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HomeMy WebLinkAbout09-6741 Lee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 lscohen(d)kpc-law. com qparker@-kpc-law.com MICHELLE COXEN-GLOVER, ADMINISTRATRIX OF THE ESTATE OF JOAN TAYLOR, DECEASED, 64 Eastwood Lane Smithfield, ME 04978 Plaintiff IN THE COURT OF COMMON PLEAS Of CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW V. UNITED CHURCH OF CHRIST HOMES No. OQ - (041 0'iya T INC., d/b/a THORNWALD HOME 442 Walnut Bottom Road Carlisle, PA 17013, JURY TRIAL DEMANDED Defendant PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in civil action in the above case and forward to [ X ] Sheriff or [ ] Attorney. Dated: October 7, 2009 Lee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 lcohenAkpc-law.com aparker(a kpc-law.com (D OF THSi 2009 OCT -8 PM 2: 3 7 P78.50 P4 A77Y CI,"v // 19-7 RT'*A3j&gC) a ? ?1 MICHELLE COXEN-GLOVER, ADMINISTRATRIX OF THE ESTATE OF JOAN TAYLOR, DECEASED, 64 Eastwood Lane Smithfield, ME 04978 Plaintiff IN THE COURT OF COMMON PLEAS Of CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. UNITED CHURCH OF CHRIST HOMES No. bq-(,'14J l 'a INC., t/d/b/a THORNWALD HOME 442 Walnut Bottom Road Carlisle, PA 17013, JURY TRIAL DEMANDED Defendant WRIT OF SUMMONS TO: United Church of Christ Homes, Inc., t/d/b/a Thornwald Home You are hereby notified that Plaintiff Michelle-Cozen Glover, as Administratrix of the Estate of Joan Taylor, deceased, has commenced an action against you. Date: 1018101 s / e. t,- a-- t'; e? 4 rothonotary By: .? .. a (Deputy) Sheriffs Office of Cumberland County FED- tvc R Thomas Kline ; }r_ TE r'.;r r „'? ?t?RY Sheriff a??tu at ?scir?dfrt?h t, Ronny R Anderson ?,?? 01'? 19 P Chief Deputy Jody S Smith ,t C Civil Process Sergeant OFME OF '"F =, ER.«-F Edward L Schorpp Solicitor Michelle Coxen-Glover Case Number vs. United Church of Christ Homes, Inc. 2009-6741 SHERIFF'S RETURN OF SERVICE 10/14/2009 09:39 AM - Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on October 14, 2009 at 0939 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: United Church of Christ Homes, Inc., by making known unto Diann Snyder, Director of Nursing at 442 Walnut Bottom Road Carlisle, Cumberland County, Pennsylvania 17013 its contents and a the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $33.84 SO ANSWERS, -000?--r- 04 October 15, 2009 R THOMAS KLINE, SHERIFF By Deputy her_ if Pl ~ 1 Lee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 lscohen(a~,kpc-law. com aparker~a~cpc-law. com MICHELLE COXEN GLOVER, Administratrix of the Estate of Joan Taylor, Deceased, Plaintiff v. UNITED CHURCH OF CHRIST HOMES INC., d/b/a THORNWALD HOME Defendant '~~ Ttar ~~ ,~ ~, ; . ,_~.. ~. k.. ~'. iy v n, J fit {~~; ,':,J ~ ~T ld i~ - IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No. 09-6741 Civil Term JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTIONS OF DEFENDANT UNITED CHURCH OF CHRIST HOMES, INC., D/B/A THORNWALD HOME Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, by and through her counsel, Kelly, Parker & Cohen LLP, respectfully interpose and file her Answer to the Preliminary Objections of Defendant United Church of Christ Homes, Inc., d/b/a Thornwald Home ("UCC Home"), to Plaintiff s Amended Complaint as follows: The Amended Complaint referenced in Paragraph 1 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. By way of further response, Plaintiff admits that the substandard care received by Joan Taylor while she was a resident at UCC Home, including allowing her to fall three times on three successive days, caused the damages set forth in the Amended Complaint, including her death on November 30, 2007. r, A. PLAINTIFF' S CLAIMS BASED ON DEFENDANT' S FAILURE TO (1) HIRE AND RETAIN ONLY APPROPRIATELY TRAINED STAFF WHO COULD PROPERLY CARE FOR DECEDENT, (2) APPROPRIATELY TRAIN STAFF MEMBERS IN ORDER TO PROPERLY CARE FOR DECEDENT, AND (3) OVERSEE AND SUPERVISE ALL PERSONS WHO PRACTICE NURSING AND/OR SKILLED HEALTHCARE WITHIN ITS FACILITY, ARE PROPER 2. The Amended Complaint referenced in Paragraph 2 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. The averments set forth in Paragraph 3 of Defendant's Preliminary Objections are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, the Amended Complaint referenced in Paragraph 3 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. Byway of further answer, Plaintiff does not set forth a cause of action based on Defendant and/or its employees or agents acting outside the scope of their employment. Therefore, Plaintiff is not setting forth a claim under the Restatement (Second) of Torts, § 317. Counts I and II of Plaintiff's Amended Complaint set forth a cause of action based on vicarious liability and direct corporate negligence, respectively. 4. The averments set forth in Paragraph 4 of Defendant's Preliminary Objections are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is denied that a claim averring a defendant is negligent in failing to (1) hire and retain only appropriately trained staff who could properly care for Decedent, (2) appropriately train staff members in order to properly care for Decedent, and (3) oversee and supervise all persons who practice nursing and/or skilled healthcare within its facility, can only 2 be made when the conduct at issue is outside the scope of employment. If a claim is made under Restatement (Second) of Torts, § 317 (Duty of Master to Control Conduct of Servant), Defendant's legal conclusion would be correct. However, in accordance with Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), Defendant had a duty to (1) use reasonable care in the maintenance of safe and adequate facilities and equipment, (2) select and retain only competent staff', (3) oversee all persons who provided patient care within its walls, and (4) formulate, adopt, and enforce adequate rules and policies to ensure quality care for the patients. Id. at 330, 339-340, 591 A.2d 703, 707 (emphasis added). As a result, a plaintiff can set forth a cause of action for failing to select, retain and supervise staff. See Thompson, supra. 5. The Amended Complaint referenced in Paragraph 5 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. By way of further answer, it is admitted that Plaintiff is not pursuing a claim under Section 317 of Restatement (Second) of Torts. 6. The averments set forth in Paragraph 6 of Defendant's Preliminary Objections are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is specifically denied that Plaintiff's claims based on Defendant's failure to (1) hire and retain only appropriately trained staff who could properly care for Decedent, (2) appropriately train staff members in order to properly care for Decedent, and (3) oversee and supervise all persons who practice nursing and/or skilled healthcare are improper as a matter of law. See Amended Complaint ¶¶ 104(a), (b), (d), (e) and (g). In fact, as set forth in Paragraph 4 above, these claims are permissible and appropriate. WHEREFORE, Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, respectfully requests that this Honorable Court deny Defendant's Preliminary Objections and order Defendant to file an Answer to the Amended Complaint within twenty (20) days of the date of the Order. B. PLAINTIFF HAS PLEAD A VALID CAUSE OF ACTION AGAINST UCC HOME ON A THEORY OF DIRECT CORPORATE NEGLIGENCE 7. The Amended Complaint referenced in Paragraph 7 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. By way of further answer, it is admitted that Plaintiff's Amended Complaint sets forth a claim for direct corporate negligence against Defendant. 8. The averments set forth in Paragraph 8 of Defendant's Preliminary Objections are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, the Amended Complaint referenced in Paragraph 8 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. Byway of further response, in a complaint, a plaintiff is only required to state the "material facts on which a cause of action is based in a concise and summary form." Pa.R.C.P. 1019(a). This rule has been interpreted to require that the complaint give notice to the defendant of an asserted claim, and synopsize the essential facts to support it. Krajsa v. Keypunch, Inc., 424 Pa. Super. 230, 235, 622 A.2d 335, 357 (1993). To that end, any part of a pleading may be incorporated by reference into another part of the same pleading. See Pa.R.C.P. 1019(g). Therefore, not every single paragraph and/or subparagraph needs to repeat each and every factual allegation to support the allegation contained within that individual paragraph and/or subparagraph. See Pa.R.C.P. 1022. As a result, a complaint is sufficiently specific if it provides the defendant with enough facts to enable the defendant to frame a proper answer and prepare a defense. Smith v. Wagner, 403 Pa. Super. 4 316, 319, 588 A.2d 1308, 1310 (1991); Milk Marketing Board v. SunnybrookDairies, Inc., 32 Pa. Commw. 313, 370 A.2d 765 (1977). Here, the Amended Complaint sets forth with sufficient specificity the facts upon which Plaintiff will rely in her claim for direct corporate negligence and the facts are sufficiently specific so as to enable Defendant to prepare a defense. Baker v. Rangos, 229 Pa. Super. 333, 350, 324 A.2d 498, 505-06 (1974). In fact, the Amended Complaint sets forth Defendant's duty (See Amended Complaint ¶¶ 21-25, 99-101, 103 and 104), a detailed chronology of the negligent acts (See Amended Complaint ¶¶26, 27, 32-80, 104(a)-(g)), that Defendant had actual or constructive knowledge of the defect or procedure which created the harm (See Amended Complaint ¶¶ 59-61 and 106) and that Defendant's conduct caused the harm (See Amended Complaint ¶ 105). 9. The averments set forth in Paragraph 9 of Defendant's Preliminary Objections are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, as set forth above, the Amended Complaint contains averments of all facts that the Plaintiff will eventually have to prove in order to recover and they are specific and sufficient so as to enable Defendant to prepare a defense. See Baker, supra. 10. The averments set forth in Paragraph 10 of Defendant's Preliminary Objections are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is specifically denied that the Amended Complaint fails to set forth a claim for direct corporate negligence against Defendant. WHEREFORE, Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, respectfully requests that this Honorable Court deny Defendant's Preliminary Objections and order Defendant to file an Answer to the Amended Complaint within twenty (20) days of the date of the Order. 5 C. DEFENDANT HAS FAILED TO SET FORTH A VIABLE OBJECTION PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1028(A)(2) 11. The Amended Complaint referenced in Paragraph 11 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. 12. It is admitted that Defendant's failure to comply with certain duties specifically set forth in Plaintiff s Amended Complaint gives rise to a cause of action for direct corporate negligence. 13. The averments set forth in Paragraph 13 of Defendant's Preliminary Objections are conclusions of law to which no response is required. To the extent the averments are deemed factual in nature, it is admitted that Thompson v. Nason Hospital sets forth various non-delegable duties owed by Defendant. 14. Denied. The relief sought in Paragraph 14 of Defendant's Preliminary Objections is not permitted pursuant to Pa.R.C.P. 1028 and, therefore, should be dismissed. Defendant argues, through its Supporting Brief, that Pa.R.C.P. 1028(a)(2) supports its request in Paragraph 14 of the Preliminary Objections. However, Pa.R.C.P. 1028(a)(2) does not afford the relief Defendant requests. Additionally, Defendant fails to identify any impertinent matters set forth in the Amended Complaint supporting its Preliminary Objection. Nor does Defendant set forth how the Amended Complaint fails to conform to rule of court or law. WHEREFORE, Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, respectfully requests that this Honorable Court deny Defendant's Preliminary Objections and order Defendant to file an Answer to the Amended Complaint within twenty (20) days of the date of the Order. 6 D. PLAINTIFF HAS SUFFICIENTLY IDENTIFIED DEFENDANT' S AGENTS, SERVANTS AND EMPLOYEES 15. The Amended Complaint referenced in Paragraph 15 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. 16. Denied as a conclusion of law to which no response is required. To the extent the averments are deemed factual in nature, it is denied Plaintiff "fails to set forth any identifying information regarding the allegedly responsible agents and servants of Thornwald." It is unnecessary to plead all the various details of an alleged agency. A complaint must allege, at a minimum, facts which: (a) identify the agent by name or appropriate description; and (b) set forth the agent's authority, and how the tortuous act of the agent fell within the scope of that authority. Alumni Assoc. v. Sullivan, 369 Pa. Super. 596, 535 A.2d 1095 (1987), aff'd, 524 Pa. 356, 572 A.2d 1209 (1990). In situations where the defendant has as much if not more knowledge than the plaintiff, the plaintiff is not required to file a more specific complaint. Sprecker v. Minutola, 70 Pa.D.&C. 595 (C.P. Dauphin 1949); Gill v. Wilkes-Barre Publishing Company, 30 Pa.D.&C.2d 251 (C.P. Luzerne 1963). Here, Plaintiff has alleged that Defendant was acting through its officers, board members, physicians, physicians' assistants, nurses, certified nurses' aides, office staff, administrative personnel, and agents, servants, and employees who were, in turn, acting within the course and scope of their employment under the direct supervision and control of the Defendant. The Plaintiff does not know the identity of each of these persons. The Defendant is the only party with access to that information. Accordingly, Plaintiff is permitted to reference unnamed officers, board members, physicians, physicians' assistants, nurses, certified nurses' aides, office staff and administrative personnel, agents, 7 servants, and employees in the Amended Complaint and, therefore, a more specific pleading is not required and the Preliminary Objections should be overruled. 17. The averments set forth in Paragraph 17 of Defendant's Preliminary Objections are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, see Plaintiff's response to Paragraph 16 above. 18. The averments set forth in Paragraph 18 of Defendant's Preliminary Objections are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, it is denied that Plaintiff failed to plead an agency relationship with sufficient specificity. HEREFORE, Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, respectfully requests that this Honorable Court deny Defendant's Preliminary Objections and order Defendant to file an Answer to the Amended Complaint within twenty (20) days of the date of the Order. E. PLAINTIFF' S AMENDED COMPLAINT PROPERLY SETS FORTH MULTIPLE CAUSES OF ACTION IN ACCORDANCE WITH PA.R.C.P. 1020(A) 19. The Amended Complaint referenced in Paragraph 19 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. 