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Home My WebLink About10-3391s R. J. MARZELLA & ASSOCIATES, P.C. BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 3513 North Front Street Harrisburg, PA 17110 Telephone: (717) 2347828 Attorney for Facsimile: (717) 2346883 Shirley and Richard Kazimer IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY & RICHARD KAZIMER, DOCKET NUMBER: I0 - 3 3 Gra. PLAINTIFFS VS. PROFESSIONAL MEDICAL NEGLIGENCE MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES n n CARLISLE, HEALTH CARE AND -- RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF r AMERICA INC., MANOR CARE INC., =n HCR MANOR CARE INC., HCR -> = == MANOR CARE, : CARLISLE REGIONAL : MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. JURY TRIAL DEMANDED DEFENDANTS PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue Writ of Summons in the above-captioned action. 10 Writ of Summons shall be issued and and t or ( X ) Sheriff Robin 1. Marzella. Esquire 3513 North Front Street a of Att Harrisburg, PA 17110 _ Supreme Cou ID No 856 (717) 2347828 Names/Address/Telephone No. Date: ,R-*&ys yd1 D - 3 3 9/ t,,, l -te?? WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANTS: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Date: Prothonotary by Deputy ) Check here if reverse is used for additional information. "t i R. J. MARZELLA & ASSOCIATES, P.C. BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 3513 North Front Street Harrisburg, PA 17110- Telephone: (717) 234-7828 Facsimile: (717) 234-6883 Attorney for Shirley and Richard Kazimer IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY & RICHARD KAZIMER, DOCKET NUMBER: 3 3 GJv- 0e, PLAINTIFFS vs. PROFESSIONAL MEDICAL NEGLIGENCE MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE,: CARLISLE REGIONAL : MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS JURY TRIAL DEMANDED SHERIFF'S DIRECTIONS TO THE SHERIFF OF CUMBERLAND COUNTY: 1) Please serve Manor Care of Carlisle PA LLC., at 940 Walnut Bottom Road, Carlisle, PA 17015, by personally handing a copy of the Writ of Summons issued by the Cumberland County Prothonotary in the above-captioned action to the manager, clerk or other adult individual for the time being in charge of the business or activity of the business. 2) Please serve Manor Healthcare Corp. at 940 Walnut Bottom Road, Carlisle, PA 17015, by personally handing a copy of the Writ of Summons issued by the Cumberland County Prothonotary in the above-captioned action to the manager, clerk or other adult individual for the time being in charge of the business or activity of the business. 3) Please serve ManorCare Health Services Carlisle, at 940 Walnut Bottom Road, Carlisle, PA 17015, by personally handing a copy of the Writ of Summons issued by the Cumberland County Prothonotary in the above-captioned action to the manager, clerk or other adult individual for the time being in charge of the business or activity of the business. 4) Please serve Health Care and Retirement Corporation of America., at 940 Walnut Bottom Road, Carlisle, PA 17015, by personally handing a copy of the Writ of Summons issued by the Cumberland County Prothonotary in the above-captioned action to the manager, clerk or other adult individual for the time being in charge of the business or activity of the business. 5) Please serve Manor Care of America Inc., at 940 Walnut Bottom Road, Carlisle, PA 17015, by personally handing a copy of the Writ of Summons issued by the Cumberland County Prothonotary in the above-captioned action to the manager, clerk or other adult individual for the time being in charge of the business or activity of the business. 6) Please serve Manor Care Inc., at 940 Walnut Bottom Road, Carlisle, PA 17015, by personally handing a copy of the Writ of Summons issued by the Cumberland County Prothonotary in the above-captioned action to the manager, clerk or other adult individual for the time being in charge of the business or activity of the business. 7) Please serve HCR Manor Care Inc., at 940 Walnut Bottom Road, Carlisle, PA 17015, by personally handing a copy of the Writ of Summons issued by the Cumberland County Prothonotary in the above-captioned action to the manager, clerk or other adult individual for the time being in charge of the business or activity of the business. 8) Please serve HCR Manor Care at 940 Walnut Bottom Road, Carlisle, PA 17015, by personally handing a copy of the Writ of Summons issued by the Cumberland County Prothonotary in the above-captioned action to the manager, clerk or other adult individual for the time being in charge of the business or activity of the business. 9) Please serve the Writ of Summons in the above-captioned action, issued by the Prothonotary of Cumberland County upon the Defendant, Carlisle Regional Medical Center, located at 361 Alexander Springs Road, Carlisle, Cumberland County, Pennsylvania, by personally handing a copy of the same to the manager, clerk, or other adult individual for the time being in charge of the business or activity of the business 10) Please serve Darryl K. Guistwite, D.O., at 56 Ashton Street, Carlisle, PA 17013, by personally handing him a copy of the Writ of Summons issued by the Cumberland County Prothonotary in the above-captioned action. submitted, P.C. DATED - / 3513 NORTH, WONT STREET HARRISBURG, PA 17110 (717) 234-7828 ~ ~> > FOULKROD ELLIS Andrew H. Foulkrod, Esquire Attorney I.D. #77394 Darlene K. King, Esquire Attorney I.D. #75898 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 ')~ THE F'"~,>'"F~"T'~?Y 2010 JUG 30 Psi 3~ ~ ~ ~~i~i~SYLV,',~l~A~ Attorneys for Defendant, Darryl K. Guistwite, D.O. Shirley Kazimer and Richard Kazimer, Plaintiffs v. Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manorcare Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care of America Inc.; Manor Care Inc.; HCR Manor Care Inc.; HCR Manor Care; Carlisle Regional Medical Center; Darryl K. Guistwite, D.O. Defendants CIVIL ACTION -LAW No. CV-10-3391 MEDICAL MALPRACTICE JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of Defendant Darryl K. Guistwite, D.O. in the above-captioned action. Respectfully submitted, FOULKROD Professional Date• ~ w '~ By; COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Attorney I.D. #77394 Darlene K. King, Esquire Attorney I.D. #75898 w ~ CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this ~th day of ~ l(~/1, ~ 2010, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Robin J. Marzella, Esquire R. J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care of America Inc.; Manor Care Inc.; HCR Manor Care Inc.; and HCR Manor Care. 940 Walnut Bottom Road Carlisle, PA 17014 Defendants Carlisle Regional Medical Center 361 Alexander Spring Road Carlisle, PA 17015 Defendant FOULKROD ELLIS PROFESSIONAL CORPORATION By: 1,,~. Christina W. Shaffer, Paralegal _.. J FOULKROD ELLIS PROFESSIONAL CORPORATION Andrew H. Foulkrod, Esquire Atoomey I.D. #77394 Darlene K. King, Esquire Attorney I.D. #75898 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SHIRLEY KAZIMER and her husband RICHARD KAZIMER, Plaintiffs v. MANOR CARE OF CARLISLE, PA LLC; MANOR HEALTHCARE CORP.; MANORCARE HEALTH SERVICES CARLISLE; HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA; MANOR CARE OF AMERICA INC.; MANOR CARE INC.; HCR MANOR CARE INC.; HCR MANOR CARE; CARLISLE REGIONAL MEDICAL CENTER; DARRYL K. GUISTWITE, D.O. Defendants FIiiF~.t-~~~E -~ ~ ~ THE Pr~~~'-r,r,~;; . . ZOtO JU~t 30 Pik 3~ ~+ 1 .~ CUMPE~`J\'~~ ~i ,P~ l)~iY Attorneys for Defendants, Darryl K. Guistwite, D.O. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N0. CV-10-3391 JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT T0: PROTHONOTARY Please issue a Rule upon Plaintiffs to file a Complaint within twenty (20) days from service hereof or suffer judgment non pros. Date: ~ ~'~ ~~ Respectfully submitted, FOULKROD ELLIS Profession C ration By: Andrew Ikrod, Esquire Court I.D. No. 77394 Darlene K. King, Esquire Court I.D. No. 75898 SHIRLEY KAZIMER and her husband RICHARD KAZIMER, Plaintiffs v. MANOR CARE OF CARLISLE, PA LLC; MANOR HEALTHCARE GORP.; MANORCARE HEALTH SERVICES CARLISLE; HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA; MANOR CARE OF AMERICA INC.; MANOR CARE INC.; HCR MANOR CARE INC.; HCR MANOR CARE; CARLISLE REGIONAL MEDICAL CENTER; DARRYL K. GUI5TWITE, D.O. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N0. CV-10-3391 JURY TRIAL DEMANDED RULE TO THE PLAINTIFFS: You are hereby ordered and directed to file your Complaint against Defendant, Darryl K. Guistwite, D.O. in the above-captioned matter within twenty (20) days of service of this Rule against you or suffer judgment non pros. Prothonotary CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this ~g ~' day of ,1(~f~~ 2010, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Robin J. Marzella, Esquire R. J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care of America Inc.; Manor Care Inc.; HCR Manor Care Inc.; and HCR Manor Care. 940 Walnut Bottom Road Carlisle, PA 17014 Defendants Carlisle Regional Medical Center 361 Alexander Spring Road Carlisle, PA 17015 Defendant FOULKROD ELLIS PROFESSIONAL CORPORATION By: Christina W. Shaffer, Paralegal i ii FkI.E~~~~ =SCE t~F Tl1 P G ~"!~~ r, ~TAI~Y FOULKROD ELLIS paodtseeatal ~mty@outtloec Andrew H. Foulkrod, Esquire Attorney I.D. #77394 Darlene K. King, Esquire Attorney I.D. #75898 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Shirley Kazimer and Richard Kazimer, Plaintiffs v. Manor Caze of Carlisle, PA LLC; Manor Healthcare Corp.; Manorcare Health Services Carlisle; Health Caze and Retirement Corporation of America; Manor Care of America Inc.; Manor Caze Inc.; HCR Manor Caze Inc.; HCR Manor Caze; Carlisle Regional Medical Center; Dazryl K. Guistwite, D.O. Defendants 20l~ .i~ u ~~ i i" ~~ 4 _'_; . ~ V w~J'A ~ri'~~v..~ z ~.. ~ i Attorneys for Defendant, Darryl K. Guistwite, D.O. CIVIL ACTION -LAW No. CV-10-3391 MEDICAL MALPRACTICE JURY TRIAL DEMANDED REQUEST OF DEFENDANT, DARRYL K. GUISTWITE, D.O., FOR PRODUCTION OF DOCUMENTS AND THINGS DIRECTED TO BE ANSWERED BY PLAINTIFFS FIRST SET T0: Shirley Kazimer and Richard Kazimer, Plaintiffs c/o Robin J. Marzella, Esquire R. J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Defendant, Darryl K. Guistwite, D.O., by and through his undersigned counsel, requests that Plaintiffs, Shirley Kazimer and Richard Kazimer, (hereinafter "Plaintiffs"), respond to the following Requests for Production of Documents and Things in writing, verified and served upon the undersigned within thirty (30) days of their service pursuant to Pa. R.C.P. 4009. Objections must be signed by the attorney making them. In your F responses, you must furnish such information as is available to you, your employees, representatives, agents, and attorneys. These Requests shall be deemed to be continuing and as such must be updated when new, additional or inconsistent information becomes available. Any objection to the continuing nature of these Requests shall be served within thirty (30) days after service of these Requests. As used in these requests, the following terms are to be interpreted in accordance with these definitions: (a) The term "person" includes any individual, joint stock company, unincorporated association or society, municipal or other corporation, state, which agencies or political subdivisions, and court, or any other governmental entity. (b) The terms "you" and "your" include the persons to whom these requests are addressed, and all that person's agents, representatives or attorneys. (c) In accordance, the terms "document" or "documents" include all writings, drawings, graphs, charts, photographs, recordings, and any other data computations from which information can be obtained, translated, if necessary by (you), through detection devices, into reasonably usable form. (d) The term "occurrence" means the incident complained of in the Complaint. DOCUMENT REQUESTS 1. The entire contents of any investigation file or files and any and all documents in your possession which support or relate to the allegations of your Complaint (excluding the mental impressions of your attorney or his conclusions, opinions, memoranda, notes or summaries, legal research or legal theories, and excluding the mental impressions, conclusions or opinions respecting the value or merit of a claim or defense of respecting strategy or tactics of a representative of yours, other than their attorney.) 