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Home My WebLink About10-3037CHRISTIAN A. HESS, Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 10 - 3D3'l C?v i l l er'm JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: C.J Please execute the attached Writ of Summons against Defendant, DIAKON LUTHERAN SOCIAL MINISTRIES. Respectfully submitted, METTE, EVANS & WOODSIDE Date: May 6, 2010 By: F. Y ne , Esquire uC p. I.D. No. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone Attorneys for Plaintiff $q g.. co PA AIW cry 99528 e ay ?'k5a CHRISTIAN A. HESS, Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. ID - 3031 l,ivi I lpJc'rM? CIVIL ACTION - LAW JURY TRIAL DEMANDED WRIT OF SUMMONS TO: Diakon Lutheran Social Ministries 920 Century Drive Mechanicsburg, PA 17055 You are hereby notified that Plaintiff Christian A. Hess has commenced an action against you. Date: May 7, 2010 Prothonota 526382v1 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson ~('1 ' -~ f1. :t~. Sheriff ~ ?1=.~ F ~" ,~'~ ~~~~t~p of tia+rft~rr~,i~~~ Jody S Smith chief Deputy ~ - ~~~ ~ 20 f 0 ~r`~~~ ~ ~ P~ ~~ 43 ,,.. Edward L Schorpp , , ~ ,,; , Solicitor ~~F ~ ~ ~ ~~~R~~r Cv~J'~,>r :ti ~ ^4,a., ~ ~~v' i Y ~'C4~t ~ L~~`,~~~tr~e Christian A. Hess Case Number vs. 2010-3037 Diakon Lutheran Social Ministries SHERIFF'S RETURN OF SERVICE 05/13/2010 06:06 PM -Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on May 13, 2010 at 1800 hours, she served a true copy of the within Writ of Summons, Interrogatories and Plaintiffs Request for Production of Documents, upon the within named defendant, to wit: Diakon Lutheran Social Ministries, by making known unto John Palkovitz Jr., Vice President of Financial Services for Diakon Lutheran Social Ministries at 960 Century Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to him personally the said true and correct copy of the same. MICHELE U SHERIFF COST: $37.00 May 14, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF (ei GounfySu~[e Sheriff, Tei2psoft, lrc. JUN 2 2 2010 CHRISTIAN HESS, V. Plaintiff DIAKON LUTHERAN SOCIAL MINISTRIES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 10-3037 -CIVIL TERM. CIVIL ACTION -LAW JURY TRIAL DEMANDED ORDER AND NOW, this ,~ day of ~~, 2010, upon consideration of the uncontested Motion of Plaintiff for release of her medical records, it is hereby ordered that all medical, mental health and drug and alcohol records of Plaintiff as maintained by Defendant shall be released to Plaintiff's legal counsel, Mette, Evans & Woodside. BY THE COURT: J. Distribution List: John F. Yaninek, Esquire Mette, Evans & Woodside 3401 N. Front Street ~ ~ =fin P.O. Box 5950 z~'.'~ c._ --+ Harrisburg, PA 17110-0950 - ~ :~= , r ~ : ~~ . ..~. ~~ - .~ ~ raig A. Stone, Esquire Marshall, Dennehey, Warner - ~. = =~ _„ , Coleman & Goggin ` ~ ~~ ° , 4200 Crums Mill Road, Ste. B ~ ~~+ ~;, x~ =-c Harrisburg, PA 17112 nsz~sa6~i `~ i S 41- I?j f,! 21 PM 3.53 PAN '. METTE, EVANS & WOODSIDE Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) CHRISTIAN HESS, Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 10-3037 - CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR SUBSTITUTION OF COUNSEL TO THE PROTHONOTARY: Please withdraw the appearance of John F. Yaninek and substitute the undersigned, Kathryn L. Simpson as counsel for the Plaintiff, Christian Hess. All further process should be forwarded to the attention of the undersigned at the address below. By: Respectfully submitted, METTE, EiVANS & WOODSIDE Kat tri L. impsdn, Esc Sup. Ct. I. No. 28960 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff,' Christian Hess Date: g(? S,- 11,? CERTIFICATE OF SERVICE I, Kathryn L. Simpson, Esquire, hereby certify that on this day I caused a true and correct copy of the foregoing document to be served on each of the following individuals by United States mail, first class, postage prepaid, addressed as follows: Craig A. Stone, Esquire MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Respectfully submitted, METTE, EYANS & WOODSIDE By: r Sup. Ct. r:DJ No. 28960 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff, Christian Hess Date: 529737vl CRAIG A. STONE, ESQUIRE ILED-OFFICE OF E PROTHONOTAF4. I.D. No. 15907 MICHAEL C. MONGIELLO, ESQUIRE 1010 Noy 30 PM 3: 58 I.D. No. 87532 Marshall, Dennehey, Warner, Coleman & Goggin CUMBERLAND CQUNTy 4200 Crums Mill Road, Suite B PENNSYLVANIA Harrisburg, PA 17112 (717) 651-3502 Attorneys for Defendant Diakon Lutheran Social Ministries CHRISTIAN HESS Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA No: 10-3037 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR A RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule directing Plaintiff, Christian Hess to file a Complaint in the above- referenced matter within twenty (20) days of service thereof or risk a judgment of non pros. Dated: I ? -L4ko MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: e, Esquire g ongiello, Esquire 00 Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 CHRISTIAN HESS Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA No: 10-3037 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED RULE AND NOW, this day of %)Mem w , 2010, upon consideration of the foregoing Praecipe, Plaintiff is hereby ordered to file a Complaint within twenty (20) days hereof or suffer judgment of non Los. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing PRAECIPE FOR A RULE TO FILE COMPLAINT has been served upon the following known counsel and parties of record this ? day of November 2010, via United States First-Class Mail, postage prepaid: Kathryn Simpson, Esquire Mette, Evans and Woodside 3401 North Front Street Harrisburg, PA 17110-0950 AA ro, Sarah Kuhn 05/662765.v 1 FILED-OFFICE OF THE PROTHONOTARY METTE, EVANS & WOODSIDE O0": ` i " T Y Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) CHRISTIAN HESS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 10-3037 -CIVIL TERM DIAKON LUTHERAN SOCIAL CIVIL ACTION - LAW MINISTRIES, Defendant JURY TRIAL DEMANDED NOTICF, YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyers Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicantopersonalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defenses de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o culquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA, ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Lawyers Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 533929v1 Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 METTE, EVANS & WOODSIDE 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax klsimpson@mette.com CHRISTIAN A. HESS, Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 10-3037 - CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT IN CIVIL ACTION 1. Plaintiff is Christian A. Hess, an adult individual, residing at 809A Fairfield Street, Mechanicsburg, Cumberland County, PA 17055. 2. Defendant is Diakon Lutheran Social Ministries ("Diakon"), a non-profit entity doing business as Diakon Family Life Services, 960 Century Drive, Mechanicsburg, Cumberland County, PA 17055. 3. Among other services, Diakon offers outpatient substance-abuse treatment services to individuals and their families. 1 4. At all times relevant to this Complaint, Diakon was a contractor for the Cumberland/Perry Mental Health/Mental Retardation Program and, among other things, was to provide outpatient substance-abuse treatment to individuals and their families. 5. In October 2008, Plaintiff was a resident at a halfway house following her discharge from a rehabilitation facility where she was treated for drug addiction to heroin. 6. Plaintiff was on probation for a DUI and other non-drug-related charges. 7. While at the halfway house, she was required by her probation officer to undergo counseling through Defendant for her drug addiction. 8. Plaintiff started her counseling through Defendant while she was still at the halfway house. 9. Denita Royster was the counselor assigned by Defendant to Plaintiff. 10. Upon her discharge from the halfway house, Plaintiff began seeing Ms. Royster at the Defendant's place of business in Mechanicsburg. 11. Because Plaintiff's treatment included family counseling, her half-sister, Justine Hill, accompanied her to some of her sessions with Ms. Royster. 12. Ms. Royster had an office at the Mechanicsburg facility of Defendant. 13. Ms. Royster wore a name tag that showed not only her name but that of Defendant. 14. Pursuant to its contract with the Cumberland/Perry Mental Health/Mental Retardation Program, Defendant was required to provide all counseling services through its employees and not subcontractors. 15. Plaintiff formed a close relationship with Ms. Royster and trusted her. 2 16. Within three (3) weeks of starting her outpatient treatment with Ms. Royster, Plaintiff began using heroin again. 17. Plaintiff requested the medical staff of Defendant prescribe Suboxone for her so that she could avoid a relapse. 18. Suboxone is a narcotic medication indicated for the treatment of opioid dependence, and is available only by prescription. 19. Defendant's medical director refused to prescribe Suboxone for Plaintiff. 20. Upon learning that Plaintiff was unable to obtain a prescription for Suboxone, Ms. Royster advised Plaintiff that she could obtain Suboxone for her. 21. Ms. Royster then communicated with Justine Hill, telling her that Ms. Royster could get Suboxone for Plaintiff and that the cost of the pills would be $1,200 for 200 pills. 22. Justine Hill told Ms. Royster that she could not afford $1,200, only $600 and she would take as many pills for Plaintiff as that amount would buy. 23. Justine Hill also told Ms. Royster that she wanted the pills in their original container so that she could verify that they were, in fact, Suboxone and that she wanted to dispense them to Plaintiff. 24. Justine Hill wrote a check for $600, as directed by Ms. Royster. 25. Shortly thereafter while Plaintiff was at a counseling session, Ms. Royster directedc Plaintiff to the parking lot and told her that "Mark" would give her the Suboxone. 26. Plaintiff went to the Defendant's parking lot and met with Mark, who she understood to be either Ms. Royster's husband or boyfriend, in his car. 3 27. Plaintiff and Mark then left the car and walked to the entrance to Defendant's Mechanicsburg facility and sat outside where they saw Patricia O'Donnell, the Defendant's Clinical Director, who asked Plaintiff how she was doing. 28. Plaintiff received eight to ten pills from Mark at that time. 29. Plaintiff returned to Justine Hill's house with three or four pills and told Justine that Ms. Royster said she would hold the remainder. 30. Ms. Royster had Mark purchase Suboxone a second time for Plaintiff. 31. The third time that Ms. Royster said she could arrange for Suboxone to be purchased for Plaintiff, she was unable to do so. 32. During this time period, Plaintiff was arguing with Justine Hill with whom she was living, and would stay away from Justine's home and stay with others, including Ms. Royster and Mark at their home. 33. Ms. Royster and Mark told Plaintiff that she could stay at their home until they could find a way to get her more Suboxone. 34. While in Ms. Royster's home, Plaintiff was provided with heroin by Mark. 35. Taking advantage of Plaintiff's drug-dependent condition, Ms. Royster obtained $200 from Plaintiff for a student loan payment 36. Ms. Royster also attempted to have Plaintiff change the name on her bank account to eliminate Justine Hill's name on the account and to include Ms. Royster's instead. 37. Plaintiff then reentered rehabilitation in late March 2009. 38. Plaintiffs sister, Alice Hess, who was treating with Ms. O'Donnell, was told by Ms. O'Donnell that she was aware what was going on between Ms. Royster, Mark and the Plaintiff and that were providing drugs to Plaintiff. 4 39. A week later, Ms. O'Donnell called Justine Hill and repeated what she had told Alice Hess. 40. In that phone conversation, Ms. O'Donnell also said that she had suspected that something improper was going on, starting with her seeing Plaintiff in Mark's car in Defendant's parking lot. 41. At Ms. O'Donnell's request, Justine Hill met with her to discuss what Ms. O'Donnell knew about Ms. Royster and Mark. 42. At that meeting, Justine showed Ms. O'Donnell text messages that Mark had sent to her threatening her and her family if payment was not made for the drugs he was providing to Plaintiff. 43. Justine also provided a copy of the check she wrote for the Suboxone and two of Plaintiffs checks that Ms. Royster had forged. 44. Ms. O'Donnell told Justine Hill that she had a team of lawyers in the next room and that Justine had to sign a paper. 45. Ms. O'Donnell provided a paper for Justine Hill to sign but her brother, Paul Ensminger who was with her, advised Justine not to sign it. COUNTI BREACH OF FIDUCIARY DUTY 46. The averments contained in paragraph 1 through 45 are incorporated. 47. Plaintiff had a confidential relationship with Defendant where Defendant agreed to provide her with substance abuse counseling and treatment. 5 48. Defendant provided Plaintiff with a counselor to accomplish the substance abuse counseling. 49. Plaintiff trusted her counselor and depended upon her for guidance and advice in treating Plaintiffs substance abuse problem. 50. Plaintiff believed that Ms. Royster was an employee of Defendant and, at all times, was acting in the scope of that employment. 51. At the time Plaintiff was receiving counseling from Defendant, she was 18 years of age. 52. Defendant negligently failed to act in good faith and solely for the benefit of Plaintiff when it failed to supervise the counselor providing services to Plaintiff. 53. As a result of Defendant's failure to supervise the counselor who provided drugs to Plaintiff, as described above, Plaintiffs drug dependency was deepened, not alleviated, and she had to undergo additional rehabilitation efforts. 54. As a result of Defendant's failure to supervise the counselor who provided Plaintiff with drugs, Plaintiff and her family were threatened with violence by the counselor's husband/boyfriend because of his claims that Plaintiff owed him money for the drugs. 55. Defendant's failure to act solely for the benefit of Plaintiff was a real factor in bringing about Plaintiffs injuries. WHEREFORE, Plaintiff demands compensatory and punitive damages in her favor and against Defendant in an amount in excess of the arbitration limits of this Court plus costs of suit and interest. 6 COUNT II BREACH OF CONTRACT 56. The averments contained in paragraphs 1 through 55 are incorporated. 57. Plaintiff entered into an oral agreement with Defendant whereby Defendant agreed to provide rehabilitative services for Plaintiff's drug dependence problems. 58. Defendant owed Plaintiff the duty to provide those services. 59. To provide those services, Defendant assigned Ms. Royster to Plaintiff as her counselor. 60. Defendant's responsibilities with regard to carrying out the duties owed to Plaintiff were performed by Ms. Royster in fulfillment of the contract between it and Plaintiff. 61. Instead of providing rehabilitative services, Defendant, through Ms. Royster, provided her with drugs that was in direct contravention of the treatment/therapy required by Plaintiff. 62. As a result of the ingestion of the drugs provided by Ms. Royster, which Defendant knew or should have known about had it exercised due care, Plaintiff relapsed and had to undergo further in-patient rehabilitation. 63. Defendant breached its contract with Plaintiff by not providing her with the treatment/counseling it promised to provide. WHEREFORE, Plaintiff demands compensatory damages in her favor and against Defendant in an amount in excess of the arbitration limits of this Court plus costs of suit and interest. 7 Respectfully submitted, METTE, VANS & WOODSIDE Zat L. Al pso , Esquire Su . Ct. I. o. 28960 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Date January 5, 2011 531000v1 VERIFICATION I, CHRISTIAN HESS, have read the foregoing document and verify that the facts set forth herein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. r DATED: Q?d CHRISTIAN HESS CERTIFICATE OF SERVICE I, Kathryn L. Simpson, Esquire, hereby certify that on this day I caused a true and correct copy of the foregoing document to be served on each of the following individuals by United States mail, first class, postage prepaid, addressed as follows: Craig A. Stone, Esquire MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Respectfully submitted, ANS & WOODSIDE By: Ct. UYNo. 28 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff, Christian Hess Date: January 5, 2011 529737vl CRAIG A. STONE, ESQUIRE c 3 1,1iJ ?? I.D. No. 15907 MICHAEL C. MONGIELLO, ESQUIRE I.D. No. 87532 Marshall, Dennehe , Warner, Coleman & Go in `??,hl "91f71 4200 Crums Mill Road, Suite B JAJ Harrisburg, PA 17112 (717) 651-3502 Attorneys for Defendant Diakon Lutheran Social Ministries CHRISTIAN HESS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiff V. No: 10-3037 Civil Term CIVIL ACTION - LAW DIAKON LUTHERAN SOCIAL MINISTRIES JURY TRIAL DEMANDED Defendant DENITA ANN CAUSBEY-ROYSTER Additional Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. MidPenn Legal Services 401 East Louther Street, Suite 103 Carlisle, PA 17013 (800) 822-5288 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. MidPenn Legal Services 401 East Louther Street, Suite 103 Carlisle, PA 17013 (800) 822-5288 2 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 Attorneys for Defendant Diakon Lutheran Social Ministries CHRISTIAN HESS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiff V. No: 10-3037 Civil Term CIVIL ACTION - LAW DIAKON LUTHERAN SOCIAL MINISTRIES JURY TRIAL DEMANDED Defendant DENITA ANN CAUSBEY-ROYSTER Additional Defendant DEFENDANT, DIAKON LUTHERAN SOCIAL MINISTRIES' JOINDER COMPLAINT AGAINST ADDITIONAL DEFENDANT, DENITA ANN CAUSBEY-ROYSTER AND NOW comes the Defendant, Diakon Lutheran Social Ministries ("hereinafter "Diakon"), by and through its attorneys Marshall, Dennehey, Warner, and Coleman & Goggin, and files a Complaint against Additional Defendant based on the following allegations: 1. On or about January 6, 2009, Plaintiff, Christian Hess (hereinafter "Plaintiff") filed a Complaint against Diakon, a copy of which is attached hereto, made a part hereof and marked as Exhibit A. 2. Additional Defendant, Denita Ann Causbey-Royster (hereinafter "Additional Defendant") is an adult individual, residing at 1658 Peachtree Lane, Chambersburg, PA 17202. 3. It is alleged in Exhibit A that Additional Defendant was at all relevant times a counselor assigned by Diakon to Plaintiff. See Exhibit A, paragraph 9. 4. It is alleged in Exhibit A that Additional Defendant had an office at the Mechanicsburg facility of Diakon. See Exhibit A, paragraph 10. 5. It is alleged that Additional Defendant wore a name tag that showed not only her name but that of Diakon. See Exhibit A, paragraph 13. 6. It is alleged that Plaintiff believed that Additional Defendant was an employee of Defendant and, at all times, was acting in the scope of that employment. See Exhibit A, paragraph 50. 7. It is alleged that Additional Defendant provided substance abuse counseling and treatment services to Plaintiff for an undefined period of time in late 2008 through early 2009. See Exhibit A, paragraphs 5-45. 8. It is alleged that Diakon breached its fiduciary duty to Plaintiff in failing to supervise Additional Defendant, who provided illegal drugs to Plaintiff and engaged in other improper conduct. Id. and see Exhibit A, Count I. 9. It is alleged that Diakon breached an oral contract with Plaintiff to provide rehabilitative services for drug dependence problems because, through Additional Defendant, Plaintiff was provided illegal drugs and was subject to other improper conduct. Id. and see Exhibit A, Count II. 10. On December 22, 2008, Diakon entered into a "Family Life Services Contract Counselor Agreement" with Additional Defendant providing for the provision of "professional counseling and testing services to clients assigned to [Additional Defendant] by [Diakon] on an 4 individual or a family basis at a location to be determined by [Diakon]". A copy of said agreement is attached hereto, made a part hereof and marked as Exhibit B. 11. Exhibit B remained in force from December 22, 2008 through January 12, 2009. Id. 12. On January 12, 2009, Diakon entered into a second agreement with Additional Defendant providing for the provision of "professional counseling and testing services to clients assigned to [Additional Defendant] by [Diakon] on an individual or a family basis at a location to be determined by [Diakon]". A copy of said agreement is attached hereto, made a part hereof and marked as Exhibit C. 13. Exhibit C remained in force from January 12, 2009 through all times material to Plaintiffs' Complaint. 14. Under Exhibits B and C, it was expressly "acknowledged by the parties that [Additional Defendant was] an independent contractor of [Diakon] and not an employee and that [Additional Defendant] is not entitled to wages or benefits of [Diakon] employees, including coverage by the Worker's Compensation Act." See Exhibits B and C, paragraph 5. 15. Under Exhibits B and C, it was expressly acknowledged that "[nothing in [the] Agreement [was] intended and nothing shall be construed to create an employer/employee relationship, a joint venture relationship, a partnership, or other similar relationship." Id. 16. Under Exhibits B and C, Additional Defendant agreed to "maintain professional liability insurance coverage in the minimum amount of One Million Dollars ($1,000,000) per occurrence, Three Million Dollars ($3,000,000) in the aggregate, and shall provide documentation of such current professional liability insurance coverage to [Diakon] upon request." See Exhibits B and C, paragraph 9. 5 17. Under Exhibits B and C, Additional Defendant agreed that she would indemnify and hold harmless Diakon "from and against any and all claims, liabilities, damages, costs or expenses (including reasonable attorneys' fees) arising from or resulting in any manner from the acts or omissions of the indemnifying party, its officers, employees or agents, in connection with this Agreement." See Exhibits B and C, paragraph 10. 18. If Plaintiff can recover for the occurrence, transaction or series of occurrences or transactions upon which Plaintiffs cause of action is based, which right of recovery is specifically denied, then Additional Defendant is solely liable to Plaintiff. 19. If Plaintiff can recover for the causes of action set forth in the Complaint, which right to recovery is specifically denied, then Additional Defendant is jointly and severely liable to the Plaintiff along with Diakon on Plaintiffs cause of action. 20. If Plaintiff can recover on the causes of action set forth in the Complaint against Diakon, which right of recovery is specifically denied, then Additional Defendant is liable over to Diakon on Plaintiffs cause of action. 21. If Plaintiff can recover on the causes of action set forth in the Complaint against Diakon, which right to recovery is specifically denied, then Diakon is entitled to indemnification in full from Additional Defendant at law and under Exhibits B and C. 22. If Plaintiff can recover on the causes of action set forth in the Complaint from Diakon for the acts or omissions of Additional Defendant, which right to recovery is specifically denied, then Diakon is entitled to indemnification in full from Additional Defendant, without limitation, including attorney's fees and cost of defense. 23. Despite proper supervision of Additional Defendant by Diakon, to the extent required, the conduct of Additional Defendant at issue in this action was plainly incompetent and 6 her independent contractor relationship with Diakon was properly and immediately terminated upon Diakon's awareness of same. 24. Pursuant to Pa.R.C.P. No. 1042.3(c)(2), Diakon is not required to file a Certificate of Merit in support of the instant Joinder Complaint because allegations of liability against Diakon and Additional Defendant are directly related as described herein. 25. Plaintiff does not oppose the joinder of Additional Defendant to this action. WHEREFORE, Defendant, Diakon Lutheran Social Ministries joins Additional Defendant Denita Ann Causbey Royster as being solely liable to Plaintiff on Plaintiffs causes of action; liable over to Diakon on Plaintiffs causes of action; jointly or severely liable to Plaintiff on Plaintiffs cause of action; or liable over to Diakon for indemnification in full including attorney's fees and cost of defense. Y, WARNER, Dated: 3 f 3) 11 C By: IC i e, Esquire Micha ongiello, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 7 VERIFICATION I hereby affirm that the following facts are correct: The attached Joinder Complaint is based upon information which has been gathered by my Counsel in the defense of this lawsuit. The language of the Joinder Complaint is that of Counsel and not of me. I have read Joinder Complaint and to the extent that the responses are based upon information which I have given to my Counsel, they are true and correct to the best of my knowledge, information and belief. To the extent that the contents of the responses are that of Counsel, l have relied upon Counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid responses are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unworn falsification to authorities. The Rev. Lisa M. Leber, Esquire Sr. Vice President, Chief Legal and Compliance Officer Dated: 51 1? If -,I it 05/697139.0 CERTIFICATE OF SERVICE I, Angela M. Lentz, of Marshall, Dennehey, Warner, Coleman & Goggin, hereby certify that a true and correct copy of the foregoing Joinder Complaint has been served upon the following known counsel and parties of record this day of March 2011, via United States First-Class Mail, postage prepaid: Kathryn L. Simpson, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, Pa 17110-0950 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN awA_W.U_4? By: An ela M. Lentz, Parale 05/693895.v l 8 ,e/,re b? * sl --r METTE, EVANS & WOODSIDE Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) CHRISTIAN HESS, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. DIAKON LUTHERAN SOCIAL MINISTRIES, Defendant : No. 10-3037 -CIVIL TERM : CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take. action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE Y6U WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyers Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mss adelante en las siguientes pfiginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demands y Aviso radicantopersonalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defenses de, y objecciones a, las demandas presentadas aqua en contra suya. Se le advierte de que si usted fella de tomar acci6n Como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o culquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mis aviso adicional. Usted puede perder dinero o propiedad u otros derechos importances para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO 1NMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA, ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOME AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Lawyers Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 533929v1 Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 METTE, EVANS & WOODSIDE 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax kjsimpson@mette.com CHRISTIAN A. HESS, Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 10-3037 -CIVIL TERM CIVIL ACTION - LAW : JURY TRIAL DEMANDED COMPLAINT IN CIVIL ACTION 1. Plaintiff is Christian A. Hess, an adult individual, residing at 809A Fairfield Street, Mechanicsburg, Cumberland County, PA 17055. 2. Defendant is Diakon Lutheran Social Ministries ("DiakoWD, a non-profit entity doing business as Diakon Family Life Services, 960 Century Drive, Mechanicsburg, Cumberland County, PA 17055. 3. Among other services, Diakon offers outpatient substance-abuse treatment services to individuals and their families. 1 4. At all times relevant to this Complaint, Diakon was a contractor for the Cumberland/Perry Mental Health/Mental Retardation Program and, among other things, was to provide outpatient substance-abuse treatment to individuals and their families. 5. In October 2008, Plaintiff was a resident at a halfway house following her discharge from a rehabilitation facility where she was treated for drug addiction to heroin. 6. Plaintiff was on probation for a DUI and other non-drug-related charges. 7. While at the halfway house, she was required by her probation officer to undergo counseling through Defendant for her drug addiction. Plaintiff started her counseling through Defendant while she was still at the halfway house. Denita Royster was the counselor assigned by Defendant to Plaintiff. 10. Upon her discharge from the halfway house, Plaintiff began seeing Ms. Royster at the Defendant's place of business in Mechanicsburg. 11. Because Plaintiffs treatment included family counseling, her half-sister, Justine Hill, accompanied her to some of her sessions with Ms. Royster. 12. Ms. Royster had an office at the Mechanicsburg facility of Defendant. 13. Ms. Royster wore a name tag that showed not only her name but that of Defendant. 14. Pursuant to its contract with the Cumberland/Perry Mental Health/Mental Retardation Program, Defendant was required to provide all counseling services through its employees and not subcontractors. 15. Plaintiff formed a close relationship with Ms. Royster and trusted her, 2 16. Within three (3) weeks of starting her outpatient treatment with Ms. Royster, Plaintiff began using heroin again. 17. Plaintiff requested the medical staff of Defendant prescribe Suboxone for her so that she could avoid a relapse. 18. Suboxone is a narcotic medication indicated for the treatment of opioid dependence, and is available only by prescription. 19. Defendant's medical director refused to prescribe Suboxone for Plaintiff. 20. Upon learning that Plaintiff was unable to obtain a prescription for Suboxone, Ms. Royster advised Plaintiff that she could obtain Suboxone for her. 21. Ms. Royster then communicated with Justine Hill, telling her that Ms. Royster could get Suboxone for Plaintiff and that the cost of the pills would be $1,200 for 200 pills. 22. Justine Hill told Ms. Royster that she could not afford $1,200, only $600 and she would take as many pills for Plaintiff as that amount would buy. 23. Justine Hill also told Ms. Royster that she wanted the pills in their original container so that she could verify that they were, in fact, Suboxone and that she wanted to dispense them to Plaintiff. 24. Justine Hill wrote a check for $600, as directed by Ms. Royster. 25. Shortly thereafter while Plaintiff was at a counseling session, Ms. Royster directedc Plaintiff to the parking lot and told her that "Mark" would give her the Suboxone. 26. Plaintiff went to the Defendant's parking lot and met with Mark, who she understood to be either Ms. Royster's husband or boyfriend, in his car. 27. Plaintiff and Mark then left the car and walked to the entrance to Defendant's Mechanicsburg facility and sat outside where they saw Patricia O'Donnell, the Defendant's Clinical Director, who asked Plaintiff how she was doing. 28. Plaintiff received eight to ten pills from Mark at that time. 29. Plaintiff returned to Justine Hill's house with three or four pills and told Justine that Ms. Royster said she would hold the remainder. 30. Ms. Royster had Mark purchase Suboxone a second time for Plaintiff. 31. The third time that Ms. Royster said she could arrange for Suboxone to be purchased for Plaintiff, she was unable to do so. 32. During this time period, Plaintiff was arguing with Justine Hill with whom she was living, and would stay away from Justin's home and stay with others, including Ms. Royster and Mark at their home. 33. Ms. Royster and Mark told Plaintiff that she could stay at their home until they could fmd a way to get her more Suboxone. 34. While in Ms. Royster's home, Plaintiff was provided with heroin by Mark. 35. Taking advantage of Plaintiff s drug-dependent condition, Ms. Royster obtained $200 from Plaintiff for a student loan payment 36. Ms. Royster also attempted to have Plaintiff change the name on her bank account to eliminate Justine Hill's name on the account and to include Ms. Royster's instead. 37. Plaintiff then reentered rehabilitation in late March 2009. 38. Plaintiffs sister, Alice Hess, who was treating with Ms. O'Donnell, was told by Ms. O'Donnell that she was aware what was going on between Ms. Royster, Mark and the Plaintiff and that were providing drugs to Plaintiff. 4 39. A week later, Ms. O'Donnell called Justine Hill and repeated what she had told Alice Hess. 40. In that phone conversation, Ms. O'Donnell also said that she had suspected that something improper was going on, starting with her seeing Plaintiff in Mark's car in Defendant's parking lot. 41. At Ms. O'Donnell's request, Justine Hill met with her to discuss what Ms. O'Donnell knew about Ms. Royster and Mark 42. At that meeting, Justine showed Ms. O'Donnell text messages that Mark had sent to her threatening her and her family if payment was not made for the drugs he was providing to Plaintiff. 43. Justine also provided a copy of the check she wrote for the Suboxone and two of Plaintiff s checks that Ms. Royster had forged. 44. Ms. O'Donnell told Justine Hill that she had a team of lawyers in the next room and that Justine had to sign a paper. 45. Ms. O'Donnell provided a paper for Justine Hill to sign but her brother, Paul Ensminger who was with her, advised Justine not to sign it. COUNTI BREACH OF FIDUCIARY DUTY 46. The averments contained in paragraph 1 through 45 are incorporated. 47. Plaintiff had a confidential relationship with Defendant where Defendant agreed to provide her with substance abuse counseling and treatment. 5 48. Defendant provided Plaintiff with a counselor to accomplish the substance abuse counseling. 49. Plaintiff trusted her counselor and depended upon her for guidance and advice in treating Plaintiff s substance abuse problem. 50. Plaintiff believed that Ms. Royster was an employee of Defendant and, at all times, was acting in the scope of that employment. 51. At the time Plaintiff was receiving counseling from Defendant, she was 18 years of age. 52. Defendant negligently failed to act in good faith and solely for the benefit of Plaintiff when it failed to supervise the counselor providing services to Plaintiff. 53. As a result of Defendant's failure to supervise the counselor who provided drugs to Plaintiff? as described above, Plaintiffs drug dependency was deepened, not alleviated, and she had to undergo additional rehabilitation efforts. 54. As a result of Defendant's failure to supervise the counselor who provided Plaintiff with drugs, Plaintiff and her family were threatened with violence by the counselor's husband/boyfriend because of his claims that Plaintiff owed him money for the drugs. 55. Defendant's failure to act solely for the benefit of Plaintiff was a real factor in bringing about Plaintiff's injuries. WHEREFORE, Plaintiff demands compensatory and punitive damages in her favor and against Defendant in an amount in excess of the arbitration limits of this Court plus costs of suit and interest. 6 COUNT II BREACH OF CONTRACT 56. The averments contained in paragraphs 1 through 55 are incorporated. 57. Plaintiff entered into an oral agreement with Defendant whereby Defendant agreed to provide rehabilitative services for Plaintiff's drug dependence problems. 58. Defendant owed Plaintiff the duty to provide those services. 59. To provide those services, Defendant assigned Ms. Royster to Plaintiff as her counselor. 60. Defendant's responsibilities with regard to carrying out the duties owed to Plaintiff were performed by Ms. Royster in fulfillment of the contract between it and Plaintiff. 