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Home My WebLink About03-6367 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA COUNTRY MEADOWS ASSOCIATES, a Pennsylvania Organization d/b/a COUNTRY MEADOWS OF WEST SHORE AT TRINDLE CORNERS, Plaintiff, v. - No. (J 3 - &, 3 (. 7 ~ I.u-- JOHN E. MESSIMER, Defendant. CIVIL ACTION - LAW NOTICE YOU HA VB 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 rnoney claimed in the complaint or for any other clairn or relief requested by the plaintiff. You may lose rnoney 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Curnberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 717.249.3166 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA COUNTRY MEADOWS A5SCX:IATES, a Pennsylvania Organization d/b/ a COUNTRY MEADOWS OF WEST SHORE AT TRINDLE CORNERS, Plaintiff, v. No. JOHN E. MESSIMER, Defendant. CIVIL ACTION - LAW A VISO USTED HA sroo DEMANDADO/ A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proxirnos veiente (20) dias despues de la notificacion de esta Dernanda y A visa radicando personalrnente 0 por rnedio de un abogado una cornparecencia escrita y radicando en la Corte por escrito sus defensas de, y objeccionee a, las dernandas presentadas aqui en contra suya. Se Ie advierte de que si usted falla de tomar accion corno se describe anteriorrnente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la dernanda 0 cualquier otra rec1arnacion 0 rernedio solicitado por el dernandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted pued perder dinero 0 propiedad u otros derechos irnportantes para usted. USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Curnberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 717.249.3166 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA COUNTRY MEADOWS ASSCX::IATES, a Pennsylvania Organization d/b/ a COUNTRY MEADOWS OF WEST SHORE AT TRINDLE CORNERS, Plaintiff, v. No. 03- {,3& 7 ~ -/:..- JOHN E. MESSIMER, Defendant. CIVIL ACTION - LAW COMPLAINT AND NOW, COMES, Plaintiff, Country Meadows Associates, a Pennsylvania organization d/b/ a Country Meadows of West Shore at Trindle Comers ("Plaintiff Country Meadows"), by and through its attorneys, MILLER LIPSITT LLC, and files the within complaint against Defendant, John E. Messimer ("Defendant Messimer"), and in support thereof, provides as follows: 1. Plaintiff Country Meadows is a Pennsylvania organization created and existing under the laws of the Commonwealth of Pennsylvania, with its principal offices located at 830 Cherry Drive, Hershey, Pennsylvania 17033. 2. Defendant Messimer is an adult individual currently residing at 700 Walton Street, Lernoyne, Pennsylvania 17043-2034. 3. At all tirnes material hereto, Defendant Messirner's father, Raymond Messimer ("R. Messirner"), has resided at Plaintiff Country Meadows' assisted living facility located at 4905 East Trindle Road, Mechanicsburg, Pennsylvania 17055. 4. On or about October 29, 2000, R. Messimer rnade application for admission to Country Meadows' assisted living facility located at 4905 East Trindle Road, Mechanicsburg, PA 17055. 5. On or about October 29, 2000, Plaintiff Country Meadows and R. Messimer entered into a written Admission Agreernent (" Agreernent"), pursuant to which, Plaintiff Country Meadows agreed to provide R. Messimer assistance with daily living in exchange for his prornise to pay a specific rnonetary fee. See Exhibit" A", Admission Agreernent. 6. At all tirnes material hereto, R. Messimer has been financially unable to fully compensate Plaintiff Country Meadows for the care and services that it has rendered to hirn in accordance with the terms and conditions of the Agreement. 7. At all times material hereto, Defendant Messimer has been financially able to assist his father, R. Messimer, in fully cornpensating Plaintiff Country Meadows for the care and services that it has rendered to R. Messimer in accordance with the terms and conditions of the Agreernent. 8. At all times material hereto, Defendant Messimer has failed to provide sufficient financial assistance to his father, R. Messimer, to allow R. Messirner to fully compensate Plaintiff Country Meadows for the care and maintenance that it has rendered to R. Messimer. 2 COUNT I ASSUMPSIT - STATUTORY DUTY OF SUPPORT (62 P.S. S 1973) Plaintiff Country Meadows v. Defendant Messimer 9. Paragraphs 1 through 8 above are incorporated herein by reference as if fully set forth at length. 10. Defendant Messirner is the son of R. Messimer. 11. At all times material hereto, R. Messimer has been indigent. 12. At all tirnes material hereto, Defendant Messimer has possessed sufficient financial means to assist his father, R. Messimer, in paying for the care and services that Plaintiff Country Meadows has provided to R. Messirner. 