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HomeMy WebLinkAbout08-0081 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION The Estate Of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own Right, Plaintiffs V. Select Medical Corporation, 4716 Old Gettysburg Road, Mechanicsburg, Pennsylvania 17055, and the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs: State Board of Nursing and the Division : of Health Monitoring Programs and : Unit 1: Voluntary Recovery Program, 2601 N. 3' Street, Harrisburg, Pennsylvania 17110-2004 Defendants Counsel of record for Plaintiffs: Renee Knicos, Esquire Supreme Court ID # 89529 Knicos Law Office, LLC 301 S. Hanover street, Suite 1 Carlisle, PA 17013 717.249.6808 No. 000 ` g( Oto&'C_71~.Qn'1 CIVIL ACTION-LAW JURY TRIAL DEMANDED Filed on Behalf of Plaintiffs Page 1 of 2 PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a writ of summons in the above captioned case to defendants Select Medical Corporation, the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, Division of Health Monitoring Programs and the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, Division of Health Monitoring Programs, Unit 1, Voluntary Recovery Program. Thank you. Renee Knicos KNICOS LAW OFFICE, LLC Attorney for Plaintiffs January 7, 2008 Page 2 of 2 /`? M CY7 rv? V _ n TI _, Fr! COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND The Estate Of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own Right, Plaintiffs V. Select Medical Corporation, 4716 Old Gettysburg Road, Mechanicsburg, Pennsylvania 17055, and the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs: State Board of Nursing and the Division of Health Monitoring Programs and Unit 1: Voluntary Recovery Program, 2601 N. 3" Street, Harrisburg, Pennsylvania 17110-2004 Defendants No. CIVIL ACTION-LAW JURY TRIAL DEMANDED WRIT OF SUMMONS TO: The Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, Division of Health Monitoring Programs, Unit 1, Voluntary Recovery Program, located at 2601 N. 3' Street, Harrisburg, Pennsylvania 17110-2004: You are hereby notified that the Estate of Mary Arledge, Henry Arledge and Anita Arledge, have commenced an action against you. Dated: January 7, 2008 Prothonotary Y: ?utY COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND The Estate Of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own Right, Plaintiffs V. Select Medical Corporation, 4716 Old Gettysburg Road, Mechanicsburg, Pennsylvania 17055, and the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs: State Board of Nursing and the Division of Health Monitoring Programs and Unit 1: Voluntary Recovery Program, 2601 N. 3' Street, Harrisburg, Pennsylvania 17110-2004 Defendants No. g - g CIVIL ACTION-LAW JURY TRIAL DEMANDED WRIT OF SUMMONS TO: Select Medical Corporation, located at 4716 Old Gettysburg Road, Mechanicsburg, Pennsylvania 17055 in care of General Manager: You are hereby notified that the Estate of Mary Arledge, Henry Arledge and Anita Arledge, have commenced an action against you. Dated: January 7, 2008 thonotary B Deputy COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND The Estate Of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own Right, . Plaintiffs n ??1 No. dg " Sl l..t??l. V. CIVIL ACTION-LAW Select Medical Corporation, JURY TRIAL DEMANDED 4716 Old Gettysburg Road, Mechanicsburg, Pennsylvania 17055, and the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs: State Board of Nursing and the Division : of Health Monitoring Programs and : Unit 1: Voluntary Recovery Program, 2601 N. 3'd Street, Harrisburg, Pennsylvania 17110-2004 Defendants WRIT OF SUMMONS TO: Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, located at 2601 N. 3`d Street, Harrisburg, Pennsylvania 17110-2004: You are hereby notified that the Estate of Mary Arledge, Henry Arledge and Anita Arledge, have commenced an action against you. Dated: January 7, 2008 / 19, ? . Athonotary BY: Ao4 a, Deputy • w Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire Attorney I.D. No. 76434 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-3960 - direct mmoyer@tthlaw.com (717) 237-7105 - fax Attorneys for Defendant Select Medical Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE No. 08-81 CIVIL TERM Individually In Their Own Right, Plaintiffs CIVIL ACTION - LAW JURY TRIAL DEMANDED V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS and UNIT 1: VOLUNTARY RECOVERY PROGRAM, Defendants PRAECIPE AND RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Please issue a Rule directing Plaintiffs to file a Complaint against Defendant, Select Medical Corporation, within twenty (20) days or suffer judgment of non pros. Respectfully submitted, NY/arc A. MoyWEsquire Attorney N . 6434 THOMAS HOMAS Post Office Box 999 Harrisburg, PA 17108 717-441-3960 mmoyer@tthlaw.com Dated: January 23, 2008 & HAFER LLP Counsel for Defendant Select Medical Corporation M Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire Attorney I.D. No. 76434 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-3960 - direct mmoyer@tthlaw.com (717) 237-7105 - fax Attorneys for Defendant Select Medical Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS and UNIT 1: VOLUNTARY RECOVERY PROGRAM, Defendants : No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED RULE TO FILE COMPLAINT TO: Henry Arledge and Anita Arledge c/o Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 ,r-d _ AND NOW, this ors day of ovat 2008, a Rule is entered upon Plaintiffs to file a Complaint within twenty (20) days after service of this Rule by the Defendant Select Medical Corporation. /3/ '00e 4g Prothonotary CY574 CERTIFICATE OF SERVICE On this 23rd day of January 2008, I, Kristine Hendrix, a paralegal, with the law firm Thomas, Thomas & Hafer, LLP, hereby certify that I have, this day, served a true and correct copy of the PRAECIPE AND RULE TO FILE COMPLAINT upon the person(s) and at the address(es) below named via United States First Class Mail, postage prepaid, in Harrisburg, PA: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite Carlisle, PA 17013 Counsel for Plaintiff 562836.1 Stine Hendrix c"? ?. ?.-?, ..? ._ , ?:.? `?! c_ , ? T , ?, r?.? _ . c.? - __.. '; . ? , ? - W..3 '+ ., ('+? t \? `7 -..c J Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire Attorney I.D. No. 76434 P.O. Box 999 Harrisburg, PA 17108 (717) 441-3960 - direct mmoyer@tthlaw.com (717) 237-7105 - fax Attorneys for Defendant Select Medical Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS and UNIT 1: VOLUNTARY RECOVERY PROGRAM, Defendants No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Marc A. Moyer, Esquire, and Thomas, Thomas & Hafer LLP, 305 North Front Street, 6th Floor, Post Office Box 999, Harrisburg, PA 17108, on behalf of Defendant Select Medical Corporation. We are authorized to accept service of all documents in this matter. submitted, Dated: January 22, 2008 Marc A. offer, Esquire Attorne No. 76434 THO S, THOMAS & HAFER LLP Post ffice Box 999 Harrisburg, PA 17108 717-441-3960; mmoyer@tthlaw.com Counsel for Defendant Select Medical Corporation CERTIFICATE OF SERVICE On this 22°a day of January 2008, I, Kristine Hendrix, a paralegal, with the law firm Thomas, Thomas & Hafer, LLP, hereby certify that I have, this day, served a true and correct copy of the PRAECIPE FOR ENTRY OF APPEARANCE upon the person(s) and at the address(es) below named via United States First Class Mail, postage prepaid, in Harrisburg, PA: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 Counsel for Plaintiff 562579.1 ww, CD 7 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION The Estate Of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own Right, Plaintiffs ; V. Select Medical Corporation, 4716 Old Gettysburg Road, Mechanicsburg, Pennsylvania 17055, and the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs: State Board of Nursing and the Division : of Health Monitoring Programs and : Unit 1: Voluntary Recovery Program, 2601 N. 3`d Street, Harrisburg, Pennsylvania 17110-2004 Defendants No. 08-81 CIVIL, ACTION-LAW JURY TRIAL DEMANDED Filed on Behalf of Plaintiffs Counsel of record for Plaintiffs: Renee Knicos, Esquire Supreme Court ID # 89529 Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 717.249.6808 NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717.249.3166 COMPLAINT AND NOW come the Plaintiffs, by and through their attorney Renee Knicos, and hereby file the following Complaint-Civil Action, making demand against defendants, for damages Page 2 of 29 sustained upon cause of action of which the following are statements: PARTIES 1. Mary Arledge is a deceased person who at the time in question was employed by the defendant hospital as a registered nurse (R.N.). 2. Plaintiff Henry Arledge is the widower of Mary Arledge and is suing on behalf of the estate and in his own right. 3. Anita Arledge is the daughter of Mary Arledge and is suing on behalf of the estate and in her own right. 4. Defendant Select Medical Corporation (Select), with its headquarters in Mechanicsburg, Pennsylvania, owns a series of specialty hospitals serving long term, acute and medically complex care patients. At all times pertinent hereto, Select held itself out in the community as being properly equipped and staffed, and rendering quality care, acting through its departments, medical groups, staff members and other agents, servants or employees. 5. At all times relevant and material hereto, defendant Select acted or appeared to be acting through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in the furtherance business of the Defendant. 6. The Department of State, Bureau of Professional and Occupational Affairs State Board of Nursing, (BON), situated in Harrisburg, Pennsylvania, is an administrative agency of the Commonwealth of Pennsylvania charged with development and administration of all the laws pertaining to the practice and Page 3 of 29 discipline of professional registered nurses. 7. At all times relevant and material hereto, defendant Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing acted or appeared to be acting through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in the furtherance business of the Defendant, 8. Department of State, Bureau of Professional and Occupational Affairs, Division of Health Monitoring Programs, (DHMP), situated in Harrisburg, Pennsylvania, is an administrative branch charged with the oversight of the voluntary recovery program, and along with the board of nursing, develops and administers all governing laws pertaining to recovery and discipline of the professional registered nurse. 9. At all times relevant and material hereto, defendant Department of State, Bureau of Professional and Occupational Affairs, Division of Health Monitoring Programs acted or appeared to be acting through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in the furtherance business of the Defendant. 10. Department of State, Bureau of Professional and Occupational Affairs Unit 1: Voluntary Recovery Program, (VRP), situated in Harrisburg, Pennsylvania, is an administrative branch of the Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, Division of Health Monitoring Page 4 of 29 Programs, charged with administration of the laws governing impaired nurses and appropriateness of entry into the voluntary recovery program. 11. At all times relevant and material hereto, defendant Unit 1: Voluntary Recovery Program, acted or appeared to be acting through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in the furtherance business of the Defendant. JURISDICTION AND VENUE 12. Paragraphs 1 through 11 are hereby incorporated by reference. 13. The Court of Common Pleas has exclusive and original jurisdiction of all actions and proceedings pursuant to 42 Pa.C.S.A. §931(a) &(b). 14. Venue is properly laid in Cumberland County pursuant to Pa. R. Civ. P. No. 1006 (a)(1), (a. l) and ( c)(1): The events giving rise to this action began in York County, Department of State defendants are located in Dauphin County, and defendant Select is headquartered in Cumberland County. FACTS 15. Paragraphs 1 through 14 are hereby incorporated by reference. 16. On or about January 6, 2006, Mrs. Arledge reported to work at the Select facility in York County. 17. On or about January 6, 2006, Mrs. Arledge was informed by the director of nurses that there was some question that a narcotic medication may have been tampered with and that Select would like to drug test some employees. Page 5 of 29 18. At that point, Mrs Arledge agreed to the testing, but informed the employer that her test would be positive because she was taking narcotic medication for treatment of her advanced breast cancer. 19. In fact, the employer had been aware several months previously of Mrs. Arledge's illness and use of prescribed narcotics as it been documented by her primary physician, Nita Rastogi, M.D., on her FMLA application. 20. Defendant Select did not drug test all its employees with access to the narcotic in question, and did not effort contacting the temporary agency nurses who had access to the narcotic in question. 21. When Mrs. Arledge's positive results were reported to her employer, the administrator confronted her in a harsh manner. Because Mrs. Arledge was angry at the accusatory tone of the administrator, and because she believed she had been singled out and treated unfairly, she turned in her resignation, giving her employer two weeks notice. 22. After finishing her two weeks notice, Mrs. Arledge began employment with. Beverly Enterprises in Camp Hill, Pennsylvania. 23. During this employment, Mrs. Arledge received notice from the department of state that she had been reported by Select to the Board of Nursing because of their allegation that she was an impaired nurse. 24. Because Mrs. Arledge needed, and enjoyed, full time employment, she reported to the voluntary recovery program in the belief that they would realize that she was not an impaired nurse, but was in fact, a very ill nurse, and that she would be Page 6 of 29 released and cleared of all charges/allegations. 25. Despite her physicians' statements pertaining to her medication use and her advanced cancer, the voluntary recovery program failed to recognize that Mrs. Arledge was not an impaired nurse, but was in fact, a very ill nurse. 26. Sometime during the months of November and/or December 2006, Mrs. Arledge submitted herself to a psychiatric evaluation by a court appointed psychiatrist as a result of a subpoena by the defendant VRP. 27. It was only at this point that the psychiatrist recognized that Mrs. Artledge was not an impaired nurse, but in fact, a very ill nurse. 28. Sometime during the months of November and/or December 2006, Mrs. Arledge was released from the VRP according to the recommendation of the evaluating psychiatrist. 29. At this point, Mrs. Arledge's disease had progressed substantially, and she was unable to work. 30. Mrs. Arledge succumbed to her illness within three to four months after her release from the VRP and expired in April 6, 2007. COUNTI THE ESTATE v. SELECT NEGLIGENT REPORTING 31. Paragraphs 1 through 30 are hereby incorporated by reference. 32. Mrs. Arledge had a property interest in maintaining her nursing license and her Page 7 of 29 status as a professional nurse so that she could continue gainful employment. 33. Recognizing a duty to report an employee nurse whom an employer has a valid belief, after investigation, that an impairment exists, the employer also has a duty to an employee, who has a property interest in maintaining their licensure as a professional nurse, to report correctly and accurately. 34. Select breached the duty it owed to Mrs. Arledge because it did not conduct a sufficient investigation into Mrs. Arledge's health history and by neglecting to drug test all employees, permanent or temporary, who had control over and/or contact with, the narcotics. 35. Because it failed to properly and thoroughly investigate any possible narcotic diversion or tampering, and because it failed to recognize and properly and thoroughly investigate the extent of Mrs. Arledge's illness and medication use, the reporting by Select to the BON for impairment was grossly negligent because it knew, or should have known, Mrs. Arledge was not an impaired nurse, but was in fact, a gravely ill nurse. 36. The negligent reporting by Select to the BON that Mrs. Arledge was an impaired nurse was the proximate and actual cause of the resulting injuries suffered.. 37. Plaintiffs' injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants. 38. Because Select negligently reported Mrs. Arledge to the BON as an impaired nurse, and negligently interfered with her property interest in maintaining her license as a professional nurse, the Estate of Mary Arledge demands the following Page 8 of 29 r compensatory damages against Select Medical Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006, all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT II THE ESTATE v. SELECT TORTIOUS INTERFERENCE WITH AN EMPLOYMENT RELATIONSHIP 39. Paragraphs I through 38 are hereby incorporated by reference. Page 9 of 29 40. After leaving Select, Mrs. Arledge secured full time employment with Beverly Enterprises in Camp Hill, Pennsylvania. 41. Mrs. Arledge had a valuable property interest in continuing her employment with Beverly Enterprises in Camp Hill, Pennsylvania. 42. Because Select was negligent when it reported Mrs. Arledge to the BON as an impaired nurse, it improperly and unlawfully interfered with her property interest in her ongoing employment at Beverly Enterprises in Camp Hill, Pennsylvania. 43. Specifically, once Mrs. Arledge was notified of her impairment investigation, her scope of practice changed as she understood that she could no longer handle or be responsible for any controlled substances. 44. Mrs. Arledge was forced to inform her employer Beverly Enterprises of the allegations against her instigated by Select and was forced to remove herself from having any contact with narcotic and/or controlled substances negatively impacting her ability to perform her job. 45. Plaintiffs injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants. 46. Because Select interfered with her work relationship with Beverly Enterprises, the Estate of Mary Arledge demands the following compensatory damages against Select Medical Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress Page 10 of 29 until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006, all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT III THE ESTATE v. SELECT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 47. Paragraphs 1 through 46 are hereby incorporated by reference. 48. Select acted recklessly when it reported Mrs. Arledge to the BON for impairment without investigating her health status because it knew she had advanced breast cancer and used analgesics. 49. Select's conduct was outrageous in reporting Mrs. Arledge to the BON for Page I1 of 29 impairment because it knew or should have known she was not impaired but was in fact, very ill. 50. Specifically, Select, as a healthcare provider itself, knew or should have known that people who take pain medications for significant pain are not impaired; Select knew or should have known that effective pain management does not cause impairment, but paradoxically, enables the person afflicted with pain to resume activities of daily life including their employment. 51. Because Select knew Mrs. Arledge was very ill and used analgesics, because it failed to conduct a more reasonable investigation, because it failed to interview and/or drug test all nurses who had access to the controlled medications and because it failed to recognize appropriateness of pain management in working individuals, its conduct in reporting Mrs. Arledge to the BON for impairment was outrageous, extreme and reckless. 52. Further, by its conduct, Select was recklessly indifferent to Mrs. Arledge's property interest in maintaining her license to practice nursing, to her reputation, and to her ability to work in her chosen field; it should have foreseen that reporting her to the BON for impairment would cause her great harm, emotionally, physically and financially. 52. Plaintiff's injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants. 53. Because Select's conduct was extreme, outrageous and reckless, causing extreme emotional, physical and financial harm, the Estate of Mary Arledge demands the Page 12 of 29 following compensatory damages against Select Medical Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006,all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT IV THE ESTATE v. SELECT DISCRIMINATION Page 13 of 29 54. Paragraphs 1 through 53 are hereby incorporated by reference. 55. At some point in early January 2006, or late December 2005, based on an audit by their pharmacy, Select came to believe that some of their controlled drugs may have been tampered with. 56. Based on this belief, Select decided to drug test some of their employees. 57. In violation of their own policies and procedures, Select did not properly investigate any possible tampering or diversion, and failed to drug test all employees who may have had contact with the controlled substances. 58. Specifically, Select failed to investigate, and/or drug test, some of its own employees and did not investigate and/or drug test any of its temporary agency employees. 59. Once Select became aware of Mrs. Arledge's positive drug test, it ceased its investigation, even though it was aware of Mrs. Arledge's advanced cancer and her explanations for the positive results. 60. Plaintiff's injuries would not have occurred absent the negligent of otherwise tortious conduct of the defendants. 61. Because Select's selectively enforced its own policies and did not investigate/drug test all employees who had contact with the controlled substances, the Estate of Mary Arledge demands the following compensatory damages against Select Medical Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. Page 14 of 29 (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006,all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT V THE ESTATE v.13OARD OF N TRSSING NEGLIGENT PROSECUTION 62. Paragraphs 1 through 61 are hereby incorporated by reference. 63. The BON is an administrative agency charged with development, administration and enforcement of all regulations pertaining to the practice of licensed professional nurses. Page 15 of 29 64. By virtue of its legislative authority, the BON has a duty to enact laws that not only protect the public at large, but that protect its licensees; in promulgating laws governing discipline and treatment of impaired nurses, it must also enact laws which enable its licensees a fair and timely opportunity to be heard and to be cleared of wrongful allegations. 65. The BON failed to ensure appropriate safeguards are in place in the investigation of an allegation of impairment to prevent those with legitimate medical problems necessitating medication from being wrongfully placed in the program. 66. The BON failed to ensure appropriate safeguards are in place to prevent nurses who are truly not impaired, yet are taking controlled medications for treatment of a recognized medical condition from being prosecuted or diverted improperly into the voluntary recovery program. 67. Because the BON failed to ensure appropriate safeguards were in place to prevent Mrs. Arledge from being improperly placed into the impaired nurse program, and because no one in the program had the capacity to recognize that Mrs. Arledge was not impaired, but if fact, was gravely ill, she was subjected to approximately nine months of investigation in the program. 68. Plaintiffs injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiff s injuries. 69. Because the BON negligently caused Mrs. Arledge to be placed in the impaired nurse program, causing extreme emotional, physical and financial harm, the Estate Page 16 of 29 of Mary Arledge demands the following compensatory damages against BON; (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006,all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT VI THE ESTATE v. DIVISION OF HEALTH MONITORING PROGRAMS NEGLIGENT SUPERVISION 70. Paragraphs I through 69 are hereby incorporated by reference. Page 17 of 29 71. The Division of health monitoring programs (DHMP) was developed specifically to oversee the voluntary recovery program (VRP), among others. 72. The DHMP is charged with the duty to ensure that the VRP is being properly administered. 73. The DHMP has a duty to ensure that all regulations are observed and adhered to, and that all employees are well versed and trained in addictions so that they can recognize not only those who are addicted, but those who are not. 74. The DHMP breached its duty of care to Mrs. Arledge when the employees of the VRP either did not recognize that she was not impaired, but was gravely ill, and/or ignored the fact that she was not impaired but was gravely ill. 74. Because the DHMP did not properly supervise the VRP, Mrs. Arledge was forced to endure approximately nine months of investigation, practicing on a limited license, during her last months of work. 75. Plaintiff's injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiffs injuries. 76. Because the DHMP negligently supervised the VRP, causing Mrs. Arledge to remain in the impaired nurse program, resulting in extreme emotional, physical and financial harm, the Estate of Mary Arledge demands the following compensatory damages against DHMP: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. Page 18 of 29 (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006 . (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006,all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT VII THE ESTATE v. VOLUNTARY RECOVERY PROGRAM aGLIGENCE 77. Paragraphs 1 through 76 are hereby incorporated by reference. 78. After receiving notification of an allegation of impairment from the BON in or about March of 2006, Mrs. Arledge submitted herself to the VRP for evaluation in the firm belief that they would recognize that she was not impaired, but was in fact, Page 19 of 29 gravely ill. 79. Mrs. Arledge made her health status very clear to all contacts at the VRP, and vehemently denied drug diversion and/or impairment. 80. For nine months of evaluation in the VRP, not one employee recognized or gave credence to Mrs. Arledge's averments that she was not impaired, until the psychological evaluation by the state appointed psychiatrist. 81. Because of the grave nature of her health status, it should have been readily apparent to a properly trained employee that Mrs. Arledge was not impaired, and that placement in an impaired nurse program was grossly unfair and negligent. 82. The VRP owed a duty of care to Mrs. Arledge as a licensee of the Commonwealth. 83. The VRP breached its duty in its gross failure to recognize the grave nature of Mrs. Arledge's health and the fact that she was not impaired, and to ensure that she was properly and timely cleared of allegations of impairment. 84. Because the VRP was grossly negligent in a timely and proper evaluation of Mrs. Arledge, her last year of life was spent in the VRP trying to clear her name, all to her great detriment and loss. 85. Plaintiffs injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiffs injuries. 86. Because the VRP was negligent, it caused Mrs. Arledge to remain in the impaired nurse program in her last year of life, resulting in extreme emotional, physical and financial harm, the Estate of Mary Arledge demands the following compensatory Page 20 of 29 damages against VRP: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006,all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT VIII HENRY ARLEDGE v. Sei LECT NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 87. Paragraphs 1 through 86 are hereby incorporated by reference. Page 21 of 29 88. Mrs. Arledge received notification from the BON regarding the alleegation of impairment via mail. 89. Mrs. Arledge was home with her husband Henry when the notification arrived. 90. Mr. Arledge was shocked by the notification of allegation of impairment because he knew his wife was not impaired. 91. Mr. Arledge was outraged by the accusations because he knew his wife was gravely ill and not impaired, and because he witnessed directly her shock, anger, fear and confusion upon notification of the allegation. 92. Mr. Arledge suffered greatly because he observed his wife's reaction to the accusations reported by Select, and he was helpless to provide any assistance to her. 93. Select knew Mrs. Arledge was married, and knew, should have known and should have foreseen that reporting her to the BON for impairment would cause her husband to suffer greatly. 94. Plaintiff's injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiff's injuries. 95. Because Select recklessly and negligently accused and reported his wife to the BON, and interfered with his wife's property interest in her nursing license, causing Mrs. Arledge extreme emotional, physical and financial harm, Plaintiff Henry Arledge demands the following compensatory damages against Select Medical Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress and continues Page 22 of 29 to suffer. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress. (c) Plaintiff suffered economic losses because Mrs. Arledge's health deteriorated quickly from the stress and anxiety she was under, hastening her death. (d) Plaintiff suffered loss of consortium due to his wife's great stress. (e) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to his great loss and detriment, as he observed his wife's great suffering up until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT IX HENRY ARLEDGE v. BOARD OF NURSING, DIVISION OF HEALTH MONITORING PROGRAMS AND VOLUNTARY RECOVERY PROGRAM NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 96. Paragraphs 1 through 95 are hereby incorporated by reference. 97. Mr. Arledge was present throughout Mrs. Arledge's ordeal with the BON, DHMP, and VRP, and witnessed all of her anger, embarrassment, pain, suffering, stress and decline in health. 98. Because he was unable to prevent Mrs. Arledge's suffering at the hands of the defendants and had to stand by helplessly, he himself endured great anger, pain, stress, suffering and related health issues. Page 23 of 29 99. It was, or should have been, foreseeable to the defendants that her immediate family would suffer great harm as a result of the allegations leveled at her and her inability to extract herself from the impaired nurse program. 100. Plaintiff's injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiff's injuries. 101. Because of the negligence of the of the negligence of the BON, DHMP, and VRP, and the reckless indifference with his wife's property interest in her nursing license, and the interference with his wife's property interest in her nursing license, causing Mrs. Arledge extreme emotional, physical and financial harm, Plaintiff Henry Arledge demands the following compensatory damages against the BON, DHMP, and VRP: (a) Plaintiff suffered great anxiety, embarrassment and distress and continues to suffer. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress. (c) Plaintiff suffered economic losses because Mrs. Arledge's health deteriorated quickly from the stress and anxiety she was under, hastening her death. (d) Plaintiff suffered loss of consortium due to his wife's great stress. (e) Plaintiff has suffered a severe loss of ertjoyment of life and life's pleasures, all to his great loss and detriment, as he observed his wife's great suffering Page 24 of 29 up until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT X ANITA ARLEDGE v. SELECT NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 102. Paragraphs 1 through 101 are hereby incorporated by reference. 103. Miss Anita Arledge was not home at the time the notification arrived at her mothers home, but was called by her mother contemporaneously, within a few days. 104. Miss Anita was shocked by the notification of allegation of impairment because she knew her mother was not impaired. 105. Miss Anita was outraged by the accusations because she knew her mother was gravely ill and not impaired, and because she witnessed her shock, anger, fear and confusion upon notification of the allegation. 106. Miss Anita was close to her mother and she suffered greatly because she observed her mother's reaction to the accusations reported by Select, and she was helpless to provide any assistance to her. 107. Select knew Mrs. Arledge had a family, and knew, should have known and should have foreseen that reporting her to the BON for impairment would cause her daughter to suffer greatly. 108. Plaintiff's injuries would not have occurred absent the negligent or otherwise Page 25 of 29 tortious conduct of the defendants, and was the proximate and actual cause of plaintiff's injuries. 109. Because of the negligence of the Select, and the interference with her mother's property interest in her nursing license, causing Mrs. Arledge extreme emotional, physical and financial harm, Plaintiff Anita Arledge demands the following compensatory damages against the Select: (a) Plaintiff suffered great anxiety, embarrassment and distress and continues to suffer. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress. (c) Plaintiff suffered economic losses because Mrs. Arledge's health deteriorated quickly from the stress and anxiety she was under, hastening her death. (d) Plaintiff suffered loss of companionship due to her mother's great stress. (e) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment, as she observed her mother's great suffering up until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT XI ANITA ARLEDGE v. BOARD OF NURSING. DIVISION OF HEALTH MONITORING PROGRAMS AND VOLUNTARY RECOVERY PROGRAM NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS Page 26 of 29 I 10. Paragraphs 1 through 109 are hereby incorporated by reference. 111. Anita Arledge remained in very close contact throughout Mrs. Arledge's ordeal with the BON, DHMP, and VRP, and witnessed all of her anger, embarrassment, pain, suffering, stress and decline in health. 98. Because she was unable to prevent Mrs. Arledge's suffering at the hands of the defendants and had to stand by helplessly, Anita endured great anger, pain, stress, suffering and related health issues. 99. It was, or should have been, foreseeable to the defendants that her immediate family would suffer great harm as a result of the allegations leveled at her and her inability to extract herself from the impaired nurse program. 100. Plaintiff's injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiff's injuries. 109. Because of the negligence and reckless indifference with her mother's property interest in her nursing license by the BON, DHMP, and BON, causing Mrs. Arledge extreme emotional, physical and financial harm, Plaintiff Anita Arledge demands the following compensatory damages against BON, DHMP and VRP: (a) Plaintiff suffered great anxiety, embarrassment and distress and continues to suffer. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress. Page 27 of 29 (c) Plaintiff suffered economic losses because Dirs. Arledge's health deteriorated quickly from the stress and anxiety she was under, hastening her death. (d) Plaintiff suffered loss of companionship due to her mother's great stress. (e) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment, as she observed her mother's great suffering up until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. I verify that the facts set forth in this complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Page 28 of 29 Attorney for Plaintiff Supreme Court ID# 89529 Knicos Law Office, LLC 301 S. Hanover Street, Ste.l Carlisle, PA 17013 Tel: 717.249.6808 Fax:717.249.5970 Dated: February 12, 2008 Page 29 of 29 .. A so CERTIFIC%EE SERVICE AND NOW, this day o , 2008, I hereby certify that I served a true and correct copy of the foregoing document upon counsel of record by depositing a copy of same in the United States mail, return receipt certified, postage prepaid in Carlisle, Cumberland County, Pennsylvania, addressed as follows: Attorney General Tom Corbett Office of the Attorney General I& Floor Strawberry Square, Harrisburg, PA 17120 Marc A. Moyer Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17101 State Board of Nursing: P.O. Box 2649 Harrisburg, Pennsylvania 17110-2649 Professional Health Monitoring Program P.O. Box 10569 Harrisburg, PA 17105-0569 Voluntary Recovery Program: Unit 1 P.O. Box 10569 Harrisburg, PA 17105-0569 Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite I Carlisle, PA 17013 : J ; C ..