2. Any and all statements concerning this action or its subject matter made by a parry or its agents, servants or employees, or by a witness, as defined by Pa. R.C.P. 4003.4. 3. Any and all documents containing the names and home and business addresses of all individuals contacted as potential witnesses. 4. Reports of any and all experts who will testify at trial including any and all "preliminary" reports, and all documents and records reviewed by each such expert including all correspondence or memoranda. 5. The curriculum vitae of each and every expert who will be called to testify at trial. 6. Any and all medical records, autopsy reports, physician's reports and bills, hospital records or abstracts of same in your possession or in the possession of your attorney relating Plaintiffs. 7. Copies of your federal and state income tax returns for the five years immediately preceding the events giving rise to this action and for each year subsequent thereto and all corresponding W-2 forms. 8. All documents or other demonstrative evidence which you intend to introduce or use at trial. 9. All documents identified, described, specified or referenced in your responses to Defendants' Interrogatories -First Set, served upon you simultaneously with this Request for Production of Documents. 10. All medical and related bills incurred which evidence items of special damages. ~ ~t 11. Any and all releases which were signed by you. Respectfully submitted, FOULKROD ELLIS Professional Corpc Date: ~ ~~ ~;b By: Andrew H. Foulkrod, Esquire Court I.D. No. 77394 Darlene K. King, Esquire Court I.D. No. 75898 ~1 • CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this amt,, day of ~~~~~ ~ 2010, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Robin J. Marzella, Esquire R. J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care of America Inc.; Manor Care Inc.; HCR Manor Care Inc.; and HCR Manor Care. 940 Walnut Bottom Road Carlisle, PA 17014 Defendants Carlisle Regional Medical Center 361 Alexander Spring Road Carlisle, PA 17015 Defendant FOULKROD ELLIS PROFESSIONAL CORPORATION BY~ V 1 ~J / Christina W. Shaffer, Paralegal • ~`' s °~' TH~a t;.~ ~~ ~iRl?Y FOULKROD ELLIS ~edeoaro.~ae ~imurxlac Andrew H. Foulkrod, Esquire Attorney I.D. #77394 Darlene K. King, Esquire Attorney I.D. #75898 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 ZQIU JIJ~ 3d P 3~ ~- ! i'E~~l~ ~;~'r~V~~l.4 Attorneys for Defendant, Darryl K. Guistwite, D.O. Shirley Kazimer and Richard Kazimer, Plaintiffs v. Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manorcare Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care of America Inc.; Manor Care Inc.; HCR Manor Care Inc.; HCR Manor Care; Carlisle Regional Medical Center; Darryl K. Guistwite, D.O. Defendants COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No. CV-10-3391 MEDICAL MALPRACTICE JURY TRIAL DEMANDED INTERROGATORIES OFDEFENDANT, DARRYL K. GUISTWITE, D.O., '~, ADDRESSED TO PLAINTIFFS FIRST SET T0: Shirley Kazimer and Richard Kazimer, Plaintiffs c/o Robin J. Marzella, Esquire R. J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 PLEASE TAKE NOTICE that you are hereby required, pursuant to the Pennsylvania Rules of Civil Procedure, Nos. 4005 and 4006, to serve upon the undersigned within thirty (30] days from service hereof your answers in writing and under oath to the Interrogatories. A These Interrogatories shall be deemed to be continuing Interrogatories. If, between the time of your Answers to said Interrogatories and the time of the trial of this case, you or anyone acting in your behalf learns the identity and whereabouts of any other witnesses not identified in your said Answers, or if you obtain or become aware of additional requested information not supplied in your Answers, you shall promptly furnish the same to the undersigned by Supplemental Answers. ~ . INTRODUCTION Scope. -These standard interrogatories have been approved by the Court of Common Pleas of Dauphin County for use in all matters subject to Rule 4001 of the Pennsylvania Rules of Civil Procedure. A standard Interrogatory should be used only where relevant to the facts of the case and should be designated as a Dauphin county Standard Interrogatory (e.g., "D.C.S.I. No. 101"). Each standard interrogatory, including subparts, constitutes one (1) Interrogatory for the purpose of Dauphin County Local Rule 4005. The subject headings are for organizational purposes only and do not limit the otherwise proper use of the Interrogatory for other subjects. A standard interrogatory is presumptively permissible where relevant, and objections thereto generally will not be indulged. Definitions. -- The following definitions are applicable to these standard interrogatories: "Document" means any written, printed, typed, or other graphic matter of any kind or nature, however produced or reproduced, including photographs, microfilms, phonographs, video and audio tapes, punch cards, magnetic tapes, discs, data cells, drums, and other data compilations from which information can be obtained. "Identify" or "Identity," means when used in reference to - (1) A natural person, his or her: (a) full name; and (b) present or last known residence and employment address (including street name and number, city or town, and state or county); (2) A document: (a) its description (e.g., letter, memorandum, report, etc.), title, and date; (b) its subject matter; (c) its author's identity; (d) its addressee's identity; (e) its present location; and (f) its custodian's identity; (3) An oral communication: (a) its date; (b) the place where it occurred; (c) its substance; (d) the identity of the person who made the communication; (e) the identity of each person to whom such communication was made; and (f) the identity of each person who was present when such communication was made; (4) A corporate entity: (a) its full corporate name; (b) its date and place of incorporation, if known; and (c) its present address and telephone number; (5) Any other context: a description with sufficient particularity that the thing may thereafter be specified and recognized, including relevant dates and places, and the identification of relevant people, entities, and documents. "Incident" means the occurrence that forms the basis of a cause of action or claim for relief set forth in the complaint or similar pleading. "Person" means a natural person, partnership, association, corporation, or government agency. "You" means each Plaintiff instituting this action in an individual capacity and each Plaintiff for whom this action is being instituted by another in a representative capacity. Standard Instructions. -- The following instructions are applicable to these standard interrogatories: (1) Duty to answer. -- The interrogatories are to be answered in writing, verified, and served upon the undersigned within 30 days of their service on you. Objections must be signed by the attorney making them. In your answers, you must furnish such information as is available to you, your employees, representatives, agents, and attorneys. These interrogatories are deemed to be continuing and as such must be updated when new, additional or inconsistent information becomes available. Any objection to the continuing nature of these interrogatories shall be served within thirty (30) days after service of these interrogatories. (2) Claim of privilege. -- With respect to any claim of privilege or immunity from discovery, you must identify the privilege or immunity asserted and provide sufficient information to substantiate the claim. (3) Option to produce documents. -- In lieu of identifying documents in response to these interrogatories, you may provide copies of such documents with appropriate references to the corresponding interrogatories. 4 c~ i ~ INTERROGATORIES 1. Personal Information. -State: (a) Your full names; (b) Each other names, if any, which you have used or by which you have been known; (c) The name of your spouse at the time of the accident and the date and place of your marriage to such spouse; (d) The address of your present residence and the address of each other residence which you have had during the past five years; (e) Your present occupations and the names and addresses of your employers; (f) Your dates of your birth; (g) Your Social Security Numbers; (h) Your military service and positions held, if any; and (i) The schools you have attended and the degrees or certificates awarded, if any. (D.C.S.I. No. 101) 5 ~~ 2. Expenses. -List and describe all expenses and losses that you have incurred because of the incident. (D.C.S.I. No. 103) ~+ 3. Factual basis for claims and defenses. -State with particularity the factual basis for each claim or defense you are asserting in this case. (D.C.S.I. No. 104) ti 4. Witnesses. - (a) Identify each person who: (1) Was a witness to the incident through sight or hearing; and/or (2) Has knowledge of facts concerning the happening of the incident or conditions or circumstances at the scene of the incident prior to, at the time of, or after the incident. (b) With respect to each person so identified, state that person's exact location and activity at the time of the incident. (D.C.S.I. No. 105) A , 5. Statements. - If you know of anyone that has given any statement (as defined by the Rules of Civil Procedure) concerning this action or its subject matter, state: (a) The identity of such person; (b) When, where, by whom, and to whom each statement was made and whether it was reduced to writing or otherwise recorded; and (c) The identity of any person who has custody of any such statement that was reduced to writing or otherwise recorded. (D.C.S.I. No. 106) 9 6. Reports of incident. -Identify documents (except reports of experts subject to Pa. R.C.P. No. 4003.5) which describe the incident or the cause thereof. (D.C.S.I. No. 107) 10 u . 7. Demonstrative evidence. - If you know of the existence of any photographs, motion pictures, video recordings, maps, diagrams, or models relevant to the incident, state: (a) The nature or type of such item; (b) The date when such item was made; (c) The identity of the person that prepared or made each item; and (d) The subject that each item represents or portrays. (D.C.S.I. No. 110) 11 +~ 8. Trial preparation material. - If you, or someone not an expert subject to Pa. R.C.P. No. 4003.5, conducted any investigations of the incident, identify: (a) Each person and the employer or each person who conducted any investigation(s); and (b) All notes, reports, or other documents prepared during or as a result of the investigation(s) and the persons who have custody thereof. (D.C.S.I. No. 111) 12 9. Trial witnesses. -Identify each person you intend to call as anon-expert witness at the trial of this case, and for each person identified state your relationship with the witness and the substance of the facts to which the witness is expected to testify. (D.C.S.I. No. 112) 13 ~ , 10. Expert Witnesses. -Identify each expert you intend to call as a witness at the trial of this matter, and for each expert state: (a) The subject matter about which the expert is expected to testify; and (b) The substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (You may file as your answer to this interrogatory the report of the expert or have the interrogatory answered by your expert.) (D.C.S.I. No. 113) 14 11. Trial Exhibits -Identify all exhibits that you intend to use at the trial of this matter and state whether they will be used during the liability or damages portion of the trial. (D.C.S.I. No. 114) 15 12. Books, magazines, etc. - If you intend to use any book, magazine, or other such writing at trial, state: (a) The name of the writing; (b) The author of the writing; (c) The publisher of the writing; (d) The