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HomeMy WebLinkAbout09-4167ELIZABETH ANN MELLOTT Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, NURSE DOE, C/O ATTORNEY GENERAL TOM CORBETT, C/O OFFICE OF THE ATTORNEY GENERAL, STRAWBERRY SQUARE, HARRISBURG, PA 17120 and CHURCH OF GOD HOME, 801 S. HANOVER ST. CARLISLE PA 17013 Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA/ L CIVIL DIVISION-LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claim set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de ]as demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentin de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecenia escrita y radicando en la Corte por escrito sus defensas de, y ojecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclemada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATEMNTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGER POR LOS SERVICIOS DE UN ABOGADO. ES POSIBLE QUE ESTE OFICINA LE PUEDE PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 Renee Knicos, Esquire KNICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 717.249.6808 Fax 249.5970 Counsel For Plaintiff ELIZABETH ANN MELLOTT Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, NURSE DOE and CHURCH OF GOD HOME, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: G N l 14 e-rM CIVIL DIVISION-LAW • JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the plaintiff, Elizabeth Ann Mellott, by and through her attorney, Renee Knicos, Esquire, and files this Complaint, and in support thereof, aver the following: THE PARTIES 1. Elizabeth Ann Mellott is a resident of Cumberland County residing at 813 Myerston Road, Gardners, Pennsylvania, 17324, and at all times material and pertinent thereto, was and is a licensed registered nurse (R.N.) In the Commonwealth. 2. The defendant, the Commonwealth of Pennsylvania, Department of Health, is an administrative agency charged with, among other things, planning and coordinating health care resources and licensure and oversight of nursing home facilities. Plaintiff is asserting a professional liability claim against this defendant in its capacity as master to its servants. 3. At all times pertinent and material thereto, the Department of Health acted, or appeared to be acting through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in the furtherance of the business of the defendant. 4. Nurse Doe is a licensed R.N. who is, or was at all times material and pertinent thereto, working for the Department of Health in her capacity as a registered nurse surveyor. Plaintiff is asserting a professional liability claim against this defendant. 5. The Church of God Home is a licensed long term care nursing facility located at 801 N. Hanover Street, Carlisle, in Cumberland County, and at all times material and pertinent thereto, was operating in its capacity as a long term care provider, holding itself out in the community as properly equipped and staffed, rendering quality care acting through its departments, medical groups, staff members and other agents, servants or employees. 6. At all times pertinent and material thereto, the Church of God Home acted, or appeared to be acting through its servants, employees, workmen, contractors, administrators and/or representatives in the course and scope of their employment and/or in the furtherance of the business of the defendant. JURISDICTION AND VENLTF 7. Paragraphs 1 through 6 are hereby incorporated by reference. 8. The Court of Common Pleas has exclusive and original jurisdiction of all actions and proceedings pursuant to 42 Pa.C.S.A. §§931(a) 8t (b). 9. Venue is properly laid in Cumberland County pursuant to Pa.R.Civ.P. No. (a)(I), (a)(1) and ( c)(1): the events giving rise to this action occurred in Cumberland County. FACTS 10. Paragraphs 1 through 9 are hereby incorporated by reference. 11. On or about June 29, 2008, Elizabeth Ann Mellott was working in her capacity as nursing supervisor in the Church of God Home. 12. At approximately 11:00 A.M. o'clock, resident Mr. S, developed sudden decline in condition as evidenced by shortness of breath. 13. Ms. Mellott was called by the charge nurse about the patients condition. 14. Within a very few minutes, Ms. Mellott arrived in the patients room, and assessed his condition. 15. Based on her assessment, Ms. Mellott paged the attending physician. 16. While waiting for the physician to respond, Ms. Mellott went back into the patient's room to re-assess the patient. 17. Ms. Mellott found the patient continuing to experience respiratory distress, and went out to page the physician again. 18. The patient expired within about 15 minutes of Ms. Mellott's initial arrival on scene, prior to the physician responding. 19. Because the patient had just been re-admitted from the hospital the day before, the facility was required to notify the Department of Health about the death. 20. The Department of Health elected to send one of their surveyors to investigate the patients death; by statute this must be an RN. or a physician or social worker because of their specialized education and knowledge. 21. The investigator, Nurse Doe, blamed the death on the Plaintiff, stating she failed to act properly. 22. The Department of Health defendant, through its agent nurse Doe, harshly criticized Ms. Mellott and the facility defendant for its employment of Ms. Mellott. 23. Nurse Doe threatened to revoke the facilities license if they did not terminate Ms. Mellott, stating she was a danger to patients. 24. The facility defendant did not want to terminate Ms. Mellott, but because they feared repercussions from the Department of Health (DOH they fired Ms. Mellott. 25. Even though the facility did not fault Ms. Mellott for her actions on June 29, and in fact, provided assistance to Ms. Mellott in securing employment with another long term care facility in Carlisle as a nursing supervisor, they made a negligence report to the Board of Nursing and made a criminal complaint of negligence to the Carlisle Police after they terminated her. COUNT I AGAINST DOH and NURSE DOE.- NEGLIGENCE 26. Paragraphs 1 through 25 are hereby incorporated by reference. 27. Nurse Doe was sent by her employer to investigate events surrounding the death of Mr. S. 28. Nurse Doe owed the facility and Ms. Mellott a duty of care to cant' out her investigation into the death of Mr. S. for her employer, the DOH, utilizing her special education and experience as a registered nurse, in a professional and responsible manner, exercising the degree of skill ordinarily employed by members of the nursing community. . 29. Nurse Doe breached this duty of care because she failed to act as a reasonably prudent nurse would, or should, when she accused Ms. Mellott of acting negligently, and forced the facility to terminate her. 30. Further, Nurse Doe acted rudely, impetuously and without regard to proper standards of nursing care when she accused Ms. Mellott of negligence, and when she coerced the facility to terminate Ms. Mellott. 31. Through her action and/or inactions, Nurse Doe demonstrated that she either lacked the degree of skill or knowledge employed by a registered nurse, or that she failed to use reasonable care and diligence, along with her best judgment, in the application of that skill. 32. Nurse Doe"s threats and actions were the cause of the facility terminating Ms. Mellott. 33. Nurse Doe was negligent when she accused Ms. Mellott of negligence and when she coerced the facility into terminating Ms. Mellott's employment. A Nurse Doe's negligence was the actual and proximate cause of plaintiffs injuries: as a proximate result of her lack of skill or knowledge, or the failure to exercise this degree of care, she caused plaintiff serious injury and harm. 35. Plaintiffs injuries would not have occurred absent the negligent or otherwise tortious conduct of the defendants. 36. Nurse Doe was acting as an agent of the defendant DOH when she acted negligently, and her negligence is imputed to her master, the DOH. 37. Because plaintiff was greatly harmed by Nurse Doe's negligence, she seeks damages from the defendants, jointly and severally, for the following; a. Plaintiff suffered, and continues to suffer, from extreme emotional distress and anxiety, depression and emotional anguish; b. plaintiff suffered economic loss, injury to her reputation, and loss of employment; C. plaintiff has been unable to attend to her usual avocations, duties, labors, occupational and social activities, all to her great financial and personal detriment and loss; d. Plaintiff suffered and continues to suffer a loss of enjoyment of life and life's pleasures, all to her great detriment and loss; e. Plaintiff suffered and continues to suffer from a loss of esteem, and a great loss of confidence in her work skill, all to her great detriment and loss. WHEREFORE, plaintiff demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75, 000 dollars plus costs. COUNT 11 AGAINST DOH and NURSE DOE: TORTIOUS INTERFERENCE WITH AN EMPLOYMENT RELATIONSHIP 38. Paragraphs 1 through 37 are hereby incorporated by reference. 39. On or about June 29, 2008, Ms. Mellott was employed by Church of God Home as a nursing supervisor. 40. Ms. Mellott liked working at Church of God Home and had a valuable property interest in maintaining her employment relationship. 41. Nurse Doe interfered with this employment relationship when she coerced the facility to terminate Ms. Mellott's employment. 42. But for the interference of Nurse Doe into Ms. Mellott's employment relationship with Church of God Home, Ms. Mellott would have continued her employment there. 43. Nurse Doe's actions were willful, knowing, reckless, unlawful and improper, and resulted in plaintiirs loss of gainful employment from Church of God Home. 44. Because plaintiff was greatly harmed by Norse Doe's interference, she seeks damages from the defendants, jointly and severally, for the following; a. plaintiff suffered, and continues to suffer, from extreme emotional distress and anxiety, depression and emotional anguish; b. plaintiff suffered economic loss, injury to her reputation, and loss of employment; C. plaintiff has been unable to attend to her usual avocations, duties, labors, occupational and social activities, all to her great financial and personal detriment and loss; d. plaintiff suffered and continues to suffer a loss of enjoyment of life and life's pleasures, all to her great detriment and loss; e. plaintiff suffered and continues to suffer from a loss of esteem, and a great loss of confidence in her work skill, all to her great detriment and loss. WHEREFORE, plaintiff demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75, 000 dollars plus costs. COUNT III AGAINST CHURCH OF GOD HOME: DEFAMATION 45. Paragraphs 1 through 44 are hereby incorporated by reference. 46. On or about June 29, 2008, plaintiff as employed by Church of God Home as a nursing supervisor. 47. Defendant employer terminated Ms. Mellotts employment when Nurse Doe threatened them with lose of licensure if they continues to employ her. 48. At the time of the termination, Church of God believed Ms. Mellott had acted properly in her care of Mr. S., and had acted prudently in the events of that day. 49. But for the interference of Nurse Doe from the DOH, Ms. Mellott would not have been fired. As a matter of fact, Ms Jeanne Montayre, the assistant director of nursing at Church of God assisted Ms. Mellott in securing employment at chapel Point by calling the director of nursing there, who was a friend of hers, to recommend her for employment. 50. On or about July 2, 2008, Mary Hartman, director of nursing, made a formal complaint to the Board of Nursing regarding Ms Melllott's actions, accusing her negligence. 51. On or about July 2, 20008. Ms. Montayre made a criminal complaint to the Carlisle police reporting Ms. Mellott for criminal negligence. 52. Both Ms. Hartman and Ms. Montayre knew Ms. Mellott was not negligent as evidenced by their words deeds yet she still knowingly made these false allegations during the course and scope of her employment. 53. The false allegations were published when the allegations were reported to the police and the board of nursing, were documented by each agency subsequently an investigation ensued with a written report from each agency. 54. Ms. Mellott has a property interest in maintaining her licensure as a professional registered nurse; these defamatory statements/actions threatened , and continue to threaten, her ability to continue to work gainfully in her chosen field and caused her great harm. 55. The Church of God Home was recklessly indifferent to Ms. Mellotts property interest in maintaining her license as a registered nurse and acted with wanton disregard to Ms. Mellottt's interests. 