13. At all times material hereto, Defendant Messimer has a duty to support his father, R. Messirner. 14. At all times material hereto, Defendant Messimer has failed to support his father, R. Messirner. 15. As a result of Defendant Messimer's failure to support his father, R. Messirner, Plaintiff Country Meadows has sustained damages in an amount in excess of Twenty Thousand and 00/100 Dollars ($20,000.00). 3 WHEFEFORE, Plaintiff Country Meadows demands judgment in its favor and against Defendant John E. Messimer in an arnount in excess of Twenty Thousand and 00/100 Dollars ($20,000.00) plus interest. Respectfully submitted, MILLER LIPSITT LLC '- Dated: I-z,,/ '2;1 0.3 BY~~ Ch~wlck 0. lSogeft'; Attorney LD. No. 83755 2157 Market Street Camp Hill, P A 17011 717.737.6400 -=:::> '0 Attorneys for Plaintiff, Country Meadows Associates 4 EXHIBIT "A" APR-04-03 10:47 FROM-HOFAX2FL 7175331014 T-l05 P,007/019 F-30a ~'"tRY ~E4b :V~.. .... 0 o r- .-.. ~~ ~"" ~.... lp CJir '''''' ,,, ;. tP@ C; -' Retit'ement Communities :;he Residence of Country Meadows Agreement This agree-m.nt, rn..ti", in duplicate this ~'1 day of c:f mbD ^ 20 I'fy"\. by and between The Residence at Country Meadows at ( I l"'f',+- ~ h0.~ \("\rdl<> (rm-t'/.S an independent retirement communi1;Y operated by Country Meadows Associates, and the followiog resident(s): Rr.\,,-\ i-t ~.:~\ 1'Y"l-C..- Hame{s} b~~ \(d. StTrIet Addres.s Carn" 4-\,',\\, <yt::... n~ \ \ r- City State zip 1. Gi::nem1. Resident is hereby notified that her/his application has been accepted to reside at The Residence of Countxy Meadows of l.~~ ~Y)(y<.. Tn/rll<.~ Country Meadows hereby leases and rents to resident the premises described as Apartment Number ?-f::-l?-J...o . 2. Term of Agre..e;men1;. This lease shall be in effect for an initial term of one (1) month, commencing on ("c Jc::r.,e/ ~ . 20CQ... The lease will automatically be renewed far a pertod of one (1) month, at the then prevailing rate for the apart- ment. The resident must give the Administrato. at least thirty (30) days written notice of intent not to renew. 3. Guaranreed Rpnt. Resident agrees to pay Countty Meadows the rent due under this Agreement in monthJ;v payments of $ IY.p,c). each, payable monthly in advance on or before the first of the month. Countly Meadows agrees to give resident thirty (30) dqs notice in writing of any rent increase. Any additional charges must be specified and attached to this agreement. 4. Security Dep'osi:l;. At the time of signing this At,.,ee.o..ent, resident agrees to make a Securi1;y Deposit of$1,Ooo. The Security Deposit will be held by Countxy Mead- ows at (n % simple,intenest until such time as this Agreement shall be tezmi- nated by either party. Resident and Coun-ay Meadows understand and agree that this deposit shall constitute liquidated daTT'tllges in full in the event that this Agree- ment is ter.minated by the r~;dent ~t in cases of death or infirmity as provided in lten:J. 16. """',ozR{' OF 7) APR-04-03 10:48 FROM-HOFAXZFL 7175331014 T-I05 P,008/019, F-303 5. ~ent Paid in Advance. Country"Meadows has estclJlished a special program for residents who pay their entire rent for a twelve (12) month period in advance. If this program applies, Country Meadows agrees to pay resident_% simple , interest on the unearned balanceof'the rent. Interest shall be credited to the resident monthly, or if terminated in accordance With Item 16, principal and interest shall be paid at that time. Each month d~ the term of this Agree- ment, Country Meadows shall charge resident's n=a1 monthly rent against the remaining principal balance before calculating the interest earned. Resident will be supplied. with a Form 1099 at the end of the year, if applicable. NOTE: Country Meadows, by law, may not accept more no.r less than twelve (12) months pre-payment. 6. SeIVice! Provided Qy Country Mea.cl~. In addition to the apartment, CountIy Meadows agrees to furnish resident with the following services as part of the monthly rent: (a) the dinner meal daily in the dining room; (b) weekly light ') f:J housekeeping and linen services, including the laundering of linens; (e) program ~ \ ,of educational, recreational, fire safety, and wellness activities; (a) facilities for (jJ-~ receiving peX'sonal m.ail; (e) 24-hour av<>i],in;Hty of assistance in case of medical ~ emergencies; (t) all utilities, except personal telephone, and C. A'o \..l . 7. Med5c.ations. Resident may choose to use Country Meadows' designated phar- roacy or another of her Ibis choice. Resident understands that it is the policy of Country MeadoW's to dispense medications in <<Med-i-set" containers for easy seli- ariministration, or assistance as needed, .and monitoring of usage; however, the resident may select to have these dispensed in vials in the Re"irlpnt"e. Further, resident understands that the designated pharmacy honors and participates in the PACE program, and, upon request, w.ill review the resident's company's re- tlrp.Tnent prescription plan to determine whether it can become the dispensing agent for the pJan. Such plan will carty a minor dispensing charge for servicing. 