date of publication of the writing; and (e) The identity of the custodian of the writing. (D.C.S.I. No. 115) 16 13. Admissions. - If you intend to use any admission(s) of any party at trial, identify such admission(s). (D.C.S.I. No. 116) 17 t 14. Injuries and Diseases Alleged. -Identify all injuries or diseases that you allege Plaintiff suffered as a result of the incident. (D.C.S.I. No. 201) is 1 ~ ~ 15. Prior or Subsequent Injuries or Diseases. - If, either prior to or subsequent to the incident, Plaintiff suffered any type of injury or disease in those portions of the body claimed by you to have been affected by the incident, state: (a) The injury or disease Plaintiff suffered; (b) The date and place of any accident, if such injury or disease was caused by an accident; (c) The identity of hospitals, doctors, or practitioners who rendered treatment or examination because of such injury or disease; and (d) The identity of anyone against whom a claim was made, and the tribunal and docket number of any claim or lawsuit that was filed in connection with such injury or disease. (D.C.S.I. No. 202) 19 ~ ~ 1 16. Medical Treatment. - If Plaintiff received medical treatment or examination (including x-rays) because of the injury or diseases he suffered as a result of the incident, state: (a) The identity of each hospital at which Plaintiff was treated or examined; (b) The date on which each such treatment or examination at a hospital was rendered and the charge by the hospital for each; (c) The identity of each doctor or practitioner by whom Plaintiff was treated or examined; (d) The date on which each such treatment or examination by a doctor or practitioner was rendered and the charge for each; and (e) The identity of any document(s) (except reports of experts subject to Pa. R.C.P. 4003.5) regarding any medical treatment or examination, setting forth the author and date of such document(s). (D.C.S.I. No. 203) 20 17. Earnings Before the Incident. -For the period of three years immediately preceding the date of the incident, state: (a) The name and address of each of your employers or, if you were self- employed during any portion of that period, each of your business addresses and the name of the business while self-employed; (b) The dates of commencement and termination of each of your periods ofemployment ofself-employment; (c) The nature of your occupation in each employment orself- employment; and (d) The wage, salary, or rate of earnings received by you in each employment of self-employment and the amount of income from employment and self-employment for each year. (D.C.S.I. No. 204) 21 •. 18. Earnings After the Incident. - If you have engaged in one or more gainful occupations subsequent to the date of the incident, state: (a) The name and address of each of your employers, or, if you were self- employed at anytime subsequent to the incident, each of your business addresses and the name of the business while self-employed. (b) The dates of commencement and termination of each of your periods of employment or self-employment; (c) The nature of your occupation in each employment orself- employment; (d) The wage, salary, or rate of earnings received by you in each employment orself-employment and the amount of income from employment and self-employment for each year; and (e) The date(s) of any absence(s) from your occupation resulting from an injury or disease suffered in this incident and the amount of any earnings or other benefits lost by you because of such absence(s). (D.C.S.I. No. 205) 22 ~. 19. Limitation of Duties and Activities after the Incident. - If, as a result of this incident, Plaintiff has been unable to perform any of your customary occupational duties or social or other activities in the same manner as prior to the incident, state with particularity: (a) The duties and/or activities Plaintiff has been unable to perform; (b) The periods of time Plaintiff has been unable to perform; and (c) The identity of all persons having knowledge thereof. (D.C.S.I. No. 206) 23 20. Physical or Mental Disability. - If Plaintiff was under any. physical or mental disability at the time of the incident, explain the disability. (D.C.S.I. No. 208) 24 K ~ r 21. Cause of Injuries. -Identify each person that you claim caused Plaintiffs injury and, with respect to each such person, state whether you claim that: (a) He/she was not qualified to undertake the type of treatment, surgery, or examination he/she gave; (b) He/she failed to diagnose Plaintiffs injury correctly; (c) He/she did not obtain proper consent or authorization; (d) He/she did not maintain proper standards of hygiene or sterilization; (e) He/she failed to use modern techniques and procedures; (f) He/she did not give the correct treatment; (g) He/she failed to observe proper preoperative, operative, or postoperative procedures, specifying which; or (h) He/she was otherwise negligent (specifying the nature of the negligence). (D.C.S.I. No. S01) 2s y ~ f 22. Professional Contacts. -Set forth the date(s) each of you and Plaintiff had professional contact with Defendants and the nature of such contact. (D.C.S.I. No. 503) 26 ~ s 23. Prior Claims or Suits. - If you have ever asserted a claim or filed a suit for any purpose including, without limitation, a claim for injury, damage, properly damage, or disability, workmen's compensation or occupational disease to obtain benefits, please identify the claim or suit, the nature of the injuries alleged in each such suit, the period during which you were disabled, and, if said suit has been terminated, state the results of the trial or settlement, including the amounts of each recovery or settlement, if any. 27 ,~ s. 24. Medical Records. -Completely identify all medical records which you believe tend to support your contentions of liability. 28 25. Please identify all health care providers by whom or at which Plaintiff received treatment for any reason from the date of the incident giving rise to this action until the present, stating: (a) the name and address of the health care provider; (b) the date of each examination, treatment or surgery; and (c) the nature of the sickness or injury for which Plaintiff was examined, treated and/or operated on each such occasion. 29 y Y w 26. Please identify all health care providers by whom or at which Plaintiff received treatment far any reason from his date of birth to the date of the incident giving rise to this action, stating: (a) the name and address of the health care provider; (b) the date of each examination, treatment or surgery; and (c) the nature of the sickness or injury for which Plaintiff was examined, treated and/or operated on each such occasion. 30 ~ ~ Y 27. With respect to any conversation between Defendant and Plaintiffs in which the nature of, alternatives to, and/or risks of the procedure in question were discussed, set forth the following: (a) the date(s) of each conversation; (b) the substance of each conversation; (c) the identity of each party to the conversation; (d) the identity of each witness to the conversation; and (e) whether there are any documents relating to the nature of, alternative to, and/or risk of the procedure presented to the Plaintiffs. 31 ! 1, t_ 28• Liens -Please identify any Department of Public Welfare Medical Assistance Liens, Medicare/Medicaid Liens, liens from any public source, or any other applicable liens. Respectfully submitted, FOULKRO~ ELLLS .,~ Date: z ~ ('~ By: Andrew H~'oulkrod, Esquire Court I.D. No. 77394 Darlene K. King, Esquire Court I.D. No. 75898 32 e ~ '~ CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this ~~tn day of ~L~Yt ~ 2010, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Robin J. Marzella, Esquire R. J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care of America Inc.; Manor Care Inc.; HCR Manor Care Inc.; and HCR Manor Care. 940 Walnut Bottom Road Carlisle, PA 17014 Defendants Carlisle Regional Medical Center 361 Alexander Spring Road Carlisle, PA 17015 Defendant FOULKROD ELLIS PROFESSIONAL CORPORATION By: Christina W. Shaffer, Paralegal . r CRAIG A. STONE, ESQUIRE I.D. No. 15907 MICHAEL C. MONGIELLO, ESQUIltE I.D. No. 87532 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorney for Defendant Carlisle Regional Medical Center Professional Medical Negligence SHIRLEY AND RICHARD KAZIMER Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No:10-3391-Civil MANOR CARE OF CARLISLE, PA, LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH .SERVICES, CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA, INC., MANOR CARE, INC., HCR MANOR CARE, INC., HCR MANOR: CARE, CARLISLE REGIONAL MEDICAL: CENTER, DARRYL K. GUISTWITE, D.O. Defendants JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned on behalf of the Defendant, Carlisle Regional Medical Center, in the above-captioned case. Dated: ~ I ~ I f O CO r=~~ - :~~__ .. ,.- 2~ I ~ Jt~L ?~ ~l~: 2~ z .z ~~-:.: ~;. ~. ,~ r ~ ... _.. Y, WARNER, By: Craig A. S orb, Lsquire Michael . Mongiello, Esquire 4200 C Mill Road, Suite B Harrisbur A 17112 (717) 651-3500 CERTIFICATE OF SERVICE I, Sarah Kuhn, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, hereby certifies that a true and correct copy of the foregoing Entry of Appearance has been served upon the following known counsel and parties of record this ~~ day of July 2010, via United States First-Class Mail, postage prepaid: Robin J. Marzella, Esquire RJ Marzella & Associates, P.C. 3513 N. Front Street Harrisburg, FA 17110 1 M Sarah Kuhn OS/621443.v1 ,._ i- CRAIG A. STONE, ESQUIRE I.D. No. 15907 MICHAEL C. MONGIELLO, ESQUIRE I.D. No. 87532 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorney for Defendant Carlisle Regional Medical Center ~J ~ ~l ~~ ~ ~~~ emu; _ _: _,•±('`r SHIRLEY AND RICHARD KAZIMER Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No:10-3391-Civil MANOR CARE OF CARLISLE, PA, LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES, CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA, INC., MANQR CARE, INC., HCR MANQR CARE, INC., HCR MANOR: CARE, CARLISLE REGIONAL MEDICAL: CENTER, DARRYL K. GUISTWITE, D.O. Professional Medical Negligence JURY TRIAL DEMANDED Defendants PRAECIPE FOR A RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule directing Plaintiffs, Shirley and Richard Kazimer, to file a Complaint in the above-referenced matter within twenty (20) days of service thereof or risk a judgment of non pros. COLEMAl~ & D~1w~1I~I~Y, WARNER, By: Craig A. Dated: ~ a~- (717) m Mill Road, Suite B g, A 17112 - 500 SHIRLEY AND RICHARD KAZIMER Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No:10-3391-Civil MANOR CARE OF CARLISLE, PA, LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES, CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF : AMERICA, MANOR CARE OF AMERICA, INC., MANOR CARE, INC., HCR MANOR CARE, INC., HCR MANOR: CARE, CARLISLE REGIONAL MEDICAL: CENTER, DARRYL K. GUISTWITE, D.O. Defendants Professional Medical Negligence JURY TRIAL DEMANDED RULE AND NOW, this ~,(~ day of , 2010, upon consideration of the foregoing Praecipe, Plaintiffs are hereby ordered to file a Complaint within twenty (20) days hereof or suffer judgment of non pros. BY THE PROTHONOTARY: 4 I 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 a known counsel and parties of record this ~ day of July 2010, via United States First-Class Mail, postage prepaid: Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110-1438 Sarah A. Kuhn OS/621445.v1 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart SOIICItOf ~$yytitr qt ~unab~~l~~~ Cs.,° t~ /;~~i. ~~u ~:Y~ FitrE +3F THE SHERIFF Shirley Kazimer Case Number vs. 2010-3391 Manor Care of Carlisle PA LLC (et al.) SHERIFF'S RETURN OF SERVICE 05/28/2010 02:55 PM -Gerald Worthington, Deputy Sheriff, who being duly sworn according to law, states that on May 28, 2010 at 1455 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Carlisle Regional Medical Center, by making known unto Amanda Bitner, HRIS Specialist for Carlisle Regional Medical Center at 361 Alexander Spring Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. GE LD WORTHING ,DEPUTY 05/28/2010 