will follow, 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: () (./- I ~ L c.t! 1./ 7-- / / KARL ROMINGER , . . DONNA VOZENILEK Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 03-5220 Donald R Buxton, MD & Carol Looney, RT. Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE 1, Karl E. Rominger, Esquire, attorney for Donna V ozenilek, Plaintiff, do hereby certify that I this day served a copy of the Amended Complaint upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Stephen L. Banko, Jr., Esquire Margolis Edelstein P. 0, 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: 10/11/2004 o <;;. "":: l ~ : ~-1 r---:'l c:> ~) J:.- :;;~ o ...::: {~.~;-: -;:;} -<:: N ....0 ~ ...... :J-....... ..., ~'-' .. ,'- -n~ -\"19 .(), t,::' =-,'1-1',' -'-~ On -7' -.... .'''" r.. ( ,) :~ r:'::J ;;:;.: ........ ::-g:, - - en -I Q 0W n r-...., (:,~ (':~:> 0 = .....- -n 1-: ~ X:n ",;' 0 ; < rn r- l. , N -om \..0 ~56 ~ =j::J "', - :"'... .:"5 ::D _lilt. '.'~o - ~""'rn 'j .. ,:;::! 01 r;"_._... .AJ -.J -...:: WHITE AND WILLIAMS LLP BY: William H. Catto, Esquire Edward M. Koch, Esquire Identification Nos. 73251; 76337 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7000 Attorney for Defendant, Donald R. Buxton, MD. DONNA VOZENILEK CUMBERLAND COUNTY COURT OF COMMON PLEAS !plaintiff, v. NO. 03-5220 DONALD R BUXTON, M.D. and CAROL LOONEY, RT. Defendants. PRAECIPE TO PLACE ON ORAL ARGUMENT LIST TO THE PROTHONOTARY: ORIGINAL Kindly place the enclosed Preliminary Objections on the list for the next available civil argument date. Respectfully submitted, WHITE AND WILLIAMS LLP By: ~#1~ William H. Catto, Esquire Edward M. Koch, Esquire Identification Nos.: 73251; 76337 1800 One Liberty Place Philadelphia, PA 19103-7395 (215) 864-7000 Attorney for Defendant, Donald R, Buxton, MD. DOCS]H 1663230vl .... WHITE AND WILLIAMS LLP BY: William H. Catto, Esquire Edward M. Koch, Esquire Identification No. 73251; 76337 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7000 Attorney for Defendant, Donald R. Buxton, MD. DONNA VOZENILEK CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, v. NO. 03-5220 DONALD R BUXTON, M.D. and CAROL LOONEY, RT. Defendants. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Praecipe to Place on Oral Argument List has been served by first class mail this 22nd day of November 2004 upon the following: Karl E. Rominger, Esquire ROMINGER & BAYLEY 155 South Hanover Street Carlisle, P A 1710 13 Stephen L. Banko, Jr., Esquire MARGOLIS EDELSTEIN P. O. Box. 932 Harrisburg, P A 17108-0932 DOCS_PH 1663230vl WHITE AND WILLIAMS LLP By: t~#1~ William H. Catto, Esquire Edward M. Koch, Esquire Identification No. 73251; 76337 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7000 Attorney for Defendant, Donald R. Buxton, MD. DOCS]H 1663230v 1 WHITE AND WILLIAMS LLP BY: William H. Catto, Esquire Identification No. 73251 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7084 Attomey for Defendant, Donald R. Buxton, M.d. DONNA VOZENILEK CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, v. NO, 03-5220 DONALD R. BUXTON, M.D. and CAROL LOONEY, R.T. Defendants. STIPULATION It is hereby stipulated and agreed between plaintiff throlllgh her counsel and counsel for Donald R. Buxton, M.D. that: I. Paragraphs 41 through 45 of plaintiffs Complaint are hereby dismissed with prejudice. 2. Plaintiff is not pursuing a punitive damages claim against defendant Donald R. Buxton, M.D. ROMINGER & BAYLEY WHITE AND WILLIAMS LLP -~ By: .Karl E. Rominger, Esquire Attorney for Plaintiff By: ~/-#c4 William H. Catto Attorneys For Defendant, Donald R. Buxton, M.D. DOCS]H 1660935vl 0 f'o..) 0 <:::::) c: = ,I -,... ...- ~"'.' Z -4 '""0 f U :r: ~.~)r/l 0 f11 fTI ....:::.:: i N -rJm :Os: \.0 ~O ( _. It " '" -.., (~: -, 'Ze") c ~ '-'m ~.;: ~~ or:::..... "j> =< ::0 0"'; =< DONNA VOZENILEK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW DONALD R. BUXTON, M.D., and CAROL LOONEY, R.T., Defendants NO. 03-5220 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT BUXTON TO PLAINTIFF'S AMENDED COMPLAINT BEFORE OLER and GUIDO, JJ, ORDER OF COURT AND NOW, this 17th day of March, 2005, upon consideration of the preliminary objections of Defendant Donald R. Buxton, M.D., to Plaintiffs amended complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant's demurrer to Plaintiffs claim for invasion of privacy is denied; 2. Defendant's demurrer to Plaintiff's claim for breach of patient confidentiality by a healthcare provider is denied; 3. Defendant's demurrer to Plaintiff's claim for conversion is granted and the claim is dismissed; and 4. Defendant's motion to strike Plaintiffs demand for attorney's fees is granted and that aspect of the demand for relief is stricken. c ~,00 fl-)\ ()- BY THE COUR;>-,:.. ~~L f:o{ J. esley Ol~r., J. I ,. " :..,'" ., . '~. . ';.1 " I '.".