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Home My WebLink About03-6585 SEBHATU ANDEMICHAEL, 1638 Market St., First Floor Harrisburg, P A 17103 Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v. : CIVIL ACTION - LAW : NO. 03 -~r;f.s (!iu~L '--r~ BEVERLY HEALTH and REHABILITATION, INC., c/o Corporation Service Company 2704 Commerce Drive Harrisburg, PA 17110 d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, 770 Poplar Church Rd. Camp Hill, PA 17011 Defendant : JURY TRIAL DEMANDED PRAECIPE TO ISSUE A WRIT OF SUMMONS TO THE PROTHONOTARY; Please issue a Writ of Summons in the above-captioned action against the Defendant. The Writ shall be issued and forwarded to the Sheriff of Cumberland County for service upon the Defendant. James H. Rowland, Jr., Esquire 8l2-A North 17th St. Harrisburg,PA 17103 nAAA(t.f ~ 0Jtli)~ \ Jv '-8fW;~ture of A;o~~ I Supreme Court ID No. 06847 Date: December 24, 2003 Attorney for Plaintiff WRIT OF SUMMONS TO THE ABOVE-NAMED DEFENDANT: Date;j)~r . dl(, ~/.)a< . YOU ARE NOTIFIED THAT THE ABOVE-NAMED PL~ HAS COMMENCED AN ACTION AGAINST YOU/) . "'" U.J~~" 1(,. ~~ Prothonotary r:;::r- ax: .kJ()q. 6 .P'777a.,~ (Deputy) , {t. 429103.1 N (0 "6s. Ii I 0 ~ .l:.: ~ lI) - v ...;j 6"- "\> ~ :tJ '-,)lJ'-F f: -J:- () '" 0= 0 , C.~;) ,.... .'i-i ~ ::-2 r":---, , - - ' ' ..'.., ~ , -r--' : --;-~ 8 " , ~) C'.", ,- - "~.'!; .. -.-) L ,I', .- .., ~-; SEBHATU ANDEMICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of Defendant Beverly Health and Rehabilitation, Inc., d/b/a West Shore Health and Rehabi]itation Center. Weare authorized to accept service of all documents in this matter. Respectfully submitted: Dated: January 7,2004 Arth~~0~ AttorneyLD. No. 31782 Marc A. Moyer Attorney LD. No. 76434 KELLY, HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, 10th Floor Post Office Box 62003 Harrisburg, PA 17106-2003 (717) 920-8100 Counsel for Defendant CERTIFICATE OF SERVICE On this 7th day of January 2004, I, Pamela L. Russell, a legal secretary in the law firm of Kelly, Hoffman & Goduto LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing PRAECIPE FOR ENTRY OF APPEARANCE upon the person(s) and at the address( es) below named by United State First Class Mail, postage prepaid, in Harrisburg, PA: James H. Rowland, Jr., Esquire 812-A North 17th Street Harrisburg, PA 17103 Counsel for Plaintiff o c: <;:. iJt:":J ,-;' ~ r-, T";,; ~ ~~j ;.' r:>\_._. '":i~' ,- -?'"-' (~-~ J.> I;~; ~- -., -c I'> = = ,J.- <- > Z ~ =;:I --n n'F: -om s~ -C-n S40 ""-rn o ,-~ "'1-"J ::<::: I 0:> -C1 .Ji- l;? N (.n SHERIFF'S RETURN - REGULAR CASE NO: 2003-06585 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ANDEMICHAEL SEBHATU VS BEVERLY HEALTH AND REHAB ET AL RON KERR , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon BEVERLY HEALTH AND REHAB INC DBA W SHORE HEALTH & REHAB CTR the DEFENDANT , at 1320:00 HOURS, on the 2nd day of January , 2004 at 770 POPLAR CHURCH ROAD CAMP HILL, PA 17011 by handing to CATHY NUGENT-BAILEY, ASST BUS OFFICE MANAGER/ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 10.35 .00 10.00 .00 38.35 r;;e:. y<:~ R. Thomas Kline 01/05/2004 RHOADS & SINON Sworn and Subscribed to before By: /ky f~ ,p me this f'l- .." day of c~~ J.()lJ'I. A.D. ~ Y. Q~' '-~honotary )~ SEBHATU ANDEMICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT THE PROTHONOTARY: Kindly issue a Rule upon Plaintiff, Sebhatu Andernichael, to file a Complaint within twenty (20) days or suffer Judgment of Non Pros. Respectfully submitted: Dated: May~, 2004 ~ AttorneyI.~ 0.31782 Marc A. ~yer Attorney LD. No. 76434 KELLY, HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, 10th Floor Post Office Box 62003 Harrisburg, F'A 17106-2003 (717) 920-8100 Counsel for Defendant Beverly Health and Rehabilitation, Inc., d/b/a West Shore Health and Rehabilitation Center SEBHATU ANDEMICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLV ANIA v. CIVIL ACTION - LAW BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED RULE TO FILE COMPLAINT AND NOW, this / r+ day of J/~ .")L ,2004, a Rule is entered upon Plaintiff to file a Complaint within twenty (20) days after service ofthis Rule by the Defendant. ~I;;i~ PROTHONOTARY ~ CERTIFICATE OF SERVICJi; On this t2 87fay of May 2004, I, Kristine Hendrix, a legal secretary in the law firm of Kelly, Hoffman & Goduto LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing PRAECIPE FOR RULE TO FILE COMPLAINT upon the person(s) and at the addressees) below named by United State First Class Mail, postage prepaid, in Harrisburg, P A: James H. Rowland, Jr., Esquire 8l2-A North 17th Street Harrisburg, PA 17103 Counsel for Plaintiff ~/- Ji~ 4 "0<.1' J1-rz. stine Hendrix / - ',.. en,' r':': ; -"-' ::;:-..c , i;:~~.~ :::~ --< () c~~ ~i. r--> = = .::- L- ~ o "TI :r fnp ""Urn ~6 -,..- f):ii -?c) 8n'1 ~.o -< ~ '-:? ....., SEBHATU ANDEMICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant CIVIL ACTION - LAW NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED NOTICE OF INTENT TO FILE PRAECIPE TO ENTER JUDGMENT OF NON PROS To: Sebhatu Andemichael Date of Notice: June 24, 2004 IMPORTANT NOTICE YOU ARE IN DEF AUL T BECAUSE YOU HAVE FAILED TO FILE A COMPLAINT IN THIS CASE, UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAYBE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Dated: June 24, 2004 Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Phone: (717) 249-3166 Respectfully subrnitted: ~ am. Attorney LD. N 31782 Marc A. Moye Attorney LD.: o. 76434 KELLY, HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, 10th Floor Post Office Box 62003 Harrisburg, PA 17106-2003 (717) 920-8100 Counsel for Defendant Beverly Health and Rehabilitation, Inc., d/b/a West Shore Health and Rehabilitation Center 2 CERTIFICATE OF SERVICE On this 24th day of June 2004, I, Kristine Hendrix, a legal secretary in the law firm of Kelly, Hoffman & Goduto LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing NOTICE OF INTENT TO FILE PRAECIPE TO ENTER JUDGMENT OF NON PROS upon the person(s) and at the addressees) below named by certified mail and United States First Class Mail, postage prepaid, in Harrisburg, PA: James H. Rowland, Jr., Esquire 8l2-A North 17th Street Harrisburg, P A 17103 Counsel for Plaintiff ,~~~ Ji~ Kristine H(mdrix I C) ....' 0 ~c:? C c.? -" 0:- (...- --I ~.::C -n ~-',~. 0\r - _01'1'1 "" -c;.: ,_...J cJ\ (::J( , -., ::::~ .,.,'~ -f'" J.e-'::) \, 1'- ".-', C) 0) SEBHATU ANDEMICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLV ANIA v. CIVIL ACTION - LAW BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS To: The Prothonotary Pursuant to Pa.R.C.P. 237.1, I hereby certify as attorney for Defendant Beverly Health and Rehabilitation, Inc., d/b/a West Shore Health and Rehabilitation Center that a written Notice ofIntent to file a Praecipe to Enter Judgment of Non Pros was rnailed to the above-named Plaintiff, who is the party against whom judgment is to be entered, after the default occurred and at least ten (10) days prior to the date of the filing of this Praecipe. A copy of said Notice is attached hereto and made a part hereof. Therefore, please enter judgment of non pros against the Plaintiff for failure to file a Complaint in connection with the above matter. Dated: July '11-, 2004 an Attorney 1. . No. 31782 Marc A. oyer Attorney .D. No. 76434 KELLY, HOFFMAN & GODUTO LLP Post Office Box 62003 Harrisburg, PA 17106-2003 (717) 920-8100 Counsel for Defendant Beverly Health and Rehabilitation, Inc., d/b/a West Shore Health and Rehabilitation Center SEBHA TU ANDEMICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABIUT AnON CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED NOTICE OF INTENT TO FILE PRAECIPE TO ENTER JUDGMENT OF NON PROS To: Sebhatu Andernichael Date of Notice: June 24, 2004 IMPORTANT NOTICE YOU ARE IN DEF AUL T BECAUSE YOU HA VB FAILED TO FILE A COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET fORTH BELOW, THIS OFFICE CA.l~ PROVIDE YOU WITH INt'ORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE, ,",,' <:;"-" C1 ~<~ -'-"l (-=:::: :.-:-.1 l'.:. (";', ,', ,,':'" _:::"-; ::: ~.;; , ' Gl in -r"'!j-:-; >.~,L~ ~, \.': (~ f_.uc Dated: June 24, 2004 Lawyer Referral Service Cumberland County Bar Association 2 Liberty A venue Carlisle, PA 17013 Phone: (717) 249-3166 Respectfully submitted: ) I Lit! :}IMIV Arth~ tK. Hoffm Attorney l.D. N1. 31782 Marc A. Moye' Attorney I.D. 0.76434 KELL Y, HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, lOth Floor Post Office Box 62003 Harrisburg, PA 17106-2003 (717) 920-8100 Counsel for Defendant Beverly Health and Rehabilitation, Inc., d/b/a West Shore Health and Rehabilitation Center 2 CERTIFICATE OF SERVICE On this 24th day of June 2004, I, Kristine Hendrix, a legal secretary in the law firm of Kelly, Hoffman & Goduto LLP, hereby certify that I have, this day, serv'ed a true and correct copy of the foregoing NOTICE OF INTENT TO FILE PRAECIPE TO ENTER JUDGMENT OF NON PROS upon the person(s) and at the address(es) below named by certified mail and United States First Class Mail, postage prepaid, in Harrisburg, P A: James H. Rowland, Jr., Esquire 812-A North 17th Street Harrisburg, PA 17103 Counselfor Plaintiff _ j;.t4.1!;/;;" It/Pl.~GY'> Kristine Hendrix . CERTIFICATE OF SERVICE On this ,J/sr day of July 2004, I, Kristine Hendrix, a legal secretary in the law firm of Kelly, Hoffman & Goduto LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS upon the person(s) and at the addressees) below named by United States First Class Mail, postage prepaid, in Harrisburg, PA: James H. Rowland, Jr., Esquire 812-A North 17th Street Harrisburg, PA 17103 Counsel for Plaintiff _/ ~ j{7k~ ~~Hendrix /",.