8. Required PhYSical Examil"1ation. In compliance with state Jaw, and for the protection of residents who reside in The Residence, resident agrees to provide a current (given within sixty (60) days of moving in) medical histoIy and physical ('XAmination by a phylsician at her/his expense priar to commencement of res i- dency and annualJ;y thereafter. The e;!r'O'rnination will be recorded on the form provided by Counny Meadows, which will be treated confidentially by Country Meadows and its staff. At the sole discretion of Country Meadows, final certifica- tion for acceptance for admission or re-admission may be Clooe by the Country Meadows Medical DirectOr and The Residence of Country Meadows Admissions Committee. Further, should resident's physician fail to returu the annual recerti- fication form when necessaxy, Country Meadows reserves the right to have the recertification done by its Medical Director at the resident's expense. Country Meadows reserves the right to have a ageriatrie assessment" done by its Medical Director, or some other dE'''''g:r''ated physician, as final certificatioo for admission or eontinued residency. This may serve as the required physical examination. APTSl02R ~ OF 71 APR-04-03 10:48 FROM-HOFAX2FL 7175331014 T-105 P.009/019 F-30a .. 9. Emergenqy Care. To enable CountIy Meadows to arrange for prompt and effective care in a mf't'Il"""l eme:r:gency, resident acknowledges that her/his , personal physician may not be available at the time of the emergency.. Resident agrees that in case of an emergency during which the resident's personal physician is unable to' attend, Country Meadows may engage any licensed physician to attend to resident. Resident authorizes such physician to render all such medical treatment as she/he deems necessary. 10. Assu=ce of Confidentiality aocl. Author'i2:ation for ReleaS.-e of Medical R.~cords. Country Meadows af''kT.owledges that resident's personal and medical record.s are eon:lidential. Resident acknowledges that such records are hereby released and may be used internally by the staff of Country Meadows to determine appropriateness of care, and, in case of resident's admission to a hospital or health care institution, may be released to such institution. 11. . Resident Re~onsibilitles. Resident agrees to accept, comply with and participate in the following: a. The Country Meadows We1lness i'rogra.m; b. Educational and recreational activities; c. Inoculations for flu and pneumonia """ess disapproved by personal physician; d. Quarterly fire drills; e. Evening meal in the dining room; f. Annual medical evaluation and! or geriatric assessment. 12. ,t\.ccess to Premise". In order to cany out .Outine housekeeping and preventive maintenance, resident a.cknowledges that it is necessary for Country Meadows' staff to have access to the rented premises. Therefore, resident agrees to permit Country Meaclows' employees to enter the rented premises at reasonable times for exaD:1ination or maintenance, to prevent d...."age to the premises, or to serve the resident. 13. Resi~t's Financial Reswnsibilities. Resident agrees to accept and. to comply with the following financial responsibilities: a. Paying all charges for any and all professional treatment and services required by the r~~lknt, inclmling, but not li:tnited to, hospitalization and meclical and dental care, whether such services are rendered at her Ibis request, or at the request of a CountIy Meadows' staff'member in an emergency; b. Paying such ancills.1:y charges as may be in=ed by her /bJrrJ. or by Countly Meadows in her/his behalf. SUch charges include, but are not limited to, nursing treatnlents, unscheduled transportation, emergency transportation, beautici..n or barber services, visitor meals in the dining room, meals in the dining room and lodging for overnight guests in separate quarters, and contract for meals for a month at a time as set forth in the Schedule of Ancillary Charges;. APmll2AlSOl'7) APR-04-03 10:48 FROt.l-HOFAX2FL 7175331014 T-I05 P,010/019 H03 c. Whenever resident is elig1b1e for such cover~e, purchasing and maint"inh"g Medicare Part "B" and Medicare Supplemental Insurance, e.g., "55 Special" or H.M.O_ Policy; d. Providing a summary stateII).ent of income and prima!y assets as a part of the application for re$idency. 