\ L l ~'.;'--!;-! l~ncZ , Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, P A 17013 Attorney for Plaintiff William H. Catto, Esq. Edward M. Koch, Esq. 1800 One Liberty Place Philadelphia, PA 19103-7395 Attorneys for Defendant Donald R. Buxton, M.D. DONNA VOZENILEK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW DONALD R. BUXTON, M.D.. and CAROL LOONEY, R.T., Defendants NO. 03-5220 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT BUXTON TO PLAINTIFF'S AMENDED COMPLAINT BEFORE OLER and GUIDO, JJ, OPINION and ORDER OF COURT OLER, J., March 17,2005. In this civil case, a patient has sued a physician and another individual for invasion of privacy, breach of patient confidentiality by a healthcare provider, and conversion. seeking compensatory damages and attorney's fees as a result of an incident in which the physician allegedly revealed medical and other information about the plaintiff in an advertisement.' For disposition at this time are preliminary objections filed by Defendant physician to Plaintiff's amended complaint.2 The preliminary objections consist of demurrers to the three claims of Plaintiff and a motion to strike Plaintiff's demand for attorney's fees.3 The matter was argued on February 2,2005. For the reasons stated in this opinion, the preliminary objections will be sustained in part and denied in part. I Plaintiff's amended complaint, filed October 1 1,2004. 2 Preliminary objections of Defendant Donald R. Buxton, M.D., to Plaintiff's amended complaint. filed November 29, 2004. 3 Jd STATEMENT OF FACTS The pertinent allegations of Plaintiff's amended complaint may be summarized as follows: Plaintiff is Donna Vozenilek (hereinafter Plaintiff), an adult individual residing in Cumberland County, Pennsylvania.4 Defendant Donald R. Buxton, M.D. (hereinafter Defendant), is a physician practicing at a medical facility5 known as "Pinnacle Health.',6 Plaintiff received medical services from the facility, including a mammogram. 7 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 birth8 The advertisement further indicated that her medical history included a mammogram.9 Plaintiff had not consented to the public release of this information. 10 Defendant continued to publish the information following a demand by Plaintiff that he stop. I I Defendant did, however, discontinue the practice by October 31, 2002.12 As noted, the amended complaint contains counts for invasion of privacy, breach of confidentiality by a healthcare provider, and conversion. 13 The count for breach of confidentiality includes a reference to the Health Insurance Portability and Accountability Act (HIPPA), while noting that its enactment postdated the 4 Plaintiffs amended complaint, para. 1. 5 See Defendant's preliminary objections to Plaintiffs amended complaint, para. 2. 6 Plaintiffs amended complaint, para. 2. 7 Id at para. 4. 8 III at paras. 7,] I. 9 III at para. ]2. \(1 III "Id 4 . at para. 1 . 12 III at para. 8. lJ III at paras. ] -40. 2 events at issue.14 The count for conversion identifies the object converted as Plaintiff's identity and the motive for conversion as "financial gain.',is Relief requested by Plaintiff includes attorney's fees.16 Defendant's preliminary objections to Plaintiff's amended complaint were filed on November 29, 2004. With specific reference to Plaintiff's invasion of privacy claim, Defendant argues that the pleading could not support a finding of wrongful intent on the part of Defendant. I? With specific reference to Plaintiff's breach of confidentiality claim, Defendant argues that the pleading could not support a finding of wrongful intent on the part of Defendant, that the Health Insurance Portability and Accountability Act is not enforceable through private civil actions, and that the injury to Plaintiff's reputation requisite to a common law action is not extant.1S 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. 19 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.2o DISCUSSION Demurrer to claim for invasion of privacy. PlaintitI's complaint alleges that Defendant persisted, albeit for a limited period, in publication of the 14 fd. at para. 30. 15 fd. at paras. 32, 34-36, 40. 16 Plaintiff's amended complaint, ad damnum clauses. 17 Defendant's Memorandum of Law in Support of Preliminary Objections, at 3-5, submitted November 29, 2004. 18 fd. at 5-8_ 19 Plaintiffs Briefin Opposition to Defendant's Preliminary Objections, at 7-8, submitted January 24,2005. 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. fd. at 8. 20 Jd at 7. 