€-? .'_.~ , , ~. t ,~ ~ :--J ~ i;l " ~ \ - ~ , ~ ,,"I W ~ ,,," ~ ..... l"" '.U "\\ ~, ~ SEBHATU ANDEMICHAEL, PLEAS IN THE COURT OF COMMON Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED NOTICE OF ENTRY OF JUDGMENT OF NON PROS To: James H. Rowland, Jr., Esquire 8l2-A North 17th Street Harrisburg, P A 17103 PLEASE TAKE NOTICE that on /_ ~ .,;J I , 2004, a judgment of non pros was entered in favor of the Defendant, Beverly Health and Rehabilitation, Inc., d/b/a West Shore and Rehabilitation Center and against Plaintifffor failure to respond in connection with the above matter. I~r ~. R./~ Prothonotary "'" /.e/ SEBHATU ANDE~!ICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUN'I'Y, PENNSYLVANIA v. BEVERLY HEUTH AND REHABILITATION, INC. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03-6585 CIVIL TER~l CIVIL ACTION - LAW JURY TRIAL DEHANDED NOT ] C E YOU /lAVE BEEN SUED IN COUHT. 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 wri ting with the Court your defenses or objections to the claims set forth ogaiusL 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 Ih" Plaintiff. You may lose money or property or other rights llllportanL Lo yuu. YOU SHOULD TAKE THIS PAPER TO YOUI< LAWYEI< AT ONCE. IF YOU DO NOT /lAVE A LAWYER OR CANNOT AFFORD ONE, GO TO 01< 'mLEf'1I0NE TilE OFFICE SET FORTII BELOW TO FIND OUT W/lERE YOU CAN GET LEGAL IIELf'. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Ave. Carlisle, PA 170]3 (717) 249-3166 NOT I C I A Le han demandado a usted en la corLe. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 par abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. . Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DON DE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND CpUNTY BAR ASSOCIATION 2 Liberty Ave. Carlisle, PA 17013 (717) 249-3166 SEBHATU ANDEMICHAEL, Plaintiff vs. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYL VANIA BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant : CNIL ACTION - LAW : NO. 03-6585 CIVIL TERM : JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff is Sebhatu Andemichael who resides at 1638 Market Street, Harrisburg, Pennsylvania. 2. Defendant is Beverly Health and Rehabilitation, Inc., d/b/a West Shore Health and Rehabilitation Center at 770 Poplar Church Road, Camp Hill, Pennsylvania. 3. On or about December 28,2001, the Plaintiffw8Is a patient in the Defendant's rehabilitation facility located at 770 Poplar Church Road, Camp Hill, Pennsylvania. 4. Plaintiff had been assigned a physical therapy regimen by the Defendant's staff to do in his room and at home upon his discharge. 5. One exercise called for the Plaintiff to be seated while performing it. While being supervised by staff at the Defendant's facility, the Plaintiff attempted to sit down in the chair alongside his bed. The chair, unbeknownst to him, had rollers on it and slid out from under him, causing lI1im to injure his back 6. The Defendant was negligent in: A Failing to properly supervise the Plaintiff while he was exercising; B. Having a dangerous chair in his room with rollers on it; C. Failing to secure the chair before the Plaintiff sat in it; D. Failing to give notice to the Plaintiff of the danger of attempting to sit in the chair to exercise. 7. Plaintiff had never been asked to exercise in his room before and had no knowledge of the danger that the chair represenlted to him. 8. As a result of Defendant's negligence, the Plaintiff has incurred the following expenses for medical treatment and will incur additional bills in the future Dr. Gary Cummings, III Dr. William D. DeMuth Susquehanna Pain Management Magnetic Imaging Center $ 1,500 $ 2,000 $ 1,000 $ 4.375 Total $8,875 9. As a result of Defendant's negligence, the Plaintiff has incurred lost wages of $44,000 and may incur further lost wages. 10. As a result of Defendant's negligence, Plaintiff has suffered an interruption of his daily habits and pursuits, and loss of etUoyment of life, to his great and permanent detriment and loss. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $25,000 exclusive of interest and costs. "...::> ~ fJ, f-~Q fct, ? ,";;;; H. 'ow'""" ".. "",>rim Attorney for Plaintiff 812 N. 17th St. Harrisburg, PA 17103 (717) 233-6787 VERIFICATION I, JAMES H. ROWLAND, JR., Esquire, hereby certifY that the statements within the foregoing document are true and correct to the best of my knowledge, information, and belief, and further state that false statements herein arc: made subject to the penalties of 18 Pa. C. S. ~ 4904 relating to unsworn falsification to aulhorities. --, N S~ ames H. Rowland, Jr., Esquire Attorney for Plaintiff ~ ~ . DATE: -z(7--.r!lf CERTIFICATE OF SERVICE AND NOW, this 21st day of July, 2004, I, JAIvlES H. ROWLAND, JR., do hereby certifY that I did serve the foregoing document by placing it in the United States mail, postage prepaid, addressed to the following: Marc A. Moyer, Esquire P.O. Box 62003 Harrisburg, PA 17106.2003 Attorney for Defendant ~ H.?~ James H. Rowlmd, Jr., EsqUire 812 N. 17th Str(~et Harrisburg, PA 17103 (717) 233-6787 Attorney for Plllintiff 4/#. ( -'" , C:-'J ~ = C:~ J:" <- c:-:. :-- N ....~ o ., :r ~n:7'! r -nf'T1 ~_f)CJ ~J~~\ ',.c<--;l ;:{~:~ <..~) Ul W SEBHATU ANDEMICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BEVERL Y HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRlAL DEMANDED PRELIMINARY OBJECTION OF DEFENDANT BEVERLY ENTERPRISES _ PENNSYLVANIA. INC.. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER. INCORRECTLY IDENTIFIED AS BEVERLY HEALTH AND REHABILITATION. INC.. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center, by and through its cOlillsel, Kelly, Hoffman, & Goduto LLP, and files a Preliminary Objection to Plaintiffs Complaint, and in support thereof, avers as follows: I. BACKGROUND AND PROCEDURAL HISTORY I. This professional negligence action was initiated by Plaintiff through the filing of a Writ of Summons against Defendant on December 26,2003. Upon Plaintiff's failure to file a Complaint, a Praecipe for Rule to File a Complaint was filed and served upon counsel for Plaintiff on May 28, 2004. 2. On June 1,2004, a Rule to File Complaint was (mtered upon Plaintiff to file a Complaint within twenty (20) days after service of the Rule by the Defendant. 3. The executed Rule to File Complaint was served upon counsel for Plaintiff on June 3, 2004. 4. Based upon Plaintiffs continuing failure to file a Complaint, a Notice ofIntent to File Praecipe to Enter Judgment of Non Pros was served upon counsel for Plaintiff on June 24, 2004. The Important Notice attached to the Notice ofIntent instructed Plaintiff to file a Complaint within ten (10) days of June 24, 2004, or by July 5, 2004. 5. On June 30, 2004, undersigned counsel was contacted by attorney Jim Jarecki, Esquire of the law firm Rhoads & Sinon, LLP for the purpose of requesting an extension of time, until July 20, 2004, for the purpose of investigating whether Plaintiff had a viable cause of action against the Defendant. 6. After failing to hear from attorney Jarecki by July 20, 2004, and after failing to receive notice that a Complaint had been filed by the Plaintiff, an Entry of Judgment of Non Pros was entered in favor of Defendant on July 21,2004, at 9:39 a.m. 7. Having learned that an Entry of Judgment of Non Pros had been entered, Plaintiff drafted and filed a Complaint on JuIy 21,2004, at approximately 3:59 p.m. Notably, Plaintiffs Complaint does not contain a verification executed by the Plaintiff but, instead, contains a verification executed solely by Plaintiffs counsel, James H. Rowland, Jr., Esquire. II. FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT 8. Plaintiffs Complaint asserts a claim for professional negligence arising out of an incident in which Plaintiff allegedly injured himself while pedorming physical therapy in his room at Defendant's facility on December 28,2001. See Complaint," 3,5. 9. Plaintiffs Complaint was filed on July 21,2004, after an Entry of Judgment of Non Pros in favor of Defendant had already been entered against Plaintiff. 10. The Entry of Judgment of Non Pros was properly obtained in accordance with the Pennsylvania Rules of Civil Procedure. ] ] . Plaintiff s Complaint was filed at a time when there no longer remained an existing docket number or case in which a Complaint could be filed. 2 12. At no time has Plaintiff filed a Petition to Open the Judgment of Non Pros pursuant to Pa.R.Civ.P. 237.3. Nor has Plaintiff filed a Complaint containing a verification executed by him as a party as required by Pa.R.Civ.P. 1024(c) and Pa.R.Civ.P. 237.3. 13. Because the Entry of Judgment of Non Pros has not been opened, Plaintiffs Complaint has been improperly filed and, therefore, should be stricken from the docket with prejudice. WHEREFORE, Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a, West Shore Health and Rehabilitation Center respectfully requests that its Preliminary Objection be sustained and that Plaintiffs Complaint be dismissed with prejudice. Respectfully submitted: Dated: August l, 2004 // !)V l /l(/ ur K. fman Attorney I. . No. 31782 Marc A. oyer Attorney I.D. No. 76434 KELLY, HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, 10th Floor Post Office Box 62003 Harrisburg, PA 17106-2003 (717) 920-8100 Counsel for Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center 3 CERTIFICATE OF SERVICE On this loil- day of August 2004, I, Kristine Hendrix, a legal secretary in the law firm of Kelly, Hoffman & Goduto LLP, hereby certify that I have, this day, served a true and correct copy ofthe foregoing PRELIMINARY OBJECTION OF DEFENDANT BEVERLY ENTERPRISES - PENNSYLVANIA, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, INCORRECTLY IDENTIFIED AS BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER TO PLAINTIFF'S COMPLAINT upon the person(s) and at the address(es) below named by United States First Class Mail, postage prepaid, in Harrisburg, PA: James H. Rowland, Jr., Esquire 812-A North 17th Street Harrisburg, P A 17103 Counsel for Plaintiff ~,~~ d14~ ~tendrixl t--' c~::'> c:::::) ",,- ,"'... (.':::-. C') c:> .,.