14. IrJ. Case of Inf"umity MIl Requirt!ment of Mor:e SuppOrtive SeT'l6ces. Resident understands and agrees thatThe Residence of Counny Meadows proVides an independent living retirement communi1;y. When, in the judgment of the Ac:InUssions' Committee, supportive personal care services, intermediate or skilled nursing care, or hospital services are needed, other facilities will need to be sought by resident. Counny Meadows reserves the right to re-evaluate the appropriateness of resident's continued stay at The Residence of Country Meadows at any time.. Reasons for re-evaluation may include the frequency and nature of requests for assistance from members of Country Meadows' staff. In the event the resident's . stay at Countxy Meadows is determined to be inappropriate, this Agreement may be terminated in accordanc:e with Item 15. If resident should become ill. necessitating services which, in the written opin- ion oIresident's personal physician or the Country Meadows' Mecli,..."l Director, require a hig;,er level ofhealthcare, the resident may elect to transfer to Assistecl LiVing. an intermediate care or skilled nursing facility, or a hospital. whichever is appropriate in the opinion of the physician. In such event, this Agreement shall terminate. Rent adju;swents will be governed by I1:em16 of this Agree.1nent.. 15. Conditions of Termin.ation. a. IT the Administrator intends to terminate services ior any reason, the A<;lrnini"trator shall give the resident a thirty (30) clay termination notice and state in writing the reason(s) for termi.nation. b. In the event that the resiclent's behaVior or physical condition is such that it enciangers property or the safety of self or other persons in The Residence, and the problexn cannot be resolved by the Administrator, assistance shall be requested from the resident's familY or appropriate communi1;y agency and the resident may be transferred without pro- viding the thirt;y (30) days notice. c. ,Ii the resident's physic.ia.n, Country Meadows' Medical Director, or The M,."i"sions Committee has determined that the resident needs a higher level of care, a placement pIan will be developed as soon as possible, in conjunction with the resident andj or designated person. 16. Adjustm.ents in Rent for SDeeial Circqmsbulces., Counby Meadows agrees that the rent due under this Agreement may be reduced, or waived, under the following circumstances: AP'TS102AI4.0I:'t) APR-04-0l 10:49 FROM-HOFAX2FL 7175331014 T-105 P,011/019 F-lOl a. In the event ofterminatlon.ofthis Agreemen~ by either resident or Country Meadows due to death or infirmity, in accordance with Item 15, rent shall be waived as soon as the resident's apartlnent is vacated of personal belongings and furnishings. The Security Deposit will be refunded except for any portion used to make repairs to the unit over and abOVe reasonable wear and tear. Refwlds shall be made within thirty (30) days of above conditions being :met. b. During sueb time as resident shall temporarily reside in a hospital, "klllpt;j nursing, intermediate care facility or assisted living facility in accordance with Items 14 or 15, or resiclent shaJl be away fram the facility continuously for prearranged vaC"tion or absences often (10) days or moTe, Country Meadows agrees to reduce rent by $ .1./ per day during the absence. 17. House Rules of Th.e Residence. Resident agrees to abide by these rules: a. Admission Criteria. Color, race, creed. sex, disability, or national origin have no bearing on admission to Country' Meadows. b. Meohol Use. Alcohol may be used in moderation in resident's private studio or suite provided other residents are not disturbed. There may be times when the facility will provide both alcoholic and non-alcoholic refreshments for residents at scheduled events. Residents taking medications where use of alcohol poses a danger should not use alcohol at all. Residents whose doctors have given orders for no alcohol are expected to follow those orders. c. Secunw/SiiP Out. There is no curfew at Country Meadows. The front and side doors are locked by 9:00 p.m. and opened at 6;00 a.m. However, the resident's personal unit key opens the front door and therefore the resident may come and go as desired. Residents must sign out indicating when they leave and when they return so there can al1il7~ be an accounting for each resident in time of emerSency. Residents pIannmg to be out overnight or longer need to sign for and take with her/him any necessary prescribed medications. d. Diets Ordere~ by Your Physician. This facility is not equipped to provide physician ordered special diets except mechanical soft. We will assist the diabetic resident to personally select appropriate items from among the menu choices provided. e. Fire-.Arms Possession. Neither fu-earms nor ammunition shall be kept in a resident's unit. f. Fire Drill Partictpfl.tion is Mandatorv. We require that all residents partici- pate in each