3 advertisement found offensive by Plaintiff after a demand to desist. This allegation is, in the court's view, sufficient to set forth an intentional mental state on the part of Defendant to the extent that such a state is an element of a form of invasion of privacy asserted by Plaintiff. Accordingly, Defendant's demurrer to Plaintiff's claim for invasion of privacy will be denied. Demurrer to claim for breach of patient confidentiality by healthcare provider. This court has previously recognized a common law cause of action for breach of confidentiality in the context of unauthorized public disclosure of a patient's medical treatment by her physician. McKay v. Geadah, 39 Cumberland 1..1. 20, 50 Pa. D. & C.3d 435 (1988) (Bayley, J.). In McKay, a patient's surgeon had allegedly displayed photographs in public of her preoperative and postoperative condition in connection with surgery for rehabilitation of facial injuries?l In the present case, where it is alleged that Defendant persisted in publishing the advertisement in question, albeit for a limited period, after a demand to desist, it can not be held as a matter of law that any requisite element of intent for this tort could not be found to have existed. Given Plaintiff's acknowledgment that her cause of action is not premised upon the Health Insurance Portability and Accountability Act, a construction by the court of the claim to that effect will obviate Defendant's preliminary objection arising out of the reference in the pleading to HIPPA. Finally, the allegations in this case are not sufficiently distinguishable from those of McKay to hold that any of the elements of a cause of action for breach of patient confidentiality have not been pled. For these reasons, Plaintiff's claim tor breach of patient confidentiality by a healthcare provider will be construed as an assertion of a common law tort as 21 McKay v. Geadah. 39 Cumberland LJ. 20, 21, 50 Pa. D. & C.2d 435. 435-36 (1988) (Bayley, J.). 4 opposed to a violation of HIPP A, and Defendant's demurrer to the claim 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. (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 between a mere trespass interfering with possession of a chattel, and a conversion, which must involve some exercise of the defendant'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. 5 * * * * . . . 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. * * * * . . . 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 in justice he should be required to buy the chattel. Restatement (Second) of Torts S222A, Comment (a), (c), (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, NA., 2002 WL 1472342, * 17 (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 6 to actionable conversion. Famology.com, Inc. v. Perot Sys. Corp.. 158 F. Supp. 2d 589,591 (E.D. Pa. 2001). In the present case, where the property allegedly converted was Plaintiffs 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 provider, 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 conversion, or such a serious interference with Plaintiffs control over such property, that Defendant should, in justice, be required to buy the property tram Plaintiff. For this reason, the court finds itself persuaded by Defendant's argument that Plaintiffs claim for conversion can not be maintained. For these reasons, Detendant's demurrer to Plaintiffs claim for conversion will be granted and the claim will be dismissed. Motion to strike demand for attorney's fees. Based upon Plaintiffs 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. ORDER OF COURT AND NOW, this 17th day of March, 2005, upon consideration of the preliminary objections of Defendant Donald R. Buxton, M.D., to Plaintiffs amended complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant's demurrer to Plaintiffs claim for invasion of privacy is denied; 2. Defendant's demurrer to Plaintiffs claim for breach of patient confidentiality by a healthcare provider is denied; 3. Defendant's demurrer to Plaintiffs claim for conversion is granted and the claim is dismissed; and 7 4. Defendant's motion to strike Plaintiffs demand for attorney's fees is granted and that aspect of the demand for relief is stricken. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Plaintiff William H. Catto, Esq. Edward M. Koch, Esq. 1800 One Liberty Place Philadelphia, PA 19103-7395 Attorneys for Defendant Donald R. Buxton, M.D. 8 To: Plaintiff & Co,Defendants You are hereby notified to file a written response to the enclosed New Matter and New Matter Crossclaim within twenty (20) days from service hereof or a judgment ~tered aglJ:JJ;, If t(I,J Attorney for Defendant. Donald R. Buxton, M.D. WHITE AND WILLIAMS LLP By: William H. Catto, Esquire Attorney J.D. No. 73251 1800 One Liberty Place Philadelphia, P A 19103-7395 (215) 864-7084 Attorney for Defendant Donald R. Buxton, M.D. DONNA VOZENILEK Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS v. DONALD R. BUXTON, M.D. and CAROL LOONEY, R.T. NO. 03-5220 Defendants ANSWER OF DEFENDANT, DONALD R. BUXTON, M.D. TO PLAINTIFF'S AMENDED COMPLAINT WITH NEW MATTER AND NEW MATTER CROSSCLAIM PURSUANT TO PA. R.c.P. 2252(d) Answering defendant Donald R. Buxton, M.D. by and through his attorneys, White and Williams LLP, hereby respond to plaintiffs Amended Complaint and aver as follows: 1. Denied. The averments contained in this paragraph of plaintiffs Complaint are directed to parties other than answering defendant. Therefore, no response is required and they are deemed denied under the applicable Rules of Civil Procedure. 