- :'.)::'. CO CJ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. SEBHATU ANDEMICHAEL, (Plaintiff) v. BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, (Defendant) No. 03-6585 Civil Term, 2003 I. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objection to Plaintiffs Complaint 2. Identify counsel who will argue case: (a) for plaintiff: Address: James H. Rowland, Jr., Esq. 8]2-A North 17th Street Harrisburg, P A 17103 (b) for defendant: Address: Marc A Moyer, Esq. Kelly, Hoffman & Goduto LLP Commerce Towers - 10th Floor 300 North Second Street Harrisburg, P A 17l 0 1 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Dated: September] 6, 2004 Kelly, Hoffman & Goduto LLP BY%{i~ A LJ CERTIFICATE OF SERVICE On this 16th day of September 2004, I, Patricia Z. Glusko, a legal secretary in the law firm of Kelly, Hoffman & Goduto LLP, hereby certify that I have, this day, served a true and correct copy ofthe foregoing PRAECIPE FOR ARGUMENT upon the person(s) and at the address( es) below named by United States First Class Mail, postage prepaid, in Harrisburg, P A: James H. Rowland, Jr., Esquire 812-A North 17th Street Harrisburg, PA 17103 Counsel for Plaintiff ~~~~l~ (') ~;; ~. \ r:-? ::::j r>.) -<: UJ - -- ,..., = c:? .L- V) c:~ v .....J -c SEBHATU ANDE~nCHAEL, Plaintiff IN THE COURT OF CmmON PLEAS CmlBERLl\ND COUNTY, PENNSYLVANIA v. BEVERLY HEALTH AND REHABILITATION, INC. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03.-6585 CIVIL TER~l CIVIL ACTION - LAW JURY TRIAL DEHANDED PETITION TO STRIKE AND/OR OPEN THE ENTRY OF JUDGMENT NON PROS AND NOW CmlES Plaintiff Sebhatu Andemichael, by and through counsel and files the within petition, and avers as follows: 1. On December 24, 2003, Plaintiff filed a Writ of Summons in the above-captioned matter. 2. On January 25, 2004, Defendant filed a Notice of Intent to File praecipe to Enter Judgment of Non Pros. 3. By letter dated July 6, 2004, the law firm of Rhoads and Sinon, the law firm that had been handling the case, notified James H. Rowland, Jr., Esquire, the original attorney, that the Defendant's attorney had granted an extension to file a Complaint until July 21, 2004. 4. On July 21, 2004, Defendant filed its praecipe to Enter Judgment of Non Pros. 5. On July 21, 2004, Plaintiff fil,~d a complaint in the above-captioned matter. (/\ true and correct copy of the complaint is attached hereto and marked as Exhibit ~~~ 6. On July 21, 2004, the prothonotary for the Cumberland County Common Pleas Court entered Judgment oJ: Non Pros. 7. Since the entering of the non pros, the parties have continued to try to negotiate a settlement. An additional $1,000 has been offered, and though it has been rejected by the Plaintiff, the parties are only $5,000 apart. 8. The delay in petitioning to open the judgment of non pros was d-'e solely to the continuing negotiations that would have settled this case, and, as such, was a reasonable one. 9. Apparently in anticipation of the non pros being set aside, the Defendant has filed, and asked to be listed for argument, a preliminary Objection to the Complaint. WHEREFORE, Plaintiff respectfully rl~quests this Court to issue an Order to Open and/or Strike the Judgment of Non Pros. Respectfully submitted, ~. ~ {J..'12~-J James H. Rowland, Jr., Attbrney for Plaintiff SEBHATU ANDEMICHAEL, plaintiff ]N Tllr: COllin' or cmlfl0N PLEAS Cllf1fJr:IH ,Mil , COOI.JTY, I'FNNSYLVANIA v. BEVERLY HEUTH AND REHABILITATION, INC. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03-65B5 CIVIL TER'l CIVIL ACTION - LAW JURY TR I AL DE'IAtlDED N 0 'I' 1 C E YOU HAVE BEEN SUED IN COURT. H you "ish to ddl'lIl] !lg"illsL Lhe claillls set forth ill the follOldng pages, you mllsl tnk" !lCUOII ,dUdll L"ellty (20) dnys after this Complaint anu Notice are ser.ved, by Pllterlllg n \VriLLell appearAllce per'sollally or by atturney [Jlld flJ1IIU ill \-iT i Ii Ilg \-Ii LlI tht' Court )'UU1" defclISL'S 01' ubjections to the claims set forth aga.illst YUlI. You <:11'(' Harned thnt if YUlI [a1 t to do so the case may proceed without you Dlld " Judgmellt may be elltered agalust you by the Court without further notice for allY """leY cIa imed ill the Comp]"iIlL ur fur Bny other ClDilll or relief requested hy lll(~ I'IDillt:iff. YOll lIlay losp mOlley ur property or other rights illlpurtullL to YOll. YUU SHOULD TAKE TillS PAPER TO YOU/{ LAHYER H UIICE. IF YOll DO 110'1' IIAVE A LAHYEIl 01< CANNOT AFFORD ONE, GO TO OR 'l'EJ.EI'1I0Im '1'111;; UFFICF SI;'I' I'D RIll ImI.U\, '1'0 I'IND OUT WIIERE YOU CAN GET LEGAL II ELI' . CUMBERLAND COUN1'YBAR ASSOCIi\'l'ION 2 Liberty Ave. Carlisle, PA 17013 (7]7) 249-3166 NOT l C I A Le han demandado a usted en la corLe. Si usted qui ere defellderse de estas demandas"expuestas en las pag1nas siguientes, usted t.iene viente (20) dias de plazo aI' partir' de la fecha ',de la demanda 'I lJ;I' notifi,cacion. Usted debe presentar una: apariencii(escrita 0 'en personu 0 por slbogado y archivar en la corte en forma eacrita sua defensas 0 sus o~jcciones alas demandas en contra de su persona. , Sea av1sado lllle s1 usterl no se defiende, la corte tomara medidas y puede entrar una orden' con~a uated sin previo avielo 0 notificacion y por ,cualquier queja 0 alivio quees pedido en la peticion de demanda. . Usted puede perder d1nero 0 sus propiedadea .0 otros derechos impe>rtantes para usted. . LLEVE ESTA DEMANDA MUN;ABODAGOINMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTEDE' PAGAR TAL SERVICIO, .VAYA EN PERSONA 0 LLAHE POR TELEFONO A LA OFICINA "CUYA DIRECCION SE ENCUENTRA ESCRI'fA ABAJO PARA AVERIGUAR DONDE SE PUEDE CO~~~GU~~.'ASISTENCIA L1~GAL. ~) ;:':; I - . . ~-~ CUMBERLAND COUNTY BAR ASSOCIATION ,..., "",...,:,.,'("'" ....- ".... ,"', ':' ," 2 yiberty. Ave. , , Carlisle, PA 17013 (717) , 249-3166 ( - o '" .-, ?~~1 ""r,l ~'; I ~ J ~ .~ r.> " -,. r.' --':' (..) , I ,--, . i' r~ EXHIBIT "A" ," l.,,'~_l CERTIFICATE OF SERVICE AND NOW, this 17th day of September, 2004, I, JAHES H. ROWLAND, JR., do hereby certify that I did SE.rve the foregoing document by placing it in the United States mail, postage prepaid, addressed to the following: ~larc A. ~loyer, Esquire PO Box 62003 Harrisburg, P~ 17106-2003 ~m.; ~ ~3~q .-r:RIFICATION I, JMlES H. ROWLAND, JR., Esquire, hereby certify that the statements within the foregoing document are true and correct to the best of my knowledge, information, and belief, and further state that flase statements herein are made subject to the penalties of 18 Pa. C.S. 94904 relating to unsworn falsification to authorities. () ---, /~ -?~~ ~[. Rowland, Jr., Attorney for Plaintiff -1 \ If' DATE: September 17, 2004 C) ~',: ....., CC> L.;;.;I ..j~'.- 0') P"l -0 N _J ~ .-1 -:r:-n rllp -0... r-:1 :DJ.:' C~~(..) ~::T_~ ::rl (;> .;,') :,:,~fn " ) ~:1 -t'>' ~I'.} -::.,. -<:1 ::r,.:; ~? en (.)1 SEBHATU ANDEMICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED REPLY OF BEVERLY ENTERPRISES - PENNSYLVANIA. INC.. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER (IMPROPERLY IDENTIFIED AS BEVERLY HEALTH AND REHABILITATION. INC.. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER) TO F'LAINTlFF'S PETITION TO STRIKE AND/OR OPEN ENTRY OF JUDGMENT NON PROS AND NOW, comes Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center ("Beverly") by and through its counsel, Kelly, Hoffman & Goduto LLP, to file its Reply to Plaintiffs Petition to Strike !md/or Open the Entry of Judgment Non Pros, and in support thereof, avers as follows: 1. It is DENIED that Plaintiff filed a Writ of Summons in the above-captioned matter on December 24, 2003. It is ADMITTED that Plaintiff initiated this matter by way of Praecipe for Writ of Summons filed on December 26, 2003. 2. DENIED. It is DENIED that Beverly filed a Notice ofIntent to File Praecipe to Enter Judgment of Non Pros on January 25, 2004. It is ADMITTED that Beverly filed a Praecipe for Rule to File a Complaint in this matter on June 1, 2004. On June 1, 2004, a Rule was entered upon Plaintiffto file a Complaint within twenty (20) days after service of the Rule by Beverly. On June 3, 2004, Beverly served the executed Rule to File Complaint upon counsel for Plaintiff. By way of further Answer, it is ADMITTED that on June 24, 2004, Beverly filed a Notice ofIntent to Pile Praecipe to Enter Judgment of Non Pros after not receiving a Complaint pursuant to the Rule. 3. After reasonable investigation, Beverly lacks sufficient knowledge or information to form a belief as to the averments set forth in Paragraph 3 of Plaintiff s Petition. The averments are, therefore, DENIED. 4. DENIED as stated. It is ADMITTED that Beverly filed a Praecipe for Entry of Judgment of Non Pros on July 21, 2004. By way of further Answer, it is ADMITTED that Beverly served Plaintiffs counsel with a Notice ofIntent to File Praecipe to Enter Judgment of Non Pros on June 24, 2004. It is further ADMITTED that an Entry of Judgment of Non Pros was entered in favor of Beverly and against Plaintiff at 9:39 a.m. on July 21, 2004. 