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HomeMy WebLinkAbout03-6091SHIPPENSBURG/ : SOUTH HAMPTON MANOR, L.P : Plaintiff : V. JOHN W. HAMMOND, I)efendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 2003- ~dTq/ CIVIL TERM CIVIL ACTION-LAW NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court, your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE ORNO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Peunsylvania 17013 (717) 249-3166 SHIPPENSBURG/ : SOUTH HAMPTON MANOR, L.P : Plaintiff : V. JOHN W. HAMMOND, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003- ~ ~, ~/! CIVIL TERM CIVIL ACTION-LAW COMPLAINT NOW, comes Shippensburg Health Care Center ("Shippensburg Health"), by and through its attorneys, O'BRIEN, BARIC & SCHERER, and files the within complaint and, in support thereof, sets forth the following: 1. Shippensburg/South Hampton Manor Limited Partnership ("Shippensburg Health") is a Maryland limited partnership duly authorized to conduct business in the Commonwealth of Pennsylvania. 2. Defendant, John W. Hammond, is an adult individual with an address of 314 South Fayette Street, Shippensburg, Pennsylvania. 3. John W. Hammond was the attorney-in-fact for Emma J. Hannnond by virtue of a certain Power of Attorney, a copy of which is attached hereto as Exhibit "A" and is incorporated. 4. Shippensburg Health operates a resident skilled nursing facility located at 121 Walnut Bottom Road, Shippensburg, Cumberland County, Pennsylvania. 5. In November, 2001, John W. Hammond sought to have Emma J. Hammond admitted to the Shippensburg Health skilled nursing facility. 6. On or about November 8, 2001, John W. Hammond executed a Patient Data and Consent Form on behalf of Emma J. Hammond, along with additional admission documents. A true and correct copy of the Patient Data and Consent Form and admission documents are attached hereto as Exhibit "B" and are incorporated. 7. Pursuant to the Patient Data and Consent Form, Emma J. Hammond was botmd to pay Shippensburg Health for all costs and services provided which were not paid by third party payors. 8. On or about November 1,2001, Emma J. Hammond became a resident of the facility and she remained a resident to the date of her death on March 1, 2003. 9. In March, 2002, Emma J. Hammond qualified for medical assistance. The Cumberland County Assistance Office calculated a private pay portion to be paid from Emma J. Hammond's monthly income to Shippensburg Health for the costs of her care not covered by medical assistance. 10. The private pay portion calculated by the Cumberland County Assistance Office was set at $1,602.88 per month. The Cumberland County Assistance office found that Emma J. Hammond was receiving $1,051.00 per month in social security benefits and $635.88 per month from a pension. 2 11. Health in the following mounts: September, 2002 October, 2002 Emma J. Hammond have failed to pay the private pay portion due Shippensburg November, 2002 February, 2003 TOTAL: $1,602.88 $1,602.88 $1,602.88 $1,602.88 $6,778.64 12. Upon information and belief, John W. Hammond had been receiving the monthly income payable to Emma J. Hammond from social security and the pension benefit. 13. Demand was been made upon Emma J. Hammond and John W. Hammond to pay the amount due and owing. COUNT I-BREACH OF CONTRACT SHIPPENSBURG HEALTH v. JOHN HAMMOND 14. Plaintiff incorporates by reference paragraphs one through thirteen as though set forth at length. 15. All conditions precedent to recovery under the Patient Data and Consent Form have been fulfilled. 16. John W. Hammond, as the attorney-in-fact for Emma J. Hammond, was obligated to use the assets and income of Emma J. Hammond to satisfy the debt due and owing to Shippensburg Health for services and care provided to Emma J. Hammond by Shippensburg Health. 3 17. John W. Hammond has, without justification, failed and refused to pay the amount due from the assets of Emma J. Hammond. 18. John W. Hammond has breached the Patient Data and Consent Form by failing and refusing to pay for services rendered. 19. Shippensburg Health seeks recovery of an amount not in excess of the limits requiring compulsory arbitration. WHEREFORE, Plaintiff requests judgment in its favor and against Defendants for the sum of $6,778.64 and any additional amount remaining unpaid to the date of judgment together with costs, interest and expenses. COUNT II-MONEY HAD AND RECEIVED SHIPPENSBURG HEALTH v. JOHN W. HAMMOND 20. Plaintiff incorporates by reference paragraphs one through nineteen as though set forth at length. 21. During the period of Emma J. Hammond's residency at the Shippensburg Health facility, John W. Hammond received the sum of, at least, $17, 631.68 from the social security and pension benefits of Emma J. Hammond. 