56. The defamation caused by the Church of God Home was the actual and proximate cause of plaintiffs injuries: as a proximate result of these false allegations, plaintiff suffered serious injury and harm. 57. Because plaintiff was greatly harmed by the Church of Gods defamatory statements/actions, she seeks damages from the defendants, jointly and severally, for the following; a. plaintiff suffered, and continues to suffer, from extreme emotional distress and anxiety, depression and emotional anguish; b. plaintiff suffered economic loss, injury to her reputation, and loss of employment; C. plaintiff has been unable to attend to her usual avocations, duties, labors, occupational and social activities, all to her great financial and personal detriment and loss; d. Plaintiff suffered and continues to suffer a loss of enjoyment of life and life's pleasures, all to her great detriment and loss; e. plaintiff suffered and continues to suffer from a loss of esteem, and a great loss of confidence in her work skill, all to her great detriment and loss. WHEREFORE, plaintiff demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75, 000 dollars plus costs. COUNT IV AGAINST CHURCH OF GOD HOME INTENTIONAL INFLICTION OF EMI'll TI NAi DISTRESS 58. Paragraphs 1 through 57 are hereby incorporated by reference. 59. Defendant facility knowingly made false, harmful statements about plaintiff to the licensing agency and the police. 60. Defendant nursing home conduct exhibited reckless and intentional indifference to plaintiff's rights in continuing her employment, and more importantly, maintaining her licensure as a professional nurse and remaining free from criminal charges. 61. Defendant nursing home knew, or should have known, that subjecting Ms. Mellott to professional and criminal scrutiny would cause her great harm and great emotional distress. 62. Knowing the basis for the allegations was false, the defendant exhibited wanton, outrageous and intolerable conduct 63. Defendant's conduct has resulted in plaintiff's severe ongoing emotional distress and severe anxiety. 64. Because plaintiff was greatly harmed by defendant nursing home's outrageous conduct, she seeks damages from the defendants, jointly and severally, for the following; a. plaintiff suffered, and continues to suffer, from extreme emotional distress and anxiety, depression and emotional anguish; b. plaintiff suffered economic loss, injury to her reputation and loss of employment; C. plaintiff has been unable to attend to her usual avocations, duties, labors, occupational and social activities, all to her great financial and personal detriment and loss; d. Plaintiff suffered and continues to suffer a loss of enjoyment of life and life's pleasures, all to her great detriment and loss; e. plaintiff suffered and continues to suffer from a loss of esteem, and a great loss of confidence in her work skill, all to her great detriment and loss. WHEREFORE, plaintiff demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75, 000 dollars plus costs. COUNT V AGAINST CHURCH OF GOD HOME MALICIOUS PROSECUTION/ABUSE OF PROCESS 65. Paragraphs 1 through 64 are hereby incorporated by reference 66. Defendant Church of God Home initiated proceedings against Ms. Mellott with the Board of Nursing and the Carlisle police on or about July 2, 2008. 67. Defendant knew the charges were false and that they lacked probable cause. 68. Both proceedings were terminated in the plaintiff's favor. 69. Defendant acted in a grossly negligent, malicious and intentional manner and caused great harm to the plaintiff. 70. Because plaintiff was greatly harmed by defendant nursing home's outrageous conduct, she seeks damages from the defendants, jointly and severally, for the following; EL Plaintiff suffered, and continues to suffer, from extreme emotional distress and anxiety, depression and emotional anguish; b. Plaintiff suffered economic loss, injury to her reputation and loss of employment; C. plaintiff has been unable to attend to her usual avocations, duties, labors, occupational and social activities, all to her great financial and personal detriment and loss; d. plaintiff suffered and continues to suffer a loss of enjoyment of life and life's pleasures, all to her great detriment and loss; e. plaintiff suffered and continues to suffer from a loss of esteem, and a great d. plaintiff suffered and continues to suffer a loss of enjoyment of life and life's pleasures, all to her great detriment and loss; e. plaintiff suffered and continues to suffer from a loss of esteem, and a great loss of confidence in her work skill, all to her great detriment and loss. WHEREFORE, plaintiff demands judgment in her favor against defendants, jointly and severally, in an amount in excess of $75, 000 dollars plus costs. I verify that the facts set forth in this complain are true and correct to the best of knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unworn falsification to authorities. Date: (0 1l - q RespectUly submitted, R Knicos, Esquire preme Court ID No. 89529 Attorney for Plainttff I # 08-002978 COMPLAINT REPORT Page No. 11/12/2008 COMPLAINT NUMBER -> 08-002978 Received by: TIMOTHY LIVELY Date/Time received: 07/02/2008 @ 11:30 How received: PHONE Time dispatched: 11:30 Time arrived: 11:30 Time cleared: 11:42 COMPLAINANT -> JEANNE MON,#AYRE Address: CHURCH OF GOD HOME 801 N. HANOVER S City: CARLISLE State: PA Zip: 17013 Phone: (717) 249-5322 TYPE OF COMPLAINT -> DEATH INVESTIGATION Nature of REPORTED SUSPICIOUS DEATH OF HOWARD STEAGER 11/26/1918 ON complaint SUNDAY, JUNE 29TH. STEAGER FRACTURED (L) HIP ON 6/24, SURGY AT CRMC 6/26, RETURNED 6/28, DIED 6/2,6117 CORONER RULED IT ACCIDENTAL. STATEtAS FOUND RN NEGLIGENT FOR NOT CALLING 911. How handled: officer visit Location code: ZONE4 Location dispatched: CHURCH OF GOD HOME Officer dispatched: TIMOTHY LIVELY TIME ANALYSIS Queue time Travel tim <time received to dispatched> = 0 min t e Response time <time <time dispatched to arrived> receiv d u es 0 minutes Action time <time e to arrived> _ arrived to cleared> 0 minutes = 12 minutes COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE BUREAU OF ENFORCEMENT AND INVESTIGATION PROFESSIONAL COMPLIANCE OFFICE 2601 NORTH THIRD STREET, P.O. BOX 2649 HARRISBURG, PA 17105-2649 July 3, 2008 (OUTSIDE PA): (717) 7834854 (PA ONLY): 1-800-822-2113 MARY F HARTMAN (FACSIMILE): (717) 705-2882 Department's website: www.dosstataao.us 801 N HANOVER ST CARLISLE PA 17013 Dear Mary F Hartman, This letter will acknowledge receipt of your formal complaint filed against ELIZABETH A MELLOTT. We will conduct an inquiry into the allegations. Unfortunately, due to the number of cases, we are unable to provide regular status reports or updates. You will, at the least, be notified of the final disposition of your complaint. Complaint File Number 08-51-06555 has been assigned to this matter. Thank you for your patience. Sincerely, ff,O*W aw Mary Sue Ferster Professional Compliance Office VERIFICATION On this _l3 day of 2009, I, (-C/ hereby verify that the facts and averments contained herein are true and correct to the best of my knowledge and belief subject to the penalties of 18 Pa.C.S. 4904 relating to unswom falsifications to authorities. el la ElizaYx-th Ann Mellott CERTIFICATE OF SERVICE AND NOW, this day of 2009, I hereby certify that I -.,.Z b _ served a true and correct copy of the foregoing ocument upon counsel of record by depositing a copy of same in the United States mail, postage prepaid in Cumberland county, Pennsylvania, addressed as follows: Tom Corbett, Attorney General Office of the Attorney General Strawberry Square Harrisburg, PA 17120 Church of God Home 801 N. Hanover Street Carlisle,-RA 17013 Rende Knicos, Esquire X NICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA. 17013 F'L' [' r OF THE r,? Y 2?9 Sheriffs Office of Cumberland County R Thomas Kline _•_ at cir+nb'; t Edward L Schorpp Sheri' Solicitor Ronny R Anderson Jody S Smith Chief Deputy C' E rr Civil Process Sergeant Elizabeth Ann Mellott vs. Case Number Church of God Home 2009-4167 SHERIFF'S RETURN OF SERVICE 06/19/2009 R. Thomas Kline, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Department of State c/o Attorney General Tom Corbett, but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint and Notice according to law. 06/24/2009 08:15 AM - Dauphin County Return: And now June 24, 2009 at 0815 hours I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint, upon the within named defendant, to wit: Department of the State c/o Attorney General Tom Corbett by making known unto Kelly Spittle, adult in charge at Strawberry Square Harrisburg, PA 17120its contents and at the same time handing to her personally the said true and correct copy of the same. 06/26/2009 12:50 PM - Robert Bitner, Deputy Sheriff, who being duly sworn according to law, states that on June 26, 2009 at 1250 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Church of God Home, by making known unto Marty Hartman, director of nursing at 801 N. Hanover Street Carlisle, PA 17013 its contents and at the same time handing to him personally the saic true and correct copy of the same. SHERIFF COST: $58.84 SO ANSWERS, June 26, 2009 R THOMAS KLINE, SHERIFF De uty Sheri N ri? L C - (,? 'C M { G? `? M co K mfrs of the'S'rr Mary Jane Snyder Real Estate Depu William T. Tully • Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania ELIZABETH ANN MELLOTT VS County of Dauphin DEPT OF STATE C/O ATTY GENERAL TOM CORBETT Sheriffs Return No. 2009-T-1783 OTHER COUNTY NO. 094167 And now: JUNE 24, 2009 at 8:15:00 AM served the within COMPLAINT upon DEPT OF STATE C/O ATTY GENERAL TOM CORBETT by personally handing to KELLY SPITTLE 1 true attested copy of the original COMPLAINT and making known to him/her the contents thereof at STRAWBERRY SQUARE HBG PA 17120 SEC Sworn and subscribed to before me this 24TH day of June, 2009 So Answers, & 47?11c 11 - A-11 NOTARIAL SEAL ARY JANE SNYDER, Notary Publi Highspire, Dauphin County M Commission Expires Set 1, 2010 Sheriff of D hin County, BY 101 Deputy Sheriff Deputy: B HUNTER Sheriffs Costs: $41.25 6/23/2009 Daniel R. Goodemote Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15`h Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-3147 ELIZABETH ANN MELLOTT Plaintiff V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HEALTH; NURSE DOE C/O ATTORNEY GENERAL TOM CORBETT, C/O OFFICE OF THE ATTORNEY GENERAL, and CHURCH OF GOD HOME Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA : No. 09-4167 CIVIL TERM ENTRY OF APPEARANCE Please enter my appearance on behalf of Defendant, Pennsylvania Department of Health in the above-referenced matter. Respectfully submitted, Attorney Genera! R. Goodemote Senior Deputy Attorney General Supreme Court l o. 30986 By: niel DATED: July 6, 2009 CERTIFICATE. OF SERVICE I hereby certify that I am this day serving; the foregoing docurnent(s) upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED .AS FOLLOWS: Renee Knicos, Esquire Knicos Lave Office, LLC 301 S. Hanover Street Suite 1 Carlisle, PA 17013 (Counsel for Plaintiff) Church of God Home 801 N. Hanover Street Carlisle, PA 17013 By: ` DwTte'f R. Gooueirr Senior Deputy Attorney General Supreme Court No. 30986 Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: July 6, 2009 i OF THE 2009 JUL -7 Ali I1: 1 1 ~~ Daniel R. Goodemote Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-3147 ELIZABETH ANN MELLOTT THE COURT OF COMMON PLEAS OF UMBERLAND COiJNTY, PA Plaintiff v. COMMONWEALTH OF PENNSYLVANIA o. 09-4167 CIVIL 'T'ERM DEPARTMENT OF HEALTH; NURSE DOE C/O ATTORNEY GENERAL TOM CORBETT, C/O OFFICE OF THE ATTORNEY GENERAL, and CHURCH OF GOD HOME Defendants Please enter my appearance on behalf of De matter. By: Nurse Doe, in the above-referenced Respectfully submitted, THOMAS W. CORBETT, JR. Attorney General ~6aniel R. Goodemote Senior Deputy Attorney General Supreme Court No. 10986 DATED: July 14, 2009 r CERTIFICATE. O I hereby certify that I am this day serving thf and in the manner indicated below: SERVICE BY FIRST POSTAGE PF ADDRESSED AS Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street Suite 1 Carlisle, PA 17013 (Counsel for Plaintiff) Church of God Home 801 N. Hanover Street Carlisle, PA 17013 By: Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 -Direct Dial DATED: July 14, 2009 foregoing document(s) upon the person(s) CLASS MAIL EPAID FOLLOWS: Daniel R. ~'ioodemot:e Senior Deputy Attorney General Supreme Court No. 30986 ~ `',~,~ I. 4 ~ V. l~i 1 f ~~~~. Daniel R. Goodemote Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-3147 ELIZABETH ANN MELLOTT Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HEALTH; NURSE DOE C/O ATTORNEY GENERAL TOM CORBETT, C/O OFFICE OF THE ATTORNEY GENERAL, and CHURCH No. 09-4167 CIVIL TERM OF GOD HOME Defendants NOTICE TO PLEAD TO ALL PARTIES: YOU ARE HEREBY REQUIRED to respond to the within Preliminary Objections to the Commonwealth Defendants pursuant to Pa.R.C.P. 2252(d) within twenty (20) days of the date of service hereof or a default judgment may be entered against you. Respectfully submitted, Thomas W. Corbett, Jr Attorney General By: iel R. oo emote Senior Deputy Attorney General DATED: July 20, 2009 Daniel R. Goodemote Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-3147 ~L1GA13E"1'H ANN MELLOTT Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HEALTH; NURSE DOE C/O ATTORNEY GENERAL TOM CORBETT, C/O OFFICE OF THE ATTORNEY GENERAL, and CHURCH OF GOD HOME No. 09-4167 CIVIL TERM Defendants PRELIMINARY OBJECTIONS OF THE COMMONWEALTH DEFENDANTS These Preliminary Objections are filed by Defendants, Commonwealth of Pennsylvania, Department of Health and Nurse Doe (collectively, Commonwealth Defendants) in response to Plaintiff s Complaint: 1. Plaintiff, Elizabeth Ann Mellott filed a Complaint against the Commonwealth Defendants on June 18, 2009. 