5. DENIED as stated. It is ADMITTED that upon learning that Beverly had obtained a Judgment of Non Pros against Plaintiff for failure to file a Complaint, counsel for Plaintiff filed a Complaint in this matter at 3:59 p.m. on July 21, 2004. By way of further Answer, it is ADMITTED that Plaintiffs Complaint fails to have an attached proper verification pursuant to Pa. R. Civ. P. 1024 and Pa. R. Civ. P. 237.3. 6. DENIED as stated. It is ADMITTED that the Prothonotary for the Court of Common Pleas of Cumberland County entered judgment of non pros in favor of Beverly and against the Plaintiff at 9:39 a.m. on July 21, 2004. 7. DENIED as stated. It is ADMITTED that Plaintiff had approached Beverly for the purpose of "settling" this matter following the entry of judgment of non pros. 8. DENIED. It is DENIED that Plaintiffs delay in petitioning to open the judgment of non pros was reasonable, was the result of continuing negoltiations between the Plaintiff and Beverly, or that Beverly at any time waived Plaintiff's requirements to timely file a Petition to Open pursuant to the Pennsylvania Rules of Civil Procedure and in accordance with Pennsylvania Law. 9. DENIED. It is DENIED that Beverly's filing of Preliminary Objections to Plaintiff's untimely Complaint was done in anticipation of the judgment of non pros being set aside. WHEREFORE, Defendant Beverly Enterprises - Pennsyllvania, Inc., d/b/a West Shore Health and Rehabilitation Center respectfully requests that Plaintiffs Petition to Strike and/or Open the Entry of Judgment Non Pros be denied and that Plaintiffs Complaint be dismissed, with prejudice. NEW MATTER 10. This professional negligence action was initiated by Plaintiff through the filing of a Writ of Summons against Defendant on December 26, 2003. 11. Upon Plaintiffs failure to file a Complaint, a Praecipe for Rule to File a Complaint was filed with the Court and served upon counsel for Plaintiff on May 28, 2004. 12. On June 1,2004, a Rule to File Complaint was entered upon Plaintiff to file a Complaint within twenty (20) days after service of the Rule by Beverly. 13. The executed Rule to File Complaint was served upon counsel for Plaintiff on June 3, 2004. 14. Based upon Plaintiffs continuing failure to file a Complaint, a Notice ofIntent to File Praecipe to Enter Judgment of Non Pros was served upon counsel for Plaintiff on June 24, 2004. The Important Notice attached to the Notice ofIntent instructed Plaintiff to file a Complaint within ten (10) days of June 24, 2004, or by July 5, 2004. 15. On June 30, 2004, undersigned counsel was conta(:ted by attorney Jim Jarecki, Esquire of the law firm Rhoads & Sinon, LLP for the purpose of requesting an extension of time, until July 20, 2004, for the purpose of investigating whether Plaintiff had a viable cause of action against Beverly. 16. After failing to hear from attorney Jarecki by July 20,2004, and after failing to receive notice that a Complaint had been filed by the Plaintiff, an Entry of Judgment of Non Pros was entered in favor of Beverly on July 21, 2004, at 9:39 a.m. 17. Having learned that an Entry of Judgment of Non Pros had been entered, Plaintiff drafted and filed a Complaint on July 21, 2004, at approximately 3:59 p.m. Notably, Plaintiff's Complaint does not contain a verification executed by the Plaintiff but, instead, contains a verification executed solely by Plaintiff's counsel, James H. Rowland, Jr., Esquire. 18. Plaintiffs Complaint was filed on July 21, 2004, after an Entry of Judgment of Non Pros in favor of Beverly had already been entered against Plaintiff. 19. The Entry of Judgment of Non Pros was properly obtained in accordance with the Pennsylvania Rules of Civil Procedure. 20. Plaintiffs Complaint was filed at a time when there no longer remained an existing docket number or case in which a Complaint could be tiled. 21. At no time has Plaintiff filed a timely Petition to Open the Judgment of Non Pros pursuant to Pa. R. Civ. P. 237.3. Nor has Plaintiff filed a Complaint containing a verification executed by him as a party as required by Pa. R. Civ. P. 1024(c) and Pa. R. Civ. P. 237.3. WHEREFORE, Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center respectfully requests that Plaintiffs Petition to Strike and/or Open the Entry of Judgment Non Pros be denied and that Plaintiff's Complaint be dismissed, with prejudice. Respectfully submitted, Dated: September "if-" , 2004 hurK. Attorney I . No. 31782 Marc A. oyer Attorne .D. No. 76434 KELLY, HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, 10th Floor Post Office Box 62003 Harrisburg, PA 17106-2003 (717) 920-8100 Counsel for Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center CERTIFICATE OF SERVICE On this ~1"aay of September 2004, I, Kristine Hendrix, a legal secretary in the law firm of Kelly, Hoffman & Goduto LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing Reply of Beverly Enterprises - P€~nnsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center (improperly identified as Beverly Health and Rehabilitation, Inc., d/b/a West Shore Health and Rehabilitation Center) To Plaintifrs Petition to Strike and/or Open the Entry of Judgment Non Pros upon the person(s) and at the address(es) below named by United States First Class Mail, postage prepaid, in Harrisburg, PA: James H. Rowland, Jr., Esquire 812-A North 17th Street Harrisburg, PA 17103 Counsel for Plaintiff /J~ /44 ~:ndPl'x r--> (;,:-:;) = ...- U') f"~'''l """7.:) CO) C> " ::-iC o -" :I'_ P'I..l.J r-- :gm ~~ ,J.-d ,:)-- ";""c> (3m -."j 5 -< c.~ (~) \.0 SEBHA TU ANDEMICHAEL, Plaintiff vs. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA BEVERLY ENTERPRISES- PENNSYL VANIA, INC. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant : CIVIL ACTION - LAW : NO. 03-6585 CIVIL TERM : JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO NEW MATTER 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Denied. Notice was not received until June 25, 2004. 15. Denied. The requested extension of time to file the Complaint was granted to James Jarecki, Esquire of Rhoads and Sinon, by the attorney for the Defendant, to July 21,2004. 16. Admitted. By way of further answer, it is averred that counsel for the Defendant was in contact with James H. Rowland, Jr. in the rollys leading up to July 21, 2004. As a matter of fact, James H. Rowland, Jr., on July 20, 2004, told counsel for the Defendant, Marc Moyer, that if the Plaintiff ntiected the offer of $4000 that was on the table, he would file a Complaint on July 21, 2004. 17. Denied. Upon ascertaining on July 21,2004 from the Plaintiff that the offer was rejected, the Complaint was prepared and filed that date. 18. Admitted. 19. Denied. The earliest Entry of Judgment of Non Pros should have been July 22, 2004. 20. Denied. 21. Denied. A petition to Strike and/or Open the Enny of Judgment Non Pros was filed on September 27,2004. WHEREFORE, Plaintiff respectfully requests that this court issue an Order to Open and/or Strike the Judgment of Non Pros. Respectfully submitted, .... . {-J ( ":) _ ~ n ~ - l..~{' 1ames H. Rowland, Jr., Esquire Attorney for Plaintiff 812 N. 17th St. Harrisburg, P A 17103 (717) 233-6787 Attorney I.D. No. 06847 DATE: CERTIFICATE OF SERVICE AND NOW, this r;g,. day of O::fob~r;2004, I, JAMES H. ROWLAND, JR., do hereby certifY that 1 did serve the foregoing document by placing it in the United States mail, postage prepaid, addressed to the following: Marc A. Moyer, Esquire P.O. Box 62003 Harrisburg, PA 17106-2003 Attorney for Defendant q- I" . ;?~r~' (/~arnes H. Rowland, Jr., Esquire 812 N. 17th Stree:t Harrisburg,PA 17103 (717) 233-6787 Attorney for Plaintiff 'g ci~ --=- C> S:l I -l ~ "'Q :,~,: 0) c:> u) SEBHATU ANDEMICHAEL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BEVERLY HEALTH AND REHABILITATION, INC. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER NO. 2003-6585 CIVIL TERM CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 1ST day of NOVEMBER, 2004, upon consideration of the Motion to Strike and/or Open Entry of Judgment Non Pros a Rule is issued upon the Defendant to Show Cause why it should not be granted. Rule returnable twenty (20) days after service. :sld t, E. Guido, J. James H. Rowland, Jr., E uire ~ ~ tl- J, -tJ{ Marc A. Moyer, Esquire \-./~\\l'v!\:lr\s~\;r .r.ld I !"I(''-'-' ('" .-,' ,__ro'''''',", i\jJ'.~ \~_!. I ".. ~;:~ -- ,~:I~; t...J 6 i :2\ Wd Z - f\ON ~OUl ^b\l101'~OHl08d 31-11 :10 3ClI3:l0-G31I:.J SEBHA TU ANDEMICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILIT A nON CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED ANSWER OF BEVERLY ENTERPRISES - PENNSYL VANIA. INC.. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER (IMPROPERLY IDENTIFIED AS BEVERLY HEALTH AND REHABILITATION. INC.. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER) TO RULE TO SHOW CAUSE IN RESPONSE TO PLAINTIFF'S PETITION TO STRIKE AND/OR OPEN ENTRY OF JUDGMENT NON PROS AND NOW, comes Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center ("Beverly") by and through its counsel, Kelly, Hoffman & Goduto LLP, to file its Answer to the Rule to Show Cause in Response to Plaintiffs Petition to Strike and/or Open the Entry of Judgment Non Pros, and in support thereof, avers as follows: 1. This professional negligence action was initiated by Plaintiff through the filing of a Writ of Summons against Defendant on December 26, 2003. 2. Upon Plaintiffs failure to file a Complaint, a Praecipe for Rule to File a Complaint was filed with the Court and served upon counsel for Plaintiff on May 28, 2004. 3. On June 1,2004, a Rule to File Complaint was entered upon Plaintiff to file a Complaint within twenty (20) days after service of the Rule by Beverly. 