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Home My WebLink About09-09-08IN THE COURT OF COMMON PLEAS PENNSYLVANIA CUMBERLAND COUNTY ~ ~; , ORPHANS' COURT `.`-T= o ~7 ,' ~ ~Zn Cn ~ r r-~ C"j ~;_~C~? i + ....i O.C. No. 2008-00564 ROBERT G. TRAVER ~-~ `~ ~ ` `~ ,j T; _ ~, and } -_~ c: ~ , r LOIS J. TRAVER ~" ~•"} ~::t ~, -~, PETITION TO EXTEND INJUNCTION AGAINST HRC MANORCARE ISSUED BY THE COURT ON AUGUST 21, 2008 Respondents, Robert G. Traver and Lois J. Traver, by and through their undersigned counsel, Gates Halbruner & Hatch, PC, file this Petition to Extend the Order enjoining ManorCare from commencing foreclosure proceedings against Robert and Lois Traver, and in support aver as follows: 1. On August 8, 2008 and continued to August 15, 2008, this Court held a hearing on ManorCare's Petition to Remove Anna Messimer as Agent for her parents and Appoint a Trustee to Sell Real Estate. 2. After testimony and argument, this Court issued an Order enjoining ManorCare from commencing a foreclosure proceeding against the Robert and Lois Traver during the pendency of this action. 3. Presumably, ManorCare's motivation in filing its Petition to Remove Anna Messimer was to bully the Travers and/or their Agent, Anna Messimer, into paying for nursing services rendered to Robert and Lois Traver despite the fact that the Travers had no resources from which to pay the nursing home expenses. 4. Robert and Lois Traver both have Medical Assistance Applications currently pending before the Cumberland County Assistance Office (PA Department of Public Welfare) and Robert Traver's Application has been appealed to the Bureau of Hearings and Appeals. 5. Due to the delays in the Medical Assistance approval, Robert and Lois Traver both have filed a Petition for Interim Assistance, as allowed by Pennsylvania Code when an appeal has been pending for more than ninety (90) days. True and correct copies of the Petitions for Interim Assistance are attached hereto as Exhibit A. 6. At the beginning of the Medical Assistance Application process, ManorCare filed blank Applications for Medical Assistance for Robert and Lois Traver. The blank Applications cause unnecessary confusion and delays by the Cumberland County Assistance Office, and consequently, delayed the Travers' Medical Assistance eligibility. r '~. 7. The repeated interference by ManorCaze and its counsel, Schutjer Bogaz, LLC, throughout the Medical Assistance process has caused continual delays and confusion. 8. Administrative Law Judge Maloney (Bureau of Hearings and Appeals) issued an Order enjoining ManorCaze and its counsel, Schutjer Bogar, LLC, from participating in the Appeal. 9. Despite there being no benefit to Robert and Lois Traver, ManorCaze has appealed ALJ Maloney's Order to the Secretary of the PA Department of Public Welfare and to the Commonwealth Court, both of which have caused more confusion and delays. True and correct copy of the Petition for Review is attached hereto as Exhibit B. 10. In direct violation of ALJ Maloney's Order enjoining ManorCaze and Schutjer Bogar, LLC from participating in the Medical Assistance Appeal, Schutjer Bogaz, LLC has written several letters to the Cumberland County Assistance Office and to the Chief Counsel's Office for the Department of Public Welfare, all in an effort to sabotage the Travers' Medical Assistance Applications and Appeal. 11. ManorCaze and its counsel, Schutjer Bogar, LLC, have further interfered with the contractual relations of Robert and Lois Traver by continuing to contact and badger Hazry Fox, the purchaser of the Travers' family farm. 12. ManorCaze and its counsel, Schutjer Bogaz, LLC, have created a procedural morass which will take the Travers and our law firm several more weeks to untangle. 