2. Defendants are Commonwealth of Pennsylvania, Department of Health and Nurse Doe (collectively, Commonwealth Defendants) and the Church of God Home. 3. Plaintiff s cause of action arises from an investigation of the Church of God Home in connection with the death of one its patients residing at the home on or about June 28, 2009. 4. According to the Complaint, paragraph 4, Defendant Nurse Doe is a licensed R.N. who was at all material times working for the Department of Health as a registered nurse surveyor. 5. The Sovereign Immunity Act defines a "Commonwealth party" as a Commonwealth agency and any employee thereof, but only with respect to an act within the scope of his office or employment. 42 Pa.C.S. §8501. 6. The Department of Health and Nurse Doe are Commonwealth parties within the meaning of the Sovereign Immunity Act. I. PRELIMINARY OBJECTION -LACK OF JURISDICTION DUE TO IMPROPER SERVICE 7. Under Pa.R.C.P. 422(a) "[s]ervice of original process upon the Commonwealth or an officer of the Commonwealth, or a department, board, commission or instrumentality of the Commonwealth, or a member thereof, shall be made at the office of the defendant and the office of the attorney general by handing a copy to the person in charge thereof. 8. Plaintiff served only the Office of Attorney General and did not serve the Department of Health or Nurse Doe. WHEREFORE, THE Commonwealth Defendants pray this Honorable Court to dismiss Plaintiff s Complaint based on lack of jurisdiction. II. PRELIMINARY OBJECTION - DEMURRER TO COUNT I 9. Paragraphs 1 through 8 are incorporated herein by reference. 10. Count I of Plaintiff s Complaint is identified as a negligence count against Nurse Doe. Paragraph 36 imputes the negligence of Nurse Doe to her employer, the Department of Health. 11. Plaintiff's Complaint, ¶4, purports to assert a professional liability claim against Nurse Doe. 12. The allegations underlying Plaintiff's professional liability claim relate to Count I of Plaintiff s Complaint. 13. In order to state a claim against DOH and Nurse Doe, who are Commonwealth parties, Plaintiff's allegations must fall within one of the exceptions set forth in the Sovereign Immunity Act, 42 Pa.C.S. 8522(b)(1) through (8). 14. The allegations of Count I can only relate to one possible exception to the Sovereign Immunity Act -the medical professional liability exception to sovereign immunity, 42 Pa.C.S. §8522(b)(2). 15. The Department of Health (DOH) assigned its employee, Nurse Doe, to investigate the death of a resident of the Defendant Church of God Home. 16. Plaintiff s allegations of negligence against Nurse Doe all relate to her negligence in "accusing" the Plaintiff of being negligent, "forcing" the Home to terminate Plaintiff's employment and acting "rudely" and "impetuously, contrary to proper standards of nursing." 17. Neither of the Commonwealth Defendants furnished medical care to any person at any time relevant to the events described in Plaintiff's Complaint, nor are there any allegations which state that Nurse Doe or DOH furnished medical care or treatment to any person. 18. The official title for a registered nurse surveyor is a Health Facility Quality Examiner (HFQE). 19. Although some of the HFQEs employed by DOH are in fact, registered nurses, their assigned duties are to investigate and evaluate the care and services rendered by nursing homes as required by the state and federal government. The evaluations are performed to determine whether a nursing home is eligible for a state license and certification in the Medicare and Medicaid programs. 20. Count I of Plaintiff s Complaint complains of negligence in the regulation of health care, not negligence in providing health care or treatment. There is no waiver of sovereign immunity for the negligent regulation of health care. 21. Plaintiff s Count I does not fall within any exception to sovereign immunity. WHEREFORE, the Commonwealth Defendants pray the Honorable Court to dismiss Count I of Plaintiff's Complaint with prejudice. III. DEMURRER TO COUNT II 22. Paragraphs 1 through 21 are incorporated herein by reference. 23. Count II of Plaintiff s Complaint alleges Nurse Doe interfered with Plaintiff's relationship with her employer by coercing the Church of God Home to terminate Plaintiff's employment. 24. The allegations of Count II do not fall within any of the exceptions to sovereign immunity, 42 Pa.C.S. §8522(b). WHEREFORE, the Commonwealth Defendants pray the Honorable Court to dismiss Count II of Plaintiff's Complaint with prejudice. IV. DEMURRER TO COUNTS I AND II. 25. Paragraphs 1 through 24 are incorporated herein by reference. 26. With respect to the negligent acts set forth in Plaintiff's Complaint, Defendant Nurse Doe was acting within the scope of her duties as a HFQE. Those duties were performed in good faith and without malice. 27. Defendant Nurse Doe is immune from any liability for payment of any form of damages under the Health Care Facilities Act, 35 P.S. 448.604. WHEREFORE, Defendant Nurse Doe prays this Honorable Court: to dismiss Counts I and II filed against her with prejudice. Respectfully submitted, Thomas W. Corbett, Jr. Attorney General ,, By: D iel R. Goo e enior Deputy Attorney General Supreme Court No. 30986 VERIFICATION The facts set forth in these Preliminary Objections to the Commonwealth Defendants are true and correct to the best of my knowledge, information and belief. Thais statement is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications to authorities. t niel R. od mote Dated: July 20, 2009 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing document:(s) upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover Street Suite 1 Carlisle, PA 17013 (Counsel for Plaintiff] Church of God Home 801 N. Hanover Street Carlisle, PA 17013 By: niel R. Good ote Senior Deputy Attorney General Supreme Court No. 30986 Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 -Direct Dial DATED: July 20, 2009 Fi~~--~~~'i:; ~. ; :. 2004 ~U~. ?.2 PFD 2~ ~: Cur~~~~' ~ r1;1~.,.~ e Renee Knicos, Esquire KNICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 249.6808 ELIZABETH ANN MELLOTT, CUMBERLAND COUNTY Plaintiff COURT OF COMMON PLEAS V. . No. 09-4167 Civil Term COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT JURY TRIAL DEMANDED OF HEALTH, NURSE DOE, and CHURCH OF GOD HOME, Defendants PLAINTIFF'S ANSWER TO COMMONWEALTH DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW comes the Plaintiff, by and through her attorney, Renee Knicos, Esquire, and avers and Answers defendants' Preliminary Objections; 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Paragraph 5 is a conclusion of law to which no responsive pleading is required. To the extent a response may be required, it is Denied. 6. Admitted. I. LACK OF JURISDICTION DUE TO IMPROPER SERVICE 7. Admitted. 8. Admitted. II. DEMURRER TO COUNT I 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted in part, Denied in part. 13. Admitted. 14. Admitted. 15. Admitted. 16. Admitted in part, Denied in part. 17. Admitted. 18. Admitted. 19. Admitted in part, Denied in part. 20. Denied. 21. Paragraph 21 is a conclusion of law to which no response is required. To the extent a response may be required, it is Denied. III. DEMURRER TO COUNT II 22. Admitted. 23. Admitted. 24. Paragraph 24 is a conclusion of law to which no response is required. To the extent a response may be required, it is Denied. IV. DEMURRER TO COUNTS I AND II 25. Admitted. 26. Admitted in part, Denied in part. 27. Pazagraph 27 is a conclusion of law to which no response is required. To the extent a response may be required, it is Denied. WHEREFORE, Plaintiff prays this Honorable Court DENY defendant's Preliminary Objections. Date:_~ / ~ / Knicos, Esquire ne Court No. 89529 VERIFICATION I verify that the facts set forth in this document are true and correct to the best of my knowledge, information and belief. I understand that false statement herein are made subiect to the »enalties of 18 Pa.C.5. §4904, relating to unswom falsification 1 Date: / ~ ' `'J ~~._ Renee Knicos, Esquire KNICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 249.6808 ELIZABETH ANN MELLOTT, Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, NURSE DOE, and CHURCH OF GOD HOME, Defendants No. 09-4167 Civil Term JURY TRIAL DEMANDED LAINTIFF'S CERTIFICATE OF MERIT AS TO NURSE DOE I, Renee Knicos, Esquire, certify that: an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude chat the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of this complaint, fell outside acceptable professional standards, and that such harm. Date: ~~G!'~~ the cause in bringing about the Renee Knicos, Esquire Supreme Court No. 89529 AND NOW, this -- ~ ~ day of a true and correct copy of the Daniel R. Goodemote, Esq. Office of Attorney General Torts Litigation Center Strawberry Square, 15~' Floor Harrisburg, PA 17120 of same in the United States mail, postage prepaid in Cumberland County, Pennsylvania, addressed as follows: BY: Jeffrey M, Daitz, Esq. Peckar & Abramson, P.C. 70 Grand Avenue River Edge, New Jersey 076 2009, I hereby certify that I served document upon counsel of record by depositing a copy Renee Knicos, Esq. KNICOS LAW OFFICE, LLG 301 S. Hanover St., Suite 1 Carlisle, PA 17013 ~y r, p.~,., ~. ~ A 2009 CCT 14 Pi~i 1~~ 32 e .; r~ CUB, - !~J E ... ~ .~4'.,: C R ~- ~ Daniel R. Goodemote Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-3147 ELIZABETH ANN MELLOTT Plaintiff v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HEALTH; NURSE DOE C/O ATTORNEY GENERAL TOM CORBETT, C/O OFFICE OF THE ATTORNEY GENERAL, and CHURCH OF GOD HOME Defendants 1 fy~ FlLEC~~-?`ri,~~- ~.~r 2010 t~+~Y 'i 4 P~ 3~ ~_~ ~::±, cur~~~.. ,:. ~,~ri?~A1 ~~~r~P1 ~~- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA No. 09-4167 CIVIL TERM PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly list the within matter for the next Argument Court. 1. The matter to be argued is Defendant's Preliminary Objections. 2. Identity of counsel to Argue Motion: (a) for Plaintiff: Renee Knicos, Esquire, Knicos Law Office, LLC, 301 S. Hanover Street, Suite 1, Carlisle, PA 17013 (b) for Defendants: Daniel R. Goodemote, Esquire, Office of Attorney General, Torts Litigation Section 15th Floor, Strawberry Square, Harrisburg, PA 17120, (717) 783-3147 3. I will notify all parties in writing within two days that this case' has been listed for argument. 4. Argument Court Date: July 7, 2010 Respectfully submitted, THOMAS W. CORBETT, JR. ATTORNEY GENERAL By: niel R. Goo emote Senior Deputy Attorney General Supreme Court No. 30986 DATED: May 10, 2010 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing document(s) upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Renee Knicos, Esquire Knicos Law Office, LLC 301 S. Hanover S±reet Suite 1 Carlisle, PA 17013 (Counsel for Plaintiff) Jeffrey M. Daitz, Esquire Peckar & Abrahamson, P.C. 70 Grand Avenue River Edge, NJ 07661 (Attorney for Defendant Church of God Home) /1 By: aniel R. Goode E; Senior Deputy Attorney General Supreme Court No. 30986 Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 -Direct Dial DATED: May 10, 2010 ELIZABETH ANN MELLOTT, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, NURSE DOE, C/O ATTORNEY GENERAL TOM CORBETT, C/O OFFICE OF THE ATTORNEY: GENERAL, and CHURCH OF GOD HOME, Defendant N0.09-4167 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF THE COMMONWEALTH DEFENDANTS BEFORE OLER and EBERT, JJ. ORDER OF COURT c~ _ ~ c_. - ~! °~~~ . ~w ~~~~~ , ;~. _ G3 ; ~ ~.