61. Instead of providing rehabilitative services, Defendant, through Ms. Royster, provided her with drugs that was in direct contravention of the treatment/therapy required by Plaintiff. 62. As a result of the ingestion of the drugs provided by Ms. Royster, which Defendant knew or should have known about had it exercised due care, Plaintiff relapsed and had to undergo further in-patient rehabilitation. 63. Defendant breached its contract with Plaintiff by not providing her with the treatmenticounseling it promised to provide. WHEREFORE, Plaintiff demands compensatory damages in her favor and against Defendant in an amount in excess of the arbitration limits of this Court plus costs of suit and interest. Respectfully submitted, METTE, YEVANS & WOODSIDE K?#Z?t. yn L. )?squir? S p/ Ct. I. o. 28960 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Date January 5, 2011 531000v1 8 VERIFICATION I, CHRISTIAN HESS, have read the foregoing document and verify that the facts set forth herein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. DATED: CHRISTIAN HESS CERTIFICATE OF SERVICE I, Kathryn L. Simpson, Esquire, hereby certify that on this day I caused a true and correct copy of the foregoing document to be served on each of the following individuals by United States mail, first class, postage prepaid, addressed as follows: Craig A. Stone, Esquire MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Respectfully submitted, ANS & WOODSIDE -'r A By: Sup. Ct. U>. No. 2896V 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff, Christian Hess Date: January 5, 2011 529737v1 ? x [?7'5 / -F DIAKONFAMILY LIFE SERX,rICES A LUTHERAN FAMILY & COMMUNITY MINISTRY FAMILY LIFE SERVICES CONTRACT COUNSELOR AGREEMENT This Agreement. made this 22 nd Day of December, 2008 (,the "Agreement") is entered into by and between Diakon Lutheran Social Services. a P emnsylvania nonprofit corporation. d,'b a Diakon Family Life Services of the Capitol Region ("FLS") and Denita Royster-Causby ("Contract Counselor"). Whereas, FLS provides congregationally-, center- and community-based professional counseling services for children, adults and families; and Whereas, Contract Counselor is qualified to provide, and desires to provide, such professional counseling and testing services to the clients of FLS upon the terms and conditions set forth in this Agreement. NOW THEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound, the parties agree as follows: L Services. Contract Counselor shall provide professional counseling and testing services to clients assigned to him/her by FLS on an individual or a family basis at a location to be determined by FLS. 2. Licenses, certifications, clearances. Contract Counselor shall make available to FLS copies of his/her diplomas and licenses and/or certifications. In addition, Contract Counselor shall submit to Pennsylvania Child Abuse History and Criminal History Record checks at the time of initial contracting with FLS and at any subsequent time at the request of FLS. 3. Term. This Agreement shall be for an initial term of one (1) year, beginning December 22nd 2008, and shall automatically renew for additional one (1) year terms, unless either party gives notice to the other at least thirty (30) days prior to the expiration of the initial term, or any renewal term thereafter, of the party's intent not to renew the Agreement. 4. Termination. This Agreement may be terminated at any time by either party with or without cause upon thirty (30) days written notice. If Contract Counselor's license or certification is suspended or revoked, or if Contract Counselor's insurance policy is cancelled, this Agreement will be terminated immediately and automatically. 5. Independent Contractor status. It is expressly acknowledged by the parties that Contract Counselor is an independent contractor of FLS and not an employee and that Contract Counselor is not entitled to wages or benefits of FLS employees, including coverage by the Worker's Compensation Act. Nothing in this Agreement is intended and nothing shall be construed to create an employer/employee. relationship, a joint venture relationship, a partnership, or other similar relationship. 6. Favment. FLS shall pay Contract Counselor 530.00 per direct service hour for counseling services In addition. Contract Counselor will be responsible for all documentation as required for the services rendered and as directed by FLS. Contract Counselor will not be paid for "no shows". Travel and other 96CIrC-b3t&tl 41riveshall not be billed and will not be comvensated. Mechanicsburg, PA 17055 phon- 717.795.0330 PA Tol' =rep 86e.700.6858 ,:a-. , -.7Q 5.0407 _ ?x??.•.?:aknr..pr: 7. Rate increases. At the time of any automatic renewals of this Agreement pursuant to Paragraph 3, FLS, in its discretion, may increase the rate of payment per direct service hour. FLS shall communicate such rate increases to Contract Counselor in writing. Documentation. Contract Counselor shall maintain paperwork and documentation required to remain in compliance with any grant, other third party pavers or other funding programs of FLS. FLS shall be responsible for informing Contract Counselor of any special requirements or guidelines related to paperwork and documentation. All clinical documentation related to services provided by Contract Counselor under this k greement shall be maintained at the Family Life Services office at 960 Century Drive, Mechanicsburg PA 17055. 9. Insurance. Contract Counselor shall maintain professional liability insurance coverage in the minimum amount of One Million Dollars ($1,000,000) per occurrence, Three Million Dollars ($3,000,000) in the aggregate, and shall provide documentation of such current professional liability insurance coverage to FLS upon request. 10. Indemnification. Each party hereto agrees that it will indemnify and hold the other harmless from and against any and all claims, liabilities, damages, costs or expenses (including reasonable attorneys' fees) arising from or resulting in any manner from the acts or omissions of the indemnifying party, its officers, employees or agents, in connection with this Agreement. 11. Non-discrimination. FLS operates in accordance with all applicable civil rights laws and regulations and does not discriminate in admissions, the provisions of services, or referrals of clients on the basis of race, color, religious creed, disability, marital status, ancestry, national origin, sexual orientation, age, sex or any other class protected by law. Contract Counselor shall comply with FLS' nondiscrimination policies and procedures and all applicable Federal and state civil rights laws and regulations in the performance of his/her duties under this Agreement. 12. Compliance. Contract Counselor shall adhere to the applicable Code of Ethics for his/her discipline, policies and procedures of FLS, and with all applicable federal and state laws and regulations related to this Agreement and the services to be provided hereunder. 13. Non-solicitation. Contract Counselor covenants and agrees that during the term(s) of this Agreement, and for a period of one (1) year following termination or non-renewal of this Agreement, Contract Counselor shall not solicit current or former FLS clients for any outside private practice. Advertising in the newspaper, the Yellow Pages, etc. is not considered solicitation; direct mailing, telephone calls, etc. to clients by Contract Counselor or an agent of Contract Counselor is considered solicitation. 14. Conflict of laws. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. 15. Government pram exclusions. Contract Counselor hereby represents and warrants that he/she is not now, and at no time has been, excluded from participation in Federal health care programs, including Medicare and Medicaid. Contract Counselor agrees to immediately notify FIS of any threatened, proposed. or actual exclusion from any Federal health care program. including Medicare and Medicaid. In the event Contract Counselor is excluded from any Federal health care program during the term of this Agreement, or if at any time after the effective date of this Agreement, it is determined that Contract Counselor is an excluded entity, this Agreement shall automatically terminate. 16. Health Insurance Portabilitv and Accountability Act of 1996. For purposes of this Paragraph 16, Contract Counselor shall be referred to as "Business Associate" and FLS shall be referred to as "Covered Entity." Terms used, but not otherwise defined, in this Paragraph 16 shall have the same meaning as those terms under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (collectively referred to herein as "HIPAA"). a Permitted Uses and Disclosures. Business Associate may use and disclose Protected Health Information ("PHI") (as defined below) (i) as necessary to perform the services described above, (ii) as required by law or (iii) as otherwise authorized by the Covered Entity. All other uses and disclosures not authorized by this Agreement or required by law are prohibited, unless Business Associate obtains written authorization from the Covered Entity. PHI means any information that identifies an individual and that relates to the past, present or future physical or mental health or condition of an individual, the provision of healthcare to any individual. or the past, present or future payment of the provision of healthcare to an individual. b. Use or Disclosure of PHI for Business Associate's Own Use for Management Administration or to Carry Out Legal Responsibilities. (i) In addition to the use and disclosure of PHI necessary to perform the services under this Agreement or as required by law, subject to the provisions contained in subparagraph (ii), below, Business Associate shall be permitted to use and/or disclose PHI received from or made available by Covered Entity or created by Business Associate on behalf of Covered Entity, for the proper management and administration of the Business Associate or to carry out legal responsibilities of Business Associate. (ii) In order for the Business Associate to use or disclose PHI for the purposes described in this subparagraph (b): (1) the disclosure must be required by law or (2) Business Associate must obtain reasonable assurances from the person or entity to whom the information is disclosed that such person or entity will (a) hold the PHI in confidence in accordance with HIPAA, (b) only disclose the PHI as required by law, (c) only use PHI for the purpose for which Business Associate disclosed the PHI and (d) notify the Business Associate of any breaches of confidentiality of which the person or entity is aware. c. Data Aggregation Services. Except as otherwise limited by this Agreement, Business Associate may use the PHI for Data Aggregation Services relating to Health Care Operations of Covered Entity. d. Business Associate Obligations: (i) Appropriate Safeguards. Business Associate will establish and maintain appropriate safeguards to prevent any use or disclosure of PHI other than as provided for by this Agreement. (ii-; Renorts o: 1mnroper Use or Disclosure. Business Associat: shall immediately report to Covered Entity's privacy officer or designee, any use or disclosure of PHI in violation of this Agreement by telephone and shall follow up with a written report to Covered Entity's privacy officer, Lisa Leber, VP/Compliance and Legal Affairs, at 960 Century Drive, Mechanicsburg. Pennsylvania 1705. (iii) Subcontractors and Agents. Business Associate shall ensure that any agents, including any subcontractors, to whom Business Associate provides PHI received from, or created or received by Business Associate, on behalf of Covered Entity, agrees to the same restrictions with respect to the PHI as contained in this Agreement. Business Associate shall provide only the Minimum Necessary PHI for the purpose of such disclosure and shall enter into an agreement with the subcontractor or agent that contains the same terms, conditions and restrictions on the use and disclosure of PHI as contained in this Paragraph 16. (iv) Right of Access to PHI. Business Associate hereby agrees to make available to an individual, who is the subject of the PHI, the right to access and copy that individual's PHI, at the request of the individual or of Covered Entity in the time and manner designated by Covered Entity. This right of access shall conform with and meet all of the requirements of HIPAA. (v) Amendment and Incorporation of Amendments. Business Associate shall make PHI available for amendment and incorporate any amendments of PHI that have been agreed to by Covered Entity, at the request of Covered Entity or of the individual, in the time and manner designated by Covered Entity, in accordance with the requirements of HIPAA. (vi) Provide Accounting. Business Associate shall document and make available to Covered Entity or to the individual, any information necessary to provide an accounting of disclosures in accordance with the requirements of HIPAA in the time and manner designated by Covered Entity. The accounting provided by Business Associate under this subparagraph (vi) shall include: (a) the date of the disclosure; (b) the name, and address, if known, of the entity or person who received the PHI; (c) a brief description of the PHI disclosed; and (d) a brief statement of the purpose of the disclosure. (vii) Mitigation Procedures. Business Associate shall establish and provide to Covered Entity, upon request, procedures for mitigating. to the maximum extent practicable, any harmful effect from the use or disclosure of PHI in a manner contrary to this Agreement or HIPAA. Business Associate further agrees to mitigate an}, harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate or any subcontractor or agent of Business Associate in violation of this Agreement. (viii) Requests for Confidential Communications. Business Associate will comply with any agreements for confidential communications of which it is aware and to which Covered Entity agrees pursuant to HIPAA by communicating with Covered Entity's clients using agreed upon alternative means or alternative locations. e. Obligations of Covered Entity. (i) Notification of Changes. Covered Entity shall provide Business Associate with any changes in, or revocation of, permission by individual to use or disclose PHI, if such change affects Business Associate's permitted or required uses and disclosures of PHI. (ii) Notification of Restrictions. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with HIPA.A. f Additional Termination Provisions. Notwithstanding the termination provisions contained in Paragraph 4 of this Agreement, this Agreement may be terminated immediately upon written notice by Covered Entity to Business Associate if Covered Entity determines, in its sole discretion, that Business Associate has violated any material term of this Paragraph 16. Business Associate's obligations under subparagraphs 16(b), (d) and (g) of this Paragraph 16, and as otherwise stated in this Paragraph 16, shall survive the termination of this Agreement Disposition of PHI Upon Termination or Expiration. Upon termination of this Agreement, for any reason, Business Associate shall either return or destroy, at the option of Covered Entity, in Covered Entity's sole discretion, and in accordance with any instructions by Covered Entity. all PHI in the possession or control of Business Associate and its agents and subcontractors. However, in the event that Covered Entity determines that neither the return nor the destruction of the PHI is feasible, Business Associate may retain the PHI, provided, that Business Associate (i) continues to comply with the provisions of this Paragraph 16 for as long as Business Associate retains the PHI, and (ii) further limits its uses and disclosures of PHI under this Agreement to those purposes that make the return or destruction of the PHI infeasible. h. Amendment to Comply with Law. The parties acknowledge that state and federal laws relating to privacy are rapidly evolving and that amendment of this Paragraph 16 of this Agreement may be required to provide for procedures to ensure compliance with such developments. The parties specifically agree to take such action as is necessary to implement the standards and requirements of HIPAA and other applicable laws relating to the confidentiality of PHI. Upon a party's request, the other party to this Agreement agrees to promptly to enter into negotiations with the requesting party concerning the terms of any amendment to this Paragraph 16 embodying written assurances consistent with the standards and requirements of HIPAA or other applicable laws or regulations. Notwithstanding any other provision in this Agreement to the contrary, the requesting party may terminate this Agreement upon thirty (30) days' written notice to non- requesting party in the event (i) non-requesting party does not promptly enter into negotiations to amend this Paragraph 16 when requested by the requesting party pursuant to this subparagraph or (ii) non-requesting party does not enter into an amendment to this Agreement to amend this Paragraph 16 providing assurances regarding the safeguarding of PHI that requesting party, in its sole discretion; deems sufficient to satisfy the standards and requirements of HIPAA or as otherwise required by any applicable law or regulation. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound to the terms of this Agreement, have caused this Agreement to be executed as of the date first written above. CONTRACT COUNSELOR Signatur Print Name: DLAXON LUTHERAN SOCIAL SERVICES d/b/a Diakon Family Life Services of the Capitol Region BY: Print Name: x^, Title: C-l_', n .U. ?X? ?? ? AAKO FAMILY LIFE SERVICES LUTHERAN FAMILY & COMMUNITY MINISTRY FAMILY LIFE SERVICES CONTRACT COUNSELOR AGREEMENT This Agreement, made this 12 day of Januar y, 2009, (the "Agreement") is entered into by and between Diakon Lutheran Services, a Pennsylvania nonprofit corporation, d/bia Family Life Services of the Capitol Region ("FLS") and Denita Royster-Causby ("Contract Counselor"). Whereas, FLS provides congregationally-, center- and community-based professional counseling services for children, adults and families; and Whereas, Contract Counselor is qualified to provide, and desires to provide, such professional counseima services to the clients of FLS upon the terms and conditions set forth in this Agreement. NOW THEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound, the parties agree as follows: 1. Services. Contract Counselor shall provide professional counseling services to clients assigned to him/her by FLS on either an individual or a group basis at a location to be determined by FLS. 2. Licenses, certifications, clearances. Contract Counselor shall make available to FLS copies of his/her diplomas and licenses and/or certifications. In addition, Contract Counselor shall submit to Pennsylvania Child Abuse History and Criminal History Record checks at the time of initial contracting with FLS and at any subsequent time at the request of FLS. 3. Terra. This Agreement shall be for an initial terra of one (1) year, beginning January 12th", 2009, and shall automatically renew for additional one (I ) year terms, unless either party gives notice to the other at least thirty (30) days prior to the expiration of the initial term, or any renewal term thereafter, of the party`s intent not to renew the Agreement. 4. Termination. This Agreement may be terminated at any time by either party with or without cause upon thirty (30) days written notice. If Contract Counselor's license or certification is suspended or revoked, or if Contract Counselor's insurance policy is cancelled, this Agreement will be terminated immediately and automatically. independent Contractor status. It is expressly acknowledged by the parties that Contract Counselor is an innependent contractor of FLS and not an employee and that Conr-act Counselor is not entitled to wages or benefits of FLS employees. including coverage by the Worker's Compensation .Act. Nothing in this Agreement is intended and nothing shall'' construed to create an employer/employee relationship. a Joint venture relationship. a partnership, or other similar relationship. 960 Century Drive Mechanicsburg, PA 17055 Phone 71%.785.0330 PA lo,'. {r 81-)b.700.6868 or, 6. Payment. FLS sha'l'l pay Contract Counselor $ 35.00 per direct Drug and Alcohol service hour. In addition, Contract Counselor shall be paid to attend one (1) hour of clinical supervision and one (1) staff meeting per month. As well, Contract Counselor will be paid $17.50 per hour for training required by BDAP. Contract Counselor shall remit documentation for services rendered as directed by FLS. Contract Counselor will not be paid for "no shows". Travel and other incidental time shall not be billed and will not be compensated. FLS shall pay Contract Counselor $30.00 per direct service hour.fnr mental health counseling services. In addition, Contract Counselor shall be paid for one Mental Health outpatient staff meeting and one hour of Mental Health supervision. Contract Counselor will be responsible for all documentation as required for the services rendered and as directed by FLS. Contract Counselor will not be paid for "no shows". Travel and other incidental time shall not be billed and will not be compensated. 7. Rate increases. At the time of any automatic renewals of this Agreement pursuant to Paragraph 3, FLS, in its discretion, may increase the rate of payment per direct service hour. FLS shall communicate such rate increases to Contract Counselor in writing. 8. Documentation. Contract Counselor shall maintain paperwork and documentation required to remain in compliance with any grant, other third party payers or other funding programs of FLS. FLS shall be responsible for informing Contract Counselor of any special requirements or guidelines related to paperwork and documentation. All clinical documentation related to services provided by Contract Counselor under this Agreement shall be maintained at the Family Life Services office at 960 Century Drive, Mechanicsburg PA 17055 or at the licensed satellite sites. 9. Insurance. Contract Counselor shall maintain professional liability insurance coverage in the minimum amount of One Million Dollars ($1,000,000) per occurrence, Three Million Dollars ($3,000,000) in the aggregate, and shall provide documentation of such current professional liability insurance coverage to FLS upon request. 10. Indemnification. Each party hereto agrees that it will indemnify and hold the other harmless from and against any and all claims, liabilities, damages, costs or expenses (including reasonable attorneys' fees) arising from or resulting in any manner from the acts or omissions of the indemnifying party, its officers, employees or agents, in connection with this Agreement. ll. Non-discrimination. FLS operates in accordance with all applicable civil rights laws and regulations and does not discriminate in admissions, the provisions of services, or referrals of clients on the basis of race, color, religious creed, disability, marital status, ancestry, national origin, sexual orientation, age, sex or any other class protected by law. Contract Counselor shall comply with FLS' nondiscrimination policies and procedures and all applicable Federal and state civil rights laws and regulations in the performance of his/her duties under this Agreement. 12. Compliance. Contract Counselor shall adhere to the applicable Code of Ethics for his/her discipline, policies and procedures of FLS, and with all applicable federal and state laws and regulations related to this Agreement and the services to be provided hereunder. 13. Non-solicitation. Contract Counselor covenants and agrees that during the term(s) of this Agreement, and for a period of one (1) year following termination, or non-renewal of this. Agreement, Contract Counselor shall not solicit current or former FLS clients for any outside private practice. Advertising in the newspaper, the fellow Pages, etc. is not considered solicitation; direct mailing, telephone calls, etc. to clients by Contract Counselor or an agent of Contract Counselor is considered solicitation. 14. Conflict of laws. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. 15. Government program exclusions. Contract Counselor hereby represents and warrants that he/she is not now, and at no time has been, excluded from participation in Federal health care programs, including Medicare and Medicaid. Contract Counselor agrees to immediately notify FLS of any threatened, proposed, or actual exclusion from any Federal health care program, including Medicare and Medicaid. In the event Contract Counselor is excluded from any Federal health care program during the term of this Agreement, or if at any time after the effective date of this Agreement, it is determined that Contract Counselor is an excluded entity, this Agreement shall automatically terminate. 16. Health Insurance Portability and Accountability Act of 1996. For purposes of this Paragraph 16, Contract Counselor shall be referred to as "Business Associate" and FLS shall be referred to as "Covered Entity." Terms used, but not otherwise defined, in this Paragraph 16 shall have the same meaning as those terms under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (collectively referred to herein as "HIPAA"), a Permitted Uses and Disclosures. Business Associate may use and disclose Protected Health Information ("PHI") (as defined below) (i) as necessary to perform the services described above, (ii) as required by law or (iii) as otherwise authorized by the Covered Entitv. All other uses and disclosures not authorized by this Agreement or required by law are prohibited, unless Business Associate obtains written authorization from the Covered Entitv. PHI means any information that identifies an individual and that relates to the past, present or future physical or mental health or condition of an individual, the provision of healthcare to any individual, or the past, present or future payment of the provision of healthcare to an individual. b. Use or Disclosure of PHI for Business Associate's Own Use for Management Administration or to Carry Out Legal Responsibilities. (i) In addition to the use and disclosure of PHI necessary to perform the services under this Agreement or as required by law, subject to the provisions contained in subparagraph (ii), below, Business Associate shall be permitted to use and/or disclose PHI received from or made available by Covered Entity or created by Business Associate on behalf of Covered Entity, for the proper management and administration of the Business Associate or to carry out legal responsibilities of Business Associate. (ii) In order for the Business Associate to use or disclose PHI for the purposes described in this subparagraph (b): (1) the disclosure must be required by law or (2) Business Associate must obtain reasonable assurances from the person or entity to whom the information is disclosed that such person or entity will (a) hold the PHI in confidence in accordance with HIPAA, (b) only disclose the PHI as required by law, (c) only use PHI for the purpose for which Business Associate disclosed the PHI and (d) notify the Business Associate of any breaches of confidentiality of which the person or entity is aware. c. Data Aggregation Services. Except as otherwise limited by this Agreement, Business Associate may use the PHI for Data Aggregation Services relating to Health Care Operations of Covered Entity. d. Business Associate Obligations: (i} Appropriate Safe wards. Business Associate will establish and maintain appropriate safeguards to prevent any use or disclosure of PHI other than as provided for by this Agreement. (ii) Reports of Improper Use or Disclosure. Business Associate shall immediately report to Covered Entity's privacy officer or designee, any use or disclosure of PHI in violation of this Agreement by telephone and shall follow up with a written report to Covered Entity's privacy officer, Lisa Leber, VP/Compliance and Legal Affairs, at 960 Century Drive, Mechanicsburg, Pennsylvania 17055. (iii) Subcontractors and Agents. Business Associate shall ensure that any agents, including any subcontractors, to whom Business Associate provides PHI received from, or created or received by Business Associate, on behalf of Covered Entity, agrees to the same restrictions with respect to the PHI as contained in this Agreement. Business Associate shall provide only the Minimum Necessary PHI for the purpose of such disclosure and shall enter into an agreement with the subcontractor or agent that contains the same terms, conditions and restrictions on the use and disclosure of PHI as contained in this Paragraph 16. (iv) Right of Access to PHI. Business Associate hereby agrees to make available to an individual, who is the subject of the PHI, the right to access and copy that individual's PHI, at the request of the individual or of Covered Entity in the time and manner designated by Covered Entity. This right of access shall conform with and meet all of the requirements of HIPAA. (v) Amendment and Incorporation of Amendments. Business Associate shall make PHI available for amendment and incorporate any amendments of PHI that have been agreed to by Covered Entity, at the request of Covered Entity or of the individual, in the time and manner designated by Covered Entity, in accordance with the requirements of HIPAA. (vi) Provide Accounting. Business Associate shall document and make available to Covered Entity or to the individual, any information necessary to provide an accounting of disclosures in accordance with the requirements of HIPAA in the time and manner designated by Covered Entity. The accounting provided by Business Associate under this subparagraph (vi) shall include: (a) the date of the disclosure; (b) the name, and address, if known, of the entity or person who received the PHI; (c) a brief description of the PHI disclosed; and (d) a brief statement of the purpose of the disclosure. (vii) Mitigation Procedures. Business Associate shall establish and provide to Covered Entity, upon request, procedures for mitigating, to the maximum extent practicable, any harmful effect from the use or disclosure of PHI in a manner contrary to this Agreement or HIPAA. Business Associate further agrees to mitigate any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate or anv subcontractor or agent of Business Associate in violation of this Agreement. (viii) Requests for Confidential Communications. Business Associate will comply with any agreements for confidential communications of which it is aware and to which Covered Entity agrees pursuant to HIPAA by communicating with Covered Entity's clients using agreed upon alternative means or alternative locations. e. Obligations of Covered Entity. (i) Notification of Changes. Covered Entity shall provide Business Associate with any changes in, or revocation of, permission by individual to use or disclose PHI, if such change affects Business Associate's permitted or required uses and disclosures of PHI. (ii) Notification of Restrictions. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with HIPAA. 1: Additional Termination Provisions. Notwithstanding the termination provisions contained in Paragraph 4 of this Agreement, this Agreement may be terminated immediately upon written notice by Covered Entity to Business Associate if Covered Entity determines, in its sole discretion, that Business Associate has violated any material term of this Paragraph 16. Business Associate's obligations under subparagraphs 16(b), (d) and (g) of this Paragraph 16, and as otherwise stated in this Paragraph 16, shall survive the termination of this Agreement °-. Disposition of PHI Upon Termination or Expiration. Upon termination of this Agreement, for any reason, Business Associate shall either return or destroy, at the option of Covered Entity, in Covered Entity's sole discretion, and in accordance with any instructions by Covered Entity, all PHI in the possession or control of Business Associate and its agents and subcontractors. However, in the event that Covered Entity determines that neither the return nor the destruction of the PHI is feasible, Business Associate may retain the PHI, provided, that Business Associate (i) continues to comply with the provisions of this Paragraph 16 for as long as Business Associate retains the PHI, and (ii) further limits its uses and disclosures of PHI under this Agreement to those purposes that make the return or destruction of the PHI infeasible. h. Amendment to Comply with Law. The parties acknowledge that state and federal laws relating to privacy are rapidly evolving and that amendment of this Paragraph 16 of this Agreement may be required to provide for procedures to ensure compliance with such developments. The parties specifically agree to take such action as is necessary to implement the standards and requirements of HIPAA and other applicable laws relating to the confidentiality of PHI. Upon a party's request, the other party to this Agreement agrees to promptly to enter into negotiations with the requesting party concerning the terms of any amendment to this Paragraph 16 embodving written assurances consistent with the standards and requirements of HIPAAA or other applicable laws or regulations. Notwithstanding any other provision in this Agreement to the contrary, the requesting party may terminate this Agreement upon thirty (30) days' written notice to non-requesting party in the event (i) non-requesting party does not promptly enter into negotiations to amend this Paragraph 16 when requested by the requesting party pursuant to this subparagraph or (ii)non-requesting party does not enter into an amendment to this Agreement to amend this Paragraph 16 providing assurances regarding the safeguarding of PHI that requesting parry, in its sole discretion, deems sufficient to satisfy the standards and requirements of HIPAA or as otherwise required by any applicable law or regulation. IN WITNESS WHEREOF, the parties hereto.. intending to be legally bound to the terms of this Agreement, have caused this Agreement to be executed as of the date.first written above. CONTRACT COUNSELOR: _ '?; Signature: Print Name: Jyts v r J DIAKON FAMILY LIFE SERVICES: v BY: Name: Brooke Fuller. LPC Title: Clinical Director. MHOP Family Life Services - Capitol Region Contract Counselor Rev. 2004 CHRISTIAN HESS, PLAINTIFF V. DIAKON LUTHERAN SOCIAL MINISTRIES, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENN§YLVANIA 10-3037 CIVIL TERM ORDER OF COURT c?' 1 Y AND NOW, this day of March, 2011, a Rule is issued on defendant, Diakon Lutheran Social Ministries, to show cause why the relief requested should not be granted. Rule returnable within twenty-one (21) days of service. Any answer filed shall be forwarded by the Prothonotary to chambers. By the Court, ,T ix r f Albert H. Masla d, J. Kathryn L. Simpson, Esquire For Plaintiff ? Craig A. Stone, Esquire For Defendant cop I? ll 3 I D? saa CHRISTIAN HESS, PLAINTIFF V. DIAKON LUTHERAN SOCIAL MINISTRIES, DEFENDANT AND NOW, this 10-3037 CIVIL TERM ORDER OF COURT day of March, 2011, upon consideration of plaintiffs motion for determination by the court of the necessity of filing a certificate of merit, and defendant's brief in response thereto, IT IS HEREBY ORDERED AND DIRECTED that argument shall commence at 11:00 a.m., Monday, May 16, 2011, in Courtroom Number 5, Cumberland County Courthouse, Carlisle, Pennsylvania. IT IS FURTHER ORDERED that plaintiff shall file a brief in support of their motion fifteen (15) days prior to argument. By the Court, Albert H. Maslan , J. 