fire dIill. To insure safety in the event of an actual fire or other emergency, residents shall participate fully in the quarterly fire dtills.When the fire alarm sounds, residents shall move promptly to the nearest safe Cl'cit and await instructions. g. ~eals. Meal times will be posted. h. Overnight Absences. When resident will not be returning for the evening, the resident is responsible for m..'k;ng written note of this fact on the sign-out sheet.. This is vital to assist us in accounting for each resident in times of unforeseen emergencies, and for your safety. JIIr.S1"~I'CF'J APR-04-03 1 a :49 FROI.I-HOFAX2FL 7175331014 T-l05 P,012/019 HOI 1. Playing of Radios and TV. Residents are asked to refrain from playing radios, televisions, tape or record players loudly after 9:00 p.m. or before 7:00 a.m.. , j. Reservation of ApartmeTltWben Hospit..1i7ed.. Should the resident be hospitalized, herlhis unit may be resexved at the applicable daily rate during the period or hospitalization. k. Smoke Free Environment. No smoking is permitted anywhere in The Resi- dence, nor in the transportation vehicles provided by Country Meadows, by residents, visitors, or staff. L Personal 1.'.elephone. Each resident is encouraged to have her Ibis private phone. As an alternative, a center phone will be available that residents may use for local calls free of charge. Long distance calls made from a cen,- ter phone must be reported (unless resident uses a phone card or bills to a credit card) liO that they can be billed on resident's monthly statement. m. Teunination of Agreement. When a resident wishes to terminate residency, a 'Written thirty (30) day notice must be given to the Arlmi-nistrator. 18. Indemnification. In consideration of resident status, and intending to be legally bound, the undersigned resident and parties co-signing on behalf of resident, agree to indpnmiiJ" and bold harmless Country Meadows, its partners, agents, and employees from any and all negligence and liability for property damage and/or personal :injuries, including death, the cause ofwhicl1 is determined to be the resident or other residents. Resident aclmowledges and agrees that Coun- Uy Meadows assumes no responsibility or liability for resident's omission or negligence in following or ".m"'l to follow the ins1:ruction of her Ibis attending ph)"';";",., Finally, Countly Meadows a.clcnowledges that this waiver and ind",,.,,,.,in""'tion shall not apply to possible negligence or liability of Country Meadows or its employees. 19. AdditiotUll Cw.rg,es. 1. Guest Meals: Dinner $6.50 per meal 2. PhanDaoy Charges: Billed directly to :resident by Pharmacy 3.. Basic Cable TV: $ rul ~. per month 4. Unscheduled TrlU1SpDrtation: $ 5.00 per trip (if available) . . 5. Beauty/lm:rbe:r Shop: Woman's Cut Wash & Set Conditioner Permanent Wave Manicure q~ Ie' - ..:;- $ 3'1- $_. "R- $ $ $ Man's Cut Shave Rinse TInt Other $ 'ti- $ &, - $ ,2- :p /~ $ ""rs1CZRtlOF7) APR-04-03 10:49 FROM-HOFAXZFL 7175331014 T-I05 P,013/019' F-303 6. Personal Telephone: There is no charge for local calls made on a center's phone; long distance calls made on a center's phone will be billed on resident's m.onthly sta~"".."t. 7. Other Cha;rges: 1'<-/1\ This agreement bas been reviewed by m.e and explained to me by the Marketing Director or Administrator. I understand that the Administrator must give me thirty (30l days written notice if she the intends to change any part of this Agreement. I.. V., ,.J --t;5 YV',"",~ ~ Rei~~ Ie) 2'1/0.: Date Spouse (.!/' a resicf8nt) [)ate ~ (L..~ m u.L-. Administrator or Marketing .Director /D -,;),ct-~ /)ate If a resident is unable to sign her /m:. nam.e, resident should show her/his mark below: Resident's Mark Date Marked Reason resident is unable to sign name: Wftn4s.s to Marie (Not Administn:ztDr or Marketing Director) Date Jrr,P'IS1C2ft170'" DEC-01-03 16:31 FROlA-HOFAX2FL 7175331014 T-964 P, 008/008 H82 VEIUFI(:AnON The undersigned hereby verifies that the statements of fact in the foregoing Complaint are true and c;onect to the best of my knowledge, infonnation and belief. I ll,nderstand that any false stamnents therein are subject to the penalties contained in 18 Pa. c'S.A. S 4904, relating to unsworn falsification to authorities. Dated:, /1.\,0> (;;A J ' Vinc:e J.~, Vice President of &"Co~g,. Finance and Wonnation . Services <; C"'J c, C) c w -" ~ " .~ --I -:~ 1'~J [)r"n , ~ r' -.,.-. ~ c:.:._:; c"') :?.::: t ., ~ (fj " '1) ~ ~ F ,.::f., -_.3:-;: " ' :..:.,.. ~;(") :!l: -'~) ~:~-l-'-: .-\. ) '" '-D :-::',:,'11 -- C~ 1...." - -c. '"" > .c. , , olI :~::, :...