22. The proper use of these funds would have been to pay the costs accruing for the care of Emma J. Hammond at the Shippensburg Health facility. 23. At the time of receipt of these funds, John W. Hammond knew that he was obligated to pay these funds over to Shippensburg Health for the costs of Emma J. Hammond's care at the facility. 4 24. At the time of her death, Emma Hammond owed Shippensburg Health $21,483.97 for the costs of her care. 25, On or about December 17, 2001, John Hammond transferred a certain G.E. annuity contract payable to Emma Hammond to himself. The amount of the transfer was $19,871.86. 26. John W. Hammond gave no consideration for the funds of Emma J. Hammond so received by John W. Hammond. 27. Demand has been made upon John W. Hammond to tender the funds of Emma J. Hammond to Shippensburg Health and he has failed and refused to do so. WHEREFORE, Plaintiff requests judgment in its favor and against John W. Hammond requiring John W. Hammond to: a) return the subject matter in specie; b) pay over the value if John W. Hammond has consumed the money in beneficial use; c) pay its value if John W. Hammond has disposed of the funds received; and d) award costs and expenses and interest. COUNT III-CONVERSION SHIPPENSBURG HEALTH v. JOHN W. HAMMOND 28. Plaintiff incorporates by reference paragraphs one through twenty-seven as though set forth at length. 5 29. At the time John W. Hammond received the social security and pension funds of Emma J. Hammond, he was aware that he had a legal obligation to dispose of those funds to or for the benefit of Emma J. Hammond under and pursuant to his authority as attorney-in-fact for Emma J. Hammond. 30. Knowing that he had the aforesaid obligation, John W. Hammond appropriated funds of Emma J. Hammond for his own use and benefit. 31. John W. Hammond has refused to pay to Shippensburg Health the debt accruing from the non-payment of the private pay portion from the income of Emma J. Hammond. 32. John W. Hammond has imentionally and substantially interfered with Shippensburg Health's right to receive the funds of Emma J. Hammond for payment of the mount due and owing. WHEREFORE, Plaintiff requests judgment in its favor and against John W. Hammond for the sum of $6, 778.64, costs, expenses, interest, attorney fees and punitive damages. COUNT IV-FRAUDULENT CONVEYANCE SHIPPENSBURG HEALTH v. JOHN W. HAMMOND 33. Plaintiff incorporates by reference paragraphs one through thirty-two as though set forth at length. 34, The transfer of the G.E. annuity contract from Emma Hammond To John W. Hammond was made without Emma Hammond receiving equivalent value in exchange. 35. The transfer of the G.E. annuity was made after John W. Hammond had admitted Emma Hammond to the facility. 6 36. The transfer of the G.E. annuity was made when John W. Hammond intended to incur, believed or reasonably should have believed that Emma Hammond would incur debts through her residency at the facility beyond her ability to pay as they came due. 37. John W. Hammond is the son of Emma Hammond. WHEREFORE, Pla'tariff requests the following: a) avoidance of the transfer to the extent necessary to satisfy the claim of Shippensburg Health for the total debt due; b) an attachment or other provisional remedy against the asset transferred; c) appointment of a receiver to take charge of the asset transferred; and d) any other relief the circumstances may require. Respectfully submitted, ,~ David A. Baric, Esquire ID #44853 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff dab.dir~shippensburg/hammond/eomplaint2.pld · 11~06/2003 15:37 71724~5755 OBS PAGE VE~8~FICATION Thc statements in the foregoing Complaint are based upon inforrnafion which has bc~n assembled by my attorney in this litigation. The lan~,uage of the statements is not my o~m. I have read the statements; and to the extent that they are based upou b~formation which I have given to my counsel, they are true mud correct to the best of my knowledge, info~o~tion and belief. ! understand that false statements herein are made subjec~ to the peualties of 18 Pa.C.S. § 490,$ relating to unswom falsifications to authorities. DATE: pU.1RAJ~LE GENERAL POWER OF ATTORNE~ KNOW ALL MEN BY TH~SE PRESENTS, that I, EI~NIA JANE HAMMOND, of Shippcnsburg, Cumberland County, Pennsylvania, hereby revoke any g~netal power of attorney that 1 have hereto[ore given to any person and do hereby appoint my son. JOHN W. HAMMOND, (hereinafter "my Attorney") my truc and lawful at~ome¥ for me and on my behalf to perform all such acts as my ARomcy in my Attorney's absolute discretion nlay deem advisable, as fully as I could do if personally