-,+.} .. +? ? ?-? ?;,.) y ? _'.S _ ' j"S ??? i _ ? ? ? ? SHERIFF'S RETURN - REGULAR CASE NO: 2008-00081 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ARLEDGE MARY A ESTATE OF VS SELECT MEDICAL CORP ET AL STEPHEN BENDER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS SELECT MEDICAL CORPORATION was served upon the DEFENDANT , at 1445:00 HOURS, on the 16th day of January 2008 at 4720 OLD GETTYSBURG ROAD SUITE 402 MECHANICSBURG, PA 17055 by handing to MICHAEL TARVIN, MANAGER, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 11.52 Affidavit .00 Surcharge 10.00 . .2ID,I,OT 00 ?.? 39.52 Sworn and Subscibed to before me this day So Answers: R. Thomas Kline 01/31/2008 KNICOS LAW OFFICE By: Z?_- epu Sheriff of A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-00081 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ARLEDGE MARY A ESTATE OF VS SELECT MEDICAL CORP 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: PA COM DEPT OF STATE BUREAU OF PROFFES & OCCUPATIONAL AFFAIRS but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within WRIT OF SUMMONS n January 31st , 2008 , this office was in receipt of t attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dep Dauphin County Postage So answer `? 6.00 r 9.00 10.00 R. Thomas Kline 47.25 Sheriff of Cumberland County '7 ') 73.97 ?" .Zlo?/0? ?. 01/31/2008 KNICOS LAW OFFICE Sworn and subscribe to before me this day of A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-00081 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ARLEDGE MARY A ESTATE OF VS SELECT MEDICAL CORP 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: PA COM OF DEPT OF STATE BUREAU PROFESSL & OCCUPATIONAL AFFAIR but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within WRIT OF SUMMONS On January 31st , 2008 this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So answe f? Docketing 6.00 -' Out of County .00 Surcharge 10.00 R. homas Kli .00 Sheriff of Cu rland County .00 16.00 ? 10.7 01/31/2008 KNICOS LAW OFFICE Sworn and subscribe to before me this day of , A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-00081 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ARLEDGE MARY A ESTATE OF VS SELECT MEDICAL CORP 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: PA COM DEPT OF STATE BUREAU OF PROFESS & OCCUPATIONAL AFFAIRS . but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within WRIT OF SUMMONS On January 31st , 2008 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So answe Docketing 6.00 J r- Out of County .00 Surcharge 10.00 R. Thomas .00 Sheriff of Cumberland County .00 16.00 ? w?67?a? 01/31/2008 KNICOS LAW OFFICE Sworn and subscribe to before me this day of A. D. r In-The Court of Common Pleas of Cumberland County, Pennsylvania Estate of Mary A. Arledge vs. Select Medical Corporation SERVE: The Corrmonwealth of Pennsylvania No. 08-81 civil Department of State, Bureau of Professional and Occupational Affairs State Board of Nursing Now, January' 11, 2008 , L SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a 20 , at o'clock M. served the and made known to So answers, the contents thereof. Sheriff of copy of the original Sworn and subscribed before me this day of , 20 AFFIDAVIT,County, PA (Difixt of tht'sireiriff Mary Jane Snder Real Estate Depu William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin THE ESTATE OF MARY A ARLEDGE VS STATE BOARD OF NURSING Sheriffs Return No. 2008-T-0109 OTHER COUNTY NO. 08-81 CIVIL And now: JANUARY 24, 2008 at 11:55:00 AM served the within WRIT OF SUMMONS upon STATE BOARD OF NURSING by personally handing to ANN STEFFANIC 1 true attested copy of the original WRIT OF SUMMONS and making known to him/her the contents thereof at 2601 N 3RD ST HARRISBURG PA 17110 ADMIN. ASST. Sworn and subscribed to before me this 29TH day of January, 2008 117? - NOTARIAL. SEAL MARY JANE SNYDER, Notary Publi Highspire, Dauphin Country M Commisaon Expires Sept 1 2010 So Answers, ? kllel?e-? - Sheriff of-Bra By l.. Deputy Sheriff Deputy: T QUIGLEY Sheriffs Costs: $47.25 1/18/2008 In-The Court of Common Pleas of Cumberland County, Pennsylvania Estate of Mary A. Arledge vs. Select Medical Corporation SERVE: The Commonwealth of Pennsylvania No. 08-81 civil Department of State, Bureau of Professional and Occupational Affairs Division of Health Monitoring Programs Now, January 11, 2008 ,1, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, , 20 , at o'clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. County to execute this Writ, this So answers, Sworn and subscribed before me this day of , 20 Sheriff of COSTS SERVICE _ MILEAGE _ AFFIDAVIT County, PA ClAtfitt Elf the ?Ijc'rfff Mary Jane Snyder R al Estate Depu William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin THE ESTATE OF MARY A ARLEDGE VS STATE BOARD OF NURSING Sheriff s Return No. 2008-T-0109 OTHER COUNTY NO. 08-81 CIVIL And now: JANUARY 24, 2008 at 11:55:00 AM served the within WRIT OF SUMMONS upon DIVISION OF HEALTH MONITORING PROGRAM by personally handing to ANN STEFFANIC 1 true attested copy of the original WRIT OF SUMMONS and making known to him/her the contents thereof at 2601 N 3RD ST HARRISBURG PA 17110 ADMIN. ASST. Sworn and subscribed to before me this 29TH day of January, 2008 Ao??? NOTARIAL SEAL ARY :ANE SNYDER, Notary Publi Highspire, Dauphin County [my Commission Expires Set 1 2010 So Answers, Sheriff of Dp CountX, P?a. ,mot B ?;4LJ Deputy Sheriff Deputy: T QUIGLEY Sheriffs Costs: $47.25 1/18/2008 ' In The Court of Common Pleas of Cumberland County, Pennsylvania Estate of Mary A. Arledge Vs. Select Medical Corporation SERVE: The Commonwealth of Pennsylvania No. 08-81 civil Department of State, Bureau of Professional and Occupational Affairs Division of Health Monitoring Programs, Unit 1, Voluntary Recovery Program Now, January. 11, 2008 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a and made known to _ copy of the original the contents thereof. So answers, Sheriff of Sworn and subscribed before me this day of , 20 COSTS SERVICE _ MILEAGE _ AFFIDAVIT County, PA 20 , at o'clock M. served the $ (pilitt, of 14C ?$hc'qf Mai ?7 Jane Snyder Real Estate Depu • Charles E. Sheaffer Chief Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Michael W. Rinehart Assistant Chief Deputy Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin THE ESTATE OF MARY A ARLEDGE VS STATE BOARD OF NURSING Sheriffs Return No. 2008-T-0109 OTHER COUNTY NO. 08-81 CIVIL And now: JANUARY 24, 2008 at 11:55:00 AM served the within WRIT OF SUMMONS upon UNIT 1 VOLUNTARY RECOVERY PROGRAM COMM OF PA DEPT OF STATE BUR OF PROFESSION & OCC by personally handing to ANN STEFFANIC 1 true attested copy of the original WRIT OF SUMMONS and making known to him/her the contents thereof at 2601 N 3RD ST HARRISBURG PA 17110 ADMIN. ASST. Sworn and subscribed to So Answers, ? i?? before me this 29TH day of January, 2008 Ai?' NOT ARIAL SEAL ARY JANE SNYDER, Notary Publi Highspire, Dauphin County M Commission E ires Sept 1 2010 Sheriff of?au County, Pa. By •/,' Q,,,?a Deputy Sheriff Deputy: T QUIGLEY Sheriffs Costs: $47.25 1/18/2008 .A Jay W. Stark, Chief Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial 717-783-3148 j stark@attorneygeneral . gov THE ESTATE OF MARY A. ARLEDGE, IN THE COURT OF COMMON PLEAS BY EXECUTORS HENRY ARLEDGE, OF CUMBERLAND COUNTY, PA HUSBAND, AND ANITA ARLEDGE, DAUGHTER, AND HENRY ARLEDGE AND ANITA ARLEDGE INDIVIDUALLY IN THEIR OWN RIGHT, Plaintiffs V. No. 08-81 CIVIL TERM JURY TRIAL DEMANDED SELECT MEDICAL CORPORATION, THE COMMONWEATLH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS, AND UNIT 1: VOLUNTARY RECOVERY PROGRAM Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendants, The Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, The Division of Health Monitoring Programs, and Unit 1 Voluntary Recovery Program in regard to the above case. A W. ARK,-Chief Deputy Attorney General > rem ourt No. 51786 Dated: February 22, 2008 it CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 (717) 249-6808 (Counsel for Plaintiffs) Marc A. Moyer, Esquire Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (Counsel for Select Medical Corporation) ii Dep* Attorney General Supreme Court No. 51786 DATED: February 22, 2008 ?• ?? ? r . ?_ ? =? _` ; ?; - ? ??_ ? ... ?' x ?. ??? -R ^ . t`t " .+ w+ "' Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire Attorney I.D. No. 76434 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-3960 - direct mmoyer@tthlaw.com (717) 237-7105 - fax Attorneys for Defendant Select Medical Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS and UNIT 1: VOLUNTARY RECOVERY PROGRAM, Defendants No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT SELECT MEDICAL CORPORATION TO PLAINTIFFS' COMPLAINT AND NOW, comes Defendant Select Medical Corporation ("Select Medical"), by and through its counsel, Thomas, Thomas & Hafer, LLP, and files Preliminary Objections to Plaintiffs' Complaint and, in support thereof, avers as follows: 1. BACKGROUND AND PROCEDURAL HISTORY 1. This action arises out of a positive drug screen obtained from Plaintiffs' Decedent, Mary A. Arledge (hereinafter "Decedent/Ms. Arledge") during the period of her employment as a registered nurse with Select Specialty Hospital - Central Pennsylvania - York in January 2006. 2. This action was initiated by the Decedent's husband, Henry Arledge, and Decedent's daughter, Anita Arledge, on behalf of the Decedent's Estate, and individually, in their own right, by the filing of a Writ of Summons on January 7, 2008. 3. On January 23, 2008, Defendant Select Medical served Plaintiffs with a Rule to File a Complaint. 4. Plaintiffs, thereafter, filed a Complaint against Select Medical, the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs: State Board of Nursing, and the Division of Health Monitoring Programs, Voluntary Recovery Unit, on February 12, 2008. Exhibit "A". 5. Plaintiffs' Complaint against Select Medical alleges, inter alia, that Select Medical obtained a drug screen from Ms. Arledge after it suspected narcotics tampering at Select Specialty Hospital - Central Pennsylvania - York, and that it negligently reported Ms. Arledge's January 2006, positive drug screen results to the Pennsylvania State Board of Nursing. See Complaint, ¶¶17, 23, 32-38. 6. Plaintiffs contend that Ms. Arledge experienced personal injuries and emotional distress as a result of Select Medical's reporting of the positive drug screen to the State Board of Nursing, and that the reporting constituted tortious interference with a subsequent employer. See Complaint, Counts I, II, III. Plaintiffs' Complaint further asserts a claim against Select Medical for an unspecified type of "discrimination" based upon Select Medical's reporting of Ms. Arledge's positive drug screen results to the Pennsylvania State Board of Nursing. See Complaint, Count IV. 571828-1 2 7. Plaintiffs' Complaint additionally asserts claims for negligent infliction of emotional distress against Select Medical on behalf of Henry Arledge and Anita Arledge, in their own right. See Complaint, Counts VIII, X. 8. For the reasons set forth herein, Select Medical is filing Preliminary Objections to Plaintiffs' Complaint based upon the Estate's lack of capacity to sue, and failure to state a legally viable claim for "discrimination". Select Medical additionally files Preliminary Objections to Plaintiffs' Complaint based upon Plaintiffs' failure to state legally cognizable claims for the negligent infliction of emotional distress brought on behalf of Henry Arledge and Anita Arledge, in their own right, and failure to sufficiently to apprise Select Medical of the particular facts giving rise to Plaintiffs' claims so as to enable Select Medical to properly respond or prepare its defense. 1. DEMURRER - LACK OF CAPACITY TO SUE 9. Preliminary objections may be asserted based upon a plaintiff s legal incapacity to assert a cause of action. Pa. R. Civ. P. 1028(a)(5). 10. In this case, Plaintiffs have filed a Complaint against Select Medical asserting four separate causes of action on behalf of the Estate of Mary A. Arledge. See Complaint, Counts I, II, III, IV. 11. Although not expressly stated, each of the foregoing Counts constitute claims brought pursuant to Pennsylvania's Survival Act, 42 Pa. C.S.A. §8302, et seq. 12. As a matter of law, a survival action may only be brought by the personal representative of a decedent's estate. Prince v. Adams, 229 Pa. Super. 150, 154, 324 A.2d 358, 360 (1974). 571828-1 3 13. Despite this requirement, and upon information and belief, no letters of administration have been issued in Cumberland, York or Dauphin Counties appointing Plaintiffs representatives of Ms. Arledge's Estate. 14. Because Plaintiffs have not been identified as personal representatives of the Decedent's Estate for the purpose of bringing this action, Plaintiffs currently lack the capacity to pursue their present claims against Select Medical as a matter of law. Prevish v. Northwest Medical Ctr., 692 A.2d 192, 201 (Pa. Super. 1997); Marzella v. King, 256 Pa. Super. 179, 181, 389 A.2d 659, 661 (1978); Thompson v. Peck, 320 Pa. 27, 30, 181 A. 597, 598 (1935). WHEREFORE, for the foregoing reasons, Defendant Select Medical Corporation respectfully requests that this Court sustain its Preliminary Objections and strike Counts I, II, III and IV from Plaintiffs' Complaint for being improperly brought on behalf of the Estate of Mary A. Arledge. III. DEMURRER - LEGAL INSUFFICIENCY OF A PLEADING/MOTION TO STRIKE IMPERTINENT MATTER 15. Pa. R. Civ. P. 1028(a)(2) permits the filing of Preliminary Objections based upon the "inclusion of... impertinent matter ..." 16. Through Count IV of their Complaint, Plaintiffs assert a claim for "discrimination" based upon Select Medical's purported failure to sufficiently investigate the reasons for Ms. Arledge's positive drug screen. See Complaint, 1154-61. 17. Plaintiffs' Complaint, on its face, fails to articulate any facts capable of supporting the contention that Select Medical's actions somehow constituted "discrimination". Nor does Plaintiffs' Complaint identify the particular type of "discrimination" forming the basis for Count IV of the Complaint. s71828-1 4 18. On the contrary, the facts alleged in Count IV of Plaintiffs' Complaint for "discrimination" are identical to the conduct subsumed in Count I of Plaintiffs' Complaint forming the basis for Plaintiffs' claim for negligence. See Complaint ¶J 32-38. 19. Moreover, Plaintiff's claim for "discrimination" is not based upon Select Medical inaccurately reporting that Ms. Arledge's drug screen was positive but, instead, merely insinuates that Ms. Arledge had a valid excuse for testing positive on the drug screen. To that end, the Complaint is completely silent on how such reporting constitutes "discrimination" under Pennsylvania law. 20. Because Count IV of Plaintiffs' Complaint is based upon the very conduct forming the basis for Plaintiffs' claim of negligence set forth in Count I of the Complaint, because Count IV of the Complaint fails to identify the particular type of "discrimination" forming the basis for a Plaintiffs' claim, and because Count IV of the Complaint fails to aver any facts capable of supporting a claim for "discrimination", Count IV should be stricken for failing to state a legally viable claim, and for being duplicative, redundant and, therefore, impertinent to Plaintiffs' Complaint. WHEREFORE, for the foregoing reasons, Defendant Select Medical Corporation respectfully requests that this Court sustain its Preliminary Objections and strike Count IV from Plaintiffs' Complaint with prejudice. IV. DEMURRER - LEGAL INSUFFICIENCY OF THE PLEADINGS 21. Through Count VIII of the Complaint, Plaintiff Henry Arledge asserts a claim, in his own right, for negligent infliction of emotional distress 22. Because Plaintiff's claim purportedly arises out of tortious conduct allegedly committed against his wife, Ms. Arledge, and does not assert negligent conduct directly against 571828-1 5 himself, Plaintiff's claim can only exist, if at all, pursuant to the "bystander" rule enunciated by Sinn v. Burd, 486 Pa. 146, 168, 404 A.2d 672, 683 (1979), and its progeny. 23. It is well settled under Pennsylvania law that to state a valid claim for negligent infliction of emotional distress, there must be a physical manifestation by the injured party of the alleged emotional distress. Rolla v. Westmoreland Mental Health Or., 438 Pa. Super. 33, 38, 651 A.2d 160, 163 (1994); Strain v. Ferroni, 405 Pa. Super. 349, 358, 592 A.2d 698, 703 (1991). 24. Absent allegations of bodily impairment or injury arising out of the alleged distress, a Plaintiff has not stated a viable claim for negligent infliction of emotional distress as a matter of law. Id. 25. In addition to requiring the existence of a physical manifestation of his alleged emotional distress, Plaintiff is further required to plead the existence of the following facts in order to set forth a prima facie claim for negligent infliction of emotional distress under the "bystander" rule: 1) that he was located at or near the scene of the tortious conduct (i.e., Select Medical's report to the Pennsylvania State Board of Nursing); 2) that he experienced shock and direct emotional impact from a contemporaneous observance of the tortious conduct, as contrasted with learning of the conduct from other source after its occurrence; and 3) that he was closely related to the decedent. Sinn v. Burd, 404 A.2d 672 (Pa. 1979); Tackett v. Encke, 353 Pa. Super. 349, 351, 509 A.2d 1310, 1312 (1986); Taylor v. Albert Einstein Med. Ctr., 562 Pa. 176, 183, 754 A.2d 650, 653 (2000). 571828-1 6 26. Despite the foregoing requirements, Count VIII of Plaintiffs' Complaint fails to aver the existence of a physical manifestation of any emotional injuries allegedly experienced by Henry Arledge. 27. Moreover, Count VIII of Plaintiffs' Complaint expressly states that Henry Arledge did not personally observe Select Medical's reporting of Mary Arledge's positive drug screen to the State Board of Nursing upon which his claim is based. Instead, the Complaint states on its face that he was merely present when Ms. Arledge received notification from the Pennsylvania State Board of Nursing that Select Medical had informed it of her positive drug screen. See Complaint ¶¶ 88-90. 28. Because of Plaintiffs' failure to aver any facts that would permit recovery for the negligent infliction of emotional distress by Plaintiff Henry Arledge, Count VIII should be stricken from Plaintiffs' Complaint. WHEREFORE, for the foregoing reasons, Defendant Select Medical Corporation respectfully requests that this Court sustain its Preliminary Objections, and strike Count VIII from Plaintiffs' Complaint. V. DEMURRER - LEGAL INSUFFICIENCY OF A PLEADING 29. Through Count X of the Complaint, Plaintiff Anita Arledge asserts a claim, in her own right, for negligent infliction of emotional distress against Select Medical. 30. Because Plaintiffs' claims are based upon tortious conduct allegedly committed against her mother, and does not aver any negligence against herself, Plaintiff's claim can only exist, if at all, pursuant to the "bystander" rule enunciated by Sinn v. Burd, 404 A.2d 672, 683 (Pa. 1979) and its progeny. 571828-1 7 31. It is well settled under Pennsylvania law that to state a valid claim for the negligent infliction of emotional distress, there must be a physical manifestation by the injured party of the alleged emotional distress. Rolla v. Westmoreland Mental Health Or., 438 Pa. Super. 33, 38, 651 A.2d 160, 163 (1994); Strain v. Ferroni, 405 Pa. Super. 349, 358, 592 A.2d 698, 703 (1991). 32. In addition to requiring the existence of a physical manifestation of her alleged emotional distress, Plaintiff is further required to plead the existence of the following facts so as to make out prima facia claim for negligent infliction of emotional distress under the "bystander" rule: 1) that she was located at or near the scene of the tortious conduct (i.e., Select Medical's report to the Pennsylvania State Board of Nursing); 2) that she experienced shock and direct emotional impact from the contemporaneous observance of the tortious conduct, as contrasted with learning of the conduct from another source after its occurrence; and 3) that she was closely related to the decedent. Sinn v. Burd, 404 A.2d 672 (Pa. 1979); Tackett v. Encke, 353 Pa. Super. 349, 351, 509 A.2d 1310, 1312 (1986); Taylor v. Albert Einstein Med. Or., 562 Pa. 176, 183, 754 A.2d 650, 653 (2000). 33. Despite these requirements, Count X of Plaintiffs' Complaint fails to aver the existence of any physical manifestation of any emotional injuries allegedly experienced by Anita Arledge. 34. Moreover, Plaintiffs' Complaint expressly states that Anita Arledge did not contemporaneously observe Select Medical's reporting of her mother's positive drug screen to 571828-1 8 the Pennsylvania State Board of Nursing upon which her claim is based. Nor was Plaintiff present with her mother at the time she received notification of the report from the State Board of Nursing. Instead, Plaintiffs' Complaint avers that Anita Arledge was first notified of the report from her mother, several days following her mother's receipt of notice from the State Board of Nursing. See Complaint ¶ 103. 35. Because of Plaintiffs' failure to aver facts that would permit recovery for the negligent infliction of emotional distress, Count X should be stricken from Plaintiffs' Complaint. WHEREFORE, for the foregoing reasons, Defendant Select Medical Corporation respectfully requests that this Court sustain its Preliminary Objection and strike Count X from Plaintiffs' Complaint. VI. INSUFFICIENT SPECIFICITY OF PLEADINGS 36. Pa. R. Civ. P. 1028(a)(3) provides that a party may preliminarily object to "insufficient specificity in a pleading." 37. In this case, each of Plaintiffs' claims against Select Medical are predicated upon Select Medical's reporting of Ms. Arledge's positive drug screen to the Pennsylvania State Board of Nursing pursuant to a suspicion of narcotics tampering. See Complaint ¶ 17. 38. To that end, Plaintiffs' Complaint attempts to impute liability against Select Medical based upon its alleged failure to test other employees who had access to the same "narcotic in question". See Complaint ¶¶ 20, 34, 51, 55, 56. 39. Despite Plaintiffs' allegations, Plaintiffs' Complaint conspicuously fails to identify the particular narcotic suspected of tampering, to which the other Select Medical employees allegedly had access. 571828-1 9 40. Plaintiffs' claims are similarly based upon allegations that Select Medical improperly reported Ms. Arledge to the State Board of Nursing in light of its purported knowledge of Ms. Arledge's use of narcotics prior to the drug screen, which they insinuate, were validly prescribed. See Complaint ¶¶ 18, 19, 25, 35, 51, 59. 41. Once again, however, Plaintiffs' Complaint fails to identify the particular narcotic(s) Ms. Arledge was purportedly prescribed prior to her positive drug screen in January, 2006. 42. To comport with the Pennsylvania Rules of Civil Procedure and Pennsylvania law, a complaint must sufficiently define issues and give notice to a defendant of what the plaintiff intends to prove at trial so that the defendant may, in turn, prepare a defense by meeting such proof with his own evidence. See Estate of Swift v. Northeastern Hosp. of Phila., 456 Pa. Super. 330, 690 A.2d 719 (1997) (noting that the Complaint must summarize the essential facts to support the claim); Sevin v. Kelshaw, 417 Pa. Super. 1, 611 A.2d 1232 (1992) (noting that Pennsylvania is a fact pleading jurisdiction and that thus the complaint must summarize those facts essential to support a claim); Laursen v. Gen. Hosp. of Monroe County, 259 Pa. Super. 150, 160, 393 A.2d 761, 766 (1978), rev'd on other grounds, 494 Pa. 238, 431 A.2d 237 (1981); Baker v. Rangos, 229 Pa. Super. 333, 350, 324 A.2d 498, 506 (1974). 43. As properly recognized by Pennsylvania law, pleadings serve the function of defining issues and giving notice to the opposing party of the issues they plan to prove at trial, so the opposition may, in turn, prepare to meet such proof with its own defense. Cicero v. Cominski, 25 D.&C.4'h 422 (C.P. Luzerne 1995) (quoting Laursen v. Gen. Hosp. of Monroe County, 393 A.2d 761 (Pa. Super. 1978)). 571828-1 10 44. To the extent Plaintiffs' claims are based upon the alleged negligent reporting of Ms. Arledge's positive narcotic drug screen, and to the extent Plaintiffs' claims are also based upon Select Medical's purported knowledge of prescribed narcotics and analgesics taken by Ms. Arledge in the months preceding her drug screen, Plaintiffs should be compelled to identify the particular narcotic for which Ms. Arledge tested positive, and similarly identify the prescribed narcotic(s) for which Select Medical was allegedly aware prior to the drug screen if it is to have any meaningful opportunity to accurately answer Plaintiffs' Complaint and prepare for its defense. WHEREFORE, for the foregoing reasons, Defendant Select Medical Corporation respectfully requests that this Court sustain its Preliminary Objections and require Plaintiffs to amend their Complaint so as to specifically identify the narcotics and/or analgesics referred to in Paragraphs 17, 18, 19, 20, 25, 34, 35, 51, 55, 56 and 59 of their Complaint. VII. FAILURE TO COMPLY WITH RULE OF COURT 45. Paragraph 19 of Plaintiffs' Complaint attempts to fault Selective Medical for its alleged failure to recognize that Ms. Arledge's FMLA application identified her as having been legitimately prescribed the narcotic for which she tested positive on her drug screen. 46. In that regard, Pa. R. Civ. P. 1019(i) required Plaintiffs to attach to their Complaint the FMLA Application to which they refer and upon which they base their contention that Select Medical acted negligently when it reported Ms. Arledge to the Pennsylvania State Board of Nursing. 47. Despite this requirement, Plaintiffs have failed to attach the FMLA application to the Complaint, thereby, precluding Select Medical from identifying the particular document to 571828-1 11 which Plaintiffs refer so as to enable it to correctly answer Plaintiffs' Complaint or prepare a defense. 48. Pa. R. Civ. P. 1024 also requires Plaintiffs to attach a verification to their Complaint signed by one or more of the Plaintiffs or, alternatively, attach a verification signed by a person having sufficient knowledge or information and belief setting forth the source of the person's information, and the reason why the verification was not made by a party. 49. In this case, Plaintiffs' Complaint, in addition to omitting critical information as described above, contains only an attorney verification without identifying the source of counsel's knowledge for the factual averments set forth in the Complaint, or an explanation for why Plaintiffs' verification has not been attached. WHEREFORE, for the foregoing reasons, Defendant Select Medical Corporation respectfully requests that this Court sustain its Preliminary Objections and require Plaintiffs to amend their Complaint by attaching the FMLA application to which they refer in Paragraph 19 of their Complaint, and by attaching a verification to the Complaint properly verified by the Plaintiffs. Respectfully submitted, Y/;6, Dated: March 3, 2008 Attorney No/,Z6434 Post Office Box 999 Harrisburg, PA 17108 717-441-3960 mmoyer@tthlaw.com & HAFER LLP Counsel for Defendant Select Medical Corporation 571828-1 12 M"j'd °oos ®431?A?3H S3183300006 ci' - COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . CIVIL DIVISION The Estate Of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own Right, Plaintiffs V. Select Medical Corporation, 4716 Old Gettysburg Road, Mechanicsburg, Pennsylvania 17055, and the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational. Affairs: State Board of Nursing and the Division of Health Monitoring Programs and Unit 1: Voluntary Recovery Program, 2601 N. 3r' Street, Harrisburg, Pennsylvania . 17110-2004 Defendants No. 08-81 CIVIL ACTION-LAW JURY TRIAL DEMANDED Filed on Behalf of Plaintiffs Counsel of record for Plaintiffs: Renee Knicos, Esquire Supreme Court ID # 89529 Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 717.249.6808 NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff You may lose money or property or other rights important to you.. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717,249.3166 COMPLAINT AND NOW come the Plaintiffs, by and through their attorney Renee Knicos, and hereby file the following Complaint-Civil Action, making demand against defendants, for damages Page 2 of 29 sustained upon cause of action of which the following are statements: PARTIES 1. Mary Arledge is a deceased person who at the time in question was employed by the defendant hospital as a registered nurse (R.N.). 2. Plaintiff Henry Arledge is the widower of Mary Arledge and is suing on behalf of the estate and in his own right. 3. Anita Arledge is the daughter of Mary Arledge and is suing on behalf of the estate and in her own right. 4. Defendant Select Medical Corporation (Select), with its headquarters in Mechanicsburg, Pennsylvania, owns a series of specialty hospitals serving long term, acute and medically complex care patients. At all times pertinent hereto, Select held itself out in the community as being properly equipped and staffed, and rendering quality care, acting through its departments, medical groups, staff members and other agents, servants or employees. 5. At all times relevant and material hereto, defendant Select acted or appeared to be acting through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in the furtherance business of the Defendant. 6. The Department of State, Bureau of Professional and Occupational Affairs State Board of Nursing, (BON), situated in Harrisburg, Pennsylvania, is an administrative agency of the Commonwealth of Pennsylvania charged with development and administration of all the laws pertaining to the practice and. Page 3 of 29 . discipline of professional registered nurses. 7. At all times relevant and material hereto, defendant Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing acted or appeared to be acting through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in the furtherance business of the Defendant. 8. Department of State, Bureau of Professional and Occupational Affairs, Division of Health Monitoring Programs, (DHMP), situated in Harrisburg, Pennsylvania, is an administrative branch charged with the oversight of the voluntary recovery program, and along with the board of nursing, develops and administers all governing laws pertaining to recovery and discipline of the professional registered nurse. 9. At all times relevant and material hereto, defendant Department of State, Bureau of Professional and Occupational Affairs, Division of Health Monitoring Programs acted or appeared to be acting through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in the further nce business of the Defendant. 10. Department of State, Bureau of Professional and Occupational Affairs Unit 1: Voluntary Recovery Program, (VRP), situated in Harrisburg, Pennsylvania, is an administrative branch of the Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, Division of Health Monitoring Page 4 of 29 Programs, charged with administration of the laws governing impaired nurses and appropriateness of entry into the voluntary recovery program. 11. At all times relevant and material hereto, defendant Unit 1: Voluntary Recovery Program, acted or appeared to be acting through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in the furtherance business of the Defendant. .JURISDICTION AND VENUE 12. Paragraphs 1 through 1 I are hereby incorporated by reference. 13. The Court of Common Pleas has exclusive and original jurisdiction of all actions and proceedings pursuant to 42 Pa.C.S.A. §931(a) &(b). 14. Venue is properly laid in Cumberland County pursuant to Pa. R. Civ. P. No*. 1006 (a)(1), (a.1) and ( cxl): The events giving rise to this action began in York County, Department of State defendants are located in Dauphin County, and defendant Select is headquartered in Cumberland County. FACTS 15. Paragraphs 1 through 14 are hereby incorporated by reference. 16. On or about January 6, 2006, Mrs. Arledge reported to work at the Select facility in York County. 17. On or about January 6, 2006, Mrs. Arledge was informed by the director of nurses that there was some question that a narcotic medication may have been tampered with and that Select would like to drug test some employees. Page 5 of 29 18. At that point, Mrs Arledge agreed to the testing, but informed the employer that her test would be positive because she was taking narcotic medication for treatment of her advanced breast cancer. 19. In fact, the employer had been aware several months previously of Mrs. Arledge's illness and use of prescribed narcotics as it been documented by her primary physician, Nita Rastogi, M.D., on her FMLA application. 20. Defendant Select did not drug test all its employees with access to the narcotic in question, and did not effort contacting the temporary agency nurses who had access to the narcotic in question. 21. When Mrs. Arledge's positive results were reported to her employer, the administrator confronted her in a harsh manner. Because Mrs. Arledge was angry at the accusatory tone of the administrator, and because she believed she had been singled out and treated unfairly, she turned in her resignation, giving her employer two weeks notice. 22. After finishing her two weeps notice, Mrs. Arledge began employment with. Beverly Enterprises in Camp Hill, Pennsylvania. 23. During this employment, Mrs. Arledge received notice from the department of state that she had been reported by Select to the Board of Nursing because of their allegation that she was an impaired nurse. 24. Because Mrs. Arledge needed, and enjoyed, full time employment, she reported to the voluntary recovery program in the belief that they would realize that she was not an impaired nurse, but was in fact, a very ill nurse, and that she would be Page 6 of 29 released and cleared of all charges/allegations. 25. Despite her physicians' statements pertaining to her medication use and her advanced cancer, the voluntary recovery program failed to recognize that Mrs. Arledge was not an impaired nurse, but was in fact, a very ill nurse. 26. Sometime during the months of November and/or December 2006, Mrs. Arledge submitted herself to a psychiatric evaluation by a court appointed psychiatrist as a result of a subpoena by the defendant VRP. 27. It was only at this point that the psychiatrist recognized that Mrs. Artledge was not an impaired nurse, but in fact, a very ill nurse. 28. Sometime during the months of November and/or December 2006, Mrs. Arledge was released from the VRP according to the recommendation of the evaluating psychiatrist. 29. At this point, Mrs. Arledge's disease had progressed substantially, and she was unable to work. 30. Mrs. Arledge succumbed to her illness within three to four months after her release from the VRP and expired in April 6, 2007. COUNTI THE ESTATE v. SELECT NEGLIGENT REPORTING 31. Paragraphs .1 through 30 are hereby incorporated by reference. 32. Mrs. Arledge had a property interest in maintaining her nursing license and her Page 7 of 29 status as a professional nurse so that she could continue gainful employment 33. Recognizing a duty to report an employee nurse whom an employer has a valid belief, after investigation, that an impairment exists, the employer also has a duty to an employee, who has a property interest in maintaining their licensure as a professional nurse, to report correctly and accurately. 34. Select breached the duty it owed to Mrs. Arledge because it did not conduct a sufficient investigation into Mrs. Arledge's health history and by neglecting to drug test all employees, permanent or temporary, who had control over and/or contact with, the narcotics. 35. Because it failed to properly and thoroughly investigate any possible narcotic diversion or tampering, and because it failed to recognize and properly and thoroughly investigate the extent of Mrs. Arledge's illness and medication use, the reporting by Select to the BON for impairment was grossly negligent because it knew, or should have known, Mrs. Arledge was not an impaired nurse, but was in fact, a gravely ill nurse. 