> :.0 '" ~ -< ~ -< .." ..J ~ "" v. , \,.. d SHERIFF'S RETURN - REGULAR CASE NO: 2003-06367 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND COUNTRY MEADOWS ASSOCIATES VS MESSIMER JOHN E BRIAN BARRICK Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MESSIMER JOHN the DEFENDANT , at 1916:00 HOURS, on the 29th day of December, 2003 at 700 WALTON STREET LEMOYNE, PA 17043-2034 by handing to JOHN MESSIMER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 11.04 .00 10.00 .00 39.04 So Answers: r"'~~ R. Thomas Kline Sworn and Subscribed to before 12/30/2003 JAMES A MILLE/,J ~, ~ By: I~~ f~ Deputy Sheriff me this 1 ~ day of /l ~ dOz)'f _ (L"v--- {l.. 10<.~R,-. '/~ rJ'prothonotary A.D. GOLDBERG, KATZMAN & SHIPMAN, p.e. Neil E. Hendershot, Esq. (1.0. #23316) John Delorenzo, Esq. (1.0. #72190) 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717)234-4161 Counselfor Defendant COUNTRY MEADOWS ASSOCIATES, : IN THE COURT OF COMMON PLEAS a Pennsylvania Organization d/b/a : CUMBERLAND COUNTY, PENNSYLVANIA COUNTY MEADOWS OF WEST SHORE AT TRlNDLE CORNERS, NO. 03-6367 Civil Term Plaintiff, V. JOHN E. MESSIMER, Defendant. Civil Action - Law Jury Trial Demanded NOTICE TO PLEAD TO: Country Meadows Associates c/o Chadwick O. Bogar, Esq. Kennedy Bogar, LLC P.O. Box 959 Camp Hill, PA 17011-0959 You are hereby notified to file a written response to the enclosed "Preliminary Objections by the Defendant to Plaintiffs Complaint within twenty (20) days from service hereof or a judgment may be entered against you. GOLDBERG, KATZMAN & SHIPMAN, P.c.. BY~~ Oiln renzo, Esquire DATE: J( ,/b'1 GOLDBERG, KATZMAN & SHIPMAN, P.c. Neil E. Hendershot, Esq. (!.D. #23316) John DeLorenzo, Esq. (I.D. #72190) 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Counselfor Defendant COUNTRY MEADOWS ASSOCIATES, : IN THE COURT OF COMMON PLEAS a Pennsylvania Organization d/b/a : CUMBERLAND COUNTY, PENNSYLVANIA COUNTY MEADOWS OF WEST SHORE AT TRINDLE CORNERS, NO. 03-6367 Civil Term Plain tiff, V.. JOHN E.. MESSIMER, Defendant. Civil Action - Law Jury Trial Demanded PRELIMINARY OBJECTIONS OF DEFENDANT AND NOW, comes John E. Messimer named Defendant in this matter, by and through his counsel, Goldberg, Katzman & Shipman, P.C., who file the following Preliminary Objections, pursuant to Pa.R.C,P. 1028, to the Plaintiffs Complaint dated December 2, 2003 (the "Complaint"), and aver as follows: I. Obiections As To Subiect Matter Jurisdiction Pursuant to Pa.R..C..P. 102S(a)(l). I. This Honorable Court, as a State Common Pleas Court, does not have jurisdiction over the subject matter of the Complaint as federal law controls this situation; and objections are therefore made pursuant to Pa.R.C.P. 1028(a)(l) on these grounds. 2. 42 U.S.c. S1395i-3(c)(5)(A)(ii) and 42 U.S.C. s1396r(c)(5)(A)(ii) prohibit nursing homes, such as Plaintiff, from obtaining a third party guarantee of payment for the costs which are the subject of this action. 3. Accordingly, federal law would control in this case and the matter must be removed to federal court. 4, As such, the Plaintiff can not sustain this action in this Honorable Court. WHEREFORE, the Complaint should be dismissed by this Court in its entirety for lack of jurisdiction pursuant to Pa.R.C.P. 1028(a)(1). II. Obiections As To Pendency of a Prior Action Pursuant to Pa..R..C.P. 1028(a)(6). 5. Defendant includes paragraphs 1 through 4 by reference as if fully set forth herein. 6. It is believed and therefore averred that the Plaintiff has filed a similar action in Cumberland County against Raymond Messimer for the identical costs of care. 7. It is believed that such action against Raymond Messimer was filed in July of 2003. 8. A recovery in the action against Raymond Messimer would preclude recovery in this matter. 9. As such, this action against the Defendant can not be sustained as Plaintiff can not recover twice for the same costs. 2 WHEREFORE, the Complaint should be stricken by this Court in its entirety for the pendency of a prior action pursuant to Pa.R.C.P. 1028(a)(6). III.. Obiection Based on Nonioinder of a Necessarv Party Pursuant to Pa.R..C.P..I02S(a)(S) 10. Defendant includes paragraphs 1 through 9 by reference as if fully set forth herein. 11. As admitted in the Plaintiff s Complaint, the alleged services were provided for the benefit of Raymond Messimer and not the Defendant. 12. As such, Raymond Messimer is a necessary party to the matter and should be joined thereto. 13. The Complaint fails to include the admitted recipient of the services into this action. 14. Accordingly, the Complaint should be dismissed for this failure, WHEREFORE, the Complaint should be stricken by this Court in its entirety for failure to join a necessary party pursuant to Pa.R.C.P. 1028(a)(5). IV. Obiections As To Lel!al Insufficiencv of a Pleadinl! (Demurrer) Pursuant to Pa.R..C.P..I02S(a)(4).. 15. Defendant includes paragraphs I through 14 by reference as if fully set forth herein. 3 16, The Complaint is entirely without merit as it is legally insufficient. 