2. Admitted in part and denied in part. It is admitted that defendant Donald R. Buxton, M.D. is a physician. It is further admitted that he has practiced at legal health system. DOCS_PH !725823vl The remaining avennents contained within this paragraph of plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 3. Denied. The averments contained in this paragraph are a conclusion oflaw to which no responsive pleading is required, under the Rules of Court, and same are deemed denied. By way of further answer, it is admitted that jurisdiction is appropriate in Cumberland County. 4. Denied as stated. It is specifically denied that an entity named Pinnacle is a defendant in this litigation and therefore all allegations regarding service is provided by "defendant Pinnacle" are specifically denied. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. 5. Denied. The averments contained in this paragraph of plaintiffs Complaint are directed to parties other than answering defendant. Therefore, no response is required and they are deemed denied under the applicable Rules of Civil Procedure. 6. Denied. This paragraph of plaintiffs Amended Complaint is unintelligible and therefore answering defendant is unable to admit or deny same. By way of further answer, answering defendant believes that it is directed to an entity, Pinnacle, which is not a party to this litigation. 7. Dr. Buxton's image was in the photograph purely by chance. He was asked to hold the chart in question and be photographed for advertisements to coincide with and promote Breast Care Awareness Month. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. 8. Denied. It is specifically denied that answering defendant by himself or in conjunction with any other entity prepared an advertisement and/or placed such advertisement in -2- DOCS_PH 1725823v) various publication of wide circulation. To the contrary, answering defendant's only involvement with the advertisement was his presence in the photograph. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. 9. Denied as stated. It is specifically denied that defendant, to the extent that it is meant to refer to answering defendant Dr. Buxton, included a photo element in said advertisement. To the contrary, Dr. Buxton had nothing to do with the preparation of the advertisement and/or its disbursement. His only involvement was his image contained within the photo. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. 10. Denied as stated. It is specifically denied that the biographical data set forth on plaintiffs folder could be seen and/or read in all of the publications in which it appeared. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. 11. Denied. Answering defendant incorporates its response in paragraph ten as though set forth at length. By way of further answer, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained within this paragraph of plaintiff s Complaint pertaining to the information being "broadcast through a large segment of the public." Therefore, strict proof is demanded at the time of trial. 12. Denied as stated. It is specifically denied that answering defendant revealed anything to the public much less than a mammogram was performed on plaintiff. To the contrary, answering defendant was simply asked to hold a file for a photograph. He was not responsible for the preparation of the advertisement or its dissemination. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. -3- DOCS_PH 1725823v1 13. Denied. It is specifically denied that answering defendant was aware of a "defect in the advertisement" or that answering defendant failed to pull the advertisement or prevent additional copies and publications of the ad from occurring. To the contrary, answering defendant had absolutely no control over the advertisement and his only involvement was his image in the photograph. Further. answering defendant had no ability to pull the advertisement or prevent additional copies and publications of the ad from occurring. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. 