13. ManorCaze should not be allowed to disrupt the Travers' lawful Medical Assistance process through cleazly negligent and intentional behavior, and then benefit from the wrongful behavior by bringing a collection action and mortgage foreclosure action against the Travers' resulting in a higher payment to ManorCaze then that which ManorCaze would receive under the Medical Assistance program. 14. On September 5, 2008, ManorCaze and its counsel, Schutjer Bogar, LLC, sent a letter directly to our client, Anna Messimer, threatening civil collection action and a mortgage foreclosure. True and correct copy of Schutjer Bogar, LLC's September 5, 2008 letter is attached hereto as Exhibit C. In the September 5, 2008 letter, Schutjer Bogaz, LLC has also threatened to re-institute a guazdian ad litem action against the Travers, which would, in essence, be a neazly identical action to that which we just concluded, all of which shows the clear malice on the part of ManorCaze. 15. The Travers' respectfully request that this Court extend the time for the injunction against ManorCaze foreclosing on the Travers' family farm by thirty (30) days to enable the Travers to resolve the Medical Assistance issues without further interference from ManorCaze. 2 16. Furthermore, the Travers' respectfully request that this Court enforce ALJ Maloney's Order enjoining ManorCare and its counsel, Schutjer Bogar, LLC, from any further interference into the Travers' Medical Assistance application processes and appeals. Wherefore, the Travers respectfully request that this Court (1) enjoin ManorCare from foreclosing on the Travers' family farm for a period of thirty (30) days from the date of this Order; and (2) enjoin ManorCare and its counsel, Schutjer Bogar, LLC, from any further interference into the Travers' Medical Assistance application processes and appeals. Respectfully September 8, 2008 Lowell .Gates, Esquire Attorn y ID No. 46779 Gates Halbruner & Hatch, P.C. 1013 umma Road, Suite 100 Lem yne, PA 17043 Phone: (717) 731-9600 Fax: (717) 731-9627 3 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF P>CJ)~L~C VrVELFARE BUREAU OF HEARINGS AND APPEALS Robert G. Traver, ApplicandAppellant Case Record No. 21-OI12071-003 PETITION FOR INTERIM MEDICAL ASSISTANCE UNDER TITLE 55 PA. CODE ~ 275.4(d)(5} Applicant/Appellant, Robert G. Traver, by his undersigned counsel Gates, Halbruner & Hatch, PC, files this Petition for Interim Medical Assistance with the Bureau of Hearings and Appeals and avers as follows: 1. Robert G. Traver is a resident at ManorCare, Camp Hill, and filed an Application for Medical Assistance with the Cumberland County Assistance Off ce on or about September 6, 2007. 2. The Cumberland County Assistance Office denied Robert Traver's Application for Medical Assistance on or about April 10, 2008. Robert G. Traver filed an appeal with this Bureau of Hearings and Appeals on April 18, 2008. 4. As of September 2, 2008, Robert Traver had not yet received a decision on his appeal, and Robert Traver did not cause the delay. Please refer to 55 Pa. Code ~275.4(c)(2). 5. Under Title 55 Pa. Code §275.4(d)(5}, when an applicant's appeal has been outstanding for more than ninety (90) days, the applicant may request interim medical assistance. Robert Traver's appeal has been outstanding for 138 days. 6. Robert Traver made his request for interim medical assistance directly to the Cumberland County Assistance Office by both facsimile and phone call on Wednesday, August 27, 2008. 7. Title 55 Pa. Code §275.4(d)(5) requires authorization of interim medical assistance within forty-eight (48) hours of the request or be provided with written notice of the denial. 8. Seven (7) days have now lapsed and the Cumberland County Assistance Office has not responded to Robert Traver's request for interim medical assistance and CCAO has not issued a written notice of denial to Robert Traver. 9. ManorCare has forced Robert Traver to file this Petition for Interim Medical Assistance. 