17. The Complaint fails to state a cause of action against the Defendant. 18. The Complaint fails to indicate in what capacity the Defendant is responsible for the cost of care of Raymond Messimer. 19. The Complaint's allegations violate federal law and it is therefore, improper. 20. The Complaint is based upon one Superior Court decision, Presbvterian Medical Center v. Budd, 832 A.2d 1066 (Pa. Super., 2003), which held that under the very narrow facts of that case, there may be a cause of action against a child for support when the child squanders assets of the parent. 21. No such facts are present in this case, therefore the Budd decision is not applicable and the cause of action fails. WHEREFORE, the Complaint should be stricken by this Court in its entirety for legal insufficiency pursuant to Pa.R.C.P. 1028(a)(4). V. Obiections As To Inclusion ofImoertinent Matter Pursuant to Pa.R.C.P..I028(a)(2). 22. Defendant includes paragraphs I through 21 by reference as if fully set forth herein. 23. As attached to the Complaint as Exhibit "A", the Plaintiff includes an Agreement between itself and Raymond Messimer. 4 24. The Exhibit "A" Agreement is signed by Raymond Messimer and the Plaintiff; however, the Defendant did not sign the Agreement nor is he a party thereto. 25. As such, Exhibit "A" is impertinent in this matter and should be stricken. WHEREFORE, the Complaint should be stricken by this Court in its entirety for inclusion of impertinent matter pursuant to Pa.R.C.P. 1028(a)(2). Date: l( ~jeLf Respectfully submitted, GOL~), Z~ & SHIPMAN, P.C. /. /../,/"/ / / L/' . .. :/7- .. eil . endershot, Esq. Atty. J.D. No. 23316 John DeLorenzo, Esquire Atty. ID No. 72190 320 Market Street P,O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant 106260.1 5 CERTIFICATE OF SERVICE I, John DeLorenzo, Esquire, hereby certify that I served a copy of the foregoing "Preliminary Objections", via first-class United States Mail, postage prepaid, upon all parties and counsel of record, namely: Chadwick O. Bogar, Esq, Kennedy Bogar, LLC P.O. Box 959 Camp Hill, PA 17011-0959 GOLDBERG, KATZMAN & SHIPMAN, P.c.. Date: 1 (f/e'r( -.. , ,~;... ~:".i (,"' '. ,-~~ ['~~: 5Eb: ~:; .- -:i -< (') ~ <:;) ....... "'> = ...... fH I <.0 ~ 5! rn:n ,- ~fJ? O;J~ O:!J 7(") CSf'r1 -, :iJ -< "'0 ::r .c- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA COUNTRY MEADOWS ASSOCIATES, a Pennsylvania Organization d/b/ a COUNTRY MEADOWS OF WEST SHORE AT TRINDLE CORNERS, . Plaintiff, v. No. 03-6367 Civil Terrn JOHN E. MESSIMER, Defendant. CIVIL ACTION - LAW PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTIONS AND NOW, COMES Plaintiff, Country Meadows Associates d/b/ a Country Meadows of West Shore at Trindle Corners ("Plaintiff Country Meadows"), by and through its counsel, KENNEDY BOGAR LLC, and files this Answer to Preliminary Objections and, in support thereof, states: I. Objections As To Subject Matter Jurisdiction Pursuant to Pa.R.C.P. 1028(a)(1). 1. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. 2. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. By way of further answer, Plaintiff Country Meadows is not a nursing horne. To the contrary, Plaintiff Country Meadows is an assisted living facility, and, therefore, the sections of the United States Code cited by Defendant have no application whatsoever to assisted living facilities and this matter. 3. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. 4. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. WHEREFORE, Plaintiff Country Meadows respectfully requests that judgment be entered in its favor and against Defendant John Messimer. II. Objections As To Pendency Of A Prior Action Pursuant to Pa.R.C.P. l028(a)(b). 5. No responsive pleading is required. 6. Denied. By way of further answer, Plaintiff Country Meadows has not filed a "similar action" against Rayrnond Messirner. Plaintiff Country Meadows filed but did not serve a breach of contract "action" against Rayrnond Messimer, Defendant's father. Plaintiff did not serve Rayrnond Messimer with the "action" because he represented that the reason he was insolvent was due to Defendant's misappropriation of his assets. 7. Denied as stated. Defendant's use of the word "action" assurnes that Rayrnond Messirner was served with process. However, the fact of the rnatter is that Rayrnond Messimer was never served with process, and, therefore, the assurned action does not exist. 8. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. By way of further answer, as stated above the assurned action does not exist. 9. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. By way of further answer, as stated above the assurned action against Defendant's father does not exist. 