20. The Amended Complaint referenced in Paragraph 20 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. By way of further answer, Defendant's characterization of Plaintiff s Amended Complaint is denied. Count I of Plaintiff's Amended Complaint sets forth a cause of action through the theory of vicarious liability against Defendant. 8 Count II of Plaintiff s Amended Complaint sets forth a cause of action for direct corporate negligence which includes claims that Defendant was negligent in hiring and retaining employees and/or agents who were incapable of providing proper care to Decedent and failing to supervise its employees and/or agents so as to provide Joan Taylor with proper care. 21. The averments set forth in Paragraph 21 of Defendant's Preliminary Objections are conclusions of law to which no response is required. 22. Denied as a conclusion of law. As set forth above, Count I of Plaintiff s Amended Complaint sets forth a cause of action through the theory of vicarious liability against Defendant. Count II of Plaintiff s Amended Complaint sets forth a cause of action for direct corporate negligence. WHEREFORE, Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, respectfully requests that this Honorable Court deny Defendant's Preliminary Objections and order Defendant to file an Answer to the Amended Complaint within twenty (20) days of the date of the Order. F. PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES AGAINST UCC HOME, AS WELL AS UNDERLYING ALLEGATIONS OF RECKLESSNESS AND CONDUCT THAT WAS INTENTIONAL, OUTRAGEOUS, WILLFUL, WANTON OR WITH RECKLESS INDIFFERENCE, ARE SUFFICIENTLY PLED 23. The Amended Complaint referenced in Paragraph 23 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. By way of further answer, while Plaintiff s Amended Complaint does set forth a cause of action based on Defendant's actions and inactions in allowing decedent to fall on three consecutive days, Plaintiff s Amended Complaint clearly sets 9 forth additional actions and inactions which, when taken together, show outrageous, willful, wanton, and reckless conduct on the part of Defendant. 24. The Amended Complaint referenced in Paragraph 24 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. By way of further answer, it is admitted that Plaintiff pled that UCC Home installed "anti-tipsters" on Decedent's wheelchair following her first of three falls. However, the single act of installing anti-tipsters does not negate the outrageous, willful, wanton, and reckless conduct on the part of Defendant. Defendant clearly knew or had reason to know that its actions and inactions, as set forth in the Amended Complaint, created a high degree of risk of physical harm to Joan Taylor, and it deliberately acted and failed to act in conscious disregard of or indifference to that risk. SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702 (1991). In fact, Defendant had actual knowledge that the "anti-tipsters" would not prevent Joan Taylor from falling (as evidenced by her fall after the "anti-tipsters" were installed) and still decided to ignore the high degree of likelihood that Joan Taylor would fall again and sustain serious injuries. The averments set forth in Plaintiff's Amended Complaint are sufficient to support an award of punitive damages. See Amended Complaint ¶¶ 35-80. 25. The Amended Complaint referenced in Paragraph 25 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. 26. The Amended Complaint referenced in Paragraph 26 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. By way of further response, Plaintiff's Amended Complaint sets forth in detail the actions and inactions on the part of Defendant which created a 10 high degree of risk of physical harm to Joan Taylor. See Amended Complaint ¶¶ 35-80. The Amended Complaint sets forth that Joan Taylor was a high risk for falls and Defendant failed to take or put into place preventative measures. Amended Complaint ¶ 32, 36, 39-49, 59-63. See also Paragraph 24 above. Based on the averments set forth in the Amended Complaint, Defendant clearly had a subjective appreciation of the risk of harm to which Joan Taylor was exposed and acted and/or failed to act in conscious disregard of that risk. Martin v. Johns- Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). As a result, Plaintiff has pled with specificity the facts which give rise to Plaintiff's claim for punitive damages. 27. The averments set forth in Paragraph 27 of Defendant's Preliminary Objections are conclusions of law to which no response is required. 28. The averments set forth in Paragraph 28 of Defendant's Preliminary Objections are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, the averments set forth in Plaintiff's Amended Complaint are sufficient to support an award of punitive damages. See also Paragraphs 24 and 26 above. WHEREFORE, Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, respectfully requests that this Honorable Court deny Defendant's Preliminary Objections and order Defendant to file an Answer to the Amended Complaint within twenty (20) days of the date of the Order. G. PLAINTIFF'S AMENDED COMPLAINT DOES NOT CONTAIN GENERAL ALLEGATIONS OF NEGLIGENCE OR CATCH-ALL PARAGRAPHS, BUT, INSTEAD, CONTAINS DETAILED ALLEGATIONS AGAINST THE DEFENDANT 29. The Amended Complaint referenced in Paragraph 29 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. By way of further response, the averments set forth in 11 Paragraph 29 of Defendant's Preliminary Objections are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, the Amended Complaint pleaded very detailed and specific facts. Plaintiff s Amended Complaint does not contain general allegations of negligence or catch-all paragraphs, but, instead, contains detailed allegations against the Defendant. As a matter of form, there is no legal requirement that every paragraph in a complaint contain all of the facts upon which an allegation is made. See Pa.R.C.P. 1022. The issue is whether the Amended Complaint, not each individual paragraph or subparagraph, is sufficiently pleaded when read in its entirety. Each of the "broad, boilerplate and generic allegations" cited by Defendant in Paragraph 29 of its Preliminary Objections is sufficiently specific when read as part of the Amended Complaint. 30. The averments set forth in Paragraph 30 of Defendant's Preliminary Objections are conclusions of law to which no response is required. 31. The averments set forth in Paragraph 31 of Defendant's Preliminary Objections are conclusions of law to which no response is required. By way of further response, see Paragraph 29 above. WHEREFORE, Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, respectfully requests that this Honorable Court deny Defendant's Preliminary Objections and order Defendant to file an Answer to the Amended Complaint within twenty (20) days of the date of the Order. 12 H. PLAINTIFF CAN RECOVER WRONGFUL DEATH DAMAGES ON BEHALF OF DECEDENT'S EMANCIPATED ADULT SURVIVING CHILDREN FOR LOSS OF COMPANIONSHIP, COMFORT, AID, ASSISTANCE, AND SOCIETY 32. The Amended Complaint referenced in Paragraph 32 of Defendant's Preliminary Objections is a written document which speaks for itself and, therefore, any averments regarding the same need not be admitted or denied. 33. The averments set forth in Paragraph 33 of Defendant's Preliminary Objections are conclusions of law to which no response is required. To the extent the averments are deemed to be factual in nature, in Paragraph 121 of Plaintiff's Amended Complaint, Joan Taylor's survivors set forth a claim based on the loss of her "companionship, comfort, aid, assistance, and society that they would have received from Joan Taylor, deceased, for the remainder of her natural life." See Amended Complaint, ¶ 121. While Pennsylvania law does not recognize the right to "parental consortium" or loss thereof, a child can recover losses occasioned by the death of their parents under Pennsylvania law for loss of companionship, comfort, society and guidance of a parent. See Machado v. Kunkel, 804 A.2d 1238, 1244-45 (Pa. Super. 2002), app. den., 572 Pa. 766, 819 A.2d 547 (2003). As a result, the damages requested by Plaintiff through the Amended Complaint are proper. 34. The averments set forth in Paragraph 34 of Defendant's Preliminary Objections are conclusions of law to which no response is required. See Paragraph 33 above. 35. Denied. Based on Pennsylvania law, it is clear that the claims requested by Plaintiff through the Amended Complaint are proper. See Machado supra. 13 WHEREFORE, Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, respectfully requests that this Honorable Court deny Defendant's Preliminary Objections and order Defendant to file an Answer to the Amended Complaint within twenty (20) days of the date of the Order. Respectfully submitted, V Lee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 lcohen o kpc-law.com aparker~kpc-law, com Dated: June 25, 2010 Counsel for Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased 14 CERTIFICATE OF SERVICE On this 25`h day of June 2010, I, Pamela L. Russell, a legal secretary in the law firm of Kelly, Parker & Cohen LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTIONS OF DEFENDANT UNITED CHURCH OF CHRIST HOMES, INC., D/B/A THORNWALD HOME upon the person(s) and at the address(es) below named by United States First Class Mail, postage prepaid in Harrisburg, PA: Craig A. Stone, Esquire Michael C. Mongiello, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Y1 TO TH Argumi CAPTI( (entire MICR of the UNITI d/b/a 7 1. 2. 3. argi 4. I' CAl AL PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) E PROTHON TARY OF CUMBERLAND COUNTY: (List the within matter for the nex ant Court.) DN OF CASE caption must e stated in full) n ' ELLE COXEN r GLOVER, Administratrix Estate of Joan _ aylor, Deceased ~" ~_, ; vs. :D CHURCH F CHRIST HOMES, INC., _ 'HORNWALD OME - No. 09-6741 Civil ~ 'y Term State matter t be argued (i.e., plaintiff's motion for new trial defendant's demurrer complaint, et , .): Prelimina O 'ections to Plaintiffs Amended Com Taint Identify all co nsel who will argue cases: (a) f r plaintiffs: Lee S. Cohen, squire, Kelly, Parker & Cohen LLP (Name and Address) 5425 Jonesto Road, Suite 103, Harrisburg, PA 17112 (b) f r defendants: Craig A. Stone Esquire, Michael C. Mongiello, Esquire, Marshall, Dennehey, Warner, Coleman (Name and Address) & Goggin, 42 Crums Mill Road, Suite B, Harrisburg, PA 17112 I will notify II parties in writing within two days that this case has been listed for invent. Argument Co rt Date: August 18, 2010 l~ ~gnatur Lee S. Cohen Print your name Plaintiff D t /~ Attorney for l a e: INSTRUCTIO S: 1. Ori final and two copies of all briefs must be filed with the COURT ADMINI; (n t 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 a ument is continued new briefs must be filed with the COURT A MINISTRATOR (not the Prothonotary) after the case is relisted. N C=J ~1 --+ ;-. c,~ ;, , -?~ -. e:,. ~' v ~: STRATOR . . • CERTIFICATE OF SERVICE On this 13th day f July 2010, I, Wanda L. Hoffinan, a paralegal in the law firm of Kelly, Parker & Cohen LLP, he eby certify that I have, this day, served a true and correct copy of the foregoing PRAECIPE OR LISTING CASE FOR ARGUMENT upon the person(s) and at the address(es) below n ed by United States First Class Mail, postage prepaid in Harrisburg, PA: Craig A. tone, Esquire Michael . Mongiello, Esquire Marshall, ennehey, Warner, Coleman & Goggin 4200 C s Mill Road, Suite B Harrisbur , PA 17112 anda L. Hof Lee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 Iscohenla kpc-law.com aparker a,kpc-law.com MICHELLE COXEN GLOVER, Administratrix of the Estate of Joan Taylor, Deceased, Plaintiff A T R„ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. UNITED CHURCH OF CHRIST HOMES INC., d/b/a THORNWALD HOME Defendant No. 09-6741 Civil Term JURY TRIAL DEMANDED PLAINTIFF'S MOTION FOR DETERMINATION BY THE COURT AS TO THE NECESSITY OF FILING AN ADDITIONAL CERTIFICATE OF MERIT Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, by and through her counsel, Kelly, Parker & Cohen LLP, respectfully files this Motion in accordance with Pennsylvania Rule of Civil Procedure 1042.6(c) seeking a determination by the Court as to the necessity of filing an additional certificate of merit as follows: Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, initiated this action through Writ of Summons on October 8, 2009. 2. On March 22, 2010, Plaintiff filed her Complaint. 3. On April 8, 2010, Defendant United Church of Christ Homes, Inc., d/b/a Thornwald Homes ("UCC Homes"), filed Preliminary Objections. 4. As a result, on April 27, 2010, Plaintiff filed her Amended Complaint. Count I of Plaintiff's Amended Complaint sets forth a cause of action through the theory of vicarious liability against Defendant. Count II of Plaintiff's .Amended Complaint sets forth a cause of action for direct corporate negligence. 6. The only defendant named in the Amended Complaint is UCC Homes. Plaintiff only sets forth a claim for damages against UCC Homes. 8. Attached to the Amended Complaint was a Certificate of Merit indicting: a. an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; and b. the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. See Appendix A. 9. On May 25, 2010, UCC Homes filed its Preliminary Objections to the Amended Complaint. 10. On June 28, 2010 Plaintiff filed her Answer to UCC Home's Preliminary Objections. 11. Oral argument on the Preliminary Objections was held on August 18, 2010. 2 12. By correspondence dated August 25, 2010, UCC Homes provided Plaintiff a Notice of Intent to Enter Default Judgment pursuant to Pa. R. Civ. P. 1042.6 ("Notice") only with regard to claims set forth in the Amended Complaint which deal with yet unidentified licensed professionals. STATEMENT OF FACTS 13. Joan Taylor was a resident of UCC Homes from August 14, 2002, through the date of her death on November 30, 2007. 14. While a resident, Joan Taylor had her right leg amputated below the knee. In addition, in November 2007, Joan Taylor also suffered from low blood sugar, lethargy, urinary tract infections, and dementia and required extensive assistance for mobility and transfers, and was on anti-coagulation and cardiac therapy, among other issues. As a result, Joan Taylor was at extremely high risk for falls. 15. Without proper fall precautions, on November 4, 2007, Joan Taylor fell out of her wheelchair, sustaining a bump to her head, skin tear, and hematoma to her left hand. The only intervention after the November 4, 2007, fall was to provide anti-tipsters to her wheel chair. 16. On November 5, 2007, Joan Taylor again fell out of her wheelchair. She was again found on the floor, on her back, with her wheelchair sitting near her upper torso. 17. At that time, it was, or should have been, clear to UCC Homes that the anti- tipsters were not sufficient to prevent: Joan Taylor, a frail and elderly individual, from falling onto the hard floor. Regardless, according to Joan Taylor's fall protocol update on November 5, 2007, UCC Homes made "no change" to Joan Taylor's plan of care even though the anti-tipsters where insufficient to prevent the fall of November 5, 2007. 