present. DURABLE POWER This power of Attorney shall not be affected by my subs~ucnt disability or incapacity. GENF~RA.L GRANT OF BROAD POWERS - My Attorney is hereby given the f~llest possible powers to act on my behalf: to transact business, make, execute and acknowledge all agreements, contracts, orders, deeds, writings, assurances and instruments for any matter, with the same powers and for all purposes with the same validity as [ could, if'personally present. SPECIFIC POWERS INCLUDED IN GENEP,_AL POWER Without limiting the general powers hereby already conferred, my Attomey shall have the following specific powers which are included in the foregoing general powers: Bankin~ and Fina~/~ial Institutions: General Financial Powe~ (a) To deposit any funds received for me in my accounts in such bank or trust company or other deposito.,7 as my A. ttomey may select, either in my name or in my Attorney's name as attorney-in-fact (b) To withdraw fi.om and to draw any check or other draft against any moneys held for me at any bank, saving fund or other place of deposit, whether such account was created by me or by my Attorney. (c) To endorse notes, chccks and other .instruments wNch may require my endorsement. (d) To pay all debts now or hereafter incurred by me. (e) To borrow money and to mortgage or pledge any property, real or personal, now or hereafter owned by me as security ther~['or and to satisfy or record any -I- EXHIBIT "A" indentures of mortgage now or hereafter standing in my name or acquired for my account. (0 To have access to any safe deposit box standing in my name or in my Attorney's name for me, and to add to or remove ~. contents of such box; provided. however, my Attomey shall not use such box as a place in which to deposit or keep any personal property of my Attorney. (g) Generally, to transact any and all business for me with any bank, trust company or other deposito~'. Stocks. T~onds. Sccurlt.ie~ mid Investments. (a) To sell, exchange, pledge, assign, transfer and deliver to any person, at my Attorney's discretion, all or any par~ of any stocks, bonds, note~, mortgage, interests in partner~.ips or other securities, .and any and all personal properly standing in my name or belonging to me, or over which I may have any power or control. To make, execute and deliver on my behalf all necessary deeds, assignments or transfers. (b) To register any or all of my securities in my Attorney's name as attorney-in- fact for me. (c) To vote my securities in person or by proxy. (d) To transact alt business in relation to any stocks, bonds, securities, or other property in the nature thereof; to deposit the same under agreemcv, ts of deposit; to participate in any plan of lease, mortgage, merger, consolidation, exchange, reorgamzation, recapitalization, liquidation, receivership, or foreclosure with respect thereto; to exercise any fights to subscribe to new issues thereof; and generally to exercise all rights of management and ownership with respect thereto. (e) To invest in any form ofproperty, all ftmds and securities held or received for my account, keeping such cash reserves as, in my Attorney's discretion, are necessary or desirable to meet conditions as they may exist from time to time. In the exercise of this power, my Attorney may invest in any variety of real ~nd personal property as in my Attomey's discretion appears to be prudent investments, and my Attorney shall not be liable to me ['or any error of judgment in the making or continuing of any investment. Keel Estate. (a) To sell, exchangc, pledge, assign, traas£er and deliver to any person, at my Attorney's discretion, ail or my part of my real property, standing in my name or belonging to me, or over which I have any power or control. -2- Co) To make, exccute and deliver on my behalf all necessary deeds, assignments or transfers. (c) To opcrate real propcrty, separately or jointly with others. (d) To lease for any term any real property and to vary the terms, including rent payable, of any lease. (e) To alter, r~pair, improve, mortgage, divide, exchange, joL~ in thc partition o f, or give options with respect to, real property. ' (f) To buy in at judicial sale any .property on which I hold a mortgage. (g) Generally to transact all business and to exercise all rights of management and ownership relating to rea] properly, 4. Claims, Law Suits. Compromise and Mi~ccllaneous Powers~ (a) To demand, sue for, levy, collect, and give proper receipts for all sums of money or prope~.y now or which may hereat%r become due me from any source whatsoever, including all estates or !:rusts, proceeds of insurance policies or othcr property of any kind whatsoever. (b) To join with other parties in the compromise or settlement of any claims. (c) To make, negotiate, sign and perform any and all agreements and contracts now in course o[' negotiation, execution and settlement by me, or which may hereafter in the opinion of my Attorney be to my interest or advantage; to effect, procu[e and continue insurance cf any ,'md every kind and description; and with full power and authority to manage any rea} and personal property and conduct my affairs generally. (d) To employ attorneys at law and such other agents, employees or representatives as my Attorney may think proper, and to pay any claims, fees, expenses, wages, demands or obligations for which I may now be or may hercaher become liable. 