4. The executed Rule to File Complaint was served upon counsel for Plaintiff on June 3, 2004. 5. Based upon Plaintiffs continuing failure to file a Complaint, a Notice ofIntent to File Praecipe to Enter Judgment of Non Pros was served upon counsel for Plaintiff on June 24, 2004. The Important Notice attached to the Notice ofIntent instructed Plaintiff to file a Complaint within ten (10) days of June 24, 2004, or by July 5, 2004. 6. On June 30, 2004, undersigned counsel was contacted by attorney Jim Jarecki, Esquire of the law firm Rhoads & Sinon, LLP for the purpose of requesting an extension of time, until July 20, 2004, for the purpose of investigating whether Plaintiff had a viable cause of action against Beverly. See correspondence, App. "A". 7. After failing to hear from attorney Jarecki by July 20, 2004, and after failing to receive notice that a Complaint had been filed by the Plaintiff, an Entry of Judgment of Non Pros was entered in favor of Beverly on July 21,2004, at 9:39 a.m. 8. Having learned that an Entry of Judgment of Non Pros had been entered, Plaintiff drafted and filed a Complaint on July 21, 2004, at approximately 3:59 p.m. Notably, Plaintiffs Complaint does not contain a verification executed by the Plaintiff but, instead, contains a verification executed solely by Plaintiffs counsel, James H. Rowland, Jr., Esquire. 9. Plaintiffs Complaint was filed on July 21, 2004" after an Entry of Judgment of Non Pros in favor of Beverly had already been entered against Plaintiff. 10. The Entry of Judgment of Non Pros was properly obtained in accordance with the Pennsylvania Rules of Civil Procedure. 11. Plaintiffs Complaint was filed at a time when there no longer remained an existing docket number or case in which a Complaint could be filed. 12. Plaintiff filed his Petition to Strike and/or Open the Entry of Judgment Non Pros (the "Petition") on or about September 17,2004, fifty eight (58) days after the Entry of Judgment 2 Non Pros, and forty eight (48) days beyond the date prescribed for such a filing pursuant to Pa.R.Civ.P.237.3. 13. In light of the protracted delay by Plaintiff in filing the Petition, Plaintiffs Petition falls outside the scope ofPa.R.Civ.P. 237.3, and is subject to the requirements set forth by Pa.R.Civ.P. 3051 for opening judgments of non pros as applied and interpreted under Pennsylvania law. 14. Pa.R.Civ.P. 3051 provides: Rule 3051. Relief from Judgment of Non Pros (a) Relief from a judgment of non pros shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must by asserted in a single petition. (b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that (1) the petition is timely filed, (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action. 15. Notably, Plaintiffs Petition fails on its face to set forth the appropriate grounds for opening the judgment of non pros under Pa.R.Civ.P 3051 or Pennsylvania law interpreting the Rule and, therefore, is facially deficient. See Pa.R.Civ.P. 3051; Valley Peat & Humus v. Sunnylands, Inc., 398 Pa. Super. 400, _,581 A.2d 193,203 (1990); Schultz v. Erie Insurance Exchange, 505 Pa. 90,477 A.2d 471 (1984). 16. Specifically, Plaintiff has not and, indeed, cannot offer a valid explanation for the untimely filing of the Petition but, instead, has merely asserted in his Petition that the delay was somehow attributable to "continuing negotiations". See Petition, ~~7, 8. 3 17. Notably, however, Beverly had expressly withdrawn its prior settlement offer effective July 21,2004 at 9:00 a.m., prior to the entry of Judgment of Non Pros. See correspondence, App. "B". 18. At no time did Beverly provide Plaintiff with an extension of time for which to file the Petition or take the appropriate actions necessary to ope:n the judgment of non pros. On the contrary, Beverly filed Preliminary Objections to Plaintiffs Complaint on August 10,2004, based upon the Entry of Judgment of Non Pros. Plaintiff, thereafter, waited an additional thirty seven (37) days before filing the Petition to Strike and/or Open, on September 17,2004. 19. Plaintiff has similarly failed to offer a legitimate explanation for failing to timely file his Complaint in this matter despite having received all of the notices required by the Pennsylvania Rules of Civil Procedure, in addition to being provided additional time to file the Complaint by Beverly. 20. Plaintiff has similarly failed to establish through his Petition that he has set forth a meritorious cause of action which is necessary to open the judgment of non pros pursuant to Pa.R.Civ.P.3051(b)(3). On the contrary, Plaintiff has merely incorporated into his Petition, the unsubstantiated averments set forth in the Complaint, and nothing more. Further, evidence of Plaintiff s shortcoming in this regard is the fact that Plaintiff s Complaint fails to contain a Verification signed by the Plaintiff but, instead, contains only a Verification signed by Plaintiffs counsel who has no personal or first-hand knowledge ofthe factual averments purportedly forming the basis for Plaintiffs cause of action. 21. Moreover, the Attorney Verification attached to Plaintiff s Complaint similarly fails to set forth the information required by Pa.R.Civ.P. 1024 in terms of providing an 4 explanation for Plaintiff's apparent inability to execute a Verification certifying the truthfulness and accuracy of the allegations set forth in the Complaint. 22. For the foregoing reasons, Plaintiff's Petition has not averred any facts through discovery or otherwise, which demonstrate that his cause of action is meritorious. Likewise, Plaintiff has not attached to his Petition any deposition testimony or expert reports which would be sufficient to carry his burden of proof at trial. 23. Plaintiff's failure to set forth any information in his Petition other than the unsubstantiated allegations set forth in his unverified Complaint, cannot form the basis for establishing a meritorious cause of action for the purpose of opening the judgment of non pros as a matter or law. Stephens v. Messick, 799 A.2d 793, 800 (Pa. Super. 2002). WHEREFORE, for the foregoing reasons, Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center respectfully requests that Plaintiff's Petition to Strike and/or Open the Entry of Judgment Non Pros be denied and that the July 21, 2004, Entry of Non Pros be upheld. Respectfully submitted, Dated: November!..i..-, 2004 Counsel for Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center 5 KELLYg HOfJrMAN & GOl)UTO LLP ATTORNEYS AT LAW COMMERCE TOWERS - 10TH FLOOR 300 NORTH SECOND STREET, HARR]SBURG, PA 17101 POST OFFICE Box 62003, HARRISBURG, P A 17106-2003 TELEPHONE (717) 920-8100 FACSThfiLE(7l7)920-0691 Marc A. Moyer Extension 105 mmoyer@khgl1p.com July 1,2004 Jim Jarecki, Esquire Rhoads & Sinon LLP One South Market Square 12th Floor Post Office Box 1146 Harrisburg, P A 17108-1146 Re: Sebhatu Andemichael v. Beverly Health and Rehabilitation, Inc., d/b/a West Shore Health and Rehabilitation Center Docket No. 03-6585 Civil Term Dear Jim: Pursuant to your request of June 30, 2004, we agree to provide you until July 20, 2004, to file a Complaint in the above referenced matter or, alternatively, determine that Mr. Andemichael does not have a viable cause of action. In that regard, we kindly ask that you contact us by telephone on July 20, 2004, for the purpose of informing us of your conclusion in that regard. Very truly yours, MAM/kfl1 pi M70yer KELL y~ HOFFMAN & GODUTO LLP ATTORNEYS AT LAW COMMERCE TOWERS - 10TH FLOOR 300 NORTH SECOND STREET, HARR]SBURG, PA 17101 POST OFFJCE Box 62003, HARRISBURG, P A 17106-2003 TELEPHONE (717) 920-8100 F ACS!M]LE (717) 920-0691 Marc A. Moyer Extension 105 mmoyer@khgllp.com July 20, 2004 VIA FACSIMILE (717) 233-8137 James H. Rowland, Jr., Esquire 812-A North 17th Street Harrisburg, P A 17103 Re: Sebhatu Andemichael v. Beverly Health and Rehabilitation, Inc., d/b/a West Shore Health and Rehabilitation Center Docket No. 03-6585 Civil Term Dear Mr. Rowland: Pursuant to our conversations of July 19,2004, and July 20,2004, our client has currently authorized us to offer $2,500.00 towards the full and final settkment of this matter. Please note however, that this settlement offer will expire at 9:00 a.m. on July 21, 2004. Enclased is a draft of the Settlement Agreement which our client will require Mr. A.ndemichael to execute as part of any settlement. As always, please do not hesitate to contact us at your earliest convenience if you would like to discuss this matter further. Vll,O=, ilarcA. Mo MAM/kfh Enclosure **************************************************************************************************** '* . P.01 * * TRANSACTION REPORT * * JUL-20-2004 TUE 02:06 PM * * * * FOR: KHG UP 7179093052 * * * * * * DATE START RECEIVER TX TIME(L)PAGE8 TYPE NOTE M# DP * * * * JUL-20 02:01 PM 2338137 5' 12"(1) 8 SEND OK 535 * * * * * * TOTAL : 5M 128 PAGES: 8 * * * **************************************************************************************************** KELLY. HOFFMA.N & GOI)UTO LLP ^ TTORNEYS AT LAW COMMERce TOWERS _10TH FI.OOR 300 NORTH SECOND STREET, HARRISBURG, P,A 17101 POST OFFICE Box 62003, HARRISBURG, PA 17'106-2003 TELEPHONE (717) 920-8100 FACSIMILE (717) 92()"0691 FACSIMILE TRANSMITTAL ~)HEET To: James H. Rowland, Jr., Esquire FIRM NAME: FACSIMILE No.: 717-233-8137 DATE: July 20, 2004 FROM: Marc A. Moyer, Esquire TELEPHONE No.: 717-920-8LOO xlOS RE: Andemichael v. Beverly Health and Rehabilitation, Inc. CERTIFICATE OF SERVICE On this l&f:uay of November 2004, I, Kristine Hendrix, a legal secretary in the law firm of Kelly, Hoffman & Goduto LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing ANSWER OF BEVERLY ENTERPRISES- PENNSYLVANIA, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER (IMPROPERLY IDENTIFIED AS BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER) TO RULE TO SHOW CAUSE IN RESPONSE TO PLAINTIFF'S PETITION TO STRIKE AND/OR OPEN ENTRY OF JUDGMENT NON PROS upon the person(s) and at the addressees) below named by United States First Class Mail, postage prepaid, in Harrisburg, PA: James H. Rowland, Jr., Esquire 812-A North 1 ih Street Harrisburg, PAl 71 03 Counsel for Plaintiff /'.b JL~ ~endrix/ (""') c:::; /. '-.:> (" '" l' ,I , "' c,o ~ i ,~ , "'il;' I "- U '.', (,.::l r:; ;-,"" l.C.l L..: _.1 UJ ::!