'Kathryn L. Simpson, Esquire For Plaintiff a`( Craig A. Stone, Esquire COP ies M iI p For Defendant -sto" las IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA :saa Y TARY 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 Attorneys for Defendant Diakon Lutheran Social Ministries q,? r _?, ` 11 5 CHRISTIAN HESS Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES Defendant DENITA ANN CAUSBEY-ROYSTER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA No: 10-3037 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED Additional Defendant DEFENDANT'S MOTION FOR COURT ORDER ALLOWING LIMITED DISCOVERY OF CRITICALLY RELEVANT RECORDS OF PLAINTIFF'S SISTER ALICE HESS AND NOW comes Defendant, Diakon Lutheran Social Ministries ("Diakon"), by and through its counsel, Marshall, Dennehey, Warner, Coleman & Goggin, and moves this Honorable Court for an Order allowing limited discovery of critically relevant records of Plaintiffs sister, Alice Hess, as follows: 1. Plaintiff, Christian Hess ("Plaintiff') commenced the instant action by filing a Praecipe for Writ of Summons on May 7, 2010. 2. Following some discovery in aid of pleading, Plaintiff filed a Complaint on January 6, 2011. A true and correct copy of Plaintiffs Complaint is attached hereto as Exhibit "A" 3. As alleged in the Complaint, Diakon is a non-profit entity offering various services to individuals and families, including as relevant in this case, outpatient substance-abuse treatment. Id. at IT 2-4. 4. The gravamen of Plaintiffs Complaint is that Diakon negligently supervised drug rehabilitation counseling of Plaintiff by Additional Defendant, Denita Royster ("Mrs. Royster"), resulting in the development of an improper personal relationship between Plaintiff and Mrs. Royster in contravention of counselor-patient professional boundaries and, allegedly, involving illegal drug transactions. Id. generally. 5. In support of this primary claim against Diakon, Plaintiff specifically avers that her sister, Alice Hess, who was also receiving treatment at Diakon at all relevant times, was told by Diakon's Clinical Director that she was aware of the above-described inappropriate conduct between Plaintiff and Mrs. Royster. Id. at ¶ 38. 6. Allegedly, "M week later", Diakon's Clinical Director called another of Plaintiffs sisters, Justine Hill,' and repeated what she had told Alice Hess. Id. at ¶¶ 38-40 (emphasis supplied). 7. By these allegations, Plaintiff is obviously attempting to establish that Diakon was aware of improper interactions between Plaintiff and Mrs. Royster, but failed to intervene in a timely fashion. ' Justine Hill has not received treatment at Diakon. 2 8. In investigating this case, the undersigned counsel has learned that Diakon first became aware of alleged inappropriate conduct by Mrs. Royster through Alice Hess, who so advised her Diakon Counselor during a treatment session on or about April 9, 2009. 9. At the time of this advisement, Alice Hess' Counselor wrote a detailed note in Alice Hess' records. 10. Thereafter, contrary to Plaintiffs allegations, Diakon immediately and appropriately terminated its relationship with Mrs. Royster. 11. Consistent with Diakon's lack of knowledge regarding alleged improprieties prior to on or about April 9, 2009 and Mrs. Royster's immediate termination, there is no information regarding the facts giving rise to this lawsuit documented in Plaintiffs records as maintained by Diakon. 12. Details surrounding notice to Diakon as to the claimed improper conduct between Plaintiff and Mrs. Royster are critically relevant. See Supporting Brief. 13. The need to discovery of such information is unquestionably great and sought in good faith by Diakon. See Supporting Brief. 14. Any potential harm to Alice Hess as a result of discovery of her records at Diakon will be nil. See Supporting Brief. WHEREFORE, Diakon respectfully requests that this Honorable Court enter the attached Order. MARSHAL k, DENNEHEY, WARNER, COLAN GOGGIN Dated: I M1 I By: t IA( one, Esquire Mich el C. Mongiello, Esquire 4200 Cnnns Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 4 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Motion has been served upon the following known counsel and parties of record this ISAID- day of April 2011, via United States First-Class Mail, postage prepaid: Kathryn L. Simpson, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, Pa 17110-0950 Sarah Kuhn 05/703845.v 5 ??,?yaiT 7 METTE, EVANS & WOODSIDE Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) CHRISTIAN HESS, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. DIAKON LUTHERAN SOCIAL MINISTRIES, Defendant : No. 10-3037 -CIVIL TERM CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE Y6U WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyers Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan ma's adelante en las siguientes pa'ginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despuds de la notificaci6n de esta Demanda y Aviso radicantopersonalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defenses de, y objections a, las demandas presentadas aqua en contra soya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o culquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin ma's aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUMWrE OFICINA, ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOME AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Lawyers Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 533929v1 Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 METTE, EVANS & WOODSIDE 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax kisimpson@,mette.com CHRISTIAN A. HESS, Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 10-3037 -CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT IN CIVIL ACTION 1. Plaintiff is Christian A. Hess, an adult individual, residing at 809A Fairfield Street, Mechanicsburg, Cumberland County, PA 17055. 2. Defendant is Diakon Lutheran Social Ministries ("DiakoW), a non-profit entity doing business as Diakon Family Life Services, 960 Century Drive, Mechanicsburg, Cumberland County, PA 17055. 3. Among other services, Diakon offers outpatient substance-abuse treatment services to individuals and their families. 1 4. At all times relevant to this Complaint, Diakon was a contractor for the Cumberland/Perry Mental Health/Mental Retardation Program and, among other things, was to provide outpatient substance-abuse treatment to individuals and their families. 5. In October 2008, Plaintiff was a resident at a halfway house following her discharge from a rehabilitation facility where she was treated for drug addiction to heroin. 6. Plaintiff was on probation for a DUI and other non-drug-related charges. 7. While at the halfway house, she was required by her probation officer to undergo counseling through Defendant for her drug addiction. 8. Plaintiff started her counseling through Defendant while she was still at the halfway house. 9. Denita Royster was the counselor assigned by Defendant to Plaintiff. 10. Upon her discharge from the halfway house, Plaintiff began seeing Ms. Royster at the Defendant's place of business in Mechanicsburg. 11. Because Plaintiff's treatment included family counseling, her half-sister, Justine Hill, accompanied her to some of her sessions with Ms. Royster. 12. Ms. Royster had an office at the Mechanicsburg facility of Defendant. 13. Ms. Royster wore a name tag that showed not only her name but that of Defendant. 14. Pursuant to its contract with the Cumberland/Perry Mental Health/Mental Retardation Program, Defendant was required to provide all counseling services through its employees and not subcontractors. 15. Plaintiff formed a close relationship with Ms. Royster and trusted her. 2 16. Within three (3) weeks of starting her outpatient treatment with Ms. Royster, Plaintiff began using heroin again. 17. Plaintiff requested the medical staff of Defendant prescribe Suboxone for her so that she could avoid a relapse. 18. Suboxone is a narcotic medication indicated for the treatment of opioid dependence, and is available only by prescription. 19. Defendant's medical director refused to prescribe Suboxone for Plaintiff. 20. Upon learning that Plaintiff was unable to obtain a prescription for Suboxone, Ms. Royster advised Plaintiff that she could obtain Suboxone for her. 21. Ms. Royster then communicated with Justine Hill, telling her that Ms. Royster could get Suboxone for Plaintiff and that the cost of the pills would be $1,200 for 200 pills. 22. Justine Hill told Ms. Royster that she could not afford $1,200, only $600 and she would take as many pills for Plaintiff as that amount would buy. 23. Justine Hill also told Ms. Royster that she wanted the pills in their original container so that she could verify that they were, in fact, Suboxone and that she wanted to dispense them to Plaintiff. 24. Justine Hill wrote a check for $600, as directed by Ms. Royster. 25. Shortly thereafter while Plaintiff was at a counseling session, Ms. Royster directedc Plaintiff to the parking lot and told her that "Mark" would give her the Suboxone. 26. Plaintiff went to the Defendant's parking lot and met with Mark, who she understood to be either Ms. Royster's husband or boyfriend, in his car. 3 27. Plaintiff and Mark then left the car and walked to the entrance to Defendant's Mechanicsburg facility and sat outside where they saw Patricia O'Donnell, the Defendant's Clinical Director, who asked Plaintiff how she was doing. 28. Plaintiff received eight to ten pills from Mark at that time. 29. Plaintiff returned to Justine Hill's house with three or four pills and told Justine that Ms. Royster said she would hold the remainder. 30. Ms. Royster had Mark purchase Suboxone a second time for Plaintiff. 31. The third time that Ms. Royster said she could arrange for Suboxone to be purchased for Plaintiff, she was unable to do so. 32. During this time period, Plaintiff was arguing with Justine Hill with whom she was living, and would stay away from Justin's home and stay with others, including Ms. Royster and Mark at their home. 33. Ms. Royster and Mark told Plaintiff that she could stay at their home until they could find a way to get her more Suboxone. 34. While in Ms. Royster's home, Plaintiff was provided with heroin by Mark. 35. Taking advantage of Plaintiff s drug-dependent condition, Ms. Royster obtained $200 from Plaintiff for a student loan payment 36. Ms. Royster also attempted to have Plaintiff change the name on her bank account to eliminate Justine Hill's name on the account and to include Ms. Royster's instead. 37. Plaintiff then reentered rehabilitation in late March 2009. 38. Plaintiff's sister, Alice Hess, who was treating with Ms. O'Donnell, was told by Ms. O'Donnell that she was aware what was going on between Ms. Royster, Mark and the Plaintiff and that were providing drugs to Plaintiff. 4 39. A week later, Ms. O'Donnell called Justine Hill and repeated what she had told Alice Hess. 40. In that phone conversation, Ms. O'Donnell also said that she had suspected that something improper was going on, starting with her seeing Plaintiff in Mark's car in Defendant's parking lot. 41. At Ms. O'Donnell's request, Justine Hill met with her to discuss what Ms. O'Donnell knew about Ms. Royster and Mark 42. At that meeting, Justine showed Ms. O'Donnell text messages that Mark had sent to her threatening her and her family if payment was not made for the drugs he was providing to Plaintiff. 43. Justine also provided a copy of the check she wrote for the Suboxone and two of Plaintiffs checks that Ms. Royster had forged. 44. Ms. O'Donnell told Justine Hill that she had a team of lawyers in the next room and that Justine had to sign a paper. 45. Ms. O'Donnell provided a paper for Justine Hill to sign but her brother, Paul Ensminger who was with her, advised Justine not to sign it. COUNTI BREACH OF FIDUCIARY DUTY 46. The averments contained in paragraph 1 through 45 are incorporated. 47. Plaintiff had a confidential relationship with Defendant where Defendant agreed to provide her with substance abuse counseling and treatment. 5 48. Defendant provided Plaintiff with a counselor to accomplish the substance abuse counseling. 49. Plaintiff trusted her counselor and depended upon her for guidance and advice in treating Plaintiff's substance abuse problem. 54. Plaintiff believed that Ms. Royster was an employee of Defendant and, at all times, was acting in the scope of that employment. 51. At the time Plaintiff was receiving counseling from Defendant, she was 18 years of age. 52. Defendant negligently failed to act in good faith and solely for the benefit of Plaintiff when it failed to supervise the counselor providing services to Plaintiff. 53. As a result of Defendant's failure to supervise the counselor who provided drugs to PlaintifL as described above, Plaintiffs drug dependency was deepened, not alleviated, and she had to undergo additional rehabilitation efforts. 54. As a result of Defendant's failure to supervise the counselor who provided Plaintiff with drugs, Plaintiff and her family were threatened with violence by the counselor's husband/boyfriend because of his claims that Plaintiff owed him money for the drugs. 55. Defendant's failure to act solely for the benefit of Plaintiff was a real factor in bringing about Plaintiffs injuries. WHEREFORE, Plaintiff demands compensatory and punitive damages in her favor and against Defendant in an amount in excess of the arbitration limits of this Court plus costs of suit and interest. 6 COUNT H BREACH OF CONTRACT 56. The averments contained in paragraphs 1 through 55 are incorporated. 57. Plaintiff entered into an oral agreement with Defendant whereby Defendant agreed to provide rehabilitative services for Plaintiff's drug dependence problems. 58. Defendant owed Plaintiff the duty to provide those services. 59. To provide those services, Defendant assigned Ms. Royster to Plaintiff as her counselor. 60. Defendant's responsibilities with regard to carrying out the duties owed to Plaintiff were performed by Ms. Royster in fulfillment of the contract between it and Plaintiff. 61. Instead of providing rehabilitative services, Defendant, through Ms. Royster, provided her with drugs that was in direct contravention of the treatment/therapy required by Plaintiff. 62. As a result of the ingestion of the drugs provided by Ms. Royster, which Defendant knew or should have known about had it exercised due care, Plaintiff relapsed and had to undergo further in-patient rehabilitation. 63. Defendant breached its contract with Plaintiff by not providing her with the treatment/counseling it promised to provide. WHEREFORE, Plaintiff demands compensatory damages in her favor and against Defendant in an amount in excess of the arbitration limits of this Court plus costs of suit and interest. 7 Respectfully submitted, METTE, JEVANS & WOODSIDE Katbtyn L. sod, Esquirc S . Ct. I. o. 28960 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Date January 5, 2011 531000v1 8 VERIFICATION I, CHRISTIAN HESS, have read the foregoing document and verify that the facts set forth herein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. DATED: f CHRISTIAN HESS CERTIFICATE OF SERVICE I, Kathryn L. Simpson, Esquire, hereby certify that on this day I caused a true and correct copy of the foregoing document to be served on each of the following individuals by United States mail, first class, postage prepaid, addressed as follows: Craig A. Stone, Esquire MARSHALL, DENNEHEy, WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Respectfully submitted, ANS & WOODSIDE By: Su15. Ct. LD/No. 2896V 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff, Christian Hess Date: January 5, 2011 529737v1 CHRISTIAN HESS, PLAINTIFF V. DIAKON LUTHERAN SOCIAL MINISTRIES, DEFENDANT V. DENITA ANN CAUSBEY-ROYSTER, ADDITIONAL DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 10-3037 CIVIL TERM c? r.1 C:? -r- -urn F I- r--;E ca ca r?. S . ORDER OF COURT AND NOW, this day of April, 2011, upon consideration of defendant's motion for court order allowing limited discovery of critically relevant records of plaintiff's sister, Alice Hess, a Rule is issued on defendant, additional defendant and Alice Hess, to show cause why the requested relief should not be granted. Defendant Diakon Lutheran Social Ministries shall ensure that Alice Hess is served with a copy of this order. This Rule is returnable and to be heard on Monday, May 16, 2011, at 11:00 a.m., in Courtroom Number 5, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, Albert H. Masland, J. Kathryn L. Simpson, Esquire - For Plaintiff vtCraig A. Stone, Esquire ?P 4114 I it I For Defendant D saa 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 Attorneys for Defendant Diakon Lutheran Social Ministries OF TH?PRO Tt;C OTAR 2011 JUL I I PIN (. 26 CUMBERLAND COUNTY PENNSYLVANIA CHRISTIAN HESS Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES Defendant DENITA ANN CAUSBEY-ROYSTER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA No: 10-3037 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED Additional Defendant NOTICE TO PLEAD TO: Christian Hess c/o Kathryn L. Simpson, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, Pa 17110-0950 You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from service hereof or a default judgment may be filed against you. MARSHALL, D NNEHEY, WARNER, COLEMAN & NOGGIN 05/741912.v1 BY: Michajl?(C?Mo llo, Esquire 4200 rum Mi oad, Suite B Harrisburg, PA 17112 (717) 651-3500 FILED-OFFICE OF T!w PR-TH0140TARY CRAIG A. STONE, ESQUIRE I.D. No. 15907 ?U JUL { Phi 1: 26 MICHAEL C. MONGIELLO, ESQUIRE CUj?PERL COUNTY I.D. No. 87532 ? ? Marshall, Dennehey, Warner, Coleman & Goggin P?.Nld$ Y?.YA?? 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorneys for Defendant Diakon Lutheran Social Ministries CHRISTIAN HESS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiff V. No: 10-3037 Civil Term CIVIL ACTION - LAW DIAKON LUTHERAN SOCIAL MINISTRIES JURY TRIAL DEMANDED Defendant DENITA ANN CAUSBEY-ROYSTER Additional Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW comes Defendant, Diakon Lutheran Social Ministries ("Diakon"), by and through its counsel, Marshall, Dennehey, Warner, Coleman & Goggin, and preliminarily objects to Plaintiffs Complaint as follows: I . Plaintiff, Christian Hess ("Plaintiff') commenced the instant action by filing a Praecipe for Writ of Summons on May 7, 2010. 2. Following some discovery in aid of pleading, Plaintiff filed a Complaint on January 6, 2011. A true and correct copy of Plaintiffs Complaint is attached hereto as Exhibit "A" 3. In her Complaint, Plaintiff alleges that Defendant, Diakon Lutheran Social Ministries ("Diakon") is a non-profit entity offering various services to individuals and families, including, inter alia, outpatient substance abuse treatment. Id. at ¶¶ 2-3. 4. Plaintiff claims that Diakon breached a fiduciary duty to, and contract with, Plaintiff, arising out of "a confidential relationship with [Diakon] where [Diakon] agreed to provide her with substance abuse counseling and treatment." Id. generally. 5. Specifically, Plaintiff alleges that Diakon failed to exercise due care by properly supervising Additional Defendant, Denita Causbey-Royster ("Mrs. Causbey-Royster"), a Counselor assigned to Plaintiff, resulting in the development of an improper personal relationship between Plaintiff and Mrs. Royster in contravention of counselor-patient professional boundaries and, allegedly, involving illegal drug transactions. Id. generally. 6. Appreciating that Plaintiffs Complaint against Diakon sounds in professional liability, on February 23, 2011, Diakon served Plaintiff with a Thirty Day Notice of Intention to Enter Judgment of Non Pros on Professional Liability Claims Pursuant to Pa. R.C.P. No. 1042.6. 7. On March 8, 2011, Plaintiff filed a Motion for Determination by the Court of the Necessity of Filing a Certificate of Merit. Briefs were timely filed by Plaintiff and Diakon, and this issue was argued before the Honorable Albert H. Masland on May 16, 2011, with a decision currently pending in this regard. 9. Plaintiffs Complaint is legally deficient in certain respects other than the lack of requisite supporting Certificate of Merits. 10. Accordingly, pursuant to Pa.R.C.P. No. 1042.4, the instant Preliminary Objections to Plaintiffs Complaint are now being timely filed. 2 A. PLAINTIFF'S CLAIM AGAINST DIAKON FOR BREACH OF CONTRACT SHOULD BE STRICKEN FROM HER COMPLAINT AS REDUNDANT OF HER CLAIM AGAINST DIAKON FOR BREACH OF FIDUCIARY DUTY 11. Plaintiffs Complaint contains two (2) separately plead claims against Diakon, for "breach of fiduciary duty" and for "breach of contract." See Exhibit "Aheretos, Counts I and II respectively. 12. Both claims factually arise out of the alleged development of an improper personal relationship between Plaintiff and Mrs. Causbey-Royster in contravention of counselor- patient professional boundaries in the context of outpatient substance abuse treatment and, allegedly, involving illegal drug transactions. Id. generally. 13. When Plaintiffs crafty labeling tactics and use of negligibly different wording amongst claims is set aside, there is absolutely no difference Plaintiffs claims for "breach of fiduciary duty" and "breach of contract," and the latter claim should be stricken from Plaintiffs Complaint, with prejudice. See Supporting Brief. WHEREFORE, Defendant, Diakon Lutheran Social Ministries respectfully requests that this Honorable Court enter the attached Order. B. THE ALLEGED IMPROPER CONDUCT OF MRS. CAUSBEY-ROYSTER WAS CLEARLY OUTSIDE THE SCOPE OF HIS EMPLOYMENT WITH DIAKON, THEREBY DEFEATING ANY VICARIOUS LIABILITY CLAIM BEING ASSERTED AGAINST DIAKON AS A MATTER OF LAW 14. In her Complaint, Plaintiff makes allegations to suggest that there was an agency relationship between Mrs. Causbey-Royster and Diakon. See Exhibit "A", ¶¶ 9-10. 12-13, 50 and 59. 15. These allegations, when read in conjunction with Plaintiffs substantive claims against Diakon (see Counts I and II), can be interpreted to give rise to a cause of action against Diakon for vicarious liability based on the conduct of Mrs. Causbey-Royster. 3 16. This is so notwithstanding that the underlying facts averred in this case involve illegal drug transactions occurring between Plaintiff and Mrs. Causbey-Royster outside of Diakon for the sole purpose of personal financial gain to Mrs. Causbey-Royster. Id. at ¶¶ 20-36. 17. Specifically, Plaintiff avers that Mrs. Causbey-Royster took advantage of Plaintiffs drug-dependent condition, taking monies from her in order to make payment on her student loan and attempting to gain access to Plaintiffs bank account. Id. at ¶¶ 35-36 and 49. 18. The improper conduct that Mrs. Causbey-Royster allegedly engaged in was undeniably outside of the scope of her employment with Diakon. See Supporting Brief. 19. Thus, by Plaintiffs own Complaint, any claim being pursued against Diakon for vicarious liability should be dismissed with prejudice for failure to state a claim upon which relief can be granted. See Supporting Brief. WHEREFORE, Defendant, Diakon Lutheran Social Ministries respectfully requests that this Honorable Court enter the attached Order. C. PLAINTIFF SHOULD BE ORDERED TO FILE AN AMENDED COMPLAINT SEPARATING OUT ANY CAUSE OF ACTION FOR VICARIOUS LIABILITY TO BE PURSUED AGAINST DIAKON, AND NOT DISMISSED AS A RESULT OF THE FOREGOING PRELIMINARY OBJECTION, WITH A RESPECTIVE DEMAND FOR RELIEF IN ACCORDANCE WITH PA.R.C.P. NO. 1020(a) 20. In her Complaint, Plaintiff specifically pleads causes of action against Diakon for "breach of fiduciary duty" (i.e., negligent supervision) and "breach of contract" (which is duplicative of Plaintiffs "breach of fiduciary duty" claim). See Exhibit "A" hereto, Counts I and II respectively. 4 21. Within Counts I and II, Plaintiff intermingles agency type allegations, which can be read to give rise to an additional cause of action for vicarious liability. Id. at ¶¶ 9-10, 12-13, 50 and 59. 22. To the extent that Plaintiff intends to pursue a vicarious liability claim against Diakon, assuming that such is not dismissed in response to the foregoing Preliminary Objection, Plaintiffs Complaint is improperly plead. See Supporting Brief. 23. If a vicarious liability claim against Diakon is allowed to proceed, Plaintiff should be ordered to file an Amended Complaint separately pleading such a cause of action in an individual counts. See Supporting Brief. WHEREFORE, Defendant, Diakon Lutheran Social Ministries respectfully requests that this Honorable Court enter the attached Order. , WARNER, Dated: ?11t By: Craig A.I orl=uire Michael C.\\Mo giello, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 5 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Preliminary Objections has been served upon the following known counsel and parties of record this I* day of July 2011, via United States First-Class Mail, postage prepaid: Kathryn L. Simpson, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, Pa 17110-0950 Fred Buck, Esquire Rawle & Henderson, LLP 1339 Chestnut Street One South Penn Square Widener Bldg, 16th Floor Philadelphia, PA 19107 05/741854.v1 Sarah Kuhn 6 ?X?4??iT b3125-01661 P)r.?t,?y f METTE, EVANS & WOODSIDE Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 {7l--Q 236-1816 (fax) CHRISTIAN HESS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 10-3037 -CIVIL TERM DLAKON LUTHERAN SOCIAL CIVIL ACTION - LAW MINISTRIES, Defendant JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE Y6U WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyers Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mss adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despuds de la notificaci6n de esta Demands y Aviso radicantopersonalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defenses de, y objecciones a, las demandas presentadas aqua en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier sums de dinero reclamada en la demanda o culquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra soya por la Corte sin mis aviso adicional. Usted puede perder dinero o propiedad u otros derechos importances para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA, ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOME AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Lawyers Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 533929v1 Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 METTE, EVANS & WOODSIDE 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax klsimpson@,mette.com CHRISTIAN A. HESS, Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 10-3037 - CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT IN CIVIL ACTION 1. Plaintiff is Christian A. Hess, an adult individual, residing at 809A Fairfield Street, Mechanicsburg, Cumberland County, PA 17055. 2. Defendant is Diakon Lutheran Social Ministries ("Diakon'?, a non-profit entity doing business as Diakon Family Life Services, 960 Century Drive, Mechanicsburg, Cumberland County, PA 17055. 3. Among other services, Diakon offers outpatient substance-abuse treatment services to individuals and their families. 1 4. At all times relevant to this Complaint, Diakon was a contractor for the Cumberland/Perry Mental Health/Mental Retardation Program and, among other things, was to provide outpatient substance-abuse treatment to individuals and their families. 5. In October 2008, Plaintiff was a resident at a halfway house following her discharge from a rehabilitation facility where she was treated for drug addiction to heroin. 6. Plaintiff was on probation for a DUI and other non-drag-related charges. 7. While at the halfway house, she was required by her probation officer to undergo counseling through Defendant for her drug addiction. 8. Plaintiff started her counseling through Defendant while she was still at the halfway house. 9. Denita Royster was the counselor assigned by Defendant to Plaintiff. 10. Upon her discharge from the halfway house, Plaintiff began seeing Ms. Royster at the Defendant's place of business in Mechanicsburg. 11. Because Plaintiff s treatment included family counseling, her half-sister, Justine Hill, accompanied her to some of her sessions with Ms. Royster. 12. Ms. Royster had an office at the Mechanicsburg facility of Defendant. 13. Ms. Royster wore a name tag that showed not only her name but that of Defendant. 14. Pursuant to its contract with the Cumberland/Perry Mental Health/Mental Retardation Program, Defendant was required to provide all counseling services through its employees and not subcontractors. 15. Plaintiff formed a close relationship with Ms. Royster and trusted her. 2 16. Within three (3) weeks of starting her outpatient treatment with Ms. Royster, Plaintiff began using heroin again. 17. Plaintiff requested the medical staff of Defendant prescribe Suboxone for her so that she could avoid a relapse. 18. Suboxone is a narcotic medication indicated for the treatment of opioid dependence, and is available only by prescription. 19. Defendant's medical director refused to prescribe Suboxone for Plaintiff. 20. Upon learning that Plaintiff was unable to obtain a prescription for Suboxone, Ms. Royster advised Plaintiff that she could obtain Suboxone for her. 21. Ms. Royster then communicated with Justine Hill, telling her that Ms. Royster could get Suboxone for Plaintiff and that the cost of the pills would be $1,200 for 200 pills. 22. Justine Hill told Ms. Royster that she could not afford $1,200, only $600 and she would take as many pills for Plaintiff as that amount would buy. 23. Justine Hill also told Ms. Royster that she wanted the pills in their original container so that she could verify that they were, in fact, Suboxone and that she wanted to dispense them to Plaintiff. 24. Justine Hill wrote a check for $600, as directed by Ms. Royster. 25. Shortly thereafter while Plaintiff was at a counseling session, Ms. Royster directedc Plaintiff to the parking lot and told her that "Mark" would give her the Suboxone. 26. Plaintiff went to the Defendant's parking lot and met with Mark, who she understood to be either Ms. Royster's husband or boyfriend, in his car. 27. Plaintiff and Mark then left the car and walked to the entrance to Defendant's Mechanicsburg facility and sat outside where they saw Patricia O'Donnell, the Defendant's Clinical Director, who asked Plaintiff how she was doing. 28. Plaintiff received eight to ten pills from Mark at that time. 29. Plaintiff returned to Justine Hill's house with three or four pills and told Justine that Ms. Royster said she would hold the remainder. 30. Ms. Royster had Mark purchase Suboxone a second time for Plaintiff. 31. The third time that Ms. Royster said she could arrange for Suboxone to be purchased for Plaintiff, she was unable to do so. 32. During this time period, Plaintiff was arguing with Justine Hill with whom she was living, and would stay away from Justine's home and stay with others, including Ms. Royster and Mark at their home. 33. Ms. Royster and Mark told Plaintiff that she could stay at their home until they could find a way to get her more Suboxone. 34. While in Ms. Royster's home, Plaintiff was provided with heroin by Mark. 35. Taking advantage of Plaintiff s drug-dependent condition, Ms. Royster obtained $200 from Plaintiff for a student loan payment 36. Ms. Royster also attempted to have Plaintiff change the name on her bank account to eliminate Justine Hill's name on the account and to include Ms. Royster's instead. 37. Plaintiff then reentered rehabilitation in late March 2009. 38. Plaintiff's sister, Alice Hess, who was treating with Ms. O'Donnell, was told by Ms. O'Donnell that she was aware what was going on between Ms. Royster, Mark and the Plaintiff and that were providing drugs to Plaintiff. 4 39. A week later, Ms. O'Donnell called Justine Hill and repeated what she had told Alice Hess. 40. In that phone conversation, Ms. O'Donnell also said that she had suspected that something improper was going on, starting with her seeing Plaintiff in Mark's car in Defendant's parking lot. 41. At Ms. O'Donnell's request, Justine Hill met with her to discuss what Ms. O'Donnell knew about Ms. Royster and Mark 42. At that meeting, Justine showed Ms. O'Donnell text messages that Mark had sent to her threatening her and her family if payment was not made for the drugs he was providing to Plaintiff. 43. Justine also provided a copy of the check she wrote for the Suboxone and two of Plaintiffs checks that Ms. Royster had forged. 44. Ms. O'Donnell told Justine Hill that she had a team of lawyers in the next room and that Justine had to sign a paper. 45. Ms. O'Donnell provided a paper for Justine Hill to sign but her brother, Paul Ensminger who was with her, advised Justine not to sign it. COUNTI BREACH OF FIDUCIARY DUTY 46. The averments contained in paragraph 1 through 45 are incorporated. 47. Plaintiff had a confidential relationship with Defendant where Defendant agreed to provide her with substance abuse counseling and treatment. 5 48. Defendant provided Plaintiff with a counselor to accomplish the substance abuse counseling. 49. Plaintiff trusted her counselor and depended upon her for guidance and advice in treating Plaintiffs substance abuse problem. 50. Plaintiff believed that Ms. Royster was an employee of Defendant and, at all times, was acting in the scope of that employment. 51. At the time Plaintiff was receiving counseling from Defendant, she was 18 years of age. 52. Defendant negligently failed to act in good faith and solely for the benefit of Plaintiff when it failed to supervise the counselor providing services to Plaintiff. 53. As a result of Defendant's failure to supervise the counselor who provided drugs to Plaintiff, as described above, Plaintiff's drug dependency was deepened, not alleviated, and she had to undergo additional rehabilitation efforts. 54. As a result of Defendant's failure to supervise the counselor who provided Plaintiff with drugs, Plaintiff and her family were threatened with violence by the counselor's husband/boyfriend because of his claims that Plaintiff owed him money for the drugs. 55. Defendant's failure to act solely for the benefit of Plaintiff was a real factor in bringing about Plaintiff s injuries. WHEREFORE, Plaintiff demands compensatory and punitive damages in her favor and against Defendant in an amount in excess of the arbitration limits of this Court plus costs of suit and interest. 6 COUNT H BREACH OF CONTRACT 56. The averments contained in paragraphs I through 55 are incorporated. 57. Plaintiff entered into an oral agreement with Defendant whereby Defendant agreed to provide rehabilitative services for Plaintiff's drug dependence problems. 58. Defendant owed Plaintiff the duty to provide those services. 59. To provide those services, Defendant assigned Ms. Royster to Plaintiff as her counselor. 60. Defendant's responsibilities with regard to carrying out the duties owed to Plaintiff were performed by Ms. Royster in fulfillment of the contract between it and Plaintiff. 61. Instead of providing rehabilitative services, Defendant, through Ms. Royster, provided her with drugs that was in direct contravention of the treatment/therapy required by Plaintiff. 62. As a result of the ingestion of the drugs provided by Ms. Royster, which Defendant knew or should have known about had it exercised due care, Plaintiff relapsed and had to undergo further in-patient rehabilitation. 63. Defendant breached its contract with Plaintiff by not providing her with the treatment/counseling it promised to provide. WIMREFORE, Plaintiff demands compensatory damages in her favor and against Defendant in an amount in excess of the arbitration limits of this Court plus costs of suit and interest. 