5. T~tx Matters. To pr~arc, execute and file in my behalf and in my n al'ne any and all income tax declarations and returns, and any other tax returns and reports (including, but not limited to, protests, clatms, elections, consents, closing agxecments, waivers ofstarutes of limitations and extensions), and to represent me before thc Internal Revenue Service or Treasury Department and any state or local taxing authority with respect to any claim or proceeding having to do with my tax liabilities, federal, state or local, for any and all years, -3- 6. Power to De:eft. ate. To substitute one or more attorney or attorneys under my Attorney, to carry out any oft.he general or specific powers hereby granted. 7. Speei fie Financial Powers Defined bv Statute. The following powers are granted pursuant to Chapter 56 of the Pennsylvania Probate Es'.ates and Fiduciaries Code as fitrther defined therein: (a) To make limited gifts. My Attorney may make gifts on my behalf to any donees and in such, amounts as mi,' Attorney may deeido subject to the following: (i) The class of pcrmissiblc done~s shall consist solely of my children, my gnmdehildren and my great grandchildren (including my Attorr, ey if my Attorney is a member ofeuch class). (ii) During each calendar year, thc gifts to each donee pursuant to this power shall have an aggregate value not in excess cf Ten Thousand Dollars or such lesser (or greater) amount as, and shall be made in such manner as, to qualify in their entirety for my annual exclusion from the Federal gift tax as provided in Section 2503(b) of the Internal Revenue Code of 1986, as amended, without regard to Section 2513(a) thereof (or any successor provision allowing gifts to be split with a spouse). (b) To create a trust for my benefit. (c) To make additions to an existing trust for my benefit. (d) To disclaim any interest in property. (e) To renounce fiduciary positions. (0 To withdraw and receive the income or corpus of a trust 8. Specific Personal and Medical Power~ Defined by Statute The following powers are granted pursuant to Chapter 56 of the Pennsylvania Probate, Estates and Fiduciaries Code, as further defined t,herein: (a) To authorize my admission to a medical, nursing, residential or similar facility and tz enter into agreements for my care. (b) To anthofize or refuse medical and surgical procedures. -4- (c) To a~mqge ~,td consent to procedures to make ma ~n-~tomicat $(fl of al! or par[ of my body. DURATION OF POWEK, RELlE~ FKOl~.i LI^~tlI.ITY. REVOCATIQ~J This power shall not expire by re.on o f lapse of time. 2. I hereby ratify and confm-n all that-ny Attorney acting hereunder shall do or cause to be done under this Power of Attorney. I specifically direct that such Attorney shall not be subject to any liability by reason of any of such Attorney's decisions, acts or failures to act, alt of which shall be conclusive and binding upon me, my personal representatives, heirs and assigns. Furthermore, except in the case of malfeasance of office, I af~ee to indemnify such Attorney, and hold such Attorney harmless, from all claims that may be mdc against such Attorney as a result of such Attorney's service hereunder end £ hereby agree to reimburse such Attorney in the amoaw, of any damages, costs and expenses that may be incurred as a result of any such claim. 3. This Power of Attorney shall be revoked by my giving to such Attorney acting hereunder written notification of'the revocation, wlfich notice shall not be considered binding urde~s actually received. IN WITNESS WHEREOF, and intending to be leg,qty bound, I have hereunto set my hand and seal this o~~l- day of Jtmc, 1999. SIGN'ED, SEALED AND DELIVERED IN THE PRESENCE OF: WITNESS: Emma Jane%tammond (SEAL) .7¸ COMMONWEALTH OF PEN-NSYLYA.NiA : SS. COUNTY OF CUMBERLAND Or. the o~ r~dday of June, 1999, before me, a Notary Public, pcrsonal!y appeared Emma Jane Harr~mond, and in due form of law aclmowlcdged the foregoing Power of Attorney to be her act and deed and desired thet the same might be recorded as such. WITNESS my hand and notaria[ seal. -5- SHIPPENSBURG HEALTH CARE CENTER PATIENT DATA AND CONSENT FORM Zip Code: ]7o~.