18. Without providing any additional intervention after Joan Taylor's second fall in two days, on November 6, 2007, Joan Taylor had an additional fall from her wheelchair. This time, UCC Homes, ignoring Joan Taylor's risk for falls, caused her to sustain a left tibia and fibula fracture, among other injuries. 19. On November 6, 2007, Joan Taylor was transferred to Carlisle Regional Medical Center for evaluation and treatment, and returned to UCC Homes with a splint on her left leg. As a result of the falls, Joan Taylor was in extreme pain and unable to breath properly. 20. Prior to the three falls in three days, Joan Taylor had a good quality of life and was stable. However, following the falls, Joan Taylor had a marked decline in condition, with severe confusion, facial swelling, low oxygen saturation, and discoloration of her toes. In addition, after being transferred to Carlisle Regional Medical Center a second time, it was determined that Joan Taylor had bilateral pneumonia, urinary tract infection, dehydration, and acute renal failure. 21. As a result of the falls., and the subsequent decline in her condition, Joan Taylor died on November 30, 2007. Joan Taylor's death occurred less than one month after her falls. ARGUMENT A. PLAINTIFF HAS ALREADY PROVIDED A CERTIFICATE OF MERIT IN COMPLIANCE WITH PENNSYLVANIA RULE OF CIVIL PROCEDURE 1042.3 22. In order to prevent frivolous malpractice lawsuits from being filed, Pennsylvania enacted Pennsylvania Rule of Civil Procedure 1042.3 which requires that a plaintiff have a licensed professional state in writing that a defendant deviated from the standard of care. As a 4 result, if a licensed professional will not indicate the same, a plaintiff cannot move forward with the lawsuit, thereby eliminating the unfounded claims. 23. The Pennsylvania Supreme Court has stated that the purpose for adopting Rule 1042.3 was to: ... devise an orderly procedure that would serve to identify and weed non-meritorious malpractice claims from the judicial system efficiently and promptly. See pa const. art.V, § 10(c); 42 Pa.C.S. § 1722. The procedure we provided in the professional liability action rules centers on the filing of a [certificate of merit]. On the one hand, the presence in the record of a [certificate of merit] signals to the parties and the trial court that the plaintiff is willing to attest to the basis of his malpractice claim; that he is in a position to support the allegations he has made in his professional liability action; and that resources will not be wasted if additional pleading and discovery take place. See Pa.R.C.P. No. 1042.4, Pa.R.C.P. No. 1042.5. On the other hand, the absence from the record of a [certificate of merit] signals to the parties and the trial court that none of this is so and that nothing further should transpire in the action, except for the lawsuit's termination. See Pa.R.C.P. No. 1042.6 Womer v. Hilliker, 589 Pa. 256, 266-267, 908 A.2d 269, 275-276 (2006) (rearg. den.). 24. Therefore, Rule 10423 was enacted and states in relevant part: (a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff ... shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or (2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, (b) (1) A separate certificate of merit shall be filed as to each licensed professional against whom a claim is asserted. 25. Rule 1042.3 goes on to state that if a complaint raises claims under both subdivisions (a)(1) and (a)(2) against the same defendant, the attorney for the plaintiff shall file either a separate certificate of merit as to each claim raised or a single certificate of merit stating that claims are raised under both subdivisions (a)(1) and (a)(2). See Pa. R. Civ. P. 1042.3(b). 26. ]Except for direct corporate liability as set forth in Thompson v. Nason Hospital, almost all liability against a nursing home will be based on vicarious liability for the actions or inactions of the nursing home's staff and/or agents. Thompson v. Nason Hospital, 527 Pa. 330, 339-340, 591 A.2d 703, 707 (1991). 27. Therefore, a certificate of merit filed against a nursing home indicating a claim for vicarious liability (Rule 1042.3(a)(2)) must be based on a written statement from an appropriate licensed professional stating that the nursing home's staff's and/or agent's actions deviated from an acceptable professional standard. 28. As a result, a certificate of merit filed in accordance with Rule 1042.3(a)(2) satisfies Rule 1042.3 Is requirements as it relates to those other licensed professionals for whom the defendant is responsible. 29. In this case, Plaintiff filed a single certificate of merit stating that claims are raised under both subdivisions (a)(1) and (a)(2) as allowed by Pa. R. Civ. P. 1042.3(b). 30. By filing a certificate of merit in accordance with Rule 1042.3(a)(2) against UCC Homes, it is clear that Plaintiff has obtained a written statement from an appropriate licensed professional stating that UCC Home's employees, agents and/or staff who are licensed professionals deviated from an acceptable professional standard. 6 31. Importantly, none of the unidentified employees, agents and/or staff is a named party to this action. Nor have any damages been sought from these employees, agents and/or staff by Plaintiff. 32. This is important because the Pennsylvania Superior Court has held a plaintiff is only required to "submit a certificate of merit for each named licensed professional." Estate of Aranda v. Amrick, 987 A.2d 727, 728-729 (Pa. Super. 2009) (rearg. den.) (emphasis added), 33. This is further substantiated based on the form certificate of merit set forth in Rule 1042.9 which states: an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; Pa. R.C.P. No. 1042.3(a)(1) (emphasis added). 34. Because UCC Homes is the only named Defendant and because Plaintiff filed a single certificate of merit stating that claims are raised under both subdivisions (a)(1) and (a)(2), as allowed by Pa. R. Civ. P. 1042.3(b), which stated that other licensed professionals for whom UCC Home is responsible deviated from an acceptable professional, Plaintiff has complied with Rule 1042.3. 35. Based on the certificate of merit filed by Plaintiff, the Court has been notified that there exists a claim which has merit based on a theory of vicarious liability, and therefore complies with the purpose of Rule 104.3. 36. To require an additional certificate of merit would just be duplicative and not further the requirements of Rule 1042.3. 7 IN THE ALTERNATIVE 37. The Note to Rule 1042.3(a)(2) states that a certificate of merit is not required to identify the specific licensed professionals who deviated from an acceptable standard of care. 38. As set forth in Paragraph 12 above, the Notice only deals with yet unidentified licensed professionals. These unidentified licensed professionals are currently known by UCC Home but not yet known to Plaintiff. 39. If an additional certificate of merit is required, in accordance with Rule 1042.3, Plaintiff would only be required to state in the certificate that it relates to unknown employees, agents, and/or servants of UCC Homes who provided the care and/or acted or failed to act as set forth in the Amended Complaint. 40.. If the Court would require an additional certificate of merit as requested by UCC Homes, Plaintiff will file the attached certificate of merit based on the written documents provided to Plaintiff by an appropriate licensed professional. See Appendix B. WHEREFORE, Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, respectfully requests that this Honorable Court determine hat Plaintiff has met the requirements of Rule 1042.3 Respectfully submitted, ee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 lcohengkpc-law.com aparker a,kpc-law.com Dated: September 17, 2010 Counsel for Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased 9 APPENDIX A Lee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY. PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 171 12 717-920-2220 FAX 7 17-920-23 70 lscohen(61)k pc-1aw.com a ari.er a g'c-law.Con] MICIIELLE COXEN GLOVER, PLEAS Administratrix of the Estate of Joan Taylor, Deceased, Plaintiff c 'rl tU C) ?rn IN THE COURT OF COMMON CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. UNITED CHURCH OF CHRIST HOMES INC., d/b/a THORNWALD HOME Defendant No. 09-6741 Civil Term JURY TRIAL DEMANDED CERTIFICATE OF MERIT Certificate of Merit as to United Church of Christ Homes, Inc., d/b/a Thornwald Home I, Lee S. Cohen, Esquire, certify that: X an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR X the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR ? expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Lee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN UP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 lcohen(a?,kUc-law. com aparker v -pc-law.com Dated: March 19, 2010 Counsel for Plaintiff 2 APPENDIX B Lee S. Cohen. PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 171 12 717-920-2220 FAX 717-920-2370 Iscohen@kpc-law.com aparker a,kpc-law.com MICHELLE COXEN GLOVER, Administratrix of the Estate of Joan Taylor, Deceased, Plaintiff' IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -- LAW V. UNITED CHURCH OF CHRIST HOMES INC., d/b/a THORNWALD HOME : No. 09-6741 Civil Term Defendant • JURY TRIAL DEMANDED CERTIFICATE OF MERIT Certificate of Merit as to Unidentified Licensed Professionals Who Are Employees, Agents, and/or Servants of United Church of Christ Homes, Inc., d/b/a Th.ornwald Home I, Lee S. Cohen, Esquire, certify that: X an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by unidentified licensed professionals who are employees, agents, and/or servants of UCC Homes in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR D the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR ? expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. k,t6'- Lee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 lcohen kpc-law.com_ aparkerna kpc-law.com Dated: September 17, 2010 Counsel for Plaintiff 2 CERTIFICATE OF SERVICE On this 17th day of September 2010, I, Pamela L. Russell, a secretary in the law firm of Kelly, Parker & Cohen LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing PLAINTIFF'S MOTION FOR DETERMINATION BY THE COURT AS TO THE NECESSITY OF FILING AN ADDITIONAL CERTIFICATE OF MERIT upon the person(s) and at the address(es) below named by United States First Class Mail, postage prepaid in Harrisburg, PA: Craig A. Stone, Esquire Michael C. Mongiello, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112. MICHELLE COXEN GLOVER, IN THE COURT OF COMMON PLEAS OF Administratrix of the Estate of CUMBERLAND COUNTY, PENNSYLVANIA Joan Taylor, Deceased, Plaintiff/Petitioner vs. CIVIL ACTION -LAW N0.09-6741 CIVIL UNITED CHURCH OF CHRIST HOMES INC., d/b/a THORNWALD HOME, Defendant/Respondent IN RE: PLAINTIFF' S MOTION FOR DETERMINATION BY THE COURT RULE TO SHOW CAUSE AND NOW, this Z a ''~ day of September, 2010, upon consideration of the foregoing petition, it is hereby ordered and decreed as follows: 1. A rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; 2. the respondent shall file an answer to the petition within twenty (20) days of service; 3. the petition shall be decided under Pa. R.C.P. No. 206.7; 4. argument is set for October 29, 2010, at 9:15 a.m. in Courtroom Number 4; and 5. notice of the entry of this order shall be provided to all parties by the petitioner. BY THE COURT, Kevin E t £S /rte l t.~cl. (~-I~-.~ C ~ S-~ov~ q/~ ~ ~a P. J. c ~~ rrt ~ ~~ :~~ ~~ ~~ ~~ ~,. G --~ d c.~ r*~ -~, rv w m ..z.. -~ r~ ~ ~~ ~° --tc~ o o -~~ v Lee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 lscohenaakpc-law.com gparker@_kpc-law.com MED-Or FILE THE PROTHONOTAR'' F ? 2010 SEP 29 Aid 11, 2 3 -, UMBERLAND COUNT'" PENNSYLVANIA MICHELLE COXEN GLOVER, IN THE COURT OF COMMON PLEAS Administratrix of the Estate of CUMBERLAND COUNTY, Joan Taylor, Deceased, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. UNITED CHURCH OF CHRIST HOMES No. 09-6741 Civil Term INC., d/b/a THORNWALD HOME Defendant JURY TRIAL DEMANDED CERTIFICATE OF MERIT Certificate of Merit as to Unidentified Licensed Professionals Who Are Employees, Agents, and/or Servants of United Church of Christ Homes, Inc., d/b/a Thornwald Home I, Lee S. Cohen, Esquire, certify that: x an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by unidentified licensed professionals who are employees, agents, and/or servants of UCC Homes in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR ? the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR ? expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Z,.-- 'Lee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 lcohenkkpc-law.com aparkergkpc-law.com Dated: September 28, 2010 Counsel for Plaintiff 2 CERTIFICATE OF SERVICE On this 28`x' day of September 2010, I, Pamela L. Russell, a secretary in the law firm of Kelly, Parker & Cohen LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing CERTIFICATE OF MERIT upon the person(s) and at the address(es) below named by United States First Class Mail, postage prepaid in Harrisburg, PA: Michael C. Mongiello, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 MICHELLE COXEN-GLOVER, IN THE COURT OF COMMON PLEAS OF Administratrix of the Estate of CUMBERLAND COUNTY, PENNSYLVANIA Joan Taylor, . Plaintiff CIVIL ACTION -LAW N0.09-6741 CIVIL vs. UNITED CHURCH OF CHRIST HOMES, INC., t/d/b/a THORNWALD HOME, Defendant IN RE: PLAINTIFF' S MOTION FOR DETERMINATION BY THE COURT AS TO THE NECESSITY OF FILING AN ADDITIONAL CERTIFICATE OF MERIT ORDER AND NOW, this ~ - day of October, 2010, upon representation of counsel that the referenced motion is moot, the Plaintiff s Motion for Determination by the Court as to the Necessity of Filing an Additional Certificate of Merit is DISMISSED and the argument set for October 29, 2010, is CANCELED. BY THE COURT, Kevin ¢D Hess, P. J. /Lee S. Cohen, Esquire For the Plaintiff ~ig A. Stone, Esquire Michael C. Mongiello, Esquire For the Defendant :rlm `~ ;~ ~;;, ` •' cr ~ ~'' ' `u °° ~ ~ ~~ r~ 3;«~, ~- -~ ~~~ --,, -~~ ~~ ° :~~ rv _ a =~ r,~ .. ~; , t r MICHELLE COXEN GLOVER, IN THE COURT OF COMMON PLEAS ADMINISTRATRIX OF THE ESTATE OF CUMBERLAND COUNTY, PENNSYLVANIA OF JOAN TAYLOR, DECEASED, PLAINTIFF : V. UNITED CHURCH OF CHRIST HOMES, INC. d/b/a THORNWALD HOME, DEFENDANT 09-6741 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAIN BEFORE HESS P.J. OLER J. AND MASLAN J. ORDER OF COURT AND NOW, this _ day of November, 2010, upon consideration of defendant's preliminary objections, the plaintiffs response thereto, the briefs filed by the parties, and after argument in this matter, defendant's preliminary objections ARE OV RRULED. By the Court, Lee S. Cohen Esquire For Plaintiff raig A. Stone, Esquire Michael C. Mongiello, Esquire For Defendant :saa (2,C Albert H. Maslond, J. ,V a i F t r ' 5 ..me- i U1 r" ' ? ? `one ? ' p r C??f MICHELLE COXEN GLOVER., ADMINISTRATRIX OF THE ESTATE OF JOAN TAYLOR, DECEASED, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. UNITED CHURCH OF CHRIST HOMES, INC. d/b/a THORNWALD HOME, DEFENDANT DE TO P ORE 09-6741 CIVIL TERM ND OLE OPINION AND ORDER OF COURT Masland, J., November 4, 2010:-- Defendant requests that this court sustain its preliminary amended complaint and pursuant thereto, direct that plaintiff's claim negligence and negligent hiring, supervision and retention be dismis Defendant also requests that vie direct plaintiff to file an amended cc claim for vicarious liability, that we strike plaintiff's claim for punitive underlying/support allegations with prejudice, and, finally, defendant to plaintiff's for direct corporate with prejudice. plaint regarding its mages and all uests that subparagraphs 91(e), (f), (k), (1), (m), (q), (r), (z), (aa), (bb), and (cc), be stricken from the complaint with prejudice. For the reasons summarized below, we requested by defendant. Facts and brief Procedural History Defendant's preliminary objections in this case arise out of an e to take the action on commenced by plaintiff alleging that plaintiff's decedent, Joan Taylor, while a resident of United Church of Christ, Inc. d/b/a Thornwald Home (UCC Homes), from August 14, 2002, through the date of her death on November 30, 2007, suffered three falls from her wheelchair which resulted in a i E 09-6741 CIVIL TERM decline in her condition, and ultimately her death. The procedural history pertinent to this action started with plaintiff filing a praecipe for a writ; of summons on October 8, 2009. On March 22, 2010, plaintiff filed a complaint to which defendant, UCC Homes, filed preliminary objections on April 8, 201 . Plaintiff filed an amended compliant on April 27, 2010, to which UCC Homes filed preliminary objections under consideration now on May 25, 2010. Discussion 1. General Law When ruling on preliminary objections in the nature of a demurrer, a court accepts as true all well-pled material facts set forth in the complaint along with all reasonably deducible inferences from those facts. Schuylkill Navy v. Langbord, 725 A.2d 64, 968 (Pa. Super. 