~ 'a,. c~_ ~, rv :~ ~ L ~,.:, AND NOW, this 8`" day of July, 2010, upon consideration of the Preliminary Objections of the Commonwealth Defendants, filed on behalf of Defendants Commonwealth of Pennsylvania, Department of Health and Nurse Doe, and following oral argument held on July 7, 2010, the preliminary objection asserting a lack of personal jurisdiction due to improper service is sustained, and the service of Plaintiff's Complaint as it relates to the Commonwealth Defendants is set aside, without prejudice to Plaintiff's right to properly serve the Commonwealth Defendants and without prejudice to the right of said Defendants to refile their more substantive preliminary objections at that time. BY THE COURT, Renee Knicos Es . q Knicos Law Office, LLC 301 S. Hanover Street Suite 1 Carlisle, PA 17013 Attorney for Plaintiff ~niel R. Goodemote, Esq. Office of Attorney General Torts Litigation Center Strawberry Square, 15~' Floor Harrisburg, PA 17120 Attorney for Defendants Commonwealth of Pennsylvania, Department of Health, and Nurse Doe effrey M. Daitz, Esq. Peckar & Abramson, P.C. 70 Grand Avenue River Edge, NJ 07661 Attorney for Defendant Church of God Home c~~~ ~~~ ~~.~ ?' 8~~~ :rc I 1 ~, Jr ~ ~/` ~ l_%,, J esley Oler ~ J. SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~ptt~tt~, ~,1 ~':~iutUr~r~~b Jody S Smith Chief Deputy ~; ~- ,~: ~~.. Richard W Stewart Solicitor ~~,~r ~~~ ` ~'~~ ~"~~`~F Elizabeth Ann Mellott Case Number vs. 2009-4167 Church of God Home (et al.) SHERIFF'S RETURN OF SERVICE 09/14/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Department of Health, but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint and Notice according to law. 0 911 4/2 0 1 0 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Nurse Doe, but was unable to locate her in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint and Notice according to law. 09/23/2010 09:52 AM -Dauphin County Return: And now September 23, 2010 at 0952 hours I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Nurse Doe by making known unto Jacqueline Wright, Receptionist for The Department of Health at 625 Forester Street, 8th Floor West, Harrisburg, PA 17120 its contents and at the same time handing to her personally the said true and correct copy of the same. 09/29/2010 09:52 AM -Dauphin County Return: And now September 23, 2010 at 0952 hours I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Department of Health by making known unto Jacqueline Wright, Receptionist for The Department of Health at 625 Forester Street, 8th Floor West, Harrisburg, PA 17120 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $53.44 SO ANSWERS, ~~~----" September 29, 2010 RON R ANDERSON, SHERIFF ~_ r.~ ~ ~"' ~~ ~ u~ 4"r'I C/? ~ 'j'i r-~.. ^,w --7 "'nom „~ -~ ~ ~ C') r.~ ~' _{ c .~ ~~ ir,J Gour2ySuit~ 5herift, Teleosoft. tnr,. Mary Jane Sn~der Real Estate Depu William T. Tully Solicitor Commonwealth of Pennsylvania County of Dauphin ~, Dauphin County Haaisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy ELIZABETH ANN MELLOTT VS NURSE DOE Sheriff s Return No. 2010-T-3001 And now: SEPTEMBER 23, 2010 at 9:52:00 AM served the within NOTICE & COMPLAINT upon DEPARTMENT OF HEALTH by personally handing to JACQUELINE WRIGHT 1 true attested copy of the original NOTICE & COMPLAINT and making known to him/her the contents thereof at 625 FORESTER STREET, 8TH FLOOR WEST HARRISBURG PA 17120 OTHER COUNTY CASE # 20094167 RECEPTIONIST ~~ Deputy: G MILLER Plaintiff: ELIZABETH ANN MELLOTT Sheriff s Costs: $60.5 9/17/2010 Out Of County Cost: So Answers, ~~~~~. Sheriff of Dauphin County, Pa. Sworn to and before me this ~o ~o -_ , ,~ F OTHONOTARY DAUFHIN OUNTY '~ / C MMISSION E~P,[RES IST MONDAY JANUARY, 2p,~w Mary Jane Snyder Real Estate Depu William T. Tully Solicitor Commonwealth of Pennsylvania County of Dauphin :: Dauphin County Harrisburg, Pennsylvania 17101 ph: (717)780-6590 fax: (717)255-2889 Jack Lotwick Sheriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy ELIZABETH ANN MELLOTT VS NURSE DOE Sheriff s Return No. 2010-T-3001 And now: SEPTEMBER 23, 2010 at 9:52:00 AM served the within NOTICE & COMPLAINT upon NURSE DOE by personally handing to JACQUELINE WRIGHT 1 true attested copy of the original NOTICE & COMPLAINT and making known to him/her the contents thereof at 625 FORESTER STREET, 8TH FLOOR WEST HARRISBURG PA 17120 OTHER COUNTY CASE # 20094167 RECEPTIONIST So Answers, ~~~ Sheriff of Dauphin County, Pa. Deputy: G MILLER Plaintiff: ELIZABETH ANN MELLOTT Sheriff s Costs: $60.5 9/17/2010 Out Of County Cost: Sworn to and subscri before me this a aay o~~ • =~ ~,~ COMMISSION ~XP[RFS IST MONDAY JANUARY, 20 Daniel R. Goodemote Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-3147 t7J-Oii± 01X0 WRY 2010 OC T 12 Pig 1: y 5 SYLVANIA ELIZABETH ANN MELLOTT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiff V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HEALTH; NURSE DOE C/O ATTORNEY GENERAL TOM CORBETT, C/O OFFICE OF THE ATTORNEY GENERAL, and CHURCH OF GOD HOME No. 09-4167 CIVIL TERM Defendants NOTICE TO PLEAD TO ALL PARTIES: YOU ARE HEREBY REQUIRED to respond to the within New Matter and New Matter Crossclaims Pursuant to Pa.R.C.P. 2252(d) within twenty (20) days of the date of service hereof or a default judgment may be entered against you. Respectfully submitted, Thomas W. Corbett, Jr. Attorney General By. aniel R. Goodemote Senior Deputy Attorney General DATED: October 7, 2010 P Daniel R. Goodemote Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15`h Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-3147 ELIZABETH ANN MELLOTT Plaintiff V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HEALTH; NURSE DOE C/O ATTORNEY GENERAL TOM CORBETT, C/O OFFICE OF THE ATTORNEY GENERAL, and CHURCH OF GOD HOME IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA No. 09-4167 CIVIL TERM Defendants PRELIMINARY OBJECTIONS OF THE COMMONWEALTH DEFENDANTS These Preliminary Objections are filed by Defendants, Commonwealth of Pennsylvania, Department of Health and Nurse Doe (collectively, Commonwealth Defendants) in response to Plaintiff's Complaint: 1. Plaintiff, Elizabeth Ann Mellott filed a Complaint against the Commonwealth Defendants on June 18, 2009. 2. Defendants are Commonwealth of Pennsylvania, Department of Health and Nurse Doe (collectively, Commonwealth Defendants) and the Church of God Home. 3. The Commonwealth Defendants filed Preliminary Objections to Plaintiff's Complaint on or about July 20, 2009. 4. This Court sustained the Commonwealth Defendants' objection based on a lack of personal jurisdiction due to improper service. The Court's order was dated July 8, 2010. 5. Plaintiff has re-served the original Complaint on September 23, 2010. 6. Plaintiff s cause of action arises from an investigation of the Church of God Home in connection with the death of one of its patients residing at the home on or about June 28, 2009. 7. According to the Complaint, Paragraph 4, Defendant Nurse Doe is a licensed R.N. who was at all material times working for the Department of Health as a registered nurse surveyor. 8. The Sovereign Immunity Act defines a "Commonwealth party" as a Commonwealth agency and any employee thereof, but only with respect to an act within the scope of his office or employment. 42 Pa.C.S. §8501. 9. The Department of Health and Nurse Doe are Commonwealth parties within the means of the Sovereign Immunity Act. L PRELIMINARY OBJECTION - DEMURRER TO COUNT I 10. Paragraphs 1 through 9 are incorporated herein by reference. 11. Count I of Plaintiff s Complaint is identified as a negligence count against Nurse Doe. Paragraph 36 imputes the negligence of Nurse Doe to her employer, the Department of Health. 12. Plaintiff s Complaint, ¶4, purports to assert a professional liability claim against Nurse Doe. WHEREFORE, Defendant Nurse Doe prays this Honorable court to dismiss Counts I and II filed against her with prejudice. Respectfully submitted, THOMAS W. CORBETT, JR. ATTORNEY GENERAL By: iel R. oo e to Senior Deputy Attorney General Supreme Court No. 30986 DATED: October 7, 2010 446 COMMONWEALTH OF PENNSYLVANIA OFFICE OF ATTORNEY GENERAL TOM CORBETT October 7, 2010 ATTORNEY GENERAL Torts Litigation Section 15th Floor, Strawberry Sq. Harrisburg, PA 17120 Direct Dial:-717-783-3147 Fax: 717-705-7241 Cumberland County Courthouse Prothonotary's Office One Courthouse Square Carlisle, PA 17013-3387 Re: Mellott v. PA Department of Health, et al. Dear Prothonotary: Enclosed for filing please find Preliminary Objections of the Commonwealth Defendants with regard to the above-referenced case. Thank you for your attention to this matter. Very truly yours, 34wt 0(;Za -4 Daniel R. Goodemote Senior Deputy Attorney General DRG/smm Enclosure c: All Counsel of Record c~~~~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) ~ ~--~ TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Argument Court.) CAPTION OF CASE (entire caption must be stated in full) ELIZABETH ANN MELLOTT, vs. c -~ ~ o (List the within matter. forrt~ neatb ~ ~" ~ _-------------------------------Fn te ~= Ev r - .~ o - q ~ ~~ ~ ~~. --~ -~ w w >~-:,;: c~ -~ rn ~ o~ ~~ o ~' -+o cs-y -n ~~ ~~ COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH: NURSE DOE C/0 ATTORNEY GENERAL TOM CORBETT, C/0 OFFICE OF THE ATTORNEY GENERAL, and CHURCH OF GOD HOME, No. 09-4167 CIVIL Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Commonwealth Defendants' Preliminary Objections 2. Identify all counsel who will argue cases: (a} for plaintiffs: Renee Knicos, Esquire, Knicos_Law Office, LLC (Name and Address) 301 S. Hanover Street, Suite 1, Carlisle, PA 17013 (b) for defendants: Daniel R. Goodemote, Office of Attorney ene al} Torte (Name and Address) Litigation Section, 15th Floor, Strawberry Square, Hbg., PA 17120 3. 1 will notify all parties in writing within two .days that this case has been. listed for argument. 4. Argument Court Date: December 15, 2010 ignature n rint your a e /~,,~,4i(/1~L ~ ~ D ~~l~Tti` Attorney for Commonwealth Date: October 20, 2010 INSTRUCTIONS: 1.Original and two copies of all briefs must be Sled with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3, The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Renee Knicos, Esquire I~NICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 249.6808 ELIZABETH ANN MELLOTT, Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, NURSE DOE, and CHURCH OF GOD HOME, Defendants ~'1LE~-0~"FIGc Cf~ T~~ PRGTHQP~?~~.~~,G~, 2D10 ACT 27 P~ 1: >~, ''~1MS~RLA~D GG~1~~'' PEPd€~.~ YL~,~~. ~~3! ~`. CUMBERLAND COUNTY COURT OF COMMON PLEAS No. 09-4167 Civil Term JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO COMMONWEALTH DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW comes the Plaintiff, by and through her attorney, Renee Knicos, Esquire, and avers and Answers defendants' Preliminary Objections; 1. Admitted. 2. Admitted. 3. .Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. I. DEIViI1RRER TO COUNT I 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. 15. Admitted. 16. Admitted. 17. Admitted. 18. Admitted. 19. Admitted. 20. Paragraph 20 is a conclusion of law to which no responsive pleading is required. To the extent a response may be required, it is Denied. 21. Paragraph 21 is a conclusion of law to which no response is required. To the extent a response may be required, it is Denied. 22. Denied. II. DEMURRER TO COUNT II 23. Admitted. 24. Admitted. 25. Paragraph 25 is a conclusion of law to which no response is required. To the extent a response may be required, it is Denied. III. DEMURRER TO COUNTS I AND II 26. Admitted. 