~ 7 Male Marital Status: Single soc. Sec.-::: 17b-3q-9770 Date: City: '~.~ State: ~'~-male) Date of Binh: Ma~ied Separated Divorced INSURANCE Primary Insurance: Policyholder:. Relationship:. Policy Number: Secondary Insurance: Policy Number: ]'TL~,q~ Group Number: Policyholder: &,~_ro~ Relationship: .5~/~ Group Number: /'~L~7'k-' ~/D MEDICAID#: Name: c'x/D/3 D /-'~J) ~ ~'~ Drt J Re feting Physician: Treating Diagnosis: RESPONSIBLE PARTY Relationship: Phone Number: 'Primary Care Physician: ..~r'. Primary Diagnosis: Service Requested: Occupational Therapy Physical Therapy Speech Therapy Patient's and/or family's permission to bill and consent to receive treatment, release information and make payment. Under Medicare Part B (a National Health Program through which certain medical and hospital expenses are paid from Federal Funds) you must meet the following conditions: 1. You must satisfy your deductible. 2. Medicare will pay 80% of the charge after the deductible has been satisfied up to a maximum annual cap. . 3. The 20% unpaid balance and/or amounts above the annual cap will be billed to you or the person responsible for paying your bills. 4. If you have a Tie-in Plan or other insurance that will pay the balance we will submit the bill to them. 5. This form must be signed by you or your family giving us permission to (1) bill 80% to Medicare and (2) 20°./o (Co-pay), and amounts above the annual cap, and any deductible not already satisfied, to you or your insurance company. 6. For patients who are Medicaid and Medicare Part B and decreed indigent, the Facility will accept assignment pursuant to state laws and regulations. l authorize treatment and payment of medical benefits to the FaciliD' for services rendered as ordered by my physician. I further authorize the Facility to furnish medical or other information for any claims incurred for a period of one year under the Title XVIII of the Social Security Act and its intermediary. I hereby accept all responsibility for, treatment costs not covered or reimbursed ID' th}rd pa~' pavers. ature of Patient or Authorized Representative / Date .., Wimess (Name) / (/ Witnet~ (Signature) EXHIBIT "B" SHERIFF'S CASE NO: 2003-06091 P COMMONWEALTH OF PENNSYLVA/qIA: COUNTY OF CUMBERLAND SHIPPENSBURG/SOUTH HAMPTON MAN VS HAMMOND JOHN W RETURN - OUT OF COUNTY R. Thomas Kline duly sworn according to law, and inquiry for the within named DEFENDANT , HAMMOND JOHN W but was unable to locate Him in his bailiwick. deputized the sheriff of FRANKLIN County, serve the within COMPLAINT & NOTICE , Sheriff or Deputy Sheriff who being says, that he made a diligent search and to wit: He therefore Pennsylvania, to On December 9th , 2003 , attached return from FRANKLIN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Franklin Co 32.00 .00 69.00 this office was in receipt of the So a n s we ~,s.:--~ ~_ ~ ~.~.fr---~ Sheriff of Cumberland County Sworn and subscribed %o before me this /~"{~ day of~~~/~ 12/09/2003 OBRIEN BARIC SCHERER In The Court of Common Pleas of Cumberland County, Pennsylvania Shippensburg/South Hampton Manor LP VS. John W. H~rnond SERVE: same No. 03-6091 civil Now, Novamb~r 24, 2003 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Franklin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriffof Cumberland County, PA Affidavit of Service NOW, December 5 within Complaint ,20 o3 ,at 11:43 o'clock A M. served the upon John W. Hammond at Franklin County Sheriff's Office, 157 Lincoln W. East, Chambersburg. PA 17201 by handing to John W. Hammond a Certified and made known to him Sworn and subscribed/]pefore me this ~)-- day oK7¢C ~. ,20 l~ .~ copy of the original So answers, Sheriffof COSTS SERVICE MILEAGE AFFIDAVIT complaint the contents thereof. Franklin County, PA SHIPPENSBURG/ SOUTH HAMPTON MANOR, L.P Plaintiff V. JOHN W. HAMMOND, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-6091 CIVIL TERM CIVIL ACTION-LAW _PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly mark the above-captioned action as having been settled and discontinued with prejudice. Respectfully submitted, 'BRIEN, BA & SC R David A. Baric, Esquire I.D. 44853 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 dab.dir/shcc/hammond/discontinue.pra CERTIFICATE OF SERVICE I hereby certify that on January _/.~ , 2004, I, David A. Baric, Esquire of O'Brien, Baric & Scherer, did serve a copy of the Praecipe To Discontinue, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Hamilton Davis, Esquire 20 East Burd Street, Suite 6 P.O. Box 40 Shippensburg' ~~~//7./. ~ David A. Baric, Esquire