1999), (citing Turner v. Medical Center, Beaver PA, Inc., 686 A.2d 83 (Pa. Super. 1986)). Preliminary objections in the nature of a demurrer will be sustained only if a court finds that, upon the facts cited, the law will not allow recovery. Id. (citing Smith v. McDougal, 529 A.2d 20 (Pa. Super. 1987)). With respect to plaintiff's claims for direct corporate negligence and negligent hiring, supervision and retention, defendant requests the grant of a demurrer which is an assertion that the complaint fails to set forth a cause of action or claim on whic relief can be granted. Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa. Super. 2008). Citing inswanger v. Levy, 457 A.2d 103, 104 (Pa. Super. 1983). If there is any doubt as to whether a demurrer should be sustained, the doubt should be resolved in favor of overruling it. Lerner 954 A.2d at 1234, citing Wawa, Inc. v. Alexander J. Litwomia & Assocs., 817 A.2d 543, 44 (Pa. Super. 2003). Therefore, a preliminary objection in the nature of a demurrer may where the contested pleading is legally insufficient. Hess v, Fox properly granted only LLP, 925 A. 2d -2- 09-6741 CIVIL TERM 798, 806 (Pa. Super. 2007). II. (Discussion At oral argument, defense counsel remarked that plaintiff had used the "worst shotgun approach I've ever seen." Although hyperbole is often used and is sometimes appropriate during argument, it is not always effective. Given the early procedural status of this case, to claim that plaintiff cannot plead in the alternative is not supported bylaw or reason. To be sure, not all of plaintiff's allegations are replete with detailed facts. Nevertheless, contrary to defendant's assertion that they are "bald legal conclusions," the court finds that the hair may be fine or thin in parts, but there is sufficient cover at this early stage of development to allow plaintiff to proceed to the next stage of maturity. With respect to plaintiff's alleged shotgun approach, although defendant may have felt compelled to respond in kind, the court declines to resolve the numerous issues raised by defendant in dike fashion. Rather, we will follow the model of the Warren Commission and use a "single bullet" approach. Although the Commission has been much maligned for this approach, it has not been definitively disproven, and offers us a similarly facile way to target the core issues, allowing the extraneous to fall indirectly from the im act. In short, the court is satisfied that the preliminary objections can be substantially, if not completely, resolved by relying on the recent Superior Court opinion in Scampone v. Grane Heathcare Company, A.2d 2010 Pa. Super. 124, which applied the seminal case of Thompson v. Nason Hospital, 591 A.2d 703 (Pa. 1991) to claims against nursing home facilities. As in the case sub judice, in Scampone, plaintiff raised clai s based upon vicarious and corporate liability. In holding that a nursing home could be foun liable undera corporate negligence theory, the court noted: Herein, we conclude that a nursing home is analogous o a hospital in the level in its involvement: in a patient's overall heath care. Exc pt for the hiring of -3- 09-6741 CIVIL TERM doctors, a nursing home provides comprehensive and patients. A nursing home is akin to a hospital rather ft and the doctrine of corporate liability was appropriatel, Plaintiff's decedent was full-time resident of the nursin exception of occasional visits from her own doctor, [de twenty-four hours a day, seven days a week ... clear) involvement in the care of patients in skilled nursing hi similar to that of a hospital and bears little resemblanc offered on an outpatient basis in a physician's office. Id. at % 21. The court then addressed one of the four requirements for a :ontinual care for its n a physician's office, applied in this case. home, and with the ;ndant] oversaw her care the degree of ne facilities is markedly to the sporadic care rporate liability case as enumerated. in Thompson v. Mason, which is to formulate, adopt an enforce adequate rules and policies to ensure quality care for patients. With respect to the issue of corporate negligence, the Scampone court found that the "alleged staffing defi iency was sufficient to establish a prima facie claim of corporate negligence against the hospital for failure to formulate and enforce policies to ensure quality care." Id. at ¶ 22. Finally, the Scampone court addressed the issue of alternate theories of recovery: To state the obvious, merely because an entity can be eld vicariously liable for the negligence of its employees does not obviate its lia ility for corporate negligence based upon its failure to formulate, adopt, end enforce adequate rules and policies to ensure quality care for patients. Id. at ¶ 25. Just as the Scampone court observed that the plaintiff adequately pled and supported both corporate and vicarious liability causes of action, we find that plaintiff's amended complaint successfully states a cause of action for both claims. With respect to the issue of liability, we must address Defe honorable court, through former President Judge Edgar B. Bayley, c defendant's reasoning that a plaintiff cannot concurrently assert clal and negligent hiring, supervision and/or retention, citing the opinion 05-5869 (Cumb. Co. Dec. 15, 2006). This court is chary to disagre( nt's contention that this concurs in for vicarious liability Lykes v. Yates, No. with the Honorable -4- 09-6741 CIVIL TERM Edgar B. Bayley and, fortunately, we need note that the Lykes decision predated Scampone by four years. Judge Bayley did not have the benefit of our Superior Court's decision in Scampone. Thus, we need riot rely on Lykes because it add it is now post- Scampone. In conclusion, we find as follows: (1) Plaintiff's claims based on defendant's failure to (1) hire appropriately trained staff who could properly care for decedent, members in order to properly care for the decedent and (3) persons who practice nursing and/or skilled healthcare within its the law as it was not as retain only appropriately train staff and supervise all ity are proper. (2) Plaintiff has properly pled a valid cause of action against OCC Homes on a theory of direct corporate negligence. (3) Plaintiff's amended complaint is sufficiently specific to apprise defendant of the precise allegations against it in that it has adequately identified defendant agents, servants and employees and does not contain only general allegations of negligence but contains sufficiently detailed allegations against the defendant. (4) Plaintiff's amended complaint properly sets forth multiple causes of action sounding in corporate negligence and vicarious liability. (5) Plaintiff's claim for punitive damages as well as the underlying allegations of recklessness and conduct that may have been intentional, outrageous, willful, wonton or recklessly indifferent, are sufficiently pled. (6) Plaintiff is not precluded from recovering wrongful death damages on behalf of decedent's emancipated adult surviving children for loss of companionship, comfort, age, assistance, and society. -5- 09-6741 CIVIL TERM ORDER OF COURT t AND NOW, this day of November, 2010, upon of defendant's preliminary objections, the plaiintiff's response thereto, the briefs filed, by the parties, and after argument in this matter, defendant's preliminary objections ARE OVERRULED. By the Court, Lee S. Cohen Esquire For Plaintiff Craig A. Stone, Esquire Michael C. Mongiello, Esquire For Defendant :saa Albert H. M , J. -6- I r i PR OF THE Q Tyvt Q TA CRAIG A. STONE, ESQUIRE R Y I.D. No. 15907 2910 ROY 29 Ppf 1: LF S MICHAEL C. MONGIELLO, ESQUIRE I.D. No. 87532 CUMBERLAND COUNTY Marshall, Dennehey, Warner, Coleman & Goggin PENNSYLVANIA 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorney for Defendant United Church of Christ Homes, Inc., d/b/a Thornwald Home MICHELLE COXEN GLOVER, Administratrix of the Estate of JOAN TAYLOR, Deceased Plaintiff V. UNITED CHURCH OF CHRIST HOMES, INC., d/b/a THORNWALD HOME Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Civil Action - Law No: 09-6741 Civil Term JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Lee S. Cohen, Esquire Anthony W. Parker, Esquire Kelly, Parker & Cohen, LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be filed against you. CO WARNER, BY: 111 I M 11 W C A. NE, ESQUIRE 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Dated: (717) 651-3500 CRAIG A. STONE, ESQUIRE I.D. No. 15907 MICHAEL C. MONGIELLO, ESQUIRE I.D. No. 87532 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorney for Defendant United Church of Christ Homes, Inc., d/b/a Thornwald Home MICHELLE COXEN GLOVER, IN THE COURT OF COMMON PLEAS Administratrix of the Estate of JOAN OF CUMBERLAND COUNTY, PA TAYLOR, Deceased Civil Action - Law Plaintiff No: 09-6741 Civil Term V. UNITED CHURCH OF CHRIST HOMES, : INC., d/b/a THORNWALD HOME JURY TRIAL DEMANDED Defendant DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes Defendant, United Church of Christ Homes, Inc. ("UCC Homes"), d/b/a Thornwald Home (collectively hereafter referred to as "Thornwald" or "Answering Defendant"), by and through its counsel, Marshall, Dennehey, Warner, Coleman & Goggin, and answers and asserts New Matter to Plaintiffs Amended Complaint as follows: 1.- 3. Denied. Answering Defendant is advised by counsel and therefore avers that the corresponding averments of Plaintiffs Amended Complaint do not pertain to it and that no further answer is required. 4. Admitted in part, denied in part. It is admitted that UCC Homes is a Pennsylvania non-profit corporation and the owner and operator of Thornwald Home which is located at 442 Walnut Bottom Road, Carlisle, Pennsylvania. It is denied as stated that UCC Homes is the owner and operator of "Thornwood" as alleged. It is also admitted that UCC Homes regularly conducts business in the Commonwealth of Pennsylvania with a registered address of 30 N. 31" Street, Camp Hill, Pennsylvania. Finally, while it is admitted that Plaintiff is asserting a professional liability claim against UCC Homes, it is specifically denied that UCC Homes was directly or vicariously negligent. To the contrary, at all relevant times, UCC Homes and all of its agents, apparent agents, servants and/or employees met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 5. Admitted in part, denied in part. It is admitted that UCC Homes is engaged in the business of owning, operating and managing skilled nursing facilities, including Thornwald. It is specifically denied, however, that UCC Homes was "providing healthcare, medical services, nursing care and assisted living/personal care to the public in Cumberland County" to the extent that, under Pennsylvania law, only a licensed physician can practice medicine, with similar limitations placed on other licensed healthcare providers. It is admitted that at all times relevant UCC Homes was duly licensed to operate Thornwald in the Commonwealth of Pennsylvania. 6. Denied. The corresponding allegations of Plaintiffs Amended Complaint are denied by operation of Pa. R.C.P. 229(e) and/or as conclusions of law to which no responsive pleading is required. By way of further answer, to the extent the corresponding averments of Plaintiffs Amended Complaint refer to unidentified "agents, employees and/or servants, and those granted privileges at Thornwald", Thornwald is without sufficient information to respond, said allegations are specifically denied and strict proof thereof is demanded at the time of trial to the extent relevant. 7. Admitted. 2 JURISDICTION AND VENUE 8. Denied. The corresponding averments of Plaintiffs Amended Complaint are denied as conclusions of law to which no responsive pleading is required. FACTUAL BACKGROUND 9.- 84. Denied. The corresponding averments of Plaintiffs Amended Complaint are denied by operation of Pa. R.C.P. 1029(e) and/or as conclusions of law to which no responsive pleading is required. By way of further answer, neither Thornwald nor any of its alleged agents, apparent agents, servants and/or employees were negligent. To the contrary, at all relevant times, Thornwald and all of its alleged agents, apparent agents, servants and/or employees of Thornwald met or exceeded the standard of care and at no time caused or contributed to the entries as alleged. COUNTI NEGLIGENCE 85. Answering Defendant hereby incorporates by reference the answers contained in paragraphs 1 through 84 above as though fully set forth herein at length. 