27. Admitted in part, Denied in part. 28. Paragraph 27 is a conclusion of law to which no response is required. To the extent a response may be required, it is Denied. WHEREFORE, Plaintiff prays this Honorable Court DENY defendant's Preliminary Objections. Respectfully submitted, Date: ~ ~ ~~ Renee 'cos, Esquire Supreme Court No. 89529 • CERTIFICATE OF SERVICE AND NOW, this day of ~~ , 2010, I hereby certify that I served a true and correct copy of the foregoing document upon counsel of record by depositing a copy of same in the United States mail, postage prepaid in Cumberland County, Pennsylvania, addressed as follows: Daniel R. Goodemote, Sr. Deputy Attorney General Office of Attorney General 15"' Floor, Strawberry Square Torts Litigation Section Harrisburg, PA 17120 Jeffrey M. Danz, Esq. Peckar & Abramson, P.C. 70 Grand Ave. River edge, New Jersey 07661 BY: Renee Knicos, Esq. KNICOS LAW OFFICE, LLC 301 S. Hanover Street Carlisle, PA 17013 Renee Knicos, Esquire KNICOS LAW OFFICE, LLC ,_ _ ,~ ~. a ~ 3 ; ,; ~} 301 S. Hanover Street, Suite 9 ` Carlisle, PA 17013 ~ , ~' ~ ~ _ ~,''ti J +~. ~ J i ~ s `~;~ '' L. ~t . r ~ i ~~ 249.680'3 ; ._~ ; j `:~ "~ ~' ~' ~'' ELIZABETH ANN MELLOTT, CUMBERLAND COUNTY Plaintiff COURT OF COMMON PLEAS V. . No. 09-4167 Civil Term COMMONWEALTH OF PENNS'i'LVANIA, DEPARTMENT JURY TRIAL DEMANDED OF HEALTH, NURSE DOE, and CHURCH OF GOD HOME, Defendants PLAINTIFF'S MOTION TO COMPEL DEFENDANT TO PROVIDE RESPONSES TO DISCOVERY REQUESTS AND NOW comes the plaintiff, by and through. her attorney Renee Knicos, Esquire, and submits Motion To Compel, and in support thereof, hereby avers the following 1. Plaintiff commenced this action by filing and serving her Complaint on or about June 18, 2009. 2. The Commonwealth defendant filed and served their Preliminary Objections on July 20, 2009. After argument, the Court sustained the Preliminary Objections of defendant Commonwealth Of Pennsylvania on both counts, in an Order and Opinion by the Honorable Edward E. Guido, on May 9, 2011,. 3. Plaintiff served discovery upon defendant Church Of God Home (defendant) on June 19, 2010. Exhibit A 4. Plaintiff has as of this date, had no response from the defendant, either in written or verbal form. Plaintiff has contacted defendant on June 1 l.. 2012, August 8, 2012, and October 15, 2012, to no avail. E;xhibits B, C and D. 6. Plaintiff requests this Honorable Court GRANT her Motion To Compel Discovery Responses in order to move this litigation forward. 7. Plaintiff also requests that this Honorable Court allow Plaintiff to motion for sanctions upon application to the Court if defendant fails to comply with the Court's Order. WHEREFORE, plaintiff respectfully requests this Honorable Court grant her Motion To Compel and enter the attached ORDER. Respectfully submitted, Page 2 of 2 Supreme Court ID 8959 Counsel for Plaintiff :,~, F 3U t 5. Hanover St. ~, 4 , 5urtc I ~ 4 ~ (:~rlisle 9',~ 1 i 013 ~ ~. Phone: 17-'<49-6808 ` ~ 1 i ti: ~ ?49-5910 Jeffrey Daitz, Esquire Peckar & Abramson. P.C. 70 Grand Avenue River Edge, New Jersey 07661 June 19, 2010 RE: Mellott v. Commonwealth of Pennsylvania, et al. Cumberland County No. 09-4167 Your File No. 3710-200230 Dear Mr. Daitz: Enclosed please find Request For Production of Documents And Things and Interrogatorries directed to your client, Church of God Home. I would like to set up depositions for the nursing home administrator, the director of nurses and the assistant director of nurses sometime in the next month or so. Would you kindly call me at your convenience so that we can set up a convenient date for these. I tend to keep my depositions short, and I would anticipate no more than one hour for each individual, if that. It will probably be easiest for all to do them there at the facility if that works for your client. I look forward to hearing from you soon. Yours truly, Copy Renee Knicos enc. ~~~ "!SIT `~ ?l)1 S. Hanover St. S uiTe `~~~~ ,:~ Car: isle, PA 17013 ~ ('hone- 7 ! 7-249-6808 ''~ Fix: 7 i%_349-5970 Robert H. Benacchio, Esq. Peckar & Abramson, P.C. 70 Grand Ave River Edge, New Jersey 07661 June 11.2012 RE: Mellott v. Commonwealth of Pennsylvania, et al. Your Fiie No. 3710-200230 Dear Mr, Benacchio; It has been quite some time since we last spoke.. I had a trial, vacation and, unfortunately, a lengthy ,intense illness which took me out for a while. However, I am currently working closely with my client Ms. Mellott, to complete the Interrogatories propounded upon us, and the request for documents. I plan to have everything together and to you within the next two weeks. I ask that you please try to get the Interrogatories and Request for Documents which I served on you completed and returned. I would like to start deposing your clients next month. Please contact me to advise me if this works for you. I plan to get this case back on track towards resolution. I look forward to hearing from you, and extend my apologies for the prolonged delay. Yours truly, ~~~ Renee Kmcos EXHIBIT ~-~ b ~til S. Fiano~~er St. ~` Suite 1 ~~~~`~ ~ Carlisle, I'A 17013 ~~~ ~ I'houe: 7-249-6808 !~, E ~~: 71 ?49-5970 ' d `~, Robert H. Benacchio, Esq. Peckar & Abramson, P.C. 70 Grand Ave River Edge, New Jersey 07661 August R, 2012 RE: Mellott v. Commonwealth of Pennsylvania, et al. Your File No. 3710-200230 Dear Mr. Benacchio; Enclosed please find plaintiff's Answers to Defendant's First Set of Interrogatories. Ms. Mellott has not yet provided me with her income tax returns; I will send them to you upon receipt. Ms. Mellott does not have any documents from the Church of God Home as requested in the Defendant's First Requests for Documents. I would appreciate you providing responses to my discovery requests. I shall give you an additional thirty (3a) days in which to comply from the date of receipt of this letter. Thank you and please contact me with any questions. Yours truly, e~~` Y a Renee Knicos enc. @~.4~ ~~~I I ~ I T RE: Mellott v. Commonwealth of Pennsylvania, et al. Your File No. 3710-200230 Dear Mr. Benacchio; I have had no response from you regarding several requ+e~ts for answers to Plaintiffl s Interrogatories and Request For Production of Documents. As such, if I do not hear from you, or receive my discovery in i#s entirety, I shall have no choice buffo file a Motion to Compel_ Please be advised the motion will be filed on October 30 if I do not hear from you. Thank you. Yours truly, COPY Renee Knicos _ 31)1 S. Hanover St. ~, Suite l ~ ~~ ~ C ~riisle, PA 17013 I'hone;~l7-249-6808 ~ I,ix 71 ?49-3970 ,.' Robert H. Benacchio, Esq. Peckar & Abramson, P.C. 70 Grand Ave River Edge, New Jersey 07661 October 15, 2012 _ _ . EXHIBIT CERTIFICATE OF SERVICE AND NOW, this '~~~day of _ ~ _, 2012, I hereby certify that I served a true acid correct copy of the foregoing document upon counsel of record by depositing a copy of same in the United States mail, postage prepaid in Cumberland County, Pennsylvania, addressed as follows: BY: Robert H. Benacchio, Esq. Peckaz & Abramson, P.C. 70 Grand Avenue River Edge, New Jersey 07661 /~enee Knicos, Esq. VICOS LAW OFFICE, LLC 1 S. Hanover St., Suite 1 Carlisle, PA 17013 3 ELIZABETH ANl~ MELLOTT, CUMBERLAND COUNTY Plaintiff COURT OF COMMON PLEAS V. No. 09-4167 Civil Term COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT JURY TRIAL DEMANDED OF HEALTH, NURSE I~OOE, and CHURCH OF GOD HaME, Defendants RE: PLAINTIFF'S MOTION TO COMPEL ORDER AND NOW, this ~of~tl~/t~r~~~012, upon consideration of Plaintill's Motion To Compel responses to discovery requests, and any response thereto, it is hereby ORDERED and DECREED that said Motion is hereby ~~~~ .Defendant is required to provide all complete responses in Court. days, or suffer sanctions upon application to the BY THE J. Distr.. 1/ Renee Knicos, Esq. 301 S. Hanover St. Carlisle; PA 17013 Plaintiff ~/ Robert H. Benacchio, Esq. Pecker ~ Abramson, P.C. 70 Grand Avenue River Edge, New Jersey 07661 Defendant Cop,*.a ~Q:Ird i~l~~ia C'y .~~ ev ~ ~' T .ti 3 «~ --+ ~z' «c `e ~~ ~ rn zo ~z °° ~n .~ o ~n ~ ~ -:-; ~~ z c, x - ~~ ~ ~ w ~' ::a ,,{ cv Robert H. Benacchio, Esq. (Id#315531) PECKAR&ABRAMSON,P.C. 70 Grand Avenue River Edge,New Jersey 07661 r ur P, skiD C y Tel: (201) 343-3434 }� � t �JF�"t Fax: (201) 343-6306 YL�{�rI Attorneys for Defendant Church of God Home PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND COUNTY ELIZABETH ANN MELLOTT, Civil Action No. 09-4167 (Civil Term) Plaintiff, -against- COMMONWEALTH OF PENNSYLVANIA, MOTION TO DISMISS COMPLAINT DEPARTMENT OF HEALTH,NURSE DOE, FOR FAILURE TO PROSECUTE and CHURCH OF GOD HOME, Defendants. AND NOW comes the Defendant, Church of God Home ("COG"),by and through its counsel, Peckar & Abramson, P.C., and files this Motion to Dismiss for Failure to Prosecute, in support of which it avers as follows: 1. This cause of action arises from events that occurred on or about June 29, 2008. Specifically, on or about that date, Plaintiff, a nursing supervisor at COG (a nursing home facility) was acting in her supervisory capacity when a patient under her care suffered respiratory distress and passed away. Following an investigation into the procedures employed by Plaintiff, the Department of Health advised COG that it believed Plaintiff had LAW OFFICES not acted properly, and instructed COG to terminate her, or face losing its operating license. Peckar& COG did terminate Plaintiff as a result of that admonition. Abramson A Professional Corporation 2. On or about June 19, 2009, Plaintiff filed the instant Complaint against COG, the Commonwealth of Pennsylvania and the Department of Health nurse who conducted the investigation (pled as "Nurse Doe") alleging—with respect to COG— defamation, malicious prosecution and intentional infliction of emotional distress on account of the fact that COG reported the death to the Department of Heath and police. See Complaint, Exhibit A. 3. Following extensive motion practice, the Court dismissed the Commonwealth and Nurse Doe in a May 9, 2011 Order, sustaining preliminary objections pled by them. This left COG as the only remaining defendant in the matter. 4. Plaintiff and COG exchanged written discovery requests and responses were provided. However, following nearly a year of inactivity, COG wrote to Plaintiff's counsel— whom it had telephoned several times to discuss settlement and depositions but received no response — to inquire as to whether she and her client were still interested in pursuing the matter. See May 17, 2012 Letter, Exhibit B. In that correspondence,we advised counsel that we were prepared to move to dismiss this case for failure to prosecute within seven days, absent a response. Id. 5. Plaintiff's counsel did telephone us in response shortly thereafter. She advised that she and her client were prepared to proceed with this matter, and gave no indication of a willingness to discuss a reasonable settlement. 6. On June 14, 2013, following another year of minimal activity in the case, COG again wrote to Plaintiff's counsel to request that she provide dates for her client's deposition or a reasonable settlement demand. See Letter, Exhibit C. As of the date of this motion, more than two months later,we have received no response to that letter. LAW OFFICES 7. Plaintiff has demonstrated a lack of due diligence in failing to proceed with Peckar& this matter. The case has been on the docket for more than four years, and the events that Abramson A Professional Corporation have led to its filing are five years in the past. Plaintiff obtained replacement employment almost immediately following her termination without difficulty, and despite the rhetoric of 385466.1/08/21/13 2 her counsel on the few occasions that we have spoken, appears disinterested in pursuing this matter and ready to move on. COG would also prefer to put this matter behind it. 8. Plaintiff has demonstrated no compelling reason for delay in prosecuting this matter. 9. COG has suffered actual prejudice as a result of this delay, as witnesses vital to the defense may no longer be available and their recollection has undoubtedly diminished. 10. Moreover, Plaintiffs defamation, malicious prosecution and intentional infliction claims against COG have little likelihood of success. As Plaintiff admits in her Complaint, COG was required to report the death of the resident in question to the Department of Health (see Complaint, Exh. A, par. 19) as well as to the police due to the questionable nature of the death. COG cannot possibly be found to have defamed or maliciously prosecuted Plaintiff by taking steps it was required by law and regulation to perform, and most certainly cannot have intended to cause her harm by doing so. 11. Given the flimsy nature of the allegations, the inordinate delay in moving this case forward, the failure of Plaintiff to provide a compelling reason for this delay, and the actual prejudice that has been caused, and will continue to be caused to COG on account of this delay, COG respectfully requests that this matter be dismissed with prejudice for failure to prosecute. See, e.g., Jacobs v. Halloran, 710 A.2d 1098 (1998);Grandelli v. Methodist Hosp., 777 A.2d 1138 (2001). 