36. The negligent reporting by Select to the BON that Mrs. Arledge was an impaired nurse was the proximate and actual cause of the resulting injuries suffered.. 37. Plaintiffs' injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants. 38. Because Select negligently reported Mrs. Arledge to the BON as an impaired nurse, and negligently interfered with her property interest in maintaining her license as a professional nurse, the Estate of Mary Arledge demands the following Page 8 of 29 compensatory damages against Select Medical• Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively, impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of I employment. I (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006, all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT H THE ESTA'E v. SELECT TORTIOUS INTERFERENCE WITH AN EMPLOYMENT RELATIONSHIP 39. Paragraphs 1 through 38 are hereby incorporated by reference. Page 9 of 29 40. After leaving Select, Mrs. Arledge secured full time employment with Beverly Enterprises in Camp Hill, Pennsylvania. 41. Mrs. Arledge had a vsluable property interest in continuing her employment with Beverly Enterprises in Camp Hill, Pennsylvania. 42. Because Select was negligent when it reported Mrs. Arledge to the BON as an impaired nurse, it improperly and unlawfully interfered with her property interest in her ongoing employment at Beverly Enterprises in Camp Hill, Pennsylvania. 43. Specifically, once Mrs. Arledge was notified of her impairment investigation, her scope of practice changed as she understood that she could no longer handle or be responsible for any controlled substances. 44. Mrs. Arledge was forced to inform her employer Beverly Enterprises of the allegations against her instigated by Select and was forced to remove herself from having any contact with narcotic and/or controlled substances negatively-impacting her ability to perform her job. 45. Plaintiffs injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants. 46. Because Select interfered with her work relationship with Beverly Enterprises, the Estate of Mary Arledge demands the following compensatory damages against Select Medical Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress Page 10 of 29 until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006, all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT III THE ESTATE v. &ELECT INTENTIONAL ZnICTION OF EMOTIONAL DISTRESS 47. Paragraphs 1 through 46 are hereby incorporated by reference. 48. Select acted recklessly when it reported Mrs. Arledge to the BON for impairment without investigating her health status because it knew she had advanced breast cancer and used analgesics. 49. Select's conduct was outrageous in reporting Mrs. Arledge to the BON for Page 11 of 29 impairment because it knew or should have known she was not impaired but was in fact, very ill. 50. Specifically, Select, as a healthcare provider itself, knew or should have known that people who take pain medications for significant pain are not impaired; Select knew or should have known that effective pain management does not cause impairment, but paradoxically, enables the person afflicted with pain to resume activities of daily life including their employment. 51. Because Select knew Mrs. Arledge was very ill and used analgesics, because it failed to conduct a more reasonable. investigation, because it failed to interview and/or drug test all nurses who had access to the controlled medications and because it failed to recognize appropriateness of pain management in working individuals, its conduct in reporting Mrs. Arledge to the BON for impairment was outrageous, extreme and reckless. 52. Further, by its conduct, Select was recklessly indifferent to Mrs. Arledge's property interest in maintaining her license to practice nursing, to her reputation, and to her ability to work in her chosen field; it should have foreseen that reporting her to the BON for impairment would cause her great harm, emotionally, physically and fmancially. 52. Plaintiff s injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants. 53. Because Select's conduct was extreme, outrageous and reckless, causing extreme emotional, physical and financial harm, the Estate of Mary Arledge demands the Page 12 of 29 following compensatory damages against Select Medical Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) ' Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April2006,all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, i . all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants,. jointly and severally, in an amount in excess of $75,000 plus costs. COUNT N THE ESTATE v. SELECT DISCRIlv1 NATION Page 13 of 29 54. Paragraphs 1 through 53 are hereby incorporated by reference. 55. At some point in early January 2006, or late December 2005, based on an audit by their pharmacy, Select came to believe that some of their controlled drugs may have been tampered with. 56. Based on this belief, Select decided to drug test some of their employees. 57. In violation of their own policies and procedures, Select did not properly investigate any possible tampering or diversion, and failed to drug test all employees who may have had contact with the controlled substances. 58. Specifically, Select failed to investigate, and/or drug test, some of its own employees and did not investigate and/or drug test any of its temporary agency employees. 59. Once Select became aware of Mrs. Arledge's positive drug test, it ceased its investigation, even though it was aware of Mrs. Arledge's advanced cancer and her explanations for the positive results. 60. PlaintiTs injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants. 61. Because Select's selectively enforced it$ own policies and did not investigate/drug test all employees who had contact with the controlled substances, the Estate of Mary Arledge demands the following compensatory damages against Select Medical Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. Page 14 of 29 i r (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006,all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT V THE ESTATE v. DOARD OF NURSING NEGLIGENT FRO29MON 62. Paragraphs 1 through 61 are hereby incorporated by reference. 63. The BON is an administrative agency charged with development, administration and enforcement of all regulations pertaining to the practice of licensed professional nurses. Page 15 of 29 64. By virtue of its legislative authority, the BON has a duty to enact laws that not only protect the public at large, but that protect its licensees; in promulgating laws governing discipline and treatment of impaired nurses, it must also enact laws which enable its licensees a fair and timely opportunity to be heard and to be cleared of wrongful allegations. 65. The BON failed to ensure' appropriate safeguards are in place in the investigation of an allegation of impairment to prevent those with legitimate medical problems necessitating medication from being wrongfully placed in the program. 66. The BON failed to ensure appropriate safeguards are in place to prevent nurses who are truly not impaired, yet are taking controlled medications for treatment of a recognized medical condition from being prosecuted or diverted improperly into the voluntary recovery program. 67. Because the BON failed to ensure appropriate safeguards were in place to prevent Mrs. Arledge from being improperly placed into the impaired nurse program, and because no one in the program had the capacity to recognize that Mrs. Arledge was not impaired, but if fact, was gravely ill, she was subjected to approximately nine months of investigation in the program. 68. Plaintiff s injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiffs injuries. 69. Because the BON negligently caused Mrs. Arledge to be placed in the impaired nurse program, causing extreme emotional, physical and financial harm, the Estate Page 16 of 29 of Mary Arledge demands the following compensatory damages against BON: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. M Plaintiff had been unable to attend to her usual duties, labors, ' avocations, occupational, academic and social activities until her death in April 2006,all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, i all to her great loss and detriment until her death in April 2006. WBEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs, COUNT VI THE ESTATE v. DIVISION OF HEALTH MONITORING PROGRAMS NEGLIGENT SUPERVISION 70. Paragraphs 1 through 69 are hereby incorporated by reference. Page 17 of 29 71. The Division of health monitoring programs (DHNT) was developed specifically to oversee the voluntary recovery program (VRP), among others. 72. The DIRO P is charged with the duty to ensure that the VRP is being properly administered. 73. The DIRVIP has a duty to ensure that all regulations are observed and adhered to, and that all employees are well versed and trained in addictions so that they can recognize not only those who are addicted, but those who are not. 74. The DHMP breached its duty of care to Mrs. Arledge when the employees of the VRP either did not recognize that she was not impaired, but was gravely ill, and/or ignored the fact that-she was not impaired but was gravely ill. 74. Because the DHMP did not properly supervise the VRP, Mrs. Arledge was forced to endure approximately nine months of investigation, practicing on a limited license, during her last months of work. 75. Plaintiff's injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and muss the proximate and actual cause of plaintiffs injuries. 76. Because the DFRVIP negligently supervised the VRP, causing Mrs. Arledge to remain in the impaired nurse program, resulting in extreme emotional, physical and financial harm, the Estate of Mary Arledge demands the following compensatory damages against DHNIP: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. Page 18 of 29 (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006,all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT VII THE ESTATE v. VOLUNTARY RECOVERY PROGRAM NEGLIGENCE 77. Paragraphs 1 through 76 are hereby incorporated by reference. 78. After receiving notification of an allegation of impairment from the BON in or about March of 2006, Mrs. Arledge submitted herself to the VRP for evaluation in the firm belief that they would recognize that she was not impaired, but was in fact, Page 19 of 29 gravely ill. 79. Mrs. Arledge made her health status very clear to all contacts at the VRP, and vehemently denied drug diversion and/or impairment. 80. For nine months of evaluation in the VRP, not one employee recognized or gave credence to Mrs. Arledge's averments that she was not impaired, until the psychological evaluation by the state appointed psychiatrist. 81. Because of the grave nature of her health status, it should have been readily apparent to a properly trained employee that Mrs. Arledge was not impaired, and that placement in an impaired nurse program was grossly unfair and negligent. 82. The VRP owed a duty of care to Mrs.. Arledge as a licensee of the Commonwealth. 83. The VRP breached its duty in its gross failure to recognize the grave nature of Mrs. Arledge's health and the fact that she was not impaired, and to ensure that she was 1 properly and timely cleared of allegations of impairment. 84. Because the VRP was grossly negligent in a timely and proper evaluation of Mrs. Arledge, her last year of life was spent in the VRP trying to clear her naive, all to her great detriment and loss. 85. Plaintiff's injuries would not have occurred absent the negligent or otherwise. tortious conduct of the defendants, and was the proximate and actual cause of plaintiffs injuries. 86. Because the VRP was negligent, it caused Mrs. Arledge to remain in the impaired nurse program in her last year of life, resulting in extreme emotional, physical and financial harm, the Estate of Mary Arledge demands the following compensatory Page 20 of 29 damages against VRP: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (fl Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006,all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT VIII HENRY ARLEDGE v. SELECT NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 87. Paragraphs 1 through 86 are hereby incorporated by reference. Page 21 of 29 88. Mrs. Arledge received notification from the BON regarding the alllegation of impairment via mail. i 89. Mrs. Arledge was home with her husband Henry when the notification arrived. 90. Mr. Arledge was shocked by the notification of allegation of impairment because he knew his wife was not impaired. 91. Mr. Arledge was outraged by the accusations because he knew his wife was gravely C ill and not impaired, and because he witnessed directly her shock, anger, fear and confusion upon notification of the allegation. 92. Mr. Arledge suffered greatly because he observed his wife's reaction to the accusations reported. by Select, and he was helpless to provide any assistance to her. 93. Select knew Mrs. Arledge was married, and knew, should have known and should have foreseen that reporting her to the BON for impairment would cause her husband to suffer greatly. 94. Plaintiff's injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiffs injuries. 95. Because Select recklessly and negligently accused and reported his wife to the BON, and interfered with his wife's property interest in her nursing license, causing I Mrs. Arledge extreme emotional, physical and financial harm, Plaintiff Henry Arledge demands the following compensatory damages against Select Medical Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress and continues Page 22 of 29 to suffer. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress. (c) Plaintiff suffered economic losses because Mrs. Arledge's health deteriorated quickly from the stress and anxiety she was under, hastening her death. (d) Plaintiff suffered loss of consortium due to his wife's great stress. (e) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to his great loss and detriment, as he observed his wife's great suffering up until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment m her favor against defendants, jointly and severally, in an: amount in excess of $75,000 plus costs. COUNT IX HENRY ARLEDGE v BOARD OF NURSING. DMSION OF HEALTH MONITORING PROGRAMS AND VOLUNTARY RECOVERY PROGRAM NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 96. Paragraphs 1 through 95 are hereby incorporated by reference. 97. Mr. Arledge was present throughout Mrs. Arledge's ordeal with the BON, DHMP, and VRP, and witnessed all of her anger, embarrassment, pain, suffering, stress and decline in health. 98. Because he was unable to prevent Mrs. Arledge's suffering at the hands of the defendants and had to stand by helplessly, he himself endured great anger, pain, stress, suffering and related health issues. Page 23 of 29 99. It was, or should have been, foreseeable to the defendants that her immediate family would suffer great harm as a result of the allegations leveled at her and her inability to extract herself from the impaired nurse program. 100. Plaintiffs injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiff s injuries. 101. Because of the negligence of the of the negligence of the BON, DIBIP, and VRP, and the reckless indifference with his wife's property interest in her nursing license, and the interference with his wife's property interest in her nursing license, causing Mrs. Arledge extreme emotional, physical and financial harm, Plaintiff Henry j Arledge demands the following compensatory damages against the BON, DHMP, and VRP: (a) Plaintiff suffered great anxiety, embarrassment and distress and continues to suffer. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress. (c) Plaintiff suffered economic losses because Mrs. Arledge's health deteriorated quickly from the stress and anxiety she was under, hastening her death. (d) Plaintiff suffered loss of consortium due to his wife's great stress. (e) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to his great loss and detriment, as he observed his wife's great suffering Page 24 of 29 up until her death in April 2006, WBEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT X ANITA ARI,EDGE v SELECT NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 102. Paragraphs 1 through 101 are hereby incorporated by reference. 103. Miss Anita Arledge was not home at the time the notification arrived at her mothers home, but was called by her mother contemporaneously, within a few days. 104. Miss Anita was shocked by the notification of allegation of impairment because she knew her mother was not impaired. 105. Miss Anita was outraged by the accusations because she knew her mother was gravely ill and not impaired, and because she witnessed her shock, anger, feat and confusion upon notification of the allegation. 106. Miss Anita was close to her mother and she suffered greatly because she observed her mother's reaction to the accusations reported by Select, and she was helpless to provide any assistance to her. 107. Select knew Mrs. Arledge had a family, and knew, should have known and should have foreseen that reporting her to the BON for impairment would cause her daughter to suffer greatly. 108. Plaintiffs injuries would not have occurred absent the negligent or otherwise Page 25 of 29 tortious conduct of the defendants, and was the proximate and actual cause of plaintiff's injuries. . 109. Because of the negligence of the Select, and the interference with her mother's property interest in her nursing license, causing Mrs. Arledge extreme emotional, physical and financial harm, Plaintiff Anita Arledge demands the following compensatory damages against the Select: (a) Plaintiff suffered great anxiety, embarrassment and distress and continues to suffer. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress. (c) Plaintiff suffered economic losses because Mrs. Arledge's health deteriorated quickly from the stress and anxiety she was under, hastening her death. (d) Plaintiff suffered loss of companionship due to her mother's great stress. (e) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment, as she observed her mother's great suffering up until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT XI ANITA ARLEDGE v BOARD OF NURSING DIVISION OF HEALTH MONITORING PROGRAMS AND VOLUNTARY RECOVERY PROGRAM . NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS Page 26 of 29 I 10. Paragraphs 1 through 109 are hereby incorporated by reference. 111. Anita Arledge remained in very close contact throughout Mn. Arledge's ordeal with the BON, DHMP, and VRP, and witnessed all of her anger, embarrassment, pain, suffering, stress and decline in health. 98. Because she was unable to prevent Mrs. Arledge's suffering at the hands of the defendants and had to stand by helplessly, Anita endured great anger, pain, stress, suffering and related health issues. 99. It was, or should have been, foreseeable to the defendants that her immediate family would suffer great harm as a result of the allegations leveled at her and her inability to extract herself from the impaired nurse program. 100. Plaintiffs injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiffs injuries. 109. Because of the negligence and reckless indifference with her mother's property interest in her nursing license by the BON, DHMP, and BON, causing Mrs. Arledge extreme emotional, physical and financial harm, Plaintiff Anita Arledge demands the following compensatory damages against BON, DHMP and VRP: (a) Plaintiff suffered great anxiety, embarrassment and distress and continues to suffer. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress. Page 27 of 29 (cfj?N ) Plaintiff suffered economic losses,because Mrs. Arledge's health deteriorated quickly from the stress and anxiety she was under, hastening her death. (d) Plaintiff suffered loss of companionship due to her mother's great stress. (e) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment, as she observed her mother's great suffering up until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. I verify that the facts set forth in this complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unworn falsification to authorities. Page 28 of 29 Attorney for Plaintiff Supreme Court IN 89529 Knicos Law Office, LLC 301 S. Hanover Street, Ste.l Carlisle, PA 17013 Tel: 717.249.6808 Fax:717.249.5970 Dated: February 12, 2008 Page 29 of 29 CERTIFICA OF SERVICE AND NOW, this day o 2008, 1 hereby certify that I served a true and correct copy of the foregoing document upon counsel of record by depositing a copy of same in the United States mail, return receipt certified, postage prepaid in Carlisle, Cumberland County, Pennsylvania, addressed as follows: Attorney General Tom Corbett Office of the Attorney General 161 Floor Strawberry Square, Harrisburg, PA 17120 Marc A. Moyer Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17101 State Board of Nursing: P.O. Box 2649 Harrisburg, Pennsylvania 17110-2649 Professional Health Monitoring Program P.O. Box 10569 Harrisburg, PA 17105-0569 Voluntary Recovery Program: Unit 1 P.O. Box 10569 Harrisburg, PA 17105-0569 Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 CERTIFICATE OF SERVICE On this 3`d day of March 2008, I, Kristine Hendrix, a paralegal with the law firm Thomas, Thomas & Hafer, LLP, hereby certify that I have, this day, served a true and correct copy of the PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT upon the person(s) and at the address(es) below named via United States First Class Mail, postage prepaid, in Harrisburg, PA: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite Carlisle, PA 17013 Counsel for Plaintiff Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 15d' Floor, Strawberry Square Harrisburg, PA 17120 Counsel for The Commonwealth Of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, The Division of Health Monitoring Programs and Unit 1 Voluntary Recovery Program 571828-1 13 Mew , ? {"1 -T-- 'i .--1 1 4.? ? ?„ ; i ?, tl t:8 t t s PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) The Estate of MARY A. ARLEDGE, by Executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry and Anita Arledge, Individually In Their Own Right VS. Select Medical Corporation, the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs: State Board of Nursing and the Division of Health Monitoring Programs and Unit 1: Voluntary Recovery Program No. 08-81, CIVIL TERM 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendant Select Medical Corporation to Plaintiffs' Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Marc A. Moyer, Esquire (Name and Address) Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999, Harrisburg PA 17108 (b) for defendants: Renee Knicos, Esquire Knicos Law Office LLC 301 S Hanover Street Ste 1 Carlisle PA 17103 (Name and Address) Jay W. Stark, Esquire Commonwealth of PA Office of Attorney General 15`h Fl Strawberry Square Harrisburg PA 17120 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: April 16, 2008 lix- A-Z Sign a-tWe C ? Print your name Date:-T ,?fLo,f- Marc A. Mover, Esquire Attorney for Defendants INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. r ? 7 CERTIFICATE OF SERVICE On this a5 day of March 2008, I, Jennifer L. Deitch, legal secretary, with the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have, this day, served a true and correct copy of the PRAECIPE FOR LISTING CASE FOR ARGUMENT upon the person(s) and at the address(es) below named via United States First Class Mail, postage prepaid, in Harrisburg, PA: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite Carlisle, PA 17013 Counsel for Plaintiff Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Counsel for The Commonwealth Of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, The Division of Health Monitoring Programs and Unit I Voluntary Recovery Program Je r L. Dei ch :j rz C s?,a y^ ? .. E Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 THE ESTATE OF MARY A. ARLEDGE, BY EXECUTORS HENRY ARLEDGE, HUSBAND, AND ANITA ARLEDGE, DAUGHTER, AND HENRY ARLEDGE AND ANITA ARLEDGE INDIVIDUALLY IN THEIR OWN RIGHT, Plaintiffs V. SELECT MEDICAL CORPORATION, THE COMMONWEATLH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS, AND UNIT 1: VOLUNTARY RECOVERY PROGRAM Defendants TO ALL PARTIES: Jay W. Stark, Chief Deputy Attorney General Direct Dial 717-783-3148 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA No. 08-81 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD YOU ARE HEREBY REQUIRED to respond to the Commonwealth defendants' new matter within twenty (20) days of the date of service hereof or a default judgment may be entered against you. t Attorney General Respectfully submitted, THOMAS W. CORBETT, JR. By: ay . St r , I.D. #51786 of Deputy DATED: April 18, 2008 Jay W. Stark, Chief Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial 717-783-3148 jstark@attorneygeneral.gov THE ESTATE OF MARY A. ARLEDGE, BY EXECUTORS HENRY ARLEDGE, HUSBAND, AND ANITA ARLEDGE, DAUGHTER, AND HENRY ARLEDGE AND ANITA ARLEDGE INDIVIDUALLY IN THEIR OWN RIGHT, Plaintiffs V. SELECT MEDICAL CORPORATION, THE COMMONWEATLH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS, AND UNIT 1: VOLUNTARY RECOVERY PROGRAM Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA No. 08-81 CIVIL TERM JURY TRIAL DEMANDED THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS STATE BOARD OF NURSING AND DIVISION OF HEALTH MONITORING PROGRAMS AND UNIT 1: VOLUNTARY RECOVERY PROGRAM'S ANSWER AND NEW MATTER TO PLAINTIFFS' COMPLAINT AND NOW, comes the above Commonwealth defendants (hereinafter "Commonwealth defendants", "Commonwealth parties", by and through the Office of Attorney General, to file the following answer and new matter to plaintiffs' complaint: 1. It is admitted only that Mary Arledge was employed by the defendant hospital. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. 2. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of these averments. 3. After reasonable investigation, the Commonwealth defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 4. These averments are directed to another party, so no response is required of this defendant. 5. These averments are directed to another party, so no response is required of this defendant. 6. Admitted. 7. This is a legal conclusion requiring no response. If one is deemed to be required, it is denied. 8. Admitted, with the exception that this defendant does not develop all governing laws pertaining to recovery and the discipline of professional registered nurses, which allegation is denied. 9. This is a legal conclusion requiring no response. If one is deemed to be required, it is denied. 10. Admitted, except that final approval of entry into the voluntary recovery program is made by the Board of Nursing, not by this defendant. 11. This is a legal conclusion requiring no response. If one is deemed to be required, it is denied. Jurisdiction and Venue 12. The Commonwealth defendants incorporate herein by reference their answers to paragraphs 1 through 11 of plaintiffs' complaint as though fully set forth herein at length. 13. This is a legal conclusion requiring no response. 14. This is a legal conclusion requiring no response. Facts 15. The Commonwealth defendants incorporate herein by reference their answers to paragraphs 1 through 14 of plaintiffs' complaint as though fully set forth herein at length. 16. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of these averments. 17. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of these averments. 18. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of these averments. 19. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of these averments. 20. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of these averments. 21. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of these averments. 22. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of these averments. 23. It is admitted only that a letter dated March 13, 2006 from one of the Commonwealth defendants was sent to the plaintiff Mary Arledge stating that information has come to its attention that she may be suffering from an impairment. Any other averments are denied. 24. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of these averments. 25. These allegations are specifically denied. Mrs. Arledge was never in the voluntary recovery program. Any remaining averments are denied pursuant to Pa. R.C.P. 1029(e). 26. It is admitted only that Mrs. Arledge was examined during the time stated. Defendant VRP did not issue a subpoena. Any remaining averments are denied. 27. It is admitted that the psychiatrist recognized that Mrs. Arledge was ill. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. 28. Denied. It is specifically denied that Mrs. Arledge was ever part of the VRP or that she was released for the reason stated in this paragraph of plaintiffs' complaint. 29. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of these averments. 30. Denied. It is specifically denied that Mrs. Arledge was released from the VRP as she was never part of the VRP. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. COUNTI THE ESTATE V. SELECT NEGLIGENT REPORTING 31. The Commonwealth defendants incorporate herein by reference their answers to paragraphs 1 through 30 of plaintiffs' complaint as though fully set forth herein at length. 32. - 36. These averments are directed to other parties, so no response is required of the Commonwealth defendants. 37. Denied generally pursuant to Pa. R.C.P. 1029(e) as it relates to the Commonwealth defendants. 38. These averments are directed to other parties, so no response is required of the Commonwealth defendants. WHEREFORE, the Commonwealth defendants respectfully request that judgment be entered in their favor and against all other parties. COUNT II THE ESTATE V. SELECT TORTIOUS INTERFERENCE 39. The Commonwealth defendants incorporate herein by reference their answers to paragraphs 1 through 38 of plaintiffs' complaint as though fully set forth herein at length. 40 - 44. These averments are directed to other parties, so no response is required of the Commonwealth defendants. 45. Denied generally pursuant to Pa. R.C.P. 1029(e) as it relates to the Commonwealth defendants. 46. These averments are directed to other parties, so no response is required of the Commonwealth defendants. WHEREFORE, the Commonwealth defendants respectfully request that judgment be entered in their favor and against all other parties. COUNT III THE ESTATE V. SELECT INTENTIONAL INFLICTION OF EMOTION L DISTRESS 47. The Commonwealth defendants incorporate herein by reference their answers to paragraphs 1 through 46 of plaintiffs' complaint as though fully set forth herein at length. 48 - 51. These averments are directed to other parties, so no response is required of the Commonwealth defendants. 52. Denied generally pursuant to Pa. R.C.P. 1029(e) as it relates to the Commonwealth defendants. 53. These averments are directed to other parties, so no response is required of the Commonwealth defendants. WHEREFORE, the Commonwealth defendants respectfully request that judgment be entered in their favor and against all other parties. COUNT IV THE ESTATE V. SELECT DISCRIMMINATION 54. The Commonwealth defendants incorporate herein by reference their answers to paragraphs 1 through 53 of plaintiffs' complaint as though fully set forth herein at length. 55 - 59. These averments are directed to other parties, so no response is required of the Commonwealth defendants. 60. Denied generally pursuant to Pa. R.C.P. 1029(e) as it relates to the Commonwealth defendants. 61. These averments are directed to other parties, so no response is required of the Commonwealth defendants. WHEREFORE, the Commonwealth defendants respectfully request that judgment be entered in their favor and against all other parties. COUNT V THE ESTATE V. BOARD OF NURSING NEGLIGENT PROSECUTION 62. The Commonwealth defendants incorporate herein by reference their answers to paragraphs 1 through 61 of plaintiffs' complaint as though fully set forth herein at length. 63. Admitted. 64. These averments constitute legal conclusions, requiring no response. If a response is deemed to be required, they are denied as inaccurately stated. 65. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied Mary Arledge was ever in the program. 66. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied Mary Arledge was ever in the program. 67. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied Mary Arledge was ever in the program or was subjected to nine months of investigation in the program. Any remaining averments are denied. 68. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied that such alleged negligence was the proximate and actual cause of plaintiffs' alleged injuries. 69. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied Mary Arledge was ever in the program or that she suffered in any way at all due to any alleged negligence of the Commonwealth defendants or that she is entitled to damages against the Commonwealth defendant as stated in this paragraph of plaintiffs' complaint. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. WHEREFORE, the Commonwealth defendants respectfully request that judgment be entered in their favor and against all other parties. COUNT VI THE ESTATE V. DIVISION OF HEALTH MONITORING PROGRAMS NEGLIGENT SUPERVISION 70. The Commonwealth defendants incorporate herein by reference their answers to paragraphs I through 69 of plaintiffs' complaint as though fully set forth herein at length. 71. Admitted with the amendment that it is the Division of Professional Health Monitoring Programs. 72. Admitted. 73. These averments constitute legal conclusions, requiring no response. If a response is deemed to be required, they are denied. 74. These averments constitute legal conclusions, requiring no response. If a response is deemed to be required, they are denied. It is further denied Mary Arledge was ever in the program. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. Plantiffs' second 74. Denied generally pursuant to Pa. R.C.P. 1029(e). It is denied she was forced to endure nine months of investigation or practice on a limited license due to lack of adequate supervision. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. 75. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied that such alleged negligence was the proximate and actual cause of plaintiffs' alleged injuries. 76. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied Mary Arledge was ever in the program or that she suffered in any way at all due to any alleged negligence of the Commonwealth defendants or that she is entitled to damages against the Commonwealth defendant as stated in this paragraph of plaintiffs' complaint. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. WHEREFORE, the Commonwealth defendants respectfully request that judgment be entered in their favor and against all other parties. COUNT VII THE ESTATE V. VOLUNTARY RECOVERY PROGRAM NEGLIGENCE 77. The Commonwealth defendants incorporate herein by reference their answers to paragraphs 1 through 76 of plaintiffs' complaint as though fully set forth herein at length. 78. It is denied that The Board of Nursing in March 2006 alleged Mrs. Arledge was impaired. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. 79. It is admitted Mrs. Arledge denied drug diversion and/or impairment. It is denied she made her health status very clear to all contacts at the VRP. 80. It is denied she was ever in the program. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. 81. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied she was ever in the program. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. 82. This is a legal conclusion requiring no response. 83. Denied generally pursuant to Pa. R.C.P. 1029(e). These averments constitute legal conclusions, requiring no response. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. 84. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied she was ever in the program or that any alleged negligence of the Commonwealth defendants caused loss or injury to her. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. 85. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied that such alleged negligence was the proximate and actual cause of plaintiffs' alleged injuries. 86. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied she was ever in the program or that the alleged negligence of the Commonwealth defendant resulted in any harm at all or that she is entitled to damages against the Commonwealth defendant as stated in this paragraph of plaintiffs' complaint. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. WHEREFORE, the Commonwealth defendants respectfully request that judgment be entered in their favor and against all other parties. COUNT VIII HENRY ARLEDGE V. SELECT NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 87. The Commonwealth defendants incorporate herein by reference their answers to paragraphs 1 through 86 of plaintiffs' complaint as though fully set forth herein at length. 88. - 93. These averments are directed to other parties, so no response is required of the Commonwealth defendants. 94. Denied generally pursuant to Pa. R.C.P. 1029(e) as it relates to the Commonwealth defendants. It is further denied that such alleged negligence was the proximate and actual cause of plaintiffs' alleged injuries. 95. These averments are directed to other parties, so no response is required of the Commonwealth defendants. WHEREFORE, the Commonwealth defendants respectfully request that judgment be entered in their favor and against all other parties. COUNT IX HENRY ARLEDGE V. COMMONWEALTH DEFENDANTS NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 96. The Commonwealth defendants incorporate herein by reference their answers to paragraphs 1 through 95 of plaintiffs' complaint as though fully set forth herein at length. 97. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of these averments. 98. Denied generally pursuant to Pa. R.C.P. 1029(e). After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. 99. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied she was ever in the program. The foreseeability of this alleged suffering and harm is denied. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. 100. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied that such alleged negligence was the proximate and actual cause of plaintiffs' alleged injuries. 101. Denied generally pursuant to Pa. R.C.P. 1029(e). Reckless indifference and interference in any manner on the part of the Commonwealth defendants is denied. It is further denied that any alleged negligence of the Commonwealth defendants caused any harm at all to Mrs. Arledge and/or that Henry Arledge is entitled to any damages as described in this paragraph of plaintiffs' complaint. WHEREFORE, the Commonwealth defendants respectfully request that judgment be entered in their favor and against all other parties. COUNT X ANITA ARLEDGE V. SELECT NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 102. The Commonwealth defendants incorporate herein by reference their answers to paragraphs 1 through 101 of plaintiffs' complaint as though fully set forth herein at length. 103. - 107. These averments are directed to other parties, so no response is required of the Commonwealth defendants. 108. Denied generally pursuant to Pa. R.C.P. 1029(e) as it relates to the Commonwealth defendants. It is further denied that such alleged negligence was the proximate and actual cause of plaintiffs' alleged injuries. 109. These averments are directed to other parties, so no response is required of the Commonwealth defendants. WHEREFORE, the Commonwealth defendants respectfully request that judgment be entered in their favor and against all other parties. COUNT XI ANITA ARLEDGE V. COMMONWEALTH DEFENDANTS NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 110. The Commonwealth defendants incorporate herein by reference their answers to paragraphs 1 through 109 of plaintiffs' complaint as though fully set forth herein at length. 111. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of these averments. Plaintiffs' second 98. Denied generally pursuant to Pa. R.C.P. 1029(e). After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. Plaintiffs' second 99. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied she was ever in the program. The foreseeability of this alleged suffering is denied. After reasonable investigation, the Commonwealth defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments. Plaintiffs' second 100. Denied generally pursuant to Pa. R.C.P. 1029(e). It is further denied that such alleged negligence was the proximate and actual cause of plaintiffs alleged injuries. Plaintiffs' second 109. Denied generally pursuant to Pa. R.C.P. 1029(e). Reckless indifference in any manner on the part of the Commonwealth defendants is denied. It is further denied that any alleged negligence of the Commonwealth defendants caused any harm to Mrs. Arledge and/or that Anita Arledge is entitled to any damages as described in this paragraph of plaintiffs' complaint. WHEREFORE, the Commonwealth defendants respectfully request that judgment be entered in their favor and against all other parties. NEW MATTER 112. The present action is controlled by the provisions of 1 Pa. C. S. §2310 and Act No. 1980-142, set forth in 42 Pa.C.S. §8501, et seq., which Acts are incorporated herein and pled by reference. The Commonwealth defendant asserts all the defenses contained therein. 113. The Commonwealth defendant is immune from suit pursuant to 1 Pa. C.S. §2310, and this action is not within any of the exceptions to immunity as set forth in 42 Pa.C.S.8522, and therefore this action is barred. 114. Should liability be found on the part of the Commonwealth defendant, the amounts and types of damages recoverable in the present action are limited and controlled by 42 Pa.C.S. §8528. 115. The Judicial Code at 42 Pa.C.S. §5522(a), which section is incorporated herein and pled by reference, provides that the Commonwealth and the Attorney General must have received written notice of intent to sue within six (6) months from the date the cause of action accrues. In the absence of such notice, this action is barred. 116. Plaintiffs' injuries, as alleged, were caused by other persons, parties or entities which were contributory and/or intervening, superseding causes of plaintiffs' alleged injuries. 117. The Commonwealth defendant avers that if negligence is found to exist on its part, said negligence was not the proximate cause of plaintiffs' injuries. 118. The Commonwealth defendant is absolved from liability because any negligence alleged on its part merely facilitated the plaintiffs' injuries. 119. The Commonwealth defendant is specifically entitled to the defense set forth in 42 Pa.C.S.A. §8524, which section is incorporated herein and pled by reference. 120. The affirmative defenses of release, consent and statue of limitations are asserted and raised. 121. The causal negligence of the plaintiffs is greater than any negligence on the part of the Commonwealth defendant, and plaintiffs' recovery is therefore barred or, in the alternative, must be diminished in accordance with the Pennsylvania Comparative Negligence Act, 42 Pa. C. S. §7102. 122. Only the executor of an estate may bring a lawsuit on behalf of an estate. All actions that survive a decedent must be brought by the personal representative of the decedent's estate. This lawsuit may not be properly brought before this Court if Henry Arledge has not been appointed executor/administrator of the Estate of Mary Arledge. The Commonwealth defendants assert that Henry Arledge has no standing. 123. The Commonwealth defendant did not have notice, written or otherwise. 124. There is no cause of action for negligent supervision or employment. 125. The Commonwealth defendants are immune from suit under the law. 126. The Commonwealth defendants are not liable for negligence related to discretionary acts. 127. The Commonwealth defendants had no duty with respect to the plaintiffs. 128. Plaintiffs' complaint fails to state a claim upon which relief can be granted. 129. The Commonwealth defendants are immune from claims alleging intentional tort or recklessness. WHEREFORE, the Commonwealth defendants respectfully request that judgment be entered in their favor and against all other parties. CROSS CLAIM 130. The factual averments of the plaintiffs' complaint are incorporated herein by reference as if fully set forth at length without admission or adoption. 131. Liability on the part of the Commonwealth defendant is specifically denied. 132. If the averments contained in the plaintiffs' complaint are established, said averments being specifically denied as they may relate to the Commonwealth defendant, then the injuries and damages complained of were caused solely by defendant Select Medical Corporation. 133. Defendant Select Medical Corporation has been joined herein to protect the Commonwealth defendant's right of indemnity and contribution, and the Commonwealth defendant avers that the above-said defendant is alone liable to the plaintiffs, or in the alternative, that the above-said defendant is liable over to the Commonwealth defendant, or jointly and severally liable on all plaintiffs' causes of action. WHEREFORE, the Commonwealth defendants respectfully request that judgment be entered in their favor and against all other parties. Respectfully submitted, TOM CORBETT Attorney General By: W. S#k, ID # 51786 ief Deputy Attorney General Date: April 18, 2008 VERIFICATION I, Jay W. Stark, Esquire, hereby verify that I am counsel for the Commonwealth defendants in the foregoing action, and also verify that the foregoing statements are true and correct to the best of my knowledge or information and belief. Jay yV. Str, I.D. 751786 Ch' f De y Attorney General Dated: April 18, 2008 CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 (717) 249-6808 (Counsel for Plaintiffs) Marc A. Moyer Thomas, Thomas & Hafer P. O. Box 999 Harrisburg, PA 17108 (Counsel for Select Medical) Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 (717) 783-3148 DATED: April 18, 2008 ? r_.? ?.,.7 C::.. r:?? -,r7 c,sa ?' -r ..?..3 ??l r'-1 . ? L 3 _,"'"' C.r.7 _ _..u. Ca.7 .. "i ;? ??r2 ::.? t'? J -,? Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire (717) 441-3960 - direct Attorney I.D. No. 76434 mmoyer@tthlaw.com 305 N. Front Street (717) 237-7105 - fax P.O. Box 999 Attorneys for Defendant Select Medical Corporation Harrisburg, PA 17108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE No. 08-81 CIVIL TERM Individually In Their Own Right, Plaintiffs CIVIL ACTION - LAW JURY TRIAL DEMANDED V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS and UNIT 1: VOLUNTARY RECOVERY PROGRAM, Defendants PRAECIPE TO ADD SHORT CERTIFICATE-LETTERS OF ADMINISTRATION AND PETITION FOR PROBATE TO PRELIMINARY OBJECTIONS OF DEFENDANT SELECT MEDICAL CORPORATION TO PLAINTIFFS' COMPLAINT AND NOW, comes Defendant Select Medical Corporation ("Select Medical"), by and through its counsel, Thomas, "Thomas & Hafer, LLP, and files this Praecipe and, in support thereof, avers as follows: 1. This action was initiated by the Decedent's husband, Henry Arledge, and Decedent's daughter, Anita Arledge, on behalf of the Decedent's Estate, and individually, in their own right, by the filing of a Writ of Summons on January 7, 2008. 2. On January 23, 2008, Defendant Select Medical served Plaintiffs with a Rule to File a Complaint. 3. Plaintiffs, thereafter, filed a Complaint against Select Medical, the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs: State Board of Nursing, and the Division of Health Monitoring Programs, Voluntary Recovery Unit, on February 12, 2008. 4. Defendant Select Medical filed Preliminary Objections to Plaintiffs' Complaint on March 3, 2008. 5. As of March 3, 2008, Letters of Administration on the Estate of Mary A. Arledge, deceased, had not been granted. 6. Plaintiff, Henry A. Arledge, filed a Petition for Probate and Grant of Letters for the Estate of Mary A. Arledge with the Register of Wills of Dauphin County, Pennsylvania on March 26, 2008. See Certified copy of Petition attached hereto as Exhibit "A". 7. On March 26, 2008, Letters of Administration on the Estate of Mary A. Arledge, deceased, were granted to Henry A. Arledge. See Short Certificate-Letters of Administration attached hereto as Exhibit "B". WHEREFORE, Defendant Select Medical Corporation respectfully requests that the Petition for Probate and Grant of Letters, and Short Certificate-Letters of Administration be incorporated into its Preliminary Objections. submitted, er, Esquire 76434 THOMAS & HAFER LLP PosVDffice Box 999 Harrisburg, PA 17108 717-441-3960 mmoyer@tthlaw.com Dated: April 24, 2008 Counsel for Defendant Select Medical Corporation b, k) b, f/+ M O d %0s ®031?A33N 531&36 00006 PETITION FOR PROBATE AND GRANT OF LETTERS REGISTER OF WILLS OF COUNTY, PENNSYLVANIA Estate of m:C l? A. A r t e-d c Q File Number 07 OR OF -0 XC?q also known as , Deceased Social Security Number 1 LOS - L4 14 - 1 U ( to Petitioner(s), who islare 18 years of age or older, apply(ies) for: (COMPLETE A' or 'B' BELOW.) ® A. Probate and Grant of Letters Testamentary and aver that Petitioner(s) is / are the named in the last Will of the Decedent dated and codicil(s) dated ,*a ,?J'?ttl1R 'i ] : 3y; ""q ut1 Sarjo a C. 4ri4wr (State relevant circumstances, e.g., renunciation, death of executor, etc.) L+ " -Iuphin <:,^.llrtttlr Vpq r.'t ii. 'riti'411 Except as follows, Decedent did not marry, was not divorced, and did not have a child born or adopted after execution of the itrnstrumeny;nt(s) offered for probate, was not the victim of a killing and was never adjudicated an incapacitated person: B. Grant of Letters of Administration (lfapplicable, enter: c.t.a.; d.b.n.e.ta_; pendente lite; duranteabsentia; durance mtnoritate) 1111 (COMPLETE INALL CASES:) Attach additional sheets if necessary. Decedent was domiciled at death in County, Pennsylvania with hi / her last (List street address, town/cay, township, county, state, :1p code) Decedent, then - years of age, died on `2(5) - at "A - - - n -^( CC _ S Decedent at death owned property with estimated values as follows: (If domiciled in PA) All personal property (If not domiciled in PA) Personal property in Pennsylvania (If not domiciled in PA) Personal property in County value of real estate in Pennsylvania situated as follows: Form RW-02 rev, 10.13.06 RW02 Page I of 2 0411612008 2:17:10 PM DAUPHIN COUNTY Inst.# 200805657 - Page 1 Petitioner(s) after a proper search has / have ascertained that Decedent left no Will and was survived by the following spouse (if any) and heirs: (If Administration, c.t.a. or d.b.n.c.t.a, enter date of Will in Section A above and complete list of heirs) Wherefore, Petitioner(s) respectfully request(s) the probate of the last Will and Codicil(s) presented with this Petition and the grant of Letters in the appropriate form to the undersigned: Oath of Personal Representative COMMONWEALTH OF PENNSYLVANIA COUNTY OF SS The Petitioner(s) above-named swear(s) or affirm(s) that the statements in the foregoing Petition are true and correct to the best of the knowledge and belief of Petitioner(s) and that, as personal representative(s) of the Decedent, Petitioner(s) will well and truly administer the estate according to law. Sworn to or affirmed and subscribed before me the day of For the Register Signature of Personal Representattve File Number: 2208-0299 Estate of Mary A. Arledge , Deceased Social Security Number: 165-44-7467 Date of Death: April 6, 2007 AND NOW, March 26, 2098 , in consideration of the foregoing Petition, satisfactory proof having been presented before me, IT IS DECREED that Letters of Administration are hereby granted to Henry A. Arledge in the above estate and that the instrument(s) dated described in the Petition be admitted to probate and filed of record as t ast Will (and Codicil s)) of Decedent. FEES I) L . O? Letters ............... $ l ? • Sandra C. Snyder Register of 9411s Short Certificate(s) ...cam.. $ 1 a, Attorney Signature: Renunciation(s) .......... $ •--,? ,? $ a 9. Attorney Name: =`?'???' P $ I g • Supreme Court T.D. No.: $ $ Address: $ $ $ Telephone: r-on t-ILMLJ TOTAL .p?q ........ $_ 1"a00 MAR 2 9 2000 SANDRA C. SNYDER p Form RW-02 rev. 10. 13.06 t`JN. i?l RW-02 04116/2008 2:17:10 PM DAUPHIN COUNTY inst# 200805657 - Page 2 Signature of Personal Representative CERTIFICATION COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF DAUPHIN I, SANDRA C. SNYDER, do hereby certify that I am the duly elected Register of Wills and Clerk of the Orphans' Court in and for the County of Dauphin, Commonwealth of Pennsylvania, and as such duly elected official do hereby certify that the attached PETITION FOR PROBATE AND GRANT OF LETTERS 2208-0299 is a true and correct copy of the said document as it appears in the records of the Office of the Register of Wills and Clerk of the Orphans' Court of said county. IN WITNESS WHEREOF, I have hereunto set my hand and official seal of my office this 16th, day of April, 2008, at Harrisburg, Pennsylvania. ?04z,,6 " 0. j7l?( 61e,-e- Register of Wills and Clerk of the Orphans' Court Ex IA 3 d 9106 ®03.1043a S31H-gS 00006 REGISTER OF WILLS OF DAUPHIN COUNTY, PENNSYLVANIA SHORT CERTIFICATE -LETTERS OF ADMINISTRATION File No.: 2208-0299 COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF DAUPHIN I, Sandra C. Snyder, Register of Wills in and for the County of Dauphin, in the Commonwealth of Pennsylvania, DO HEREBY CERTIFY that on March 26, 2008 LETTERS OF ADMINISTRATION on the Estate of MARY A. ARLEDGE, deceased, were granted to HENRY A. ARLEDGE having first been qualified well and truly to administer the same. And, I further certify that no revocation of said Letters appears of record in my office. Date of Death April 6, 2007 Given under my hand and seal of office this 16th day of April, 2008 Social Security No. 165-44-7467 Register NOT VALID WITHOUT IMPRESSED SEAL EXPIRES 60 DAYS FROM DATE OF ISSUANCE CERTIFICATE OF SERVICE On this 24`x' day of April 2008, I, Kristine Hendrix, a paralegal with the law firm Thomas, Thomas & Hafer, LLP, hereby certify that I have, this day, served a true and correct copy of the PRAECIPE TO ADD SHORT CERTIFICATE-LETTERS OF ADMINISTRATION AND PETITION FOR PROBATE TO PRELIMINARY OBJECTIONS OF DEFENDANT SELECT MEDICAL CORPORATION TO PLAINTIFFS' COMPLAINT upon the person(s) and at the address(es) below named via United States First Class Mail, postage prepaid, in Harrisburg, PA: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 Counsel for Plaintiff Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 15'h Floor, Strawberry Square Harrisburg, PA 17120 Counsel for The Commonwealth Of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, The Division of Health Monitoring Programs and Unit I Voluntary Recovery Program Kristine Hendrix ??) h.1 __ C _J ? ?? l ?.? ('t? ?T'? ?"? ? _,,_, r- , ,?? i T•„, ,1?r? ..fir ?", ? „'- G ? '? ? '' . THE ESTATE OF MARY ARLEDGE, BY EXECUTORS HENRY ARLEDGE, HUSBAND, AND ANITA ARLEDGE, DAUGHTER, AND HENRY ARLEDGE AND ANITA ARLEDGE INDIVIDUALLY IN THEIR OWN RIGHT, PLAINTIFFS V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL : AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS AND UNIT 1: VOLUNTARY RECOVERY PROGRAM, - DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 08-0081 CIVIL TERM ORDER OF COURT AND NOW, this c--'R day of April, 2008, IT IS ORDERED that the Petition for Probate and Grant of Letters, and Short Certificate-Letter of Administration be incorporated into the preliminary objections of defendant Select Medical Corporation. By the Edgar B. Bayley, J. ?Renee Knicos, Esquire For Plaintiff arc A. Moyer, Esquire For Select Medical Corporation /Jay W. Stark, Esquire For Commonwealth of Pennsylvania CO t'8.s rn!5c LL ti??s?os :sal t{Y ? i?. THE ESTATE OF MARY ARLEDGE, BY EXECUTORS HENRY ARLEDGE, HUSBAND, AND ANITA ARLEDGE, DAUGHTER, AND HENRY ARLEDGE AND ANITA ARLEDGE INDIVIDUALLY IN THEIR OWN RIGHT, PLAINTIFFS V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL : AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS AND UNIT 1: VOLUNTARY RECOVERY PROGRAM, DEFENDANTS 08-0081 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF SELECT MEDICAL CORPORATION TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this"20day of April, 2008, IT IS ORDERED THAT: (1) Count IV of plaintiffs' complaint, IS DISMISSED. (2) Plaintiffs may, within fifteen days of this date, file a motion for leave of court to amend their complaint. Pending whether such a motion is filed, and if a motion is filed pending a resolution, the motion of Select Medical Corporation to dismiss Counts I, II, and III of the complaint, IS DEFERRED. 08-0081 CIVIL TERM (3) Plaintiffs are granted leave to file, within fifteen days of this date, a proper verification of the complaint. (4) All other preliminary objections of Select Medical Corporation to plaintiffs' complaint, ARE DISMISSED. -' Renee Knicos, Esquire For Plaintiffs Marc A. Moyer, Esquire For Defendants :sal Oo FS rr?:i 6(_ y?3%a -2- ??. ?: ?? ?? ?? ?. 1.. /;,? ??a X. ?+.? i?,?.,, p?y_. ?.1 • J ??1 yy???` t ^.. ('w V.? //??'? C? 1 THE ESTATE OF MARY ARLEDGE, BY EXECUTORS HENRY ARLEDGE, HUSBAND, AND ANITA ARLEDGE, DAUGHTER, AND HENRY ARLEDGE AND ANITA ARLEDGE INDIVIDUALLY IN THEIR OWN RIGHT, PLAINTIFFS V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL : AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS AND UNIT 1: VOLUNTARY RECOVERY PROGRAM, DEFENDANTS 08-0081 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF SELECT MEDICAL CORPORATION TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., April 30, 2008:-- On January 7, 2008, a writ of summons was filed naming plaintiffs as: The Estate of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own Right. On February 12, 2008, plaintiffs filed a complaint. The only averments in the complaint as to the identity of the plaintiffs are: 08-0081 CIVIL TERM 1. Mary Arledge is a deceased person who at the time in question was employed by the defendant hospital as a registered nurse (RN). 2. Plaintiff Henry Arledge is the widower of Mary Arledge and is suing on behalf of the estate and in his own right. 3. Anita Arledge is the daughter of Mary Arledge and is suing on behalf of the estate and in her own right. The complaint alleges several causes of action arising out of a drug screen obtained from Mary A. Arledge when she was employed as a registered nurse in a hospital operated by defendant, Select Medical Corporation. Count I is "The Estate v. Select Medical Corporation" for negligent reporting. Count II is "The Estate v. Select Medical Corporation" for tortious interference with an employment relationship. Count I I I is "The Estate v. Select Medical Corporation" for intentional infliction of emotional distress. Count IV is "The Estate v. Select Medical Corporation" for discrimination. Count VIII is "Henry Arledge v. Select Medical Corporation" for negligent infliction of emotional distress. Count X is "Anita Arledge v. Select Medical Corporation" for negligent infliction of emotional distress.' The averments in support of these causes of action set forth in the complaint can be summarized as follows. In the beginning of 2006, while working as a registered nurse for Select Medical Corporation, Mary Arledge was informed by a director that a controlled drug may have been tampered with. Select Medical wanted to have a drug screen performed on several employees including Arledge. Because of the medications she was taking for breast cancer, Arledge informed Select Medical that she would test positive. She did ' There are eleven counts in the complaint. The other counts involve claims against the other defendants. -2- 08-0081 CIVIL TERM test positive. She was angry over a resulting confrontation with an administrator, and because all employees with access to controlled drugs were not tested. She resigned and secured new employment. Thereafter, she was notified by the State Board of Nursing that Select Medical had reported her positive drug test. She then reported to the Voluntary Recovery Program where she denied impairment due to the medications she was taking for her disease. The Voluntary Recovery Program failed to recognize that she was not impaired. They kept her in an evaluation phase for nine months until a psychiatrist finally recognized the gravity of her illness. She died on April 6, 2007. On March 3, 2008, Select Medical Corporation filed preliminary objections to the complaint which were briefed and argued on April 16, 2008. We will review the objections seriatim. I. WHETHER COUNTS I, II, III, IV OF PLAINTIFFS' COMPLAINT SHOULD BE DISMISSED FOR HAVING BEEN BROUGHT ON BEHALF OF DECEDENT'S ESTATE WITHOUT PLAINTIFFS HAVING OBTAINED LETTERS OF ADMINISTRATION PROVIDING THEM THE LEGAL AUTHORITY TO SET FORTH CLAIMS ON BEHALF OF THE ESTATE. While the writ of summons identifies plaintiffs to include "The estate of Mary Arledge, by executors Henry R. Arledge, husband, and Anita Arledge, daughter," the averments as to the parties in the complaint sets forth only that Henry Arledge and Anita Arledge are suing on behalf of the estate. There is no averment that they are the personal representatives of the estate. Thus, the pleadings do not set forth causes of action by the personal representatives of the estate. In Prevish v. Northwest Medical Center, 692 A.2d 192 (Pa. Super. 1997), the Superior Court of Pennsylvania stated: -3- 08-0081 CIVIL TERM It is settled law that a decedent's estate cannot be a party to litigation unless a personal representative exists. Estate of Gasbarini v. Medical Center of Beaver County, 487 Pa. 266, 409 A.2d 343 (1979); D'Orazio v. Locust Lake Village, Inc., 267 Pa.Super. 124, 406 A.2d 550 (1979); Marzella v. King, 256 Pa. Super. 179, 389 A.2d 659 (1978); McGuire v. Erie Lackawanna Railway Company, 253 Pa.Super. 531, 385 A.2d 466 (1978); Lovejoy v. Georgeff, 224 Pa. Super. 206, 303 A.2d 501 (1973); Wilkes-Barre General Hospital v. Lesho, 62 Pa.Commw. 222, 435 A.2d 1340 (1981). Stated differently, all actions that survive a decedent must be brought by or against the personal representative of the decedent's estate. D'Orazio, supra; Lesho, supra. The practical significance of this principle was explained by the Supreme Court some sixty years ago: It is fundamental that an action at law requires a person or entity which has the right to bring the action, and a person or entity against which the action can be maintained. By its very terms, an action at law implies the existence of legal parties; they may be natural or artificial persons, but they must be entities which the law recognizes as competent. A dead man cannot be a party to an action, and any such attempted proceeding is completely void and of no effect.... Plaintiffs acknowledge in their brief that letters of administration had not been issued when the complaint was filed on February 12, 2008. They ask to be allowed to amend their complaint to reflect the appointment, subsequent to its filing, of Henry Arledge as the personal representative of the Estate of Mary Arledge. Whether the complaint can be amended at this point has not been briefed and argued as plaintiffs have not even filed a motion pursuant to Pa. Rule of Civil Procedure 1033 for leave of court to amend. The causes of action on behalf of the estate must be dismissed unless plaintiffs can amend the complaint to cure the defect.z We will hold the motion to z In Prevish, there is an extensive discussion of the relation back doctrine as it relates to such an issue. -4- 08-0081 CIVIL TERM dismiss in abeyance pending an opportunity for plaintiffs to file a motion for leave of court to amend a complaint and a resolution of that motion. II. WHETHER PLAINTIFFS' CLAIM FOR "DISCRIMINATION" IN COUNT IV OF THE COMPLAINT SHOULD BE DISMISSED WHERE PLAINTIFFS HAVE FAILED TO IDENTIFY THE PARTICULAR TYPE OF DISCRIMINATION FORMING THE BASIS FOR THEIR CLAIM, WHERE THE COMPLAINT FAILS TO ASSERT ANY FACTS CAPABLE OF SUPPORTING A CLAIM FOR DISCRIMINATION, AND WHERE THE ALLEGATIONS SET FORTH IN COUNT IV ARE ALREADY SUBSUMED IN COUNT I OF THE COMPLAINT. Plaintiff argues that a fair reading of their complaint makes out a prima facie case for selective enforcement and disparate treatment, both of which are derivative discrimination claims and sound in employment law. The allegations in Count IV of the complaint do not set forth a legal cause of action. Count IV will be dismissed. III. WHETHER PLAINTIFF HENRY ARLEDGE'S CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD BE DISMISSED WHERE THE COMPLAINT FAILS TO ASSERT THE FACTS NECESSARY TO MAKE OUT A PRIMA FACIE CASE FOR SUCH A CLAIM AS A MATTER OF LAW. We will not dismiss this cause of action at the pleading stage. IV. WHETHER PLAINTIFF ANITA ARLEDGE'S CLAIM FOR NEGLIGENT INFLECTION OF EMOTIONAL DISTRESS SHOULD BE DISMISSED WHERE THE COMPLAINT FAILS TO ASSERT THE FACTS NECESSARY TO MAKE OUT A PRIMA FACIA CASE FOR SUCH A CLAIM AS A MATTER OF LAW. We will not dismiss this cause of action at the pleading stage. V. WHETHER PLAINTIFFS SHOULD BE REQUIRED TO AMEND THEIR COMPLAINT SO AS TO IDENTIFY THE NARCOTIC FOR WHICH THE DECEDENT TESTED POSITIVE, AND THE NARCOTICS FOR WHICH THE DECEDENT WAS ALLEGEDLY PRESCRIBED PRIOR TO DRUG TESTING, SO AS TO ENABLE SELECT MEDICAL TO ACCURATELY ANSWER PLAINTIFFS' COMPLAINT AND FORMULATE ITS DEFENSE. -5- 08-0081 CIVIL TERM Select Medical Corporation knows the results of the drug screen it obtained from having plaintiff tested. We are satisfied that such drugs that decedent was alleged prescribed prior to the drug testing do not have to be pleaded. If relevant, they are subject to discovery. VI. WHETHER PLAINTIFFS SHOULD BE REQUIRED TO AMEND THEIR COMPLAINT SO AS TO ATTACH THE FMLA DOCUMENT UPON WHICH THEY BASE THEIR CLAIMS, AND ATTACH A VERIFICATION SIGNED BY THE PLAINTIFFS. The manner in which the FLMA document is referred to in Paragraph 19 of the complaint does not require that it be attached. The complaint was verified by plaintiffs' attorney. It does not conform with Pa. Rule of Civil Procedure 1024(c). Plaintiffs will be granted leave to file a proper verification pursuant to Rule 1024. ORDER OF COURT AND NOW, this W day of April, 2008, IT IS ORDERED THAT: (1) Count IV of plaintiffs' complaint, IS DISMISSED. (2) Plaintiffs may, within fifteen days of this date, file a motion for leave of court to amend their complaint. Pending whether such a motion is filed, and if a motion is filed pending a resolution, the motion of Select Medical Corporation to dismiss Counts I, II, and III of the complaint, IS DEFERRED. (3) Plaintiffs are granted leave to file, within fifteen days of this date, a proper verification of the complaint. (4) All other preliminary objections of Select Medical Corporation to plaintiffs' complaint, ARE DISMISSED. -6- 08-0081 CIVIL TERM By the Edgar B. Bayley, J. Renee Knicos, Esquire For Plaintiffs Marc A. Moyer, Esquire For Defendants :sal -7- Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire Attorney I.D. No. 76434 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-3960 - direct mmoyer@tthlaw.com (717) 237-7105 - fax Attorneys for Defendant Select Medical Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS and UNIT 1: VOLUNTARY RECOVERY PROGRAM, Defendants : No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER OF SELECT MEDICAL CORPORATION TO NEW MATTER AND NEW MATTER CROSS CLAIM OF DEFENDANTS COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS AND UNIT I: VOLUNTARY RECOVERY PROGRAM AND NOW, comes Defendant Select Medical Corporation to Answer the New Matter of Defendants the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs: State Board of Nursing and the Division of Health Monitoring Programs, and Unit I: Voluntary Recovery Program and, in support thereof avers as follows: 112. The averments set forth in Paragraph 112 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs, is DENIED. 113. The averments set forth in Paragraph 113 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs, is DENIED. 114. The averments set forth in Paragraph 114 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select 2 Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs, is DENIED. 115. The averments set forth in Paragraph 115 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs. 116. The averments set forth in Paragraph 116 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs, is DENIED. 117. The averments set forth in Paragraph 117 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that 3 the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs, is DENIED. 118. The averments set forth in Paragraph 118 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs, is DENIED. 119. The averments set forth in Paragraph 119 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs, is DENIED. 120. The averments set forth in Paragraph 120 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not 4 solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs, is DENIED. 121. The averments set forth in Paragraph 121 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs, is DENIED. 122. ADMITTED. 123. After reasonable investigation, Defendant Select Medical Corporation will act sufficient knowledge or information to form a belief as the truth of the falsity of their averments set forth in Paragraph 123 of the Commonwealth Defendants' New Matter. The averments are, therefore, DENIED. 124. The averments set forth in Paragraph 124 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select 5 Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs, is DENIED. 125. The averments set forth in Paragraph 125 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs, is DENIED. 126. The averments set forth in Paragraph 126 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs, is DENIED. 127. The averments set forth in Paragraph 127 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that 6 the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs, is DENIED. 128. ADMITTED. 129. The averments set forth in Paragraph 129 of Defendants' New Matter are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, any attempt to impute liability against Defendant Select Medical Corporation through the averments, attempt to aver that the Commonwealth Defendants are not solely liable to Plaintiffs on Plaintiffs' Complaint, or attempt to assert through the averments that the Commonwealth Defendants are not jointly and/or severally liable over to Defendant Select Medical Corporation, and/or liable over to Defendant Select Medical Corporation for contribution and/or indemnification on the causes of action asserted by Plaintiffs, is DENIED. WHEREFORE, Defendant Select Medical Corporation respectfully requests that judgment be entered in its favor and that Plaintiffs' claims be dismissed with prejudice. CROSS CLAIM 130. Defendant Select Medical Corporation incorporates herein the averments set forth in its Answer to the Commonwealth Defendants' New Matter and the averments to be set forth in Select Medical Corporation's Answer and New Matter to Plaintiffs' Complaint as if fully set forth at length herein. 131. The averments set forth in Paragraph 131 of the Commonwealth Defendants' Cross Claim are conclusions of law to which no response is required. 7 132. The averments set forth in Paragraph 132 of the Commonwealth Defendants' Cross Claim are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that the injuries and damages complained of by the Plaintiffs were caused solely by Defendant Select Medical Corporation. 