~... -,;: ,~ S~.:2 .,,-1..... ........, I,L --,.. C;= "".,,1 0 C,:;:;, U (''''4 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sutmitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argunent Court. --------------------------------------------------------.------------------------------- CAPTION OF CASE (entire caption must be stated in full) SEBHATU ANDEMICHAEL, ( Plaintiff) vs. BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER ( Defendant) No. 03-6585 Civil TERM 19 1. State matter to be argued (i.e., plaintiff's m:>tion for new trial, defendant's demurrer to canplaint, etc.): Defendant's objections to Plaintiff Sebhatu Andemichael's petition to Strike and/or Open the Entry of Judgment of Non Pros 2. Identify counsel who will argue case: ( a) for plaintiff: Address: James H. Rowland, Esquire 812-A North 17th Street Harrisburg, PA 17103 (b) for defendant: Arthur K. Hoffman, Esquire and Marc A. Moyer, Esquire Address: Kelly, Hoffman & Goduto, LLP Commerce Towers - 10th Floor 300 North Second Street Harrisburg, PA 17101 3. I will notify all parties in writing within two days that this case has been listed for argunent. 4. Argunent Court Date: February 2, 2005 n::. t-PiI . ,:j~.e~7k /~ ~OcJr ,- t~i " n', (') ~.~. l. ~ '\ yl " -- r-.c:> c;.2 ~-~~ ...c.- c:? f'r', C? o -',' ( '. ,'" " ,..\'h C0 - C.0 SEBHATU ANDEMICHAEL : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. BEVERLY ENTERPRISES PENNSYLVANIA, INC. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER : CNIL ACTION - LAW : NO. 2003-6585 CNIL TERM IN RE: PETITION TO STRIKE AND/OR OPEN JUDGMENT OF NON PROS BEFORE OLER, GUIDO, JJ. ORDER OF COURT AND NOW, this 15TH day of MARCH, 2005, the parties having conceded that tbere are outstanding issues of fact to be resolved in order for us to properly rule upon Plaintiffs Petition to Strike and/or Open the Judgment of Non Pros, an evidentiary hearing is scheduled for THURSDAY. APRIL 7. 2005, at 1:00 p.m. in Courtroom # 5. Edward E. Guido, J. ""'ames H. Rowland, Jr., Esquire 812 North ] 7TH Street Harrisburg, Pa. 171 03 ~ _~... C)\ ( .... . 03!t 'OJ ,.,;Marc A Moyer, Esquire P.O. Box 62003 Harrisburg, Pa. 17106-2003 :sld ~. \< - - SEBHATU ANDEMICHAEL v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA BEVERLY HEALTH AND : NO. 2003-6585 CNIL TERM REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHAEILATION CENTER ORDER OF COURT AND NOW, this II TH day of APRIL, 2005, after an evidentiary hearing, and having reviewed the parties briefs in support of their respective positions it is hereby ordered and directed as follows: 1.), Plaintiffs Motion to Open Entry of Judgment of Non Pros is GRANTED. 2.) Plaintiff is directed to file a substitute verification to the complaint within twenty (20) days. In all other respects, Defendant's preliminary objections are DISMISSED. 3.) . Defendant is directed to file an answer to the complaint within twenty (20) days after Plaintiff files the substitute verification. _---.~ "....'~---- ""'''- ~.." /.. L"y the co~rt, ,r'/" ,"" Edward E. Guido, J. .v1innes H. Rowland, Jr., Esquire 812-A North 17th Street Harrisburg, Pa. 17103 /Arthur K. Hoffman, Esquire Marc A. Moyer, Esquire 300 North Second Street, 10th Floor P.O. Box 62003 Harrisburg, Pa. 17106-2003 ) !:xr'.1,l ~l&<s / ::::) (J'-I-/3 -(}5 i'J.~',\;,/-"-:" ~\,}p.~n:) 6Z:S '>\"1 r, I Udl1 ~nUl j.,)jV1U:\~C'i't.():.:;d 3\"lL :i0 3:)1:,_\:.~CYCJ3;\:~ ~----~~'--- ... .. ~ SEBHA TU ANDEMJCHAEL, PlaintitT IN TIlE COURT OF COMMON PLEAS CUMBERLAND COUNTY, I'ENNSYLV ANIA vs. CIVIL ACTION. LAW BEVERL Y ENTERPRISES. PENNSYL VANIA, INC d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED SUBSTITUTE VERIFICATION I, Sebhatu Andemichael, hereby certify that the statements made in the Complaint filed in the above-captioned matter are true and correct to the best of my knowledge, information, and belief, and further state that false statements therein are made subject to the penalties of 18 Pa.C.S. S 4904 relating to unsworn falsification to authorities. ~k1U a./Y;1-lI;dul-g/ Sebhatu Ai\Q6michacl DATE: '1/2-)( d<( ~ ....., = = <J> ::x );:.>0> -< , N o ." .-;-' nl:D -"hi -00 (_,3(~ I" ~T-; -.;:lR Cj;Ti ~----t ~j .< ::~ ::t". 9 .....) -' SEBHATU ANDEMICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW BEVERLY ENTERPRISES- PENNSYL VANIA, INC. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant : NO. 03-6585 CIVIL TERM : JURY TRIAL DEMANDED PETITION TO WITHDRAW APPEARANCE TO THE HONORABLE EDWARD E. GUIDO: The motion of James H. Rowland, Jr., Esquire, respectfully represents: 1. That the petitioner represents Sebhatu Andemichael, who resides at 1638 Market Street,Harrisburg,PA 17103. 2. That he filed the Complaint in this matter on July 21, 2004, after negotiations to try to settle this matter broke down. 3. That since filing the suit, an offer of $7500.00 has been made and refused by the Plaintiff. 4. That for quite some time now the Plaintiff has been consulting with another attorney who has a totally different view of the value of this case than the petitioner. 5. That Plaintiff will not act upon or follow the advice of the petitioner without consulting the other attorney. 6. That on April II, 2005, this court issued an order upon the Plaintiff directing that he file substitute verification to the Complaint within twenty (20) days. 7. That the Petitioner met with the Plaintiff on April 14, 2005 and he refused to sign the said substitute verification. 8. That the Petitioner on April 15, 2005 wrote the Plaintiff a letter imploring him to sign the substitute verification immediately or risk having the case dismissed. 9. That Plaintiff came into the petitioner's office on April 25, 2005, refused to sign the substitute verification again, and requested a copy of the complaint and the substitute verification to take to his consultant attorney. The request was complied with. 10. That only upon getting the approval of the consulting attorney did the Plaintiff sign the substitute verification, which was promptly filed with the prothonotary of Cumberland County. H. That the petitioner cannot effectively represent the Plaintiff under the afore- mentioned circumstances. 12. That the petitioner does not wish to represent the Plaintiff under the aforementioned circumstances. 13. That it would be in the best interest of the Plaintiff to get other representation. 14. That petitioner has advised the Plaintiff of his intention and desire to withdraw from this case. WHEREFORE, the petitioner prays this Honorable Court for leave to withdraw from this case. ~ r-.. 1 \., ___ Ii . '(fr~--1 ( I, , ( James H. Rowland, Jr., Esquire, Pet! ioner 812 N. l7'h St. Harrisburg, PA 17103 (717) 233-6787 VERIFICATION I, JAMES H. ROWLAND, JR, Esquire, hereby certify that the statements within the foregoing document are true and correct to the best of my knowledge, information, and belief, and further state that false statements herein are made subject to the penalties of 18 Pa. C.S.~ 4904 relating to unsworn falsification to authorities. r \' .... !J ~ ~ t ~ If. - .. ~--{( - t/James H. Rowland, Jr., Esquire \ Petitioner DATE: ^I/::21ff~ CERTIFICATE OF SERVICE AND NOW, this ~rJ..daY of Af'lJ ,2005, I, JAMES H. ROWLAND, JR., do hereby certify that I did serve the foregoing document by placing it in the United States mail, postage prepaid, addressed to the following: Sebhatu Andemichael 1638 Market St. Harrisburg, PA 17103 .--i j''c,\ ( II )~.~ ...._ ,~ ,t: " '. .' . f' (j James H. Rowland, Jr., Esquire . 812 N. 17th Street Harrisburg, PA 17103 (717) 233-6787 -----,-~"'^ ..-_._~~------- .-> C,-:;;., I ::;~ <:1" -_.'~ ~,,'~ ~- c..':! ....,,.. (..',) ~2 SEBHA TU ANDEMICHAEL, Plaintiff , RECEIVED Mi\Y 06 Z005r : IN THE COURT OF COMMON PLEAS I : CUMBERLAND COUNTY, : PENNSYLVANIA vs. : CIVIL ACTION - LAW BEVERLY ENTERPRISES- PENNSYLVANIA, INC.. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant : NO. 03-6585 CIVIL TERM : JURY TRIAL DEMANDED AND NOW, this ORDER ~ /lJ day of /11,-" , 2005, upon consideration of the attached petition, T~-U8 II. R;-,..IQ.ud, J1. ;.;1 Il\...n;;by gUllucd l\.,uf y~ '~_;"';~~ ~ Z;;~ ~J:- ~-S- ~. .,tJp...J . ~. 1\ DA ~4'h ;).tJ ..