12. This Court has not previously ruled on any Motions requested in this within LAW OFFICES matter. Peckar& Abramson A Professional Corporation 385466.1/08/21/13 3 13. A proposed form of order is submitted herewith. Dated: August 21, 2013. PECKAR&ABRAMSON, P.C. Attorneys for Defendant Church of God Home By: Robert H. Benacchio, Esq. (No. 315531) LAW OFFICES Peckar& Abramson A Professional Corporation 385466.1/08/21/13 4 CERTIFICATION OF SERVICE I certify that, on this date, an original and two (2) copies of this Motion to Dismiss were sent for filing by federal express overnight delivery to the following address: Cumberland County Courthouse Prothonotary's Office One Courthouse Square Carlisle, Pennsylvania 17013-3387 I also certify that, on this date, a copy of same was served upon the following counsel of record by Federal Express at the below addresses: Renee Knicos, Esq. Knicos Law Office, LLC 301 S. Hanover Street, Suite 1 Carlisle, PA 17013 Counsel for Plaintiff Dated: August 21, 2013 Robert H. Benacchio, Esq. (No. 315531) LAW OFFICES Peckar& Abramson A Professional Corporation 06/30/2009 11:27 FAX 2159680973 JKJ U006/022 Renee Knicos,Esquire KNICOS LAW OFFICE,LLC 301 S. Hanover Street,Suite I Carlisle,PA 17013 717.249,6808 Fax 249.5970 Counsel For Plainfiff ELIZABETH ANN MELLOTT Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, V. PENNSYLVANIA COMMONWEALTH OF NO: 0-4f/4 7 PENNSYLVANIA,DEPARTMENT CIVIL DIVISION-LAW OF HEALTH,NURSE DOE JURY TRIAL DEMANDED and CHURCH OF GOD HONE, Defendants COMPLAINT AND NOW,comes the PlaintiIX Elizabeth Ann Mellott,by and through her attorney, Renee Knicos,Esquire,and files this Complaint and in support thereof,aver the following: THE PARTIES I. Elizabeth Ann Mellott is a resident of Cumberland County residing at 813 Myerston Road;Gardners,Pennsylvania,17324,and at all times material and pertinent thereto,was and is a licensed registered nurse(R.N.)In the Commonwealth. 2. The defendant,the Commonwealth of Pennsylvania,Department of Health,is an administrative agency charged with,among other things,planning and coordinating health care resources and licensure and oversight of nursing home 06/30/2009 22:27 FAX 2259680973 JKJ IM007/022 facilities.Plaintiff is asserting a professional liability claim against this defendant in its capacity as master to its servants. 3. At all times pertinent and material thereto,the Department of Health acted,or appeared to be acting through its servants,employees,workmen,contractors, administrators and/or representatives in the course and scope of their employment and/or in the furtherance of business of the defendant. 4. Nurse Doe is a licensed R.N.who is,or was at all times material and pertinent thereto,working for the Department of Health in her capacity as a registered nurse surveyor.Plaintiff is asserting a professional liability claim against this defendant. 6. The Church of God Home is a licensed long term care nursing facility located at 801 N.Hanover Street,Carlisle,in Cumberland County,and at all times material and pertinent thereto,was operating in its capacity as a long term care provider, holding itself out in the community as properly equipped and staffed,rendering quality care acting through its departments,medical groups,staff members and other agents,servants or employees. 6. At all times pertinent and material thereto,the Church of God Home acted,or appeared to be acting through its servants,employees,workmen,contractors,: administrators and/or representatives in the course and scope of their employment and/or in the furtherance of the business of the defendant. 06/3012009 11:27 FAX 2159680973 JKJ IM 008/022 J-URISDICTLQN AND VENUE 7- Paragraphs I through 6 are hereby incorporated by reference. S. The Court of Common Pleas has exclusive and original jurisdiction of all actions and proceedings pursuant to 42 Pa-C.S.A.§§931(a)&(b). 9. Venue is properly laid in Cumberland County pursuant to Pa.P-Civ.P.No.(a)(1), (a)(1)and(c)(1):the events giving rise to this action occurred in Cumberland County. EA_C-TS 10. Paragraphs I through 9 are hereby incorporated by reference. 11. On or about June 29,2008,Elizabeth,Ann Mellott was working in her capacity as nursing supervisor in the Church of God Home. 12. At approximately 11:00 A.M.o'clock,resident Mr.S.developed sudden decline in condition as evidenced by shortness of breath. 13. Ms.Mellott was called by the charge nurse about the patients condition. 14. Within a very few minutes,Ms.Mellott arrived in the patients room,and assessed his condition. 15. Based on her assessment,Ms.Mellott paged the attending physician. 16. While waiting for the physician to respond,Ms.Mellott went back into the patient's room to re-assess the patient. 17. Ms.Mellott found the patient continuing to experience respiratory distress,and went out to page the physician again. 06/30/2009 11:28 FAX 2159680973 JKJ IM009/022 18. The patient expired within about 15 minutes of Ms.Mellott°s initial arrival on scene,prior to the physician responding. 19. Because the patient had just been re-admitted from the hospital the day before,the facility was required to notify the Department of health about the death. 20. The Department of Health elected to send one of their surveyors to investigate the patients death;by statute this must be an R.N.or a physician or social worker because of their specialized education and knowledge. 21. The investigator,Nurse Doe,blamed the death on the Plaintiff,stating she failed to act properly. 22. The Department of Health defendant,through its agent nurse Doe,harshly criticized Ms.Mellott and the facility defendant for its employment of Ms. Mellott. 23. Nurse Doe threatened to revoke the facilities license if they did not terminate Ms. Mellott,stating she was a danger to patients. 24. The facility defendant did not want to terminate Ms.Mellott,but because they feared repercussions from the Department of Health(DOH),they fired Ms. .Mellott+ 25. Even though the facility did not fault Ms.Mellott for her actions on June 29,and in fact,provided assistance to Ms.Mellott in securing employment with another long term care facility in Carlisle as a nursing supervisor,they made a negligence report to the Board of Nursing and made a criminal complaint of negligence to the Carlisle Police after they terminated her. 06/30/2009 21:28 FAX 2159680973 JKJ Z010/022 CQ11NT 1 AGAINST DOH and NURSF t`�pE-NEGLIGENCE 26. Paragraphs I through 25 are hereby incorporated by reference. 27- Nurse Doe was sent by her employer to investigate events surrounding the death of Mr. S. 28. Nurse Doe owed the facility and Ms.Mellott a duty of care to carry out her investigation into the death of Mr.S.for her employer,the DOH,utilizing her special education and experience as a registered nurse,in a professional and responsible manner,exercising the degree of skill ordinarily employed by members of the nursing community. . 29. Nurse Doe breached this duty of care because she failed to act as a reasonably prudent nurse would,or should,when she accused Ms.Mellott of acting negligently,and forced the facility to terminate her. 30. Further,Nurse Doe acted rudely,impetuously and without regard to proper standards of nursing care when she accused Ms.Mellott of negligence,and when she coerced the facility to terminate Ms.Mellott. 31. Tbrough her action and/or inactions,Nurse Doe demonstrated that she either lacked the degree of skill or knowledge employed by a registered nurse,or that she failed to use reasonable care and diligence,along with her best judgment,in the application ofthat skill. 32. Nurse Doe"s threats and actions were the cause of the facility terminating Ms. Mellott. 33. Nurse Doe was negligent when she accused Ms.Mellott of negligence and when she coerced the facility into terminating Ms.Mellott's employment. 06/30/2009 12:29 FAX 2159680973 JK.T Q1011/022 34. Nurse Doe's negligence was the actual and proximate cause of plaintiffs injuries: as a proximate result of her lack of shill or knowledge,or the failure to exercise this degree of care,she caused plaintiff serious injury and harm. 35. Plaintiffs injuries would not have occurred absent the negligent or otherwise tortious conduct of'the defendants. 36. Nurse Doe was acting as an agent of the defendant DOH when she acted negligently,and her negligence is imputed to her master,the DOH. 37. Because plaintiff was greatly harmed by Nurse Doe's negligence,she seeks damages from the defendants,jointly and severally,for the following; a. plaintiff suffered,and continues to suffer,from extreme emotional distress and anxiety,depression and emotional anguish; b. plaintiff suffered economic loss,injury to her reputation,and loss of employment; C. plaintiff has been unable to attend to her usual avocations,duties,labors, occupational and social activities,all to her great financial and personal detriment and loss; d. plaintiff suffered and continues to suffer a loss of enjoyment of life and life's pleasures,all to her great detriment and loss; e. plaintiff suffered and continues to suffer from a loss of esteem,and a great loss of confidence in her work skill,all to her great detriment and loss. WHEREFORE,plaintiff demands judgment in her favor against defendants,jointly and severally,in an amount in excess of$75,000 dollars plus costs. 06/30/2009 11:29 FAX 2159680973 JU Z012/022 COUNT H AGAINST DOH and NURSE DOE:TORTIOUS INTERFE N E WITH AN EMPLOYMENT RELATIONSHIP 38. Paragraphs 1 through 37 are hereby incorporated by reference. 39. On or about June 29,2008, Ms.Mellott was employed by Church of God Home as a nursing supervisor. 40. Ms.Mellott liked working at Church of God Home and had a valuable property interest in maintaining her employment relationship. 41. Nurse Doe interfered with this employment relationship when she coerced the facility to terminate Ms.Mellott's employment 42. But for the interference of Nurse Doe into Ms.Mellott'S employment relationship with Church of God Home,Ms. Mellott would have continued her employment there. 43. Nurse Doe's actions were willfid,knowing,reckless,unlawful and improper,and resulted in plaindirs loss of gainful employment from Church of God Home. 44. Because plaintiff was greatly harmed by Muse Doe's interference,she seeks damages from the defendants,jointly and severally,for the following; a. plaintiff suffered,and continues to suffer,from extreme emotional distress and anxiety,depression and emotional anguish; b. plaintiff suffered economic loss,injury to her reputation,and Ioss of employment; C. plaintiff has been unable to attend to her usual avocations,duties,labors, occupational and social activities,all to her great financial and personal detriment and loss; 06/30/2009 11:29 FAX 2159680973 JKJ 1a013/022 d. plaintiff suffered and continues to suffer a loss of enjoyment of life and life's pleasures,all to her great detriment and loss. e. plaintiff suffered and continues to suffer from a loss of esteem,and a great loss of confidence in her work skill,aU to her great detriment and loss. WHEREFORE,plaintiff demands judgment in her favor against defendants,jointly and severally,in an amount in excess of 575,000 dollars plus costs. COUNT III AGAINST CHURCH OF GOD HOW: DEFAMATION 45. Paragraphs I through 44 are hereby incorporated by reference. 46. On or about June 29,2008,plaintiff as employed by Church of God Home as a nursing supervisor. 47. Defendant employer terminated Ms.Mellotts employment when Nurse Doe threatened them with lose of Iicensure if they continues to employ her. 48. At the time of the termination,Church of God believed Ms.Mellott had acted properly in her care of Mr.S.,and had acted prudently in the events of that day. 49. But for the interference of Nurse Doe from the DOH,Ms.Mellott would not have been fired.As a matter of fact,Ms Jeanne Montayre,the assistant director of nursing at Church of God assisted Ms.Mellott in securing employment at Chapel Point by calling the director of nursing there,who was a friend of hers,to recommend her for employment. 50. On or about July 2,2008,Mary Hartman,director of nursing,made a formal complaint to the Board of Nursing regarding Ms Melllott's actions,accusing her 06130/2009 11:30 FAX 2159680973 JKJ R014/022 negligence. 51. On or about July 2,20008.Ms.Montayre made a criminal complaint to the Carlisle police reporting Ms.Mellott for criminal negligence. 