7 Respectfi dly submitted, METTE, YVANS & WOODSIDE Kn Lpsod, Esquire Sul/ Ct. I. o. 28960 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Date January 5, 2011 531000vi VERIFICATION I, CHRISTIAN HESS, have read the foregoing document and verify that the facts set forth herein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. DATED: 2116 ` CHRISTIAN HESS CERTIFICATE OF SERVICE I, Kathryn. L. Simpson, Esquire, hereby certify that on this day I caused a true and correct copy of the foregoing document to be served on each of the following individuals by United States mail, first class, postage prepaid, addressed as follows: Craig A. Stone, Esquire MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney far Defendant Respectfully submitted, ANS & WOODSIDE By: Sufi. Ct. LD-. No. 2896V 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff, Christian Hess Date: January 5, 2011 529737vt RAWLE & HENDERSON LLP By: Fred B. Buck, Esquire/Patrice s. O'Brien Identification No. 31642/47482 The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 575-4200 ( t l-?S€??ilat I1 SEP 2$ PH 1: 1 Att qWl t NT1 Defendant, ?-Royster CHRISTIAN HESS V. DIAKON LUTHERAN SOCIAL MINISTRIES V. DENITA ANN CAUSBEY-ROYSTER COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 10-3037 ADDITIONAL DEFENDANT, DENITA ANN CAUSBEY-ROYSTER'S MOTION SEEKING A COURT ORDER DIRECTING WHITE DEER RUN, INC. TO PRODUCE ITS TREATMENT RECORDS And now, additional defendant, Denita Ann Causbey-Royster, hereinafter "Ms. Royster," by and through her attorneys, Rawle & Henderson, LLP, hereby moves this Honorable Court to issue an Order in the form proposed directing White Deer Run of Williamsport to produce any and all psychiatric and/or drug and alcohol abuse records pertaining to Plaintiff, Christian Hess, and avers as follows: 1. On or about January 6, 2009, plaintiff, Christian Hess, initiated this action against defendant, Diakon, for injuries allegedly resulting from breach of contract regarding plaintiff's drug and/or alcohol rehabilitative treatment. 2. Diakon joined additional defendant, Denita Ann Causbey-Royster, on March 7, 2011. See Joinder Complaint, attached hereto as Exhibit "A." The Joinder Complaint asserts that Ms. Causbey-Royster was a counselor assigned by Diakon to Plaintiff whose alleged 4866032-1 improper conduct is the basis of Plaintiff's allegations of breach of oral contract against Diakon. Id. 3. On June 22, 2011, additional defendant served plaintiff with a notice of intent to serve a subpoena to produce Gateway Health Plan insurance records, Pyramid Ridgeview psychiatric records, White Deer Run of Williamsport psychiatric records, Youth Services Agency records, and Evergreen House psychiatric records. See Notice of Intent, attached hereto as Exhibit "B." 4. On July 14, 2011 a subpoena was issued, requesting the records for plaintiff, Christian Hess, from White Deer Run of Williamsport pursuant to Pennsylvania Rule of Civil Procedure 4009.22. See Subpoena, attached hereto as Exhibit "C." Additional defendant has since received a letter dated July 28, 2001 from Robyn Thomas, the Medical Records Technician for White Deer Run, Inc., stating that the facility is unable to admit or produce such records according to both federal regulations and Pennsylvania State law without a court order. See Letter, attached hereto as Exhibit "D." 6. Additional Defendant will be severely prejudiced without the records of Christian Hess from White Deer Run, as her drug abuse, treatment and rehabilitation is the central issue of this lawsuit. 7. As such, Additional Defendant respectfully request that this Honorable Court enter an Order compelling the production of any and all psychiatric and/or drug and alcohol abuse records from White Deer Run of Williamsport pertaining to Plaintiff, Christian Hess. 4866032-1 WHEREFORE, Additional Defendant respectfully requests that this Court grant the within Motion and enter the proposed Order setting forth the relief requested. RAWLE & HENDERSON LLP By: at ce S. O'Brien, Esquire Attorneys for Additional Defendant, Denita Ann Causbey-Royster The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 575-4200 4866032-1 RAWLE & HENDERSON LLP By: Fred B. Buck, Esquire/Patrice s. O'Brien Identification No. 31642/47482 The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 575-4200 Attorneys for Additional Defendant, Denita Ann Causbey-Royster CHRISTIAN HESS V. DIAKON LUTHERAN SOCIAL MINISTRIES V. DENITA ANN CAUSBEY-ROYSTER CIVIL ACTION - LAW NO. 10-3037 MEMORANDUM OF LAW IN SUPPORT OF ADDITIONAL DEFENDANT, DENITA ANN CAUSBEY-ROYSTER'S MOTION FOR A COURT ORDER DIRECTING WHITE DEER RUN. INC. TO PRODUCE ITS TREATMENT RECORDS 1. II. III. MATTER BEFORE THE COURT Additional Defendant, Denita Ann Causbey-Royster's Motion requesting a Court Order compelling White Deer Run of Williamsport to produce any and all psychiatric and/or drug and alcohol abuse records pertaining to Plaintiff, Christian Hess. QUESTION PRESENTED Should this Court issue an Order directing White Deer Run to produce plaintiff's treatment records where plaintiff has placed her mental health and drug and/or alcohol use directly at issue and the records are essential to the ability to prepare a defense, and White Deer Run is willing and able provided a Court Order is issued? Suggested Answer: Yes. FACTS On or about January 6, 2009, plaintiff, Christian Hess, initiated this action against defendant, Diakon, for injuries allegedly resulting from breach of contract regarding plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA 4866032-] 4. drug rehabilitative treatment. Diakon joined additional defendant, Denita Ann Causbey-Royster, who treated the plaintiff while she was a patient at Diakon. On June 22, 2011, additional defendant served plaintiff with a notice of intent to serve a subpoena. See Notice of Intent, attached hereto as Exhibit "B." Under cover letter dated July 6, 2011, additional defendant served plaintiff with discovery. See Cover Letter, attached hereto as Exhibit "E." On July 14, 2011 a subpoena was issued, requesting the records for plaintiff, Christian Hess, from White Deer Run of Williamsport pursuant to Pennsylvania Rule of Civil Procedure 4009.22. See Subpoena, attached hereto as Exhibit "C." Additional defendant has since received a letter dated July 28, 2001 from Robyn Thomas, the Medical Records Technician for White Deer Run, Inc., stating that the facility is unable to admit or produce such records according to both federal regulations and Pennsylvania State law without a court order. See Letter, attached hereto as Exhibit "D." IV. LEGAL ARGUMENT Plaintiff initiated this action regarding the rehabilitative treatment received, placing the mental health of Christian Hess at issue. Additional defendant has not received all existing psychiatric records for plaintiff, Christian Hess. The psychiatric and/or drug and alcohol abuse records from White Deer Run are relevant and necessary to prepare a proper defense to the allegations Plaintiff has made against additional defendant, Ms. Royster. Defendants will be severely prejudiced without the records, as plaintiff's prior drug abuse, treatment and rehabilitation is a central issue of this lawsuit. Under the provisions of the Drug Abuse Prevention, Treatment and Rehabilitation Act, White Deer Run is prohibited from disclosing information or records relating to a present or former patient unless an order is obtained from a court of competent jurisdiction. 21 U.S.C. §§ 4866032-1 1175 et sue. Pennsylvania state law also requires a court order be issued before confidential drug and alcohol patient records be released. 71 P.S. § 1690.108. As such, White Deer Run is prohibited from producing the treatment records of Christian Hess subpoenaed by Ms. Royster absent a Court Order. See Exhibit "D." V. CONCLUSION Based upon the foregoing, additional defendant, Denita Ann Causbey-Royster, respectfully requests that this Honorable Court grant her Motion and enter an Order directing White Deer Run of Williamsport to produce any and all psychiatric and/or drug and alcohol treatment records pertaining to Plaintiff, Christian Hess. RAWLE & HENDERSON LLP By:_ V rice S. O'Brien, Esquire Attorneys for Defendant, Denita Ann Causbey-Royster The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 575-4200 4866032-1 4 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the foregoing Additional Defendant's Motion to Compel was sent by First Class mail, postage prepaid, to the following counsel of record on the date indicated below: Kathryn Simpson, Esquire Mette, Evans and Woodside 3401 North Front Street Harrisburg, PA 17110-0950 Attorneys for plaintiff Michael C. Mongiello, Esquire Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorneys for defendant Diakon Lutheran Social Ministries RAWLE & HENDERSON LLP By: I?Orice S. O'Brien, Esquire Attorneys for Defendant, Denita Ann Causbey-Royster The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 575-4200 Dated: ` -/ D o j ? ? 4866032-1 EXHIBIT A 4513087-1 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorneys for Defendant Diakon Lutheran Social Ministries I.D. No. 15907 MICHAEL C. MONGIELLO, ESQUIRE I.D. No. 87532 , T1 'M Ci'j.?i'•?3`i Marshall, Dennehey, Warner, Coleman & Goggin i r+, tii CRAIG A. STONE, ESQUIRE CHRISTIAN HESS Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES Defendant DENITA ANN CAUSBEY-ROYSTER Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA No: 10-3037 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. MidPenn Legal Services 401 East Louther Street, Suite 103 Carlisle, PA 17013 (800) 822-5288 NOTICIA Le han demandado a usted en la cone. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted Puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. MidPenn Legal Services 401 East Louther Street, Suite 103 Carlisle, PA 17013 (800) 822-5288 • 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 Attorneys for Defendant Diakon Lutheran Social Ministries CHRISTIAN HESS Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES Defendant DENITA ANN CAUSBEY-ROYSTER Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA No: 10-3037 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT DIAKON LUTHERAN SOCIAL MINISTRIES' JOINDER COMPLAINT AGAINST ADDITIONAL DEFENDANT DENITA ANN CAUSBEY-ROYSTER AND NOW comes the Defendant, Diakon Lutheran Social Ministries ("hereinafter "Diakon"), by and through its attorneys Marshall, Dennehey, Warner, and Coleman & Goggin, and files a Complaint against Additional Defendant based on the following allegations: 1. On or about January 6, 2009, Plaintiff, Christian Hess (hereinafter "Plaintiff') filed a Complaint against Diakon, a copy of which is attached hereto, made a part hereof and marked as Exhibit A. 2. Additional Defendant, Denita Ann Causbey-Royster (hereinafter "Additional Defendant") is an adult individual, residing at 1658 Peachtree Lane, Chambersburg, PA 17202. 3. It is alleged in Exhibit A that Additional Defendant was at all relevant times a counselor assigned by Diakon to Plaintiff. See Exhibit A, paragraph 9. 4. It is alleged in Exhibit A that Additional Defendant had an office at the Mechanicsburg facility of Diakon. See Exhibit A, paragraph 10. 5. It is alleged that Additional Defendant wore a name tag that showed not only her name but that of Diakon. See Exhibit A, paragraph 13. 6. It is alleged that Plaintiff believed that Additional Defendant was an employee of Defendant and, at all times, was acting in the scope of that employment. See Exhibit A, paragraph 50. 7. It is alleged that Additional Defendant provided substance abuse counseling and treatment services to Plaintiff for an undefined period of time in late 2008 through early 2009. See Exhibit A, paragraphs 5-45. 8. It is alleged that Diakon breached its fiduciary duty to Plaintiff in failing to supervise Additional Defendant, who provided illegal drugs to Plaintiff and engaged in other improper conduct. Id. and sec Exhibit A, Count 1. 9. It is alleged that Diakon breached an oral contract with Plaintiff to provide rehabilitative services for drug dependence problems because, through Additional Defendant, Plaintiff was provided illegal drugs and was subject to other improper conduct. Id. and see Exhibit A, Count II. 10. On December 22, 2008, Diakon entered into a "Family Life Services Contract Counselor Agreement" with Additional Defendant providing for the provision of "professional counseling and testing services to clients assigned to [Additional Defendant] by [Diakon] on an 4 individual or a family basis at a location to be determined by [Diakon]". A copy of said agreement is attached hereto, made a part hereof and marked as Exhibit B. 11. Exhibit B remained in force from December 22, 2008 through January 12, 2009. Id. 12. On January 12, 2009, Diakon entered into a second agreement with Additional Defendant providing for the provision of "professional counseling and testing services to clients assigned to [Additional Defendant] by [Diakon] on an individual or a family basis at a location to be determined by [Diakon]". A copy of said agreement is attached hereto, made a part hereof and marked as Exhibit C. 13. Exhibit C remained in force from January 12, 2009 through all times material to Plaintiffs' Complaint. 14. Under Exhibits B and C, it was expressly "acknowledged by the parties that [Additional Defendant was] an independent contractor of [Diakon] and not an employee and that [Additional Defendant] is not entitled to wages or benefits of [Diakon] employees, including coverage by the Worker's Compensation Act." See Exhibits B and C, paragraph 5. 15. Under Exhibits B and C, it was expressly acknowledged that "[nothing in [the] Agreement [was] intended and nothing shall be construed to create an employer/employee relationship, a joint venture relationship, a partnership, or other similar relationship." Id. 16. Under Exhibits B and C, Additional Defendant agreed to "maintain professional liability insurance coverage in the minimum amount of One Million Dollars ($1,000,000) per occurrence, Three Million Dollars ($3,000,000) in the aggregate, and shall provide documentation of such current professional liability insurance coverage to [Diakon] upon request." See Exhibits B and C, paragraph 9. 17. Under Exhibits B and C, Additional Defendant agreed that she would indemnify and hold harmless Diakon "from and against any and all claims, liabilities, damages, costs or expenses (including reasonable attorneys' fees) arising from or resulting in any manner from the acts or omissions of the indemnifying party, its officers, employees or agents, in connection with this Agreement." See Exhibits B and C, paragraph 10. 18. If Plaintiff can recover for the occurrence, transaction or series of occurrences or transactions upon which Plaintiffs cause of action is based, which right of recovery is specifically denied, then Additional Defendant is solely liable to Plaintiff. 19. If Plaintiff can recover for the causes of action set forth in the Complaint, which right to recovery is specifically denied, then Additional Defendant is jointly and severely liable to the Plaintiff along with Diakon on Plaintiffs cause of action. 20. If Plaintiff can recover on the causes of action set forth in the Complaint against Diakon, which right of recovery is specifically denied, then Additional Defendant is liable over to Diakon on Plaintiffs cause of action. 21. If Plaintiff can recover on the causes of action set forth in the Complaint against Diakon, which right to recovery is specifically denied, then Diakon is entitled to indemnification in full from Additional Defendant at law and under Exhibits B and C. 22. If Plaintiff can recover on the causes of action set forth in the Complaint from Diakon for the acts or omissions of Additional Defendant, which right to recovery is specifically denied, then Diakon is entitled to indemnification in full from Additional Defendant, without limitation, including attorney's fees and cost of defense. 23. Despite proper supervision of Additional Defendant by Diakon, to the extent required, the conduct of Additional Defendant at issue in this action was plainly incompetent and her independent contractor relationship with Diakon was properly and immediately terminated upon Diakon's awareness of same. 24. Pursuant to Pa.R.C.P. No. 1042.3(c)(2), Diakon is not required to file a Certificate of Merit in support of the instant Joinder Complaint because allegations of liability against Diakon and Additional Defendant are directly related as described herein. 25. Plaintiff does not oppose the joinder of Additional Defendant to this action. WHERE, FORE, Defendant, Diakon Lutheran Social Ministries joins Additional Defendant Denita Ann Causbey Royster as being solely liable to Plaintiff on Plaintiffs causes of action; liable over to Diakon on Plaintiffs causes of action; jointly or severely liable to Plaintiff on Plaintiffs cause of action; or liable over to Diakon for indemnification in full including attorney's fees and cost of defense. submi DEINJEHEY, WARNER, Dated: 3 l 3) 11 By: 1CYr?ig V?ongiello, e, Esquire Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 7 VERIFICATION I hereby affirm that the following facts are correct: The attached Joinder Complaint is based upon information which has been gathered by my Counsel in the defense of this lawsuit. The language of the Joinder Complaint is that of Counsel and not of me. I have read Joinder Complaint and to the extent that the responses are based upon information which I have given to my Counsel, they are true and correct to the best of my knowledge, information and belief. To the extent that the contents of the responses are that of Counsel, I have relied upon Counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid responses are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. The Rev. Lisa M. Leber, Esquire Sr. Vice President, Chief Legal and Compliance Officer Dated: 11 05l697139.v1 CERTIFICATE OF SERVICE I, Angela M. Lentz, of Marshall, Dennehey, Warner, Coleman & Goggin, hereby certify that a true and correct copy of the foregoing Joinder Complaint has been served upon the following known counsel and parties of record this day of March 2011, via United States First-Class Mail, postage prepaid: Kathryn L. Simpson, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, Pa 17110-0950 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: Angela M. Lentz, Paraleg 1 05/693895.0 8 METTE, EVANS & WOODSIDE Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) CHRISTIAN HESS, Plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DIAKON LUI IIERAN SOCIAL MINISTRIES, Defendant No. 10-3037 -- CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take. action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE Y(5U WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyers Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar action dentro de los proximos veinte (20) dias despues de la notification de esta Demanda y Aviso radicantopersonalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defenses de, y objections a, las demandas presentadas aqua en contra suya. Se le advierte de que A usted falla de tomar action como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de d hero reclamada en is demanda o culquier otra reclamation o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA, ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVFER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Lawyers Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 533929v1 Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 METTE, EVANS & WOODSIDE 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax klsimpson@,mette.com CHRISTIAN A. HESS, Plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DIAKON LUTHERAN SOCIAL MINISTRIES, Defendant No. 10-3037 -CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT IN CIVIL ACTION 1. Plaintiff is Christian A. Hess, an adult individual, residing at 809A Fairfield Street, Mechanicsburg, Cumberland County, PA 17055. 2. Defendant is Diakon Lutheran Social Ministries ("Diakon7?, a non-profit entity doing business as Diakon Family Life Services, 960 Century Drive, Mechanicsburg, Cumberland County, PA 17055. 3. Among other services, Diakon offers outpatient substance-abuse treatment services to individuals and their families. I 4. At all times relevant to this Complaint, Diakon was a contractor for the Cumberland/Perry Mental Health/Mental Retardation Program and, among other things, was to provide outpatient substance-abuse treatment to individuals and their families. In October 2008, Plaintiff was a resident at a halfway house following her discharge from a rehabilitation facility where she was treated for drug addiction to heroin. 6. Plaintiff was on probation for a DUI and other non-drug-related charges. 7. While at the halfway house, she was required by her probation officer to undergo counseling through Defendant for her drug addiction. Plaintiff started her counseling through Defendant while she was still at the halfway house. 9. Denita Royster was the counselor assigned by Defendant to Plaintiff. 10. Upon her discharge from the halfway house, Plaintiff began seeing Ms. Royster at the Defendant's place of business in Mechanicsburg. 11. Because Plaintiff s treatment included family counseling, her half-sister, Justine Hill, accompanied her to some of her sessions with Ms. Royster. 12. Ms_ Royster had an office at the Mechanicsburg facility of Defendant. 13. Ms. Royster wore a name tag that showed not only her name but that of Defendant. 14. Pursuant to its contract with the Cumberland/Perry Mental Health/Mental Retardation Program, Defendant was required to provide all counseling services through its employees and not subcontractors. 15. Plaintiff formed a close relationship with Ms. Royster and trusted her. 2 16. Within three (3) weeks of starting her outpatient treatment with Ms. Royster, Plaintiff began using heroin again. IT Plaintiff requested the medical stag of Defendant prescribe Suboxone for her so that she could avoid a relapse. 18. Suboxone is a narcotic medication indicated for the treatment of opioid dependence, and is available only by prescription. 19. Defendant's medical director refused to prescribe Suboxone for Plaintiff. 20. Upon learning that Plaintiff was unable to obtain a prescription for Suboxone, Ms. Royster advised Plaintiff that she could obtain Suboxone for her. 21. Ms. Royster then communicated with Justine Hill, telling her that Ms. Royster could get Suboxone for Plaintiff and that the cost of the pills would be $1,200 for 200 pills. 22. Justine Bill told Ms. Royster that she could not afford $1,200, only $600 and she would take as many pills for Plaintiff as that amount would buy. 23. Justine Hill also told Ms. Royster that she wanted the pills in their original container so that she could verify that they were, in fact, Suboxone and that she wanted to dispense them to Plaintiff. 24. Justine Hill wrote a check for $600, as directed by Ms. Royster. 25. Shortly thereafter while Plaintiff was at a counseling session, Ms. Royster directedc Plaintiff to the parking lot and told her that "Mark" would give her the Suboxone. 26. Plaintiff went to the Defendant's parking lot and met with Mark, who she understood to be either Ms. Royster's husband or boyfriend, in his car. 3 27, Plaintiff and Mark then left the car and walked to the entrance to Defendant's Mechanicsburg facility and sat outside where they saw Patricia O'Donnell, the Defendant's Clinical Director, who asked Plaintiff how she was doing. 28. Plaintiff received eight to ten pills from Mark at that time. 29. Plaintiff returned to Justine Hill's house with three or four pills and told Justine that Ms. Royster said she would hold the remainder. 30. Ms. Royster had Mark purchase Suboxone a second time for Plaintiff. 31. The third time that Ms. Royster said she could arrange for Suboxone to be purchased for Plaintiff, she was unable to do so. 32. During this time period, Plaintiff was arguing with Justine Hill with whom she was living, and would stay away from Justine's home and stay with others, including Ms. Royster and Mark at their home. 33. Ms. Royster and Mark told Plaintiff that she could stay at their home until they could find a way to get her more Suboxone. 34. While in Ms. Royster's home, Plaintiff was provided with heroin by Mark. 35. Taking advantage of Plaintiff s drug-dependent condition, Ms. Royster obtained $200 from Plaintiff for a student loan payment 36. Ms. Royster also attempted to have Plaintiff change the name on her bank account to eliminate Justine Hill's name on the account and to include Ms. Royster's instead. 37. Plaintiff then reentered rehabilitation in late March 2009. 38. Plaintiffs sister, Alice Hess, who was treating with Ms. O'Donnell, was told by Ms. O'Donnell that she was aware what was going on between Ms. Royster, Mark and the Plaintiff and that were providing drugs to Plaintiff. 4 39. A week later, Ms. O'Donnell called Justine Hill and repeated what she had told Alice Hess. 40. In that phone conversation, Ms. O'Donnell also said that she had suspected that something improper was going on, starting with her seeing Plaintiff in Mark's car in Defendant's parking lot. 41. At Ms. O'Donnell's request, Justine Hill met with her to discuss what Ms. O'Donnell knew about Ms. Royster and Mark. 42. At that meeting, Justine showed Ms. O'Donnell text messages that Mark had sent to her threatening her and her family if payment was not made for the drugs he was providing to Plaintiff. 43. Justine also provided a copy of the check she wrote for the Suboxone and two of plaintiff s checks that Ms. Royster had forged. 44. Ms. O'Donnell told Justine Hill that she had a team of lawyers in the next room and that Justine had to sign a paper. 45. Ms. O'Donnell provided a paper for Justine Hill to sign but her brother, Paul Ensminger who was with her, advised Justine not to sign it. COUNTI BREACH OF FIDUCIARY DUTY 46. The averments contained in paragraph 1 through 45 are incorporated. 47. Plaintiff had a confidential relationship with Defendant where Defendant agreed to provide her with substance abuse counseling and treatment. 5 48. Defendant provided Plaintiff with a counselor to accomplish the substance abuse counseling. 49. Plaintiff trusted her counselor and depended upon her for guidance and advice in treating Plaintiff's substance abuse problem. 50_ Plaintiff believed that Ms. Royster was an employee of Defendant and, at all times, was acting in the scope of that employment. 51. At the time Plaintiff was receiving counseling from Defendant, she was 18 years of age. 52. Defendant negligently failed to act in good faith and solely for the benefit of Plaintiff when it failed to supervise the counselor providing services to Plaintiff. 53. As a result of Defendant's failure to supervise the counselor who provided drugs to Plaintiff, as described above, Plaintiffs drug dependency was deepened, not alleviated, and she had to undergo additional rehabilitation efforts. 54. As a result of Defendant's failure to supervise the counselor who provided Plaintiff with drugs, Plaintiff and her family were threatened with violence by the counselor's husband/boyfriend because of his claims that Plaintiff owed him money for the drugs. 55. Defendant's failure to act solely for the benefit of Plaintiff was a real factor in bringing about Plaintiff s injuries. WHEREFORE, Plaintiff demands compensatory and punitive damages in her favor and against Defendant in an amount in excess of the arbitration limits of this Court plus costs of suit and interest. 6 COUNT 11 BREACH OF CONTRACT 56. The averments contained in paragraphs 1 through 55 are incorporated. 57. Plaintiff entered into an oral agreement with Defendant whereby Defendant agreed to provide rehabilitative services for Plaintiff's drug dependence problems. 58. Defendant owed Plaintiff the duty to provide those services. 59. To provide those services, Defendant assigned Ms. Royster to Plaintiff as her counselor. 60. Defendant's responsibilities with regard to carrying out the duties owed to plaintiff were performed by Ms. Royster in fulfillment of the contract between it and Plaintiff. 61. Instead of providing rehabilitative services, Defendant, through Ms. Royster, provided her with drugs that was in direct contravention of the treatment/therapy required by Plaintiff. 62. As a result of the ingestion of the drugs provided by Ms. Royster, which Defendant knew or should have known about had it exercised due care, Plaintiff relapsed and had to undergo fiuther in-patient rehabilitation. 63. Defendant breached its contract with Plaintiff by not providing her with the treatment/counseling it promised to provide. WHEREFORE, Plaintiff demands compensatory damages in her favor and against Defendant in an amount in excess of the arbitration limits of this Court plus costs of suit and interest. 7 Respectfully submitted, METTE,,EVANS & WOODSIDE Kaffit" L. psoii, Esquire Su . Ct. L "o. 28960 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Date January 5, 2011 531000YI VERIFICATION I, CHRISTIAN HESS, have read the foregoing document and verify that the facts set forth herein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. I DATED: CHRISTIAN HESS CERTIFICATE OF SERVICE I, Kathryn L. Simpson, Esquire, hereby certify that on this day I caused a true and correct copy of the foregoing document to be served on each of the following individuals by United States mail, first class, postage prepaid, addressed as follows: Craig A. Stone, Esquire MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Respectfully submitted, ANS & WOODSIDE By: Suo. Ct. UYNo. 2896G- 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff, Christian Hess Date: January 5, 2011 529737vi DKO .00) & COMMUNITY MINISTRY A LUTHERAN FAMILY FAMILY LIFE SERVICES COI TRACT COUNSELOR AGREEMENT FAMII. LIFE SERVICES This Agreement, made this 22 nd Day of December, 2005 (the "Agreement" 1 r entered into by and between Diakon Lutheran Social Services. a P erinsylvania nonproui corporation. a --a Diakon Family Life Services of the Capitol Region ("FLS") and Denita Royster-Causby ("Contract Counselor"). Whereas, FLS provides congregationaily-, center- and comma-nunity-based professional counseling services for children. adults and families; and Whereas, Contract Counselor is qualified to provide; and desires to provide, such professional counseling and testing services to the clients of FLS upon the terms and conditions set forth in this Agreement. NOW THEREFORE. in consideration of the mutual covenants contained herein and intending to be legally bound, the parties agree as follows. 1. Senji3es. Contract Counselor shall provide professional counseling and testing services to clients assigned to him/her by FLS on an individual or a family basis at a location to be determined by FLS. 2. Licenses, certifications. clearances. Contract Counselor shall make available to FLS copies of his/her diplomas and licenses and/or certifications. In addition, Contract Counselor shall submit to Pennsylvania Child Abuse History and Criminal History Record checks at the time of initial contracting with FLS and at any subsequent time at the request of FLS. Term. This Agreement shall be for an initial term ofone (1) year, beginning December 22"d 2005. and shall automatically renew for additional one (1) year tennis, unless either party gives notice to the other at least thirty (30) days prior to the expiration of the initial term, or any renewal term thereafter, of the party's intent not to renew the Agreement. 4. Termination. This Agreement may be terminated at any time by either party with or without cause upon thirty (30) days written notice. If Contract Counselor's license or certification is suspended or revoked, or if Contract Counselor's insurance policy is cancelled, this Agreement will be terminated immediately and automatically. 5. Independent Contractor status. It is expressly acknowledged by the parties that Contract Counselor is an independent contractor of FLS and not an employee and that Contract Counselor is not entitled to wages or benefits of FLS employees, including coverage by the Worker's Compensation Act. Nothing in this Agreement is intended and nothing shall be construed to create an employer/employee relationship, a joint venture relationship, a partnership, or other similar relationship. Payment. FLS shall pay Contract Counselor 530.00 per direct service hour for counseling services in addition. Contract Counselor will be responsible for all documentation as required for the services rendered and as directed by FLS. Contract Counselor will not be. paid for "no shows". Travel and other 96QrF-- t1 1 fkivtshall not be billed and will not be compensated. Mechanicsburg, PA 17055 Phone 717.795.033C PA, 1011 ree 860.700.6865 u: 717-795.0407 7. Pate increases. At the time of any automatic renewals of this Agreement pursuant to Paragraph 3, FLS, in its discretion, may increase the rate of payment per direct service hour. FLS shall communicate such rate increases to Contract Counselor in writing. 8. Documentation. Contract Counselor shall maintain paperwork and documentation required to remain in compliance with any grant, other third party, pavers or other funding programs of FLS. FLS shall be responsible for informing Contract Counselor of any special requirements or guidelines related to paperwork and documentation. All clinical documentation related to services provided by Contract Counselor under this Agreement shall be maintained at the Family Life Services office at 960 Century Drive, Mechanicsburg PA 17055. 9. Insurance. Contract Counselor shall maintain professional liability insurance coverage in the minimum amount of One Million Dollars ($1,000,000) per occurrence, Three Million Dollars (33,000,000) in the aggregate, and shall provide documentation of such current professional liability insurance coverage to FLS upon request. 10. Indemnification. Each party hereto agrees that it will indemnif.v and hold the other harmless from and against any and all claims, liabilities, damages; costs or expenses (including reasonable attorneys' fees) arising from or resulting in any manner from the acts or omissions of the indemnifying party, its officers, employees or agents, in connection with this Agreement. 11, Non-discrimination. FLS operates in accordance with all applicable civil rights laws and regulations and does not discriminate in admissions, the provisions of services, or referrals of clients on the basis of race, color, religious creed, disability, marital status, ancestry, national ori gin. sexual orientation. age; sex or any other class protected by law. Contract Counselor shall comnhv with FLS' nondiscrimination policies and procedures and all applicable Federal and state civil rights laws and regulations in the performance of his/her duties under this Agreement. 12. Compliance. Contract Counselor shall adhere to the applicable Code of Ethics for his/her discipline, policies and procedures of FLS, and with all applicable federal and state laws and regulations related to this Agreement and the services to be provided hereunder. 13. Non-solicitation. Contract Counselor covenants and agrees that during the term(s) of this Agreement, and for a period of one (1) year following termination or non-renewai of this Agreement, Contract Counselor shall not solicit current or former FLS clients for any outside private practice. Advertising in the newspaper„ the Yellow Pages, etc. is not considered solicitation; direct mailing, telephone calls, etc. to clients by Contract Counselor or an agent of Contract Counselor is considered solicitation. 14. Conflict of laws. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. li. Government program exclusions. Contract Counselor hereby represents and warrants that he/she is not now, and at no time has been, excluded from participation in Federal health care programs, including Medicare and Medicaid. Contract Counselor agrees to immediately notify FLS of any threatened, proposed, or actual exclusion from any Federal health care program, including Medicare and Medicaid. In the event Contract Counselor is excluded from any Federal health care program during the term of this Agreement, or if at any time after the effective date of this Agreement, it is determined that Contract Counselor is an excluded entity, this Agreement shall automatically terminate. 