10. On May 23, 2008, ManorCare filed a Petition for Removal of Agents and Appointment of Trustee, wherein ManorCare was attempting to remove Robert G. and Lois J. Traver's daughter, Anna M. Messimer, as Attorney-in-Fact (Agent) under Robert G. and Lois J. Travers' durable general powers of attorney, claiming that Anna Messimer should be removed because she failed to pay ManorCare's invoices. 11. ManorCare filed the Petition for Removal in an attempt to badger and bully Anna Messimer into paying ManorCare's outstanding balance, when, in fact, ManorCare and its attomeys knew that Anna Messimer was diligently attempting to obtain Medical Assistance for her parents and that her parents had no available resources from which to pay ManorCare. 12. ManorCare's Petition for Removal is still pending in the Cumberland County Court of Common Pleas. 13. Also, ManorCare, by its attorneys Schutjer Bogar, LLC, filed two (2) separate law suits against Robert G. and Lois J. Traver in the Courts of Common Pleas in Cumberland County on January 22, 2008 and York County on February 22, 2008 for the collection of outstanding ManorCare invoices. 14. After ManorCare filed its two law suits against the Robert and Lois Travers, Anna Messimer, as Agent for her parents, negotiated with ManorCare to give ManorCare a promissory note and mortgage against the Traver's family home located along Pinetown Road in Lewisberry, York County, in exchange for ManorCare's cessation of the two law suits. 15. The promissory note and mortgage against the Traver's family home was due and payable on August 31, 2008, and ManorCare has threatened to foreclose on the mortgage against their home. 16. Interim Medical Assistance is needed to prevent ManorCare and its attorneys from continuing its law suit and potential foreclosure against the Travers. Wherefore, the Applicant Robert G. Traver respectful request for interim Medical Assistance. Date: September 3, 2008 approval of his ,./i~~, Lowell .Gates, Esquire Attorne ID No. 46779 Gates, albnaner & Hatch, P.C. 1013 ~Vlumma Road, Suite 100 Lemoyne, PA 17043 Phone: (717) 731-9600 Fax: (717) 731-9627 2 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE BUREAU OF HEARINGS AND APPEALS Robert G. Traver, Case Record No. 21-0112071-003 Applicant/Appellant ORDER Applicant/Appellant, Robert G. Traver, is approved for of interim Medical Assistance as of August 29, 2008. BY THE COURT 3. h~,:,~ ~rci 1- ~ - ~~ COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE BUREAU OF HEARINGS AND APPEALS Lois J. Traver, Case Record No. 21-0115245 ApplicandAppellant PETITION FOR INTERIM MEDICAL ASSISTANCE UNDER TITLE 55 PA. CODE § 275.4(d)(5) ApplicandAppellant, Lois J. Traver, by her undersigned counsel Gates, Halbruner & Hatch, PC, files this Petition for Interim Medical Assistance with the Bureau of Hearings and Appeals and avers as follows: 1. Lois J. Traver is a resident at ManorCare, Camp HiII, and filed an Application for Medical Assistance with the Cumberland County Assistance Office on or about July 25, 2007. 2. The Cumberland County Assistance Office denied Lois Traver's Application for Medical Assistance on or about August 27, 2007. 3. Lois J. Traver filed an appeal with this Bureau of Hearings and Appeals on September 20, 2007. 4. As of September 3, 2008, Lois Traver had not yet received a decision on her appeal, and Lois Traver did not cause the delay. Please refer to 55 Pa. Code §275.4(c)(2). 5. Under Title 55 Pa. Code §275.4(d)(5), when an applicant's appeal has been outstanding for more than ninety (90) days, the applicant may request interim medical assistance. Lois Traver's appeal has been outstanding for eleven (I l}months. 6. Lois Traver made her request for interim medical assistance directly to the Cumberland County Assistance Office by both facsimile and phone call on Wednesday, August 27, 2008. 7. Title 55 Pa. Code §275.4(d)(5) requires authorization of interim medical assistance within forty-eight (48) hours of the request or be provided with written notice of the denial. 