52. Both Ms. Hartman and Ms.Montayre knew Ms.Mellott was not negligent as evidenced by their words deeds yet she still knowingly made these false allegations during the course and scope of her employment. 53. The false allegations were published when the allegations were reported to the police and the board of nursing,were documented by each agency subsequently an investigation ensued with a written report from each agency. 54. Ms.Mellott has a property interest in maintaining her licensur�e as a professional registered nurse;these def urudory statements/actions threatened,and continue to threaten,her ability to continue to work gainfully in her chosen field and caused her great harm. 55. The Church of God Home was recklessly indifferent to Ms.Meilotts property interest in maintaining her license as a registered nurse and acted with wanton disregard to Ms.Mellottt's interests. 56. The defamation caused by the Church of God Home was the actual and proximate cause ofplaintiff s injuries:as a proximate result of these false allegations, plaintiff suffered serious injury and harm. 57. Because plaintiff was greatly harmed by the Church of Gods defamatory statements/actions,she seeks damages from the defendants,jointly and.severally, for the following, a. plaintiff suffered,and continues to suffer,from extreme emoti 06/30/2009 11:30 FAX 2159680973 JKJ X1015/022 and anxiety,depression and emotional anguish; b. plaintiff suffered economic loss,injury to her reputation,and loss of employment; C. plaintiff has been unable to attend to her usual avocations,duties,labors, occupational and social activities,all to her great financial and personal detriment and lass; d. plaintiff suffered and continues to suffer a loss of enjoyment of life and life's pleasures,all to her great detriment and loss; e. Plaintiff suffered and continues to suffer from a Ioss of esteem,and a great loss of confidence in her work skill,all to her great detriment and loss. WHEREFORE,plaintiff demands judgment in her favor against defendants,jointly and severally,in an amount in excess of$75,000 dollars plus costs. COUNT N AGA_MT CM&CHOFiGOD x©ME•, DOMNTIONAL J FLICTION OF EMOTIONAL DIMES 38. Paragraphs l through 57 are hereby incorporated by reference. 59. Defendant facility knowingly made false,harmful statements about plaintiff to the licensing agency and the police. 647. Defendant nursing home conduct exhibited reckless and intentional indifference to plaintiffs rights in continuing her employment,and more importantly, maintaining her licensure as a professional nurse and remaining free from criminal charges. 6l. Defendant nursing home knew,or should have known,that subjecting Ms. Mellott 06/3012009 11:31 FAX 2159680973 JKJ R1016/022 10 professional and criminal scrutiny would cause her great balm and great emotional distress. 62- Knowing the basis for the allegations was false,the defendant exhibited wanton, Outrageous and intolerable conduct 63. Defendant's conduct has resulted in Plaintiffs severe Ongoing emotional distress and severe anxiety. 64. Because plaintiff was greatly harmed by defendant nursing home's outrageous conduct,she seeks damages from the defendants,jointly and severally,for the following; 8. Plaintiff suffered,and continues to suffer,from extreme emotional distress and anxiety,depression and emotional anguish, b- Plaintiff suffered economic Joss,injury to her reputation and loss of employment; C. plaintiff has been unable to attend to her usual avocations,duties,labors, occupational and social activities,all to her great financial and personal detriment and loss; d. plaintiff suffered and continues to suffer a loss of enjoyment of life and life's pleasures,all to her great detriment and loss; e. Plaintiff suffered and continues to suffer fiom a loss of esteem,and a great loss of confidence in her work skill,all to her great detriment and loss. AWEREFORE,plaintiff demands judgment in her favor against defendants,jointly and severally,in an amount in excess of$75,000 dollars plus costs. 06/30/2009 11:31 FAX 2159680973 JKJ U017/022 COUNT V AGAINST CHURCH OF GOD HOME- MALICIOUS PROSECUTION/ABUSE OF PROCESS 65. Paragraphs I through 64 are hereby incorporated by reference 66. Defendant Church of God Home initiated proceedings against Ms.Mellott with the Board of Nursing and the Carlisle police on or about July 2,2008. 67. Defendant knew the charges were false and that they lacked probable cause. 68. Both proceedings were terminated in the plaintiff's favor. 69. Defendant acted in a grossly negligent,malicious and intentional manner and caused great harm to the plaintiff. 70. Because plaintiff was greatly harmed by defendant nursing home's outrageous conduct,she seeks damages from the defendants,jointly and severally,for the following; a. plaintiff suffered,and continues to suffer,from extreme emotional distress and anxiety,depression and emotional anguish; b. plaintiff suffered economic loss,injury to her reputation and loss of employment; C. plaintiff has been unable to attend to her usual avocations,duties,labors, occupational and social activities,all to her great financial and personal detriment and loss; d. plaintiff suffered and continues to suffer a loss of enjoyment of life and life's pleasures,all to her great detriment and loss; C. plaintiff suffered and continues to suffer from a loss of esteem,and a great 06/30/2009 11:31 FAX 2159680973 JKJ U018/022 d. plaintiff suffered and continues to suffer a loss of enjoyment of life and life's pleasures,all to her great detriment and loss; e. plaintiff suffered and continues to suffer from a loss of esteem,and a great loss of confidence in her work skill,all to her great detriment and loss. WHEREFORE,plaintiff demands judgment in her favor against defendants,jointly and severally,in an amount in excess of$75,000 dollars plus costs. I verify that the facts set forth in this complain are true and correct to the best of knowledge, information and belief:I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904,relating to unswom falsification to authorities. Respectfully submitted, Date:��? R ere Knicos,Esquire $npreme Court ID No.89529 Attorney for Plainitff 06/30/2009 11:32 FAX 2159680973 JKJ 2019/022 08-002978 COMPLAINT REPORT Page Na. 11/12/2008 COMPLAINT NUMBER -> 08-002978 Received by: TIMOTHY ,LIVELY Date/Time received: 07/02/2008 @ 11:30 How received: PHONE Time dispatched: 11:30 Time arrived: 11:30 Time Cleared: 11:42 COMPLAINANT -> jTEANNE MON^YRE Address: CHURCH OF GOD HOME 801 N. HANOVER S City: CARLISLE State: PA Zi • 17013 P- Phone: (717) 249-5322 TYPE OF COMPLAINT -> DEATH INVESTIGATION Nature of REPORTED SUSPICIOUS DEATH OF HOWARD STEAGER 11/26/1918 ON complaint SUNDAY, JUNE 29TH. STEAGER FRACTURED (L) HIP ON 6/24, SURGY AT CRMC 6/26, RETURNED 6/28, DIED 6/2Sf� CORONER RULED IT ACCIDENTAL. STATE%AS FOUND RN NEGLIGENT FOR NOT CALLING 911. How handled: Officer visit Location code: ZONE4 Location dispatched: CHURCH OF GOD HOME Officer dispatched: TIMOTHY LIVELY TIME ANALYSIS Queue time <time received to dispatched> = 0 minutes Travel time <time dispatched to arrived> Response time <time received to arrived> _ 0 notes Action time <time arrived to cleared> � 0 minutes 12 minutes 06/30/2009 11:32 FAX 2159680973 JKJ 16021/022 VERIFICATION On this 1.2 day of l ' . ^ Y i ,i ,2009,1, ;�% r'r'%`�'i' hereby J verify that the facts and averments contained herein are true and correct to the best of my knowledge and belief subject to the penalties of 18 Pa-C.S.4904 relating to unswom falsifications to authorities. L�/ / ['"� %C l '� � 1 ..L•1. J/�i?ill?;� Elizabeth Ann Mellott 06/30/2009 11:33 FAX 2159680973 JKJ [Rj022/022 CERTIFICATE OF SERVICE AND NOW,this—1 &—day of , 2009,I hereby certify that I served a true and correct copy of the foregoing ocument upon counsel of record by depositing a copy of same in the United States trail,postage prepaid in Cumberland County,Pennsylvania, addressed as follows: Torn Corbett,Attorney General Office of the Attorney General Strawberry Square Harrisburg,PA 17120 Church of God Home 801 N.Hanover Street Carlisle,PA 17013 Ren Knicos,Esquire KMCOS LAW OFFICE,LLC 301 S.Hanover Street,Suite 1 Carlisle,PA. 17013 r c 1 _ r V � \ .. �� � - Pe k r & Abramson I A Professional Corporation•Attorneys&Counselors at Law 70 Grand Avenue River Edge,NJ 07661 tel.201.343.3434 Via Federal Express fax 201.343.6306 May 17, 2012 New York San Francisco Renee Knicos, Esq. Los Angeles KNICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite I Orange County Carlisle, PA 17013 Miami Re: Elizabeth Ann Mellott v. Commonwealth of Pennsylvania,et al. Washington,D.C. PA Common Pleas (Cumberland) Case No. 094167 Our File No. 3710-200230 Chicago London Dear Mr. Knicos: As you are aware, we represent defendant Church of God Home in the above captioned matter. It has been some time since we have heard from you in connection www.pecklaw.com with this case, despite several calls to your office. We write to advise you that, unless we hear from you within the next seven days, we intend to move to dismiss this case for failure to prosecute. As you know, we have had several conversations regarding the practicality of this case prior to the dismissal of the State Department of Health. We both agreed that Church of God terminated your client in response to the State's direction during the investigation of the resident death, and that the State was the "real" party of interest here. With the State now out of the picture, and with Church of God's defenses quite strong and clear, there appears to be no reason to pursue this case further, particularly against a party that acted as any other facility would have under the circumstances. I have never been given the impression that Ms. Mellott ever had any true animus toward Church of God, and I can say that Church of God, even though it maintains it was brought into this lawsuit unjustifiably, does not bear animus toward Ms. Mellott. We also understand from our client that Ms. Mellott has found a new job, and has been working for some time. I think, given all these circumstances, that it is time for both of our clients to move on. member of the lntcanaSonat AlCon Law Peck,ar & Abramson A Professional Corporation•Attorneys&Counselors at Law Page 2 May 17, 2012 To that end, we request that you voluntarily dismiss your claims against Church of God Home within the next seven days, so that we can avoid having to file a motion to dismiss for failure to prosecute. It will serve both our clients best not to expend further resources on this matter, particularly where Ms. Mellott appears to have landed squarely on her feet. If you have any questions,please do not hesitate to contact me. Very truly yours, OBERT H. BENACCHI0 RA eckar & Abramson I A Professional Corporation•Attorneys&Counselors at Law I 70 Grand Avenue River Edge,NJ 07661 tel.201.343.3434 Via Federal Express fax 201.343.6306 i June 14, 2013 New York Renee Knicos, Esq. New Jersey KNICOS LAW OFFICE, LLC 301 S. Hanover Street, Suite 1 Miami Carlisle, PA 17013 San Francisco Re: Elizabeth Ann Mellott v. Commonwealth of Pennsylvania,et al. Los Angeles PA Common Pleas (Cumberland) Case No. 09-4167 Our File No. 3710-200230 Orange County Washington,O.C. Dear Ms. Knicos: Chicago As you are aware,we represent defendant Church of God Home in the above captioned Atlanta matter. During our last conversation regarding this matter, we requested a settlement demand form you, but have yet to receive same. Assuming you are interested in London resolving this matter, please provide same so that we can discuss whether this is possible. www.pecklaw.com As we stated during our last conversation, we believe the merits of Ms. Mellott's case to be dubious based upon the documentation provided. We would still prefer to resolve this matter without the need for depositions, but cannot wait any longer to move this case further. To that end, kindly provide available dates for your client's deposition during the first two weeks of July. If you have any questions,please do not hesitate to contact me. Very t ours, OBERT H. BENACCHIO C-11 ONSTRULEGAL� m. T VIE PROTHu1�4)-;ff`' Robert H. Benacchio, Esq. (Id#315531) PECKAR&ABRAMSON, P.C. 2313 AUG 27 Pit t 4 70 Grand Avenue ���,�������D� COUNTY River Edge,New Jersey 07661 PENld$Yl Tel: (201) 343-3434 Fax: (201) 343-6306 Attorneys for Defendant Church of God Home PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND COUNTY ELIZABETH ANN MELLOTT, Civil Action No. 09-4167 (Civil Term) Plaintiff, -against- COMMONWEALTH OF PENNSYLVANIA, RULE TO SHOW CAUSE RE: DEPARTMENT OF HEALTH,NURSE DOE, MOTION TO DISMISS COMPLAINT and CHURCH OF GOD HOME, FOR FAILURE TO PROSECUTE Defendants. AND NOW,thi4/�d'�y of^Ud tJ. 2013: am i s snall appMr to is to ORDERED that Plaintiff shall submit opposition to this petition within 36 days of the date hereof; and it is further ORDERED that a copy of this Order shall be served upon counsel for Plaintiff within days of the date received by counsel for Defendant. LAW OFFICES Peckar& SO ORDERED: Abramson A Professional Corporation ( Y Q��•�� Hon. Sl�.7f i3 Y tt s-07 I F: ; ^ .r '01 H0N{7 r`�,it Renee Knicos, Esquire KNICOS LAW OFFICE,LLC 301 S. Hanover Street, Suite 1 f umpP ILAIp ppuNT ' Carlisle, PA 17013 PENNSYLVANIA 249-6808 Fax 249-5970 Elizabeth Ann Mellott, • COURT OF COMMON PLEAS plaintiff COUNTY OF CUMBERLAND, PENNSYLVANIA v. • NO. 09-4167 CIVIL ACTION Church of God Home, defendant • JURY TRIAL DEMANDED PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS AND NOW comes the Plaintiff, by and through her attorney Renee Knicos, Esquire, and hereby avers the following in opposition to Defendant's Motion To Dismiss: 1. Admitted. Plaintiff admits the averments in this paragraph fairly accurately portray events which give rise to this action. 