02:40 PM -Gerald Worthington, Deputy Sheriff, who being duly sworn according to law, states that on May 28, 2010 at 1428 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Manor Care of Carlisle PA LLC, by making known unto Sheri Stoltzfus, Administrator for Manor Care of Carlisle PA LLC at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. GE LD WORTHINGT DEPUTY 05/28/2010 02:40 PM -Gerald Worthington, Deputy Sheriff, who being duly sworn according to law, states that on May 28, 2010 at 1428 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Manor Healthcare Corp., by making known unto Sheri Stoltzfus, Administrator for Manor Healthcare Corp. at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. GE LD WORTHINGTO PUTY 05/28/2010 02:40 PM -Gerald Worthington, Deputy Sheriff, who being duly sworn according to law, states that on May 28, 2010 at 1428 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: ManorCare Health Services Carlisle, by making known unto Sheri Stoltzfus, Administrator for ManorCare Health Services Carlisle at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. GERALD WORTHINGTON PUTY (c) CountySuite Sheriff, Teleosoft, hic. 05/28/2010 02:40 PM -Gerald Worthington, Deputy Sheriff, who being duly sworn according to law, states that on May 28, 2010 at 1428 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Health Care and Retirement Corporation of America, by making known unto Sheri Stoltzfus, Administrator for Health Care and Retirement Corporation of America at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. GE LD WORTHINGT ,DEPUTY 05/28/2010 02:40 PM -Gerald Worthington, Deputy Sheriff, who being duly sworn according to law, states that on May 28, 2010 at 1428 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Manor Care of America, Inc., by making known unto Sheri Stoltzfus, Administrator for Manor Care of America, Inc. at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. GE LD WORTHINGTO DEPUTY 05/28/2010 02:40 PM -Gerald Worthington, Deputy Sheriff, who being duly sworn according to law, states that on May 28, 2010 at 1428 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Manor Care Inc., by making known unto Sheri Stoltrfus, Administrator for Manor Care, Inc. at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. GERALD WORTHINGT ,DEPUTY 05/28/2010 02:40 PM -Gerald Worthington, Deputy Sheriff, who being duly sworn according to law, states that on May 28, 2010 at 1428 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: HCR Manor Care, Inc., by making known unto Sheri Stoltrfus, Administrator for HCR Manor Care, Inc. at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. GE LD WORTHINGTO EPUTY 05/28/2010 02:40 PM -Gerald Worthington, Deputy Sheriff, who being duly sworn according to law, states that on May 28, 2010 at 1428 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: HCR Manor Care, by making known unto Sheri Stoltrfus, Administrator for HCR Manor Care at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. GE LD WORTHINGT ,DEPUTY 06/07/2010 08:26 PM -Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on June 7, 2010 at 2026 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Darryl K. Guistwite D.O., by making known unto himself personally, at 56 Ashton Street, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to him personally the said true and correct copy of the same. DENN FRY, DEP Y (c) CountySuite ShenB, Teleosoft. Inc. SHERIFF COST: $188.64 August 03, 2010 SO ANSWERS, ~~~~~ RON R ANDERSON, SHERIFF (c) CountySuite Sheriff, Teleosoff, Inc. ~~fLt: ~-vr ~ iCG ~~ 1 P FOULKROD ELLIS PROFESSVONAL CORPORATION ~ ~ ~ ~ ~ f~ - ~ ~ ~ ~ ~j ~ ~ ` Andrew H. Foulkrod, Esquire ' ' Attorney I.D. #77394 ~~~~~~,~ )t~ ~ `, ~~ ~;C~' Darlene K. King, Esquire ~ ,~ Attorney I.D. #75898 ~ `° ~"' ~ ~ . ,~, , ' ~-'~ ~' ~''~ ~ 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendants, Darryl K. Guistwite, D.O. Phone: (717) 909-7006 Fax: (717) 909-6955 SHIRLEY KAZIMER and her husband IN THE COURT OF COMMON PLEAS OF RICHARD KAZIMER, CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA v, CIVIL ACTION -LAW MANOR CARE OF CARLISLE, PA LLC; MANOR HEALTHCARE CORP.; MANORCARE HEALTH SERVICES NO. CV-10-3391 CARLISLE; HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA; MANOR CARE OF AMERICA INC.; MANOR CARE INC.; HCR MANOR CARE INC.; HCR MANOR CARE; JURY TRIAL DEMANDED CARLISLE REGIONAL MEDICAL CENTER; DARRYL K. GUISTWITE, D.O. Defendants NOTICE OF PRAECIPE TO ENTER JUDGMENT OF NON PROS TO: Shirley Kazimer & Richard Kazimer, Plaintiffs c/o Robin J. Marzella, Esquire R. J. Marzella & Associates, P.C. 3513 N. Front Street Harrisburg, PA 17110 Date of Notice: November 1, 2010 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE A COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THI5 NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR RIGHT TO 5UE THE DEFENDANTS AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE 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. Court Administrator Cumberland County Bar Association 34 S. Bedford Street Carlisle, Pennsylvania Telephone number: 717-249-3166 Respectfully submitted, FOULKROD ELLIS By: Andrkw oulkrod, Esquire Court I.D. o. 77394 Darlene K. King, Esquire Court I.D. No. 75898 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this ~~'~ay of lU 2010, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Robin J. Marzella, Esquire R. J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care of America Inc.; Manor Care Inc.; HCR Manor Care Inc.; and HCR Manor Care 940 Walnut Bottom Road Carlisle, PA 17014 Defendants Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant, Carlisle Regional Medical Center FOULKROD ELLIS PROFESSIONAL CORPORATION Crystal L. Nemetz, Secretary T y 1~ ~i~.~o-aF~ic~ OF ENE FR~THQ~aTARY 2G~l0 ~'~'~ -3 ~!~ I1 ~ 15 R. J.MARZELLA&ASSOCIATES,P.C. CUl'!RE~;~_. ~~~~ CQl1~vT~' BY: ROBIN f . MARZELLA, ESQUIRE ~; ~ ~t' i ~ y, ~~, ~~~ ~ l~ I PA SUPREME COURT I.D. N0. 3513 NORTH FRONT STREET ATTORNEYS FOR PLAINTIFF HARRISBURG, PA 17110-1438 SHIRLEY & RICHARD KAZIMER TELEPHONE: (717) 234-7828 FACSIMILE: (717) 234-6883 EMAIL: RRMARZELLACa~RIMARZELLA.COM IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY & RICHARD KAZIMER, PLAINTIFFS VS. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, :CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS DOCKET NUMBER: 10-3391-CIVIL PROFESSIONAL MEDICAL NEGLIGENCE ~URY TRIAL DEMANDED COMPLAINT 1. Shirley Kazimer and Richard Kazimer are adult individuals and all relevant times herein resided at 519 Shippensburg Road, Cumberland County, Pennsylvania. 2. Defendant, Manor Care of Carlisle PA LLC, Manor Healthcare Corp., Manor Care Health Services Carlisle, Health Care Retirement Corporation of America, Manor Care of America Inc., Manor Care, Inc., HCR Manor Care, lnc., HCR Manor Care, (Hereinafter Defendant Manor Care) is/are corporation(s) duly authorized to conduct business in Cumberland County, Pennsylvania with the principal place of business located at 940 Walnut Bottom Road, Cumberland County, Carlisle, Pennsylvania. t 3. The Defendant, Carlisle Regional Medical Center, (hereinafter Defendant CRMC) is a corporation and hospital duly licensed under the laws of the Commonwealth of Pennsylvania with a principal place of business at 361 Alexander Spring Road, Cumberland County, Carlisle, Pennsylvania. 4. Darryl K. Guistwite, D.O. (hereinafter "Defendant Guistwite") was a licensed physician practicing general internal medicine at 940 Walnut Bottom Road, Cumberland County, Carlisle, Pennsylvania. 5. At all relevant times herein, all physicians, interns, residents, emergency room staff, radiologists, and/or other medical support staff who provided care and treatment to Mrs. Kazimer from April of 2008 through July of 2008 were the agents, apparent agents, servants and/or employees of Defendant CRMC and were acting within the course and scope of employment when providing professional medical services to Shirley Kazimer. 6. At all relevant times herein, Defendant Guistwite, all physicians, interns, residents, nurses, nurses aids, and/or other medical support staff who provided care and treatment to Mrs. Kazimer from April of 2008 through July of 2008 were the agents, apparent agents, servants and/or employees of Defendant Manor Care and were acting within the course and scope of employment when providing professional medical services to Shirley Kazimer. 7. In early February of 2008, Shirley Kazimer was admitted to Defendant Manor Care following a recent hospitalization for multiple medical problems including transverse myelitis, atrial fibrillation, diabetes mellitus with concomitant end stage kidney disease and morbid obesity. 8. Upon admission to Defendant Manor Care, it was clear that Mrs. Kazimer required pressure relief measures to prevent/minimize the risk of developing bed ulcers. 9. Mrs. Kazimer's multiple medical conditions, her ensuing treatment and laboratory values at Defendant Manor Care put her at increased risk, or demonstrated that she was at increased risk for the development of pressure ulcers and/or decubiti. 2 10. In addition, due to the past medical history and her immobility, the Defendants knew or should have known that Mrs. Kazimer's bones would be prone to (fracture. 11. While a resident at Manorcare, Mrs. Kazimer was bedridden and required full assistance to move or turn in her bed. 12. Due to the end stage kidney disease, Mrs. Kazimer required dialysis three times a week. 13. To facilitate the aforementioned, Mrs. Kazimer was transported via ambulance to the dialysis center three times per week. 14. Upon information and belief as detailed below, additional measures required by the applicable standard of care with regard to treatment and/or prevention of pressure ulcers and/or decubiti were not timely and appropriately considered, ordered and/or initiated during Mrs. Kazimer's stay at Defendant Manor Care, thus causing the formation and/or worsening of a left hip ulcer and the other ulcers. 15. On or about April 4, 2008, while being transported back from the dialysis center, Mrs. Kazimer sustained a severe laceration to her left leg. 16. She was transported to Defendant, Carlisle Regional Medical Center, for care and treatment of the wound. l7. Mrs. Kazimer was hospitalized at Defendant, Carlisle Regional Medical Center from April 4`h through April 11, 2008 due to the severity of the injury and the resulting medical complications that ensued. 18. Thereafter, she was transferred back to Manorcare where she remained until May 26, 2008. 19. Upon re-admission, an appropriate risk assessment of Mrs. Kazimer's body and skin was not timely and properly performed. 19. During this time period, the patient was not properly and timely turned and/or repositioned at regular intervals to minimize the risk of developing a pressure sore. 3 20. Adaptive equipment was not timely and properly employed to minimize the risk of developing a pressure sore. 21. During this time period, the nurses and aids failed to properly monitor Mrs. Kazimer for signs of skin break down or deterioration. 22. Consequently, a large pressure ulcer began to form on her left hip and a second ulcer began to form on her abdomen. 23. The attending physician, Defendant Guistwite, and/or the other physicians, and residents caring for Mrs. Kazimer failed to identify the developing ulcers and failed to order appropriate pressure relief and medical treatment to stop the progression of the ulcers. 24. Late in the evening on May 24, 2008, Mrs. Kazimer was being helped onto a bedpan by a nurse, nurse's aid, an agent, apparent agent, servant and/or employee of Defendant Manor Care. 25. During the aforementioned assist, the agent, servant and/or employee aggressively twisted and/or manipulated Mrs. Kazimer's leg at the knee area causing a femoral fracture of her left thigh. 26. Mrs. Kazimer immediately cried out in pain, but no treatment and/or evaluation was performed that evening. 27. The following day, Mrs. Kazimer was in severe pain and reported the same to the staff at Manorcare. 