8_ Seven (7) days have now lapsed and the Cumberland County Assistance Off ce has not responded to Lois Traver's request for interim medical assistance and CCAO has not issued a written notice of denial to Lois Traver. tY,yo~ f e~ 9 - ~ - og Assistance. ManorCare has forced Lois Traver to file this Petition for Interim Medical 10. On May 23, 2008, ManorCare filed a Petition for Removal of Agents and Appointment of Trustee, wherein ManorCare was attempting to remove Robert G. and Lois J. Traver's daughter, Anna M. Messimer, as Attorney-in-Fact (Agent} under Robert G. and Lois J. Travers' separate durable general powers of attorney, claiming that Anna Messimer should be removed because she failed to pay ManorCare's invoices. 11. ManorCare filed the Petition for Removal in an attempt to badger and bully Anna Messimer into paying ManorCare's outstanding balance, when, in fact, ManorCare and its attorneys knew that Anna Messimer was diligently attempting to obtain Medical Assistance for her parents and that her parents had no available resources from which to pay ManorCare. 12. ManorCare's Petition for Removal is still pending in the Cumberland County Court of Common Pleas. 13. Also, ManorCare, by its attorneys Schutjer Bogar, LLC, filed two (2) separate law suits against Robert G. and Lois J. Traver in the Courts of Common Pleas in Cumberland County on January 22, 2008 and York County on February 22, 2008 for the collection of outstanding ManorCare invoices. 14. After ManorCare filed its two law suits against the Robert and Lois Travers, Anna Messimer, as Agent for her parents, negotiated with ManorCare to give ManorCare a promissory note and mortgage against the Traver's family home located along Pinetown Road in Lewisberry, York County, in exchange for ManorCare's cessation of the two law suits. 15. The promissory note and mortgage against the Traver's family home was due and payable on August 31, 2008, and ManorCare has threatened to foreclose on the mortgage against their home. 16. Interim Medical Assistance is needed to prevent ManorCare and its attorneys from continuing its law suit and potential foreclosure against the Travers. Wherefore, the Applicant Lois J. Traver respectfully re sts pproval of her request for interim Medical Assistance. Date: September 3, 2008 ~~~~ Lowell .Gates, Esquire Atto ey ID No. 46779 Gat s, Halbruner & Hatch, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Phone: (717} 731-9600 Fax: (717) 731-9627 2 ~"Y1Gii [PG~ L~ " ~ • U COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE BUREAU OF HEARINGS AND APPEALS Lois Traver, Applicant/Appellant Case Record No. 21-0112071-003 ORDER ApplicantlAppellant, Lois Traver, is approved for of interim Medical Assistance as of August 29, 2008. BY THE COURT J. rr,~~f~~ `f-3-off IN THE C+tpMI1iION~VEALTH COURT OF PEl\Tl_~tSYLVANIA MANOR HEALTHCARE CORP. d/b/a 1VIANORCARE HEALTH SERVICES - CAi~'IP HILL, Peti#ioner, - ~,, No. COlVIMON~EALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC 6VELFARE, BUREAU OF HEARINGS AND APPEALS, . aZespoi~dercc. - PETITION FOR REVIEVlj A1~D 1~lOVt,', COMES, Manor Healthcare Corp. d/b/a ManarCare Health Services -Camp Hill ("Petitioner"), by and through its attorneys, SCHU7lta: BOGAR LLC, and files this petition for review, stating the following in support thereof: STATEMENT OF JURISDICTION ] . This Court has }urisdiction to review this matter pursuant to 42 Pa. C.S.A. ~ 763. THE PARTIES 2. Petitioner is a corporation licensed to do business in the Commonwealth of Pennsylvania, with its principal offices located at ]700 Market Street, Camp I-liIl, Pero~svlvania 17011. ~. Respondent is the Commomvealth of Pennsvlvania Department cif Public ~-Welfare ("DP~~b''"), I3ureau of 1-]earings and Appeals (''BHFi") GOVERNMENT AGENCY THAT MADE DETERMINATION ~. The Commonwealth of Pennsylvania DPV~~, BHA, is the government agency that made the determination at issue. ORDEia/DETERMINATION IN ~LTE~TION ~ By t~%av of his Order, dated .August %, 2008, attached as Exhibit "A," Administrative Laws Judge Andrew P. Maloney enjoined SCHUTJER BOGAR LLC "from participating as a party" in the appeal of the denial of Medical Assistance benefits for Robert G. Traver. 