133. The averments set forth in Paragraph 133 of the Commonwealth Defendants' Cross Claim are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that Defendant Select Medical Corporation is liable to the Commonwealth Defendants for indemnity or contribution, that it is alone liable to the Plaintiffs, that it is liable over to the Commonwealth Defendants, or that it is jointly or severally liable on Plaintiffs' causes of action. WHEREFORE, Defendant Select Medical Corporation respectfully requests that judgment be entered in its favor and against Plaintiffs and the Commonwealth Defendants, and that it be awarded reasonable attorney's fees and costs together with such other relief as this Court may deem just and equitable. Dated: (o X Respectfully submitted, M,Arc A. Mo r, Esquire Attorney I . No. 76434 305 No Front Street P.O. B 999 Harrisburg, PA 17108-0999 717-441-3960 mmoyer@tthlaw.com Attorneys for Defendant Select Medical Corporation 8 VERIFICATION I, Marsha Medlin, state that I am the CEO of Select Specialty Hospital - Central PA, L.P., that I make this Verification on behalf of Defendant Select Medical Corporation and that I have read the foregoing ANSWER OF SELECT MEDICAL CORPORATION TO NEW MATTER AND NEW MATTER CROSS CLAIM OF DEFENDANTS COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS, AND UNIT I: VOLUNTARY RECOVERY PROGRAM which has been drafted with the assistance of Defendant's counsel. The factual statements contained therein are true and corTect to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unworn falsification to authorities. A 044 l0-1 Marsha Medlin, CEO Select Specialty Hospital - Central, PA, L.P. DATE: , 2008 5906_ 6.1 CERTIFICATE OF SERVICE On this 8 h day of April 2008, I, Kristine Hendrix, a paralegal with the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have, this day, served a true and correct copy of the ANSWER TO NEW MATTER AND NEW MATTER CROSS CLAIM OF DEFENDANT THE COMMONWEALTH OF PA upon the person(s) and at the address(es) below named via United States First Class Mail, postage prepaid, in Harrisburg, PA: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 Counsel for Plaintiff Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 156' Floor, Strawberry Square Harrisburg, PA 17120 Counsel for The Commonwealth Of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, The Division of Health Monitoring Programs and Unit I Voluntary Recovery Program :587387.1 9 ra ?til ?} ? ??4........• am .K11 Y y - ?.` C-1 w r ? Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover street, Suite 1 Carlisle, PA 17013 717.249.6808 Fax 249.5970 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA The Estate Of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own Right, Plaintiffs No. 08-81 V. Select Medical Corporation, and the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, and the Division of Health Monitoring Programs, and Unit 1 Voluntary Recovery Program Defendants CIVIL ACTION-LAW JURY TRIAL DEMANDED PLAINTIFFS' ANSWERS TO DEFENDANT COMMONWEALTH OF PENNSYLVANIA'S NEW MATTER AND NOW, come the Plaintiffs, by and through their attorney, Renee Knicos, Esquire, and file this Answer To Defendant Commonwealth of Pennsylvania's New Matter, and in support thereof, aver the following: Page 1 of 4 NEW MATTER 112. Paragraph 112 is a conclusion of law to which no responsive pleading is required. To the extent an answer is required, it is denied. 113. Paragraph 113 is a conclusion of law to which no responsive pleading is required. To the extent an answer is required, it is denied. 114. Admitted. 115. Paragraph 115 is a conclusion of law to which no responsive pleading is required. To the extent an answer is required, it is denied. 116. Denied. Defendant Commonwealth of Pennsylvania tortious actions, through it's agents and departments, were the proximate and direct cause of Plaintiffs' injuries. 117. Denied. Defendant Commonwealth of Pennsylvania's tortious actions, through it's agents and departments, were the proximate and direct cause of Plaintiffs' injuries. 118. Denied. The Commonwealth of Pennsylvania defendant is independently liable to Plaintiffs for it's own tortious acts and the resultant injuries. 119. Paragraph 119 is a conclusion of law to which no responsive pleading is required. To the extent an answer is required, it is denied. 120. Paragraph 120 is a conclusion of law to which no responsive pleading is required. To the extent an answer is required, it is denied. 121. Paragraph 121 is a conclusion of law to which no responsive pleading is required. To the extent an answer is required, it is denied. Page 2 of 4 4 122. Admitted. By way of further explanation, Letters of Administration have been accorded to Henry A. Arledge. This issue will be decided by the Court on defendant Select's Preliminary Objections. 123. Paragraph 123 is a conclusion of law to which no responsive pleading is required. To the extent an answer is required, it is denied. 124. Paragraph 124 is a conclusion of law to which no responsive pleading is required. To the extent an answer is required, it is denied. 125. Paragraph 125 is a conclusion of law to which no responsive pleading is required. To the extent an answer is required, it is denied. 126. Paragraph 126 is a conclusion of law to which no responsive pleading is required. To the extent an answer is required, it is denied. 127. Paragraph 127 is a conclusion of law to which no responsive pleading is required. To the extent an answer is required, it is denied. 128. Paragraph 128 is a conclusion of law to which no responsive pleading is required. To the extent an answer is required, it is denied. 129. Paragraph 129 is a conclusion of law to which no responsive pleading is required. To the extent an answer is required, it is denied. WHEREFORE, Plaintiffs respectfully request that judgment be entered in their favor. I verify that the facts set forth in this complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties Page 3 of 4 .. of 18 Pa.C.S. §4904, relating to unworn falsification to authorities. Respectfully submitted, .Dated: May 7, 2008 Page 4 of 4 Supreme Court ID # 89529 Knicos Law Office, LLC 301 S. Hanover street, Suite 1 Carlisle, PA 17013 717.249.6808 ERTIFIC OF SERVICE AND NOW, this day 2008, I hereby certify that I served a true and co t copy of the foregoing ocument upon counsel of record by depositing a copy of same in the United States mail, regular delivery, postage prepaid in Carlisle, Cumberland County, Pennsylvania, addressed as follows: Jay W. Stark, Chief Deputy Office of Attorney General Torts Litigation Section 15th Floor Strawberry Square Harrisburg, PA 17120 Marc A. Moyer Thomas, Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 BY: f Supreme Court ID # 89529 K ICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 CJ ? C S Q Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover street, Suite 1 Carlisle, PA 17013 717.249.6808 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA The Estate Of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own Right, Plaintiffs No. 08-81 V. Select Medical Corporation, and the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing and Unit 1: Voluntary Recovery Program, Defendants CIVIL ACTION-LAW JURY TRIAL DEMANDED PLAINTIFFS' PETITION TO AMEND THEIR COMPLAINT PURSUANT TO PA.R.C.P.1033 AND NOW, come the Plaintiffs, by and through their attorney, Renee Knicos, Esquire, and file this Petition To Ament Their Complaint and in support thereof, aver the following: 1. Plaintiffs file this petition seeking leave of court to amend their complaint to reflect the appointment of Henry A. Arledge as the personal representative of the estate of the decedent Mary A. Arledge to pursue, on behalf of the estate, all Page 1 of 4 rights, duties and privileges accorded thereby, in the above captioned matter.(Letters of Administration attached). 2. In its ORDER in response to defendant Select Medical Corporation's Preliminary Objections dated April 30, 2008, this Honorable Court notes that an estate cannot be a party to an action, citing Prevish v. Northwest Medical Center, 692 A.2d 192 (Pa.Super. 1997), and has allowed Plaintiffs to submit this petition to cure the defect in the caption in the instant case. 3. Pa.R.C.P.1033 authorizes that "[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading...." 4. In this case, Plaintiffs seek to amend their complaint to clarify the estate plaintiff and add Henry Arledge, as personal representative of the estate, suing on behalf of the estate. 5. Our courts have consistently acknowledged the liberality established in Pa.R.C.P.1033 regarding amendments to complaints: "Although no absolute right to amend exists, the courts of this Commonwealth have liberally construed the principle embodied in this rule (referencing Pa. R.C.P. 1033; [added]). Consequently, courts have allowed amendments of pleadings at any time, as provided by the specific language of this statute." Chenev v. Meadville Medical Center. 912 A.2d 300, 2006 PA Super 295 at paragraph 8. See also Saracina v. Cotoia, 417 Pa. 80,83, 208 A.2d 764, 765 (1965). 6. While factually dissimilar because it revolves around a motion to amend to add a Page 2 of 4 defendant, Ingrid Nive Torl-Hiis, et al, v Commonwealth of Pennsylvania, et al; Appeal of Commonwealth of Pennsylvania, 558 Pa. 170, 735 A. 2d 1256 (Pa. 1999), sets forth the test our Courts have established regarding amendments to add a party. While there is a requirement that the amendment may not be prejudicial to opposing parties, the test is "whether the right party was sued but under a wrong designation-in which event amendment was permissible..." Powell v Sutliff, 410 Pa. 436, 189 A.2d 864 (Pa. 1963) (citing Gozdonovic v Pleasant Hills Realty Co., 357 Pa. 23, 53 A.2d 73 (Pa.1947). 7. In the instant case, the proposed amendment is to clarify the estate plaintiff, therefore there exists no prejudice to opposing parties since there is no attempt to add a party. 8. Further, applying the test, supra, it is clear here that the right party was identified, however, it was not properly designated for purposes of litigation. Therefore, the proposed amendment is proper. 9. Cumberland County Local Rule 208.3 requires concurrence from opposing counsel prior to filing any motions other than those enumerated. In this case, concurrence was not sought since the proposed amendment is the subject of defendant Select's Preliminary Objections, and defendant Commonwealth of Pennsylvania's New Matter. 10. In compliance with local rule 208.3, Judge Edgar B. Bayley has ruled on prior motions in this case. WHEREFORE, for the reasons contained herein, Plaintiffs respectfully request this Honorable Page 3 of 4 Court to grant their Petition To Amend their Complaint. May 15, 2008 Respectfully Submitted, Renee Knicos Attorney for Plaintiff Supreme Court IN 89529 Knicos Law Office, LLC 301 S. Hanover Street, Ste.I Carlisle, PA 17013 Tel: 717.249.6808 Fax:717.249.5970 Page 4 of 4 04/09/2088 09.22 7172213959 LIS1r+C f-F MUFA t1pur- GISTIR OF WILLS OF DAUPHIN COUNTY, PENNSYL!V'A NIA SHORT CERTIFICATE LETTERS OF ADMINNTRA'TION File No.:. 220M" 'COMMONWEALTH OF PENNSYLVANIA SS: COI NW O# DAUPMN X, Sandra C.-Sayder, Register of Wills in and fcir the Coueity of Dtaphin, iri-the Comnlonwralth of PenWlvania, DO HEREBY CERTIFY that on March 26, ZOOS LETTERS OF ADMII TRA'TfON on the Estate.ofMARY A. ARLED(W, decaared were gmiw, H z,Y A. ARLEDGE lanving first been qualified well and truly to administer the same. And, T four 'certi-ly that no revocation of said setters app mrs of record in my office. Date afDeath April 6, 2007 Social Security No. 165-44-7467 Given under.my timid and seal of office this 27th day of March,.2008. Register NOT VALID WITHOUT ?MPRRSSTD SEAS 6XPUM 60 DAYS FROM DATI Os'-18SUANCE 2008-04-09 08:29 7172213959 Page 3 rIdayFI CATOF SERVICE AND NOW, this of 2008, I hereby certify that I served a true and correct copy of the foregoing document upon counsel of record by depositing a copy of same in the United States mail, regular delivery, postage prepaid in Carlisle, Cumberland County, Pennsylvania, addressed as follows: Jay W. Stark, Chief Deputy Office of Attorney General Torts Litigation Section 15' Floor Strawberry Square Harrisburg, PA 17120 Marc A. Moyer Thomas, Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 BY: / ' Renee Knicos Supreme Co ID # 89529 KNICOS LAW OFFICE, LLC 301 S. Han er Street, Suite 1 Carlisle, PA 17013 f-a cnn -4 ull f ; < . COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION The Estate Of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own Right, Plaintiffs V. Select Medical Corporation, 4716 Old Gettysburg Road, Mechanicsburg, Pennsylvania 17055, and the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs: State Board of Nursing and the Division : of Health Monitoring Programs and : Unit 1: Voluntary Recovery Program, 2601 N. 3rd Street, Harrisburg, Pennsylvania 17110-2004 Defendants No. 08-81 CIVIL ACTION-LAW JURY TRIAL DEMANDED Filed on Behalf of Plaintiffs Pi AINTIFFS' FIRST AMENDED COMPLAINT Counsel of record for Plaintiffs: Renee Knicos, Esquire Supreme Court ID # 89529 Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 717.249.6808 NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717.249.3166 COMPLAINT AND NOW come the Plaintiffs, by and through their attorney Renee Knicos, and hereby file the following Complaint-Civil Action, making demand against defendants, for damages Page 2 of 29 sustained upon cause of action of which the following are statements: PARTIES 1. Mary Arledge is a deceased person who at the time in question was employed by the defendant hospital as a registered nurse (R.N.). 2. Plaintiff Henry Arledge is the widower of Mary Arledge and is suing on behalf of the estate and in his own right. 3. Anita Arledge is the daughter of Mary Arledge and is suing on behalf of the estate and in her own right. 4. Defendant Select Medical Corporation (Select), with its headquarters in Mechanicsburg, Pennsylvania, owns a series of specialty hospitals serving long term, acute and medically complex care patients. At all times pertinent hereto, Select held itself out in the community as being properly equipped and staffed, and rendering quality care, acting through its departments, medical groups, staff members and other agents, servants or employees. 5. At all times relevant and material hereto, defendant Select acted or appeared to be acting through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in the furtherance business of the Defendant. 6. The Department of State, Bureau of Professional and Occupational Affairs State Board of Nursing, (BON), situated in Harrisburg, Pennsylvania, is an administrative agency of the Commonwealth of Pennsylvania charged with development and administration of all the laws pertaining to the practice and Page 3 of 29 discipline of professional registered nurses. 7. At all times relevant and material hereto, defendant Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing acted or appeared to be acting through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in the furtherance business of the Defendant. 8. Department of State, Bureau of Professional and Occupational Affairs, Division of Health Monitoring Programs, (DHMP), situated in Harrisburg, Pennsylvania, is an administrative branch charged with the oversight of the voluntary recovery program, and along with the board of nursing, develops and administers all governing laws pertaining to recovery and discipline of the professional registered nurse. 9. At all times relevant and material hereto, defendant Department of State, Bureau of Professional and Occupational Affairs, Division of Health Monitoring Programs acted or appeared to be acting through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in the furtherance business of the Defendant. 10. Department of State, Bureau of Professional and Occupational Affairs Unit 1: Voluntary Recovery Program, (VRP), situated in Harrisburg, Pennsylvania, is an administrative branch of the Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, Division of Health Monitoring Page 4 of 29 Programs, charged with administration of the laws governing impaired nurses and appropriateness of entry into the voluntary recovery program. 11. At all times relevant and material hereto, defendant Unit 1: Voluntary Recovery Program, acted or appeared to be acting through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in the furtherance business of the Defendant. JURISDICTION AND VENUE 12. Paragraphs 1 through i 1 are hereby incorporated by reference. 13. The Court of Common Pleas has exclusive and original jurisdiction of all actions and proceedings pursuant to 42 Pa.C.S.A. §931(a) &(b). 14. Venue is properly laid in Cumberland County pursuant to Pa. R. Civ. P. No. 1006 (a)(1), (a.1) and ( c)(1): The events giving rise to this action began in York County, Department of State defendants are located in Dauphin County, and defendant Select is headquartered in Cumberland County. FACTS 15. Paragraphs 1 through 14 are hereby incorporated by reference. 16. On or about January 6, 2006, Mrs. Arledge reported to work at the Select facility in York County. 17. On or about January 6, 2006, Mrs. Arledge was informed by the director of nurses that there was some question that a narcotic medication may have been tampered with and that Select would like to drug test some employees. Page 5 of 29 18. At that point, Mrs Arledge agreed to the testing, but informed the employer that her test would be positive because she was taking narcotic medication for treatment of her advanced breast cancer. 19. In fact, the employer had been aware several months previously of Mrs. Arledge's illness and use of prescribed narcotics as it been documented by her primary physician, Nita Rastogi, M.D., on her FMLA application. 20. Defendant Select did not drug test all its employees with access to the narcotic in question, and did not effort contacting the temporary agency nurses who had access to the narcotic in question. 21. When Mrs. Arledge's positive results were reported to her employer, the administrator confronted her in a harsh manner. Because Mrs. Arledge was angry at the accusatory tone of the administrator, and because she believed she had been singled out and treated unfairly, she turned in her resignation, giving her employer two weeks notice. 22. After finishing her two weeps notice, Mrs. Arledge began employment with. Beverly Enterprises in Camp Hill, Pennsylvania. 23. During this employment, Mrs. Arledge received notice from the department of state that she had been reported by Select to the Board of Nursing because of their allegation that she was an impaired nurse. 24. Because Mrs. Arledge needed, and enjoyed, full time employment, she reported to the voluntary recovery program in the belief that they would realize that she was not an impaired nurse, but was in fact, a very ill nurse, and that she would be Page 6 of 29 released and cleared of all charges/allegations. 25. Despite her physicians' statements pertaining to her medication use and her advanced cancer, the voluntary recovery program failed to recognize that Mrs. Arledge was not an impaired nurse, but was in fact, a very ill nurse. 26. Sometime during the months of November and/or December 2006, Mrs. Arledge submitted herself to a psychiatric evaluation by a court appointed psychiatrist as a result of a subpoena by the defendant VRP. 27. It was only at this point that the psychiatrist recognized that Mrs. Artledge was not an impaired nurse, but in fact, a very ill nurse. 28. Sometime during the months of November and/or December 2006, Mrs, Arledge was released from the VRP according to the recommendation of the evaluating psychiatrist. 29. At this point, Mrs. Arledge's disease had progressed substantially, and she was unable to work. 30. Mrs. Arledge succumbed to her illness within three to four months after her release from the VRP and expired in April 6, 2007. COUNTI THE ESTATE v. SELECT NEGLIGENT REPORTING 31. Paragraphs 1 through 30 are hereby incorporated by reference. 32. Mrs. Arledge had a property interest in maintaining her nursing license and her Page 7 of 29 status as a professional nurse so that she could continue gainful employment. 33. Recognizing a duty to report an employee nurse whom an employer has a valid belief, after investigation, that an impairment exists, the employer also has a duty to an employee, who has a property interest in maintaining their licensure as a professional nurse, to report correctly and accurately. 34. Select breached the duty it owed to Mrs. Arledge because it did not conduct a sufficient investigation into Mrs. Arledge's health history and by neglecting to drug test all employees, permanent or temporary, who had control over and/or contact with, the narcotics. 35. Because it failed to properly and thoroughly investigate any possible narcotic diversion or tampering, and because it failed to recognize and properly and thoroughly investigate the extent of Mrs. Arledge's illness and medication use, the reporting by Select to the BON for impairment was grossly negligent because it knew, or should have known, Mrs. Arledge was not an impaired nurse, but was in fact, a gravely ill nurse. 36. The negligent reporting by Select to the BON that Mrs. Arledge was an impaired nurse was the proximate and actual cause of the resulting injuries suffered.. 37. Plaintiffs' injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants. 38. Because Select negligently reported Mrs. Arledge to the BON as an impaired nurse, and negligently interfered with her property interest in maintaining her license as a professional nurse, the Estate of Mary Arledge demands the following Page 8 of 29 compensatory damages against Select Medical Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006, all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT H THE EST JE v. SELECT TORTIOUS INTERFERENCE WITH AN EMPLOYMENT RELATIONSHIP 39. Paragraphs l through 38 are hereby incorporated by reference. Page 9 of 29 40. After leaving Select, Mrs. Arledge secured full time employment with Beverly Enterprises in Camp Hill, Pennsylvania. 41. Mrs. Arledge had a valuable property interest in continuing her employment with Beverly Enterprises in Camp Hill, Pennsylvania. 42. Because Select was negligent when it reported Mrs. Arledge to the BON as an impaired nurse, it improperly and unlawfully interfered with her property interest in her ongoing employment at Beverly Enterprises in Camp Hill, Pennsylvania. 43. Specifically, once Mrs. Arledge was notified of her impairment investigation, her scope of practice changed as she understood that she could no longer handle or be responsible for any controlled substances. 44. Mrs. Arledge was forced to inform her employer Beverly Enterprises of the allegations against her instigated by Select and was forced to remove herself from having any contact with narcotic and/or controlled substances negatively impacting her ability to perform her job. 45. Plaintiff s injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants. 46. Because Select interfered with her work relationship with Beverly Enterprises, the Estate of Mary Arledge demands the following compensatory damages against Select Medical Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress Page 10 of 29 until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006, all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT III THE ESTATE v. EIS LECT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 47. Paragraphs 1 through 46 are hereby incorporated by reference. 48. Select acted recklessly when it reported Mrs. Arledge to the BON for impairment without investigating her health status because it knew she had advanced breast cancer and used analgesics. 49. Select's conduct was outrageous in reporting Mrs. Arledge to the BON for Page 11 of 29 impairment because it knew or should have known she was not impaired but was in fact, very ill. 50. Specifically, Select, as a healthcare provider itself, knew or should have known that people who take pain medications for significant pain are not impaired; Select knew or should have known that effective pain management does not cause impairment, but paradoxically, enables the person afflicted with pain to resume activities of daily life including their employment. 51. Because Select knew Mrs. Arledge was very ill and used analgesics, because it failed to conduct a more reasonable investigation, because it failed to interview and/or drug test all nurses who had access to the controlled medications and because it failed to recognize appropriateness of pain management in working individuals, its conduct in reporting Mrs. Arledge to the BON for impairment was outrageous, extreme and reckless. 52. Further, by its conduct, Select was recklessly indifferent to Mrs. Arledge's property interest in maintaining her license to practice nursing, to her reputation, and to her ability to work in her chosen field; it should have foreseen that reporting her to the BON for impairment would cause her great harm, emotionally, physically and financially. 52. Plaintiff's injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants. 53. Because Select's conduct was extreme, outrageous and reckless, causing extreme emotional, physical and financial harm, the Estate of Mary Arledge demands the Page 12 of 29 following compensatory damages against Select Medical Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006,all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT IV THE ESTATE v SELECT DISCRIMINATION Page 13 of 29 54. Paragraphs 1 through 53 are hereby incorporated by reference. 55. At some point in early January 2006, or late December 2005, based on an audit by their pharmacy, Select came to believe that some of their controlled drugs may have been tampered with. 56. Based on this belief, Select decided to drug test some of their employees. 57. In violation of their own policies and procedures, Select did not properly investigate any possible tampering or diversion, and failed to drug test all employees who may have had contact with the controlled substances. 58. Specifically, Select failed to investigate, and/or drug test, some of its own employees and did not investigate and/or drug test any of its temporary agency employees. 59. Once Select became aware of Mrs. Arledge's positive drug test, it ceased its investigation, even though it was aware of Mrs. Arledge's advanced cancer and her explanations for the positive results. 60. Plaintiff's injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants. 61. Because Select's selectively enforced its own policies and did not investigate/drug test all employees who had contact with the controlled substances, the Estate of Mary Arledge demands the following compensatory damages against Select Medical Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. Page 14 of 29 (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006,all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT V THE ESTATE v ,13OARD OF NURSING NEGLIGENT PROSECUTION 62. Paragraphs 1 through 61 are hereby incorporated by reference. 63. The BON is an administrative agency charged with development, administration and enforcement of all regulations pertaining to the practice of licensed professional nurses. Page 15 of 29 64. By virtue of its legislative authority, the BON has a duty to enact laws that not only protect the public at large, but that protect its licensees; in promulgating laws governing discipline and treatment of impaired nurses, it must also enact laws which enable its licensees a fair and timely opportunity to be heard and to be cleared of wrongful allegations. 65. The BON failed to ensure appropriate safeguards are in place in the investigation of an allegation of impairment to prevent those with legitimate medical problems necessitating medication from being wrongfully placed in the program. 66. The BON failed to ensure appropriate safeguards are in place to prevent nurses who are truly not impaired, yet are taping controlled medications for treatment of a recognized medical condition from being prosecuted or diverted improperly into the voluntary recovery program. 67. Because the BON failed to ensure appropriate safeguards were in place to prevent Mrs. Arledge from being improperly placed into the impaired nurse program, and because no one in the program had the capacity to recognize that Mrs. Arledge was not impaired, but if fact, was gravely ill, she was subjected to approximately nine months of investigation in the program. 68. Plaintiff s injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiffs injuries. 69. Because the BON negligently caused Mrs. Arledge to be placed in the impaired nurse program, causing extreme emotional, physical and financial harm, the Estate Page 16 of 29 of Mary Arledge demands the following compensatory damages against BON: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006,all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT VI THE ESTATE v DIVISION OF HEALTH MONITORING PROGRAMS NEGLIGENT SUPERVISION 70. Paragraphs 1 through 69 are hereby incorporated by reference. Page 17 of 29 71. The Division of health monitoring programs (DHMP) was developed specifically to oversee the voluntary recovery program (VRP), among others. 72. The DHMP is charged with the duty to ensure that the VRP is being properly administered. 73. The DHMP has a duty to ensure that all regulations are observed and adhered to, and that all employees are well versed and trained in addictions so that they can recognize not only those who are addicted, but those who are not. 74. The DHMP breached its duty of care to Mrs. Arledge when the employees of the VRP either did not recognize that she was not impaired, but was gravely ill, and/or ignored the fact that she was not impaired but was gravely ill. 74. Because the DHMP did not properly supervise the VRP, Mrs. Arledge was forced to endure approximately nine months of investigation, practicing on a limited license, during her last months of work. 75. Plaintiff's injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiff s injuries. 76. Because the DHMP negligently supervised the VRP, causing Mrs. Arledge to remain in the impaired nurse program, resulting in extreme emotional, physical and financial harm, the Estate of Mary Arledge demands the following compensatory damages against DHMP: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. Page 18 of 29 (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006,all to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT VII THE ESTATE V. VOLUNTARY RECOVERY PROGRAM NEGLIGENCE 77. Paragraphs 1 through 76 are hereby incorporated by reference. 78. After receiving notification of an allegation of impairment from the BON in or, about March of 2006, Mrs. Arledge submitted herself to the VRP for evaluation in the firm belief that they would recognize that she was not impaired, but was in fact, Page 19 of 29 gravely ill. 79. Mrs. Arledge made her health status very clear to all contacts at the VRP, and vehemently denied drug diversion and/or impairment. 80. For nine months of evaluation in the VRP, not one employee recognized or gave credence to Mrs. Arledge's averments that she was not impaired, until the psychological evaluation by the state appointed psychiatrist. 81. Because of the grave nature of her health status, it should have been readily apparent to a properly trained employee that Mrs. Arledge was not impaired, and that placement in an impaired nurse program was grossly unfair and negligent. 82. The VRP owed a duty of care to Mrs. Arledge as a licensee of the Commonwealth. 83. The VRP breached its duty in its gross failure to recognize the grave nature of Mrs. Arledge's health and the fact that she was not impaired, and to ensure that she was properly and timely cleared of allegations of impairment. 84. Because the VRP was grossly negligent in a timely and proper evaluation of Mrs. Arledge, her last year of life was spent in the VRP trying to clear her name, all to her great detriment and loss. 85. Plaintiffs injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiff's injuries. 86. Because the VRP was negligent, it caused Mrs. Arledge to remain in the impaired nurse program in her last year of life, resulting in extreme emotional, physical and financial harm, the Estate of Mary Arledge demands the following compensatory Page 20 of 29 damages against VRP: (a) Plaintiff suffered great anxiety, embarrassment and distress until her death in April 2006. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress until her death in April 2006. (c) Plaintiff suffered great stress which negatively impacted her health and resulted in an acceleration of her disease process, hastening her death. (d) Plaintiff suffered physical problems and increased pain because she was afraid to take prescribed pain medication until her death in April 2006. (e) Plaintiff suffered economic losses, injury to her reputation and loss of employment. (f) Plaintiff had been unable to attend to her usual duties, labors, avocations, occupational, academic and social activities until her death in April 2006,a11 to her great financial and personal detriment and loss. (g) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT VIII HENRY ARLEDGE v SELECT NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 87. Paragraphs 1 through 86 are hereby incorporated by reference. Page 21 of 29 88. Mrs. Arledge received notification from the BON regarding the alllegation of impairment via mail. 89. Mrs. Arledge was home with her husband Henry when the notification arrived. 90. Mr. Arledge was shocked by the notification of allegation of impairment because he knew his wife was not impaired. 91. Mr. Arledge was outraged by the accusations because he knew his wife was gravely ill and not impaired, and because he witnessed directly her shock, anger, fear and confusion upon notification of the allegation. 92. Mr. Arledge suffered greatly because he observed his wife's reaction to the accusations reported by Select, and he was helpless to provide any assistance to her. 93. Select knew Mrs. Arledge was married, and knew, should have known and should have foreseen that reporting her to the BON for impairment would cause her husband to suffer greatly. 94. Plaintiff's injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiff's injuries. 95. Because Select recklessly and negligently accused and reported his wife to the BON, and interfered with his wife's property interest in her nursing license, causing Mrs. Arledge extreme emotional, physical and financial harm, Plaintiff Henry Arledge demands the following compensatory damages against Select Medical Corporation: (a) Plaintiff suffered great anxiety, embarrassment and distress and continues Page 22 of 29 to suffer. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress. (c) Plaintiff suffered economic losses because Mrs. Arledge's health deteriorated quickly from the stress and anxiety she was under, hastening her death. (d) Plaintiff suffered loss of consortium due to his wife's great stress. (e) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to his great loss and detriment, as he observed his wife's great suffering up until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT IX HENRY ARLEDG E v BOAM OF NUR SING DI VISION OF HEALTH QNITORING PROG M RAMS AND VQLUN TARY R ECOVERY PROGRAM _ NEGLIGEN T INFLICTION OF E MOTION AL DISTRESS 96. Paragraphs 1 through 95 are hereby incorporated by reference. 97. Mr. Arledge was present throughout Mrs. Arledge's ordeal with the BON, DHMP, and VRP, and witnessed all of her anger, embarrassment, pain, suffering, stress and decline in health. 98. Because he was unable to prevent Mrs. Arledge's suffering at the hands of the defendants and had to stand by helplessly, he himself endured great anger, pain, stress, suffering and related health issues. Page 23 of 29 99. It was, or should have been, foreseeable to the defendants that her immediate family would suffer great harm as a result of the allegations leveled at her and her inability to extract herself from the impaired nurse program. 100. Plaintiff's injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiffs injuries. 101. Because of the negligence of the of the negligence of the BON, DHMP, and VRP, and the reckless indifference with his wife's property interest in her nursing license, and the interference with his wife's property interest in her nursing license, causing Mrs. Arledge extreme emotional, physical and financial harm, Plaintiff Henry Arledge demands the following compensatory damages against the BON, DHMP, and VRP: (a) Plaintiff suffered great anxiety, embarrassment and distress and continues to suffer. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress. (c) Plaintiff suffered economic losses because Mrs. Arledge's health deteriorated quickly from the stress and anxiety she was under, hastening her death. (d) Plaintiff suffered loss of consortium due to his wife's great stress. (e) Plaintiff has suffered a severe loss of erljoyment of life and life's pleasures, all to his great loss and detriment, as he observed his wife's great suffering Page 24 of 29 up until her death in April 2006, WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT X ANITA ARLEDGE v ..SELECT NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 102. Paragraphs 1 through 101 are hereby incorporated by reference. 