14. Denied. It is speciflcally denied that answering defendant received written and/or oral demand from the plaintiff to cease and desist. To the contrary, answering defendant never received such written or oral demand, Further, answering defendant did not continue to publish the advertisement or plaintiffs confidential information and medical records. Answering defendant never published such advertisement or information. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. WHEREFORE, answering defendant demands that judgment be entered in its favor. INVASION OF PRIVACY 15. Defendant incorporates by reference the preceding paragraphs of his answer, as though the same were set forth herein at length. 16. Denied. It is specifically denied that answering defendant publicized plaintiff s private affairs. To the contrary, answering defendant had nothing to do with the advertisement other than his image being contained in the photograph. By way of further answer, the averments contained within this paragraph ofplaintiffs Complaint are conclusions oflaw to which no responsive pleading is required. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. -4, DOCS_PH 1725823vl 17. Denied. The averments contained in this paragraph are a conclusion of law to which no responsive pleading is required, under the Rules of Court, and same are deemed denied. To the extent that an answer may be necessary, it is specifically denied that answering defendant intentionally invaded plaintiffs privacy. To the contrary, answering defendant did no such thing. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. 18. Denied. Answering defendant did not disclose plaintiffs identity, identity reference points nor medical procedures procured and therefore answering defendant believes that this averment is better addressed to entities other than answering defendant. 19. Denied. The averments contained in this paragraph are a conclusion of law to which no responsive pleading is required, under the Rules of Court, and same are deemed denied. To the extent that an answer may be necessary, it is specifically denied that answering defendant in any way caused any of the harms alleged in plaintiff s Complaint. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. 20. Denied. The averments contained in this paragraph are a conclusion of law to which no responsive pleading is required, under the Rules of Court, and same are deemed denied. To the extent that an answer may be necessary, it is specifically denied that answering defendant in any way caused any material to be published. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. 21. Denied. The averments contained in this paragraph are a conclusion of law to which no responsive pleading is required, under the Rules of Court, and same are deemed denied. To the extent that an answer may be necessary, it is specifically denied that answering -5- DOCS_PH 1 725823v 1 defendant in any way released any information. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. 22. Denied. The averments contained in this paragraph are a conclusion of law to which no responsive pleading is required, under the Rules of Court, and same are deemed denied. To the extent that an answer may be necessary, it is specifically denied that plaintiffs privacy was invaded by answering defendant. By way of further answer, after reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the damages allegedly sustained by plaintiff said damages not being specifically averred. Strict proof is demanded at the time of trial. 23. Denied. The averments contained in this paragraph are a conclusion oflaw to which no responsive pleading is required, under the Rules of Court, and same are deemed denied. To the extent that an answer may be necessary, it is specifically denied that answering defendant's actions were the direct and proximate cause of any alleged harm suffered by plaintiff. To the contrary, answering defendant's own involvement in this matter is the fact that his image is contained within the photograph which was contained within the advertisement. He had nothing to do with the formulation of the advertisement or its dissemination. Therefore, none of his actions and/or inactions were the direct and/or proximate cause of any alleged harm. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. WHEREFORE, answering defendant demands that judgment be entered in its favor. BREACH OF PATIENT CONFIDENTIALITY BY A HEALTH CARE PROVIDER 24. Defendant incorporates by reference the preceding paragraphs of his answer, as though the same were set forth herein at length. -6- DOCS_PH I 725823v I 25. Denied. The averments contained in this paragraph are a conclusion oflaw to which no responsive pleading is required, under the Rules of Court, and same are deemed denied. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. 