86. - 95. Denied. The corresponding averments of Plaintiffs Amended Complaint are denied by operation of Pa. R.C.P. 1029(e) and/or as conclusions of law to which no responsive pleading is required. By way of further answer, neither Thornwald nor any of its alleged agents, apparent agents, servants and/or employees were negligent. To the contrary, at all relevant times, Thornwald and all of its alleged agents, apparent agents, servants and/or employees of Thornwald met or exceeded the standard of care and at no time caused or contributed to the entries as alleged. To the extent the corresponding averments of Plaintiffs Amended Complaint refer to unidentified agents, servants and/or employees, Thornwald is without sufficient 3 information to respond, said allegations are specifically denied and strict proof thereof is demanded at the time of trial to the extent relevant. It is further specifically denied that Thornwald acted with recklessness, intentionally, outrageously, willfully and/or wantonly and/or with reckless indifference such as to justify an award of punitive damages in this case. WHEREFORE, Defendant, United Church of Christ Homes, Inc., d/b/a Thornwald Home, demands judgment in its favor and against Plaintiff. COUNT II NEGLIGENCE 96. Answering Defendant hereby incorporates by reference the answers contained in paragraphs 1 through 95 above as though fully set forth herein at length. 97. -107. Denied. The corresponding averments of Plaintiff s Amended Complaint are denied by operation of Pa. R.C.P. 1029(e) and/or as conclusions of law to which no responsive pleading is required. By way of further answer, neither Thornwald nor any of its alleged agents, apparent agents, servants and/or employees were negligent. To the contrary, at all relevant times, Thornwald and all of its alleged agents, apparent agents, servants and/or employees of Thornwald met or exceeded the standard of care and at no time caused or contributed to the entries as alleged. To the extent the corresponding averments of Plaintiffs Amended Complaint refer to unidentified agents, servants and/or employees, Thornwald is without sufficient information to respond, said allegations are specifically denied and strict proof thereof is demanded at the time of trial to the extent relevant. It is further specifically denied that Thornwald acted with recklessness, intentionally, outrageously, willfully and/or wantonly and/or with reckless indifference such as to justify an award of punitive damages in this case. WHEREFORE, Defendant, United Church of Christ Homes, Inc., d/b/a Thornwald Home, demands judgment in its favor and against Plaintiff. 4 COUNT III SURVIVAL ACTION 108. Answering Defendant hereby incorporates by reference the answers contained in paragraphs 1 through 107 above as though fully set forth herein at length. 109.- 115. Denied. The corresponding averments of Plaintiffs Amended Complaint are denied by operation of Pa. R.C.P. 1029(e) and/or as conclusions of law to which no responsive pleading is required. By way of further answer, neither Thornwald nor any of its alleged agents, apparent agents, servants and/or employees were negligent. To the contrary, at all relevant times, Thornwald and all of its alleged agents, apparent agents, servants and/or employees of Thornwald met or exceeded the standard of care and at no time caused or contributed to the entries as alleged. It is further specifically denied that Thornwald acted with recklessness, intentionally, outrageously, willfully and/or wantonly and/or with reckless indifference such as to justify an award of punitive damages in this case. WHEREFORE, Defendant, United Church of Christ Homes, Inc., d/b/a Thornwald Home, demands judgment in its favor and against Plaintiff. COUNT IV WRONGFULDEATH 116. Answering Defendant hereby incorporates by reference the answers contained in paragraphs 1 through 115 above as though fully set forth herein at length. 117. -122. Denied. The corresponding averments of Plaintiffs Amended Complaint are denied by operation of Pa. R.C.P. 1029(e) and/or as conclusions of law to which no responsive pleading is required. By way of further answer, neither Thornwald nor any of its alleged agents, apparent agents, servants and/or employees were negligent. To the contrary, at all relevant times, Thornwald and all of its alleged agents, apparent agents, servants and/or employees of Thomwald met or exceeded the standard of care and at no time caused or contributed to the entries as alleged. It is further specifically denied that Thornwald acted with recklessness, intentionally, outrageously, willfully and/or wantonly and/or with reckless indifference such as to justify an award of punitive damages in this case. WHEREFORE, Defendant, United Church of Christ Homes, Inc., d/b/a Thornwald Home, demands judgment in its favor and against Plaintiff. NEW MATTER 123. Answering Defendant hereby incorporates all averments of this Answer with New Matter as if fully set forth. 124. Plaintiffs Amended Complaint fails to state a claim upon which relief can be granted against Answering Defendant. 125. At no time relevant hereto was Answering Defendant, its agents, servants, employees or otherwise acting on or behalf of any other Defendant in this action or any other natural person, partnership, corporation or other legal entity. 126. At no time relevant hereto was any other natural person, partnership, corporation or other legal entity acting or serving as an agent, servant, employee or otherwise for or on behalf of Answering Defendant. 127. At all time relevant hereto, Answering Defendant, directly and through its agents, servants and employees, complied with the applicable standard of care. 128. At all times relevant hereto Answering Defendant acted within and followed the precepts of a respected school of thought and, accordingly, all professional conduct was fully commensurate with the applicable standard of care. Evidence at trial may establish two or more schools of thought applicable to the issues presented in this case. 129. Plaintiffs decedent assumed the risk of injury and this action is therefore barred by the Doctrine of Assumption of Risk. 6 130. Answering Defendant believes and therefore avers that evidence accumulated through discovery and provided at trial may establish that Plaintiffs decedent was contributorily or comparatively negligent, and in order to protect the record, Answering Defendant hereby pleads contributory or comparative negligence as affirmative defenses. 131. Answering Defendant is entitled to relief and contribution in accordance with the Pennsylvania Comparative Negligence Act, 42 P.S. § 7102 as amended by Senate Bill 1089, effective August 14, 2002. 132. In the event that it is determined that Answering Defendant was negligent with regard to any of the allegations contained in, and with respect to Plaintiffs Complaint, said allegations being specifically denied, said negligence, if any, was superseded by the intervening negligent acts of other persons, parties and/or organizations other than Answering Defendant and over whom Answering Defendant had no control, right, responsibility and, therefore, Answering Defendant is not liable. 133. Any acts or omissions of Answering Defendant alleged to constitute negligence were not substantial causes, factual causes, or factors contributing to the injuries and damages alleged in Plaintiffs Complaint. 134. Plaintiffs injuries and losses, if any, were not caused by the conduct or negligence of Answering Defendant but rather were caused by pre-existing medical conditions and/or causes beyond the control of Answering Defendant, and Plaintiff may not recover against it. 135. Plaintiffs claims are barred by operation of the applicable statute of limitations, including 42 Pa. C.S.A. § 5524 and 40 P.S. § 1301.605. 136. All claims that might have been asserted by Plaintiff including claims for medical expenses are barred by operation of the applicable statute of limitations. 7 137. Plaintiffs claims are limited and barred by Section 103, 602 and 606 of the Health Care Services Malpractice Act of 1974, 40 P.S. § 1301, et seg., as amended. 138. Plaintiffs claims are limited and barred by the provisions of the Medical Care Availability and Reduction of Errors (MCARE) Act, 40 P. S. § 1303.101, et seg. 139. The damages alleged by Plaintiff did not result from acts or omissions of Answering Defendant, its agents, servants or employees, but, rather, from acts or omissions of persons and/or entities over whom Answering Defendant had no right of control. 140. Pa. R.C.P. 238 is unconstitutional on its face and as may be applied in this case. 141. Answering Defendant is entitled to and incorporates herein by reference the defenses contained in the Federal Health Care Quality Improvement Act, P.L. 99-660. 142. Plaintiffs claims, the existence of which is specifically denied by Answering Defendant, may be reduced and/or limited by any collateral source of compensation and/or benefit in accordance with the Pennsylvania Supreme Court decision in Moorhead v. Crozer Chester Medical Center. 143. Answering Defendant is entitled to and asserts all defenses available to it under the Fair Share Act, 42 Pa. C.S. § 7102 B. 144. Answering Defendant hereby pleads the affirmative defense of release. 145. Answering Defendant reserves the right to raise one or more of those defenses set forth at Pa. R.C.P. 1030. 146. Plaintiff may be barred and/or limited by a failure to have mitigated damages as required by law. 147. Answering Defendant demands trial by jury on all issues. 8 WHEREFORE, Defendant, United Church of Christ Homes, Inc., d/b/a Thornwald Home, demands judgment in its favor and against Plaintiff. Respectfully submitted, , WARNER, Craig vY I $t quire Michael C. M ngi llo, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Dated: (717) 651-3500 9 CERTIFICATE OF SERVICE I, Sarah A. Kuhn, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, hereby certifies that a true and correct copy of the foregoing Answer with New Matter to Plaintiffs' Complaint has been served upon the following known counsel and parties of record this e--- day of November 2010, via United States First-Class Mail, postage prepaid: Lee S. Cohen, Esquire Anthony W. Parker, Esquire Kelly, Parker & Cohen, LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 Sarah A. Kuhn 05/659402.v1 10 11/22/2010 14:19 FAX 191 VVz'lVv_ VUMCATION Gail Potter, hereby stales that she is authorized to make this Verification, and verifies that the statements made in the foregoing Answer with New Matter is true and comet to the best of her knowledge, information and belief. The undersigned understands that the statements herein made are subject to the penalties of 18 PA. C.S. §4904 relating to the unworn falsification to authorities. I e GAEL POTTER, AD TOR bated: / /- 2 Z lD 05/65%04.ri FILED-OFFICE OF THE PROTHONOTARY 2010 DEC 13 PM 1: 08 Lee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 IscohenAk_pc-law. corn aparker@-kpc-law.com CUMBERLAND COUNTY P?N1NSYLVANIA MICHELLE COXEN GLOVER, Administratrix of the Estate of Joan Taylor, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW V. UNITED CHURCH OF CHRIST HOMES INC., d/b/a THORNWALD HOME No. 09-6741 Civil Term Defendant JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO NEW MATTER OF DEFENDANT UNITED CHURCH OF CHRIST HOMES, INC, DB/A THORNWALD HOME, TO PLAINTIFF'S AMENDED COMPLAINT Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, by and through her counsel, Kelly, Parker & Cohen LLP, files the within Answer to New Matter of Defendant United Church of Christ Homes, Inc., d/b/a Thornwald Home ("UCC Home"), to Plaintiff's Amended Complaint as follows: 123. Denied. Plaintiff incorporates by reference the allegations contained in the Amended Complaint as if fully set forth herein. 124. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 125. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 126. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 127. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). By way of further response, it is specifically denied that Defendant directly and/or through its agents, servants, and employees complied with the applicable standard of care. 128. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). By way of further response, it is specifically denied that Defendant's conduct was fully commensurate with the applicable standard of care. 129. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 2 130. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). By way of further response, the injuries suffered by Plaintiff's Decedent Joan Taylor and the resulting damages, injuries, and death were caused solely by the negligence, carelessness, and recklessness of Defendant. Strict proof to the contrary is demanded. 131. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 132. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 133. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). By way of further response, the injuries suffered by Plaintiff's Decedent Joan Taylor and the resulting damages, injuries, and death were caused solely by the negligence, carelessness, and recklessness of the Defendant. Strict proof to the contrary is demanded. 134. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). By way of further response, the injuries suffered by Plaintiff's Decedent Joan Taylor and the resulting damages, injuries, and death were caused solely by the negligence, carelessness, and recklessness of the Defendant. Strict proof to the contrary is demanded. 135. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 136. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 137. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 138. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 139. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). By way of further response, the injuries suffered by Plaintiff's Decedent Joan Taylor and the resulting damages, injuries, and death were caused solely by the negligence, carelessness, and recklessness of the Defendant. Strict proof to the contrary is demanded. 140. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 4 141. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 142. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 143. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 144. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 145. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). By way of further response, it is denied that Defendant is entitled to reserve the right to raise an affirmative defense. Instead, Defendant is required to set forth all such affirmative defenses in its New Matter. 146. Denied. This paragraph contains a conclusion of law which does not require a response and is deemed denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 147. No response is required. 