103. Miss Anita Arledge was not home at the time the notification arrived at her mothers home, but was called by her mother contemporaneously, within a few days. 104. Miss Anita was shocked by the notification of allegation of impairment because she knew her mother was not impaired. 105. Miss Anita was outraged by the accusations because she knew her mother was gravely ill and not impaired, and because she witnessed her shock, anger, fear and confusion upon notification of the allegation. 106. Miss Anita was close to her mother and she suffered greatly because she observed her mother's reaction to the accusations reported by Select, and she was helpless to provide any assistance to her. 107. Select knew Mrs. Arledge had a family, and knew, should have known and should have foreseen that reporting her to the BON for impairment would cause her daughter to suffer greatly. 108. Plaintiff s injuries would not have occurred absent the negligent or otherwise Page 25 of 29 tortious conduct of the defendants, and was the proximate and actual cause of plaintiff's injuries. 109. Because of the negligence of the Select, and the interference with her mother's property interest in her nursing license, causing Mrs. Arledge extreme emotional, physical and financial harm, Plaintiff Anita Arledge demands the following compensatory damages against the Select: (a) Plaintiff suffered great anxiety, embarrassment and distress and continues to suffer. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress. (c) Plaintiff suffered economic losses because Mrs. Arledge's health deteriorated quickly from the stress and anxiety she was under, hastening her death. (d) Plaintiff suffered loss of companionship due to her mother's great stress. (e) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment, as she observed her mother's great suffering up until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. COUNT XI ANITA ARLEDGE v BOARD OF NURySING DIVISION OF HEALTH MONITORING PROGRAMS AND VOLUNTARY RECOVERY PROGRAM NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS Page 26 of 29 I 10. Paragraphs 1 through 109 are hereby incorporated by reference. 111. Anita Arledge remained in very close contact throughout Mrs. Arledge's ordeal with the BON, DHMP, and VRP, and witnessed all of her anger, embarrassment, pain, suffering, stress and decline in health. 98. Because she was unable to prevent Mrs. Arledge's suffering at the hands of the defendants and had to stand by helplessly, Anita endured great anger, pain, stress, suffering and related health issues. 99. It was, or should have been, foreseeable to the defendants that her immediate family would suffer great harm as a result of the allegations leveled at her and her inability to extract herself from the impaired nurse program. 100. Plaintiffs injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants, and was the proximate and actual cause of plaintiff's injuries. 109. Because of the negligence and reckless indifference with her mother's property interest in her nursing license by the BON, DHMP, and BON, causing Mrs. Arledge extreme emotional, physical and financial harm, Plaintiff Anita Arledge demands the following compensatory damages against BON, DHMP and VRP: (a) Plaintiff suffered great anxiety, embarrassment and distress and continues to suffer. (b) Plaintiff suffered mental anguish, depression, anxiety and emotional distress. Page 27 of 29 (c) Plaintiff suffered economic losses because Mrs. Arledge's health deteriorated quickly from the stress and anxiety she was under, hastening her death. (d) Plaintiff suffered loss of companionship due to her mother's great stress. (e) Plaintiff has suffered a severe loss of enjoyment of life and life's pleasures, all to her great loss and detriment, as she observed her mother's great suffering up until her death in April 2006. WHEREFORE, Plaintiff Estate demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75,000 plus costs. I verify that the facts set forth in this complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Page 28 of 29 Attorney for Plaintiff Supreme Court IN 89529 Knicos Law Office, LLC 301 S. Hanover Street, Ste.1 Carlisle, PA 17013 Tel: 717.249.6808 Fax:717.249.5970 Dated: February 12, 2008 Page 29 of 29 I verify that the facts set forth in this complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unworn falsification to authorities. Respectfully Submitted, Renee Knicos Attorney for Plaintiff Supreme Court IN 89529 Knicos Law Office, LLC 301 S. Hanover Street, Ste.1 Carlisle, PA 17013 Tel: 717.249.6808 Fax:717.249.5970 Dated: May 15, 2008 M VERIFICATION On this 1311- day of ,2008,1, Qnitc A• At'12dge. hereby , U verify that the facts and averments contained herein are true and correct to the best of my knowledge and belief subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsifications to authorities. Ci a.? sh VERIFICATION On this `-3 day of !2?? lc?- , 2008, I, / I'I r' e 1'*reby verify that the facts and averments contained herein are true and correct to the best of my knowledge and belief subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsifications to authorities. .. CERTIFICATE O SERVICE AND NOW, this / day of 2008, I hereby certify that I served a true and correct copy of the foregoing document upon counsel of record by depositing a copy of same in the United States mail, regular delivery, postage prepaid in Carlisle, Cumberland County, Pennsylvania, addressed as follows: Jay W. Stark, Chief Deputy Office of Attorney General Torts Litigation Section 15'h Floor Strawberry Square Harrisburg, PA 17120 Marc A. Moyer Thomas, Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 BY: Renee Knicos Supreme Court ID # 89529 KNICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 ra !'") C`3 <? -t1 ?a -?- -tt .-? r- S-- t, •-,?,3 ?. _ `F ?i ?•,? .-? c ,'? --? PRAECIPE FOR LISTING CASE FOR ARGUMENT TO: THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court on July 9, 2008 The Estate Of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own Right, NO. 08-81 Plaintiffs CIVIL ACTION-LAW V. Select Medical Corporation, and the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing and Unit 1: Voluntary Recovery Program, Defendants 1. 2. JURY TRAIL DEMANDED Matter to be argued: Plaintiff s Petition to file an Amended Complaint Counsel who will argue: (a) for plaintiff: Renee Knicos, Esquire KNICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 Marc A. Moyer, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17101 (b) for defendant Select: 3. 4 I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: July 9, 2008 Date: May 15, 2008 C? "'?-a. ? C' ° ri ?? C?`' ? ^? ? ??? ' c ? -? ? [__. ?, r.? . ? _.. . is .A t ?t_, ..%?. P .??1 t? i ? ' ' P , + - 3?^ .°C Cs.:? THE ESTATE OF MARY ARLEDGE, BY EXECUTORS HENRY ARLEDGE, HUSBAND, AND ANITA ARLEDGE, DAUGHTER, AND HENRY ARLEDGE AND ANITA ARLEDGE INDIVIDUALLY IN THEIR OWN RIGHT, PLAINTIFFS V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS AND UNIT 1: VOLUNTARY RECOVERY PROGRAM, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 08-0081 CIVIL TERM ORDER OF COURT AND NOW, this --? day of May, 2008, a Rule is entered against all defendants to show cause why the relief requested herein should not be granted. Rule returnable twenty (20) days after service. " Renee Knicos, Esquire For Plaintiff Marc A. Moyer, Esquire For Select Medical Corporation V -Jay W. Stark, Esquire For Commonwealth of Pennsylvania l=pr"ES mat, s/z a /08 :sal Q V s C14 C> Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire Attorney I.D. No. 76434 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-3960 - direct mmoyer@tthlaw.com (717) 237-7105 -fax Attorneys for Defendant Select Medical Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS and UNIT 1: VOLUNTARY RECOVERY PROGRAM, Defendants No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY OF DEFENDANT SELECT MEDICAL CORPORATION TO PLAINTIFFS' PETITION TO AMEND THEIR COMPLAINT PURSUANT TO PA. R.CIV.P.1033 AND NOW, comes Defendant Select Medical Corporation ("Select Medical"), by and through its counsel, Thomas, Thomas & Hafer, LLP, and files this Reply to Plaintiffs' Petition to Amend Their Complaint Pursuant to Pa. R.Civ.P. 1033 and, in support thereof, avers as follows: ADMITTED. 2. DENIED as stated. The April 30, 2008, Order of this Honorable Court is a written document which speaks for itself and, therefore, need not be ADMITTED or DENIED. By way of further Answer, it is ADMITTED that the Court permitted Plaintiffs to file a Motion for Leave of Court to Amend Their Complaint to reflect the appointment of Henry Arledge as the personal representative of the Estate of Mary Arledge pursuant to Letters of Administration first sought, and obtained, by Plaintiffs on March 26, 2008. 3. Pennsylvania Rule of Civil Procedure 1033 is a writing which speaks for itself and, therefore, need not be ADMITTED or DENIED. Plaintiffs' attempt to characterize Rule 1033, and its application through their Petition is DENIED. 4. DENIED as stated. It is DENIED that Plaintiffs' Petition merely seeks to "clarify the estate plaintiff'. It is ADMITTED that Plaintiffs seek to amend their Amended Complaint through their Petition by adding a party to the Amended Complaint, i.e. Henry Arledge, who did not exist as the personal representative of the Estate of Mary Arledge prior to the issuance of' Letters of Administration on March 26, 2008. 5. The averments set forth in Paragraph 5 of Plaintiffs' Petition are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, Plaintiffs' characterization of Pennsylvania law, as it pertains to Plaintiffs' ability to amend their Amended Complaint under the facts of this case is DENIED. By way of further Answer, it is ADMITTED that Pennsylvania law expressly prohibits adding a party by amending a complaint following the expiration of the applicable statutes of limitations. 6. The averments set forth in Paragraph 6 of Plaintiffs' Petition are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, the legal authority to which Plaintiffs refer is inapplicable to the present matter, and Plaintiffs' characterization of Pennsylvania law addressing a party's ability to amend a complaint is DENIED. 2 7. DENIED. It is DENIED that Plaintiffs' Petition seeks to "clarify the estate plaintiff'. It is further DENIED that granting Plaintiffs' Petition will not result in prejudice to Select Medical, or that Plaintiffs' Petition does not seek to add a party to this action. 8. DENIED. The averments set forth in Paragraph 8 of Plaintiffs' Petition are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that Henry Arledge was the "right party" identified in Plaintiffs' Amended Complaint to the extent Henry Arledge did not hold the position as the personal representative of the Estate of Mary A. Arledge until he was first granted Letters of Administration on March 26, 2008. 9. ADMITTED. 10. ADMITTED. WHEREFORE, for the reasons set forth herein, Defendant Select Medical Corporation, respectfully requests that this Honorable Court deny Plaintiffs' Petition to Amend Their Complaint Pursuant to Pa. R.Civ.P. 1033. NEW MATTER 11. The decision to grant or deny leave of court to amend a complaint lies within the sound discretion of the trial court. Geiman v. Board of Assessment and Revision of Taxes, 412 Pa. 608, 195 A.2d 352 (1963). 12. While the right to amend a complaint is to be construed liberally, it is not absolute, and is subject to the qualification that such an amendment may not introduce a new cause of action, or new party after the statute of limitations has run. Laursen v. General Hospital of Monroe County, 494 Pa. 238, 431 A.2d 237 (1981), Lovejoy v. Georgeff, 224 Pa. Super. 206, 303 A.2d 501 (1973). 3 13. In this case, the pleadings are not closed, and the parties have not exchanged formal discovery. 14. Due to the absence of such discovery, the issue of whether Plaintiffs had initiated suit on behalf of the Estate of Mary Arledge and/or obtained Letters of Administration prior to the expiration of the applicable statutes of limitation cannot to be determined at this stage in the proceedings. 15. In light of the dearth of factual information currently of record, Plaintiffs' Petition to Amend Their Complaint is premature and, therefore, should be denied. 16. In the event this Court determines that Plaintiffs' Petition to Amend Their Complaint is it ripe for determination, Defendant Select Medical Corporation believes and, therefore, avers, that such an amendment should be limited to the factual averment that "Henry A. Arledge brings this suit as the personal representative of the Estate of Mary A. Arledge pursuant to Letters of Administration granted to Henry A. Arledge by the Register of Wills for Dauphin County, Pennsylvania on March 26, 2008". 17. In the event this Honorable Court determines that Plaintiffs' Petition to Amend Their Complaint is ripe for determination in the absence of discovery, Defendant Select Medical Corporation believes and, therefore, avers that the Court's determination should not preclude Defendant Select Medical Corporation from later seeking summary judgment on claims brought by the personal representative of the Estate of Mary Arledge based upon asserted affirmative defenses, including the expiration of applicable statutes of limitations. 18. In the interest of judicial economy, undersigned counsel attempted to resolve Plaintiffs' Petition by entering into the proposed Stipulation attached hereto as Exhibit "A". By 4 telephone message left with undersigned counsel by counsel for the Plaintiffs on June 9, 2008, counsel for the Plaintiffs declined to enter into the Stipulation, thereby necessitating this Reply. WHEREFORE, Defendant Select Medical Corporation respectfully requests that this Honorable Court deny Plaintiffs' Petition to Amend Their Complaint. Alternatively, Defendant Select Medical Corporation requests that should this Honorable Court permit Plaintiffs' to amend their Amended Complaint, such an amendment be limited to the factual averment that "Henry A. Arledge brings this suit as the personal representative of the Estate of Mary A. Arledge pursuant to Letters of Administration granted to Henry A. Arledge by the Register of Wills for Dauphin County, Pennsylvania on March 26, 2008", and enter the Order attached hereto. Respectfully submitted, Dated: 6 f0/0 t THOMAS, THOMAS & HAFER, LLP Marc A. Moyer, Es ire Attorney I.D. No 6434 305 North Fron Street P.O. Box 999 Harrisburg, PA 17108-0999 717-441-3960 mmoyer@tthlaw.com Attorneys for Defendant Select Medical Corporation 5 ?xG,?bi,l ff- m Jd ,of, ®a313AO38 S31a3S 00006 Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire Attorney I.D. No. 76434 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-3960 - direct mmoyer@fthlaw.com (717) 237-7105 - fax Attorneys for Defendant Select Medical Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. : No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS and UNIT l: VOLUNTARY RECOVERY PROGRAM, Defendants STIPULATION BETWEEN PLAINTIFFS THE ESTATE OF MARY A. ARLEDGE, BY EXECUTORS HENRY ARLEDGE, HUSBAND AND ANITA ARLEDGE, DAUGHTER AND HENRY ARLEDGE AND ANITA ARLEDGE INDIVIDUALLY, IN THEIR OWN RIGHT AND DEFENDANT SELECT MEDICAL CORPORATION The following is hereby stipulated by and between the undersigned counsel of record: 1. Select Medical Corporation hereby agrees to not oppose Plaintiffs amending their Amended Complaint by adding the following averment to the Amended Complaint: "Henry A. Arledge brings this suit as the personal representative of the Estate of Mary A. Arledge pursuant to Letters of Administration granted to Henry A. Arledge by the Register of Wills for Dauphin County, Pennsylvania on March 26, 2008." 2. In exchange for Select Medical Corporation's Agreement to not oppose Plaintiffs' Petition to Amend their Complaint (the "Petition") in the manner set forth in Paragraph 1 of this Stipulation, Plaintiffs stipulate that Select Medical Corporation has not waived any right to obtain summary judgment against the Estate of Mary A. Arledge, or Henry Arledge and/or Anita Arledge as the Executors of the Estate by entering into this Stipulation and/or by not opposing Plaintiffs' Petition. Arthur K. Hoffinan, Esquire Attorney I.D. No. 31782 Marc A. Moyer, Esquire Attorney I.D. No. 76434 THOMAS, THOMAS & HAFER, LLP 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7100 Attorneys for Defendant Select Medical Corp Date: 599443.1 Renee Knicos, Esquire Knicos Law Office, LLC 301 South Hanover Street, Suite 1 2001 Market Street Carlisle, PA 17013 Attorneys for Plaintiffs Estate of Mary A. Arledge, by Executors Henry Arledge, Husband and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in Their Own Right Date: 2 CERTIFICATE OF SERVICE fh On this day of June 2008, I, Jennifer L. Deitch, legal secretary, with the law finn of Thomas, Thomas & Hafer, LLP, hereby certify that I have, this day, served a true and correct copy of the REPLY OF DEFENDANT SELECT MEDICAL CORPORATION TO PLAINTIFFS' PETITION TO AMEND THEIR COMPLAINT PURSUANT TO PA. R.CIV.P. 1033 upon the person(s) and at the address(es) below named via United States First Class Mail, postage prepaid, in Harrisburg, PA: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 Counsel for Plaintiff Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Counsel for The Commonwealth Of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, The Division of Health Monitoring Programs and Unit I Voluntary Recovery Program Jenni er L. D tch :599463.1 6 c? C) C c? Ti ? - 1 Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover street, Suite 1 Carlisle, PA 17013 717.249.6808 Fax 249.5970 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA The Estate Of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own Right, Plaintiffs No. 08-81 V. Select Medical Corporation, and the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, and the Division of Health Monitoring Programs, and Unit 1 Voluntary Recovery Program Defendants CIVIL ACTION-LAW JURY TRIAL DEMANDED PLAINTIFFS' MOTION TO MAKE RULE ABSOLUTE AGAINST AGAINST DEFENDANT COMMONWEALTH OF PENNSYLVANIA et al AND NOW, come the Plaintiffs, by and through their attorney, Renee Knicos, Esquire, and file this Motion To Make Rule Absolute against defendant Commonwealth of Pennsylvania, et al, and in support thereof, aver the following: 1. On May 7, 2008, Plaintiffs' files their Petition To Amen d Their Complaint in Page -1- ? - 4 response to the Court's ORDER of April 30, 2008, granting plaintiffs the right to file their Petition. 2. On May 22, 2008, this Honorable Court entered a Rule against all defendants in its ORDER, to show cause why Plaintiffs' Petitio n To Amend Their Complaint should not be granted, by Judge Edgar B. Bayley, granting twenty (20) days for their responses. 3. Defendant Select Medical Corporation timely filed their response. 4. As of this date, June 16, 2008, Defendant Commonwealth Of Pennsylvania, Department os State, Bureau of Professional and Occupational Affairs, State Board of Nursing and the Division of Health Monitoring Programs and Unit 1, Voluntary Recovery Programs, has not filed its response in accordance to the court's ORDER. WHEREFORE, Plaintiffs respectfully request this Honorable Court GRANT their Petition To Amend Their Complaint as to this defendant only. .Dated: June 16, 2008 Respectfully submitted, Ke ee Knicos 96preme Court ID # 89529 Knicos Law Office, LLC 301 S. Hanover street, Suite 1 Carlisle, PA 17013 717.249.6808 Page -2- AND NOW, this that I served a true and correct copy of the 2008, I hereby certify document upon counsel of record by depositing a copy of same in the United States mail, regular delivery, postage prepaid in Carlisle, Cumberland County, Pennsylvania, addressed as follows: Jay W. Stark, Chief Deputy Office of Attorney General Torts Litigation Section 15' Floor Strawberry Square Harrisburg, PA 17120 Marc A. Moyer Thomas, Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 BY: I Renee ' s Supreme ourt ID # 89529 KNICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 `rt tr czt W .. THE ESTATE OF MARY ARLEDGE, BY EXECUTORS HENRY ARLEDGE, HUSBAND, AND ANITA ARLEDGE, DAUGHTER, AND HENRY ARLEDGE AND ANITA ARLEDGE INDIVIDUALLY IN THEIR OWN RIGHT, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL : AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS AND UNIT 1: VOLUNTARY RECOVERY PROGRAM, DEFENDANTS 08-0081 CIVIL TERM ORDER OF COURT AND NOW, this day of June, 2008, following a review of the petition of plaintiff to amend a complaint, and the reply filed by Select Medical Corporation, a hearing shall be conducted to determine if the statute of limitations has run, and to hear oral argument and briefs on the issue of whether leave should be granted to amend the complaint, at 8:45 a.m., Tuesday, July 1, 2008, in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. By the urt, ,J Edgar B. Bayley, J. 9we ,,r C'Q L£? ? 'mow . i t p 00 Renee Knicos Esquire For Plaintiff Marc A. Moyer, Esquire /For Select Medical Corporation Z jay W. Stark, Esquire For Commonwealth of Pennsylvania :sal rM -7 ( LL ti. I . - THE ESTATE OF MARY ARLEDGE, BY EXECUTORS HENRY ARLEDGE, HUSBAND, AND ANITA ARLEDGE, DAUGHTER, AND HENRY ARLEDGE AND ANITA ARLEDGE INDIVIDUALLY IN THEIR OWN RIGHT, PLAINTIFFS V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL : AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS AND UNIT 1: VOLUNTARY RECOVERY PROGRAM, : DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 08-0081 CIVIL TERM ORDER OF COURT AND NOW, this Gov day of June, 2008, the plaintiffs motion to file an amended complaint is stricken from the argument court scheduled for July 9, 2008.' By thef6urt, Edgar B. Bayley, J. 'The court needs to take evidence on the motion and a hearing is already scheduled for July 1, 2008. The motion will be decided by this judge following that hearing. c-? L17" C\j Renee Knicos, Esquire For Plaintiff Marc A. Moyer, Esquire For Select Medical Corporation ,/,*J'ay W. Stark, Esquire For Commonwealth of Pennsylvania Court Administrator sal 1:.0 ? t E S rrt?.t lF? THE ESTATE OF MARY ARLEDGE, BY EXECUTORS HENRY ARLEDGE, HUSBAND, AND ANITA ARLEDGE, DAUGHTER, AND HENRY ARLEDGE AND ANITA ARLEDGE INDIVIDUALLY IN THEIR OWN RIGHT, PLAINTIFFS V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL : AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS AND UNIT 1: VOLUNTARY RECOVERY PROGRAM, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 08-0081 CIVIL TERM ORDER OF COURT AND NOW, this 101 lay of July, 2008, the motion of plaintiffs to amend their complaint, IS DENIED. By the Court, ztut'/ Edgar B. Bayley, J. Renee Knicos, Esquire For Plaintiff Marc A. Moyer, Esquire For Select Medical Corporation Jay W. Stark, Esquire For Commonwealth of Pennsylvania sal gat -? 3A- G'A? THE ESTATE OF MARY ARLEDGE, BY EXECUTORS HENRY ARLEDGE, HUSBAND, AND ANITA ARLEDGE, DAUGHTER, AND HENRY ARLEDGE AND ANITA ARLEDGE INDIVIDUALLY IN THEIR OWN RIGHT, PLAINTIFFS V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL : AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS AND UNIT 1: VOLUNTARY RECOVERY PROGRAM, DEFENDANTS 08-0081 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF SELECT MEDICAL CORPORATION TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY, J. AND EBERT. J. ORDER OF COURT AND NOW, this LD!day of July, 2008, the preliminary objection of defendant, Select Medical Corporation to Counts I, II and III of plaintiffs' complaint, IS GRANTED. Counts I, 11 and III, ARE DISMISSED. By t Court, Edgar B. Bayley, J. \ 1 i a u (L ? i"3.?l Q- N 08-0081 CIVIL TERM Renee Knicos, Esquire 301 South Hanover Street, Suite 1 Carlisle, PA 17013 For Plaintiffs Marc A. Moyer, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 For Select Medical Corporation Jay W. Stark, Esquire Office of Attorney General 15th Floor Strawberry Square Harrisburg, PA 17120 For Commonwealth of Pennsylvania :sal -2- THE ESTATE OF MARY ARLEDGE, BY EXECUTORS HENRY ARLEDGE, HUSBAND, AND ANITA ARLEDGE, DAUGHTER, AND HENRY ARLEDGE AND ANITA ARLEDGE INDIVIDUALLY IN THEIR OWN RIGHT, PLAINTIFFS V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL : AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS AND UNIT 1: VOLUNTARY RECOVERY PROGRAM, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 08-0081 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF SELECT MEDICAL CORPORATION TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., July 10, 2008:-- On January 7, 2008, a writ of summons was filed with the following caption: "The Estate of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own Right." On February 12, 2008, plaintiffs filed a complaint with the same caption. The only averments in the complaint as to the identity of the plaintiffs are: 1. Mary Arledge is a deceased person who at the time in question was employed by the defendant hospital as a registered nurse (RN). 2. Plaintiff Henry Arledge is the widower of Mary Arledge and is suing on behalf of the estate and in his own right. 08-0081 CIVIL TERM 3. Anita Arledge is the daughter of Mary Arledge and is suing on behalf of the estate and in her own right. On March 3, 2008, Select Medical Corporation filed preliminary objection to the complaint seeking to dismiss Counts 1, 11, 111 and IV as brought by the wrong party. No estate of Mary A. Arledge was opened until March 26, 2008, when Henry A. Arledge was granted letters of administration as Mary A. Arledge died intestate. On May 22, 2008, plaintiffs filed a petition to amend their complaint to name as a plaintiff Henry A. Arledge as the personal representative of the estate. A Rule To Show Cause was issued and a hearing was conducted on July 1, 2008. At the hearing, plaintiffs stipulated that a two year statute of limitations had run. Therefore, as discussed in an opinion previously filed on Select Medical's preliminary objection on April 30, 2008, plaintiffs' motion to amend their complaint to add a new party was denied. In an order of April 30, 2008, disposition was deferred on the motion of Select Medical Corporation to dismiss Counts I, 11 and III of plaintiffs' complaint pending a determination of whether the complaint could be amended.' Because plaintiffs cannot amend their complaint, we must now decide whether Select Medical's preliminary objection should be granted. Notwithstanding that a decedent's estate cannot be a party to litigation unless a personal representative exists, plaintiffs maintain that because Henry A. Arledge was appointed administrator of the estate of Mary A. Arledge on March 26, 2008, the relation back doctrine cures the defect. The relation back doctrine was extensively ' The order of April 30, 2008, dismissed Count IV of plaintiffs' complaint on other grounds. -2- 08-0081 CIVIL TERM reviewed in Prevish v. Northwest Medical Center - Oil City Campus, 692 A.2d 192 (Pa. Super. 1997), in which the Superior Court of Pennsylvania analyzed the following cases: Estate of Gasbarini v. Medical Center of Beaver County, Inc., 487 Pa. 266 (1979); D'Orazio v. Locust Lake Village, Inc., 267 Pa. Super. 124 (1979); Marzella v. King, 256 Pa. Super. 179 (1978); McGuire v. Erie Lackawanna Railway Company, 253 Pa. Super. 531 (1978); Lovejoy v. Georgeff, 224 Pa. Super. 206 (1973); and Wilkes-Barre General Hospital v. Lesho, 62 Pa. Commw. 222 (1981). In Prevish, the Superior Court stated: "Simply stated, the doctrine of relation back as applied to cases where an estate is a party means that the courts under certain circumstances will validate the acts of the personal representative of the estate which preceded the date of his official appointment." Lesho, 62 Pa.Commw. at 225, 435 A.2d at 1342. Thus, where a plaintiff, acting as the personal representative of an estate, initiates an action before the statute of limitations has run, but also before his or her appointment as personal representative has been finalized, the doctrine of relation back may be applied in appropriate circumstances to validate the filing of the action, even though the plaintiffs appointment is not finalized until after the limitations period has expired. Gasbarini, supra; McGuire, supra; D'Orazio, supra; Lesho, supra.... In McGuire, the earliest of the cases, the plaintiff petitioned to be appointed administrator of the estate of his teenage daughter, who had died of injuries sustained when she was struck at a railroad crossing by an Erie Lackawanna freight train. Although the plaintiff paid the filing fee, he was not issued letters of administration because he had not posted bond. On the day before the limitations period expired, the plaintiff commenced a survival action by filing a complaint in which he averred that he was the administrator of his daughter's estate. It was not until three weeks later, however, that the plaintiff posted the necessary bond and was issued letters of administration. The defendant railroad asserted a statute of limitations defense in its answer and new matter and in a motion for summary judgment. The trial court denied summary judgment and certified its order to the Superior Court as involving a controlling question of law. The Superior Court held that the plaintiffs actions had been -3- 08-0081 CIVIL TERM sufficient to fulfill the purposes of the statute of limitations (namely, "to expedite litigation and thus to discourage delay and the presentation of stale claims[,]" id., 253 Pa.Super. at 535, 385 A.2d at 468), within the statutory period. When the complaint was filed, it represented a timely statement of every element of the claim, except in one respect: the plaintiff appellee had not been formally named administrator. That deficiency, however, was minimal. At the time the complaint was filed, that is, within the statutory period, appellee had applied for letters of administration .... Appellee's appointment as administrator was substantially assured at the time the complaint was filed, that is, within the statutory period of limitations. Id., 253 Pa.Super. at 535-36, 385 A.2d at 468. The Superior Court contrasted the case before it with the earlier case of Lovejoy, supra, in which a plaintiff had timely filed a writ of summons on behalf of his injured son against the father of a deceased driver as "administrator" of the driver's estate. Although the plaintiff had applied for the issuance of letters of administration for the estate, letters had not yet been issued when the plaintiff filed the writ of summons; it was not until after the statute of limitations had run that the decedent's father was appointed administrator. The McGuire court noted that in Lovejoy, when the [writ of summons6] was filed, the identity of the administrator was uncertain; either parent could have renounced the right to letters and the other accepted, or both could have renounced.... Thus it was quite possible that the [writ of summons] had identified as a party someone who was not, and would not become, a party, so that the [writ of summons] might have been served on the wrong person entirely. McGuire, 253 Pa.Super. at 537, 385 A.2d at 469 (footnote omitted). The McGuire court reasoned that it was such instability which proved fatal to application of the relation back doctrine in Lovejoy. In McGuire, by contrast, the defendant railroad could "proceed on the presumption that' appellee's appointment as plaintiff-administrator would be completed. Given this fact, the relationship between the parties was not affected with the sort of instability that statutes of limitations seek to preclude. 6 In its discussion of Lovejoy, the McGuire court indicates that it was a complaint which was filed prior to the expiration of the limitations period. In fact, it was a writ of summons; a complaint was filed later. -4- 08-0081 CIVIL TERM Id., 253 Pa.Super. at 536, 385 A.2d at 468-69, quoting Beckman v. Owens, 135 Pa.Super. 404, 408, 5 A.2d 626, 627 (1939). Accordingly, the Superior Court applied the doctrine of relation back "so that the action of appellee in instituting this suit within the limitation period but prior to his appointment may be validated by his appointment after the period." Id., 253 Pa.Super. at 533-34, 385 A.2d at 467. The Superior Court reached the same result on similar facts in D'Orazio, supra. That case arose from the drowning death on July 8, 1973, of a nine-year-old child in a lake on the defendants' property. On June 11, 1974, a writ of summons was issued in the name of the child's mother, "Theresa D'Orazio, Trustee, ad litem," as plaintiff. The plaintiff- mother filed a petition for letters of administration one month later. On October 24, 1974, she filed a complaint naming herself, "Administratrix of the Estate of Patrick L. Lawler, Deceased," as plaintiff. Because she had obtained the required bond and paid bond premiums for several years, the plaintiff assumed that letters of administration had been issued to her. Unbeknownst to her, however, letters had not been issued because she had failed to execute the bond. The plaintiff's counsel eventually learned of the omission, the plaintiff signed the bond on January 11, 1977, and letters of administration were issued to her. The defendants raised a statute of limitations defense, and the trial court, refusing to apply the relation back doctrine, granted the defendants' motion for summary judgment. On appeal, the Superior Court concluded that the case was controlled by McGuire, supra. Although appellant here was finally granted letters much longer after the statute's running than was Mr. McGuire, this fact does not alter our disposition. The crucial factors are that letters had been requested and the action commenced within the statutory period, and appellant's appointment as administratrix, under the circumstances of this case, "was substantially assured at the time the complaint was filed.... within the statutory period of limitations." Id., 267 Pa.Super. at 129, 406 A.2d at 552, quoting McGuire, 253 Pa.Super. at 535, 385 A.2d at 468. Accordingly, the Superior Court, applying the doctrine of relation back, reversed the order of summary judgment and remanded for further proceedings. The Supreme Court addressed the relation back doctrine in Gasbarini, supra. The decedent in that case had died on June 26, 1973, while a patient in the defendant hospital under the care of the defendant physicians. His widow promptly applied for letters of administration but was not issued them because her counsel failed to post bond. On September 26, 1973, counsel commenced an action in trespass by writ of -5- 08-0081 CIVIL TERM summons identifying the plaintiff as "Estate of Gabriel C. Gasbarini." When counsel failed to respond to the defendant hospital's rule to file a complaint, a judgment of non pros was entered. Counsel filed a second summons on June 20, 1974, again naming the estate as plaintiff. This was followed on November 15, 1974, by a complaint which named the estate as plaintiff in the caption and which asserted wrongful death and survival actions. The defendants filed preliminary objections alleging that the estate was not a proper party. Counsel did not respond to the preliminary objections; he was subsequently suspended from the practice of law and then disbarred. On January 31, 1975, the trial court sustained the preliminary objections and dismissed the complaint. In July 1975 the plaintiff was able to secure new counsel. She posted bond, was named administratrix of the estate, and petitioned to reinstate the complaint and to amend its caption. On January 29, 1976, the trial court ordered that its judgment in favor of the defendants be opened and that the plaintiff be granted leave to file an amended complaint. The Superior Court reversed the trial court, and the plaintiff appealed to the Supreme Court. With regard to the defendants' argument that permitting the plaintiff to amend the complaint would improperly add a new party to the proceedings, the Supreme Court reasoned as follows: In the instant case, appellant had taken all necessary steps to be appointed administratrix of decedent's estate except posting the required bond, and this omission was clearly the fault of [counsel]. Further, paragraph 9 of the complaint in trespass alleged: "Plaintiff is the widow and was duly appointed administratrix of [the decedent's] estate by the Register of Wills of Beaver County, Pennsylvania...." It is clear that allowing amendment of the caption in no way adds a new party to the suit. Id., 487 Pa. at 271-72, 409 A.2d at 346 (citation omitted). The Court also found no merit in the defendants' argument that amendment of the complaint would deprive them of a meritorious statute of limitations defense. The original complaint ... made clear that the action was based upon our wrongful death and survival statutes. Further, as previously mentioned, the complaint made clear that appellant was bringing this action in her capacity as administratrix of the decedent's estate. We believe the instant case is on all fours with McGuire and we believe its reasoning is persuasive. Instantly, the only -6- 08-0081 CIVIL TERM deficiency in appellant's complaint was the fact she had not yet been named administratrix of decedent's estate. All other requirements, however, had been completed within a short time period after decedent's death and within the applicable statute of limitations for either a wrongful death or survivor action. As we believe the appointment of appellant as administratrix should relate back to the ... date on which the complaint was filed, we find that neither action is barred by the applicable statute of limitations. Id., 487 Pa. at 272-73, 409 A.2d at 346-47. Accordingly, the Supreme Court reversed the order of the Superior Court and reinstated the order of the trial court. In Lesho, supra, the relation back issue arose in the context of proceedings before the Arbitration Panels for Health Care. The plaintiffs, whose daughter had died allegedly as the result of medical malpractice, filed a complaint identifying themselves in the caption and body of the complaint as administrators of the decedent's estate. In fact, however, they did not apply for and were not granted letters of administration until after the statute of limitations had expired. The defendants moved for summary judgment on that basis. Their motion was denied by the Administrator of the Arbitration Panels for Health Care, who ruled that the relation back doctrine applied. His order was certified as involving a controlling question of law, and the Commonwealth Court allowed the defendants to take an interlocutory appeal from that order. On appeal, the defendants argued that there was a critical difference between McGuire and its progeny and the case in which they were involved: "in each of those cases the administrator had at least applied for letters before the statute ran and there was a substantial assurance that the letters would be granted to the person alleging his or her fiduciary capacity in the pleading." Id., 62 Pa.Commw. at 226, 435 A.2d at 1342 (emphasis supplied in original). Nevertheless, the Commonwealth Court affirmed, concluding that the reasoning of McGuire and Gasbarini was applicable to the case before it.' Absolutely nothing was changed in the Leshos' complaint by virtue of letters of administration having been granted to them after the statute of limitations had run. From the time the original complaint was filed, the Petitioners were aware that they were being sued for their alleged negligence resulting in the death of a named decedent. Every element necessary to establish the two The decisions of the Commonwealth Court are not binding upon us. Johnson v. Singleton, 442 Pa.Super. 