16. Health Insurance Portability and Accountability Act of 1996. For purposes of this Paragraph 16, Contract Counselor shall be referred to as "Business Associate" and FLS shall be referred to as "Covered Entity." Terms used, but not otherwise defined, in this Paragraph 16 shall have the same meaning as those terms under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (collectively referred to herein as "HIP AA"). a Permitted Uses and Disclosures. Business Associate may use and disclose Protected Health Information ("PHI") (as defined below) (i) as necessary to perform the services described above, (ii) as required by law o- (iii) as otherwise authorized by the Covered Entity. All other uses and disclosures not authonzed by this Agreement or required by law are prohibited, unless Business Associate obtains written authorization from the Covered Entity. PHI means any information that identifies an individual and that relates to the past, present or future physical or mental health or condition of an individual, the provision of healthcare to any individual. or the past, present or future payment of the provision of healthcare to an individual. b. Use or Disclosure of PHI for Business Associate's Own Use for Management Administration or to Carry Out Legal Responsibilities. (i) In addition to the use and disclosure of PHI necessary to perform the services under this Agreement or as required by law, subject to the provisions contained in subparagraph (ii), below, Business Associate shall be permitted to use and/or disclose PHI received from or made available by Covered Entity or created by Business Associate on behalf of Covered Entity, for the proper management and administration of the Business Associate or to carry out legal responsibilities of Business Associate. (ii) In order for the Business Associate to use or disclose PHI for the purposes described in this subparagraph (b). (1) the disclosure must be required by law or (2) Business Associate must obtain reasonable assurances from the person or entity to whom the information is disclosed that such person or entity will (a) hold the PHI in confidence in accordance with HIP AA, (b) only disclose the PHI as required by law, (c) only use PHI for the purpose for which Business Associate disclosed the PHI and (d) notify the Business Associate of any breaches of confidentiality of which the person or entity is aware. c. Data Aggregation Services. Except as otherwise limited by this Agreement, Business Associate may use the PHI for Data Aggregation Services relating to Health Care Operations of Covered Entity. d. Business Associate Obligations. (i) Appropriate Safeguards. Business Associate will establish and maintain appropriate safeguards to prevent any use or disclosure of PHI other than as provided for by this Agreement. T- l lli R°pOr[5 Cif 1nPJrOpeT- JSe or D1SClO5ure. U;1neES Assocciate shall immediately report to Covered Entity's privacy officer or designee, any use or disclosure of PHI in violation of this Agreement by telephone and shall follow up with a written report to Covered Entity's privacy officer, Lisa Leber, W/Compliance and Legal Affairs, at 960 Century Drive, Mechanicsburg. Pennsylvania 17055. (iii) Subcontractors and Agents. Business Associate shall ensure that any agents, including any subcontractors, to whom Business Associate provides PHI received from, or created or received by Business Associate, on behalf of Covered Entity, agrees to the same restrictions with respect to the PHI as contained in this Agreement. Business Associate shall provide only the Minimum Necessary PHI for the purpose of such disclosure and shall enter into an as eement with the subcontractor or agent that contains the same terms, conditions and restrictions on the use and disclosure of PHI as contained in this Paragraph 16. (iv) Right of Access to PHI. Business Associate hereby agrees to make available to an individual, who is the subject of the PHI, the right to access and copy that individual's PHI, at the request of the individual or of Covered Entity in the time and manner designated by Covered Entity. This right of access shall conform with and meet all of the requirements of HIPAA. (v) Amendment and Incorporation of Amendments. Business Associate shall make PHI available for amendment and incorporate any amendments of PHI that have been agreed to by Covered Entity, at the request of Covered Entity or of the individual, in the time and manner designated by Covered Entity, in accordance with the requirements of HIPAA. (vi) Provide Accounting. Business Associate shall document and make available to Covered Entity or to the individual, any information necessary to provide an accounting of' disclosures in accordance with the requirements of HIPAA in the time and manner designated by Covered Entitv. The accounting provided by Business Associate under this subparagraph (vi) shall include: (a) the date of the disclosure; (b) the name, and address, if known, of the entity or person who received the PHI; (c) a brief description of the PHI disclosed; and (d) a brief statement of the purpose of the disclosure. (vii) Mitigation Procedures. Business Associate shall establish and provide to Covered Entity, upon request, procedures for mitigating, to the maximum extent practicable, any harmful effect from the use or disclosure of PHI in a manner contrary to this Agreement or HIPAA. Business Associate further- agrees to mitigate any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate or any subcontractor or agent of Business Associate in violation of this Agreement. (viii) Requests for Confidential Communications. Business Associate will comply with any agreements for confidential communications of which it is aware and to which Covered Entity agrees pursuant to HIPAA by communicating with Covered Entity's clients using agreed upon alternative means or alternative locations. e. Obligations of Covered Entity. (i) Notification of Changes. Covered Entity shall provide Business Associate with any changes in, or revocation of, permission by individual to use or disclose PHI, if such change affects Business Associate's permitted or required uses and disclosures of PHI. (ii) Notification of Restrictions. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with HIPAA. £ Additional Termination Provisions. Notwithstanding the termination provisions contained in Paragraph 4 of this Agreement, this Agreement may be terminated immediately upon written notice by Covered Entity to Business Associate if Covered Entity determines, in its sole discretion, that Business Associate has violated any material tern of this Paragraph 16. Business Associate's obligations under subparagraphs 16(b) ; (d) and (g) of this Paragraph 16, and as otherwise stated in this Paragraph 16, shall survive the termination of this Agreement g. Disposition of PHI Upon Termination or Expiration. Upon termination of this Agreement.. for any reason, Business Associate shall either return or destroy, at the option of Covered Entity, in Covered Entity's sole discretion, and in accordance with any instructions by Covered Entity, all PHI in the possession or control of Business Associate and its agents and subcontractors. However, in the event that Covered Entity determines that neither the return nor the destruction of the PHI is feasible, Business Associate may retain the PHI, provided, that Business Associate (i) continues to comply with the provisions of this Paragraph 16 for as long as Business Associate retains the PHI, and (ii) further limits its uses and disclosures of PHI under this Agreement to those purposes that make the return or destruction of the PHI infeasible. h. Amendment to Comply with Law. The parties acknowledge that state and federal laws relating to privacy are rapidly evolving and that amendment of this Paragraph 16 of this Agreement may be required to provide for procedures to ensure compliance v<-ith such developments. The parties specifically agree to take such action as is necessary to implement the standards and requirements of HIPAA and other applicable laws relating to the confidentiality of PHI. Upon a party's request, the other party to this Agreement agrees to promptly to enter into negotiations with the requesting parry concerting the terms of any amendment to this Paragraph 16 embodying written assurances consistent with the standards and requirements of HIPAA or other applicable laws or regulations. Notwithstanding any other provision in this Agreement to the contrary; the requesting pam may terminate this Agreement upon thirty (30) days' written notice to non- requesting party in the event (i) non-requesting party does not promptly enter into negotiations to amend this Paragraph 16 when requested by the requesting party, pursuant to this subparagraph or (ii) non-requesting party does not enter into an amendment to this Agreement to amend this Paragraph 16 providing assurances regarding the safeguarding of PHI that requesting party, in its sole discretion, deems sufficient to satisfy the standards and requirements of HIPAA or as otherwise required by any applicable law or regulation. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound to the terms of this Agreeinent, have caused this Agreement to be executed as of the date first written above. CONTRACT COUNSELOR Signatur ?j Print Name: / r/lr O DIAItON LUTHERAN SOCIAL SERVICES d/b/a Dialcon Family Life Services of the Capitol Region BY: ``f1 t' ?zi Print Name: 7-? ?-.l fC?tr Title: C_A,Cr ! A KON FAMILY LIFE SERVICES LI TRERAN FAMILY & COMIAUNiTY MINISTRY FAMILY LIFE SERVICES CONTRACT COUNSELOR AGREEMENT This :Agreement, made this 12 day of January, 2009, (the "Agreement") is entered into by and between Diakop. Lutheran Services; a Pennsvlvania nonprofit corporation. d/b a Family Life Services of the Capitol Region ("FLS") and Denita Royster-Causby ("Contract Counselor"). Whereas, FLS provides congregationaliy-, center- and community-based prof ssional counseling services for children. adults and families; and Whereas, Contract Counselor is qualified to provide, and desires to provide, such professional course ling services to the clients of FLS upon the terms and conditions set forth in this AL,Teernent. NOW THEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound, the parties agree as follows: 1. Services. Contract Counselor shall provide prof ssional counseling services to clients assigned to him/her by FLS on either an individual or a group basis at a location to be determined by FLS. 2. Licenses, certifications, clearances. Contract Counselor shall make available to FLS copies of his/her diplomas and licenses and/or certifications. In addition. Contraci Counselor shall submit to Pennsvlvania Child Abuse History and Criminal History Record checks at the tune of initial contracting with FLS and at any subsequent time at the request of FLS Term. This Agreement shall be for an initial term of one (1) year, beginning Jafzuaty 12th`', 2009, and shall automatically renew for additional one i 1) year terms, unless either party gives notice to the other at least thirty (30) days prior to the expiration of the initial term, or any renewal terrri thereafter, of the pain's intent not to renew the Agreement. 4. Termination. This Agreement may be terminated at any time by either party with or without cause upon thirty (30) days written notice. If Contract Counselor's license or certification is suspended or revoked, or if Contract Counselor's insurance policy is cancelled, this Agreement will be terminated immediately and automatically. Independent Contractor status. It is expressly aclmowiedaed by the parties that Contract '.counselor is an independent contractor of FLS and not an employee and that Conc. act Counselor is not entitled to wages or benefits of FLS emplovees, including coverage by the \k'arker s Compensation Act. Nothing in this A-reement is intended and nothing shall be c.oristrued to create an employer/employee relationship. a joint venture relationship, a partnership, or other similar relationship. 960 Century Drive Mechanicsburg, PA 17055 Phone 7i .7 95.0330 RA 01 Fr--c 866.7()0.685 Z 7"N Z!i Payment. FLS shall pay Contract Counselor $.35.00 per direct Drug and Alcohol service hour. In addition, Contract Counselor shall be paid to attend one (1) hour of clinical supervision and one (1) staff meeting per month. As well, Contract Counselor will be paid $17.50 per hour for training required by BDf1P. Contract Counselor shall remit documentation for services rendered as directed by FLS. Contract Counselor will not be paid for "no shows". Travel and other incidental time shall not be billed and will not be compensated. FLS shall pay Contract Counselor x'30.00 per direct service hour for mental health counseling services. In addition, Contract Counselor shall be paid for one Mental Health outpatient staff meeting and one hour of Mental Health supervision. Contract Counselor will be responsible for all documentation as required for the services rendered and as directed by FLS. Contract Counselor will not be paid for "no shows". Travel and other incidental time shall not be billed and will not be compensated. 7. Rate increases. At the time of any automatic renewals of this Agreement pursuant to Paragraph 3, FLS, in its discretion, may increase the rate of payment per direct senlice hour. FLS shall communicate such rate increases to Contract Counselor in writing. S. Documentation. Contract Counselor shall maintain paperwork and documentation required to rernain in compliance with any grant, other third party payers or other funding programs of FLS. FLS shall be responsible for informing Contract Counselor of any special requirements or suidelines related to paperwork and documentation. All clinical documentation related to services provided by Contract Counselor under this Agreement shall be maintained at the Family Life Sorvices office at 960 Century Drive, Mechanicsburg PA 17055 or at the licensed satellite sites. 9. Insurance. Contract Counseior shall maintain professional liability insurance coverage in the minimum amount of One Million Dollars ($1,000,000) per occurrence, Three Million Dollars ($3,000,000) in the aggregate, and shall provide documentation of such current professional liability insurance coverage to FLS upon request. 10. Indemnification. Each part hereto agrees that it will indemnify and hold the other harmless from and against any and all claims, liabilities, damages, costs or expenses (including reasonable attorneys' fees) arising from or resulting in any manner from the acts or omissions of the indemnifying party, its officers, employees or agents, in connection with this Agreement. 11. Non-discrimination. FLS operates in accordance with all applicable civil rights laws and regulations and does not discriminate in admissions, the provisions of services, or referrals of clients on the basis of race, color, relieious creed, disability, marital status, ancestry, national origin, sexual orientation, age, sex or any other class protected by law. Contract Counselor shall comply with FLS' nondiscrimination policies and procedures and all applicable Federal and state civil rights laves and regulations in the performance of his/her duties under this Agreement. 12. Compliance. Contract Counselor shall adhere to the applicable Code of Ethics for his/her discipline, policies and procedures of FLS, and with all applicable federal and state laws and regulations related to this Agreement and the services to be provided hereunder. 15. Non-solicitation. Contract Counselor covenants and agrees that during the tern-i(s) of this Agreement, and for a peri od of one (1 yea: fallowing tennination or non-renewal of this Agreement, Contract Counselor shall not solicit current or fonner FLS clients for any outside private practice. Advertising in the newspaper, the Yellow Pages, etc. is not considered solicitation; direct mailing, telephone calls, etc. to clients by Contract Counselor- or an agent of Contract Counselor is considered solicitation. 14. Conflict of laws. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. 15. Government program exclusions. Contract Counselor hereby represents and warrants that he/she is not now, and at no time has been, excluded from participation in Federal health care programs, including Medicare and Medicaid, Contract Counselor agrees to immediately notify FLS of any threatened, proposed, or actual exclusion from any Federal health care program, including Medicare and Medicaid. In the event Contract Counselor is excluded from any Federal health care program during the term of this Agreement, or if at any time after the effective date of this Agreement, it is determined that Contract Counselor is an excluded entity, this Aueement shall automatically terminate. 16. Health Insurance Portability and Accountability Act of 1996. For purposes of this Paragraph 16, Contract Counselor shall be referred to as "Business Associate" and FLS shall be referred to as "Covered Entity." Terms used, but not otherwise defined, in this Paragraph 16 shall have the same meaning as those terms under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (collectively referred to herein as "HIPAA"). a Permitted Uses and Disclosures. Business Associate may use and disclose Protected Health Information ("PHI") (as defined below) (i) as necessary to perform the services described above. (ii) as required by law or (iii) as otherwise authorized by the Covered Entity. All other uses and disclosures not authorized by this Agreement or required by law are prohibited, unless Business Associate obtains written authorization from the Covered Entity. PHI means any information that identifies an individual and that relates to the past, present or future physical or mental health or condition of an individual, the provision of healthcare to any individual, or the past, present or future payment of the provision of healthcare to an individual. b. Use or Disclosure of PHI for Business Associate's Own Use for Management Administration or to Carry Out Legal Responsibilities. (i) In addition to the use and disclosure of PHI necessary to perform the services under this Agreement or as required by law, subject to the provisions contained in subparagraph (ii), below, Business Associate shall be permitted to use and/or disclose PHI received from or made available by Covered Entity or created by Business Associate on behalf of Covered Entity, for the proper management and administration of the Business Associate or to carry out legal responsibilities of Business Associate. (ii) In order for the Business Associate to use or disclose PHI for the purposes described in this subparagraph (b): (1) the disclosure must be required by law or (2) Business Associate must obtain reasonable assurances from the person or entity to whom fne information is disclosed that such person or entity will (a) hold the PHI in confidence in accordance with HIPAA, (b) only disclose the PH I as required by law, (c) only use PHI for the purpose for which Business Associate disclosed the PHI and (d) notify the Business Associate of anv breaches of confidentiality of which the person or entity is aware. c. Data Aggreization Services. Except as otherwise limited by this Agreement, Business Associate may use the PHI for Data Aggregation Services relating to Health Care Operations of Covered Entity. d. Business Associate Obligations: (i) Appropriate Safeguards. Business Associate will establish and maintain appropriate safeguards to prevent any use or disclosure of PHI other than as provided for by this Agreement. (ii) Reports of Improper Use or Disclosure. Business Associate shall immediately report to Covered Entity's privacy officer or designee, an), use or disclosure of PHI in violation of this Agreement by telephone and shall follow up with a written report to Covered Entity's privacy officer, Lisa Leber, VP/Compliance and Legal Affairs, at 960 Century Drive, Mechanicsburg, Pennsylvania 17055. (iii) Subcontractors and Agents. Business Associate shall ensure that any agents, including any subcontractors, to whom Business Associate provides PHI received from, or created or received by Business Associate, on behalf of Covered Entity, agrees to the same restrictions with respect to the PHI as contained in this Agreement. Business Associate shall provide only the Minimum Necessary PHI for the purpose of such disclosure and shall enter into an agreement with the subcontractor or went that contains the same terms, conditions and restrictions on the use and disclosure of PHI as contained in this Paragraph 16. (iv) Right of Access to PHI. Business Associate hereby agrees to make available to an individual, who is the subject of the PHI, the right to access and copy that individual's PHI, at the request of the individual o: of Covered Entity in the time and manner designated by Covered Entity. This right of access shall conform with and meet all of the requirements of HIPAA. (v) Amendment and Incorporation of Amendments. Business Associate shall make PHI available for amendment and incorporate any amendments of PHI that have been agreed to by Covered Entity, at the request of Covered Entity or of the individual, in the time and manner designated by Covered Entity, in accordance with the requirements of HIPAA- (vi) Provide Accountins. Business Associate shall document and make available to Covered Entity or to the individual, any information necessary to provide an accounting of disclosures in accordance with the requirements of HIPAA in the time and manner designated by Covered Entity. The accounting provided by Business Associate under this subparagraph (vi) shall include: (a) the date of the disclosure; (b) the name, and address, if known, of the entity or person who received the PHI; (c) a brief description of the PHI disclosed; and (d) a brief statement of the purpose of the disclosure. (vii) Mitigation Procedures. Business Associate shall establish and provide to Covered Entity, upon request, procedures for mitigating, to the maximum extent practicable, any harmful effect from the use or disclosure of PHI in a manner contrary to this Agreement or HIPAA. Business Associate further agrees to mitigate any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate or anv subcontractor or agent of Business Associate in violation of this Agreement. (viii) Requests for Confidential Communications. Business Associate will comply with any agreements for confidential communications of which it is aware and to which Covered Entity agrees pursuant to HIPAA by communicating with Covcred Entity's clients using agreed upon alternative means or alternative locations. e. Obligations of Covered Entity. (1) Notification of Changes. Covered Entity shall provide Business Associate with any charges in, or revocation of, permission by individual to use or disclose PHI, if such change affects Business Associate's permitted or required uses and disclosures of PHI. (ii) Notification of Restrictions. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with HIPAA. f. Additional Termination Provisions._ Notwithstanding the termination provisions contained in Paragraph 4 of this Agreement, this.kgreemcnt may be terminated immediately upon written notice by Covered Entity to Business Associate if Covered Entity determines, in its sole discretion, that Business Associate has violated any material term of this Paragraph 16. Business Associate's obligations under subparagraphs 16(b), (d) and (g) of this Paragraph 16, and as otherwise stated in this Paragraph 16, shall survive the termination of this Agreement Q. Disposition of PHI Upon Tennination or Expiration. Upon termination of this Agreement, for any reason, Business Associate shall either return or destroy, at the option of Covered Entity, in Covered Entity's sole discretion, and in accordance with any instructions by Covered Entity, all PHI in the possession or control of Business Associate and its agents and subcontractors. However, in the event that Covered Entity determines that neither the return nor the destruction of the PHI is feasible, Business Associate may retain the PHI, provided that Business Associate (i) continues to comply with the provisions of this Paragraph 16 for as long as Business Associate retains the PHI, and (ii) further limits its uses and disclosures of PHI under this Agreement to those purposes that make the return or destruction of the PHI infeasible. h. Amendment to Comply with Law. -ne parties acknowledge that state and federal laws relating to privacy are rapidly evolving and that amendment of this Paragraph 16 of this Agreement may be required to provide for procedures to ensure compliance with such developments. The parties specifically agree to take such action as is necessary to implement the standards and requirements of HIPAA and other applicable laws relating to the confidentiality of PHI. Upon a party's request, the other party to this Agreement agrees to promptly to enter into negotiations with the requesting party concerning the terms of any amendment to this Paragraph 16 embodying written assurances consistent with the standards and requirements of HIPAA or other applicable laws or regulations. Notwithstanding any other provision in this Agreement to the contrary, the requesting party may terminate this Agreement upon thirty (30) days' written notice to non-requesting party in the event (i) non-requesting party does not promptly enter into negotiations to amend this Paragraph 16 when requested by the requesting party pursuant to this subparagraph or (ii) non-requesting parry does not enter into an amendment to this Agreement to amend this Paragraph 16 providing assurances regarding the safeguarding of PHI that requesting party, in its sole discretion, deems sufficient to satisfy the standards and requirements of HIPA.A or as otherwise required by any applicable law or regulation. IN WITNESS WHEREOF, the parties hereto. intending to be legally bound to the terms of this Agreement, have caused this Agreement to be executed as of the date.first written above. CONTRACT COUNSELOR` DlAKON FAMILY LIFE SERVICES: Signature.„ BY: V Print Name: th, i; ir-S G Print Name: Brooke Fuller. LPC Title: Clinical Director, MHOP Familv Life Services - Capitol Region Contract Counselor Rev. 2004 EXHIBIT B 4513087-1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: HESS -VS- -- - DIAKON LUTHERAN SOCIAL MINISTRIES, ET AL COURT OF COMMON PLEAS TERM, CASE NO: 10-3037 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 GATEWAY HEALTH PLAN/ LEGAL DEP INSURANCE PYRAMID RIDGEVIEW PSYCHIATRIC RECORDS WHITE DEER RUN OF WILLIAMSPORT PSYCHIATRIC RECORDS YOUTH SERVICES AGENCY RECORDS EVERGREEN HOUSE PSYCHIATRIC RECORDS TO: KATHRYN L. SIMPSON, ESQ., PLAINTIFF COUNSEL MICHAEL MONGIELLO, ESQ. MCS on behalf of PATRICE O'BRIEN, ESQ. intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 06/22/2011 CC: PATRICE O'BRIEN, ESQ. - 451568 KATHRYN L. SIMPSON, ESQ. L/O OF KATHRYN SIMPSON 3401 N_ FRONT ST PO BOX 5950 HARRISBURG, PA 17110 MCS on behalf of PATRICE O'BRIEN, ESQ. Attorney for DEFENDANT THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 MCS ## 88335-C02 DE02 EXHIBIT C 4513087-1 t: aQ 1601 Market Street, Suite 800, Philadelphia, PA 19103 Phone: 215-246-0900 Fax 215-246-0959 TO: WHITE DEER RUN OF WILLIAMSPORT 901 WESTMINSTER DR. WILLIAMSPORT, PA 17701 RE: MCS # 88335-L03 CHRISTIAN HESS Dear Custodian, DATE: 07/14/2011 Within twenty (20) days after receipt of this subpoena you are ordered by the court to produce the documents or things requested on the attached subpoena pursuant to the applicable Pennsylvania rules of civil procedure 4009.22. Your personal appearance IS NOT REQUIRED. You may deliver or mail legible copies of the documents or produce things requested by the subpoena, TOGETHER WITH THE CERTIFICATION OF CUSTODIAN, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought, according to state fee laws. However, prior approval is required for fees in excess of $100.00 for hospitals, $150.00 for all other providers. If you fail to produce the documents or things required by this subpoena within twenty (20) days after receipt, the party serving this subpoena may seek a court order compelling you to comply with this request. Thank you for your cooperation in this matter. SIERRA WILLIAMS MCS Representative (215) 246-0900 Ext: 8199 <RWILLIAMS@THEMCSGROUP.COM> MCS # 88335-L03 ME02 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND HESS vs. DIAKON LUTHERAN SOCIAL MINISTRIES,ET File No. 10-3037 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO Custodian of Records for WHITE DEER RUN OF W L.i .IAMSPORT (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: **** SEE ATTACHED RIDER **** at The MCS Group, Inc.. 1601 Market Street. Suite 800. Philadelphia. PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: PATRICE O'BRIEN. ESQ. ADDRESS: THE WIDENER BUILDING ONE SOUTH PENN SQ. PHILADELPHIA. PA 19107 TELEPHONE: (215) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant Date: 01 Seal of the Court BY THE COURT: Prothonotary/Clerk, Civil Division Deputy 88335-03 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: WHITE DEER RUN OF WILLIAMSPORT 901 WESTMINSTER DR. WILLIAMSPORT, PA 17701 -RE: MCS # 88335-L03 CHRISTIAN HESS Social Security #: XXX-XX-6243 Date of Birth: 06-20-1990 Please provide any and all psychiatric records, including but not limited to correspondence, files, memoranda, handwritten notes, history and physical reports. Include any and all medication and prescription records and transcripts. This should contain all records in your possession, all archived records, or records in storage. Including any and all items as may be stored in a computer database or otherwise in electronic form. Prior approval is required for fees in excess of $150.00 for hospitals, $100.00 for all other providers. MCS # 88335-L03 SU10 EXHIBIT D 4513087-1 r U%104?, WHITE DEER RUN, INC. 360 White Deer Run Road P.O. Box 97 Allenwood, PA 17810 Toll Free-Main Number: 800-255-2335 Fax (Administration): 570-538-5303 July 28, 2011 Patrice O'Brien Esq. The Widener Building One South Penn Square Philadelphia PA 19107 MCS 1601 Market Street, Suite 800 Philadelphia PA 19103 Re: Subpoena Dear Sir or Madam: White Deer Run of Allenwood is in receipt of the subpoena (enclosed) that was sent to our facility. Legal counsel has advised that we cannot confirm or deny that the individual at issue is or ever was a patient at any of our facilities, or whether or not we have any records or information, due to state and federal confidentiality regulations. Legal counsel has advised that White Deer Run, Inc. is subject to the provisions of the Drug Abuse Prevention, Treatment and Rehabilitation Act, 21 U.S.C. §§1175 et seg., and the regulations promulgated thereunder. The regulations are found at 42 C.F.R., Part II. Under these provisions, White Deer Run, Inc. is prohibited from disclosing information or records relating to a present or former patient, including even confirming that a person is or was a patient unless a specific type of order is obtained from a court of competent jurisdiction in compliance with the provisions of these regulations. Although the federal regulations would allow for release of records with an AU6 1 8 2011 Page 2 RE: Request for Records White Deer Run of Allenwood authorization, if we actually have such records, there is a complicating factor in this case as explained in the next paragraph. Legal counsel has advised us that the State of Pennsylvania has specific laws and regulations relating to confidentiality of drug and alcohol patient records. In reference to this request, we have been advised that even with a valid consent meeting the federal requirements under 42 C.F.R, Part 2, Subpart C, §2.31, Pennsylvania law does not allow us to release any information for the purpose you require without a good cause court order, should we actually have such information. Our attorney referred us -to-74 P.S. §4690.108 regardingthis is-sue. The Pennsylvania-Department of Health has advised us that regulations found at 4 Pa Code §255.5 are used as the interpretive guidelines for 71 P.S. 1690.108. They further advised us that under these regulations, 4 Pa. Code §255.5(a)(5) allows for disclosure of information to the attorney representing the client in a civil, criminal or administrative proceeding, but there are no provisions for release to an attorney representing the party other than the client without a good cause court order. I hope you understand that White Deer Run is not trying to be obstructive or difficult. We are simply trying to comply with our obligations under the federal regulations and Pennsylvania State law, as well as the direction of the Pennsylvania Department of Health, which issues our license to operate. Should you have any questions regarding this correspondence, I can be reached at 800-255-2335, ext 1409. If I am unable to answer your questions, I will have our attorney contact you with a response. Sincerely, Robyn Thomas Medical Records Technician White Deer Run, Inc. CC; Christine Gehrer, Regional Medical Records Director Sent by Fax and Certified Mail, Return Receipt Requested EXHIBIT E 4513087-1 RAWLE &.HEN DER SQN LLP w?c Law 4° O e e Dn •.f erg Vq D. 170. PATRICE S. O'BRIEN 215-575-4222 The Nation's Oldest Law Office • Established in 1783 pobrieri@rawle.com www.rawle.com July 6, 2011 Kathryn Simpson, Esquire Mette, Evans and Woodside 3401 North Front Street Harrisburg, PA 17110 Re: Hess v. Diakon Luterhan Social Ministries, et al. Our File No. 451568 Dear Ms. Simpson: THE WIDENER BUILDING ONE SOUTH PENN SQUARE PHILADELPHIA, PA 19107 TELEPHONE:(215) 575-4200 FAcsIMILE:(215) 563-2583 Enclosed please find Additional Defendant, Denita Ann Causbey-Rosyter's Interrogatories, Supplemental Interrogatories, Expert Interrogatories and First Request for Production of Documents directed to Plaintiff. Please respond to the enclosed within the time allowed under the Pennsylvania Rules of Civil Procedure. Very truly yours, RAWLE & HENDERSON LLP By: Patrice S. O'Brien PSO/ksh Enclosures cc: Michael C. Mongiello, Esquire (w/encs.) 4640814-1 PHILADELPHIA, PA PITTSBURGH, PA HARRISBURG, PA MARLTON, NJ NEW YORK, NY WILMINGTON, DE WHEELING, WV S CHRISTIAN HESS V. DIAKON LUTHERAN SOCIAL MINISTRIES V. DENITA ANN CAUSBEY-ROYSTER COURT OF COMMON PLEAScn ` f OF CUMBERLAND COUNT,A . ? CO [T1 rn o - ' 1 * ? i_.. - r `n --+ r 1 1 70 CIVIL ACTION - LAW Ln NO. 10-3037 7 ORDER // AND NOW, this day of OG44i , 2011, upon consideration of additional defendant, Denita Ann Causbey-Royster's Motion seeking a Court Order directing White Deer Run of Williamsport to produce plaintiff's drug and/or alcohol treatment records, and any response thereto, it is hereby ORDERED that White Deer Run of Williamsport is directed to produce any and all psychiatric and/or drug and alcohol.-abuse records pertaining to Plaintiff, Christian Hess. The production of these documents is to occur within twenty (20) days of the date of this Order. Pa+r1ce S. 0' Brien , &t ? Michael C. M a ielto, r?? NO., Mai' 10/s/11 4< ?Arr Simpson , ba 4866032-1 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 Attorneys for Defendant Diakon Lutheran Social Ministries le?ON0 TA Ph OiT - PPS 2' _G",'BER H X0 CGUIIT`?, VENNSYLVANIM CHRISTIAN HESS Plaintiff ; V. DIAKON LUTHERAN SOCIAL MINISTRIES Defendant DENITA ANN CAUSBEY-ROYSTER Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA No: 10-3037 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Denita Ann Causbey-Royster c/o Patrice S. O'Brien, Esquire The Widener Building One South Penn Square Philadelphia, PA 19107 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. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: , / 'k"t- 'G r Michael C. Mongiello, squire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (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 Attorneys for Defendant Diakon Lutheran Social Ministries CHRISTIAN HESS Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA V. DIAKON LUTHERAN SOCIAL MINISTRIES Defendant DENITA ANN CAUSBEY-ROYSTER Additional Defendant No: 10-3037 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANTS. DIAKON LUTHERAN SOCIAL MINISTRIES TO ADDITIONAL DEFENDANT DENITA ANN CAUSBEY-ROYSTER'S CROSS CLAIM AND NOW, comes Defendant, Diakon Lutheran Social Ministries ("Diakon"), by and through its counsel, Marshall, Dennehey, Warner, Coleman & Goggin, and answers and asserts New Matter to Additional Defendant, Denita Ann Causbey-Royster's ("Additional Defendant") Cross Claim as follows: 43-45. [sic] Denied. The corresponding averments of Additional Defendant's Cross Claim against Diakon are denied pursuant to Pa. R.C.P. 1029(e) and/or as conclusions of law to which no responsive pleading is required. Further, it is specifically denied that Diakon is either solely or jointly and severely liable with Additional Defendant to Plaintiff. Finally, see 3 Plaintiffs Complaint and Diakon's Joinder Complaint with exhibits which are collectively incorporated herein by reference. NEW MATTER 46. Diakon hereby incorporates all averments of this Answer with New Matter as if fully set forth. 47. Additional Defendant fails to state a claim upon which relief can be granted against Answering Defendants. 48. At no time relevant hereto was Diakon, 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. 49. At no time relevant hereto was Additional Defendant or 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 Diakon. 50. At all time relevant hereto, Diakon complied with the applicable standard of care. 51. At all times relevant hereto Diakon 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. 52. Plaintiff assumed the risk of injury and this action is therefore barred by the Doctrine of Assumption of Risk. 53. Diakon believes and therefore avers that evidence accumulated through discovery and provided at trial may establish that Plaintiff was contributorily or comparatively negligent, and in order to protect the record, Diakon hereby pleads contributory or comparative negligence as an affirmative defense. 4 54. Diakon 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. 55. In the event that it is determined that Diakon 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 person, parties and/or organizations other than Diakon and over whom Diakon had no control, right, responsibility and, therefore, Diakon is not liable. 56. Any acts or omissions of Diakon alleged to constitute negligence were not substantial causes, factual causes, or factors contributing to the injuries and damages alleged in Plaintiffs' Complaint. 57. Plaintiffs injuries and losses, if any, were not caused by the conduct or negligence of Diakon but rather were caused by pre-existing medical conditions and/or causes beyond the control of Diakon, and Plaintiff may not recover against them. 58. 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. 59. All claims that might have been asserted by Plaintiff including claims for medical expenses are barred by operation of the applicable statute of limitations. 60. 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 M., as amended. 61. Plaintiff s 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. 5 62. The damages alleged by Plaintiff did not result from acts or omissions of Diakon, its agents, servants or employees, but, rather, from acts or omissions of persons and/or entities over whom Answering Defendants had no right of control. 63. Pa. R.C.P. 238 is unconstitutional on its face and as may be applied in this case. 64. Diakon is entitled to and incorporates herein by reference the defenses contained in the Federal Health Care Quality Improvement Act, P.L. 99-660. 65. Plaintiffs claims, the existence of which is specifically denied by Diakon, 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. 66. Answering Defendants are entitled to and asserts all defenses available to it under the Fair Share Act, 42 Pa. C.S. § 7102 B. 67. Upon becoming aware of Additional Defendant's inappropriate conduct with regard to Plaintiff, Diakon immediately terminated its contract with her. 68. Diakon acted appropriately, at all times, in supervision Additional Defendant as necessary. 69. Diakon demands trial by jury on all issues. WHEREFORE, Answering Defendants demand judgment in their favor and against all other parties, including interest, costs and fees, and other relief deemed appropriate by this Court. 6 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: Craig A. Stone, Quire Michael C. Mongiello, Esquire Melissa L. Pregmon, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 Dated: CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing has been served upon the following known counsel and parties of record this 5 - day of October 2011, via United States First-Class Mail, postage prepaid: Kathryn L. Simpson, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, Pa 17110-0950 Fred Buck, Esquire Rawle & Henderson, LLP 1339 Chestnut Street One South Penn Square Widener Bldg, 16th Floor Philadelphia, PA 19107 05/769686.x1 Sarah Kuhn 8 VERIFICATION I hereby affirm that the following facts are correct: The attached Answer with New Matter to Additional Defendant's Cross Claim is based upon information which has been gathered by my Counsel in the defense of this lawsuit. The language of the Answer with New Matter to Additional Defendant's Cross Claim is that of Counsel and not of me. I have read Answer with New Matter to Additional Defendant's Cross Claim and to the extent that the responses are bused upon :nforr_:ation which I have given to my Counsel, they are true and correct to the best of my knowledge, information and belief. To the extent that the contents of the responses are that of Counsel, I have relied upon Counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid responses are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. J On e Judge, Esq 're Dated: 6` "Z9 -11 t 7..,1 05/771 CRAIG A. STONE, ESQUIRE I.D. No. 15907 MICHAEL C. MONGIELLO, ESQUIRE I.D. No. 87532 MELISSA L. PREGMON, ESQUIRE I.D. No. 306793 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorneys for Defendant Diakon Lutheran Social Ministries C') ? 2 cti -um <Q 2t ss = p C? A .`- -It --i .c- - CHRISTIAN HESS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiff V. No: 10-3037 Civil Term CIVIL ACTION - LAW DIAKON LUTHERAN SOCIAL MINISTRIES JURY TRIAL DEMANDED Defendant DENITA ANN CAUSBEY-ROYSTER Additional Defendant Y TO THE PROTHONOTARY: Please list the Preliminary Objections of Defendant Diakon Lutheran Social Ministries to Plaintiff Christian Hess' Complaint for the next available Argument Court pursuant to Cumberland County Local Rule of Court 1028(c)(2). Respectfully submitted, ? " Dated: ? 40 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: Craig A. Stone, Esquire Michael C. Mongiello, Esquire Melissa L. Pregmon, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 05/803094. V 1 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document has been served upon the following known counsel and parties of record this A O day of December 2011, via United States First-Class Mail, postage prepaid: Kathryn L. Simpson, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, Pa 17110-0950 Fred Buck, Esquire Rawle & Henderson, LLP 1339 Chestnut Street One South Penn Square Widener Bldg, 16th Floor Philadelphia, PA 19107 Vk U? Craig A. Stone, Esquire Michael C. Mongiello, Esquire Melissa L. Pregmon, Esquire 05/803094.v1 CHRISTIAN HESS, PLAINTIFF V. DIAKON LUTHERAN SOCIAL MINISTRIES, DEFENDANT V. DENITA ANN CAUSBEY-ROYSTER, ADDITIONAL DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 10-3037 CIVIL TERM ORDER OF COURT AND NOW, this -2& day of March, 2012, upon consideration of Plaintiff's motion for determination by the court of the necessity of filing a certificate of merit, Defendants' response thereto, and the parties' briefs, the court concludes that this matter is controlled by Smith v. Friends Hospital, et ai., 928 A.2d 1072 (Pa. Super. 2007), and therefore Plaintiff is not required to obtain a certificate of merit. By the Court,"` r-77 .ora Albert H. Masland, J. w - ? Kathryn L. Simpson, Esquire For Plaintiff '? Craig A. Stone, Esquire For Defendant saa C bP? r 5 ?wa, ??'? 3??4l1? 121 ? IA RAWLE & HENDERSON LLP By: Fred B. Buck, Esquire/Patrice s Identification No. 31642/47482 The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 575-4200 CHRISTIAN HESS V. DIAKON LUTHERAN SOCIAL MINISTRIES V. DENITA ANN CAUSBEY-ROYSTER COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 10-3037 ADDITIONAL DEFENDANT, DENITA ANN CAUSBEY-ROYSTER'S MOTION SEEKING A COURT ORDER DIRECTING WHITE DEER RUN, INC. TO PRODUCE ITS TREATMENT RECORDS And now, additional defendant, Denita Ann Causbey-Royster, hereinafter "Ms. Royster," by and through her attorneys, Rawle & Henderson, LLP, hereby moves this Honorable Court to issue an Order in the form proposed directing White Deer Run of Williamsport to produce any and all psychiatric and/or drug and alcohol abuse records pertaining to Plaintiff, Christian Hess, and avers as follows: On or about January 6, 2009, plaintiff, Christian Hess, initiated this action against defendant, Diakon, for injuries allegedly resulting from breach of contract regarding plaintiff's drug and/or alcohol rehabilitative treatment. 2. Diakon joined additional defendant, Denita Ann Causbey-Royster, on March 7, 2011. See Joinder Complaint, attached hereto as Exhibit "A." The Joinder Complaint asserts that Ms. Causbey-Royster was a counselor assigned by Diakon to Plaintiff whose alleged nr77 i, r. , . , 1 ? l as?V O'Brietvl?-r, F111 1: US Attornp r Additional Defendant, V.4,causbey-Royster 5305951-1 improper conduct is the basis of Plaintiffs allegations of breach of oral contract against Diakon. Id. 3. On June 22, 2011, additional defendant served plaintiff with a notice of intent to serve a subpoena to produce Gateway Health Plan insurance records, Pyramid Ridgeview psychiatric records, White Deer Run of Williamsport psychiatric records, Youth Services Agency records, and Evergreen House psychiatric records. See Notice of Intent, attached hereto as Exhibit "B." 4. On July 14, 2011 a subpoena was issued, requesting the records for plaintiff, Christian Hess, from White Deer Run of Williamsport pursuant to Pennsylvania Rule of Civil Procedure 4009.22. See Subpoena, attached hereto as Exhibit "C." Additional defendant has since received a letter dated July 28, 2011 from Robyn Thomas, the Medical Records Technician for White Deer Run, Inc., stating that the facility is unable to admit or produce such records according to both federal regulations and Pennsylvania State law without a court order. See Letter, attached hereto as Exhibit "D." 6. On October 4, 2011 an Order was issued directing White Deer Run of Williamsport to produce any and all psychiatric and/or drug and alcohol abuse records pertaining to plaintiff, Christian Hess. See Order, attached hereto as Exhibit "E." 7. Additional defendant has now received a letter dated March 5, 2012 from Robyn Thomas, the Medical Records Technician for White Deer Run, Inc., stating that the facility is still unable to admit or produce such records according to both federal regulations and Pennsylvania State law "unless a specific type of order is obtained from a court of competent jurisdiction." See Letter, attached hereto as Exhibit "F." 5305951-1 8. Under 42 C.F.R. Part 2 a court can find "good cause" only if it determines that the public interest and the need for disclosure outweigh any adverse effect that the disclosure will have on the patient, the doctor-patient relationship, and the effectiveness of the program's services. 9. Additionally, a court may authorize the disclosure of "confidential communications" by a patient to the program when the disclosure is in connection with a proceeding in which the patient has already presented evidence concerning confidential communications. 10. Here, the patient, Christian Hess, has brought this legal action based upon her treatment, including confidential communications. See Complaint, attached hereto as Exhibit "G." 11. As the patient has chosen to put her treatment at issue and present evidence regarding confidential communications, the disclosure of her treatment records, including such confidential communications, is appropriate and will not have an adverse effect on her, her doctor-patient relationships, or the effectiveness of the program's services. 12. Additional Defendant will be severely prejudiced without the records of Christian Hess from White Deer Run, as her drug abuse, treatment and rehabilitation is the central issue of this lawsuit. 13. As such, Additional Defendant respectfully request that this Honorable Court enter an Order finding "good cause" for the requested disclosure as defined under 42 C.F.R. Part 2 and compelling the production of any and all psychiatric and/or drug and alcohol abuse records from White Deer Run of Williamsport pertaining to Plaintiff, Christian Hess. 5305951-1 WHEREFORE, Additional Defendant respectfully requests that this Court grant the within Motion and enter the proposed Order setting forth the relief requested. RAWLE & HENDERSON LLP By: rice S. 0 ?'Brien, Esquire Attorneys for Additional Defendant, Denita Ann Causbey-Royster The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 575-4200 5305951-1 RAWLE & HENDERSON LLP By: Fred B. Buck, Esquire/Patrice s. O'Brien Identification No. 31642/47482 The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 575-4200 Attorneys for Additional Defendant, Denita Ann Causbey-Royster CHRISTIAN HESS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA V. DIAKON LUTHERAN SOCIAL MINISTRIES V. DENITA ANN CAUSBEY-ROYSTER CIVIL ACTION - LAW NO. 10-3037 MEMORANDUM OF LAW IN SUPPORT OF ADDITIONAL DEFENDANT, DENITA ANN CAUSBEY-ROYSTER'S MOTION FOR A COURT ORDER DIRECTING WHITE DEER RUN, INC. TO PRODUCE ITS TREATMENT RECORDS I. MATTER BEFORE THE COURT Additional Defendant, Denita Ann Causbey-Royster's Motion requesting a Court Order compelling White Deer Run of Williamsport to produce any and all psychiatric and/or drug and alcohol abuse records pertaining to Plaintiff, Christian Hess. II. QUESTION PRESENTED Should this Court issue an Order directing White Deer Run to produce plaintiff's treatment records where plaintiff has placed her mental health and drug and/or alcohol use directly at issue and the records are essential to the ability to prepare a defense, and White Deer Run is willing and able provided a Court Order is issued? Suggested Answer: Yes. III. FACTS On or about January 6, 2009, plaintiff, Christian Hess, initiated this action against defendant, Diakon, for injuries allegedly resulting from breach of contract regarding plaintiff's 5305951-1 drug rehabilitative treatment. Diakon joined additional defendant, Denita Ann Causbey-Royster, who treated the plaintiff while she was a patient at Diakon. On June 22, 2011, additional defendant served plaintiff with a notice of intent to serve a subpoena. See Notice of Intent, attached hereto as Exhibit "B." Under cover letter dated July 6, 2011, additional defendant served plaintiff with discovery. See Cover Letter, attached hereto as Exhibit "E." On July 14, 2011 a subpoena was issued, requesting the records for plaintiff, Christian Hess, from White Deer Run of Williamsport pursuant to Pennsylvania Rule of Civil Procedure 4009.22. See Subpoena, attached hereto as Exhibit "C." Additional defendant has since received a letter dated July 28, 2011 from Robyn Thomas, the Medical Records Technician for White Deer Run, Inc., stating that the facility is unable to admit or produce such records according to both federal regulations and Pennsylvania State law without a court order. See Letter, attached hereto as Exhibit "D." On October 4, 2011 an Order was issued directing White Deer Run of Williamsport to produce any and all psychiatric and/or drug and alcohol abuse records pertaining to plaintiff, Christian Hess. See Order, attached hereto as Exhibit "E." Additional defendant has now received a letter dated March 5, 2012 from Robyn Thomas, the Medical Records Technician for White Deer Run, Inc., stating that the facility is still unable to admit or produce such records according to both federal regulations and Pennsylvania State law "unless a specific type of order is obtained from a court of competent jurisdiction." See Letter, attached hereto as Exhibit "F." IV. LEGAL ARGUMENT Plaintiff initiated this action regarding the rehabilitative treatment received, placing the mental health of Christian Hess at issue. Additional defendant has not received all existing psychiatric records for plaintiff, Christian Hess. The psychiatric and/or drug and alcohol abuse 5305951-1 records from White Deer Run are relevant and necessary to prepare a proper defense to the allegations Plaintiff has made against additional defendant, Ms. Royster. Defendants will be severely prejudiced without the records, as plaintiff's prior drug abuse, treatment and rehabilitation is a central issue of this lawsuit. Under the provisions of the Drug Abuse Prevention, Treatment and Rehabilitation Act, White Deer Run is prohibited from disclosing information or records relating to a present or former patient unless an order is obtained from a court of competent jurisdiction. 21 U.S.C. §§ 1175 et sec . Pennsylvania state law also requires a court order be issued before confidential drug and alcohol patient records be released. 71 P. S. §1690.108. As such, White Deer Run is prohibited from producing the treatment records of Christian Hess subpoenaed by Ms. Royster absent a Court Order. See Exhibit "D." Under 42 C.F.R. Part 2 a court can find "good cause" only if it determines that the public interest and the need for disclosure outweigh any adverse effect that the disclosure will have on the patient, the doctor-patient relationship, and the effectiveness of the program's services. Additionally, a court may authorize the disclosure of "confidential communications" by a patient to the program when the disclosure is in connection with a proceeding in which the patient has already presented evidence concerning confidential communications. Here, the patient, Christian Hess, has brought this legal action based upon her treatment, including confidential communications. See Complaint, attached hereto as Exhibit "G." As the patient has chosen to put her treatment at issue and present evidence regarding confidential communications, the disclosure of her treatment records, including such confidential communications, is appropriate and will not have an adverse effect on her, her doctor-patient relationships, or the effectiveness of the program's services. 5305951-1 As such, Additional Defendant respectfully request that this Honorable Court enter an Order finding "good cause" for the requested disclosure as defined under 42 C.F.R. Part 2 and compelling the production of any and all psychiatric and/or drug and alcohol abuse records from White Deer Run of Williamsport pertaining to Plaintiff; Christian Hess. V. CONCLUSION Based upon the foregoing, additional defendant, Denita Ann Causbey-Royster, respectfully requests that this Honorable Court grant her Motion and enter an Order directing White Deer Run of Williamsport to produce any and all psychiatric and/or drug and alcohol treatment records pertaining to Plaintiff, Christian Hess. RAWLE & By: P tr e S. O'Brien, Esquire A orneys for Defendant, Denita Ann Causbey-Royster The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 575-4200 5305951-1 EXHIBIT "A" 7J%` CRAIG A. STONE, ESQUIRE I.D. No. 15907 MICHAEL C. MONGIELLO, ESQUIRE u I.D. No. 87532 r r, Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorneys for Defendant Diakon Lutheran Social Ministries CHRISTIAN HESS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiff : V. No: 10-3037 Civil Term CIVIL ACTION - LAW DIAKON LUTHERAN SOCIAL MINISTRIES JURY TRIAL DEMANDED Defendant DENITA ANN CAUSBEY-ROYSTER Additional Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. MidPenn Legal Services 401 East Louther Street, Suite 103 Carlisle, PA 17013 (800) 822-5288 NOTICIA Le han demandado a usted en In corte. Si usted quiere defenderse de estas demandas expuestas en Ins paginas siguientes, usted tiene viente (20) dias de plazo al partir de In fecha de In demanda y In notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en In corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, In corte tomara medidas y puede entrar una Orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en In peticion de demanda. Usted Puede perder dinero o sus propiedades o otros derechos importantes para usted. L,LEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O L,LAME POR TELEFONO A LA OFICINA CUYA DIRF,CCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. MidPenn Legal Services 401 East Louther Street, Suite 103 Carlisle, PA 17013 (800) 822-5288 2 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 Attorneys for Defendant Diakon Lutheran Social Ministries CHRISTIAN HESS Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES Defendant DENITA ANN CAUSBEY-ROYSTER Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA No: 10-3037 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT DIAKON LUTHERAN SOCIAL MINISTRIES' JOINDER COMPLAINT AGAINST ADDITIONAL DEFENDANT, DENITA ANN CAUSBEY-ROYSTER AND NOW comes the Defendant, Diakon Lutheran Social Ministries ("hereinafter "Diakon"), by and through its attorneys Marshall, Dennehey, Warner, and Coleman & Goggin, and files a Complaint against Additional Defendant based on the following allegations: 1. On or about January 6, 2009, Plaintiff, Christian Hess (hereinafter "Plaintiff") filed a Complaint against Diakon, a copy of which is attached hereto, made a part hereof and marked as Exhibit A. 2. Additional Defendant, Denita Ann Causbey-Royster (hereinafter "Additional Defendant") is an adult individual, residing at 1658 Peachtree Lane, Chambersburg, PA 17202. 3. It is alleged in Exhibit A that Additional Defendant was at all relevant times a counselor assigned by Diakon to Plaintiff. See Exhibit A, paragraph 9. 4. It is alleged in Exhibit A that Additional Defendant had an office at the Mechanicsburg facility of Diakon. See Exhibit A, paragraph 10. 5. It is alleged that Additional Defendant wore a name tag that showed not only her name but that of Diakon. See Exhibit A, paragraph 13. 6. It is alleged that Plaintiff believed that Additional Defendant was an employee of Defendant and, at all times, was acting in the scope of that employment. See Exhibit A, paragraph 50. 7. It is alleged that Additional Defendant provided substance abuse counseling and treatment services to Plaintiff for an undefined period of time in late 2008 through early 2009. See Exhibit A, paragraphs 5-45. 8. It is alleged that Diakon breached its fiduciary duty to Plaintiff in failing to supervise Additional Defendant, who provided illegal drugs to Plaintiff and engaged in other improper conduct. Id. and see Exhibit A, Count I. 9. It is alleged that Diakon breached an oral contract with Plaintiff to provide rehabilitative services for drug dependence problems because, through Additional Defendant, Plaintiff was provided illegal drugs and was subject to other improper conduct. Id. and see Exhibit A, Count II. 10. On December 22, 2008, Diakon entered into a "Family Life Services Contract Counselor Agreement" with Additional Defendant providing for the provision of "professional counseling and testing services to clients assigned to [Additional Defendant] by [Diakon] on an 4 individual or a family basis at a location to be determined by [Diakon]". A copy of said agreement is attached hereto, made a part hereof and marked as Exhibit B. 11. Exhibit B remained in force from December 22, 2008 through January 12, 2009. Id. 12. On January 12, 2009, Diakon entered into a second agreement with Additional Defendant providing for the provision of "professional counseling and testing services to clients assigned to [Additional Defendant] by [Diakon] on an individual or a family basis at a location to be determined by [Diakon]". A copy of said agreement is attached hereto, made a part hereof and marked as Exhibit C. 13. Exhibit C remained in force from January 12, 2009 through all times material to Plaintiffs' Complaint. 14. Under Exhibits B and C, it was expressly "acknowledged by the parties that [Additional Defendant was] an independent contractor of [Diakon] and not an employee and that [Additional Defendant] is not entitled to wages or benefits of [Diakon] employees, including coverage by the Worker's Compensation Act." See Exhibits B and C, paragraph 5. 15. Under Exhibits B and C, it was expressly acknowledged that "[nothing in [the] Agreement [was] intended and nothing shall be construed to create an employer/employee relationship, a joint venture relationship, a partnership, or other similar relationship." Id. 16. Under Exhibits B and C, Additional Defendant agreed to "maintain professional liability insurance coverage in the minimum amount of One Million Dollars ($1,000,000) per occurrence, Three Million Dollars ($3,000,000) in the aggregate, and shall provide documentation of such current professional liability insurance coverage to [Diakon] upon request." See Exhibits B and C, paragraph 9. 17, Under Exhibits B and C, Additional Defendant agreed that she would indemnify and hold harmless Diakon "from and against any and all claims, liabilities, damages, costs or expenses (including reasonable attorneys' fees) arising from or resulting in any manner from the acts or omissions of the indemnifying party, its officers, employees or agents, in connection with this Agreement." See Exhibits B and C, paragraph 10. 18. If Plaintiff can recover for the occurrence, transaction or series of occurrences or transactions upon which Plaintiffs cause of action is based, which right of recovery is specifically denied, then Additional Defendant is solely liable to Plaintiff. 19. If Plaintiff can recover for the causes of action set forth in the Complaint, which right to recovery is specifically denied, then Additional Defendant is jointly and severely liable to the Plaintiff along with Diakon on Plaintiffs cause of action. 20. If Plaintiff can recover on the causes of action set forth in the Complaint against Diakon, which right of recovery is specifically denied, then Additional Defendant is liable over to Diakon on Plaintiffs cause of action. 21. If Plaintiff can recover on the causes of action set forth in the Complaint against Diakon, which right to recovery is specifically denied, then Diakon is entitled to indemnification in full from Additional Defendant at law and under Exhibits B and C. 22. If Plaintiff can recover on the causes of action set forth in the Complaint from Diakon for the acts or omissions of Additional Defendant, which right to recovery is specifically denied, then Diakon is entitled to indemnification in full from Additional Defendant, without limitation, including attorney's fees and cost of defense. 23. Despite proper supervision of Additional Defendant by Diakon, to the extent required, the conduct of Additional Defendant at issue in this action was plainly incompetent and her independent contractor relationship with Diakon was properly and immediately terminated upon Diakon's awareness of same. 24. Pursuant to Pa.R.C.P. No. 1042.3(c)(2), Diakon is not required to file a Certificate of Merit in support of the instant Joinder Complaint because allegations of liability against Diakon and Additional Defendant are directly related as described herein. 25. Plaintiff does not oppose the joinder of Additional Defendant to this action. WHEREFORE, Defendant, Diakon Lutheran Social Ministries joins Additional Defendant Denita Ann Causbey Royster as being solely liable to Plaintiff on Plaintiffs causes of action; liable over to Diakon on Plaintiffs causes of action; jointly or severely liable to Plaintiff on Plaintiffs cause of action; or liable over to Diakon for indemnification in full including attorney's fees and cost of defense. submi D JEHEY, WARNER, G GIN Dated: 31 3' 11 By: JCr?ig e, Esquire Micha? ongiello, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 7 VERIFICATION I hereby affirm that the following facts are correct: The attached Joinder Complaint is based upon information which has been gathered by my Counsel in the defense of this lawsuit. The language of the Joinder Complaint is that of Counsel and not of me. I have read Joinder Complaint and to the extent that the responses are based upon information which I have given to my Counsel, they are true and correct to the best of my knowledge, information and belief. To the extent that the contents of the responses are that of Counsel, I have relied upon Counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid responses are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. The Rev. Lisa M. Leber, Esquire Sr. Vice President, Chief Legal and Compliance Officer Dated: it 05/697139.vl CERTIFICATE OF SERVICE I, Angela M. Lentz, of Marshall, Dennehey, Warner, Coleman & Goggin, hereby certify that a true and correct copy of the foregoing Joinder Complaint has been served upon the following known counsel and parties of record this 4^ l++\. day of March 2011, via United States First-Class Mail, postage prepaid: l Kathryn L. Simpson, Esquire 3401 North Front Street P.O. BOX 5950 Harrisburg, Pa 17110-0950 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: Angela M. Lentz, Paraleg 05/693895.v1 8 METTE, EVANS & WOODSIDE Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) CHRISTIAN HESS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DIAKON LU'l1-1ERAN SOCIAL MINISTRIES, Defendant : No. 10-3037 -- CIVIL TERM CIVIL. ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take. action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE Y6-U WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyers Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acciGn dentro de los proximos veinte (20) dias despuds de la notificacion de esta Demanda y Aviso radicantopersonalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defenses de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o culquier otra reclamacian o remedio solicitado por el demandante puede ser dictado en contra soya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad a otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA, ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. Sl USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Lawyers Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 533929v1 Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 METTE, EVANS & WOODSIDE 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax klsimpson@mette.com CHRISTIAN A. HESS, Plaintiff' V. DIAKON LUTHERAN SOCIAL MINISTRIES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 10-3037 - CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT IN CIVIL ACTION 1. Plaintiff is Christian A. Hess, an adult individual, residing at 809A Fairfield Street, Mechanicsburg, Cumberland County, PA 17055. 2. Defendant is Diakon Lutheran Social Ministries ("Diakon'% a non-profit entity doing business as Diakon Family Life Services, 960 Century Drive, Mechanicsburg, Cumberland County, PA 17055. 3. Among other services, Diakon offers outpatient substance-abuse treatment services to individuals and their families. 1 4. At all times relevant to this Complaint, Diakon was a contractor for the Cumberland/Perry Mental Health/Mental Retardation Program and, among other things, was to provide outpatient substance-abuse treatment to individuals and their families. 5. In October 2008, Plaintiff was a resident at a halfway house following her discharge from a rehabilitation facility where she was treated for drug addiction to heroin. 6. Plaintiff was on probation for a DUI and other non-drug-related charges. 7. While at the halfway house, she was required by her probation officer to undergo counseling through Defendant for her drug addiction. 8. Plaintiff started her counseling through Defendant while she was still at the halfway house. 9. Denita Royster was the counselor assigned by Defendant to Plaintiff. 10. Upon her discharge from the halfway house, Plaintiff began seeing Ms. Royster at the Defendant's place of business in Mechanicsburg. 11. Because Plaintiffs treatment included family counseling, her half-sister, Justine Hill, accompanied her to some of her sessions with Ms. Royster. 12. Ms_ Royster had an office at the Mechanicsburg facility of Defendant. 13. Ms. Royster wore a name tag that showed not only her name but that of Defendant. 14. Pursuant to its contract with the Cumberland/Perry Mental Health/Mental Retardation Program, Defendant was required to provide all counseling services through its employees and not subcontractors. 15. Plaintiff formed a close relationship with Ms. Royster and trusted her. 2 16. Within three (3) weeks of starting her outpatient treatment with Ms. Royster, Plaintiff began using heroin again. 17. Plaintiff requested the medical staff of Defendant prescribe Suboxone for her so that she could avoid a relapse. 18. Suboxone is a narcotic medication indicated for the treatment of opioid dependence, and is available only by prescription. 19. Defendant's medical director refused to prescribe Suboxone for Plaintiff. 20. Upon learning that Plaintiff was unable to obtain a prescription for Suboxone, Ms. Royster advised Plaintiff that she could obtain Suboxone for her. 21. Ms. Royster then communicated with Justine Hill, telling her that Ms. Royster could get Suboxone for Plaintiff and that the cost of the pills would be $1,200 for 200 pills. 22. Justine Hill told Ms. Royster that she could not afford $1,200, only $600 and she would take as many pills for Plaintiff as that amount would buy. 23. Justine Hill also told Ms. Royster that she wanted the pills in their original container so that she could verify that they were, in fact, Suboxone and that she wanted to dispense them to Plaintiff. 24. Justine Hill wrote a check for $600, as directed by Ms. Royster. 25. Shortly thereafter while Plaintiff was at a counseling session, Ms. Royster directedc Plaintiff to the parking lot and told her that "Mark" would give her the Suboxone. 26. Plaintiff went to the Defendant's parking lot and met with Mark, who she understood to be either Ms. Royster's husband or boyfriend, in his car. 3 27, Plaintiff and Mark then left the car and walked to the entrance to Defendant's Mechanicsburg facility and sat outside where they saw Patricia O'Donnell, the Defendant's Clinical Director, who asked Plaintiff how she was doing. 28. Plaintiff received eight to ten pills from Mark at that time. 29. Plaintiff returned to Justine Hill's house with three or four pills and told Justine that Ms. Royster said she would hold the remainder. 30. Ms. Royster had Mark purchase Suboxone a second time for Plaintiff. .3 The third time that Ms. Royster said she could arrange for Suboxone to be purchased for Plaintiff, she was unable to do so. 32. During this time period, Plaintiff was arguing with Justine Hill with whom she was living, and would stay away from Justin's home and stay with others, including Ms. Royster and Mark at their home. 33. Ms. Royster and Mark told Plaintiff that she could stay at their home until they could fmd a way to get her more Suboxone. 34. While in Ms. Royster's home, Plaintiff was provided with heroin by Mark. 35. Taking advantage of Plaintiff's drug-dependent condition, Ms. Royster obtained $200 from Plaintiff for a student loan payment 36. Ms. Royster also attempted to have Plaintiff change the name on her bank account to eliminate Justine Hill's name on the account and to include Ms. Royster's instead. 