28. The following afternoon, she was transferred back to Defendant, CRMC for evaluation of her left leg pain. 29. X-rays revealed a displaced distal femur fracture on the left. 30. A consult was obtained from an orthopedic surgeon and after discussion of the risks and benefits of operative versus non-operative management, it was decided that surgery to repair the fracture was too risky. 31. Consequently, non-surgical management was undertaken which included an immobilizer. 4 32. In addition to the fractured femur, the staff at Defendant CRMC discovered multiple bedsores, the largest on her hip could not be staged due to its large size. 33. The wounds required immediate debridement and the patient was placed on antibiotics because of infection. 34. After the fracture was stabilized and the pressure sores were no longer infected, Mrs. Kazimer was again transferred back to Defendant Manor Care. 35. Over approximately the next 6 weeks, Mrs. Kazimer required constant care at the wound care center for the ulcer on her hip. 36. With appropriate care and treatment, the wound care staff was able to close the wound. 37. On or about July 9, 2008, Mrs. Kazimer was again taken to Defendant Carlisle regional Medical Center due to complications from multiple medical problems. 38. While attempting to move Mrs. Kazimer, an agent, apparent agent, servant and/or employee inappropriately twisted Mrs. Kazimer's right leg causing a second femur fracture. 39. Again, due to Mrs. Kazimer's health and the location of the fracture, conservative management was recommended. 40. Defendants are jointly and severally liable for the injuries and damages claimed herein. 41. As a direct and proximal result of this negligence of the Defendants described above and detailed below, Shirley Kazimer suffered serious injury, including a left hip ulcer, a left femoral fracture, and/or a right femoral fracture and a claim is made therefore. 42. As a direct and proximal result of the negligence of the Defendants, Plaintiff has incurred significant medical expenses and will continue to incur such expenses in the future and a claim is made therefore. 43. As a direct and proximal result of the negligence of the Defendants as described herein, Mrs. Kazimer has experienced extreme pain and suffering, extensive 5 and permanent scarring and disfigurement, embarrassment, humiliation and loss of the enjoyment of life's pleasures and will continue to suffer such losses in the future for all of which damages are claimed. 44. The negligence of the Defendants increased the risk that Plaintiff would suffer serious injury and was a substantial factor in causing the damages listed above. 000NTI- SHIRLEY KAZIMER VS. MANOR CARE OF CARLISLE PA LLC MANOR HEALTHCARE CORP. MANORCARE HEALTH SERVICES CARLISLE HEALTH CARE AND RETIREMENT CORPORTION OF AMERICA MANOR CARE OF AMERICA INC. MANOR CARE INC. HRC MANOR CARE INC HRC MANOR CARE 45. The allegations contained in paragraphs 1 through 44 of the Complaint are incorporated herein by reference as if set forth at length. 46. Defendant Manor Care, et al acting through it's agents, apparent agents, servants and/or employees is liable for the negligent medical care and treatment rendered to Shirley Kazimer by: (a) failing to timely order or obtain an appropriate pressure relief mattress or other pressure relief measures for the patient; (b) failing to ensure the prompt utilization of an appropriate mattress or other pressure relief measures for the patient; (c) failing to timely order and/or utilize a specialty bed for the patient; (d) failing to order a metabolic study for the patient; (e) failing to ensure the timely performance of a metabolic study for the patient; 6 (t) failing to follow the recommendations of the physicians and/or other consultants pertaining to the care and treatment of the patient with respect to the prevention and/or treatment of pressure ulcers; (g) failing to timely and appropriately consult with specialists pertaining to the pressure ulcer; (h) failing to appropriately treat the pressure ulcer so as to stop the progression or promote healing; (i) failing to timely and properly culture the pressure ulcers; (j) failing to perform timely and thorough skin checks of the patient; (k) failing to ensure the timely and thorough skin checks of the patient; (1) failing to order or administer the appropriate antibiotic creams, slaves, dressings, or other medicines to treat the developing ulcers and/or resulting infection. (m) failing to properly turn or position the patient to prevent the formation or progression of pressure ulcers; (n) failing to order or institute orders regarding the proper turning or positioning of patients to prevent the formation or progression of pressure ulcers; (o) failing to perform sufficient or adequate examinations of the patient with regard to pressure ulcers; (p) failing to accurately and timely communicate to the appropriate healthcare providers the condition of the patient and/or the pressure ulcer; (q) failing to accurately and thoroughly document the condition of the patient and/or the pressure ulcer and the treatment rendered; (r) failing to timely and properly monitor the pressure ulcer (s) failing to appropriately treat the pressure ulcer so as to stop it's progression and promote healing; 7 (t) failing to timely refer Mrs. Kazimer to or consult with an appropriate specialist to evaluate and treat the pressure ulcer sustained by the patient; (u) failing to timely or properly institute the recommendations of the specialist and/or consultants with respect to the treatment of the pressure ulcer; (v) Failing to timely perform a nutritional assessment; (w) Failing to use appropriate medical devises such as pillows or wedges to minimize pressure on certain areas, like hips, etc. (x) Failing to perform and re-perform a pressure ulcer risk assessment; (y) Failing to clean and moisturize the patient's skin appropriately to minimize the risk of pressure ulcers; (z) failing to properly and appropriately assist the patient onto the bedpan; (aa) failing to summon the assistance of other individuals to aid in assisting Mrs. Kazimer to the bedpan; (bb) inappropriatelyttyisting Mrs. Kazimer's left leg causing a femur fracture; (cc) exerting excess force on Mrs. Kazimer's leg when assisting her on the bedpan; (dd) Failing to employ mechanical lifting equipment to safely assist Mrs. Kazimer to the bedpan; (ee) failing to take the patient for immediate evaluation and treatment following the fracture that occurred on or about May 24, 2008. 47. The negligence of Defendants increased the risk and was a substantial factor in causing the injuries and harm to Mrs. Kazimer as alleged above which allegations are incorporated herein as if fully set forth at length. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of $50,000.00 together with interest and costs thereon as allowed bylaw. 000NTII- SHIRLEY KAZIMER VS. DARRYL K. GUISTWITE, D.O. 48. The allegations contained in paragraphs 1 through 40 and Count I of the Complaint are incorporated herein by reference as if set forth at length. 49. Defendant Darryl K. Guistwite, D.O. is liable for the negligent medical care and treatment rendered to Shirley Kazimer by: (a) failing to timely order or obtain an appropriate pressure relief mattress or other pressure relief measures for the patient; (b) failing to ensure the prompt utilization of an appropriate mattress or other pressure relief measures for the patient; (c) failing to timely order and/or utilize a specialty bed for the patient; (d) failing to order a metabolic study for the patient; (e) failing to ensure the timely performance of a metabolic study for the patient; (~ failing to follow the recommendations of the physicians and/or other consultants pertaining to the care and treatment of the patient with respect to the prevention and/or treatment of pressure ulcers; (g) failing to timely and appropriately consult with specialists pertaining to the pressure ulcer; (h) failing to appropriately treat the pressure ulcer so as to stop the progression or promote healing; (i) failing to timely and properly culture the pressure ulcers; (j) failing to perform timely and thorough skin checks of the patient; (k) failing to ensure the timely and thorough skin checks of the patient; 9 (1) failing to order or administer the appropriate antibiotic creams, slaves, dressings, or other medicines to treat the developing ulcers and/or resulting infection. (m) failing to properly turn or position the patient to prevent the formation or progression of pressure ulcers; (n) failing to order or institute orders regarding the proper turning or positioning of patients to prevent the formation or progression of pressure ulcers; (o) failing to perform sufficient or adequate examinations of the patient with regard to pressure ulcers; (p) failing to accurately and timely communicate to the appropriate healthcare providers the condition of the patient and/or the pressure ulcer; (q) failing to accurately and thoroughly document the condition of the patient and/or the pressure ulcer and the treatment rendered; (r) failing to timely and properly monitor the pressure ulcer (s) failing to appropriately treat the pressure ulcer so as to stop it's progression and promote healing; (t) failing to timely refer Mrs. Kazimer to or consult with an appropriate specialist to evaluate and treat the pressure ulcer sustained by the patient; (u) failing to timely or properly institute the recommendations of the specialist. and/or consultants with respect to the treatment of the pressure ulcer; (vi) Failing to timely perform a nutritional assessment; (w) Failing to use appropriate medical devises such as pillows or wedges to minimize pressure on certain areas, like hips, etc. (x) Failing to perform and re-perform a pressure ulcer risk assessment; (y) Failing to clean and moisturize the patient's skin appropriately to minimize the risk of pressure ulcers; 10 (z) failing to properly and appropriately assist the patient onto the bedpan; (aa) failing to summon the assistance of other individuals to aid in assisting Mrs. Kazimer to the bedpan; (bb) inappropriately twisting Mrs. Kazimer's left leg causing a femur fracture; (cc) exerting excess force on Mrs. Kazimer's leg when assisting her on the bedpan; (dd) Failing to employ mechanical lifting equipment to safely assist Mrs. Kazimer to the bedpan; (ee) failing to take the patient for immediate evaluation and treatment following the fracture that occurred on or about May 24, 2008. 50. The negligence of Defendants increased the risk and was a substantial factor in causing the injuries and harm to Mrs. Kazimer as alleged above which allegations are incorporated herein as if fully set forth at length. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of $50,000.00 together with interest and costs thereon as allowed by law. ('(li TTUT iii SHIRLEY KAZIMER VS. CARLISLE REGIONAL MEDICAL CENTER 51. The allegations contained in paragraphs 1 through 44 of the Complaint are incorporated herein by reference as if set forth at length. 52. Defendant Carlisle Regional Medical Center acting through it's agents, apparent agents, servants and/or employees is liable for the negligent medical care and treatment rendered to Shirley Kazimer by: 11 (a) failing to properly, appropriately and safely assist the patient in repositioning; (b) failing to summon the assistance of other individuals to assist in moving Mrs. Kazimer; (c) inappropriately twisting Mrs. Kazimer's right leg causing a femur/hip fracture; (d) exerting excess force on Mrs. Kazimer's right leg causing a femur/hip fracture; (e) Failing to employ mechanical lifting equipment to safely assist Mrs. Kazimer in repositioning; 53. The negligence of Defendants increased the risk and was a substantial factor in causing the injuries and harm to Mrs. Kazimer as alleged above which allegations are incorporated herein as if fully set forth at length. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of $50,000.00 together with interest and costs thereon as allowed by law. COUNT N RICHARD KAZIMER VS. MANOR CARE OF CARLISLE PA LLC MANOR HEALTHCARE CORP. MANORCARE HEALTH SERVICES CARLISLE HEALTH CARE AND RETIREMENT CORPORTION OF AMERICA MANOR CARE OF AMERICA INC. MANOR CARE INC. HRC MANOR CARE INC HRC MANOR CARE: CARLISLE REGIONAL MEDICAL CENTER: DARRYL K. GUISTWITE. D.O. LOSS OF CONSORTIUM 54. Paragraphs 1 through 44 and Counts I through IlI are incorporated herein by reference as if fully set forth at length. 12 55. Defendants Manor Care, Darryt K. Guistwite, D.O. and Carlisle Regional Medical jointly and severally liable to Plaintiff Richard Kazimer for damages as set forth herein. 56. By reason of the aforesaid injuries sustained by his wife, Plaintiff Richard Kazimer was forced to incur liability for medical treatment, medicines and similar miscellaneous expenses in an effort to restore his wife to health and because of the nature of her condition, he will be forced to incur similar miscellaneous expenses in the future and a claim is made therefore. 57. By reason of the aforesaid injuries sustained by his wife, Plaintiff Richard Kazimer, has been, and in the future will be deprived of the assistance, companionship, consortium, and society of his wife, all of which has been and will continue to be to his great damage and loss and a claim is made therefore. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of $50,000.00 together with interest and costs thereon as allowed by law. Respectfully submitted, DATED: 13 it { ra ; 7n I n nr_-,, 11 - 0 AM FOUL KROL) _L LIS PROFESSIONAL CORPORATION r-UMB RLA ND Andrew H. Foulkrod, Esquire ,O 5?? ?`1??# 3 Attorney I.D. #77394 Darlene K. King, Esquire Attorney I.D. #75898 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendant, Phone: (717) 909-7006 Darryl K. Guistwite, D.O. Fax: (717) 909-6955 SHIRLEY KAZIMER and her husband IN THE COURT OF COMMON PLEAS OF RICHARD KAZIMER, CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. CIVIL ACTION - LAW MANOR CARE OF CARLISLE, PA LLC, et al. Defendants NO. CV-10-3391 JURY TRIAL DEMANDED NOTICE OF INTENTION TO ENTER JUDGMENT OF NON PROS ON PROFESSIONAL LIABILITY CLAIM TO: Shirley Kazimer and her husband, Richard Kazimer, Plaintiffs c/o Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Pursuant to Pennsylvania Rule of Civil Procedure 1042.7, I intend to enter a judgment of non pros against you after thirty (30) days of the date of the filing of this notice if a certificate of merit is not filed as required by Rule 1042.3. I am serving this notice on behalf of Defendant Darryl K. Guistwite, D.O. The judgment of non pros will be entered as to all claims. FOULKROD ELLIS Professional Corppr, 1tildrj B Date: y Andrew . Foulkr Esquire Court I.D. #77394 Darlene K. King Court I.D. 475898 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this ( day of 010, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Robin J. Marzella, Esquire R. J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care of America Inc.; Manor Care Inc.: HCR Manor Care Inc.; and HCR Manor Care 940 Walnut Bottom Road Carlisle, PA 17014 Defendants Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant, Carlisle Regional Medical Center FOULKROD ELLIS PROFESSIONAL CORPORATION By: UO x ? ?r Crystal L. Nemetz, Secreta y OF THELP O THO OTARY R. J. MARZELLA & ASSOCIATES, P.C. 2011 p",, : 54 BY: ROBIN J. MARZELLA, ESQUIRE PA SUPREME COURT I.D. NO. C t3 MB E R L A is D COUNTY 3513 NORTH FRONT STREET A ? Y AAINTIFFS HARRISBURG, PA 17110-1438 SHIRLEY & RICHARD KAZIMER TELEPHONE: (717) 234-7828 FACSIMILE: (717) 234-6883 EMAIL: RMA 7. . . .AAR. MAR7Fi T A COM IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA KAZIMER, SHIRLEY & RICHARD, PLAINTIFFS vs. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS DOCKET NUMBER: CV-10-3391 PROFESSIONAL MEDICAL NEGLIGENCE JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO EXTEND CERTIFICATE OF MERIT DEADLINES AND NOW COMES, Plaintiffs, Shirley & Richard Kazimer, by and through their attorneys, R. J. Marzella & Associates, P.C., with the following Motion to Extend Certificate of Merit Deadline: 1. On or about May 21, 2010, Plaintiffs, Shirley & Richard Kazimer, initiated this action by filing a Writ of Summons upon above-referenced Defendants. 2. On or about June 28, 2010, Defendants filed a Rule to File a Complaint. 3. On or about November 2, 2010, Plaintiff filed a Complaint, alleging in part that Defendants were negligent in preventing and treating Shirley Kazimer's pressure ulcers. 4. Suit was filed close to the expiration of the two-year statute of limitations due to the fact that Plaintiffs counsel was not contacted about this potential case until a mere few months prior to the expiration of the statute of limitations. 5. Under Pa. R.C.P. 1042.3, Plaintiff is required to file a Certificate of Merit verifying the validity of the claim against a licensed professional at the time of the filing of the Complaint or within 60 days after filing the Complaint. 6. Since the Plaintiff filed the Complaint on November 2, 2010, the deadline for filing Certificates of Merit is January 3, 2010. 7. Pa. R.C.P. 1042.3(d) states "The Court upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed 60 days." 8. Plaintiff is in the process of obtaining reports by experts who are currently reviewing the medical records and treatment of Plaintiff, Shirley Kazimer. 9. Plaintiff's relevant medical records are voluminous in nature (approximately 5000 pages) and encompass multiple hospitalizations that spanned approximately six (6) months in length. 10. Due to the above facts, Plaintiff is requesting this Honorable Court grant a sixty (60) day extension to file Certificates of Merit. 11. Plaintiff has sought and has obtained concurrence for this instant motion from Counsel for Defendant Carlisle Regional Medical Center and Defendant Guistwite. WHEREFORE, Plaintiffs, Shirley & Richard Kazimer, requests this Honorable Court to grant Plaintiffs' Motion to Extend Certificate of Merit Deadline. 2 Respectfully submitted, Dated: R. J. MayrOO & Associates, P.C. Supremert I.D. No. 66856 3513 North Front Street Harrisburg, PA 17110 (717) 234-7828 Attorney for Plaintiffs, Shirley & Richard Kazimer CERTIFICATE OF SERVICE I, Catherine Nguyen, hereby certify that a true and correct copy of the foregoing document was served upon counsel of record this 30th day of December, 2010, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew Foulkrod, Esquire Darlene King, Esq. Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendant Guistwite Craig Stone, Esquire MDWCG 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant CRMC ManorCare 940 Walnut Bottom Road Carlisle, PA 17015 R. J. MARZELLA & ASSOCIATES, P.C. BY: ?G?tr CATHERINE NGtiYE 201 1 JAN 28 PM 2: 33 THE PR Tf R. J. °4 + t e S, P.C. ?(?? BY: ?r INROB J. MARZELLA, ESQUIRE PA SUPREME COURT I.D. NO. 1. ' 3513 NORTH FRONT STREET ATTORNEYS FOR PLAINTIFFS HARRISBURG, PA 17110-1438 SHIRLEY & RICHARD KAZIMER TELEPHONE: (717) 234-7828 FACSIMILE: (717) 234-6883 EMAIL: RMARZELLA@RJMARZELLA.COM IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA KAZIMER, SHIRLEY & RICHARD, PLAINTIFFS vs. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC-., MANOR CARE INC., HCR MANOR CARr71T=, CR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS DOCKET NUMBER: CV-10-3391 PROFESSIONAL MEDICAL NEGLIGENCE JURY TRIAL DEMANDED ORDER 16 AND NOW, this ), day of -Sdh , 2010, Plaintiff's Motion to Extend Certificate of Merit Deadline is GRANTED and the deadline to file Certificates of Merits is extended to sixty (60) days from issuance of this Order. BY THE COURT: _II J. .a I Distribution Legend Robin Marzella, Esquire R.J. Marzella & Associates 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff Andrew Foulkrod, Esq. Darlene King, Esq. Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendant Guistwite Court Administrator - ih bin Cumberland County Courthouse, Room 400 1 Courthouse Square Carlisle, PA 17013 Craig Stone, Esq. MDWCG 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant CRMC Manor Care of Carlisle PA, LLC Manor Healthcare Corp. ManorCare Health Services Carlisle Health Care and Retirement Corporation of America Manor Care of America, Inc. Manor Care Inc. HCR Manor Care Inc. HCR Manor Care 940 Walnut Bottom Road Carlisle, PA 17015 .kd rte" 11.18,flf DO 2 • COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Cumberland County Shirley & Richard Kazimer Court of Common Pleas VS. Manor Care of Carlisle, PA, LLC; Manor Healthcare Corp.; Manorcare Health Services Carlisle; Health Care and Retirement Corporation Case Number: 10- of America; Manor Care of America, Inc.; Manor 3391 Care, Inc.; HCR Manor Care, Inc.; HCR Manor Care; Carlisle Regional Medical Center; Darryl K. Guistwite, D.O. CERTIFICATE PREREQUISITE TO THE SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Litigation Solutions, LLC ('LSLLC') on behalf of Andrew Foulkrod, Esquire of Foulkrod Ellis PC certifies that: (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) No objection to the subpoena has been received, and; (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Date: 1/6/2011 CC: Andrew Foulkrod, Esquire Foulkrod Ellis PC 4000 Market Street Camp Hill PA 17011 Litigation Solutions, LLC on behalf of Andrew Foulkrod, Esquire of Foulkrod Ellis PC Attorney for the C ? <--) z rn ; 7 r;; ?•s C 0 n' o` Ica - --?e:o T-n s , crt 1 5 U1 ,2 PENNSYLVANIA COURT OF COMMON PLEAS COUNTY OF CUMBERLAND Shirley & Richard Kazimer Cumberland VS. County Court Manor Care of Carlisle, PA, LLC; Manor Healthcare Corp.; Manorcare Health Services Carlisle; of Common Health Care and Retirement Corporation of America; Manor Care of America, Inc.; Manor Care, Pleas Inc.; HCR Manor Care, Inc.; HCR Manor Care; Carlisle Regional Medical Center; Darryl K. Guistwite, D.O. 10-3391 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCEDOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Provider: Record Type: Manor Care of Carlisle All available T0: Robin Marzella, Esquire note: please see enclosed list of all other interested counsel Litigation Solutions, LLC ('LSLLC') on behalf of Andrew Foulkrod, Esquire 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. Litigation Date of Issue: 12/20/2010 Solutions, LLC on behalf of: Andrew CC: Andrew Foulkrod, Esquire of Foulkrod Ellis PC - Cumberland County Court of Common Pleas Fo ulkrod, Esquire If you have any questions regarding this matter, please contact: Litigation Solutions, LLC (412.263.5656) Brentwood Towne Centre 101 Towne Square Way, Suite 251 Pittsburgh, PA 15219 aiv- I ? 10 11 ( 101 Towne Square Way, Suite 251 Pittsburgh, PA. 15227 COUNSEL LISTING FOR SHIRLEY & RICHARD KAZIMER VS. (MANOR CARE OF CARLISLE, PA, LLC; MANOR HEALTHCARE CORP.; MANORCARE HEALTH SERVICES CARLISLE; HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA; MANOR CARE OF AMERICA, INC.; MANOR CARE, INC.; HCR MANOR CARE, INC.; HCR MANOR CARE; CARLISLE REGIONAL MEDICAL CENTER; DARRYL K. GUISTWITE, D.O. County of Cumberland Cumberland County Court of Common Pleas Counsel Firm Counsel Type Marzella, Esquire, 3513 North Front Street Harrisburg PA 17110 P: 717-234-7328 Robir F: 717-234-6883 Opposing Counsel Stone, Esquire, Craig 4200 Cruets Mill Road Suite B Harrisburg PA 17112 P: 717- Other A. 651-3500 F: 717-651-9630 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Shirley & Richard Kazimer Cumberland VS. County of Manor Care of Carlisle, PA, LLC; Manor Healthcare Corp.; Manorcare Health Services Court Common Carlisle; Health Care and Retirement Corporation of America; Manor Care of America, Pleas Inc.; Manor Care, Inc.; HCR Manor Care, Inc.; HCR Manor Care; Carlisle Regional Medical Center; Darryl K. Guistwite, D.O. 1Q-33g1 Request For Records Copies Related To Subpoena Document Request Provider: Copy Sets Requested: Manor Care of Carlisle Please return this completed form to Litigation Solutions, LLC. Please be advised that Litigation Solutions, LLC requires prepayment for all requested records above. Therefore, once the requested records are obtained an invoice for prepayment will be generated and sent directly to your attention. This prepayment includes a $5.00 administrative fee. Once payment has been received the records will be promptly forwarded to your attention. If you should happen to have any questions or concerns regarding this matter, please don't hesitate to contact Maria Osinski at 412.253.1101 or fax at 412.253.1059. Date of Issue: 12/20/2010 Shin_ P-chard Kaz_mer 3321 vs. Manor Care cf Carlisle, PA, LLC; Manor Healthcare Corp.; Manor-care Health Services Carlisle; Health Care and Retirement Corporation of Amor! ra Manni arp i_ 3yf r rj Y'? ?LSr-1 I_ - - S;li: -' I, 1(? _ J_- --- - -- -- 1LE __:Manor Care of Carlisle jowt of Ptnon S1 Entry h=, - -, ter.,- -= r r - - dccui--L=-atc or PLEASE SEE ATTACHED RIDER _= 101 Towne Square Way, Suite 251 Pittsburg:z, PA 15227 (-_d ws) - zubr' c=- togthal t_i_ At w0ficay Cr-U_a_I c _ rHF Wig- - J -3d Lr ?