5 WHEREFORE, Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, respectfully requests that judgment be entered in her favor and against United Church of Christ Homes, Inc., d/b/a Thornwald Home, in an amount in excess of the compulsory arbitration limits, together with costs and any other relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. Respectfully submitted, Lee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 lcohen@kpc-law.com aparker@kpc-law.com Dated: December 10, 2010 Counsel for Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased 6 MICHELLE COXEN GLOVER, Administratrix of the Estate of Joan Taylor, Deceased, Plaintiff V, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW UNITED CHURCH OF CHRIST HOMES No. 09-6741 Civil Term INC., dlbla THORNWALD HOME Defendant JURY TRIAL DEMANDED VERIFICATION I, Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, hereby state that I have read the foregoing PLAINTIFF'S ANSWER TO NEW MATTLYt OF DEFENDANT UNITED CHURCH OF CHRIST HOMES, INC., D/B/A THORNWALD HOME, TO PLAINTIFF'S AMENDED COMPLAINT which has been drafted by counsel. The factual statements contained therein are true and correct to the best of my knowledge, information and belief, although the language is that of counsel, and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. I understand that the statements therein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsifications to authorities. Dated: 0 -6 (ItAu/ Michelle Coxen Crlover, Administratrix of the Estate of Joan Taylor, Deceased CERTIFICATE OF SERVICE On this 10`}' day of December 2010, I, Pamela L. Russell, a secretary in the law firm of Kelly, Parker & Cohen LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing PLAINTIFF'S ANSWER TO NEW MATTER OF DEFENDANT UNITED CHURCH OF CHRIST HOMES, INC., DB/A THORNWALD HOME, TO PLAINTIFF'S AMENDED COMPLAINT upon the person(s) and at the address(es) below named by United States First Class Mail, postage prepaid in Harrisburg, PA: Craig A. Stone, Esquire Michael C. Mongiello, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 a Lee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 lscohen@kpc-law.com aparker(a)kpc-law.coma.com MICHELLE COXEN GLOVER, Administratrix of the Estate of Joan Taylor, Deceased, plaintiff ? EP?E?SYt.V AAl Q IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. • No. 09-6741 Civil Term UNITED CHURCH OF CHRIST HOMES INC., d/b/a THORNWALD HOMn I dant JURY TRIAL DEMANDED Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, deceased, by and through her counsel, Kelly, Parker & Cohen LLP, hereby petitions this Court for approval of the settlement for wrongful death and survival action, pursuant to Pa. R.C.P. 2206, and avers in support thereof as follows: 1. Plaintiff Michelle Coxen Glover is an adult individual who resides at 64 Eastwood Lane, Smithfield, Maine 04978. 2. Plaintiff was appointed Administratrix of the Estate of Joan Taylor, deceased, on March 16, 2009, by the Register of Wills of Cumberland County. See Appendix A. 3. The names and addresses of all persons entitled by law to recover damages for Joan Taylor's wrongful death and the relationship to the decedent are as follows: a. Michelle Coxen Glover, Plaintiff herein, who resides at 64 Eastwood Lane, Smithfield, Maine 04978, and was the natural born daughter of the decedent. b John C. Brown, 1475 Baechtel Road, Apt. M4, Willits, California 95490, and was the natural born son of the decedent. 4. Joan Taylor was born on August 19, 1929 and died on November 30, 2007, at the age of 78. 5. The decedent had multiple medical problems, including Type II diabetes, us anemia, right leg below knee amputation, edema, urinary tract infections, unstable mellrt , blood sugars and pressure, gastrointestinal bleed, renal failure, decreased continence and ction se sis, osteoporosis, defibrination syndrome, atrialfibulation, hypertension, peripheral fun p vascular disease, renal insufficiency, amputation of the left third toe, and had resided at United Church of Christ Homes, Inc., t/d/b/a Thornwald Home, in Carlisle, Pennsylvania, from August 14, 2002, through the date of her death. 6. On November 6, 2007, Joan Taylor fell, resulting in a left tibia and fibula fracture. the tibia and fibula fractures, the records show progressive decline in decedent, until she After ultimately died on November 30, 2007, survived by her daughter and son. 7. This is a nursing home malpractice and wrongful death lawsuit initiated by Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, against United Church of Christ Homes, Inc., t/d/b/a Thornwald Home, alleging negligent nursing home treatment which allegedly resulted in the wrongful death of Joan Taylor on November 30, 2007. 8. After an initial investigation and consultations with necessary and appropriate medical experts, the undersigned counsel commenced this action by way of a Writ of Summons filed on October 8, 2009, in the Cumberland County Court of Common Pleas, Pennsylvania, Docket No. 09-6741, against the aforementioned Defendant. 2 9. Thereafter, on March 22, 2010, plaintiff filed her Complaint alleging, inter alia, that Joan Taylor's death was premature and preventable, directly and proximately resulting from the left tibia and fibula fractures caused by the negligence of Defendant. Plaintiff s Complaint includes separate counts for survival and wrongful death, 10. including claims for lost services, counsel, affection, guidance, etc. 11. On April 8, 2010, Defendant filed Preliminary Objections to Plaintiff's t. As a result, on April 27, 2010, Plaintiff filed an Amended Complaint. Thereafter, on Complain laint. The Ma 25, 2010, Defendant filed Preliminary Objections to Plaintiffs Amended Comp Y Objections were briefed and argued by both parties. Thereafter, by Order dated Preliminary J November 4, 2010, the Honorable Albert H. Masland overruled Defendant's Preliminary Objections. 12. In the meantime, the parties exchanged discovery requests. Plaintiff had etel and fully responded to all discovery requests propounded upon her by Defendant. compl y 13. On August 25, 2010, Defendant served upon Plaintiff s counsel a 30-day notice of intention to enter judgment of non pros on professional liability claims pursuant to Pa.R.C.P. 1042.6. As a result, on September 20, 2010, Plaintiff filed a Motion for Determination by the Court as to the Necessity of Filing an Additional Certificate of Merit. After discussion of applicable law between counsel, the matter was resolved. 14. After the pleadings were closed, and during the discovery process, the parties reached an agreement whereby the Plaintiff would settle all claims in exchange for a total a ment of $80,000. The parties agreed on a settlement agreement, attached as Appendix B. pY 15. Plaintiff and undersigned counsel agree that the settlement is fair and reasonable under the circumstances and seek formal approval of the negotiated settlement. Plaintiff 3 I of the settlement, agrees it is in the best interests of the Plaintiff and the understands the terms Estate, and freely and voluntarily accepts the same• of $2926.75. Itemization of 16. Litigation expenses were incurred in the amount , these expenses is attached to the Court's copy to protect attorney work product and confidential A endix C. The law firm of Kelly, Parker & Cohen LLP has paid these costs in information as pp their entirety and Plaintiff approved these expenses in their entirety. 17. Pursuant to the contract for legal services with undersigned counsel, Plaintiff uests that attorney's fees in the amount of $26,666, representing 331/3% of the gross req settlement, be paid to undersigned counsel. A copy of the contract for legal services is attache Court's copy only to protect attorney work product and confidential information as to the Appendix D. 18. After attorney's fees and expenses, the net sum of proceeds remaining is federal government has a lien in the amount of $598.85. See Appendix E. It is, $50,407.25. The therefore, requested that the law firm of Kelly, Parker & Cohen LLP hold $598.85 in escrow and provide Medicare, within 10 business days, with a copy of the Court's Order and the Settlement A reement. Kelly, Parker & Cohen LLP shall pay Medicare the $598.85 lien amount upon g authorization from Medicare to do the same. The Department of Public Welfare has no medical/cash assistance lien against the 19. settlement proceeds. See Appendix F. 50% 20. The Department of Revenue has approved a 50/50 allocation with fifty (50%) percent proceeds allocated to the wrongful death action and fifty percent of the net sum in t settlement proceeds allocation to the survival action. A letter from the Department of of the ne Revenue approving said allocations is attached as Appendix G. 4 21. While the Department of Public Welfare has no medical/cash assistance lien ent roceeds, it does have a lien in the amount of $72,294.22 against the against the settlem p aid and inheritance tax Estate. See Appendix H. The Estate will be administered, the lien p he Estate attorney after the Estate's receipt of the net settlement proceeds. return filed by t In accordance with Pennsylvania Rule of Civil Procedure 2205, Mr. Brown was 22 • first notified of the settlement by registered mail and first class mail on January 18, 2011 and by class mail on March 17, 2010. Mr. Brown contacted undersigned counsel in response to the d re uested that his share of the settlement proceeds be sent to the address set correspondence anq forth in Paragraph 3 above. Based upon the foregoing, Plaintiff respectfully requests of this Honorable Court 23. B that the settlement monies of $80,000 be distributed as follows: 40 000 SURVIVAL ACTION $14,796.71 to Kelly, Parker & Cohen LLP fifty percent of counsel fees ($13,333.33) fifty percent of costs expended ($1,463.38) $24,604.44 to Estate of Joan Taylor, $598.85 to Kelly, Parker & Cohen LLP escrow account (to pay Medicare lien) $40.000 WRONGFUL DEATH $14,796.71 to Kelly, Parker & Cohen LLP fifty percent of counsel fees ($13,333.33) fifty percent of costs expended ($1,463.38) $12,601.65 to Michelle Coxen-Glover 5 $12,601.64 to John C. Brown 24. Plaintiff Michelle Coxen Glover approves and consents to this Petition in all distributions contained herein in all respects, including attorney, s fees and costs, aspects, and the the attached Verification and Consent of Michelle Coxen Glover, attached as as evidenced by Appendix I. Plaintiff Michelle Coxen Glover, Administratrix of the Estate of Joan WHEREFORE, respectfully requests that this Honorable Court issued an Order approving the Taylor, deceased, settlement and distribution in accordance with the terms of the foregoing Petition and attached Order. Respectfully submitted, k.Lee Cohen PA ID No. 89278 Anthony W. Parker PAID No. 81251 KELLY, PARKER & COHEN LLP 3 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 lcohen@kpc-law.com aparker(a)kpc-law.com Dated: April 8, 2011 Counsel for Plaintiff 6 ?A(''?i? 6 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND 41 estate of JOAN V TAYLOR (First, Middle, Last) in said county, deceased, SHORT CERTIFICATE GLENDA EARNER STRASBAUGH I, Register for the Probate of Wills and d Granting Letters of Administration a?dtify that on County, do hereby CUMBERLAND the 16th day of March, Two Thousand and Nine, Letters TESTAMENTARY the Register of in common form were granted by said County, on the CARLISLE BOROUGH late of to MICHELLE COXEN GLOVER (First, Middle, Lastl and that same has not since been revoked. hand and affixed the IN TESTIMONY WHEREOF, I have hereunto set my of March h day office at CARLISLE, PENNSYLVANIA, this 16t seal of said Two Thousand and Nine. File No. 2009-00169 PA File No . 21- 09- 0169 Date of Death 1113012007 S. S. # 202-20-1296 NOT VALID WITHOUT ORIGINAL SIGNATURE AND IMPRESSED SEAL ?WVI' OVER, IN THE COURT ND COUNTY, PA AS MICHELLE COXEN GL OF CUMBERLA Administratrix of the Estate of JOAN TAYLOR, Deceased Civil Action - Law Plaintiff No: 09-6741 Civil Term V. UNITED CHURCH O CHRIST HOHOMES, JURY TRIAL DEMANDED INC., d/b/a THORN Defendant FULL AND FINAL RELEASE IN CONSIDERATION of the sum of eighty the undersign d does FOR AND acknowledged, Dollars paid to the undersigned, receipt of which is hereby d/b/a Thornwald Home, fully release and discharge United Church of Christ Home srnmental entities, associates and Columbia Casualty Company, and all other persons, go whether or not named herein, their heirs, executors, administrators, attorneys (here n corporations agents, servants and employees successors, assigns and insurers, and their resfromvany gand all causes of action, claims and after collectively referred to as "R unt of own injuries, losses and damages an for sole demands of whatsoever kind on acc f any claims way allegedly sustained by the undersigned, and specifically, unknown indemnity or otherwise as a result of, arising from, or about Ta lor's admission/residence at Thornwald Home, 0, 2007oand/or care liability, contribution, connected with Joan Y August 14, 2002 and through the e of her death on or about o a d admission/residence, and on account of whi County, and treatment rendered her during ree that the acceptance of tion was instituted by t the unde dersigned in the Court derstand and agree Pleas of Cumberland Ac Docket No: 2009-CV-6741. The undersigned does payment of said sum is said sum is in full accord and satisfaction of a hertenclaim and that the pay not an admission of liability by any party named understood and agreed that this release and aseettlee settlement ded 2, It is expressly but any to cover and does cover not only all now known injries, deat, from, r are related tohthe occurrences set forth in the further losses and/or damages which arise Legal Action noted above. The undersigned hereby declares and represents that the i jiu lies and/or therefrom uncertain and harms 3' nt and progressive and that recovery sustained may be pd?anthis Release it is understood and agreed that the undersigned relies on of 1 indefinite, and in making extent and d wholly upon own judgment, belief and knowledge of the naturext nt whatever inlmaking this her injuries and/or harms, and that she has not been influenced sad to any or regarding any other Release by any representations or statements regarding injuries, the persons, firms or corporations who are hereby released, or by any person or or surgeon employed and/or engaged by them. matters, made by P persons representing them, or by any physician a Wrongful Execution of this Release, the undersigned rtrequest oevenue and 4. Following lvanla Department sy Action Approval Letter from the Penn C a roval of the settlement pursuant to Pa.R..Pas2; 0 d sccontinuing his case, De i with petition the Court for pp Cum County, Docket No: 2009-CV-6741, is approved by the court, the undersig f will filed in the Court of Common Pleas settlement. prejudice, and without mention of any The undersigned hereby agrees, on her behalf and on behalf of her heirs, 5. an and all valid liens that have been asserted medical benefits or other executors, successor o?may be asserted for reimbursement of any e me cal claim in the Legal and/or which could b s d party as a result of injuries benefits provided to the undersigned by a thir on her behalf and on Action referenced herein. Additionally, the undersigned hereby agrees, behalf of her heirs, executors, successors and/or assigns, to indemnify and save forever harmless and against any and all claims, demands or actions, the Releasees named this , document expenses and attorneys fees, known or unknown, made against the including for litigation costs, manner related to or arising from the Releasees by any person or entity on account of, or in any pa er Act and/or CHIP are Second Legal Action noted above. In accordance with the rvedic) have been specifically taken into law, the interests of CMS (Centers for Medicare account. 