206, 658 A.2d 1372 (1995). We may consider them for their persuasive value, however. -7- 08-0081 CIVIL TERM causes of action [wrongful death and survival] against the Petitioners was set forth in the complaint, including the erroneous fact that the Leshos had been appointed administrators of their daughter's estate.... At the very least, the fact that both parents had been petitioners in that proceeding would discount the possibility of a renunciation by one of them, such as occurred in Lovejoy, supra. In any event, it is our opinion that by permitting the doctrine to apply to the circumstances of this case, the acts of the administrators will have been validated, a just result will have been achieved, the estate will have been benefited and a remedy will not have been lost. Neither will the objectives of the statue of limitations have been disturbed. Id., 62 Pa.Commw. at 228, 435 A.2d at 1343. In Prevish, on September 8, 1994, a writ of summons was issued in which plaintiff was identified as "Estate of Judith A. Bills, Deceased." On November 18, 1994, plaintiff filed a complaint alleging a cause of action under the Survival Act, 42 Pa.C.S. Section 8302, which was captioned: "Thomas D. Prevish, Executor of the Estate of Judith A. Bills, Deceased." Plaintiff averred that he had been appointed executor on November 15, 1994. A defendant filed a motion to strike the complaint because the suit was commenced in the name of the estate of the decedent rather than the name of the personal representative, and because the statute of limitations had run, the defect could not be amended by naming a new party. The trial court rejected plaintiff's argument that the relation back doctrine applied and the complaint was stricken. On appeal, the Superior Court affirmed, stating: The writ of summons was the only document filed before the limitations period expired, and its caption identifies the estate of the decedent as the plaintiff. Such a writ is, of course, a nullity. Moreover, the writ does not identify the executor of the estate, nor does it inform the defendants that there is, even potentially, an executor (that is, that the decedent died testate). Concerning the parties' relationship, these facts evidence "the -8- 08-0081 CIVIL TERM sort of instability that statutes of limitation seek to preclude." McGuire, supra. Appellant has cited no case, and we are aware of none, in which the relation back doctrine was applied to ratify, post-appointment, the attempted commencement of an action by a personal representative whose existence was in no way suggested by the pleading that he filed. We decline to extend the doctrine to encompass such a situation. Accordingly, we affirm the trial court's order dismissing the complaint. In the case sub judice: 1. The writ of summons wrongly identifies the plaintiffs as "The Estate of Mary Arledge by Executors Henry Arledge husband, and Anita Arledge daughter," because no estate had been opened. 2. Henry Arledge and Anita Arledge could not be the executors of the estate of Mary Arledge because Mary Arledge died intestate. 3. While the complaint contained the same caption as the writ of summons, it only identifies Henry Arledge and Anita Arledge as "suing on behalf of the estate," which they could not do because no estate had been opened. 4. When an estate was opened after the complaint was filed Henry Arledge was appointed the administrator of the estate of Mary Arledge. 5. Anita Arledge has never been a personal representative of the estate of Mary Arledge. Accordingly, in the writ of summons and the complaint Henry Arledge and Anita Arledge were wrongly identified as the executors of the estate of Mary Arledge, and in the body of the complaint they were wrongly identified as suing on behalf of the estate. Neither the writ nor the complaint informs defendants of the possibility of there being an -9- 08-0081 CIVIL TERM administrator of the estate nor of the identity of any administrator. As set forth in Prevish, the relation back doctrine has not been applied to ratify, post-appointment, the attempted commencement of an action by a personal representative whose existence was in no way suggested by the pleadings that were filed. Plaintiffs suggest that Lesho is applicable. Lesho as well as McGuire and D'Orazio involved survival actions which were commenced by the filing of a complaint which identified the plaintiff in the caption by name as the administrator of the decedent's estate. In Gasbarini, a survival action was commenced by the filing of a complaint the caption of which named the decedent's estate as the plaintiff, but the body of which explained that the plaintiff was in fact the administratrix of the estate. While the relation back doctrine applied in those cases, Lovejoy and Prevish control the resolution of this case where the relation back doctrine is not applicable. Accordingly, the following order is entered. ORDER OF COURT AND NOW, thist day of July, 2008, the preliminary objection of defendant, Select Medical Corporation to Counts I, II and III of plaintiffs' complaint, IS GRANTED. Counts I, II and III, ARE DISMISSED. Court, Edgar B. Bayley, J. f -10- 08-0081 CIVIL TERM Renee Knicos, Esquire 301 South Hanover Street, Suite 1 Carlisle, PA 17013 For Plaintiffs Marc A. Moyer, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 For Select Medical Corporation Jay W. Stark, Esquire Office of Attorney General 15th Floor Strawberry Square Harrisburg, PA 17120 For Commonwealth of Pennsylvania :sal -11- Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire Attorney I.D. No. 76434 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-3960 - direct mmoyer@tthlaw.com (717) 237-7105 - fax Attorneys for Defendant Select Medical Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE No. 08-81 CIVIL TERM Individually In Their Own Right, ; Plaintiffs CIVIL ACTION - LAW V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS and UNIT 1: VOLUNTARY RECOVERY PROGRAM, Defendants : JURY TRIAL DEMANDED ANSWER OF DEFENDANT SELECT MEDICAL CORPORATION TO PLAINTIFFS' FIRST AMENDED COMPLAINT TOGETHER WITH NEW MATTER AND NEW MATTER CROSS CLAIM AND NOW, comes Defendant Select Medical Corporation ("Select Medical"), by and through its counsel, Thomas, Thomas & Hafer, LLP, and respectfully submits its Answer to Plaintiffs' First Amended Complaint, together with New Matter and New Matter Cross Claim as follows: PARTIES 1. DENIED. It is DENIED that Plaintiffs' Decedent, Mary A. Arledge, R.N. was employed by Select Medical at anytime material to Plaintiffs' First Amended Complaint. 2. DENIED as stated. It is ADMITTED that Plaintiff, Henry Arledge, is the widower of Mary Arledge based upon its information and belief, and that he has brought this suit in his own right. It is DENIED that Plaintiff Henry Arledge properly brought this suit on behalf of the Decedent's Estate. 3. DENIED as stated. It is ADMITTED that Anita Arledge is the daughter of Plaintiffs' Decedent based upon its information and belief, and that she has brought this suit in her own right. It is DENIED that Anita Arledge has brought this suit on behalf of the Decedent's Estate. 4. DENIED as stated. It is ADMITTED that Select Medical, through its wholly owned subsidiaries, operates specialty hospitals and outpatient rehabilitation clinics, and provides medical rehabilitation services on a contract basis at nursing homes, hospitals, assisted living and senior care centers, schools, private homes and worksites. After reasonable investigation, Select Medical lacks sufficient knowledge or information to form a belief as to the extent to which Plaintiffs believe Select Medical held itself out in the community as being properly equipped and staffed and rendering quality care, acting through its departments, medical groups, staff members and other agents, servants or employees so as to properly respond. The averments are, therefore, DENIED. By way of further Answer, it is ADMITTED that the facility at which Decedent was employed was properly equipped and staffed, and that quality care was rendered to patients at Decedent's place of employment at all times material to Plaintiffs' First Amended Complaint. 2 5. The averments set forth in Paragraph 5 of Plaintiffs' First Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, Select Medical is without sufficient knowledge or information to form a belief as to the extent to which Plaintiffs and/or Plaintiffs' Decedent believed it acted or appeared to act through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in furtherance of its business. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 6. To the extent the averments set forth in Paragraph 6 of Plaintiffs' First Amended Complaint are directed to a Defendant other than answering Defendant, the averments need not be ADMITTED or DENIED. 7. To the extent the averments set forth in Paragraph 7 of Plaintiffs' First Amended Complaint are directed to a Defendant other than answering Defendant, the averments need not be ADMITTED or DENIED. To the extent the averments set forth in Paragraph 8 of Plaintiffs' First Amended Complaint are directed to a Defendant other than answering Defendant, the averments need not be ADMITTED or DENIED. 9. To the extent the averments set forth in Paragraph 9 of Plaintiffs' First Amended Complaint are directed to a Defendant other than answering Defendant, the averments need not be ADMITTED or DENIED. 10. To the extent the averments set forth in Paragraph 10 of Plaintiffs' First Amended Complaint are directed to a Defendant other than answering Defendant, the averments need not be ADMITTED or DENIED. 3 11. To the extent the averments set forth in Paragraph 11 of Plaintiffs' First Amended Complaint are directed to a Defendant other than answering Defendant, the averments need not be ADMITTED or DENIED. JURISDICTION AND VENUE 12. Paragraphs 1 through 11 of Defendant Select Medical Corporation's Answer are incorporated by reference as if fully set forth at length herein. 13. The averments set forth in Paragraph 13 of Plaintiffs' First Amended Complaint are conclusions of law to which no response is required. 14. The averments set forth in Paragraph 14 of Plaintiffs' First Amended Complaint are conclusions of law to which no response is required. FACTS 15. Paragraphs 1 through 14 of Defendant Select Medical Corporation's Answer are incorporated by reference as if fully set forth at length herein. 16. DENIED as stated. It is ADMITTED that Plaintiffs' Decedent, Mary Arledge reported to work at Select Specialty Hospital-Central Pennsylvania-York ("Select Specialty Hospital-York") on or about January 6, 2006. 17. DENIED as stated. It is ADMITTED that Plaintiffs' Decedent, Mary Arledge, was informed that narcotic medication at Select Specialty Hospital-York may have been tampered with, and that Select Specialty Hospital-York requested the Decedent to submit to drug testing as a person having access to the medication in question. 18. DENIED as stated. It is ADMITTED that Plaintiffs' Decedent, Mary Arledge, agreed to submit to drug testing. It is DENIED that Plaintiffs' Decedent indicated that her drug test would be positive for narcotics at the time she provided her urine sample. 4 19. To the extent the averments set forth in Paragraph 19 of Plaintiffs' First Amended Complaint attempt to memorialize information set forth on Plaintiffs' Decedent's FMLA application, the writing is a written document which speaks for itself and, therefore, need not be ADMITTED or DENIED. By way of further Answer, it is ADMITTED that Select Specialty Hospital-York was aware of Plaintiffs' Decedent's illness prior to January 6, 2006, and that Select Specialty Hospital-York was in possession of FMLA documentation pertaining to the Decedent. 20. DENIED. 21. DENIED. It is DENIED that Plaintiffs' Decedent's employer confronted her in a "harsh manner" upon receipt of her positive drug test results. After reasonable investigation, Select Medical is without sufficient knowledge or information to form a belief as to why Plaintiffs' Decedent resigned her position. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 22. After reasonable investigation, Select Medical is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 22 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 23. After reasonable investigation, Select Medical is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 23 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 24. After reasonable investigation, Select Medical is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 24 of 5 Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 25. After reasonable investigation, Select Medical is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 25 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 26. After reasonable investigation, Select Medical is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 26 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 27. After reasonable investigation, Select Medical is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 27 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 28. After reasonable investigation, Select Medical is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 28 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 29. After reasonable investigation, Select Medical is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 29 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 6 30. After reasonable investigation, Select Medical is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 30 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. COUNT I. THE ESTATE v. SELECT NEGLIGENT REPORTING 31. Paragraphs 1 through 30 of Defendant Select Medical Corporation's Answer are incorporated by reference as if fully set forth at length herein. 32.-38. Pursuant to the July 10, 2008 Order of the Court dismissing Count I of Plaintiffs' First Amended Complaint, no response is required. WHEREFORE, Defendant Select Medical Corporation respectfully requests that judgment be entered in its favor and against Plaintiffs, and that Plaintiffs' First Amended Complaint be dismissed with prejudice. COUNT II. THE ESTATE v. SELECT TORTIOUS INTERFERENCE WITH AN EMPLOYMENT RELATIONSHIP 39. Paragraphs 1 through 38 of Defendant Select Medical Corporation's Answer are incorporated by reference as if fully set forth at length herein. 40.46. Pursuant to the July 10, 2008 Order of the Court dismissing Count II of Plaintiffs' First Amended Complaint, no response is required. WHEREFORE, Defendant Select Medical Corporation respectfully requests that judgment be entered in its favor and against Plaintiffs, and that Plaintiffs' First Amended Complaint be dismissed with prejudice. 7 COUNT III. THE ESTATE v. SELECT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 47. Paragraphs 1 through 46 of Defendant Select Medical Corporation's Answer are incorporated by reference as if fully set forth at length herein. 48.-53. Pursuant to the July 10, 2008 Order of the Court dismissing Count III of Plaintiffs' First Amended Complaint, no response is required. WHEREFORE, Defendant Select Medical Corporation respectfully requests that judgment be entered in its favor and against Plaintiffs, and that Plaintiffs' First Amended Complaint be dismissed with prejudice. COUNT IV. THE ESTATE v. SELECT DISCRIMINATION 54. Paragraphs 1 through 53 of Defendant Select Medical Corporation's Answer are incorporated by reference as if fully set forth at length herein. 55.-61. Pursuant to the April 30, 2008 Order of the Court dismissing Count IV of Plaintiffs' First Amended Complaint, no response is required. WHEREFORE, Defendant Select Medical Corporation respectfully requests that judgment be entered in its favor and against Plaintiffs, and that Plaintiffs' First Amended Complaint be dismissed with prejudice. COUNT V. THE ESTATE v. BOARD OF NURSING NEGLIGENT PROSECUTION 62. Paragraphs 1 through 61 of Defendant Select Medical Corporation's Answer are incorporated by reference as if fully set forth at length herein. 63.-69. To the extent the averments set forth in Paragraphs sixty-three (63) through sixty- nine (69) of Plaintiffs' First Amended Complaint are directed to a Defendant other than answering Defendant, no response is required. WHEREFORE, Defendant Select Medical Corporation respectfully requests that judgment be entered in its favor and against Plaintiffs, and that Plaintiffs' First Amended Complaint be dismissed with prejudice. COUNT VI. THE ESTATE v. DIVISION OF HEALTH MONITORING PROGRAMS NEGLIGENT SUPERVISION 70. Paragraphs 1 through 69 of Defendant Select Medical Corporation's Answer are incorporated by reference as if fully set forth at length herein. 71.-76. To the extent the averments set forth in Paragraphs seventy-one (71) through seventy-six (76) of Plaintiffs' First Amended Complaint are directed to a Defendant other than answering Defendant, no response is required. WHEREFORE, Defendant Select Medical Corporation respectfully requests that judgment be entered in its favor and against Plaintiffs, and that Plaintiffs' First Amended Complaint be dismissed with prejudice. COUNT VII. THE ESTATE v. VOLUNTARY RECOVERY PROGRAM NEGLIGENCE 77. Paragraphs 1 through 76 of Defendant Select Medical Corporation's Answer are incorporated by reference as if fully set forth at length herein. 78.-86. To the extent the averments set forth in Paragraphs seventy-eight (78) through eighty-six (86) of Plaintiffs' First Amended Complaint are directed to a Defendant other than answering Defendant, no response is required. 9 WHEREFORE, Defendant Select Medical Corporation respectfully requests that judgment be entered in its favor and against Plaintiffs, and that Plaintiffs' First Amended Complaint be dismissed with prejudice. COUNT VIII. HENRY ARLEDGE v. SELECT NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 87. Paragraphs 1 through 86 of Defendant Select Medical Corporation's Answer are incorporated by reference as if fully set forth at length herein. 88. After reasonable investigation, Select Medical t lacks sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 88 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 89. After reasonable investigation, Select Medical lacks sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 89 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 90. After reasonable investigation, Select Medical lacks sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 90 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 91. After reasonable investigation, Select Medical lacks sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 91 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 10 92. After reasonable investigation, Select Medical lacks sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 92 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 93. The averments set forth in Paragraph 93 of Plaintiffs' First Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is believed that various individuals with whom Plaintiffs' Decedent worked knew that Plaintiffs' Decedent was married. The remaining averments set forth in Paragraph 93 of Plaintiffs' First Amended Complaint are DENIED. 94. The averments set forth in Paragraph 94 of Plaintiffs' First Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that Select Medical was negligent, engaged in tortious conduct, or caused or contributed to Henry Arledge experiencing the injuries alleged. 95. The averments set forth in Paragraph 95 of Plaintiffs' First Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that Select Medical recklessly or negligently accused or reported Plaintiffs' Decedent, or that it wrongfully interfered with Plaintiff s Decedent's nursing license. It is further DENIED that Select Medical caused or contributed to Plaintiffs' Decedent or Plaintiff Henry Arledge experiencing the injuries alleged. By way of further Answer: (a) It is DENIED that Select Medical caused or contributed to Plaintiff suffering great anxiety, embarrassment or distress; (b) It is DENIED that Select Medical caused or contributed to Plaintiff suffering mental anguish, depression, anxiety or emotional distress; 11 (c) It is DENIED that Select Medical caused or contributed to Plaintiff suffering economic losses or that it hastened Plaintiffs' Decedent's death. (d) It is DENIED that Select Medical caused or contributed to Plaintiff suffering loss of consortium; and (e) It is DENIED that Select Medical caused or contributed to Plaintiff suffering severe loss of enjoyment of life and life's pleasures. WHEREFORE, Defendant Select Medical Corporation respectfully requests that judgment be entered in its favor and against Plaintiffs, and that Plaintiffs' First Amended Complaint be dismissed with prejudice. COUNT IX HENRY ARLEDGE v. BOARD OF NURSING DIVISION OF HEALTH MONITORING PROGRAMS AND VOLUNTARY RECOVERY PROGRAM NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 96. Paragraphs 1 through 95 of Defendant Select Medical Corporation's Answer are incorporated by reference as if fully set forth at length herein. 97.-101. To the extent the averments set forth in Paragraphs 97 through 101 of Plaintiffs' First Amended Complaint are directed to a Defendant other than answering Defendant, no response is required. WHEREFORE, Defendant Select Medical Corporation respectfully requests that judgment be entered in its favor and against Plaintiffs, and that Plaintiffs' First Amended Complaint be dismissed with prejudice. COUNT X ANITA ARLEDGE v. SELECT NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 102. Paragraphs 1 through 102 of Defendant Select Medical Corporation's Answer are incorporated by reference as if fully set forth at length herein. 12 103. Select Medical t lacks sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 103 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 104. Select Medical lacks sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 104 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 105. Select Medical lacks sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 105 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 106. Select Medical lacks sufficient knowledge or information to form a belief as to the truth or falsity of the averments set forth in Paragraph 106 of Plaintiffs' First Amended Complaint. The averments are, therefore, DENIED and proof thereof is demanded at time of trial. 107. The averments set forth in Paragraph 107 of Plaintiffs' First Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is believed that some individuals with whom Plaintiffs' Decedent worked were aware that Plaintiffs' Decedent had a family. The remaining averments set forth in Paragraph 107 of Plaintiffs' First Amended Complaint are DENIED. 108. The averments set forth in Paragraph 108 of Plaintiffs' First Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed 13 to be factual in nature, it is DENIED that Select Medical was negligent or engaged in tortious conduct towards Plaintiff Anita Arledge or Plaintiffs' Decedent. It is further DENIED that Select Medical caused or contributed to any of Plaintiffs' alleged injuries. 109. The averments set forth in Paragraph 109 of Plaintiffs' First Amended Complaint are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that Select Medical was negligent, that it improperly interfered with Plaintiff's Decedent's nursing license, or that it caused or contributed to Plaintiff Anita Arledge's alleged harm. By way of further Answer: (a) It is DENIED that Select Medical caused or contributed to Plaintiff Anita Arledge suffering anxiety, embarrassment, or distress; (b) It is DENIED that Select Medical caused or contributed to Plaintiff suffering mental anguish, depression, anxiety or emotional distress; (c) It is DENIED that Select Medical caused or contributed to Plaintiff suffering economic losses; (d) It is DENIED that Select Medical caused or contributed to Plaintiff suffering loss of companionship; and (e) It is DENIED that Select Medical caused or contributed to Plaintiff suffering a severe loss of enjoyment of life and life's pleasures. WHEREFORE, Defendant Select Medical Corporation respectfully requests that judgment be entered in its favor and against Plaintiffs, and that Plaintiffs' First Amended Complaint be dismissed with prejudice. COUNT XI. ANITA ARLEDGE v BOARD OF NURSING DIVISION OF HEALTH MONITORING PROGRAMS AND VOLUNTARY RECOVERY PROGRAM NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 14 110. Paragraphs 1 through 109 of Defendant Select Medical Corporation's Answer are incorporated by reference as if fully set forth at length herein. 111.-115 To the extent the averments set forth in Paragraph 111 through 115 of Plaintiffs' First Amended Complaint are directed to a Defendant other than answering Defendant, the averments need not be admitted or denied. WHEREFORE, Defendant Select Medical Corporation respectfully requests that judgment be entered in its favor and against Plaintiffs, and that Plaintiffs' First Amended Complaint be dismissed with prejudice. NEW MATTER 116. Defendant Select Medical Corporation hereby incorporates its answers to Paragraphs 1 through 115 of its Answer to Plaintiffs' First Amended Complaint by reference as if fully set forth at length herein. 117. Discovery may show that Plaintiffs' First Amended Complaint fails to state a cause of action against Select Medical Corporation upon which relief can be granted under Pennsylvania law. 118. Discovery may show that Plaintiffs' claims are barred and/or limited by Plaintiffs' comparative negligence. 119. Discovery may show that Plaintiffs' and/or Plaintiffs' Decedent's actions or failure to act were the sole and proximate cause of the Decedent's and/or Plaintiffs' injuries and/or damages. 120. Discovery may show that the claimed injuries and/or damages of Plaintiffs, if any, were caused in whole or in part by acts or omissions of others for whom Select Medical Corporation was not responsible, and whose conduct it had no reason to anticipate. 15 121. Discovery may show that Defendant Select Medical Corporation is not responsible for the actions of any other parties whose conduct may have caused the injuries complained of in Plaintiffs' First Amended Complaint. 122. Discovery may show that the alleged actions or omissions of Select Medical Corporation were not a substantial factor, or were an insignificant factor, or were not a legal factor in causing or contributing to Plaintiffs' alleged injuries and damages, if any. 123. Discovery may show that Plaintiffs' claims and/or requests for damages are barred, in whole or in part, and/or are limited by Pennsylvania's Health Care Services Malpractice Act of 1975 and/or Pennsylvania's Medical Care Availability and Reduction of Error ("MCARE") Act. 124. Select Medical incorporates and asserts all defenses and limitations which are available under the Health Care Services Malpractice Act and Medical Care Availability and Reduction of Error ("MCARE") Act. 125. Select Medical incorporates and asserts all defenses available to it under the Federal Health Care Quality Improvement Act. 126. Select Medical incorporates and asserts all defenses and limitations available under Pennsylvania's Professional Nursing Law, 63 P. S. § 211 et. seq. 127. As discovery may show, Plaintiffs' recovery may be barred or limited by the affirmative defenses of statutes of limitations, waiver, release, immunity, settlement, accord and satisfaction, arbitration and award, contributory negligence, res judicata, collateral estoppel and/or equitable estoppel. 128. Future discovery may show that Plaintiffs' may have failed to mitigate damages. 16 129. Future discovery may show that the acts or omissions of others may have constituted intervening, superseding causes of the damages and/or injuries alleged to have been sustained by the Plaintiffs. 130. Discovery may show that Select Medical had substantial evidence that the Decedent either had an active addictive disease for which she was not receiving treatment, had diverted a controlled substance, or was mentally or physically incompetent to carryout the duties of her license at all times material to Plaintiffs' First Amended Complaint. 131. Discovery may show that Plaintiffs' claims are barred by statutory immunity. 132. Discovery may show that Decedent was reported in accordance with federal and state law. 133. Any claim or cause of action for vicarious liability against Select Medical for the alleged actions of any of its agents, servants, or employees not named in Plaintiffs' First Amended Complaint is barred by the statute of limitations. 134. Discovery may show that Decedent was reported in good faith and without malice. 135. Discovery may show that Plaintiffs' claims are barred to the extent Plaintiffs have brought this suit against an improper party. 136. Answering Defendant Select Medical Corporation raises all defenses and limitations to damages which are, or may be determined to be available, to it under Pennsylvania's Uniform Probate Code. 137. Select Medical reserves the right to amend its Answer and New Matter to assert additional affirmative defenses which may be disclosed through the course of discovery. 17 WHEREFORE, Defendant Select Medical Corporation demands judgment in its favor and against Plaintiffs Henry Arledge and Anita Arledge and that Plaintiffs' First Amended Complaint against it be dismissed with prejudice. NEW MATTER CROSSCLAIM AGAINST DEFENDANT COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND DIVISION OF HEALTH MONITORING PROGRAMS AND UNIT 1: VOLUNTARY RECOVERY PROGRAM 138. Defendant Select Medical Corporation hereby incorporates Paragraphs 1 through 137 of its Answer and New Matter by reference, and Plaintiffs' averments against the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs and Division of Health Monitoring Programs and Unit 1: Voluntary Recovery Program (the "Commonwealth Defendants") set forth in the First Amended Complaint as if fully set forth at length herein. 139. Liability on the part of Defendant Select Medical Corporation is specifically DENIED. 140. Defendant Select Medical Corporation avers that if Plaintiffs' have sustained damages as alleged in Plaintiffs' First Amended Complaint, all of which are specifically DENIED, then said damages were not the result of any acts or omissions on the part of Defendant Select Medical Corporation but rather, said injuries and damages were caused solely as a result of the acts or omissions of the Commonwealth Defendants which are alone liable to the Plaintiffs, jointly or severally liable to the Plaintiffs, or are liable over to Defendant Select Medical Corporation for contribution and/or indemnity on any and all sums awarded to the Plaintiffs. 18 WHEREFORE, Defendant Select Medical Corporation respectfully requests that judgment be entered in its favor and against Plaintiffs Henry Arledge and Anita Arledge and Defendants the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs: State Board of Nursing and Division of Health Monitoring Programs and Unit 1: Voluntary Recovery Program together with such other relief as the Court may deem just and equitable. 19 Respectfully submitted, Dated: WA) Marc A. Moyer. Attorney I.D. 305 North Fr Al P.O. Box 9 76434 Street Harrisburg, PA 17108-0999 717-441-3960 mmoyer@tthlaw.com Attorneys for Defendant Select Medical Corporation 20 VERIFICATION I, Marsha Medlin, state that I am the CEO of Select Specialty Hospital - Central PA, L.P., that I make this Verification on behalf of Defendant Select Medical Corporation and that I have read the foregoing ANSWER OF SELECT MEDICAL CORPORATION TO PLAINTIFFS' FIRST AMENDED COMPLAINT TOGETHER WITH NEW MATTER AND NEW MATTER CROSS CLAIM which has been drafted with the assistance of Defendant's counsel. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities. Marsha Medlin Select Specialty Hospital - Central, PA, L.P. 21 CERTIFICATE OF SERVICE Th On this p day of July 2008, I, Jennifer L. Deitch, Legal Secretary with the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have, this day, served a true and correct copy of the ANSWER OF DEFENDANT SELECT MEDICAL CORPORATION TO PLAINTIFFS' FIRST AMENDED COMPLAINT TOGETHER WITH NEW MATTER upon the person(s) and at the address(es) below named via United States First Class Mail, postage prepaid, in Harrisburg, PA: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 Counsel for Plaintiff Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Counsel for The Commonwealth Of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, The Division of Health Monitoring Programs and Unit I Voluntary Recovery Program Je fer L. De ch :609978.1 22 ??: ,.., :. _ ?. t.' ?