2. Admitted. 3. Admitted. 4. Admitted in part, and Denied in part. By way of further explanation, Plaintiff vigorously disputes the contention that there were several telephone calls to discuss settlement and deposition but received no response. To the best of counsel's recollection,there was one telephone call prior to the May 12th 2012 letter,which was initiated by Plaintiff's counsel, to discuss the status of the case. 5. Admitted in part, denied in part. By way of further explanation, the possibility of a settlement was raised by the defendant. Plaintiff specifically stated that they were open to settlement, but a figure had not been reached. Plaintiff admits that defendant requested a demand letter, which has not yet been provided. Counsel is not aware of anything in the Rules of Civil Procedure that requires plaintiff to provide one, although it is typically done as part of practice. However,the lack of a demand letter in no way prevents defendant from making a settlement offer, and opening up settlement discussion; to state otherwise is incorrect. 6. Admitted in part and Denied in part. By way of further explanation, Counsel did receive the letter of June 14, 2013. Unfortunately, it was placed in a stack of depositions in another case, and was not discovered until a few weeks ago. Plaintiff had planned to contact defendant via correspondence to apologize for overlooking the matter and offering dates, and to include a Notice of Intent To Serve a Subpoena. However, it has been a matter of lack of time of plaintiff's part to do so. At this point, Plaintiff's counsel has another matter which was CALLED and subsequently placed on the current Pre-Trial list, and has another case going to trial after that one in Franklin County with Pretrial conference on October 28, 2013. The flurry of depositions, motion work and so forth in those two cases have prevented plaintiff's counsel from intense involvement at this time in the instant case. 7. Denied. 8. Denied. To provide a framework for the progress of this case, it has been one of start and stop, start again, stop again. There are three reasons for this: 1)plaintiffs counsel is a solo practitioner in the true meaning of the phrase. There is no support staff. Consequently, it is often difficult and time consuming to complete the most meager and mundane tasks. Further, as stated supra, at this point, counsel is preparing two other cases for immediate trial. 2) Plaintiffs counsel has endured a number of health issues which have interfered in a significant way with progress on all cases and 3)Defendant has taken not only an extremely passive role in this case, but an obstructive one as well. Plaintiff attempted to get this case moving again last year, and contacted the defendant. Plaintiff provided all the discovery requested by defendant. Plaintiff contacted defendant via correspondence on four occasions over a number of months to request that the defendant complete discovery. Plaintiff received no response at all from the defendant to any of the letters sent. Consequently, plaintiff filed a Motion to Compel which was Granted by This Honorable Court on November 7, 2012. Defendant STILL had difficulty complying in a timely fashion with the Court Order, and when Defendant left a message for Plaintiff stating some of the items were being Fed Exed out, Plaintiff graciously told counsel that it was alright to send everything in a week or so. It is specious at best, for the defense to try to call out plaintiff counsel for failure to prosecute due to their own lack of involvement and indifference. 9. Denied. 10. Denied as stated. Defendant was required to report the death to the Department of Health; there was no such requirement to report the death to the police. The rest of the statement is a conclusion of law to which no response is required; to the extent a response is required, it is Denied. 11. Denied. The law regarding Motions for Non Pros is fairly clear: generally,the movant must show that there was a failure of due diligence by plaintiff in moving the case forward,that plaintiff has no compelling reasons for the delay and that the delay caused actual prejudice to the defendant. See James Brothers Lumber Company v. Union Banking and Trust, 432 Pa. 129, 247 A.2d 587(1968) as reaffirmed in Jacobs v. Halloran, et al.551 Pa. 350, 710 A.2d 1098(1998). The defendant has failed to meet any of these elements. The fact that plaintiff had to seek, and was granted, a Motion To Compel on November 7, 2012 is concrete evidence demonstrating plaintiff's push to propel this case forward and rebuts any presumption of lack of due diligence. The reasons for any delay have already been laid out in paragraph 8. The final element requires the defendant make a showing of actual prejudice: in it's Motion in paragraph 9, although defendant claims actual prejudice, they state that"...vital witnesses to the defense may no longer be available..."; defendant did not show any real prejudice. A Court should evaluate any non-docket activity in it's evaluation of plaintiff's due diligence. Marino v. Hackman, 551 Pa. 369, 710 A.2d 1108 (1998). A Court must also apply principles of equity and the Doctrine of Unclean Hands in deciding a Motion Non Pros. See Jacobs at 1103. Under these principles, the movant must be free of any behavior which may have contributed to delay of case prosecution. In the instant case, the plaintiff`s correspondence to the defendant requesting a response to her discovery on four separate occasions, which were ignored by the defendant, is tacit and clear evidence of obstructive behavior. 12. All previous motions in the above reference matter have been decided by the Honorable Edward E. Guido. THEREFOR, based on the averments contained herein, Plaintiff requests This Honorable Court DENY defendant's Motion To Dismiss with prejudice. Respect, , Date: 9/1 q 417 Re ee Knicos Attorney ID 89529 Counsel for Plaintiff CERTIFICATE OF SERVICE AND NOW, on this /7 day of 2013, I hereby certify that I served a true and correct copy of the f egoing document(s)upon counsel of record by depositing a copy of same in the United Statesmail, regular delivery,postage paid in Carlisle Pennsylvania, addressed as follows: Robert H. Benacchio, Esquire Peckar&Abramson, P.C. 70 Grand Ave. River Edge,New Jersey 07661 BY: Renee Knicos, Esquire KNICOS LAW OFFICE,LLC 301 S. Hanover St. Ste.1 Carlisle, PA 17013 „S Elizabeth Ann Mellott, : COURT OF COMMON PLEAS plaintiff • COUNTY OF CUMBERLAND, PENNSYLVANIA v. NO. 09-4167 • . CIVIL ACTION Church of God Home, .• defendant JURY TRIAL DEMANDED IN RE: CHURCH OF GOD'S MOTION TO DISMISS COMPLAINT ORDER AND NOW on this 42 r day of _ tItt i 1 , 2013, ititil t,v,N7ti � I P s - )4,....e waP ; -ii. '� : - , i i - '4 P • e 'I --• G• e I • V .11 1111 . to 2.:eAlui „leodwes 4 By The Court, , J. r: Re' enee Knicos, Esq. For Plaintiff Robert Benacchio, Esq. For Defendant _s:. �..) _, Cp `ps i =ci -i - .. ?PO//2 =y Q -Y -i'r) :p..„ :.... c..;,).- Renee-Knicos, Esquire- KNICOS LAW OFFICE, LLC 143 Tower Circle Carlisle, PA 17013 (717) 245-2105 FILED -OFFICE OF THE PRO THONO lAP Y 21314 AUG -8 PM 12: 27 CUMBERLAND COUNTY PENNSYLVANIA Elizabeth Ann Mellott, COURT OF COMMON PLEAS plaintiff COUNTY OF CUMBERLAND, PENNSYLVANIA v. NO. 09-4167 CIVIL ACTION Church of -God Home, defendant JURY TRIAL DEMANDED CERTIFICATE OF NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO Pa.R.C.P. NO. 4009.21 AND NOW comes the plaintiff, by and through her attorney Renee Knicos, Esq., and hereby files this Certificate Of Notice, and in support thereof, avers the following: 1. On or about May 5, 2014, Plaintiff served upon the defendant via regular mail, a true copy of the Subpoena Duces Tecum, attached hereto; 2. Plaintiff has not received any objection, written or otherwise, from the defendant. 3. Since no objections have been raised, Plaintiff shall, pursuant to Pa.R.C.P. No.40099.21, serve a true copy of the attached subpoena upon Commonwealth of Pennsylvania, Secretary of the Department of Health, Bureau of Health Investigators For Long Term Care. Respec DateMI/N Renee Knicos Attorney ID 89529 Counsel for Plaintiff Renee Knicos, Esquire KNICOS LAW OFFICE, LLC 143 Tower Circle Carlisle, PA 17013 (717) 245-2105 Fax ?,49-5970 Elizabeth Ann Mellott, COURT OF COMMON PLEAS plaintiff COUNTY OF CUMBERLAND, PENNSYLVANIA v. NO. 09-4167 CIVIL ACTION Church of God Home, defendant JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO Pa.R.C.P. NO. 4009.21 TO: CHURCH OF GOD HOME C/O Robert H. Benacchio, Esquire Peckar & Abramson , P.C. 70 Grand Ave River.Fdge, New Jersey 07661 Please be advised that Plaintiff intends to file a subpoena identical to the one attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the an objection to this subpoena. If no objection is made, the subpoena will be served. Date: 57 Resp Renee Knicos Attorney ID 89529 Counsel for Plaintiff COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Elizabeth Ann Mellott, plaintiff Y. Church of God Home, defendant NO. 09-4167 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Commonwealth of Pennsylvania, Department of Health, Bureau of Health Investigators for Long Term Care Facilities PLEASE -SEE THE ATTACHED ADDENDUM at KNICOS LAW OFFICE, LLC, 143 Tower Circle, Carlisle, PA 17013. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you- fail -to produce the documents or things required by this subpoena, within twenty (20) days after its service, the part serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: 'Renee Knicos ADDRESS: 143 Tower Circle, Carlisle, PA 17013 TELEPHONE: (717) 245-2105 SUPREME COURT ID 89529 ATTORNEY FOR: Plaintiff DATE: BY THE COURT: Prothonotary, Civil Division Seal of the Court Deputy Elizabeth Ann Mellott, plaintiff v. COURT OF COMMON PLEAS COUNTY OF CUMBERLAND, PENNSYLVANIA NO. 09-4167 CIVIL ACTION Church of God Home, defendant JURY TRIAL DEMANDED ADDENDUM TO SUBPOENA Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: All documents including but not limited to, any and all written reports, verbal records or recordings reduced to writing, e-mails, telephone conversations reduced to writing, complaints, medical records, correspondence, memorandums ,and all documents in possession or control of the recipient of this subpoena regarding the PB22, or any other report, filed by the defendant Church of God Home, regarding the unexpected death of a patient which occurred on 06/29/2008 at 1140 which was within 48 hours of re -admission to the facility, and all reports, documents memorandum and so forth generated by the recipient of this subpoena in -regards to theinvestigation °which -was 'conducted on -07/03/2008. Please include all personal information on the field investigator who responded to the event, and send a copy of her personnel file. CERTIFICATE OF SERVICE. AND NOW, on this / day of L/14d 1 2014, I hereby certify that I served a true and correct copy of the foregoing documents) upon counsel of record by depositing a copy of same in the United Statesmail, regular delivery,postage paid in Carlisle Pennsylvania, addressed as follows: BY: Robert H. Benacchio, Esquire Peckar & Abramson, P.C. 70 Grand Ave. River Edge, New Jersey 07661 Renee Knicos, Esquire KNICOS LAW OFFICE, LLC 143 Tower Circle Carlisle, PA 17013