6_ A timely Petition/Application for Reconsideration of the BHA's Adjudication was filed by Petitioner on August 13, 2008. OBjEC'I'IONS TO OIZDER/DETERMINATION 7. The BHA committed an error of law by ruling upon the Motion filed by counsel for Mr_ Traver, as the underlying appeal tivas filed by SCHUTJER BOGAR LLC on behalf of ManorCare, and counsel for Mr. Traver had never entered his appearance, and his counsel may not file Motions without having been granted permission to intervene. 8. The BHA committed an error of law by enjoining SCHUTJER BOGAR LLC from participating in the matter as "a party-" SCHU~tlER BOGAR LLC has never been a party to the appeal, and has Ixen participating as counsel for ManorCare.~ 9. The BHA committed an error of Iaw by granting an injunction without having required that a bond be posted, meeting the elements for injunctive relief, and without having held a hearing. 10. The BHA committed an error of law b~T enjoining SCHli~1)FR BOG,4R LLC from participating in the Appeal of Robert Traver's denial of Medical Assistance benefits, as ManorCare's counsel demonstrated its standing to pursue the appeal in response to a Rule to Show Cause issued by Freeda M. Prrmty, Administrative Law Judge and Appeal Perfectos on November 22, 2007. Pursuant to the Law of the Case Doctrine, ManorCare's standing may not be chaIIenged again. See, McCormick v. Colr~rnbus Co~rz~eyer Co., 522 Pa. 520, 564 A.2d 907 (1989); Cont. z~. Tick, Inc., 431 Pa. 420, 246 A2d 424 (1968}; Sprtrlg ~ Co. z~. USX Corp., 4-10 Pa. Super. 254, 599 A2d 978 (1991); Df~ezn z~. Lcrbez~, 277 Pa. Super. 419, 419 A.2d 1216 (1980). 11. The BHA's decision that Petitioner lacked standing was not supported by substantial evidence. 1~To applicant f~~r Medical Assistance benefits may he determined ineligible for benefits without adequate notice of the reason for rejection and the opportunity to be heard and to defend. I~.~Trrrtirz z~. Department o,f Public Welfnre, 99 Pa.ComwIth. 345, 352, 514 A.2d 204, 208 (1986). ManorCare vas not given an opportunity to be heard or defend. Rather, Administrative ~lanorCare is pursuing this Appea] as if 1~7anorCare here the ~,artti- enji~.ined rronl participating in the r\ppeal, and not its counsel, Sct~l`TIER BOGAf: LLC_. I.aw Judge Maloney enjoined ManorCare from participating in all appeal it filed based upon representations of individuals who were not party to the appeal, and ~n~ithout giving ManorCare the opportunity to be heard and to defend- REQUEST FOR RELIEF WHEREFORE, Petitioner, respectfully requests that this Honorable Court reverse the Administrative Law Judge Maloney's Order and remand this matter for further proceedings. Respectfully submitted, SCHUTJER ~OGAR LLC J Dated: --__ _- ~-~_~ 6 :~ / , i / Chadwick O. Bogar Attorney I.D_ No. X3755 Brandon S. Williams Attorney i_D. No. 200713 (717) 909-5922 417 Walnut Street, 4<<~ Floor Harrisburg, I'A 17101 Fax No.: (717) 909-5925 Attorneys for Petitiotier- ,t EXHIBIT "A" COMMON~I~/EALTH OF PENNSYLV DEPgRTMENT OF PUBLIC WELFq NIA BUREAU OF HEARINGS AND qpp RE 2330 VARTAN WqY 2 EALS P•O. BOX 2675 FLOOR HARRISBURG, Pq 1 71 1 0-2875 717-783_3950 Te-ephone 717-772-27 69 Facsimile APPEAL OF: Robert G. Traver Medicaid Long Term Care a BHA case No.: 210112071-Oppeal O- R-- ~.ER It is hereby Ordered that the A Schutjer Bogar, LLC from Ppellant's July 22, 2008 filed law appeal of an April 10, 20Q$crpating as a party in his above refe encred adrn loin Medicaid eligibility decision is granted, rnrstrative Schutjer Bogar LLC, as the representative of the Appellant assigned his Medicaid filed b payments, did not fife this arng home to which the y the Appellant's privatel involvement in his a Y hired law firm and he object p oeSchutjer Boa ppeal as they re ppea! was