6. It is further understood and agreed that this is the complete Release agreement, and that there directly are no written or oral understandings or agreements, Release shall be binding upon This connected with this Release, that are not incorporated herein. T and inure to the successors, assigns, heirs, executors, administrators, and legal representatives of the respective parties hereto. the undersigned, is further understood and agreed and made part hereof, ,tthh their attorneys shall er family ?• and It representatives and his attorneY(sas well as the Release aspect of this case or settlement to any member not comment, either directly or indirectly, or an cause to be publicized in any news or of the news media, or in any way p az. es, journals, radio, communications media, including but not limited to newspapers, a facts of this case, the television on-line computer systems terms and condt onslof this settlement. Moreover their existence of this settlement and the , the person or entity acting on their respective behalf or o parties to this Release, nor any publish, or cause to be made, or respective benefit, shall not, directly or indirectly, make, ordemeaning and/or disparaging nature published, any statements, oral or written, of a derogatory, generating business or injuring the regarding any other party to this Release for the purposes oo other party this Release. The reputation and/or professional or personal standing of any th to the confidentiality of this parties agree that the consideration for each party agreement of the other(s) and it is the best interest of all parties to settlement and as to non part es that it is believed to consent and acknowledged by all the part mutually abide by the terms of this confidentiality/non-disparagement provision. Parties other(s) as compensation for, or in consideration of, the paid no monies or compensation to the -disparagement provision as a term of this settlement. inclusion of this confidentiality/non-disparagement is to be construed and interpreted in accordance with the laws of the g, This Release Commonwealth of Pennsylvania. DERSIGNED HEREBY 9• THE ? DECLARE that othe f this settlement settlement legal have been completely read; and that they have understood discussed the erstood and terms voluntarily and accepted all for claims the terms are counsel of their choi full and fu al compromise adjustment and settlement of s press purpose of purpose of making a es above-mentioned, and for addax al suits arising out of the aforesaid claims. on account of the injuries er and precluding forever any hereunto set our hand and seal this' day of N\at IN WITNESS WHEREOF, we have 2011. _ SEAL Michelle Coxen Glover Social Security Number SWORN to and subscribed before me 011 S t Day of_ Notary Public HLEEN A. CUNNINGHAM NOTARY PUBLIC state of Maine w Expires ommissior "?r;,,s,?r ? 7012 05l690474.vI ?Bi Kelly, Parker & Cohen 5425Jonestown Suite 103 Harrisburg, PA 17112 Telephone: 717-920-2220 LLP Facsimile: 717-920-2370 April 7, 2011 Michelle Coxen-Glover 64 Eastwood Lane Smithfield, ME 04978 RE: Coxen-Glover V. Thornwald Home - CONTINGENCY For professional services rendered through: March 31, 2011 TIMEKEEPER SUMMARY DISBURSEMENTS Feb-10-09 Feb-17-09 May-13-09 May-31-09 Jun-30-09 Jun-30-09 Jul-01-09 Jul-16-09 Oct-07-09 Oct-07-09 Oct-09-09 Oct-27-09 Oct-30-09 Oct-30-09 Mar-31-10 Mar-31-10 Apr-30-10 Apr-30-10 May-03-10 Jun-30-10 Jun-30-10 Jul-31-10 Jul-31-10 Aug-31-10 Aug-31-10 Sep-30-10 Sep-30-10 Document costs /death cert Filing Fee -Estate Outside printing /Taylor, Ann/UCCH Copying 980 @ 0.10 Copying 949 @ 0.10 Postage Outside professionals -TASA Gp Medical Records -Thornwald Filing Fee Service Costs-Writ Medical Records/Carlisle RegMC Service Costs-Refund Copying 25 @ 0.10 Postage Copying 69 @ 0.10 Postage Copying 101 @ 0.10 Postage Overnight Mail Copying 860 @ 0.10 Postage Copying 12 @ 0.10 Postage Copying 90 @ 0.10 Postage Copying 137 @ 0.10 Postage Tax ID #: File #: Inv #: 17.00 78.00 378.80 98.00 94.90 9.90 1,600.00 70.88 78.50 100.00 173.61 -66.16 2.50 9.47 6.90 6.04 10.10 3.46 15.73 86.00 14.23 1.20 2.10 9.00 7.60 13.70 10.41 20-8803210 0001-0439 Draft . 2 Invoice #: Draft File #: 0001-0439 2.60 Dec-31-10 Copying 26 @ 0.10 3.50 Dec-31-10 Postage Experts-Outside Professional -brothertrace 75.00 13.34 Jan-17-11 Jan-18-11 Postage /registeredmail 0.44 Jan-31-11 Postage $2,926.75 Total Disbursements TOTAL FEE & DISBURSEMENTS BALANCE NOW DUE $2,926.75 $2,926.75 PAYMENTS iko "61?< 9 oole KELLY, PARKER & C®HEN LLP ATTORNEYS AT LAW COMMERCE TOWERS - l OT" FLOOR 300 NORTH SECOND STREET, HARRISBURG, PA 17101 TELEPHONE (717) 920-2220 FACSIMILE (717) 920-2370 Lee S. Cohen Extension 116 lcohen@kpc-laW.com October 31, 2008 Michelle Coxen-Glover 64 Eastwood Lane Smithfield, ME 04978 Re: Engagement Letter Dear Ms. Coxen-Glover: legal couns l to We are pleased that you have selected Kelly, Parke a rix of the Estate of Jo V eTaylor advise and represent you both individually and as Admints with regards to Ms. Taylor's residency at Thornwald Honentlincludes e possible rvices lawsuit upon up to and the care she received. This engagement letter and agree arbitration. Any and all appeals including a final decision by a court of common pleas, or by shall be covered by a separate engagement agreement. Our fees will be based on the recovery received from o wl nt me o %) of all affiliated or related individuals or entities. Our fee is thirty-three and one-third percent or bench) or amounts received unless we are required tosustantiiallly prepar?afor trriae O rY or bent ) or or ail nearing, then cur fee ??ili be forty percen (40`,0). received is in a form other than a monetary amount, then the fee will include the fair value of that compensation. resol If you decide to terminate our representation before this matter eepay forved, either through settlement or final decision by a court of common pleas, you agree to our services based on the time spent and the regular hourly rratefr f each attorney person and areal performing services on your behalf. The hourly rates vary person adjusted periodically (usually in January each year).We i l b glad to provide peou withg work schedule of rates presently in effect for the lawyers and paralegals Michelle Coxen-Glover October 31, 2008 Page 2 for you if you so desire. The work on these matters will mainly bee hh dled by me at my hourly per rate of $190. I may be assisted by a paralegal whose rate is $95 yowill ur ou will receive a statement each month reflecting work m de or incurred We y ocket expenses include in our statements disbursements and out-of-p These expenses typically include such items as obtaining telechonedcallsslma ling records, behalf. expert fees, document reproduction, travel expenses, long distance er services, the cost of depositions or q charges, necessary secretarial overtime, messengfiling few ill be re uired to yr)u other transcr pts of testimony, and otbt-1 r- Y?F rt ;es cif ljl. _;, Iiorl. d, wi imburse us for these amounts from any recovery obtained or, if nitre or. ery is obtaine thirty re you de iat i Should thirty days of a final decision by a court of common pleas re u? ed to reimburse us for these amounts q terminate our representation before that time, you over and above $500, we will obtain within thirty days of such action. Before incurring expenses your approval. iptions Our statements will be accompanied by detailed reports including pe descring the services. services performed, the time incurred and the identity of the personnel Bec and ause this is a contingency case, our statements are only for o vie of this will identify the amount owed to date if our services are terminated before the completion We are happy to discuss our statements at any time and will welcome the opportunity to address any questions you may have. Further, as we discussed, prior to initiating an action,we avid nurse s. T tlor's fella Thornwald Home chart and have the same reviewed by a do standard of care required nurse to ilnform us in Certificate of Merit. In other words, as we discussed, we need a doctor and writing that the care received by Ms. Taylor was below the Pennsylvania and that the lack of proper care caused Ms. Taylor's ,inj Gies and death. W t uua a Certificate of Merit, under Pennsylvania lluies of Llvli r'r re we suit. Si and nurse we not be able to obtain the required Certificate of Melexpenses we made on you will be required to reimburse us for all disbursements and out-of-pocket your behalf within 30 days of our notifying you of the same. If these arrangements are acceptable, please indicate your approval on the enclosed copy of this letter and return it to us. Michelle Coxen-Glover October 31, 2008 Page 3 We very much appreciate the opportunity to serve you. Very truly yours, Lee S. Cohen LSC/plr Fnc-losur? The above billing procedure is acceptable. ? ? , ? ? ? ?: << `1 Yore Michelle Coxen-Glover Dated:' C?h"6 iT Afil? 7er MSPRC 0 C"S/ C. MRS&MEPICAR66MfalcuoSmus 0 Learn about your letter at www. msprc. info PLEASE REFRAIN FROM MAKING PAYMENT AT THIS TIME 10445 1 FP 0.414 12/11/2009 ***MIXED AADC 720- R:10445 T:40 P:50 PC:2 F:45001 LEE COHEN 5425 JONESTOWN RD STE 103 HARRISBURG PA 17112 4 0 ??-0 F O 1 ?0 0 P RE: Name of Beneficiary. TAYLOR, JOAN V 0 HIC#: 202201296A o Date of Injury/Illness/Incident: 11/04/2007 5 I 4 4 4 Dear ESTATE OF JOAN V TAYLOR: Please note that, if we know that you have an attorney or other individual representing you in this matter, we are sending him/her a copy of this letter. If you have an attorney or other representative for this matter and his/her name is not shown as a "cc" at the end of this letter (indicating that he/she is receiving a copy), please contact us immediately. If you have any questions regarding this letter and are represented by an attorney or other person in this matter, you may wish to talk to your representative before contacting us. This letter follows a previous letter notifying you/your attorney of Medicare's priority right of recovery as defined under the Medicare Secondary Payer provisions. Because you were involved in an automobile, slip and fall, medical malpractice, or some other type of liability claim, the medical expenses are subject to reimbursement to Medicare from proceeds received pursuant to a third parry liability settlement, award, judgment, or recovery. RCLCPI However, we request that you/your attorney refrain from sending any monies to Medicare prior to submission of settlement information and receipt of a demand/recovery calculation letter from our office. This will eliminate underpayments, overpayments, and/or associated delays. Currently, Medicare has paid $598.85 in conditional payments related to your claim. Attached you/your attorney will find a listing of claims that comprise this total. Please take a look at this listing and let us know if you/your attorney disagree with the inclusion of any claim in whole or in part and explain the reasons why you/your attorney disagree(s). Please be advised that we are still investigating this case file to obtain any other outstanding Medicare conditional payments. Therefore, the enclosed listing of current conditional payments (including a response of a zero amount) is not a final listing and will need to be updated once we receive final settlement information from you. It would be in your best interest to keep Medicare's payments and the statutory obligation to satisfy Medicare in mind when the final dollar amount is negotiated and accepted in resolution of the claim with the third party. If the case has settled, please furnish our office with a copy of. 1) The settlement agreement from the third party payer showing the total amount of the settlement, signed and dated, AND 2) Your closing statement reflecting the actual amount of the attorney's fees and costs (excluding medical bills). Thank you for your assistance and cooperation in this matter. If you have any questions regarding this matter, please contact us at 1-866-677-7220 (TTY/TDD: 1-866-677-7294 for the hearing and speech impaired). Sincerely, Medicare Secondary Payer Recovery Contractor PO BOX 33828 DETROIT MI 48232-5828 Enclosures: Payment Summary Form cc: LEE COHEN SGLLCPNGHP RCLCP2 00 O F 3 0 P o ? 0 6 a j +- 4 NNW 4 0 1 J OD co co N N r Cl) U O '40 0) v co O to zZ to 0)0) n 0) m 0) 8 O w r EA r N N Ex 60. W /H o Z a in ?oj } \ r U O m N N m lfl O $ p? H f0 v O o) et m O to o cOo N ? O to 0)0) n ? 0) m 0) '.' N• F- . - M N fA cfl T N tR N Q 0) ?-+ w D Z N v+ W th w 1 p? F N . Z A °'' co o0 0 0 0 0 0 w w in to w H m q N n w co to O Q Q Q N O [t co N m N r co U U ? J w l0 w w r» to fR t- 0 .4 60 ?x 8 88 8 8 8 8 8 w O O O O O 00 O O O 8 8 °8 S $ S N N C4 S O 0 O U U O O n F O O O O 00 0 T LL r r r r r r r r •n ° U Q O OD 0) 0) OD y w N w N O if) U) in in cj 8 Z C4 14 C4 C4 m T co mm o mm OD mm N m r- Q O DW n n n n O D l 7mCD G Z H m N U) of to 0 a a w ° ° 0 O C7 U ) Q Q Q Q J w z H H N H w ? G J Q ? O D O ?-+ 0w w () °7 >Z>Z>z>za "m ~ ~ ~ U N O O O O • O ?Z rtw -tn xr xr xr xr ? ? a C oz zV)ztnxtn$V)J p/ Q J m Q O > U> U> U> U w ° U4 wJix Jv) >Ln> tn>w>x a W o Z0 U ra (~j O w C4 (D (D (D tv (D (D (D (( ?? N 00 OD 00 Go ca 00 co C Ic) O a 0 F4 a > s w a a Z p r r .- r N m O m J a a • m N O ° N n O J N 0) 0) m W a' L ' v W " > ~ N N O Tv O v q Nr v ' Cl) m m 0 Z 0) 0 m m 0 OD l Q a z V ) m0) n n n n C + U w z )n N N w to w w N . a 2 U O- m Cl) Cl) m Cl) m m La Z o o o r- O O O 00 >- > Cl) to c0 r r n1 r r r N n Q tr Q H co OD 00 00 00 OD co U U N )...? a Q ~ LL ~ U. Q f" 0 rr - r r r r o w w w v n n n n a w w p j p a U m in In ro m ao 0 . v+ a It 009 N2 ? z V) Q wa ix J UO M J F- Q M HO N O U LL OJ Q 70 0) F_ LL U M EL U) m 4 xwr6l ?i r v r V AUG. 19. 2009 10 ;17AM COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE BUREAU OF FINANCIAL OPERATIONS DIVISION OF THIRD PARTY LIABILITY CASUALTY UNIT P,O,BOX 9496 HARRISBURG. PA 17106.8496 August 19, 2009 KELLY PARKER & COHEN LLP LEE 5 COHEN ESQUIRE COMMERCE TOWERS 10 FLOOR 300 N SECOND ST HARRISBURG PA 17101 Re: JOAN TAYLOR CIS #: 520190055 Incident Date; 11/04/2007 Dear Attorney Cohen: pursuant to your request for a statement of claim, the Department of Public Welfare, Third Party Liability, Casualty Unit, has reviewed the information you provided regarding the above-referenced incident. It has been determined that DPW has no medical and/or cash assistance claim for the personal injury action. If you have any questions, please feel free to contact me. Sincerely, Barbara I. Aschenbrenner TPL Program Investigator 717772-6617 717-772-6553 FAX ?x?$? :t pennsylvania DEPARTMENT OF REVENUE March 9, 2011 Lee S. Cohen, Esquire Kelly, Parker, & Cohen, LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 Dear Mr. Cohen: I Re: Estate of Joan V. Taylor File Number 2109-0169 Court of Common Pleas Cumberland County The Department of Revenue has received the Petition for Approval of Settlement Claim to be filed on behalf of the above-referenced Estate in regard to a wrongful death and survival action. It has been forwarded to this Bureau for the Commonwealth's approval of the allocation of the proceeds paid to settle the actions. Pursuant to the Petition, the 78 year old decedent died as a result of negligence. Decedent is survived by her two adult children. Please be advised that, based upon these facts and for inheritance tax purposes only, this Department has no objection to the proposed allocation of the gross proceeds of this action, $40,000.00 to the wrongful death claim and $ 40,000.00 to the survival claim. Proceeds of a survival action are an asset included in the decedent's estate and are subject to the imposition of Pennsylvania inheritance tax. 42 (Pat Cmwlth. 