37. Plaintiff then reentered rehabilitation in late March 2009. 38. Plaintiffs sister, Alice Hess, who was treating with Ms. O'Donnell, was told by Ms. O'Donnell that she was aware what was going on between Ms. Royster, Mark and the Plaintiff and that were providing drugs to Plaintiff. 4 39. A week later, Ms. O'Donnell called Justine Hill and repeated what she had told Alice Hess. 40. In that phone conversation, Ms. O'Donnell also said that she had suspected that something improper was going on, starting with her seeing Plaintiff in Mark's car in Defendant's parking lot. 41. At Ms. O'Donnell's request, Justine Hill met with her to discuss what Ms. O'Donnell knew about Ms. Royster and Mark_ 42. At that meeting, Justine showed Ms. O'Donnell text messages that Mark had sent to her threatening her and her family if payment was not made for the drugs he was providing to Plaintiff. 43. Justine also provided a copy of the check she wrote for the Suboxone and two of Plaintiff's checks that Ms. Royster had forged. 44. Ms. O'Donnell told Justine Hill that she had a team of lawyers in the next room and that Justine had to sign a paper. 45. Ms. O'Donnell provided a paper for Justine Hill to sign but her brother, Paul Ensminger who was with her, advised Justine not to sign it. COUNTI BREACH OF FIDUCIARY DUTY 46. The averments contained in paragraph I through 45 are incorporated. 47. Plaintiff had a confidential relationship with Defendant where Defendant agreed to provide her with substance abuse counseling and treatment. 5 48. Defendant provided Plaintiff with a counselor to accomplish the substance abuse counseling. 49. Plaintiff trusted her counselor and depended upon her for guidance and advice in treating Plaintiff s substance abuse problem. 50. Plaintiff believed that Ms. Royster was an employee of Defendant and, at all times, was acting in the scope of that employment. 51. At the time Plaintiff was receiving counseling from Defendant, she was 18 years of age. 52. Defendant negligently failed to act in good faith and solely for the benefit of Plaintiff when it failed to supervise the counselor providing services to Plaintiff. 53. As a result of Defendant's failure to supervise the counselor who provided drugs to Plaintiff, as described above, Plaintiff's drug dependency was deepened, not alleviated, and she had to undergo additional rehabilitation efforts. 54. As a result of Defendant's failure to supervise the counselor who provided Plaintiff with drugs, Plaintiff and her family were threatened with violence by the counselor's husband/boyfriend because of his claims that Plaintiff owed him money for the drugs. 55. Defendant's failure to act solely for the benefit of Plaintiff was a real factor in bringing about Plaintiff's injuries. WHEREFORE, Plaintiff demands compensatory and punitive damages in her favor and against Defendant in an amount in excess of the arbitration limits of this Court plus costs of suit and interest. 6 COUNT II BREACH OF CONTRACT 56. The averments contained in paragraphs 1 through 55 are incorporated. 57. Plaintiff entered into an oral agreement with Defendant whereby Defendant agreed to provide rehabilitative services for Plaintiff's drug dependence problems. 58. Defendant owed Plaintiff the duty to provide those services. 59. To provide those services, Defendant assigned Ms. Royster to Plaintiff as her counselor. 60. Defendant's responsibilities with regard to carrying out the duties owed to Plaintiff were performed by Ms. Royster in fulfillment of the contract between it and Plaintiff. 61. Instead of providing rehabilitative services, Defendant, through Ms. Royster, provided her with drugs that was in direct contravention of the treatment/therapy required by Plaintiff. 62. As a result of the ingestion of the drugs provided by Ms. Royster, which Defendant knew or should have known about had it exercised due care, Plaintiff relapsed and had to undergo further in-patient rehabilitation. 63. Defendant breached its contract with Plaintiff by not providing her with the treatment/counseling it promised to provide. WHEREFORE, Plaintiff demands compensatory damages in her favor and against Defendant in an amount in excess of the arbitration limits of this Court plus costs of suit and interest. 7 Respectfully submitted, METTE,,EVANS & WOODSIDE Katbhn L. YAnpsorf, Esquire Supt . Ct. I. o. 28960 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Date January 5, 2011 531000v1 VERIFICATION I, CHRISTIAN HESS, have read the foregoing document and verify that the facts set forth herein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. DATED: CHRISTIAN HESS CERTIFICATE OF SERVICE I, Kathryn L. Simpson, Esquire, hereby certify that on this day I caused a true and correct copy of the foregoing document to be served on each of the following individuals by United States mail, first class, postage prepaid, addressed as follows: Craig A. Stone, Esquire MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Respectfully submitted, ANS & WOODSIDE By: Suo. Ct. tWNo. 28960' 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff, Christian Hess Date: January 5, 2011 529737A ` IA O FAMILY LIFIE SEQ-VICES A LUTHERAN FAMILY & COMMUNITY MINISTRY FAMILY LIFE SERN'1CES C07%7 ACT COUNSELOR AGREEMENT This Agreertlent; made this 22, nd Day of December, 2008 (the "Agreement-is entered into by and between Diakon Lutheran. Social Services. a P?tutsylvania nonprofr comoratlon, d?bia Diakon Family Life Services of the Capitol Region ("FLS") and Denita Royster--Causby ("Contract Counselor"). Whereas, FLS provides congregationally-, center- and coma-aunty-based professional counseling services for children, adults and families; and Whereas, Contract Counselor is qualified to provide; and desires to provide; such professional counseling and testing services to the clients of FLS upon the terms and conditions set forth in this Agreement. NOW THEREFORE. in consideration of the mutual covenants contained herein and intending to be legally bound, the parties agree as follows: 1 Services. Contract Counselor shall provide professional counseling and testing services to clients assigned to him/her by FLS on an individual or a family basis at a location to be determined by FLS. 2. Licenses, certifications. clearances. Contract Counselor shall make available to FLS copies of his/her dinlomas and licenses and/or certifications. In addition, Contract Counselor shall submit to Pennsylvania Child Abuse History and Criminal History Record checks at the time of initial contracting with FLS and at any subsequent time at the requesi of FLS. Terra. This .Agreement shall be for an initial term of one (1) year, beginning December 22"d 2008. and shall automatically renew for additional one (1) year terms, unless either party gives notice to the other at least thirty (30) days prior to the expiration of the initi al team, or any renewal term thereafter, of the party's intent not to renew the Agreement. 4. Te rnination. This Agreement may be terminated at anytime by either party with or without cause upon thirty (30) days written notice. If Contract Counselor's license. or certification is suspended or revoked, or if Contract Counselor's insurance policy- is cancelled, this Agreement will be terminated immediately and automatically. 5. IndzDendent Contractor status. It is expressly acknowledged by the parties that Contract Counselor is an independent contractor of FLS and not an employee and that Contract Counselor is not entitled to waees or benefits of FLS employees, including coverage by the Worker's Compensation Act. Nothing in this Agreement is intended and nothing shall be construed to create an employer/employee relationship, a joint venture relationship, a partnership, or other similar relationship. 6. Pa vment. FLS shall pay Contract Counselor 530.00 per direci service hour for counseling services In addition. Contract Counselor will be responsible for all documentation as required for the services renciered and as directed by FLS. Contract Counselor will not be, naid for "no shows" Travel and other 96Qii nm1 fAbme hall not be billed and will not be compensated. Mechanicsburg, PA 17057 Photm_- 71 795.033C PH: Toj =r-_e 866.700.5868 7i-.795.040, 7. Rate increases. At the time of any automatic renewals of this Agreement pursuant to Paragraph 3, FLS, in its discretion, may increase the rate of payment per direct service hour. FLS shall communicate such rate increases to Contract Counselor in writing. 8. Documentation. Contract Counselor shall maintain paperwork and documentation required to remain in compliance with any grant, other third party pavers or other funding programs of FLS. FLS shall be responsible for informing Contract Counselor of any special requirements or guidelines related to paperwork and documentation. All clinical documentation related to services provided by Contract Counselor under this Agreement shall be maintained at the Farnily Life Services office at 960 Century Drive, Mechanicsburg PA 17055 9. Insurance. Contract Counselor shall maintain professional liability insurance coverage in the minimum amount of One Million Dollars ($1 ,000,000) per occurrence, Three Million Dollars ($3 000,000) in the aggregate, and shall provide documentation of such current professional liability insurance coverage to FLS upon request. 10. Indemnification. Each party hereto agrees that it will indemnify and hold the other -armless from and against any and all claims, liabilities, damages; costs or expenses (including reasonable attorneys fees) arising from or resulting in any manner from the acts or omissions of the indemnifying party, its officers, employees or agents, in connection with this Agreement. 11 Non-discrimination. FLS operates in accordance with all applicable civil rights laws and regulations and does not discriminate- in admissions, the provisions of services, or referrals of clients on the basis of race, color, religious creed, disability, marital status. ancestry; national on -in. sexual orientation, age, sex or any other class protected by law. Contract Counselor shall comply with FLS' nondiscrimination policies and procedures and all applicable Federal and state civil rights laws and regulations in the performance of his/her duties under this Agreement 12. Compliance. Contract Counselor shall adhere to the applicable Code of Ethics for his/her discipline, policies and procedures of FLS, and with all applicable federal and state laws and regulations related to this Agreement and the services to be provided hereunder. 11 Non-solicitation. Contract Counselor covenants and agrees that during the term(s) of this Agreement, and for a period of one (1) year following termination or non-renewal of this Agreement, Contract Counselor shall not solicit current or former FLS clients for any outside private practice. Advertising in the newspaper, the Yellow Pages, etc. is not considered solicitation, direct mailing, telephone calls, etc. to clients by Contract Counselor or an agent of Contract Counselor is considered solicitation. 14. Conflict of laws. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. 15. Government program exclusions. Contract Counselor hereby represents and warrants that he/she is not now, and at no time has been, excluded from participation in Federal health care programs, including Medicare and Medicaid. Contract Counselor agrees to immediately notify FLS of anv threatened, proposed, or actual exclusion from any Federal health care program, including Medicare and Medicaid. In the event Contract Counselor is excluded from any Federal health care program during the term of this Agreement; or if at any time after the effective date of this Agreement, it is determined that Contract Counselor is an excluded entity, this Agreement shall automatically terminate. 16, Health Insurance Portability and Accountability Act cif 1996 For purposes of this Paragraph 16, Contract Counselor shall be referred to as "Business Associate" and FLS shall be referred to as "Covered Entity." Terms used, but not otherwise defined, in this Paragraph 16 shall have the same meaning as those terms under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (collectively referred to herein as "HIPAA"). a Permitted Uses and Disclosures. Business Associate may use and disclose Protected Health Information ('PHI") (as defined below) (i) as necessary to perform the services described above, (ii) as required bylaw or (iii) as otherwise authorized by the Covered Entity. All other uses and disclosures not authonzed by this Agreement or required by law are prohibited, unless Business Associate obtains written authorization from the Covered Entity. PHI means any information that identifies an individual and that relates to the past, present or future physical or mental health or condition of an individual, the provision of healthcare to any individual, or the past, present or future payment of the provision of healthcare to an individual. b. Use or Disclosure of PHI for Business Associate's Own Use for Management Administration or to Carry Out Legal Responsibilities. (i) In addition to the use and disclosure of PHI necessary to perform the services under this Agreement or as required by law, subject to the provisions contained in subparagraph (ii), below, Business Associate shall be permitted to use and/or disclose PHI received from or made available by Covered Entity or created by Business Associate on behalf of Covered Entity, for the proper management and administration of the Business Associate or to carry out legal responsibilities of Business Associate. (ii) In order for the Business Associate to use or disclose PHI for the purposes described in this subparagraph (b): (1) the disclosure must be required by law or (2) Business Associate must obtain reasonable assurances from the person or entity to whom the information is disclosed that such person or entity will (a) hold the PHI in confidence in accordance with HIPAA, (b) only disclose the PHI as required by law, (c) only use PHI for the purpose for which Business Associate disclosed the PHI and (d) notify the Business Associate of any breaches of confidentiality of which the person or entity is aware. c. Data Aggregation Services. Except as otherwise limited by this Agreement, Business Associate may use the PHI for Data Aggregation Services relating to Health Care Operations of Covered Entity. d. Business Associate Obligations: (i) Appropriate Safeguards. Business Associate will establish and maintain appropriate safeguards to prevent any use or disclosure of PHI other than as provided for by this Agreement. T 112;1 Renorts O: ImUrot?eT" JSe or D15CloSUre. BUu1neFS f'iSSOClate shall immediate.hr report to Covered Entity's privacy officer or designee; any use or disclosure of PHI in violation of this Agreement by telephone and shall follow up with a written report to Covered Entity's privacy officer, Lisa Leber, VP/Compliance and Legal Affairs, at 960 Century Drive. Mechanicsburg. Pennsylvania 17055. (iii) Subcontractors and .Agents. Business Associate shall ensure that any agents, including any subcontractors, to whom Business Associate provides PHI received from, or created or received by Business :Associate, on behalf of Covered Entity, agrees to the same restrictions with respect to the PHI as contained in this Agreement. Business Associate shall provide only the Minimum Necessary PHI for the purpose of such disclosure and shall enter into an ab eement with the subcontractor or agent that contains the same terms, conditions and restrictions on the use and disclosure of PHI as contained in this Paragraph 16. (iv) Right of Access to PHI. Business Associate hereby agrees to make available to an individual, who is the subject of the PHI, the right to access and copy that individual's PHI, at the request of the individual or of Covered Entity in the time and manner designated by Covered Entity. This right of access shall conform with and meet all of the requirements of HIPAA. (v) Amendment and Incorporation of_Arnendments. Business Associate shall make PHI available for amendment and incorporate any amendments of PHI that have been agreed to by Covered Entity, at the request of Covered Entity or of the individual; in the time and manner designated by Covered Entity, in accordance with the requirements of HIPAA. (vi) Provide Accounting. Business Associate. shall document and make available to Covered Entity or to the individual, any information necessary to provide an accounting of disclosures in accordance with the requirements of HIPAA in the time and manner designated by Covered Entitv. The accounting provided by Business Associate under this subparagraph (vi) shall include: (a) the date of the disclosure; (b) the name, and address, if known, of the entity or person who received the PHI; (c) a brief description of the PHI disclosed; and (d) a brief statement of the purpose of the disclosure. (vii) Mitigation Procedures. Business Associate shall establish and provide to Covered Entity, upon request, procedures for mitigating, to the maximum extent practicable, any harmful effect from the use or disclosure of PHI in a manner contrary to this Agreement or HIPAA. Business Associate further- agrees to mitigate any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate or anv subcontractor or agent of Business Associate in violation of this Agreement. (viii) Requests for Confidential Communications. Business Associate will comply with any agreements for confidential communications of which it is aware and to which Covered Entity agrees pursuant to HIPAA by communicating with Covered Entity's clients using agreed upon alternative means or alternative locations. e. Obligations of Covered Entity (i) Notification of Changes. Covered Entity small provide Business Associate with any changes in, or revocation of, permission by individual to use or disclose PHI, if such change affects Business Associate's permitted or required uses and disclosures of PHI. (ii) Notification of Restrictions. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with HIP AA, £ Additional Termination Provisions. Notwithstanding the termination provisions contained in Paragraph 4 of this Agreement, this Agreement may be terminated immediately upon written notice by Covered Entity to Business Associate if Covered Entity determines, in its sole discretion, that Business Associate has violated any material term of this Paragraph 16. Business Associate's obligations under subparagraphs 16(b) 7 (d) and (g) of this Paragraph 16, and as other ise stated in this Paragraph 16, shall survive the termination of this Agreement g. Disposition of PHI Upon Termination or Expiration. Upon termination of this Agreement for any reason, Business Associate shall either return or destroy, at the option of Covered Entity. in Covered Entity's sole discretion, and in accordance with any instructions by Covered Entity. all PHI in the possession or control of Business Associate and its agents and subcontractors. However, in the event that Covered Entity determines that neither the return nor the destruction of the PHl is feasible, Business Associate may retain the PHI, provided, that Business Associate (i) continues to comply with the provisions of this Paragraph 16 for as long as Business Associate retains the PHI, and (ii) further limits its uses and disclosures of PHI under this Agreement to those purposes that make the return or destruction of the PHI infeasible. h. Amendment to Comply with Law. The parties acknowlede° that state and federal laws relating to privacy are rapidly evolving and that amendment of this Paragraph 16 of this Agreement may be required to provide for procedures to ensure compliance v -ith such developments. The parties specifically agree to take such action as is necessary to implement the standards and requirements of HIPAA and other applicable laws relating to the confidentiality of PHI. Upon a party's request, the other party to this Agreement agrees to promptly to enter into negotiations with the requesting party concerning the terms of any amendment to this Paragraph 16 embodying written assurances consistent with the standards and requirements of HIPAA or other applicable laws or regulations. Notwithstanding any other provision in this Agreement to the contra: y the requesting part;- may terminate this Agreement upon thirty (30) days' written notice to non- requesting party in the event (i) non-requesting party does not promptly enter into negotiations to amend this Paragraph 16 when requested by the requesting party pursuant to this subparagraph or (ii) non-requesting party does not enter into an amendment to this Agreement to amend this Paragraph 16 providing assurances regarding the safeguarding of PHI that requesting party, in its sole discretion, deems sufficient to satisfy the standards and requirements of HIPAA or as otherwise required by any applicable law or regulation. DN WITNESS WHEREOF, the parties hereto, intending to be legally bound to the terms of this Agreement; have caused this Agreement to be executed as of the date first written above. CONTRACT COUNSELOR Sigitatur/-Z PrintName:j,,cw/ ,fCG ?? DLAKON LUTHERAN SOCIAL SERVICES d/b/a Diakon Family Life Services of the Capitol Region. .t BY: Print Name: Title:, `, Cr !}? •r'(_i7 )IA O FAMILY LIFE SERVICES iLTHERAN FAMILY & COMMUNITY MINISTRY FAMILY LIFE SERVICES CONTRACT COUNSELOR ACv-REEMENT This Agreement, made this 12 day of January. 2009, (the "Agreement") is entered into by and between Diakor. Lutheran Services; a Pennsylvania nonprofit corporation. d,/b/a Family Life Services of the Capitol Region (TI-S") and Denita Royster-Causby ("Contract Counselor"). Whereas, FLS provides corgregationally-, center- and communiry-based professional counseling services for children, adults and families; and VAnnereas, Contract Counselor is qualified to provid and desires to provide, such professional counse iinR services to the clients of FLS upon the terms and conditions set forth in this A areement. NOW THEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound, the parties agree as follows: 1 Services. Contract Counselor shall provide prof ssional counseling services to clients assigned to him/her by FLS on either an individual or a group basis at a location to be determined by FLS. ?. Licenses, certifications, clearances. Contract Counselor shall make available to FLS copies of his/her diplomas and licenses and/or certifications. In addition. Contract Counselor shall submit to Pennsylvania Child Abuse History and Criminal_ History Record checks at the tune of initial contracting with FLS and at any subsequent time at the request of FLS. 3. Term. This Agreement shall be for an initial terra of one (1) year, beginning January 12th", 2009, and shall automatically renew for additional one ( I } year terms, unless either party gives notice to the other at least thirty (30) days prior to the expiration of the initial term, or any renewal te=rn thereafter, of the Dam,"s intent not to renew the Agreement. 4. Termination. This Agreement may be terminated at any time by either party with or without cause upon thirty (30) days written notice. If Contract Counselor's license or certification is suspended or revoked, or if Contract Counselor's insurance policy is cancelled, this Agreement will be terminated immediately and automatically, independent Contractor status. It is expressly acknowledged by the parties that Contract Cour_selor is an independent contractor of FLS and not an employee and that Contract Couneeior is not entitled to wages or benefits of FLS employees. including coverage by the V,?%orker s Compensation Act. Nothing in this A_L-reement is intended and nothing shall be construed to create an employer/employee relationship, a Joint venture relationshit. a partnership, or other similar relationship. 960 Century Dnve Mechanicsburg, PA 17055 Prone 717--795-0330 PA Tnl' r,a 81) 6 - 100.681)S Payment. FLS shall pay Contract Counseior $ 35.00 per direct Drug and Alcohol service hour. In addition, Contract Counselor shall be paid to attend one (1) hour of clinical supervision and one (1) staff meeting per month. As well, Contract Counselor will be paid $17.50 per hour for training required by BDAP. Contract Counselor shall remit documentation for services rendered as directed by FLS. Contract Counselor will not be paid for "no shows". Travel and other incidental time shall not be billed and will not be compensated. FLS shall pay Contract Counselor $30.00 per direct service hour for mental health counseling services. In addition, Contract Counselor shall be paid for one Mental Health outpatient staff'meeting and one hour of Mental Health supervision. Contract Counselor will be responsible for all documentation as required for the services rendered and as directed by FLS. Contract Counselor will not be paid for "no shoves". Travel and other incidental time shall not be billed and will not be compensated. 7. Rate increases. At the time of any automatic renewals of this Agreement pursuant to Paragraph 3, FLS, in its discretion, may increase the rate of payment per direct service hour. FLS shall communicate such rate increases to Contract Counselor in writing. Documentation. Contract Counselor shall maintain paperwork and documentation required to remain in compliance with any grant, other third party pavers or other funding programs of FLS. FLS shall be responsible for informing Contract Counselor of any special requirements or guidelines related to paperwork and documentation. All clinical documentation related to services provided by Contract Counselor under this Agreement shall be maintained at the Family Life Services office at 960 Century Dri vc, Mechanicsburg PA 17055 or at the licensed satellite sites. 9. Insurance. Contract Counselor shall maintain professional liability insurance coverage in the minimum amount of One Million Dollars ($1,000,000) per occurrence, Three Million Dollars ($3,000,000) in the aggregate; and shall provide documentation of such current professional liability insurance coverage to FLS upon request. 10. Indemnification. Each party hereto agrees that it will indemnify and hold the other harmless from and against any and all claims, liabilities, damages, costs or expenses (including reasonable attorneys` fees) arising from or resulting in any manner from the acts or omissions of the indemnifying party, its officers. employees or agents, in connection with this Agreement. 11. Non-discrimination. FLS operates in accordance with all applicable civil rights laws and re--ulations and does not discriminate in admissions, the provisions of services, or referrals of clients on the basis of race, color, religious creed, disability, marital status, ancestry, national origin, sexual orientation, age, sex or any other class protected by law. Contract Counselor shall comply with FLS' nondiscrimination policies and procedures and all applicable Federal and state civil rights laws and regulations in the performance of his/her duties under this Agreement. 12. Compliance. Contract Counselor shall adhere to the applicable Code of Ethics for his/her discipline, policies and procedures of FLS, and with all applicable federal and state laws and reia-ttlations related to this Agreement and the services to be provided hereunder. L. Nor-solicitation. Contract Counselor covenants and agrees that during the term(s) of trns Agreement, and for a period of one (1) near following termination or non-renewal o this Agreement; Contract Counselor shall not solicit current or former FLS clients for any outside private practice. Advertising in the newspaper, the Yellow Pages, etc. is not considered solicitation; direct mailing, telephone calls, etc. to clients by Contract Counselor or an agent of Contract Counselor is considered solicitation. v 14. Conflict of laws. This .Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. 15. Government program exclusions. Contract Counselor hereby represents and warrants that heishe is not now, and at no time has been, excluded from participation in Federal health care programs, including Medicare and Medicaid. Contract Counselor agrees to immediately notify FLS of any threatened, proposed, or actual exclusion from any Federal health care program, including Medicare and Medicaid. In the event Contract Counselor is excluded from any Federal health care prograrn during the term of this Agreement, or if at any time after the effective date of this Agreement, it is determined that Contract Counselor is an excluded entity, this Agreement shall automatically terminate. 16. Health Insurance Portability and Accountability Act of 1996. For purposes of' this Paragraph 16, Contract Counselor shall be refer red to as "Business Associate" and FLS shall be referred to as "Covered Entity." Terms used, but not otherwise defined, in this Paragraph 16 shall have the same meaning as those terms under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (collectively referred to herein as "HIPAA"). a Permitted Uses and Disclosures. Business Associate may use and disclose Protected Health Information ("PHI") (as defined below) (i) as necessary to perform the services described above. (ii) as required by law or (iii) as otherwise authorized by the Covered Entity. All other uses and disclosures not authorized by this Agreement or required by la.w are prohibited, unless Business Associate obtains written authorization from the Covered Entity. PHI means any information that identifies an individual and that relates to the past, present or future physical or mental health or condition of an individual, the provision of healthcare to any individual, or the past, present or future payment of the provision of healthcare to an individual. b. Use or Disclosure of PHI for Business Associate's Own Use for Management Administration or to Carry Out Legal Responsibilities. (i) In addition to the use and disclosure of PHI necessary to perform the services under this Agreement or as required by law, subject to the provisions contained in subparagraph (ii), below, Business Associate shall be permitted to use and/or disclose PHI received fro ' in or made available by Covered Entity or created by Business Associate on behalf of Covered Entity, for the proper management and administration of the Business Associate or to carry out legal responsibilities of Business Associate. (ii) In order for the Business Associate to use or disclose PHI for the purposes described in this subparagraph (b): (1) the disclosure must be required by law or (2) Business Associate must obtain reasonable assurances from the person or entity to whom the information is disclosed that such person or entity will (a) hold the PHI in confidence in accordance with HIPAA, (b) only disclose the PHI as required by law, (c) only use PHI for the purpose for which Business Associate disclosed the PHI and (d) notify the Business Associate of any breaches of confidentiality of which the person or entity is aware. c. Data Aggregation Services. Except as otherwise limited by this Agreement, Business Associate may use the PHI for Data Aggregation Services relating to Health Care Operations of Covered Entity. d. Business Associate Obligations; (i) P.ppropriate Safeguards. Business Associate will establish and maintain appropriate safeguards to prevent any use or disclosure of PHI other than as provided for by this Agreement. (ii) Reports of Improper Use or Disclosure. Business Associate shall immediately report to Covered Entity's privacy officer or designee, any use or disclosure of PHI in violation of this Agreement by telephone and shall follow up with a written report to Covered Entity's privacy officer, Lisa Leber, VP/Compliance and Legal Affairs, at 960 Century Drive, Mechanicsburg, Pennsylvania 1705-S. (iii) Subcontractors and Agents. Business Associate shall ensure that any agents, including any subcontractors, to whom Business Associate provides PHI received from, or created or received by Business Associate, on behalf of Covered Entity, agrees to the same restrictions with respect to the PHI as contained in this Agreement. Business Associate shall provide only the Minimum Necessary PHI for the purpose of such disclosure and shall enter into an agreement with the subcontractor or went that contains the same terms, conditions and restrictions on the use and disclosure of PHI as contained in this Paragraph 16. (iv) Right of Access to PHI. Business Associate hereby agrees to make available to an individual, who is the subject of the PHI, the right to access and copy that individual's PHI, at the request of the individual o: of Covered Entity in the time and manner designated by Covered Entity. This right of access shall conform with and meet all of the requirements of HIPAA. (v) Amendment and Incorporation of Arnendments. Business Associate shall make PHI available for amendment and incorporate any amendments of PHI that have been agreed to by Covered Entity, at the request of Covered Entity or of the individual, in the time and manner designated by Covered Entity, in accordance with the requirements of HIPAA. (vi) Provide Accounting. Business Associate shall document and make available to Covered Entity or to the individual, any information necessary to provide an accounting of disclosures in accordance with the requirements of HIPAA in the time and manner designated by Covered Entity. The accounting provided by Business Associate under this subparagraph (vi) shall include: (a) the date of the disclosure; (b) the name, and address, if known, of the entity or person who received the PHI; (c) a brief description of the PHI disclosed; and (d) a brief statement of the purpose of the disclosure. (vii) Mitigation Procedures. Business Associate shall establish and provide to Covered Entity, upon request, procedures for mitigating, to the maximum extent practicable, any harmful effect from the use or disclosure of PHI in a manner contrary to this Agreement or HIPAA. Business Associate further agrees to mitigate any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate or any subcontractor or agent of Business Associate in violation of this Agreement. (viii) Requests for Confidential Communications. Business Associate will comply with any agreements for confidential communications of which it is aware and to which Covered Entity agrees pursuant to HIPAA by communicating with Covered Entity's clients using agreed upon alternative means or alternative locations. e. Obligations of Covered Entity. (i) Notification of Changes. Covered Entity shall provide Business Associate with any changes or revocation of, permission by individual to use or disclose PHI, if such change affects Business Associate's permitted or required uses and disclosures of PHI. (ii) Notification of Restrictions. Covered Entity shall notiry Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with HIPAA. f. Additional Termination Provisions. Notwithstanding the termination provisions contained in Paragraph 4 of this Agreement, this Agreement may be terminated immediately upon written notice by Covered Entity to Business Associate if Covered Entity determines, in its sole discretion, that Business Associate has violated any material term of this Paragraph 16. Business Associate's obligations under subparagraphs 16(b), (d) and (g) of this Paragraph 16, and as otherwise stated in this Paragraph 16, shall sunTive the termination of this Agreement g. Disposition of PHI Upon Termination of Expiration. Upon termination of this Agreement, for any reason, Business Associate shall either return or destroy, at the option of Covered Entity, in Covered Entity's sole discretion, and in accordance with an), instructions by Covered Entity, all PHI in the possession or control of Business Associate and its agents and subcontractors. However, in the event that Covered Entity determines that neither the return nor the