26. Denied. The averments contained in this paragraph are a conclusion of law to which no responsive pleading is required, under the Rules of Court, and same are deemed denied. To the extent that an answer may be necessary, it is specifically denied that answering defendant in any way breached plaintiffs alleged reasonable expectation of privacy with regard to the procedure she underwent and her identity. To the contrary, answering defendant acted with due care under the circumstances and satisfied all standards of care applicable to his conduct. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. 27. Denied. The averments contained in this paragraph are a conclusion of law to which no responsive pleading is required, under the Rules of Court, and same are deemed denied. To the extent that an answer may be necessary, it is specifically denied that answering defendant released plaintiffs medical records and/or other information to the public. To the contrary, answering defendant's only involvement with this litigation was that his image was contained within the photograph which was contained within the advertisement. He had no control over the advertisement nor its dissemination. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. 28. Denied. The averments contained in this paragraph are a conclusion of law to which no responsive pleading is required, under the Rules of Court, and same are deemed denied. To the extent that an answer may be necessary, it is specifically denied that answering -7- DOCS_PH 172582Jvl defendant released any of plaintiff s information. Strict proof of the truth of the allegations contained in this paragraph are demanded at the time of trial. 29. Denied. The averments contained in this paragraph are a conclusion of law to which no responsive pleading is required, under the Rules of Court, and same are deemed denied. To the extent that an answer may be necessary, it is specifically denied that answering defendant in any way breached any duty he may have owed to plaintiff. By way offurther answer, after reasonable investigation answering defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations regarding plaintiff's damages contained within this paragraph of plaintiffs Complaint. Strict proof of the truth ofthe allegations contained in this paragraph are demanded at the time of trial. 30. By Order and Opinion of the Honorable Jay P. Wesley Oler, Jr., dated March 17, 2005, plaintiff has been precluded from making a claim under the Health Insurance Portability and Accountability Act (HIPAA). Accordingly, no answer to this paragraph of plaintiffs Complaint is required. WHEREFORE, answering defendant demands that judgment be entered in his favor. CONVERSION 31-40. Pursuant to the Order and Opinion of the Honorable Jay P. Wesley Oler, Jr., dated March 17,2005, plaintiffs claim for conversion has been dismissed and accordingly no response is required to these paragraphs within plaintiffs Complaint. WHEREFORE, answering defendant demands that judgment be entered in his favor. PUNITIVE DAMAGES 41-45. Pursuant to a Stipulation entered into between counsel filed with Court on November 29, 2004, these paragraphs of plaintiffs Complaint are dismissed with prejudice and -8- DOCS]H 1725823vl plaintiff is not pursuing a punitive damages claim against defendant, Donald R. Buxton, M.D. Therefore, no response to these paragraphs of plaintiffs Complaint is required. WHEREFORE, answering defendant demands that judgment be entered in his favor. NEW MATTER 46. Defendant incorporates by reference the preceding paragraphs of his Answer as though same were set forth herein at length. 47. Plaintiffs claims are barred by applicable statute of/imitations. 48. Plaintiffs claims are barred by the doctrine of laches. 49. Plaintiffs claims are barred by the doctrine of consent. 50. Plaintiffs claims are barred by the doctrine of license. 51. Answering Defendant was not negligent, careless, and/or reckless at any time material hereto. 52. Plaintiff has failed to state a claim upon which relief may be granted. 53, Plaintiff cannot sustain any claim against Answering Defendant because Plaintiff has not suffered any legal injuries or damages. 54. Plaintiff carmot sustain a cause of action for invasion of privacy because Answering Defendant did not act with the intent to disclose Plaintiff s information. 55. Plaintiff carmot sustain a cause of action for invasion of privacy because the information purportedly disclosed is neither substantially or highly offensive to a reasonable person, nor possible of causing mental suffering, shame, or humiliation to a person of ordinary sensibilities. 