-" ,~ Bythz Edward E. Guido, J. ~ ~~D~ ~ tj" o ~0~"""::\ \".. ~ \ '.'6 \"" \ \~\; t;\\\}t \ \ ,.' ;0 ~ SEBHATU ANDEMICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD TO: James H. Rowland, Jr., Esquire 812-A North 17th Street Harrisburg, P A 171 03 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER OF DEFENDANT BEVERLY HEALTH AND REHABILITATION, INC., D/B/A WEST SHORE HEALTH AND REHABILITATION CENTER TO PLAINTIFF'S COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAYBE ENTERED AGAINST YOU. .' Dated: May I~, 2005 ResI:iectfully submitted, "I ' ., / /7// Arthur . Hof an, Esquire Attorney I.D o. 31782 Marc A. Mer, Esquire Attorney I. . No. 76434 KELLY, HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, loth Floor Post Office Box 62003 Harrisburg, PA 17106-2003 (717) 920-8100 Counsel for Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center - SEBHA TU ANDEMICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED ANSWER OF DEFENDANT BEVERLY HEALTH AND REHABILITATION. INC" D/B/A WEST SHORE HEALTH AND REHABILITATION CENTER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant Beverly Health and Rehabilitation Services, Inc., d/b/a West Shore Health and Rehabilitation Center, by and through its attorneys, Kelly, Hoffman, & Goduto. LLP, to answer Plaintiffs Complaint as follows: I. After reasonable investigation, Beverly Health and Rehabilitation Services, Inc. lacks knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in Paragraph I of Plaintiffs Complaint. The averments are, therefore, DENIED, and proof thereof is demanded at time oftrial. 2. DENIED as stated. It is ADMITTED that the named Defendant is Beverly Health and Rehabilitation Services, Inc. It is DENIED that Beverly Health and Rehabilitation Services, Inc. does business as West Shore Health and Rehabilitation Center. It is ADMITTED Beverly Enterprises - Pennsylvania, Inc. does business as West Shore Health and Rehabilitation Center at 770 Poplar Church Road, Camp Hill, Pennsylvania ("West Shore"). 3. DENIED as stated. It is ADMITTED that Plaintiff was a resident at West Shore located at 770 Poplar Church Road, Camp Hill, Pennsylvania during a period of time which included December 28,2001. . 4. DENIED as stated. The averments set forth in Paragraph 4 of Plaintiffs Complaint are ADMITTED only insofar as they are consistent with Plaintiffs medical and nursing care records which, as writings, speak for themselves. Any deviation from Plaintiffs medical and/or nursing care records is specifically DENIED, and proof thereof is demanded at time of trial. 5. DENIED as stated. The averments set forth in Paragraph 5 of Plaintiffs Complaint are ADMITTED only insofar as they are consistent with Plaintiffs medical and nursing care records which, as writings, speak for themselves. Any deviation from Plaintiffs medical and/or nursing care records is specifically DENIED, and proofthereofis demanded at time of trial. 6. The averments set forth in Paragraph 6 of Plaintiffs 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 Defendant was negligent in its care and treatment of the Plaintiff. By way offurther Answer; a. It is DENIED that Defendant failed to properly supervise the Plaintiff while exercising; b. It is DENIED that Defendant was negligent by having a dangerous chair in the Plaintiffs room; c. It is DENIED that Defendant was negligent by failing to secure a chair allegedly sat in by the Plaintiff; d. It is DENIED that Defendant was negligent by failing to give notice to the Plaintiff of danger when attempting to sit in a chair in his room. It is 2 . .. further DENIED that the furniture in Plaintiffs room presented any danger to the Plaintiff. 7. DENIED as stated. The averments set forth in Paragraph 7 of Plaintiffs Complaint are ADMITTED only insofar as they are consistent with Plaintiffs medical and nursing care records which, as writing, speak for themselves. Any deviation from Plaintiffs medical and/or nursing care records is specifically DENIED, and proofthereof is demanded at time of trial. 8. The averments set forth in Paragraph 8 of Plaintiffs 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 Defendant was negligent in its care and treatment of the Plaintiff. It is further DENIED that Plaintiff has incurred any expenses for medical treatment or will incur additional medical bills or expenses in the future as a result of any negligence by the Defendant. 9. The averments set forth in Paragraph 9 of Plaintiffs 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 Defendant provided any care or treatment to Plaintiff or was negligent in its care and treatment of the Plaintiff at any time material to Plaintiffs Complaint. It is further DENIED that Defendant caused Plaintiff to incur lost wages in the past or has caused Plaintiff to incur future lost wages. 10. The averments set forth in Paragraph 10 of Plaintiffs Complaint are conclusions of]aw to which no response is required. To the extent the averments are deemed to be factual in nature, it is DENIED that Defendant provided any care or treatment to Plaintiff or was negligent in its care and treatment of the Plaintiff. By way offurther Answer, it is DENIED that 3 ... Defendant negligently caused Plaintiff to suffer an interruption of his daily habits and pursuits, loss of enjoyment of life or caused him to suffer great and permanent determent and loss. WHEREFORE, Defendant West Shore Health and Rehabilitation Services, Inc., d/b/a West Shore Health and Rehabilitation Center demands judgment in its favor and against the Plaintiff, and that Plaintiffs Complaint be dismissed with prejudice. NEW MATTER II. Paragraphs I through Paragraphs 10 of West Shore's Answer are incorporated by reference as iffully set forth herein. 12. Plaintiffs claims are barred in whole or in part by the applicable statute of limitations. 13. Plaintiffs Complaint fails to state claims upon which relief may be granted under Pennsylvania law. 14. Plaintiff has failed to properly plead causes of action against the Defendant. 15. Plaintiffs claims are barred/reduced by Plaintiffs contributory/comparative negligence and/or assumption of risk as a result of their actions or inaction, including, but not limited to, failure to follow all the instructions and/or advice of decedent's healthcare providers, failure to promptly and accurately report to the healthcare providers information pertaining to Plaintiffs health status, failure to participate in Care Plan meetings, and in such other manner as may be revealed during discovery in this case. 16. Defendant at no time, negligently or otherwise, caused or contributed to any of the injuries or damages purportedly suffered by Plaintiff. 17. Plaintiffs injuries, if any, were the result of occurrences unrelated to, and not caused by, Defendant's care or treatment of Plaintiff. 4 18. At no time did Plaintiff receive nursing care or treatment by the Defendant identified in the caption of this case. 19. Plaintiff was solely a resident of Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health & Rehabilitation Center at all times material to Plaintiffs Complaint. 20. Any injury and/or illness suffered by Plaintiff was caused by persons other than Defendant or its agents or employees and/or by those over whom Defendant had no control or responsibility to control. 21. To the extent evidence may show that other persons, partnerships, corporations, or other legal entities caused or contributed to the decedent's injuries, the conduct of Defendant and/or its agents or employees was not the proximate cause of such injuries. 22. Any acts or omissions by Defendant or its agents or employees alleged to constitute negligence were not substantial contributing factors to the injuries and damages alleged in Plaintiffs Complaint. 23. The acts or omissions of others relating to the care and treatment of Plaintiff constitute intervening and/or superseding causes of the injuries and/or damages alleged to have been sustained by Plaintiff. 24. The sole responsibility for any damages sustained by Plaintiff rest with the Plaintiff or third parties over whom Defendant had no control, no duty to control, or no reason to control. 25. Defendant incorporates the provisions of the Health Care Services Malpractice Act / MCARE Act to the extent they are applicable to the facts and circumstances of this case. 5 , . WHEREFORE, Defendant West Shore Health and Rehabilitation Services, Inc., d/b/a West Shore Health and Rehabilitation Center demands judgment in its favor and against the Plaintiff, and that Plaintiffs Complaint be dismissed with prejudice. Respectfully submitted, Dated: May!-{? ,2005 ffman, Esquire Attorney I. . No. 31782 Marc A. Moyer, Esquire Attorney LD. No. 76434 KELLY, HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, lOth Floor Post Office Box 62003 Harrisburg, PA 17106-2003 (717) 920-8100 Counsel for Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center 6 . - CERTIFICATE OF SERVICE On this 1& -#-day of May 2005, I, Kristine Hendrix, a legal secretary in the law firm of Kelly, Hoffman & Goduto LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing ANSWER OF DEFENDANT BEVERLY HEALTH AND REHABILITATION, INC., D/B/A WEST SHORE HEALTH AND REHABILITATION CENTER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT upon the person(s) and at the addressees) below named by United States First Class Mail, postage prepaid, in Harrisburg, PA: James H. Rowland, Jr., Esquire 812-A North 17th Street Harrisburg, P A 17103 Counsel for Plaintiff ~1f~' dn~~j/ Kristine endrix / ," ~., '--co, () "n .-1 --,- cr> .'l," -J :\ r~ ) , - SEBHA TU ANDEMICHAEL, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA vs. : CIVIL ACTION - LAW BEVERLY ENTERPRISES- PENNSYLVANIA, INC., D/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant : NO. 03-6585 CIVIL TERM : JURY TRIAL DEMANDED PETITION TO MAKE RULE ABSOLUTE TO THE HONORABLE EDWARD E. GUIDO: 1. On May 4, 2005, a Petition To Withdraw Appearance was filed by James H. Rowland, Jr., Esquire, attorney for Sebhatu Andemichael. (Exhibit "A") 2. On May 10, 2005, this Honorable Court issued a Rule To Show Cause upon Sebhatu Andemichael to show cause why the Petition should not be granted. The Rule was returnable twenty (20) days from service. (Exhibit "A") 3. On May 18, 2005 Mr. Andemichael sent a letter to this Honorable Court requesting that the petitioner be removed as his attorney, thereby making both parties in agreement with the Petition. (Exhibit "B") WHEREFORE, the petitioner prays this Honorable Court to make the Rule absolute and to issue an Order granting him leave to withdraw from this case immediately. f C) 1 . _ I.J. . t---~~ J}-. . James H. Rowland, Jr., Esquire, Petitioner 812 N. 17th St. Harrisburg,PA 17103 (717) 233-6787 ~>':;l~,..