1995}.percentages as the 6fees must e 69 A.2d 1059deduced Pa.C.S.A. §8302; 72 P. ?§ elE late of Me Costs and proceeds are allocated. 1 trust that this letter is a sufficient representation of the Department's position on this matter. As the Department has no objections to the Petition, an attorney from the Department of Revenue will not be attending any hearing regarding it. Please contact me if you or the Court has any questions or requires anything additional from this Bureau. Ion , E. Baker Trust Valuation Specialist Inheritance Tax Division of Individual Taxes I PO Box 280601 1 Harrisburg, PA 17128 1 717.783.5824 1 shabaker@state.pa.us Bureau N, C AUG. 19. 2009 10:27AM COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE BUREAU OF FINANCIAL OPERATIONS DIVISION OF THIRD PARTY LIA82'Ty ESTATE RECOVER BOX 8Y PRpGRAM MARRISBURG, PA 17705.8480 August 19, 2009 KELLY PARKER & COHEN LLP LEE S COHEN ESQUIRE COMMERCE TOWERS 10 FLOOR 300 N SECOND ST HARRISBURG PA 17101 Re: JOAN TAYLOR CIS #: 520190055 SSN: 202-20-1296 Date of Death: 11/30/2007 Dear Attorney Cohen: welfare maintains a Please be advised that 94e 2 De artmettthe abovecmeritioned estate. This claim in the amount of $_.,?_ ranted on behalf of the the t claim is for restitution of medical assistance g decedent for which the Probate Es62atPe$is1ow reffectibleAugust1l?5?'r 1994, as Department according t Act 49, amended by Act 20-95, effective June 30, 1995. Enclosed is the Department's itemized statement of claim. A portion of this medical expense, namely $2310 •9?1 was incurred therefore, it is a Class 3 during the last six months of the decedent's life; claim pursuant to section 3392 of the Decedents, Estates, and Fi 9cia ies is Code, 20 Pa. C.S.A• 3392(3) The balance of the claim, namely $ to be entered as a priority Class 5.1 claim against the estate- Please acknowledge receipt of this letter and advise whether the the Commonwealth's claim is admitted and when py e a copy- be expected. estate If the contains estate accounting is complete, please provide real estate, please pzovide copies of the deed, the latest tax assessment, and a current appraisal, if available. Sincerely, Barbara I. Aschenbrenner 'APL Program Investigator 717-772-6617 717-772-6553 FAX Enclosure AUG. 19. 2009 10:28AM COMMONWEALTH OF PENNSYLVANIA D6PARWENT OF PUBLIC WELFARE BUREAU OF FINANCIAL OPERATIONS TPL SECTION - CASUALTY UNIT PO BOX 84N HARRISBURG PA IM64`166 August 18, 2009 S i ATpMENT OF CLAIM SUMMARY Estes TAYLOR, JOAN 520190056 I1 ,' .00 .00 .00 INPATIENT 00 00 .00 . OUTPATIENT 233.34 49 72,245.86 LONG TERM GARS 23,012.52 , 21.45 26-91 48.36 DRUG 23,033.97 49,260.25 72,294.22 1 ;`e %+ fi?Ftl4? 1Y1? +L i,! FPO '' v,q 11? ' rAUG. 19. 2009_ i 0 28 T14ORNWALD HOME 442 WALNUT BOTTOM RD ANl94 ` (JmmQNW .L:Tk9 August 18, 2009 STATEMENT OF CLAIM TAYLOR,JQAN E 520190 055 77 .' IRLISLE PA 17013 ; • rr ' AL! ` f • ;; ,,,, ,•,, ?;,' ,,;F ,14'jUi " ' ?xl?}' t;;l??N ;?•: ,::•' ' !.??a,1?i??q???;:;' ; ,, " •' 4,905.30 06101106 - 06190106 01101107 20063384026340001 20063384026340001 DIAGNOSIS 1: 25090 DIAB WIUNSPEC COMPUCA710N, TYPE II OR U DIAGNOSIS 2: 0 PROC CODE : 000000 07101106 - 07131106 DIAGNOSIS 1 : 25090 DIAGNOSIS 2: 0 PROC CODE : 000000 08/01106 • 08/31106 DIAGNOSIS 1 : 25090 DIAGNOSIS 2: 0 PROC CODE : 000000 Oy101106 - 09130106 DIAGNOSIS 1 . 25090 DIAGNOSIS 2: 0 PROC CODE : 000000 10101106 - 10!31106 DIAGNOSIS 1 : 25090 DIAGNOSIS 2: 0 PROC CODE : 000000 11/01/06 - 11130/06 DIAGNOSIS 1: 25090 DIAGNOSIS 2: 0 PROC CODE : 000000 12101106 - 12/31106 DIAGNOSIS 1: 25090 DIAGNOSIS 2'. 0 PROC CODE : 000000 04116107 55071034577100001 55071034577100001 DIAB WIUNSPEC COMPLICATION, TYPE II OR U 04116107 55071034577110001 55071034577110001 DIAB WIUNSPEC COMPLICATION, TYPE It OR U 04116107 55071034577090001 55071034577090001 DIAB WIUNSPEC COMPLICATION, TYPE II OR U 04123107 55071085099120001 55071085099120001 DIAB WIUNSPEC COMPLICATION, TYPE 11 OR U 04123107 55071085099110001 $5071085099110001 DIAB WIUNSPEC COMPLICATION, TYPE 11 OR U 04123107 55071085099600001 55071085099600001 pIAB WIUNSPEC COMPLICATION, TYPE It OIL U 5,068,81 5,068.61 4,905.30 4,842.59 4,905.30 5,068.81 5,06E.81 01101107 - 01/31107 04130/07 55071154953200001 55071154953200001 DIAGNOSIS 1 : 25090 DIAB WIUNSPEC COMPLICATION, TYPE 11 OR U DIAGNOSIS 2: 0 PROC CODE : 000000 3,854.5$ 4,187.66 4,187.66 4,018.63 3,878.10 3,933.48 4,099.62 4,509,75 AUG. 19. 2009-10 28AM 1iJvi?E>?ti?H,?SV?P Dump F August 18, 2009 STATEMENT OF CLAIM tETAYLOR, JOAN 190 055 THORNWALD NOME 442 WALNUT BOTTOM RD CARLISLE PA 17D13 t,• i0s?i„ ,y ?,,,; ?,+;,+, a?jrt +•,, ??t?„r ,Ittpr ??'?? 1„t'CT 021o1107 - 02128107 DIAGNOSIS 1 : 25090 DIAGNOSIS 2; 0 PROC COD2 : 000000 03101107 - 03131107 DIAGNOSIS 1 : 25090 DIAGNOSIS 2: 0 PROC CODE : 000000 04101107 - 04130107 DIAGNOSIS 1 : 25090 DIAGNOSIS 2: 0 PROC CODE : 000000 05101107 - 05131/07 DIAGNOSIS 1: 8970 DIAGNOSIS 2: 0 PROC CODE : 000000 ofi/01107 - 06130/07 DIAGNOSIS 1: 8970 DIAGNOSIS 2: 0 PROC CODE : 000000 07/0'1/07 - 07/31/07 DIAGNOSIS 1 : 8970 DIAGNOSIS 2 : 0 PROC CODE : 000000 08/01107 - 06/31107 DIAGNOSIS 1 : 8970 DIAGNOSIS 2: 0 PROC CODE : 000000 09/01/07 - 09130/07 DIAGNOSIS 1 : 8970 DIAGNOSIS 2: 0 PROC CODE : 000000 04130107 56071154953500001 55071154953500001 DIA13 W]UNSPEC COMPLICATION, TYPE 11 OR U 05/07107 56071150020420001 55071160020420001 DIAB W/UNSPEC COMPLICATION, TYPE 11 OR U 06104107 20071310000930001 20071310000930001 DIAB WIUNSPEC COMPLICATION, TYPE 11 OR U 4,360.26 3,737.4$ 5,068.81 5,154.60 4,514.75 4,069.68 07116107 20071724027750001 20071724027750001 5,326.42 4,241.70 AMPUT BELOW KNEE, UNILAT 08106107 20071924022000001 20071924022000001 5,154.60 4,069.88 AMPUT BELOW KNEE, UNILAT 10122107 $5072904339650001 55072904339650001 5,326.42 4,442.93 AMPUT BELOW KNEF- UNILAT 10122107 55072904332670001 85072904339670001 5,326.42 4,473.93 AMPUT BELOW KNEE, UNILAT 10129/07 $5072904339690001 55072904339690001 5,154.60 4,264.78 AMPUT BELOW KNEE, UNILAT rAUG. 19. 2009-1, 0.28AM - dp August 18, 2009 STATEMENT OF CLAIM P?l TAYLOR, JOAN 520 190 055 JI THORNWALD HOME 442 WALNUT BOTTOM RD CARLISLE PA 17013 b,` R}llttl? ;;?lbdl[;Rl 10101/07 - 10131107 12103107 20073104029590001 20073104029590001 DIAGNOSIS 1' 8970 AMPUT BELOW KNEE, UNILAT DIAGNOSIS 2: 0 PROC CODE ; 000000 11101107 - 11/30107 03103108 20060360000910001 20080360000910001 DIAGNOSIS 1: 8970 AMPUT BELOW KNEE, UNILAT DIAGNOSIS 2; 0 PROC CODE : 000000 "4 ` j? r? S/ID ?u. TA, THORNWALD HOME 03 100755529 0006 5,807.65 4,500.59 2,287.00 1,260.41 88,794.51 1 72,245.86 n Cn AUG. 19. 2 0 0 9,10: 8 N"IL ; , , • Nl?Wt 'O>? pascrrA1??A August 18, 2009 STATEMENT OF CLAIM p1,ME'` TAYLOR, JOAN ID ;;;; 520190 055 MILLENNIUM PHARMACY SYSTEMS INC 2250 MILLENIUM WAY STE 300 ENOLA PA ,?1R HAt' ' 'lllAL, 1k Ct ` WW • CSF'{k?Ita? ''I?prtN`iDATf'};, .f(G??f,CRI„i;; f4ii';bAL t . G 5 '; A . 03131107 03131107 04130107 25070835716350001 4.12 25070935716350001 4.09 DIAGNOSIS 1 : 0 00182402810 FERROUS SULFATE 325 MG TAB - HEMATINICS & 13LOOD CELL STIMULATORS NDC CODE : 04/30/07 - 04130107 05128107 26071245467470001 4.33 25071245467470001 4-26 DIAGNOSIS 1 : 0 00182402810 FERROUS SULFATE 320 MG TAB - HEMATINICS & BLOOD CELL STIMULATORS NDC CODE : 05131/07 - 05131107 07102!07 25071575378870001 4.34 20071575378870001 4-29 DIAGNOSIS 1 : 0 NDC CODE : 00182402810 FERROUS SULFATE 325 MG TAB HEMATINICS & BLOOD CELL STIMULATORS 06130107 - 05130107 07130107 25071875647010001 25071875547010001 4.33 4.28 DIAGNOSIS 1 : 0 NDC CODE : 00182402810 FERROUS SULFATE 325 MG TAB - HEMATINICS & BLOOD CELL STIMULATORS 07131/07 - 07131107 08127107 25072155621310001 4.34 25072155621310001 4.29 DIAGNOSIS 1 : 0 NDC CODE : 00182402810 FERROUS SULFATE 325 MG TAB - HEMATINICS & BLOOD CELL STIMULATORS 08131/07 - 08131/07 10101107 25072505274940001 4.34 25072505274940007 4.29 DIAGNOSIS 1; 0 NDC CODE : 00182402810 FERROUS SULFATI= 325 MG TAB - HEMATINICS & BLOOD CELL STIMULATORS 09130/07 - 08130107 12/03107 25073105581450001 25073105081450001 4.33 4.28 DIAGNOSIS i : 0 NDC CODE : 00182402810 FERROUS SULFATE 325 MG TAB - HEMATINICS & BLOOD CELL STIMULATORS 10131/07 - 10131107 12103107 25073105583310001 25073105583310001 4-34 4.29 DIAGNOSIS 1 : 0 NDC CODE : 00182402810 FERROUS SULFATE 325 MG TAB - HEMATINICS & BLOOD CELL STIMULATORS , AUG. 19, 2009-10 28A- Yt,VCir „h. ?i Vull?hpt?vY 14 OF IA ,t' ',,, k3?'A?2T,MIr1?JT!d? F!t7Bl;,lt?'??LI:?B' ? August 18, 2009 STATEMENT OF CLAIM TAYLOR, JOAN 520 190 055 MILLENNIUM PHARMACY SYSTEMS INC 2250 MILLENIUM WAY STE 300 ENOLA PA 17025 , PV.El it ', ?tj }, .,',• ' ?„ ;1 :i'IJS L''?'t 'p+YM"T Dl+d?C?IIAL'?{,H LjJ(?,r?W3 a ,• 11126107 _ 11120107 01128108 25080035824030001 25080035824030001 .02 .02 DIAGNOSIS 1; 0 NDC CODE 00182402810 FERROUS SULFATE 325 MG TA13 - HEMATINICS & BLOOD CELL STIMULATORS MILLENNIUM PHARMACY SYSTEMS INC 34.49 34.11 24 001887261 0002 UG. 19. 2009_1 U : 28AM 1•n nnn r 1 (1 ,??-- c1aNi hti .7H F P N$rL?(t Ni t? ?ARTjALr+IT, OF pL(gLIC ?V?,?;;t??ktE ? :,, u ' August 18, 2009 STATEMI=NT OF CLAIM ik TAYLOR. JOAN PHARMERICA 1 ooo CLARt:MONT RD ARLISLE PA 17013 11±i11f4L dHh;I'kfit? ' , 12114106 - 121'14106 12124107 27073295220030001 27073295220030001 1.35 DIAGNOSIS 1 : o NDC CODE : 00182402810 FERROUS SULFATE 325 MG TAB - HEMATINICS & BLOOD CELL, STIMULATORS 01104107 - 01104107 12124107 27073295220050001 27073295220050001 1.35 DIAGNOSIS 1 : 0 NDC CODE : 00182402810 FERROUS SUI.FATE 325 MG TAB - HEMATINICS & BLOOD CELL STIMULATORS 01/25107 - 01125107 08106107 25071935226530001 25071935226530001 .35 WAGNOSIS 1 : 0 NDC CODE : 00182402810 FERROUS SULFATE 325 MG TAB - HEMM INICS & BLOOD CELL STIMULATORS 01127107 - 01127/07 08106!07 25071925223780001 25071925223780001 10.20 DIAGNOSIS 1 : 0 NDC CODE: 00003325105 ALOE VESTA 2-N-1 ANTIFUNGAL - FUNGICIDES 02119107 - 02/19107 11119107 27072975220730001 27072975220730001 3.00 DIAGNOSIS 1: 0 NDC CODE : 00713016512 ACEPHEN 650 MG $UPPOSITORY - NON-NARCOTIC ANALGESICS 00 y PHARMERICA INC WOOD 1; 6066 6 ' 1'I1 ti ?: 16.25 , , , r ; 24 100751181 0013 .35 .35 .35 10.20 3,00 14.25 I ./ I . /r 4ktp ? MICHELLE COXEN GLOVER, Administratrix of the Estate of Joan Taylor, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. • No. 09-6741 Civil Term UNITED CHURCH OF CHRIST HOMES INC., d/b/a THORNWALD HD ME fendant JURY TRIAL DEMANDED VERIFICATION I, Michelle Coxen Glover, Administratrix of the Estate of Joan Taylor, Deceased, verify that I am the Plaintiff in the foregoing action and I, Michelle Coxen Glover, verify that the facts set forth in the foregoing plaintiff s petition for Approval of Settlement and Distribution of Funds are true and correct to the best of my knowledge, information and belief. I acknowledge that the Petition requests distribution of $26,666 to Lee S. Cohen, Esquire, for attorney's fees. I further acknowledge that the Petition requests distribution of $2,926.75 for litigation costs. I approve, in all respects, this proposed distribution and approve of, and consent to, the foregoing Petition in its entirety. I respectfully request this Honorable Court approve the foregoing Petition. I understand that I am subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unworn falsifications to authorities for any false statement made in the foregoing Verification. Dated: o a a„? Michelle Coxen Glover, Admmistratrix of the Estate of Joan Taylor, Deceased Dated: 4.4 - i l Michelle Coxen Glover CERTIFICATE OF SERVICE On this 8t" day of April 2011, I, Wanda L. Hoffman, a paralegal with the law firm of Kelly, Parker & Cohen LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing PETITION FOR APPROVAL OF SETTLEMENT AND DISTRIBUTION OF FUNDS upon the person(s) and at the address(es) below named by United States First Class Mail, postage prepaid in Harrisburg, PA: Craig A. Stone, Esquire Michael C. Mongiello, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 anda L. Hof MICHELLE COXEN GLOVER, Administratrix of the Estate of Joan Taylor, Deceased, Plaintiff V. UNITED CHURCH OF CHRIST HOMES INC., d/b/a THORNWALD HOME Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . r CIVIL ACTION - LAW a -+ m m r-n "v No. 09-6741 Civil Term z may} w 7Q ° JURY TRIAL DEMANDED o c CD C W ? N rri i T _ ORDER °-+ ° _ AND NOW, this 13' day of Z9ro r ) , 2011, upon consideration of the attached Petition for Approval of Settlement of wrongful death and survival action: It is ORDERED that settlement of the above-captioned action for the gross sum of $80,000 is approved, to be allocated fifty percent to the wrongful death action and fifty percent to the survival action. It is also ORDERED that the settlement proceeds shall be distributed as follows: TOTAL RECEIPTS: $80,000 SURVIVAL ACTION $40,000 to Kelly, Parker & Cohen LLP $14,796.71 fifty percent of counsel fees ($13,333.33) fifty percent of costs expended ($1,463.38) to Estate of Joan Taylor, $24,604.44 to Kelly, Parker & Cohen LLP escrow account $598.85 (to pay Medicare lien) WRONGFUL DEATH $40,000 to Kelly, Parker & Cohen LLP $14,796.71 fifty percent of counsel fees ($13,333.33) fifty percent of costs expended ($1,463.38) to Michelle Coxen-Glover $12,601.65 to John C. Brown $12,601.64 IT IS FURTHER ORDERED upon receipt of the Survival Action proceeds, the personal representative of the Estate of Joan Taylor shall promptly file a supplemental inventory and inheritance tax return with the Register of Wills of Cumberland County. BY THE COURT: DISTRIBUTION: '/Craig A. Stone, Esquire, and Michael C. Mongiello, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112 Lee S. Cohen, Esquire, Kelly, Parker & Cohen LLP, 5425 Jonestown Road, Suite 103, Harrisburg, PA 17112 x('131 f 1 ? Q 2 Lee S. Cohen PA ID No. 89278 Anthony W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 lscohen ,kpc-1aw.com aparker@kpc-1aw.com OWN MICHELLE COXEN GLOVER, Administratrix of the Estate of Joan Taylor, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. UNITED CHURCH OF CHRIST HOMES INC., d/b/a THORNWALD HOME : No. 09-6741 Civil Term Defendant JURY TRIAL DEMANDED PRAECIPE TO MARK DISCONTINUED AND ENDED TO THE PROTHONOTARY: Please mark the above-captioned matter discontinued and ended. L e f. Cohen Attorney ID 89278 Kelly, Parker & Cohen LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 570-345-8917 lcohengkpc-1aw.com Attorneys for Plaintiff Dated: May 4, 2011 CERTIFICATE OF SERVICE On this 4`" day of May, 2011, I, Wanda L. Hoffinan, a paralegal with the law firm of Kelly, Parker & Cohen LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing PRAECIPE TO MARK DISCONTINUED AND ENDED upon the person(s) and at the address(es) below named by United States First Class Mail, postage prepaid in Harrisburg, PA: Craig A. Stone, Esquire Michael C. Mongiello, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 A //III?w ale (,? Wanda L. Hoffinan