against him. Present his nursing home rn a collection action August 7, 2008 Order and Mailin g Date cc: Robert Traver Lowell Gates, Esq. Brandon Williams, Esq. Cumberland CAO Andrew P. V l/~c`~Z Maloney Administrative Law Judge Bureau of Hearings and App lae s CEIt'I'IFICATE ®F SERVICE I hereby certlfi~ that I am this datr serving the foregoing document upon the persons and in the mariner indicated beIo~1- which service satisfies the requirements of Pa. R.A.P. 151: Service by certified first class mail addressed as follo~~~5: Department of Public ~`~'elfa1-e Bureau of I-Iearings and Appeals 2330 Vartan Way, 2"a FIoor Harrisburg, PA 17110-9721 Service_by certified fi-rst class mail raddressed as folloti,~s: Le ~Lll tment of Public E^.~elfare Office of Legal Counsel Room 309, Health and Welfare Building Harrisburg, PA 17120 Service by certified first class mail addressed as follows Thomas W. Corbett, )r., Esq. Attorney General Commonwealth of Pennsylvania 16~ Floor, Strawberr-}~ Square Harrisburg, PA 17120 Service by certified first class mail addressed as follows: LoweII Gates, Esquire (counsel for Robert Traver GATES, HALBRUNEP. & }-IATC}-3, P.C. 1013 Mumma Road, Suite I00 Lemoyne, PA 170=13 ~~ i?ated ~ z 9 0 8 ~t~illi~,n~ I\E~<l~r; P.~ralc~~;ai .... B~~AR ER F.maiL• ksohonage®schutjerbogar.com Direct vial: 717.909.8160 September 5, 2008 Aru1a Messimer Agent for Lois Traver 1076 Pinetown Road, Lewisberry, PA 17339 In Re: Mrs. Messimer: Pinetown Road Properties of Lois Traver Schutjer Bogar LLC 417 Walnut Street 4th Floor Harrisburg, PA 17101 Fax (717) 909-5925 www.sch utjerbogar.com Please note the Principal for whom you act, Lois J. Traver, is currently in default of a Mortgage recorded on June 2, 2008, in York County Pennsylvania, in favor of my client, ManorCare Health Services -Camp Hill, on three tracts of land situate on Pinetown Road, County of York, Pennsylvania. As you know, that Mortgage and Note matured on August 30, 2008. Despite possessing sufficient assets, however, your mother has failed to satisfy the Mortgage and Note in this matter. Accordingly, accept this correspondence as a Notice of Default and a request for immediate satisfaction. Moreover, please know that continued default may result in our pursuit of the contractual remedies available, up to and including foreclosure or an action for damages. Finally, if we must pursue these remedies, then we will request the appointment of a guardian ad litem to represent your mother s interests. Thank you. Scx[r~7~t Boc LLC I~ Kirk S. Sohonage cc: Gates, L. HARRISBURG, PA PHILADELPHIA. PA PITTSBURGH, PA COLUMBUS. OH PRINCETON, NJ BALTIMORE. MD ARLINGTON. VA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS'COURT IN RE: ROBERT G. TRAVER O.C. No. 2008-00564 and LOIS J. TRAVER ORDER And Now, on this day of , 2008 upon consideration of the Traver's Petition for Extension, it is hereby ORDERED that: 1. ManorCare is enjoined from commencing a foreclosure proceeding against the Travers' for thirty days from the date of this order, 2. ManorCare and its counsel, Schutjer Bogar, LLC, is enjoined from any further interference into the Travers' Medical Assistance application processes and appeals. BY THE COURT, J. N • l M IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: ROBERT G. TRAVER No. 2008-00564 and LOIS TRAVER Civil Action CERTIFICATE OF SERVICE I, Sarah E. McCarroll, hereby certify that a true and correct copy of the foregoing Petition for Extension was served on the following this day by first class United States postal service, postage pre-paid: Kirk Sohonage, Esquire 417 Walnut Street 4th Floor Harrisburg, PA 17101 Attorney for ManorCare Edward Seeber, Esquire 555 Gettysburg Pike Suite C-400 Mechanicsburg, PA 17055 Attorney for Ronald Traver September 9, 2008 Sar E. McCarroll PA 91102 Gates, Halbruner & Hatch, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 717.731.9600 717.731.9627 s.mccarroll(a) gateslawfirm.com