destruction of the PHI is feasible, Business Associate may retain the PHI, provided, that Business Associate (1) continues to comply with the provisions of this Paragraph 16 for as long as Business Associate retains the PHI, and (ii) further limits its uses and disclosures of PHI under this Aa eement to those purposes that make the return or destruction of the PHI infeasible. h. Amendment to Comply with Law. The parties acknowledge that state and federal laws relating to privacy are rapidly evolving and that amendment of this Paragraph 16 of this Agreement may be required to provide for procedures to ensure compliance with such developments. The parties specifically agree to take such action as is necessary to implement the standards and requirements of HIPAA and other applicable laws relating to the conndentiahty of PHI. Upon a party's request, the other party to this Agreement agrees to promptly to enter into negoti ations with the requesting party concerning the terms of any amendment to this Paragraph 16 embodying written assurances consistent with the standards and requirements of HIPA.A or other applicable laws or regulations. Notwithstanding any other provision in this Agreement to the contrary, the requesting party may terminate this Agreement upon thirty (30) days' written notice to non-requesting party in the event (i) non-requesting party does not promptly enter into negotiations to amend this Paragraph 16 when requested by the requesting party pursuant to this subparagraph or (ii) non-requesting party does riot enter into an amendment to this Agreement to amend this Paragraph 16 providing assurances regarding the safeguarding of PHI that requesting parry, in its sole discretion; deems sufficient to satisfy the standards and requirements of HIPAA or as otherwise required by any applicable lam, or regulation. IN WITNESS WHEREOF, the parties hereto. intending to be legally bound to the terms of this Agreement, have caused this Agreement to be executed as of the date.first written above. CONTRACT COUNSELOR - -Wv Print Name: ? J'' J DLA-KON FAMILY LIFE SERVICES: BY v - Print Namc: Brooke Fuller. I.PC Title: Clinical Director. M4-I01" Family Life Services - Capitol Region Contract Counselor Rev. 2004 EXHIBIT "B" TO: WHITE DEER RUN OF WILLIAMSPORT 901 WESTMINSTER DR. -WILLIAMSPORT, PA 17701 RE: MCS # 88335-L03 CHRISTIAN HESS Dear Custodian, DATE: 07/14/2011 Within twenty (20) days after receipt of this subpoena you are ordered by the court to produce the documents or things requested on the attached subpoena pursuant to the applicable Pennsylvania rules of civil procedure 4009.22. Your personal appearance IS NOT REQUIRED. You may deliver or mail legible copies of the documents or produce things requested by the subpoena, TOGETHER WITH THE CERTIFICATION OF CUSTODIAN, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought, according to state fee laws. However, prior approval is required for fees in excess of $100.00 for hospitals, $150.00 for all other providers. If you fail to produce the documents or things required by this subpoena within twenty (20) days after receipt, the party serving this subpoena may seek a court order compelling you to comply with this request. Thank you for your cooperation in this matter. SIERRA WILLIAMS MCS Representative (215) 246-0900 Ext: 8199 <RWILLIAMS@THEMCSGROUP.COM> MCS # 88335-LQ3 ME02 EXHIBIT "C" )MMONWEALTH OF PENNSYLVi _ A COUNTY OF CUMBERLAND HESS File No. 10-3037 vs. DIAKON LUTHERAN SOCIAL MINISTRIES,ET SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for WHITE DEER RUN OF WILLIAM PORT (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: **** SEE ATTACHED RIDER **** at The MCS roue Inc 1601 Market Street. Suite 800, Philadelphia PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: PATRICE O'BRIEN ESQ ADDRESS: THE WIDENER BUILDING ONES TH PENN O. PHILADELPHIA. PA 19107 TELEPHONE: !215) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant _ BY THE COURT: Prothonotary/Clerk, Civil Division ??1 Date: Deputy Seal of the Court 88335-03 EXPLANATION OF REQUIRLD RECORDS TO: CUSTODIAN OF RECORDS FOR: WHITE DEER RUN OF WILLIAMSPORT 901 WESTMINSTER DR. WILLIAMSPORT, PA 17701 -- - RE -MG -# -8$-335 -t03 CHRISTIAN HESS Social Security #: XXX-XX-6243 Date of Birth: 06-20-1990 Please provide any and all psychiatric records, including but not limited to correspondence, files, memoranda, handwritten notes, history and physical reports. Include any and all medication and prescription records and transcripts. This should contain all records in your possession, all archived records, or records in storage. Including any and all items as may be stored in a computer database or otherwise in electronic form. Prior approval is required for fees in excess of $150.00 for hospitals, $100.00 for all other providers. MCS # 88335-L03 SU10 EXHIBIT D 4513087-1 EXHIBIT "D" WHITE DEER RUN, INC. 360 White Deer Run Road P.O. Box 97 Allenwood, PA 17810 - - -- Toll-Free-Main Number: 800-255-2335 Fax (Administration): 570-538-5303 July 28, 2011 Patrice O'Brien Esq. The Widener Building One South Penn Square Philadelphia PA 19107 MCS 1601 Market Street, Suite 800 Philadelphia PA 19103 Re: Subpoena Dear Sir or Madam- White Deer Run, of Allenwood is in receipt of the subpoena (enclosed) that was sent to our facility. Legal counsel has advised that we cannot confirm or deny that the individual at issue is or ever was a patient at any of our facilities, or whether or not we have any records or information, due to state and federal confidentiality regulations. Legal counsel has advised that White Deer Run, Inc. is subject to the provisions of the Drug Abuse Prevention, Treatment and Rehabilitation Act, 21 U.S.C. §§1175 et seg., and the regulations promulgated thereunder. The regulations are found at 42 C.F.R., Part II. Under these provisions, White Deer Run, Inc. is prohibited from disclosing information or records relating to a present or former patient, including even confirming that a person is or was a patient unless a specific type of order is obtained from a court of competent jurisdiction in compliance with the provisions of these regulations. Although the federal regulations would allow for release of records with an AUG182011 G'ano ? RE- Request for Records W'- to Deer Run of Allenwood authorization, if we actually have such records, there is a complicating factor in this case as explained in the next paragraph. Legal counsel has advised us that the State of Pennsylvania has specific laws and regulations relating to confidentiality of drug and alcohol patient records. In reference to this request, we have been advised that even with a valid consent meeting the federal requirements under 42 C.F.R, Part 2, Subpart C, §2.31, Pennsylvania law does not allow us to release any information for the purpose you require without a good cause court order, should we actually have such information. Our attorney referred us - to-71-P:S: §1690.1-08-regarding-this-issue. The Pennsylva-n[a Department of-H-0alth has advised us that regulations found at 4 Pa Code §255.5 are used as the interpretive guidelines for 71 P.S. 1690.108. They further advised us that under these regulations, 4 Pa. Code §255.5(a)(5) allows for disclosure of information to the attorney representing the client in a civil, criminal or administrative proceeding, but there are no provisions for release to an attorney representing the party other than the client without a good cause court order. I hope you understand that White Deer Run is not trying to be obstructive or difficult. We are simply trying to comply with our obligations under the federal regulations and Pennsylvania State law, as well as the direction of the Pennsylvania Department of Health, which issues our license to operate. Should you have any questions regarding this correspondence, I can be reached at 800-255-2335, ext 1409. If I am unable to answer your questions, I will have our attorney contact you with a response. Sincerely, Robyn Thomas Medical Records Technician White Deer Run, Inc. CC; Christine Gehrer, Regional Medical Records Director Sent by Fax and Certified Mail Return Receipt Requested EXHIBIT E 4513087-1 RAWLE &H,ENDERSoN LLp vac Law Q- O L° e 'e V Qr, vq D . t 7TS3 - PATRICE S. O'BRIEN 215-575-4222 The Nation's Oldest Law Office • Established in 1783 pobrien@rawle.com www.rawle.com July 6, 2011 Kathryn Simpson, Esquire Mette, Evans and Woodside 3401 North Front Street Harrisburg, PA 17110 Re: Hess v. Diakon Luterhan Social Ministries, et al. Our File No. 451568 Dear Ms. Simpson: THE WIDENER BUILDING ONE SOUTH PENN SQUARE PHILADELPHIA, PA 19107 TELEPHONE:(215) 575-4200 FACSIMILE:(215) 563-2583 Enclosed please find Additional Defendant, Denita Ann Causbey-Rosyter',s Interrogatories, Supplemental Interrogatories, Expert Interrogatories and First Request for Production of Documents directed to Plaintiff. Please respond to the enclosed within the time allowed under the Pennsylvania Rules of Civil Procedure. Very truly yours, RAWLE & HENDERSON LLP By: Patrice S. O'Brien PSO/ksh Enclosures cc: Michael C. Mongiello, Esquire (w/encs.) 4640814-1 PHILADELPHIA, PA PITTSBURGH, PA HARRISBURG, PA MARLTON, NJ NEW YORK, NY WILMINGTON, DE WHEELING, WV EXHIBIT "E" CHRISTIAN HESS V. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA DIAKON LUTHERAN SOCIAL CIVIL ACTION - LAW MINISTRIES V. DENITA ANN CAUSBEY-ROYSTER NO. 10-3037 ORDER AND NOW, this - q4 day of CeWoe.&, , 2011, upon consideration of additional defendant, Denita Ann Causbey-Royster's Motion seeking a Court Order directing White Deer Run of Williamsport to produce plaintiff's drug and/or alcohol treatment records, and any response thereto, it is hereby ORDERED that White Deer Run of Williamsport is directed to produce any and all psychiatric and/or drug and alcohol abuse records pertaining to Plaintiff, Christian Hess. The production of these documents is to occur within twenty (20) days of the date of this Order. X31 A? a±? A.t" xd J. TRUE COPY FROM RECORD b TWO, ?onriiMMMSO 1 Mn uwo am mybu d Cwk"L TM..- er 2011 4866032-t EXHIBIT "F" 03-06-'12 04:15 TO- 12155632583 FROM- WDB Medical rercords P0001/0004 T-327 F-747 WHITE DEER RUN, INC. 360 White Deer Run Road Fax (Administration): 570-538-5303 P.O. Box 97 Fax (Admissions): 570-538-5455 Allenwood, PA 17810 Fax (Nursing Dept_): 570-538-1062 Toll Free Main Number: 800-255-2335 Fax (Medical Records): 570-538-3839 Local Main Number: 570-538-2567 Fax (Business Office): 570-638-5822 Toll Free Admissions M 800-626-9355 FACSIMILE DATE: March 6, 7012 To: Patrice O'Brien, Esq. Send to Fax #. 215-563-2583 # of Pages (including this shoat): 4 From: Robyn Thomas ext 1409 Medical Records Subject: Please see attached information Robyn Thomas, Medical Records Supervisor NOTE: THIS FACSIMILE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAWS (including 45 CFR, Parts 160 a 164, Standards for privacy of Individually Identifiable Health Information: and 42 CFR, Part 2, Confidentiality for Alcohol and Drug Abuse Patient Rernrds and all applicable laws. If the reader of this message is not the Intended recipient, or Is the employee or agent responsible for delivering the message to the Intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sending party immediately by telephone and return the original message to us at the above address via U.S. Postal Service. Thank you for your courtesy and consideration for confidentiality and security. 03-06-'12 04:15 TO- 12155632583 FROM- WDR Medical rercords P0002/0004 T-327 F-747 WHITE DEER RUN, INC. 360 White Deer Run Road P.O. Box 97 Allerwmd, PA 17810 Toll Free Main Number. 800.255-2335 Fax (Administration): 570.538-5303 March 5, 2012 Patrice O'Brien, Esq. The Widener Building Suite 1339 One South Penn Square Philadelphia PA 19107 Re: Subpoena Dear Ms. O'Brien: This letter is in regard to our telephone conversation on Friday March 2, 2012. After speaking with my Director, Christine Gehrer, she has advised that CRCMhite Deer Run legal counsel has instructed that White Deer Run, Inc. is subject to the provisions of the Drug Abuse Prevention, Treatment and Rehabilitation Act, 21 U.S.C. §§1175 et Mg., and the regulations promulgated thereunder. The regulations are found at 42 C.F.R., Part ll. Under these provisions, White Deer Run, Inc. is prohibited from disclosing information or records relating to a present or former patient, including even confirming that a person is or was a patient unless a specific type of order is obtained from a court of competent jurisdiction in compliance with the provisions of these regulations (see attached). Our attorney also referred us to 71 P.S. §1690.108 regarding this issue. The Pennsylvania Department of Health has advised us that regulations found at 4 Pa Code §255.5 are used as the interpretive guidelines for 71 P.S. 1690.108. They further advised us that under these regulations, 4 Pa. Code §255.5(a)(5) allows for disclosure of information to the attorney representing the client in a civil, criminal or administrative • 4 03-06-'12 04:15 TO- 12155632583 FROM- WDR Medical rercords P0003/0004 T-327 F-747 RE' Request for Records White Deer Run of Allenwood proceeding, but there are no provisions for release to an attorney representing the parry other than the client without a good cause court order. I hope you understand that White Deer Run is not trying to be obstructive or difficult. We are simply trying to comply with our obligations under the federal regulations and Pennsylvania State law, as well as the direction of the Pennsylvania Department of Health, which issues our license to operate. Should you have any questions regarding this correspondence, I can be reached at 800-255-2335, ext 1409. If I am unable to answer your questions, I will have our attorney contact you with a response. Sincerely, Robyn Thomas Medical Records Supervisor White Deer Run, Inc. CC; Christine Gehrer, Regional Medical Records Director Sent by Fax and Certified Mail, Return Receipt Requested 03-06-'12 04:15 TO- 12155632583 FROM- WDR Medical rercords F0004/0004 T-327 F-747 Taken From: Confidentiality and Communication A Guide to the Federal Drug & Alcohol Confidentiality Law and HIPAA, 2006, Legal Action Center A state or federal court may issue an order that authorizes a program to make a disclosure of patient-identifying Information that would otherwise be prohibited. HIPAA makes no mention of any standards or procedures that a court must follow when issuing a court order, so 42 C.F.R. Part 2's more specific requirements control. 42 C.F.R. Part 2 provides that a court may issue an authorizing order only after it follows certain procedures and makes particular determinations specified in 42 C,F.R. §§ 2.63-2.67. Under 42 C.F.R. Part2, a subpoena, search warrant or arrest warrant, even when it is signed by a judge and labeled a court order, is not sufficient, when standing alone, to require or even permit a program to make a disclosure. 42 C.F.R. §2.61. A subpoena can be used, however, to compel a program to attend a .hearing to see whether a court order should be issued. Before a court can issue an order under 42 C.F.R. Part 2, the program and any patient whose records are sought must be given notice that a party is requesting the order, and some opportunity to make an oral or written statement to the court. often this is done by serving the program with a subpoena to appear at the haring at a certain time on a certain day. (However, if the information is being sought to investigate or prosecute a patient, only the program be notified. 42 C.F.R. §2.65. And If the information is sought to investigate or prosecute the program, no notice at all is required. 42 C.F.R.§ 2.66.) The application and any court order must use fictitious names for any known patient, and all court proceedings in connection with the application must remain confidential unless the patient requests otherwise. 42 C.F.R. §§ 2.64 (a), (b), 2.65(a), (b), 2.66(a). Before issuing an authorizing order, the court must find that there is "good cause" for the disclosure. A court can find "good cause" only if it determines that the public interest and the need for disclosure outweigh any adverse effect that the disclosure will have on the patient, the doctor-patient relationship, and the effectiveness of the program's services. If the information sought is available elsewhere, the court should not issue the order. 42 C.F.R. § 2.64(d). The judge may examine the records in private before making a decision. (This is sometimes called an j11 camera inspection.) 42 C.F.R. § 2.64(c). There are also general limits under 42 C.F.R. Part 2 on the scope of disclosure that a court may authorize, even when "good cause" is present. Disclosure must be limited to the information essential to fulfill the purpose of the order, and it must be restricted to those persons who need the information for that purpose. The court should also take any other steps that are necessary to protect the patient's confidentiality, including sealing court records from public scrutiny. 42 C.F.R. §2.64(e). A court may not authorize disclosure of "confidential communications" by a patient to the program unless the disclosure (a) is necessary to protect against a threat to life or of serious bodily Injury, or (b) is necessary to investigate or prosecute an extremely serious crime, or )c) is in connection with a proceeding in which the patient has already presented evidence concerning confidential communications. In all other situations, not even a court can order disclosure of confidential communications. 42 C.F.R. § 2.63. 0 1 1 4 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the foregoing Additional Defendant's Motion to Compel was sent by First Class mail, postage prepaid, to the following counsel of record on the date indicated below: Kathryn Simpson, Esquire Mette, Evans and Woodside 3401 North Front Street Harrisburg, PA 17110-0950 Attorneys for plaintiff Michael C. Mongiello, Esquire Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorneys for defendant Diakon Lutheran Social Ministries RAWLE & HENDERSON LLP By: Pa ee S. O'Brien, Esquire Wftorneys for Defendant, Denita Ann Causbey-Royster The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 575-4200 Dated: 3 -V 5305951-1 C-? {a PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter forithe 1 110 Q I A.t Argument Court). Please list the within matter for the next available argument court listing on June 1, 2012. 2 , r 2 APP 19 PM ! ? 29 wa --------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE CUMBERLAND COUNTY (entire caption must be stated in full) PENNSYLVANIA CHRISTIAN HESS vs. DIAKON LUTHERAN SOCIAL MINISTRIES And DENITA ANN CAUSBEY-ROYSTER No. 3037 , 2010 Term 1. State matter to be argued (i.e. plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant, Diakon Lutheran Social Ministries' Preliminary Objections to Plaintiff Christian Hess' Complaint. 2. Identify all counsel who will argue cases: a. for plaintiffs: Kathryn Simpson, Esquire, Mette Evans and Woodside 3401 North Front Street Harrisburg, PA 17110-0950 b. for defendants: Melissa L. Pregmon Esquire Marshall Dennehey Warner Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg PA 17112 (Attorney for Diakon Lutheran Social Ministries) 3. I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: June 1. 2012 Signature Melissa L. Pregmon, Esquire Print your name Date: 1-'J IL Diakon Lutheran Social Ministries Attorney for ate} a ?? a 581 INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with ADMINISTRATOR(not the Prothonotary) after the case is relisted. a74u (0 the COURT the COURT CHRISTIAN HESS V. DIAKON LUTHERAN SOCIAL MINISTRIES DENITA ANN CAUSBEY-ROYSTER COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA C"') CIVIL ACTION -LAW crnnco Vic- NO. 10-3037 { z? i;= x r c) (-n Ca , -4c) a C3-r tx? a n cl additional defendant, Denita Ann Causbey-Royster's Motion seeking a Court Order directing White Deer Run of Williamsport to produce plaintiff s drug and/or alcohol treatment records, and any response thereto, it is hereby ORDERED and DECREED that said Motion is GRANTED. This court has found that there is "good cause" for the requested disclosure as defined under 42 C.F.R. Part 2. As such, it is hereby ORDERED and DECREED that White Deer Run of Williamsport is directed to produce any and all psychiatric and/or drug and alcohol abuse records including records containing confidential communications pertaining to Plaintiff, ORDER 2012, upon consideration of AND NOW, this day of , Christian Hess. It is further ORDERED that the production of these documents is to occur within twenty (20) days of the date of this Order. J. L' M -Aae l C. Mon5;ello , ??? C rQ i j A 5305951-1 Copes Q. led glarlo- CHRISTIAN HESS, Plaintiff V. DIAKON LUTHERAN SOCIAL MINISTRIES, Defendant V. DENITA ANN CAUSBEY- ROYSTER, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-3037 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE HESS, P.J. and PECK, J. ORDER OF COURT AND NOW, this 4 h day of June, 2012, upon consideration of Defendant's Preliminary Objections, and following oral argument held on June 1, 2012, Defendant's Preliminary Objections are overruled. ? Kathryn Simpson, Esq. 3401 North Front Street Harrisburg, PA 17110-0950 Attorney for Plaintiff Melissa L. Pregmon, Esq. 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant ?'Ie6 ,,.le) lo?ci?/a BY THE COURT , r A, D: Christylee . Peck, J. , t4 1 U -OFFICE CRAIG A. STONE, ESQUIRE ?PROT??QNOTARy I.D. No. 15907€' 17 AK 11: 0 9 "C 2 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 Attorneys for Defendant, Diakon Lutheran Social Ministries CHRISTIAN HESS, IN THE COURT OF COMMON PLEAS F CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO: 10-3037 CIVIL TERM CIVIL ACTION - LAW DIAKON LUTHERAN SOCIAL MINISTRIES, JURY TRIAL DEMANDED Defendant DENITA ANN CAUSBEY-ROYSTER, Additional Defendant NOTICE TO PLEAD TO: Christian Hess c/o Kathryn Simpson, Esquire Denita Ann Causbey-Royster c/o Fred Buck, Esquire You are hereby notified to plead to the enclosed Answer with New Matter within (20) days from service hereof or a default judgment may be filed against you. MARSH* , DE EHEY, WARNER COLEMA. QMG?IN BY: Mi h C. giello, Esquire I.D. o. 7 2 Date: `? Attorney o? Defendant 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 Attorneys for Defendant, Diakon Lutheran Social Ministries CHRISTIAN HESS, IN THE COURT OF COMMON PLEAS 9F CUMBERLAND COUNTY, PENNSYLV l Plaintiff V. NO: 10-3037 CIVIL TERM CIVIL ACTION - LAW DIAKON LUTHERAN SOCIAL MINISTRIES, Defendant DENITA ANN CAUSBEY-ROYSTER, Additional Defendant JURY TRIAL DEMANDED DEFENDANT'S ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT IN CIVIL ACTION AND NOW, comes Defendant, Diakon Lutheran Social Ministries ("Diakon" or "Answering Defendant"), by and through its counsel, Marshall, Dennehey, Warner, Coleman Goggin, and answers and asserts New Matter to Plaintiffs Complaint in Civil Action as 1. Denied. Diakon is advised by counsel, and therefore avers, that the averments of Plaintiffs Complaint do not pertain to it and that no further answer is required. 2. Admitted. 3. Admitted. 4. Admitted. By way of further answer, however, Plaintiff was at no relevant tinI treated under Diakon's contract with Cumberland/Perry Mental Health/Mental Program. 5. - 8. Denied. After reasonable investigation, Diakon lacks knowledge or sufficient to form a belief as the truth of the corresponding averments of Plaintiffs and strict proof thereof is demanded at the time of trial to the extent relevant. 9. - 45. Denied. The corresponding averments of Plaintiffs Complaint are denied 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, Diakon was not negligent, it did not breach any other owed to Plaintiff, nor did it breach any contract with regard to Plaintiff. To the contrary, at ?11 relevant times, Diakon acted appropriately in all such regards and did not cause or contribute Plaintiffs injuries as alleged. It is specifically denied that Diakon owed any fiduciary duty to Plaintiff. Furthermore, it is specifically denied that Plaintiff was provided treatment at pursuant to any contract between Diakon and the Cumberland/Perry Mental Heal Retardation Program. Finally, Plaintiff has conceded to this Honorable Court that no against Diakon based on vicarious liability for the alleged conduct of Additional Denita Ann Causbey-Royster ("Mrs. Causbey-Royster") is being pursued against Di Regardless, it is specifically denied that Mrs. Causbey-Royster was at any relevant time an employee, agent or servant of Diakon, actual or ostensible, and/or that she acted within course or scope of her contractual relationship with Diakon such that her conduct could ever g?ve rise to vicarious liability on the part of Diakon. COUNTI BREACH OF FIDICIARY DUTY 46. Answering Defendant hereby incorporates by reference the answers contained Paragraphs 1 through 45 above as though fully set forth herein at length. 47. - 55. Denied. The corresponding averments of Plaintiffs Complaint are deni pursuant to Pa.R.C.P. 1029(e) and/or as conclusions of law to which no responsive pleading is required. By way of further answer, Diakon was not negligent nor did it breach any other duty owed to Plaintiff. To the contrary, at all relevant times, Diakon acted appropriately in all su h regards and, at no time, caused or contributed to the injuries as alleged. It is specifically deni d that Diakon owed any fiduciary duty to Plaintiff. Finally, Plaintiff has conceded to this Honorable Court that no claim against Diakon based on vicarious liability for the alleged cond ct of Additional Defendant, Denita Ann Causbey-Royster ("Mrs. Causbey-Royster") is being pursued against Diakon. It is specifically denied that Plaintiff is entitled to punitive damages as to Diakon, whose alleged conduct is not sufficient to justify same. WHEREFORE, Defendant, Diakon Lutheran Social Ministries, demands judgment in its favor and against Plaintiff. COUNT II BREACH OF CONTRACT 56. Answering Defendant hereby incorporates by reference the answers contained in Paragraphs 1 through 55 above as though fully set forth herein at length. 57. - 63. Denied. The corresponding averments of Plaintiffs Complaint are denied by operation of Pa.R.C.P. 1029(e) and/or as conclusions of law to which no responsive pleadin is required. By way of further answer, Diakon breached no alleged contract, either written or otal, with Plaintiff. Furthermore, Diakon was not negligent. To the contrary, Diakon appropriately in all such respects, and at no time caused or contributed to the injuries as WHEREFORE, Defendant, Diakon Lutheran Social Ministries, demands judgment in favor and against Plaintiff. NEW MATTER 64. Answering Defendant hereby incorporates by reference the answers contained Paragraphs 1 through 63 above as though fully set forth herein at length. 65. Plaintiffs Complaint fails to state any claim upon which relief can be against Answering Defendant, including for negligence, breach of fiduciary duty and/or of contract. 66. At no time relevant hereto was any other natural person, partnership, or other legal entity acting or serving as an agent, servant, employee or otherwise for or behalf of Answering Defendant. 67. At all times relevant hereto, Answering Defendant, and its agents and complied with the applicable standards of care. 68. At all times relevant hereto, Answering Defendant acted within and followed precepts of a respected school of thought and, accordingly, all professional conduct was commensurate with the applicable standard of care. Evidence at trial may establish two or schools of thought applicable to the issues presented in this case. 69. Plaintiff assumed the risk of injury, and this action is therefore barred by Doctrine of Assumption of Risk. 70. Answering Defendant believes and therefore avers that evidence through discovery and provided at trial may establish that Plaintiff was contributorily or comparatively negligent, and in order to protect the record, Answering Defendant hereby contributory or comparative negligence as an affirmative defense. 71. Answering Defendant is entitled to relief and contribution in accordance with Pennsylvania Comparative Negligence Act, 42 P.S. §7102 as amended by Senate Bill 108, effective August 14, 2002. 72. In the event that it is determined that Answering Defendant was negligent regard to any of the allegations contained in, and with respect to Plaintiffs Complaint, allegations being specifically denied, said negligence, if any, was superseded by the intervei negligent acts of other person, parties and/or organizations other than Answering Defendant over whom Answering Defendant had no control, right or responsibility and, there Answering Defendant is not liable. 73. Any acts or omissions of Answering Defendant alleged to constitute ne were not substantial causes, factual causes, or factors contributing to the injuries and alleged in Plaintiffs Complaint. 74. Plaintiffs injuries and losses, if any, were not caused by the conduct or negli of Answering Defendant, but rather, were caused by pre-existing medical conditions and Yor causes beyond the control of Answering Defendant, and Plaintiff may not recover against it. 75. Plaintiffs claims are barred by operation of the applicable statute of limitati including 42 Pa. C.S.A. §5524 and 40 P.S. §1301.605. 76. All claims that might have been asserted by Plaintiff, including claims for expenses, are barred by operation of the applicable Statute of Limitations. 77. Plaintiffs claims are limited and barred by Section 103, 602 and 606 of the Care Services Malpractice Act of 1974, 40 P.S. §1301, et, seq., as amended. 78. Plaintiffs claims are limited and/or barred by the provisions of the Medical Availability and Reduction of Error (MCARE) Act, 40 P.S. § 1303.101, et seq. 79. The damages alleged by Plaintiff did not result from acts or omissions Answering Defendant, its agents, servants or employees, but rather, from acts or omissions persons and/or entities over whom Answering Defendant had no right of control. 80. Pa.R.C.P. 238 is unconstitutional on its face and as may be applied in this case. 81. Plaintiffs claims, the existence of which are specifically denied by Defendant, may be reduced and/or limited by any collateral source of compensation benefit in accordance with the Pennsylvania Supreme Court decision in Moorhead v. Chester Medical Center. 82. No fiduciary duty ever existed between Plaintiff and Diakon 83. Mrs. Causbey-Royster is liable to Plaintiff on all of Plaintiffs claims and is not so liable. 84. Plaintiffs allegations against Answering Defendant are without reasonable in fact and may constitute an abuse of civil process. 85. To the extent currently applicable, or to the extent that any affirmative defen?es may later become applicable, Answering Defendant hereby pleads all affirmative defenses forth in Pa.R.C.P. 1030, including but not limited to accord and satisfaction, arbitration award, estoppel, consent and possibility of performance, justification, failure of considerati fraud, legality, laches, release, res judicata, Statute of Frauds, Statute of Limitations, and tr and waiver. 86. Plaintiffs claims are barred by her failure to mitigate damages. 87. Plaintiffs claims are barred by lack of privity. 88. Answering Defendant reserves the right to assert any additional New defense that may become applicable during litigation of this matter. 89. Diakon appropriately supervised Mrs. Causbey-Royster at all relevant times, upon learning of claimed inappropriate conduct, immediately terminated its relationship Mrs. Causbey-Royster. 90. In the absence of a special contract in writing, a healthcare provider is neither a warrantor nor a guarantor of a cure. 40 P. S. § § 1303.101, et. seq. 91. Answering Defendant demands trial by jury on all issues. WHEREFORE, Defendant, Diakon Lutheran Social Ministries, demands judgment in favor and against Plaintiff. Respectfully submitted, MARSHADENNEHEY, WARNER COLEM I GOOGIN BY: Mi ha ll ello, Esquire I.D. N ? \51 4200 CruII Road Harrisburg, PA 17112 (717) 651-3704 Attorney for Defendant Date: I 4 t 05/897926.v 1 VERIFICATION I, Joanne Judge, Esquire, verify that I am authorized to make this Verification on behalf of Defendant, Diakon Lutheran Social Ministries, and that the statements made in the foregoing document are true and correct to the best of my knowledge, information, and belief. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. DL4KON LUTHERAN SOCIAL MINISTRIES 2. By: - aft'n e Judge, squir' Jo Date: f7 t, 1 12-- 05/897926.v 1 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing has been served upon the following known counsel and parties of record this Wk day of J 2012, via United States First-Class Mail, postage prepaid: Kathryn Simpson, Esquire Mette, Evans and Woodside 3401 North Front Street Harrisburg, PA 17110-0950 Fred Buck, Esquire Patrice S. O'Brien, Esquire Rawle & Henderson One South Penn Square Widener Building, 16th Floor Philadelphia, PA 19107 MARSH E EH Y, WARNER COLEM G) BY: Mi4haejV.1?4d?Ji?Vo, Esquire 05/897926.v I MARSHALL, DENNEHEY, WARNER,COLEMAN&GOGGIN -. ' 2 Craig A. Stone, Esquire r I.D.No. 15907 , Michael C. Mongiello, Esquire l g,1i3ir�l_,"� D CCU ,y I.D. No. 87532 PEN Si'LVk, 'II 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 (717)651-3500 Attorneys for Defendant, Diakon Lutheran Social Ministries CHRISTIAN HESS • IN THE COURT OF COMMON PLEAS • OF CUMBERLAND COUNTY, PA Plaintiff • • v. • No: 10-3037 CIVIL TERM • CIVIL ACTION—LAW DIAKON LUTHERAN SOCIAL • MINISTRIES • JURY TRIAL DEMANDED • • Defendant • • • • • DENITA ANN CAUSBEY-ROYSTER • • Additional Defendant • PRAECIPE FOR CHANGE OF ADDRESS TO THE PROTHONOTARY: Please note the change of address of counsel for Defendant, Diakon Lutheran Social Ministries from 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112 to: Michael C. Mongiello, Esquire Marshall, Dennehey, Warner, Coleman& Goggin 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 MARSHA L, DE EHEY, WARNER COLEMA GGIN BY: Date: November 12, 2013 Micha ; ongiello, Esquire CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document has been served upon the following known counsel and parties of record this 12th day of November, 2013, via United States First-Class Mail, postage prepaid: Kathryn Simpson, Esquire Mette, Evans and Woodside 3401 North Front Street Harrisburg, PA 17110-0950 Fred Buck, Esquire Patrice S. O'Brien, Esquire Rawle & Henderson One South Penn Square Widener Building, 16th Floor Philadelphia, PA 19107 MARSHALL, I I I EHEY, WARNER COLEMAN '11 GIN BY: Mich.-1 . \ingiello, Esquire 05/1130958.v1 iL :D-Q£TJUL th- THE PROTHONOTAR't 2U 13 DEC 16 PH 2: 25 CUMBERLAND COUNTY PENNSYLVANIA CHRISTIAN HESS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 10-3037—CIVIL TERM DIAKON LUTHERAN SOCIAL : CIVIL ACTION—LAW MINISTRIES, Defendant : JURY TRIAL DEMANDED DENITA ANN CAUSBEY-ROYSTER : Additional Defendant PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the above-captioned matter voluntarily discontinued. Respectfully submitted, METTE,VANS &WOOD IDE By: ; A • Kat n L. S .sou, Esquire Sup. t. I.D. s. 28960 340 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff, Christian Hess Date: December 12, 2013 CERTIFICATE OF SERVICE I, Kathryn L. Simpson, Esquire, hereby certify that on this day I caused a true and correct copy of the foregoing document to be served on each of the following individuals by United States mail, first class,postage prepaid, addressed as follows: Michael C. Mongiello, Esquire MARSHALL, DENNEHEY, WARNER COLEMAN& GOGGIN 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 Attorney for Defendant Patrice S. O'Brien, Esquire RAWLE & HENDERSON LLP The Widener Building One South Penn Square Philadelphia, PA 19107 Attorney for Additional Defendant METTE, E ANS & WOODSIDE A ,/ • i , • Kat n L. Si pson, .uire Su.. Ct. I.D. o. 28960 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff, Christian Hess Date: December 12, 2013 688103v1 2