_ _t =EJ__i p:' h '_C k. have Taright to saki n -.d-?- - - - ?f COP ME ?J-G Crii,tc: -- L,i o[),ilf?tn; ill[ ;hiOnVt' E _oo-ugu .? i = -=i1 Co plods n At ror?,_._:g rT 207Os _ei-InLt lv; c i-- e 1 CL7l c-'y (201) ?a?'., 001 AS Sri' 0f ia- s9-(i ig Gis subpo _a rm Wk a cow o rl - L"Lj f !_ TY'_,-S 1SST a AT THE rrr)TIF '; 0 J = -- ---TE !'?-PAE Andrew Foulkrod, Esquire ?. ="DRE?'''-' 40nO Market Street ramp Hi1_l PA, 17011 TE%EPHO TR 717-909-7006 STPFEIN H O'nU`-P-T I DD = Z7394 _ A T OPP J IFO -: Defense Lao 1601 U-1 D ca of -_ _. Cow THE COURT: rirj- Q1.772 yll D-1-y iS 1per' I YiV ?.D V• ?vSLL Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Manor Care of Carlisle 940 Walnut Bottom Road Carlisle PA 17013 Attention: Records Department Subject: Kazimer, Shirley SS#: 5941 Date of Birth: 4/25/1950 Requested Items: Please remit: a complete copy of any and all documents in your possession from 4-25-1950 to present regarding the above-named patient, including but not limited to: • Medical records (charts, test results, reports, correspondence, office notes) • Films (X-rays, MRIs, CTs), Film lists • Billing records. R. J. MARZELLA & ASSOCIATES, P.C. BY: ROBIN J. MARZELLA, ESQUIRE PA SUPREME COURT I.D. NO. 3513 NORTH FRONT STREET FILED-OFFICE 2011 MAR 28 PM 4: 10 CUMBERLAND COUNTY PENNSYLVANIA ATTORNEYS FOR PLAINTIFF HARRISBURG, PA 17110-1438 SHIRLEY & RICHARD KAZIMER TELEPHONE: (717) 234-7828 FACSIMILE: (717) 234-6883 FmAn.* RRMA zFi.i.A(n,RJA4ARzF,i.i.A_f om IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY & RICHARD KAZIMER, PLAINTIFFS VS. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS DOCKET NUMBER: 10-3391-CIVIL PROFESSIONAL MEDICAL NEGLIGENCE JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO CARLISLE REGIONAL MEDICAL CENTER FOR VICARIOUS LIABILITY I, Robin J. Marzella, Esquire, attorney for Plaintiffs, Shirley & Richard Kazimer, hereby, certify that: ? an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR the claim that the defendant deviated from an acceptable professional standard is also based solely on allegations that other licensed professionals for whom the defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. OR ? expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Respectfully submitted, Dated: ar so/ciattees, P.C. J. 7EO squire Attorney Identification No. 66856 3513 North Front Street Harrisburg, PA 17110 (717) 234-7828 Attorneys for Plaintiff, Shirley & Richard Kazimer CERTIFICATE OF SERVICE I, Catherine Nguyen, hereby certify that a true and correct copy of the foregoing document was served upon counsel of record this 28th day of March, 2011, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew Foulkrod, Esquire Darlene King, Esq. Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendant Guistwite Craig Stone, Esquire MDWCG 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant CRMC ManorCare 940 Walnut Bottom Road Carlisle, PA 17015 R. J. MARZELLA & ASSOCIATES, P.C. BY: - CATHERINE NGUYE OF TAE PROTHONOTARY 2011 MAR 28 PM 4: 10 R. J. MARZELLA & ASSOCIATES, P.C. CUMBERLAND COUNTY BY: ROBIN J. MARZELLA, ESQUIRE PENNSYLVANIA PA SUPREME COURT I.D. NO. 66856 3513 NORTH FRONT STREET ATTORNEYS FOR PLAINTIFF HARRISBURG, PA 17110-1438 SHIRLEY & RICHARD KAZIMER TELEPHONE: (717) 234-7828 FACSIMILE: (717) 234-6883 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY & RICHARD KAZIMER, PLAINTIFFS vs. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS : DOCKETNUMBER:10-3391-CIVIL PROFESSIONAL MEDICAL NEGLIGENCE JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., AND HCR MANOR CARE, FOR VICARIOUS LIABILITY I, Robin J. Marzella, Esquire, attorney for Plaintiffs, Shirley & Richard Kazimer, hereby, certify that: an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR the claim that the defendant deviated from an acceptable professional standard is also based solely on allegations that other licensed professionals for whom the defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. OR ? expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Respectfully submitted, a ssociates, P.C. B J a, Esquire Attorney Identification No. 66856 3513 North Front Street Harrisburg, PA 17110 (717) 234-7828 Attorneys for Plaintiff, Shirley & Richard Kazimer Dated: ? 3 ?? 1 CERTIFICATE OF SERVICE I, Catherine Nguyen, hereby certify that a true and correct copy of the foregoing document was served upon counsel of record this 28th day of March, 2011, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew Foulkrod, Esquire Darlene King, Esq. Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendant Guistwite Craig Stone, Esquire MDWCG 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant CRMC ManorCare 940 Walnut Bottom Road Carlisle, PA 17015 R. J. MARZELLA & ASSOCIATES, P.C. BY: CATHERINE NGUYE U? THE PROTHONOTARY 2011 MAR 28 PM 4: 10 R. J. MARZELLA & ASSOCIATES, P.C. CUMBERLAND COUNTY BY: ROBIN J. MARZELLA, ESQUIRE PENNSYLVANIA PA SUPREME COURT I.D. No. 66856 3513 NORTH FRONT STREET ATTORNEYS FOR PLAINTIFF HARRISBURG, PA 17110-1438 SHIRLEY & RICHARD KAZIMER TELEPHONE: (717) 234-7828 FACSIMILE: (717) 234-6883 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY & RICHARD KAZIMER, PLAINTIFFS VS. DOCKET NUMBER: 10-3391-CIVIL PROFESSIONAL MEDICAL NEGLIGENCE MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO UNKNOWN AGENTS OF MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., AND HCR MANOR CARE, FOR VICARIOUS LIABILITY I, Robin J. Marzella, Esquire, attorney for Plaintiffs, Shirley & Richard Kazimer, hereby, certify that: ? an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR the claim that the defendant deviated from an acceptable professional standard is also based solely on allegations that other licensed professionals for whom the defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. OR ? expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. 2 Respectfully submitted, Date : R. JL-Alaaella & Associates, P.C. By. Robin J -MUOAa, Esquire Attorney Identification No. 66856 3513 North Front Street Harrisburg, PA 17110 (717) 234-7828 Attorneys for Plaintiff, Shirley & Richard Kazimer CERTIFICATE OF SERVICE I, Catherine Nguyen, hereby certify that a true and correct copy of the foregoing document was served upon counsel of record this 28th day of March, 2011, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew Foulkrod, Esquire Darlene King, Esq. Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendant Guistwite Craig Stone, Esquire MDWCG 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant CRMC ManorCare 940 Walnut Bottom Road Carlisle, PA 17015 R. J. MARZELLA & ASSOCIATES, P.C. BY: - - -- CATHERINE NGUYE OF THLPRO THONG T RY 2011 MAR 28 PM 4: 0 R. J. MARZELLA & ASSOCIATES, P.C. CUMBERLAND COUN BY: ROBIN J. MARZELLA, ESQUIRE PENNSYLVANIA PA SUPREME COURT I.D. N0.66856 3513 NORTH FRONT STREET ATTORNEYS FOR PLAINTIFF HARRISBURG, PA 17110-1438 SHIRLEY & RICHARD KAZIMER TELEPHONE: (717) 234-7828 FACSIMILE: (717) 234-6883 EMAIL: RRMARZELLAkRJMARZELLA.COM IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY & RICHARD KAZIMER, PLAINTIFFS VS. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS DOCKET NUMBER: 10-3391-CIVIL PROFESSIONAL MEDICAL NEGLIGENCE JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DARRYL K. GUISTWITE, D.O. I, Robin J. Marzella, Esquire, attorney for Plaintiffs, Shirley & Richard Kazimer, hereby, certify that: an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR ? the claim that the defendant deviated from an acceptable professional standard is also based solely on allegations that other licensed professionals for whom the defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. OR ? expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. 2 Respectfully submitted, Dated: R. arze & Associates, P.C. Y: nv-un j..ffrarl5t», hsquire Attorney Identification No. 66856 3513 North Front Street Harrisburg, PA 17110 (717) 234-7828 Attorneys for Plaintiff, Shirley & Richard Kazimer CERTIFICATE OF SERVICE I, Catherine Nguyen, hereby certify that a true and correct copy of the foregoing document was served upon counsel of record this 28th day of March, 2011, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew Foulkrod, Esquire Darlene King, Esq. Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendant Guistwite Craig Stone, Esquire MDWCG 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant CRMC ManorCare 940 Walnut Bottom Road Carlisle, PA 17015 R. J. MARZELLA & ASSOCIATES, P.C. BY: CATHERINE NGUYE ;7 14 CRAIG A. STONE, ESQUIRE I.D. No. 15907 MICHAEL C. MONGIELLO, ESQUIRE I.D. No. 87532 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorney for Defendant Carlisle Regional Medical Center -r ?.Ru".,Ji ?"iCC.. 0 6.' ;tdOTARY I -8 10: 41 1.1 >3E LAND COUNTY PE NNSYLVAWA SHIRLEY AND RICHARD KAZIMER Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No: 10-3391-Civil MANOR CARE OF CARLISLE, PA, LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES, CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA, INC., MANOR CARE, INC., HCR MANOR CARE, INC., HCR MANOR: CARE, CARLISLE REGIONAL MEDICAL: CENTER, DARRYL K. GUISTWITE, D.O. : Defendants Professional Medical Negligence JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT CARLISLE REGIONAL MEDICAL CENTER TO PLAINTIFFS' COMPLAINT AND NOW comes the Defendant, Carlisle Regional Medical Center (hereinafter referred to as "CRMC" and/or "Answering Defendant"), by its attorneys Marshall, Dennehey, Warner, Coleman & Goggin, and Craig A. Stone, Esquire, who answer Plaintiff/s Complaint, with New Matter as follows: 1. Denied as stated. After a reasonable investigation, Answering Defendant believes, and therefore avers, that Shirley Kazimer died on or about August 10, 2010. 2. The corresponding paragraph of Plaintiffs Complaint refers to the identity, agency, acts and/or omissions of a Defendant other than CRMC. Under the circumstances, Answering Defendant has been advised that no answer is required of it. If an answer is deemed required, the same is denied pursuant to Pa. R.C.P. 1029(e). 3. .Admitted. 4. Denied for reasons set forth in paragraph 2. 5. After reasonable investigation, Answering Defendant is without information or knowledge sufficient to form a belief as to the identity of the "physicians, interns, residents, emergency room staff, radiologists and/or other medical staff who provided care and treatment to Mrs. Kazimer from April through July of 2008." Consequently, Answering Defendant is unable to form a belief as to the truth of the allegations of the agency of such persons. The same is therefore denied and strict proof, if relevant, is demanded at the time of trial. 6. Denied for reasons set forth in paragraph 2. 7.- 15. After reasonable investigation, Answering Defendant is without information or knowledge sufficient to form a belief as to the truth of the averments of the corresponding paragraphs of Plaintiffs Complaint. The same are therefore denied and strict proof, if relevant, is demanded at the time of trial. By way of further answer, CRMC's chart is incorporated by reference as though fully set forth. 16. Admitted according to CRMC's records. 17. Denied as stated. It is admitted that Mrs. Kazimer was admitted to CRMC from April 4 through April 11, 2008. By way of further answer, the hospital records for the admission are incorporated by reference as though fully set forth. 