__-! ? r : ' i l,? ? i . ` .. . t' Renee Knicos, Esquire KNICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 717.249.6808 IN THE COURT OF COMMON PLEAS COUNTY OF CUMBERLAND The Estate of Mary Arledge, by Executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually In Their Own Right, NO. 08-81 CIVIL TERM Plaintiffs V. CIVIL ACTION JURY TRIAL DEMANDED Select Medical Corporation, The Commonwealth of Pennsylvania Department of State, Bureau of Professional and Occupational Affairs: State Board of Nursing and the Division of Health Monitoring Programs and Unit 1: Voluntary Recovery Program, Defendants PLAINTIFFS' MOTION FOR RCONSIDERATION OF THE COURT'S JULYS ORDER GRANTING DEFENDANT SELECT MEDICAL CORPORATION'S PREI 41ARY OBJECTIONS DISMISSING COUNTS I. II and III OF THE COMPLAINT AND IN THE ALTERNATIVE PLAINTIFFS' PETITION TO APPEAL AND NOW, come the Plaintiffs, by and through their attorney Renee Knicos, Esquire, and file this Motion For Reconsideration of the July 10, 2008 ORDER, and in support thereof, aver the following: Page -1- 1. The sum and substance of the ORDER of July 10 by the Honorable Judge Bailey is that the relation back doctrine cannot be applied in the instant case to cure the captioning defect in the Writ of Summons and Complaint to reflect the appointment of Henry Arledge as the personal representative of the estate because the appointment occurred after the statute of limitations had run, and that the incorrect designation of Henry (and Anita) as executors did not inform the defendants of the possibility of an administrator being appointed. Order at pp. 9, 10. 2. The Court, in it's Order, held that Lovejoy' and PrevisW controlled, and therefor, declined to apply the relation back doctrine in this case. 3. In their brief, Plaintiffs' cited an Order in response to a Motion For Reconsideration from Lycoming County Court of Common Pleas, Ms. Emily J. Firth, in her own right individually and On behalf of her husband, Mr. William Clarke Firth, Deceased et al., v. Muncy Valley Hospital. NO. 05-00-686, on April 4, 2006, which is essentially factually identical to this case, and in which the relation back doctrine applied. 4. Recognizing that this was not binding on the Court, there was however, no acknowledgment in the Court's Order of the Firth order nor of its possible application to the instant case. 5. Plaintiffs point out that the Firth Order is the most contemporary of all the cases 'Lovejoy v. t reoraei 224 Pa. Super 206, 3-03 A.2d 501 (1973). z Prevish V. Northwest Medical Cuter-Oil City Campg?. 692 A.2d 192 Pa. Super 1997). Page -2- cited, and may be indicative of the evolution of the relation back doctrine. Because of its contemporaneous nature, the Court erred and/or abused its discretion by not considering its application and erred and/or abused its discretion by the avoidance of an examination of the progression of the relation back doctrine as it relates to the present case. 6. Further, the Lovejoy case is favorable to the Plaintiffs. In Lovejoy, the Court discoursed that the relation back doctrine could be applied if a purported administrator acted as an executor de son tort. Although Georgeoff did not exhibit the requisite intermeddling required for such a finding, that intermeddling is present in the case at bar, Mr. Arledge assumed total control over the entirety of the decedent's estate. 7. Plaintiffs aver that based on the allegations in" 5, 6, an error of law and/or an abuse of discretion occurred and request the ORDER of July 10 be reversed to prevent manifest injustice. 8. Plaintiffs point out that the court is empowered to reconsider its own decisions and interlocutory orders at any time (emphasis supplied). D'Elia v. Folino, 2007 PA Super 286,933 A.2d 117 (Pa. Super. 2007) citing Key Automobile Equip. Spec., Inc. V. Abernathy, 431 Pa. Super. 358,636 A.2d 1126, 1129 (Pa. Super. 1994). 9. Based on the above, Plaintiffs request that the July 10, 2008 ORDER be REVERSED, or in the alternative, Plaintiffs request the Court treat this as a Petition To Appeal and request pursuant to 42 Pa.C.S. §702(b) that the Court Page -3- order that the interlocutory order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the Order may be materially advance the ultimate termination of the matter.", and thereby allow Plaintiffs to take an appeal pursuant to Pa.R.A.P. §312 WHEREFOR, plaintiffs respectfully request this Honorable Court GRANT their Motion for Reconsideration, or alternatively, allow plaintiffs to appeal the Order pursuant to Pa.R.A.P. §312. Respectfully submitted, Renee Y&icos, Esquire Supreme Court ID # 89529 KNICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 717.249.6808 Counsel for Plaintiffs Dated: July 20, 2008 Dated: August 6, 2008 Page -4- a-? A CERTMCA Tf F SER CE AND NOW, this day o2008,1 hereby certify that I served a true and correct copy of the foregoing ment upon counsel of record by depositing a copy of same in the United States mail, postage prepaid in York County, Pennsylvania, addressed as follows: Marc A. Moyer THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 Jay W. Stark Chief Deputy Attorney General Torts Litigation Section 15t` Floor Strawberry Square Harrisburg, PA 17120 ter4eknicos, Esquire JICOS LAW OFFICE, LLC S. Hanover Street, Suite 1 Carlisle, PA. 17013 9S G ON tl r _. Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire (717) 441-3960 - direct Attorney I.D. No. 76434 mmoyer@tthlaw.com 305 N. Front Street (717) 237-7105 - fax P.O. Box 999 Attorneys for Defendant Select Medical Corporation Harrisburg, PA 17108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS and UNIT 1: VOLUNTARY RECOVERY PROGRAM, Defendants : No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY OF DEFENDANT SELECT MEDICAL CORPORATION IN OPPOSITION TO PLAINTIFFS' MOTION FOR RECONSIDERATION OF THE COURT'S JULY 10, 2008 ORDER AND/OR PETITION TO APPEAL AND NOW, comes Defendant Select Medical Corporation ("Select Medical"), by and through its attorneys, Thomas, Thomas & Hafer, LLP, and files its Reply in Opposition to Plaintiffs' Motion for Reconsideration and/or Petition to Appeal and, in support thereof, avers as follows: 1. DENIED. It is DENIED that the averments set forth in Paragraph 1 of Plaintiffs' Motion fairly or accurately characterize the substance or context of the Court's July 10, 2008 Order which, as a written document, speaks for itself. 2. DENIED. It is DENIED that the averments set forth in Paragraph 2 of Plaintiffs' Motion fairly or accurately characterize the substance or context of the Court's July 10, 2008 Order which, as a written document, speaks for itself. By way of further Answer, it is ADMITTED that Prevish v. Northwest Medical Center, 692 A.2d 192 (Pa. Super. 1997) and Lovejoy v. Georgeff, 224 Pa. Super. 206, 303 A.2d 501 (1973) provide controlling legal authority supporting the Court's July 10, 2008 holding for the reasons set forth in Select Medical's principal Brief. 3. DENIED as stated. It is ADMITTED that Plaintiffs' cited to Firth v. Muncy Valley Hospital, No. 05-00-686 in their Brief. It is DENIED that Firth, constitutes controlling or persuasive authority contrary to this Court's July 10, 2008 Decision, or that the facts in Firth are similar to the facts of this case. On the contrary, it is believed and, therefore, averred that the pleadings addressed in Firth are distinguishable from Plaintiffs' pleadings in this case, and that the rationale in Firth actually supports this Court's July 10, 2008 Order. 4. DENIED as stated. It is ADMITTED that Firth is not controlling authority for this Court, and is not persuasive or applicable to the facts and circumstances of this case. DENIED as stated. It is DENIED that Firth represents an "evolution" of the relation back doctrine, that it is controlling upon this Court, or that it is persuasive or applicable to the facts and circumstances of this case. It is further DENIED that the Court erred and/or abused its discretion when rendering its July 10, 2008, Decision under the facts and circumstances of this case. 2 6. DENIED. It is DENIED that Lovejoy v. Georgeff, 224 Pa. Super. 206, 303 A.2d 501 (1973) is favorable to the Plaintiffs or that it supports their Motion for Leave of Court to Amend Their Complaint. On the contrary, and as articulated by the Pennsylvania Superior Court in Marzella v. King, 256 Pa. Super. 179, 389 A.2d 659 (1978), the Lovejoy decision supports this Court's holding for the reasons set forth in Select Medical's principal Brief. It is further DENIED that Henry Arledge assumed "total control" over the entirety of the Decedent's Estate as evidenced by Anita Arledge's signature and verification to Plaintiffs' Complaint. 7. The averments set forth in Paragraph 7 of Plaintiffs' Motion are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that the Court committed an error of law and/or an abuse of discretion when rendering its July 10, 2008 Order. It is further DENIED that the Order constitutes a "manifest injustice". 8. The averments set forth in Paragraph 8 of Plaintiffs' Motion are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that Plaintiffs have sufficiently articulated a viable basis for certifying this matter for interlocutory appeal. 9. The averments set forth in Paragraph 9 of Plaintiffs' Motion are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that Plaintiffs have sufficiently articulated a viable basis for certifying this matter for interlocutory appeal. 3 WHEREFORE, Defendant Select Medical Corporation respectfully requests that this Honorable Court deny Plaintiffs' Motion for Reconsideration and/or Petition to Appeal from this Court's July 10, 2008 Order. Respectfully submitted, Dated: Owv Marc A. Mo Attorney I. 305 No Fr( P.O. Bo 999 er, Esquire No. 76434 int Street Harrisburg, PA 17108-0999 717-441-3960 mmoyer@tthlaw.com Attorneys for Defendant Select Medical Corporation 4 CERTIFICATE OF SERVICE On this day of August 2008, I, Jennifer L. Deitch, Legal Secretary with the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have, this day, served a true and correct copy of the REPLY OF DEFENDANT SELECT MEDICAL CORPORATION IN OPPOSITION TO PLAINTIFFS' MOTION FOR RECONSIDERATION OF THE COURT'S JULY 10, 2008 ORDER AND/OR PETITION TO APPEAL upon the person(s) and at the address(es) below named via United States First Class Mail, postage prepaid, in Harrisburg, PA: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 Counsel for Plaintiff Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 15a' Floor, Strawberry Square Harrisburg, PA 17120 Counsel for The Commonwealth Of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, The Division of Health Monitoring Programs and Unit 1 Voluntary Recovery Program Je er L. Deit h 616666.1 5 Xr- ? _ Renee Knicos, Esquire KNICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Carrlisle, PA 17013 717.249.6808 IN THE COURT OF COMMON PLEAS COUNTY OF CUMBERLAND The Estate of Mary Arledge, by Executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually In Their Own Right, Plaintiffs V. Select Medical Corporation, The Commonwealth of Pennsylvania Department of State, Bureau of Professional and Occupational Affairs: State Board of Nursing and the Division of Health Monitoring Programs and Unit 1: Voluntary Recovery Program, Defendants NO. 08-81 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANT SELECT MEDICAL CORPORATION'S NEW MATTED AND CROSS CLAIM AND NOW come the Plaintiffs, by and through their attorney Renee Knicos, and submit their Answer to defendant Select medical Corporation's New Matter and New Matter Cross Claim, and in support thereof, aver the following: NEW MATTER 116. Paragraph 116 is an introductory paragraph to which no response is required. 117. Denied. Paragraph 117 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 118. Denied. Paragraph 118 is a conclusion of law to which no response is required. To the extent a response is required, it is denied. 119. Denied. Paragraph 119 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 120. Denied. Paragraph 120 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 121. Denied. Paragraph 121 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 122. Denied. Paragraph 122 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 123. Denied. Paragraph 123 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 124. Denied. Paragraph 124 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 125. Denied. Paragraph 125 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 126. Denied. Paragraph 126 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 127. Denied. Paragraph 127 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 128. Denied. Paragraph 128 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 129. Denied. Paragraph 129 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 130. Denied. Paragraph 130 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 131. Denied. Paragraph 131 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 132. Denied. Paragraph 132 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 133. Denied. Paragraph 133 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 134. Denied. Paragraph 134 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 135. Denied. Paragraph 135 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 136, Denied. Paragraph 136 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 137. Denied. Paragraph 137 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. NEW MATTER CROSS CLAIM 138. Paragraphs 116 through 137 are hereby incorporated by reference. 139. Denied. Denied. Paragraph 139 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. 140. Denied. Paragraph 140 is a conclusion of law to which no response is required. To the extent a response mat be required, it is denied. WHEREFORE, Plaintiffs respectfully request judgment be entered in their favor against defendants Select medical Corporation and the Commonwealth of Pennsylvania, Department of State„ Bureau of Professional and Occupational Affairs, State Board of Nursing and Division of Health Monitoring Programs and Unit 1: Voluntary Recovery Program. Respectfully submitted, Renee Knicos Dated: August 19, 2008 Counsel for Plaintiffs Supreme Court ID # 89529 301 S. Hanover St. Suite 1 Carlisle, PA 17013 249.6808 Fax: 249.5970 ? , RTIFICA F SER E AND NOW, this day of 2008, I hereby certify that I served a true and correct copy of the foregoing document upon counsel of record by depositing a copy of same in the United States mail, postage prepaid in York County, Pennsylvania, addressed as follows: Marc A. Moyer THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 Jay W. Stark Chief Deputy Attorney General Torts Litigation Section 15' Floor Strawberry Square Harrisburg, PA 17120 Onee Knicos, Esquire COS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA. 17013 cr, Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire (717) 441-3960 - direct Attorney I.D. No. 76434 mmoyer@tthlaw.com 305 N. Front Street (717) 237-7105 - fax P.O. Box 999 Medical Corporation Harrisburg, PA 17108 Attorneys for Defendant Select IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband : and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE No. 08-81 CIVIL TERM Individually In Their Own Right, Plaintiffs CIVIL ACTION - LAW JURY TRIAL DEMANDED V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS and UNIT 1: VOLUNTARY RECOVERY PROGRAM, Defendants NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 Defendant, Select Medical Corporation, intends to serve subpoena upon the providers identified. The subpoena to be served is identical to the one attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. Respectfully submitted, Date: October 31, 2008 Marc A. Moyer, Esquire Attorney I.D. No. 76434 Thomas, Thomas and Hafer, LLP 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 717-441-3960 Counsel for Defendant Select Medical Corporation CERTIFICATE OF SERVICE On this day of October, 2008, I, Barbara Onorato, a Paralegal with the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing document upon the person(s) and at the address(es) below named by United States First Class Mail, postage prepaid, in Harrisburg, PA: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite Carlisle, PA 17013 Counsel for Plaintiff Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Counsel for The Commonwealth Of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, The Division of Health Monitoring Programs and Unit 1 Voluntary Recovery Program A%?,,k &AA& B'a'rbara Onorato, Paralegal IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants : No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, CVS Pharmacy, 6301 Grayson Road, Harrisburg, PA 17111 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, reports, treatment notes, diagnostic studies, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953: ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 171o8 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants : No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, David O. Murphy, 3430 Maple Street, Harrisburg, PA 17109 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, reports, treatment notes, diagnostic studies, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953, ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 171o8 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID4: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants : No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Dr. Nita Rastogi, 481o Jonestown Rd., Harrisburg, PA 17109 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, reports, treatment notes, diagnostic studies, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953, ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 171o8 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the parry making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy r? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Pinnacle Health, 25o1 N., Third, Harrisburg, PA 17110 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, reports, treatment notes, diagnostic studies, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953, ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 171o8 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Andrews & Patel, 4518 Union Deposit Road, Harrisburg, PA 17111 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, reports, treatment notes, diagnostic studies, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953, ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants : No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Tristan Associates, 4518 Union Deposit Road, Harrisburg, PA 17111 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, reports, treatment notes, diagnostic studies, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953, ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 171o8 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together Aith the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 171 08-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, reports, treatment notes, diagnostic studies, writings, correspondence, TO: Custodian of Records, Susquehanna Surgeons, 532 N. Front Street, Wormleysburg, PA 170 etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953, ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 171o8 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants : No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, CVS Pharmacy, 6301 Grayson Road, Harrisburg, PA 17111 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all prescription records, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953, ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the parry making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy f .. ? ? L La ? ? t t e'er 4/ 33 Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire (717) 441-3960 - direct Attorney I.D. No. 76434 mmoyer@tthlaw.com 305 N. Front Street (717) 237-7105 - fax P.O. Box 999 Attorneys for Defendant Select Medical Corporation Harrisburg, PA 17108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE No. 08-81 CIVIL TERM Individually In Their Own Right, Plaintiffs CIVIL ACTION - LAW JURY TRIAL DEMANDED V. SELECT MEDICAL CORPORATION et al Defendants CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS DISCOVERY PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant certifies that: 1. A Notice of Intent to Serve Subpoenas with a copy of the subpoenas attached thereto was mailed or delivered to each party on or about October 31, 2008. 2. Attorney Renee Knicos, Counsel for the Plaintiff, has waived the twenty days (20) day rule. 3. The subpoenas which will be served are identical to the subpoenas which are attached to this Notice. 456077-1 THOMAS, THOMAS & HAFER, LLP By. Marc A. Moyer, Esquire (717) 441-3960 Date: November 7, 2008 Attorneys for Defendant 456077-1 CERTIFICATE OF SERVICE I, Barbara Onorato, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the United States mail, postage prepaid, on the 7th day of November, 2008: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover St., Suite 1 Carlisle, PA 17013 Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 15th floor, Strawberry Square Harrisburg, PA 17120 Respectfully submitted, Thomas, Thomas & Hafer, LLP By arbara Onorato, Paralegal Date: November/7, 2008 456077-1 Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire (717) 441-3960 - direct Attorney I.D. No. 76434 mmoyer@tthlaw.com 305 N. Front Street (717) 237-7105 - fax P.O. Box 999 Medical Corporation Harrisburg, PA 17108 Attorneys for Defendant Select IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS and UNIT 1: VOLUNTARY RECOVERY PROGRAM, Defendants No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED -? -? f I =• N S M, C-71 co -< NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite Carlisle, PA 17013 Defendant, Select Medical Corporation, intends to serve subpoena upon the providers identified. The subpoena to be served is identical to the one attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. Respectfully submitted, Date: October 31, 2008 Marc A. Moyer, Esquire Attorney I.D. No. 76434 Thomas, Thomas and Hafer, LLP 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 717-441-3960 Counsel for Defendant Select Medical Corporation CERTIFICATE OF SERVICE On this _&_skay of October, 2008, I, Barbara Onorato, a Paralegal with the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing document upon the person(s) and at the address(es) below named by United States First Class Mail, postage prepaid, in Harrisburg, PA: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 Counsel for Plaintiff Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Counsel for The Commonwealth Of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, The Division of Health Monitoring Programs and Unit 1 Voluntary Recovery Program arbara Onorato, Paralegal IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, CVS Pharmacy, 6301 Grayson Road, Harrisburg, PA 17111 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, reports, treatment notes, diagnostic studies, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953 ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 171o8 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 1 7 1 08-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Sea] of the Court Prothonotary/Clerk, Civil Division Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 400()22 TO: Custodian of Records, David 0. Murphy, 3430 Maple Street, Harrisburg, PA 17109 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, reports, treatment notes, diagnostic studies, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953, ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 171o8 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the parry making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 1 7 1 08-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Sea] of the Court Prothonotary/Clerk, Civil Division Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants : No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Dr. Nita Rastogi, 481o Jonestown Rd., Harrisburg, PA 17109 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the follo A ing documents or things: Any and all medical records, reports, treatment notes, diagnostic studies, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953, ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 171o8 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Sea] of the Court Prothonotary/Clerk, Civil Division Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Pinnacle Health, 25oi N., Third, Harrisburg, PA 17lio Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, reports, treatment notes, diagnostic studies, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953 ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 171o8 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Andrews & Patel, 4518 Union Deposit Road, Harrisburg, PA 17111 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, reports, treatment notes, diagnostic studies, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953, ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Tristan Associates, 4518 Union Deposit Road, Harrisburg, PA 17111 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, reports, treatment notes, diagnostic studies, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953 ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE No. 08-81 CIVIL TERM Individually In Their Own Right, Plaintiffs CIVIL ACTION - LAW : JURY TRIAL DEMANDED V. SELECT MEDICAL CORPORATION, Et al Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Susquehanna Surgeons, 532 N. Front Street, Wormleysburg, PA 170 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, reports, treatment notes, diagnostic studies, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953, ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the parry making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, lA ithin twenty (2o) days after its service, the parry serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Sea] of the Court Prothonotary/Clerk, Civil Division Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al Defendants No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, CVS Pharmacy, 63o1 Grayson Road, Harrisburg, PA 17111 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all prescription records, writings, correspondence, etc., for treatment rendered on behalf of Mary A. Arledge, d/o/b: 8/4/1953, ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 171o8 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party malting this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Sea] of the Court Prothonotary/Clerk, Civil Division Deputy RECEIPT FOR PAYMENT Cumberland Countyy Prothonotary's Office Carlisle, Pa 17013 Receipt Date 11/03/2008 Receipt Time 14:57:52 Receipt No. 216695 ARLEDGE MARY A ESTATE OF (VS) SELECT MEDICAL CORP ET AL Case Number 2008-00081 Received of PD ATTY MOYER DKB Total Non-Cash..... + 24.00 Check# 142402 Total Cash..... + .00 Change ............. - .00 Receipt total...... = 524.00 ------------------------ Distribution Of Payment ---------------------------- Transaction Description Payment Amount SUBPOENA 24.00 CUMBERLAND CO GENERAL FUND $24.00 (-1 Q n p- W i. z r?•. co Thomas, Thomas $ Hafer, LLP Marc A. Moyer, Esquire (717) 441-3960 - direct Attorney I.D. No. 76434 mmoyer@tthlaw.com 305 N. Front Street (717) 237-7105 - fax P.O. Box 999 Medical Corporation Harrisburg, PA 17108 Attorneys for Defendant Select IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE No. 08-81 CIVIL TERM Individually In Their Own Right, Plaintiffs CIVIL ACTION - LAW JURY TRIAL DEMANDED V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS and UNIT 1: VOLUNTARY RECOVERY PROGRAM, Defendants NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY' PURSUANT TO RULE 4009.21 TO: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Defendant, Select Medical Corporation, intends to serve a subpoena upon the provider identified. The subpoena to be served is identical to the one attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. Respectfully submitted, Date: November 19, 2008 -11 &ffi/1'41- Marc A`. over, Esquire Attorney .D. No. 76434 Thom , Thomas and Hafer, LLP 305 orth Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 717-441-3960 Counsel for Defendant Select Medical Corporation CERTIFICATE OF SERVICE On this day of November, 2008, I, Barbara Onorato, a Paralegal with the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing document upon the person(s) and at the address(es) below named by United States First Class Mail, postage prepaid, in Harrisburg, PA: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite Carlisle, PA 17013 Counsel for Plaintiff Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Counsel for The Commonwealth Of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, The Division of Health Monitoring Programs and Unit 1 Voluntary Recovery Program 4,464-4-& - Barbara Onorato, Paralegal IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right, Plaintiffs V. SELECT MEDICAL CORPORATION, Et al No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants : SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Stephen Dietrich, D.O., Work First, 225o East Market Street, York, PA 17402 Within twenty (2o) days after service of this subpoena, you are ordered by the court to produce the follovring documents or things: Any and all diagnostic studies, toxicity screens from samples provided by Mars- A. Arledge, reports, notes, writings, correspondence, etc., for tests run on behalf of Mary A. Arledge, d/o/b: 8/4/1953 ssn: 165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the parts= serving this subpoena may seek a court order compelling you to comply lA ith it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Moyer, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID4: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy _? ti '? _ _ _ _.?.? f. 7 ? . ?°{ . pr .. ?w,r ;-?.:, ??? ?y4m ?...Z "T'} ?.1v,. "? !'?l ? t°Y' ? -..'. Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire (717) 441-3960 - direct Attorney I.D. No. 76434 mmoyer@tthlaw.com 305 N. Front Street (717) 237-7105 - fax P.O. Box 999 Attorneys for Defendant Select Medical Corporation Harrisburg, PA 17108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE No. 08-81 CIVIL TERM Individually In Their Own Right, Plaintiffs CIVIL ACTION - LAW JURY TRIAL DEMANDED V. SELECT MEDICAL CORPORATION et al Defendants CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS DISCOVERY PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant certifies that: 1. A Notice of Intent to Serve Subpoenas with copies of the subpoenas attached thereto was mailed or delivered to each party at least twenty days prior to the day on which the subpoenas were sought to be served; 2. A copy of the Notice of Intent, including the proposed subpoenas, is attached to this Certificate; 3. More than 20 days have elapsed and no objections have been filed; 4. The subpoenas which will be served are identical to the subpoenas which are attached to the Notice of Intent to Serve Subpoenas. & HAFER, LLP Date: Mafc A. N (717) 441 Attorneys Esquire Defendant 640485.2 Thomas, Thomas & Hafer, LLP Marc A. Moyer, Esquire (717) 441-3960 - direct Attorney I.D. No. 76434 mmoyer@tthlaw.com 305 N. Front Street (717) 237-7105 - fax P.O. Box 999 Medical Corporation Harrisburg, PA 17108 Attorneys for Defendant Select IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE No. 08-81 CIVIL TERM Individually In Their Own Right, Plaintiffs CIVIL ACTION - LAW V. SELECT MEDICAL CORPORATION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS: STATE BOARD OF NURSING AND THE DIVISION OF HEALTH MONITORING PROGRAMS and UNIT 1: VOLUNTARY RECOVERY PROGRAM, Defendants c rv `o C) rya CD r 1o .r;- NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 JURY TRIAL DEMANDED ? 0 -n exj rr-t 7-1 Defendant, Select Medical Corporation, intends to serve a subpoena upon the provider identified. The subpoena to be served is identical to the one attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. Respectfully submitted, Date: November 19, 2008 11 A1114/.'il- fVlarc A. Dyer, Esquire Attorney . D. No. 76434 Thom , Thomas and Hafer, LLP 305 orth Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 717-441-3960 Counsel for Defendant Select Medical Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Estate of MARY A. ARLEDGE, by Executors HENRY ARLEDGE, Husband and ANITA ARLEDGE, Daughter, and HENRY ARLEDGE and ANITA ARLEDGE Individually In Their Own Right Plaintiffs v. SELECT MEDICAL CORPORATION, Et al Defendants No. 08-81 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Stephen Dietrich, D.O., Work First, 225o East Market Street, York, PA 17402 IA'ithin twenty (2o) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all diagnostic studies, toxicity screens from samples provided by Mary A. Arledge, reports, notes, ATitings, correspondence, etc., for tests run on behalf of Mary A. Arledge, d/o/b: 8/4/1953, ssn:165-44-7467 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (2o) days after its service, the party serving this subpoena may seek a court order compelling you to comply ,Arith it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Marc A. Mover, Esquire ADDRESS: P,O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-3960 SUPREME COURT ID#: 76434 ATTORNEY FOR: Defendant Select Medical Corporation BY THE COURT: DATE: Seal of the Court (21? othonota . Ci it Division Deputy CERTIFICATE OF SERVICE On this day of November, 2008, I, Barbara Onorato, a Paralegal with the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing document upon the person(s) and at the address(es) below named by United States First Class Mail, postage prepaid, in Harrisburg, PA: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 Counsel for Plaintiff Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Counsel for The Commonwealth Of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Nursing, The Division of Health Monitoring Programs and Unit 1 Voluntary Recovery Program Barbara Onorato, Paralegal CERTIFICATE OF'SERVIC I, Megan L. Bressler, Paralegal at Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the United States mail, postage prepaid, on this 0k` day of January, 2009: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover St., Suite 1 Carlisle, PA 17013 Jay W. Stark, Esquire Chief Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General 15th floor, Strawberry Square Harrisburg, PA 17120 Respectfully submitted, Thomas, Thomas & Hafer, LLP By 640485.2 r*a r- ? f Renee Knicos, Esquire KNICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Carrlisle, PA 17013 717.249.6808 IN THE COURT OF COMMON PLEAS COUNTY OF CUMBERLAND The Estate of Mary Arledge, by Executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually In Their Own Right, Plaintiffs V. Select Medical Corporation, The Commonwealth of Pennsylvania Department of State, Bureau of Professional and Occupational Affairs: State Board of Nursing and the Division of Health Monitoring Programs and Unit 1: Voluntary Recovery Program, Defendants NO. 08-81 CIVEL TERM CIVIL ACTION JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE MATTER AND NOW, come the Plaintiffs, by and through their attorney Renee Knicos, Esquire, and file this Praecipe To Discontinue Matter in the above captioned matter, and in support thereof, aver the following: 1. During the course of discovery, defendant Select provided plaintiffs with documents which totally updercut plaintiffs' position. Page -1- 2. Plaintiffs conferred with their attorney and all have agreed that the evidence produced by defendant Select would prohibit the furtherance of the above captioned matter. 3. Plaintiffs understand all current and future rights associated with this matter are forever lost, and agree that the discontinuance is the proper resolution in this 4. The Prothonotary is respectfully directed to discontinue the above captioned matter and to remove it from the active case list. xlj"?'7 Kenee Y moos, Esquire Supreme Court ID # 89529 KNICOS LAW OFFICE, LL.C 301 S. Hanover Street, Suite I Carlisle, PA 17013 717.249.6808 Counsel for Plaintiffs Dated: July 20, 2008 Page -2- Respectfully submitted, CERTIFICA OF SERVICE AND NOW, this day of 009, I hereby certify that I served a true and correct copy of the foregoing d ument upon counsel of record by depositing a copy of same in the United States mail, postage prepaid in Cumberland. County, Pennsylvania, addressed as follows: Marc A. Moyer THOMAS, THOMAS $ HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 Jay W. Stark Chief Deputy Attorney General Torts Litigation Section 15s' Floor Strawberry Square Harrisburg, PA 17120 Ren 'cos, Esquire KMCPS LAW OFFICE, LLC 301 S. anover Street, Suite 1 Carlisle, PA. 17013 OF THE F"'' MARY 2449 JUN 1 8 pM 3 1 is VGItt! t