~:~t;~~~;!t~r~'~~~~~~~~~,;: ,;,g;i~fgBl):::;f:F<~:;~1~~rri;-" :~~ft~; SEBHATU ANDEMICHAEL, Plaintiff I RECEIVED MAY 062005 r : IN THE COURT OF COMMON PLEAS I : CUMBERLAND COUNTY, ; PENNSYLVANIA VS. BEVERLY ENTERPRISES- PENNSYL VANIA, INC. . d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant ; CML ACTION - LAW : NO. 03-6585 CIVIL TERM : JURY TRIAL DEMANDED ~ORDE~ AND NOW, tliis II day of All '-1- . 2005, upon ~nSideration of ~e attached petition, T~_,:;: ~!;l,,;d, .h. ;~ h"'~Y~~~""t Y J..a,./ '..I~b&"""Ilullldxil,\4t;.e..- ,e....c........ ~~ 11 .", ~ I~~.~ ,J '"t"" ~ ':? )v.;~. .-~l>l"..tJ~~~~ ~ ~. IL " ...1 ~,'~..e. ~ ~.- .....v'P - () ......., By the Co Edward E. Guido, 1. -.;....-c-:.'-"c._,.c:.._ BXII:rSIT -I- . I _. - - --.-.....,"-.... --. - --~~.- RECEIVED MAY 06 ZOOSf SEBHATU ANDEMICHAEL, PlaintilT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION ... LAW BEVERL Y ENTERPRISES- PENNSYLVANIA. INC. d/b/a WEST SHORE HEALTH AND REHABlLlT A nON CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED PETITION TO WlTHDRA W APPEARANCE (') ~ ('"~: C;::) '-- ...... sztt ~ -':;>",. -< The motion of James H. Rowland, Jr., Esquire, respectfully represents: ~;'. .i:- ~'-.. 1. That the petitioner represents Sebhatu Andemichael, who resides at 163~~rk~ ~'c" Street, Harrisburg, PA 17103. ~ ~ 2. That he filed the Complaint in this matter on .July 21. 2004, after negotiations !if try to settle this matter broke down. 3. That since filing the suit, an olTer of $7500.00 has been made and refused by the Plaintiff. TO THE HONORABLE EDWARD E. GUIDO: 4. That for quite some time now the Plaintiff has been consulting with another attorney who has a totally different view of the value of this case than the petitioner. 5. That Plaintiff will not act upon or follow the advice of the petitioner without consulting the other attorney. 6. That on April 11,2005, this court issued an order upon tile Plaintiff directing that M file substitute verification to the Complaint within twenty (20) days. 7. That the Petitioner met with the Plaintiff on April 14, 2005 and he refused to sign the said substitute verification. 8. That the Petitioner on April 15, 2005 wrote the Plaintiff a letter imploring him to sign the substitute verification immediately or risk having the case dismissed. --- o 'TI ~~ ~q C;:lQ ,B-H :;:(') c./li --f pc .r) -< 9. That Plaintiff came into the petitioner's office on April 25, 2005, refused to sign the substitute verification again, and requested a copy of the complaint and the substitute verification to take to his consultant attorney. The request was complied with. 10, That only upon getting the approval of the consulting attorney did the Plaintiff sign the substitute vetification, which was promptly filed with the prothonotary of Cumberland County. 11. That the petitioner cannot effectively represent the Plaintiff under the afore- mentioned circumstances. 12. That the petitioner does not wish to represent the Plaintiff under the aforementioned circumstances. 13. That it would be in the best interest of the Plaintiff to get other representation. 14. That petitioner has advised the Plaintiff of his intention and desire to withdraw from this case. WHEREFORE, the petitioner prays this Honorable Court for leave to withdraw from this case. ,') .,'., 11 ~ ' _..- l'i . /\ l!'\.A/'._L ..... --...\ ( . UJames H. Rowland, Jr., Esquire, Pet! ioner 812 N. 17th St. Harrisburg, P A 17103 (717) 233-6787 VERIFICATION 1, JAMES H. ROWLAND, JR., Esquire, hereby certify that the statements within the foregoing document are true and correct to the best of my knowledge, infOlmation, and belief, and further state that false statements herein are made subject to the penalties of 18 Pa, C,S. ~ 4904 relating to unsworn falsification to authorities. (~ I (, ' -11 ~ j J /' . '-"'.._L . (_ tlJames H. Rowland, Jr., Esquire Petitioner DATE: ^I1;;;,~/oS- CERTIFICATE OF SERVICE AND NOW, this ~tA-daY of 4fY''/ ,2005, I, JAMES II ROWLAND, JR., do hereby certify that I did serve the foregoing document by placing it in the United States mail, postage prepaid, addressed to the following: Sebhatu Andemichael 1638 Market 51. Harrisburg, P A 17103 r .) l I. ! I I' .' 1_ ,. -- , ._~.___> .~--c ....~( f-r:-...:..-.:... !j James H. Rowland, Jr., Esquire 8J2N.17"'Street Harrisburg, PA 17103 (717) 233.6787 1638 Market Street Harrisburg, PA 17103 May 18, 2005 Judge Edward Guido Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Sebhatu Andemichael v. Beverly Enterprises-Pennsylvania, Inc. d/b/a West Shore Health and Rehab Center No. 03-6585 Civil Term Dear Judge Guido: My lawyer, James Rowland, has filed a petition to withdraw his appearance. This letter is in response to his petition and your order of May 10,2005. I was injured when a chair gave way at the rehab during exercises. In my very brief complaint, Attorney Rowland correctly alleged that I have lost over $40,000 in wages and have over $8,000 in medical bills. Now, he wants me to settle this case for only $7,500 even though I continue to have medical problems and bills and continue to lose money because of this accident. Just a few weeks ago I had another surgical procedure on my back. In his petition, he writes that I have "been consulting with another attorney who has a totally different view of the value of this case than the petitioner." This is not true. I do have a non-lawyer friend from my church who works in a law office and I have asked for his advice recently because Attorney Rowland is pressuring me to settle my case for such a low amount of money. I would also add that almost every other attorney would have a different view of the value of this case than Attorney Rowland when you consider the liability of the rehab and the extent of my injuries and the money that I have lost. EXIlIBI'l' "B" I respectfully ask that you remove Attorney Rowland as my lawyer. I can do a better job representing myself. Respectfully yours, ~d ebhatu Andemichael cc: James Rowland, Esq. ,"' c~, ,':--::\ <;,..J' ( ,~.o;;; .-\ -, '\,1 .,,"\' \ ,....,"1 ,>) .' SEBHATU ANDEMICHAEL, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYL VANIA vs. : CIVIL ACTION - LAW BEVERLY ENTERPRISES- PENNSYLVANIA, INe. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant : NO. 03-6585 CIVIL TERM : JURY TRIAL DEMANDED ORDER AND NOW, this I ~ day of )-t- , 2005, pursuant to a Petition and Rule to show Cause issued in this matter, it is hereby ordered that James H. Rowland, Jr. be hereby granted leave to withdraw from this case. .., ,~i'-" \\\,{\\~", \\1 lV.' ....$...,r S~$I.> <t, \ \\\ II ,:\1. '.\ \/,6 ~O "".\,} ~~ ,,", ",.1),\ \.),i'..::(\~;~ \.':c.~\.u~~\-;),tr\V \ I" "),J'....' SEBHATU ANDEMICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BEVERL Y HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED NOTICE OF ENTRY OF JUDGMENT OF NON PROS TO: Sebhatu Andemichael 1638 Market Street Harrisburg, PA 17103 PLEASE TAKE NOTICE that on 9 '" ~ L J 7 , 2005, a judgment of non pros is entered in favor of the Defendant Beverly Health and Rehabilitation, Inc., d/b/a West Shore Health and Rehabilitation Center and against Plaintifffor failure to file a Certificate of Merit in connection with the above matter. C'A LA i? K 'f'f' Prothonotary l J 7"-1 SEBHATU ANDEMICHAEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant NO. 03-6585 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS OF DEFENDANT BEVERLY HEALTH AND REHABILITATION. INC.. d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER PURSUANT TO RULE 1042.6 To the Prothonotary: Enter judgment of non pros against Plaintiff Sebhatu Andemichael in the professional liability claim against Beverly Health and Rehabilitation, Inc., d/b/a West Shore Health and Rehabilitation Center in the above captioned matter. I, the undersigned, certifY that the Plaintiff named above has asserted a professional liability claim against the Defendant named above which is a licensed professional, that no Certificate of Merit has been filed within the time required by Pa. R.C.P. 1042.3 and that there is no motion to extend the time for filing the certificate pending before the Court. Respectfully submitted: .,1 Dated: June n, 2005 hur K. 0 fin ,Esquire Attorney I.D. N 31782 Marc A. Moye Esquire Attorney No. 6434 KELLY, HOFFMAN & GODUTO LLP Commerce Towers 300 North Second Street, ] oth Floor Post Office Box 62003 Harrisburg, PA 17106-2003 (717) 920-8100 Counsel for Defendant Beverly Enterprises - Pennsylvania, Inc., d/b/a West Shore Health and Rehabilitation Center CERTIFICATE OF SERVICE On this 27th day of June 2005, I, Kristine Hendrix, a legal secretary in the law firm of Kelly, Hoffman & Goduto LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS OF DEFENDANT BEVERLY HEALTH AND REHABILITATION, INC., d/b/a WEST SHORE HEALTH AND REHABILITATION CENTER PURSUANT TO RULE 1042.6 upon the person(s) and at the addressees) below named by United States First Class Mail, postage prepaid, in Harrisburg, P A: Sebhatu Andemichael 1638 Market Street Harrisburg, PA 17103 ~l~ j!~ Kristine Hendrix ....... \ \ , \ \ , r n '" , ,'- = 0 l;.C~ ~ ~._~.- "" -n " ~ ~ ~ .-1 \ --,,. m:I1 \ \: ..,..~ .- .... 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