2 WHEREFORE, Plaintiff Country Meadows respectfully requests that judgment be entered in its favor and against Defendant John Messirner. III. Objection Based on Nonjoinder of a Necessary Party Pursuant to Pa.R.c.P. 1028(a)(5). 10. No responsive pleading is required. 11. Denied. The allegations contained in this paragraph atternpt to characterize a written docurnent, which written docurnent speaks for itself. 12. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. 13. Denied. The allegations contained in this paragraph atternpt to characterize a written docurnent, which written document speaks for itself. Additionally, the allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. 14. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. WHEREFORE, Plaintiff Country Meadows respectfully requests that judgment be entered in its favor and against Defendant John Messirner. IV. Objection As To Legal Insufficiency Of A Pleading (Demurrer) Pursuant To Pa.R.C.P. 1028(a)(4). 15. No responsive pleading is required. 16. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. 17. Denied. The allegations contained in this paragraph constitute a conclusion 3 of law to which no responsive pleading is required. 18. Denied. The allegations contained in this paragraph attempt to characterize a written document which written docurnent speaks for itself. Additionally, the allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. 19. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. 20. Denied. The allegations contained in this paragraph atternpt to characterize a written document, which written docurnent speaks for itself. Additionally, the allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. 21. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. WHEREFORE, Plaintiff Country Meadows respectfully requests that judgment be entered in its favor and against Defendant John Messirner. IV. Objection As To Inclusion Of Impertinent Matter Pursuant To Pa.R.C.P. l028(a)(2). 22. No responsive pleading is required. 23. Denied. The allegations contained in this paragraph attempt to characterize a written docurnent, which written docurnent speaks for itself. 24. Denied. The allegations contained in this paragraph atternpt to characterize a written docurnent, which written docurnent speaks for itself. Additionally, the 4 , , allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. 25. Denied. The allegations contained in this paragraph constitute a conclusion of law to which no responsive pleading is required. WHEREFORE, Plaintiff Country Meadows respectfully requests that judgment be entered in its favor and against Defendant John Messirner. Respectfully submitted, KENNEDY BOGAR LLC Dated:~ {L/ dC-( By(' C.J...~.~ O. ~r Chadwick O. Bogar, Attorney J.D. No. 83755 P.O. Box 959 Carnp Hill, P A 17001-0959 717.909.5920 Attorneys for Plaintiff, Country Meadows Associates 5 " "" 0 <= ('- C'.o ." ~o.:;; ~ ;:;: 5! i CO n1iQ -om -....} :U? ~-~~(..J -,... ~ri , ="" -~- -"".I . '?r) C3 ~~f~r1 <, -....j ,,-, :':D ~< U. ~ , IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA COUNTRY MEADOWS ASSOCIATES, a Pennsylvania Organization d/b/ a COUNTRY MEADOWS OF WEST SHORE AT TRINDLE CORNERS, Plaintiff, v. No. 03-6367 Civil Term JOHN E. MESSIMER, Defendant. CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly change the Court's records to reflect our new Firm information as follows: Schutjer Bogar LLC 441 Friendship Road, Suite 102 Harrisburg, PA 17111 Respectfully subrnitted, Dated: ~ By: CC~~O,~r Chadwick O. Bogar Attorney J.D. 83755 441 Friendship Road, Suite 102 Harrisburg, PA 17111 (717) 909-5920 Fax (717) 909-5925 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Praecipe for Entry of Appearance was served via first-class, United States mail, postage prepaid, upon the following: Neil E. Hendershot, Esquire Goldberg Katzman 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Dated: O:3)/)c;)t6 By: --- " ,. ,;:- -:', .... IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA COUNTRY MEADOWS ASSOCIATES, a Pennsylvania Organization djbj a COUNTRY MEADOWS OF WEST SHORE AT TRINDLE CORNERS, Plaintiff, v. No. 03-6367 Civil Term JOHN E. MESSIMER, Defendant. CIVIL ACTION - LAW PRAECIPE TO WITHDRAW TO THE PROTHONOTARY: Kindly rnark the above-captioned action as Withdrawn, Discontinued, and Ended. Respectfully submitted, Dated: ~ By ~A;?Bs\j Attorney J.D. 83755 441 Friendship Road, Suite 102 Harrisburg, PA 17111 (717) 909-5920 Fax (717) 909-5925 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Praecipe to Withdraw was served via first-class, United States mail, postage prepaid, upon the following: Neil E. Hendershot, Esquire Goldberg Katzrnan 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 By: ~ \ t" ,II /'1AXi U Y-J , Dated: 63/,;1 ()r)' Xv Christy A. Lon ,Paralegal / 1,,____ \.. -..,' "', / '~ -