56. Plaintiff cannot sustain a cause of action for breach of the doctor-patient confidentiality because Answering Defendant did not act with the intent to disclose Plaintiff s information. -9- DOCS]H (725823v I 57. Plaintiff cannot sustain a cause of action for breach of the doctor-patient confidentiality because the information purportedly disclosed does not blacken the reputation of Plaintiff. 58. Defendant caused no injuries or damage to plaintiff, and any injury or damage allegedly sustained by the Plaintiff may have been caused by a party other than Answering Defendant and not within the control of Answering Defendant. 59. If Answering Defendant was negligent, which is expressly denied, then the acts or omissions of Answering Defendant alleged to constitute negligence were not substantial factors or causes of the action or accident of which Plaintiff complains and/or did not result in the injuries or damages alleged by the Plaintiff. 60. The intervening negligent acts or omissions of other persons or entities may have constituted superseding causes of the accident or incident of which Plaintiff complains and any injuries or damages allegedly suffered by the plaintiff or caused by such superseding negligence of other persons and/or entities. 6] . Plaintiff s claims are barred or limited because Plaintiff failed to mitigate any damages sustained. 62. Pursuant to Pa. R.C.P. 1019(G) Answering Defendant incorporates any other New Matter defenses pled by any other parties to this litigation. 63. Defendant reserves the right to assert at the time of trial any and all affirmative defenses revealed through discovery. -10- DOCS]H 1125823vl NEW MATTER IN THE NATURE OF A CROSSCLAIM AGAINST CO-DEFENDANT CAROL LOONEY, R.T. PURSUANT TO PA. R.c.P. 2252(d} 64. Answering defendant hereby incorporates by reference all the well-pleaded allegations contained in the plaintiff's complaint directed to the co-defendants, all Jiability on the part of the answering defendant being specifically denied. 65. Answering defendant avers that if the plaintiff's contentions as alleged in the plaintiff's complaint or any of them are proven, then any injuries of the plaintiff and/or damages sustained by the plaintiff are due solely to the negligence, carelessness and/or recklessness and/or other liability producing conduct or omissions ofthe co-defendants and are in no way due to any act or omission or liability of any kind on the part of answering defendant. 66. In the event that it is judicially determined that the plaintiff is entitled to recover on the causes of action declared upon, upon any theory, then the co-defendant is alone liable to the plaintiff, and/or are jointly or severally liable with the answering defendant. and/or are liable over to the answering defendant by way of contribution and/or indemnity, all liability on the part of the answering defendant being specifically denied. By: WHITE AND WILLIAMS LLP ~J/dJ wiam H. Catto, Esquire Attorney for Defendant Donald R. Buxton, M.D. -11- DOCS_PH 1725823vl VERIFICATION 1, William H. Catto, Esquire state that I am the attorney for Defendant, Donald R. Buxton, M.D. in the foregoing matter and hereby verify that the facts contained within the foregoing ANSWER TO PLAINTIFF'S AMENDED COMPLAINT WITH NEW MA TTER AND NEW MATTER CROSSCLA1M PURSUANT TO PA. R.CP. 2252(d) are true and correct to the best of my knowledge, information and belief. The undersigned makes these statements subject to the penalties ofPa. R.C.P. 94904 relating to unsworn falsification to authorities. JJL,r!cdd~ William H. Catto, Esquire Dated: May II. 2005 DOCS_PH 1725823vl CERTIFICATE OF SERVICE 1, William H. Catto, Esquire, hereby certify that I have served a true and correct copy of the ANSWER OF DEFENDANT DONALD R. BUXTON, MD TO PLAINTIFFS AMENDED COMPLAINT WITH NEW MATTER AND NEW MATTER CROSSCLAIM PURSUANT TO FA. R. c.p 2252(d) to be served via first class mail, postage pre-paid on this date upon the following: Karl E. Rominger, Esquire ROMINGER & BAYLEY 155 South Hanover Street Carlisle, P A ] 70 13 Stephen 1. Banko, Jr., Esquire MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 By: WHITE AND WILLIAMS LLP {}.i-tf{4j- William H. Catto, Esquire Attorney for Defendant Donald R. Buxton, M.D. Dated: May 11,2005 OOCS_PH 172582Jvl _.._~~.~-" Co'. ., .,'f ) DONNA VOZENILEK, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLA\ID COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW : NO: 03 - 5220 DONALD R. BUXTON, MD & CAROL LOONEY, RT. Defendant : JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW Please discontinue the above captioned matter with prejudice. Respectfully submitted, Rominl~er, Bayley & Whare Date:~2c'5- '-.., - ~ ~- Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff ~ () ....' ~ c ~ ~, "t.16~< ~ ~ ::I;-n r;"il" l rt'i f': ,f_n '" ~7: c -om (/t" - :1) ';S '--":.- >..D 0 r;;: '~~ _c; -0 X:n F'~(- ';$. ~4C' ~~(~, 'J.-,":'(:'::: ~ Brn ::0.< ~ t..:> ~ .r;;- -