2 18. Denied as stated. It is admitted from CRMC's records that Mrs. Kazimer was transferred from CRMC to Manor Care on or about April 11, 2008. It is further admitted from CRMC's records that Mrs. Kazimer was again admitted to CRMC on May 26, 2008. 19. - 27. Assuming that the allegations of the corresponding paragraphs of Plaintiffs Complaint relate to events occurring at Manor Care, after a reasonable investigation, Answering Defendant is without information or knowledge sufficient to form a belief as to the truth of said averments. The same are therefore denied and strict proof, if relevant, is demanded at the time of trial. 28. Denied as stated. It is admitted that Mrs. Kazimer was admitted to CRMC on May 26, 2008, in part, for evaluation of left leg pain. By way of further answer, CRMC's records are incorporated by reference as though fully set forth. 29. Admitted. 30. Denied as stated. Rather, the orthopedic consultation report from CRMC's records is incorporated by reference as though fully set forth. 31. -- 33. Denied as stated. By way of further answer, CRMC's records are incorporated by reference as though fully set forth. 34. Denied as stated. It is admitted that Mrs. Kazimer was transferred from CRMC back to Manor Care on May 30, 2008. By way of further answer, CRMC's records are incorporated by reference as though fully set forth. 35. -- 36. Denied for reasons set forth in paragraph 2. 37. Denied as stated. It is admitted that on July 9, 2008, Mrs. Kazimer was admitted to CRMC. By way of further answer, CRMC's records are incorporated by reference as though fully set forth. 3 38. Denied pursuant to Pa. R.C.P. 1029(e) and paragraph 36. 39. Denied as stated. By way of further answer, CRMC's records, including orthopedic consultation reports, are incorporated by reference as though fully set forth. 40. The averments of the corresponding paragraph of Plaintiffs Complaint contain conclusions of law to which no answer is required. If an answer is deemed required, the same are denied pursuant to Pa. R.C.P. 1029(e). 41. The averments of the corresponding paragraph of Plaintiffs Complaint contain conclusions of law to which no answer is required. If an answer is deemed required, the same are denied pursuant to Pa. R.C.P. 1029(e). It is specifically denied that Defendant CRMC negligently caused any of the conditions set forth in said paragraph. Rather, at all times material hereto, CRMC through its agents, servants and employees met the applicable medical legal standard of care. - 44. After reasonable investigation, Answering Defendant is without information or knowledge sufficient to form a belief as to the truth of the averments of damages set forth in Plaintiffs Complaint, the same are therefore denied and strict proof, if relevant, is demanded at the time of trial. As to the remaining allegations of the corresponding paragraph of Plaintiffs Complaint, the denial set forth in paragraphs 40 and 41 hereof are incorporated by reference as though fully set forth. 4 COUNTI SHIRLEY KAZIMER V. MANOR CARE OF CARLISLE, PA, LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA, INC., MANOR CARE, INC. HRC MANOR CARE, INC., HRC MANOR CARE 45. The averments of paragraphs 1 through 44 of this Answer with New Matter are incorporated herein by reference as though fully set forth. 46. - 47. Denied for reasons set forth in paragraph 2. WHEREFORE, Defendant Carlisle Regional Medical Center, demands that Plaintiffs Complaint be dismissed with cost to him. COUNT II SHIRLEY KAZIMER V. DARRYL K. GUISTWITE, D.O. 48. The averments of paragraphs 1 through 47 of this Answer with New Matter are incorporated herein by reference as though fully set forth. 49. - 50. Denied for reasons set forth in paragraph 2. WHEREFORE, Defendant Carlisle Regional Medical Center, demands that Plaintiffs Complaint be dismissed with cost to him. COUNT III SHIRLEY KAZIMER V. CARLISLE REGIONAL MEDICAL CENTER 51. The averments of paragraphs 1 through 50 of this Answer with New Matter are incorporated herein by reference as though fully set forth. 52. - 53. The averments of the corresponding paragraph of Plaintiffs Complaint contain conclusions of law to which no answer is required. If an answer is deemed required, the same are denied pursuant to Pa. R.C.P. 1029(e). By way of further answer, it is averred that, at all times material to Plaintiffs Complaint, CRMC acting through its actual and/or ostensible agents, servants and employees met the applicable standard of care. WHEREFORE, Defendant Carlisle Regional Medical Center, demands that Plaintiffs Complaint be dismissed with cost to him. COUNT IV RICHARD KAZIMER V. MANOR CARE OF CARLISLE, PA, LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA, INC., MANOR CARE, INC. HRC MANOR CARE, INC, HRC MANOR CARE LOSS OF CONSORTIUM 53. The averments of paragraphs I through 53 of this Answer with New Matter are incorporated herein by reference as though fully set forth. 54. -- 57. Denied for reasons set forth in paragraphs 42 and 52. 6 WHEREFORE, Defendant Carlisle Regional Medical Center, demands that Plaintiffs Complaint be dismissed with cost to him. NEW MATTER 58. It is believed and therefore averred that Plaintiff, Shirley Kazimer, died on or about August 10, 2010 and that her Estate must be substituted as a party to this action. 59. Answering Defendant hereby incorporates all averments of this Answer with New Matter as if fully set forth. 60. Plaintiffs Complaint fails to state a claim upon which relief can be granted against Answering Defendant. 61. At no time relevant hereto was Answering Defendant, its agents, servants, employees or otherwise acting on or behalf of any other Defendant in this action or any other natural person, partnership, corporation or other legal entity. 62. At no time relevant hereto was any other natural person, partnership, corporation or other legal entity acting or serving as an agent, servant, employee or otherwise for or on behalf of Answering Defendant. 63. At all time relevant hereto, Answering Defendant complied with the applicable medical legal standard of care. 64. Answering Defendant believes and therefore avers that evidence accumulated through discovery and provided at trial may establish Plaintiff was contributorily or comparatively negligent, and in order to protect the record, Answering Defendant hereby pleads contributory or comparative negligence as an affirmative defense. 65. Answering Defendant is entitled to relief and contribution in accordance with the Pennsylvania Comparative Negligence Act, 42 P.S. § 7102 as amended by Senate Bill 1089, effective August 14, 2002. 7 66. In the event that it is determined that Answering Defendant was negligent with regard to any of the allegations contained in, and with respect to Plaintiffs Complaint, said allegations being specifically denied, said negligence, if any, was superseded by the intervening negligent acts of other person, parties and/or organizations other than Answering Defendant and over whom Answering Defendant had no control, right, responsibility and, therefore, Answering Defendant is not liable. 67. Any acts or omissions of Answering Defendant alleged to constitute negligence were not substantial causes, factual causes, or factors contributing to the injuries and damages alleged in Plaintiffs Complaint. 68. Plaintiffs injuries and losses, if any, were not caused by the conduct or negligence of Answering Defendant but rather were caused by pre-existing medical conditions and/or causes beyond the control of Answering Defendant, and Plaintiff may not recover against them. 69. 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. 70. All claims that might have been asserted by Plaintiff including claims for medical expenses are barred by operation of the applicable statute of limitations. 71. Plaintiff s 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 SeMc ., as amended. 72. Plaintiffs claims are limited and barred by the provisions of the Medical Care Availability and Reduction of Errors (MCARE) Act, 40 P. S. § 1303.101, et M. 73. The damages alleged by Plaintiff did not result from acts or omissions of Answering Defendants, their agents, servants or employees, but, rather, from acts or omissions of persons and/or entities over whom Answering Defendant had no right of control. 8 74. Pa. R.C.P. 238 is unconstitutional on its face and as may be applied in this case. 75. Answering Defendant demands trial by jury on all issues. 76. Plaintiffs claims, the existence of which is specifically denied by Answering Defendant, may be reduced and/or limited by any collateral source of compensation and/or benefit in accordance with the Pennsylvania Supreme Court decision in Moorhead v. Crozer Chester Medical Center. WHEREFORE, Answering Defendant demands judgment in their favor and against all other parties, including interest, costs and fees, and other relief deemed appropriate by this Court. CO Dated: -t I ,W By: Craig to#e, Esquire Micha ongiello, Esquire 4200 C 4s Mill Road, Suite B Harrisb g, PA 17112 (717) 651-3500 9 VERIFICATION Linda Banks, Interim Director of Risk Management, hereby states that she is authorized to make this Verification, and verifies that the statements made in the foregoing Answer with New Matter to Plaintiff(s) Complaint are true and correct to the best of her knowledge, information and belief. The undersigned understands that the statements herein made are subject to the penalties of 18 PA. C.S. §4904 relating to the unsworn falsification to authorities. LINDA BANKS Interim Director of Risk Management Dated: Y &W 05/685724.v l CERTIFICATE OF SERVICE I, Sarah Kuhn, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, hereby certifies that a true and correct copy of the foregoing Answer with New Matter has been served upon the following known counsel and parties of record this day of April 2011, via United States First-Class Mail, postage prepaid: Robin J. Marzella, Esquire RJ Marzella & Associates, P.C. 3513 N. Front Street Harrisburg, PA 17110 Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Sarah Kuhn 05/657797.v 1 10 r °9c ?U-OFFICw r HONb T ?III PR 23MlII: PENNSYL- R. J. MARZELLA & ASSOCIATES, P.C. BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 3513 North Front Street Harrisburg, PA 17110 Telephone: (717) 234-7828 Facsimile: (717) 234-6883 Attorney for Shirley & Richard Kazimer IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY & RICHARD KAZIMER, PLAINTIFFS VS. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DOCKET NUMBER: 10-3391 CIVIL PROFESSIONAL MEDICAL NEGLIGENCE JURY TRIAL DEMANDED DEFENDANTS PLAINTIFF'S RESPONSE TO DEFENDANT, CARLISLE REGIONAL MEDICAL CENTER'S, NEW MATTER 58. Admitted. Furthermore, Plaintiff intends on substituting the Estate of Shirley Kazimer as a party to this action. 59. No response is required to this paragraph. 60. Denied. It is specifically denied that Plaintiffs have failed to state a cause of action upon which relief may be granted. By way of further response, please see Plaintiffs' factually specific Complaint. 61. Denied. It is specifically denied that at no time relevant hereto that Answering Defendant, its agents, servants, employees or other otherwise were not acting on behalf of any other Defendant in this action or any other natural person, partnership, corporation or other legal entity. 62. Denied. It is specifically denied that at no time relevant hereto that any other natural person, partnership, corporation or other legal entity acting or serving as an agent, servant, employee or otherwise for or on behalf of Answering Defendant. 63. Denied. It is specifically denied that Answering Defendant complied with the applicable medical legal standard of care. 64. This paragraph contains a conclusion of law to which no response is required. To the extent that a response is required, it is specifically denied that evidence accumulated through discovery and provided at trial may establish Plaintiff was contributorily or comparatively negligent. 65. This paragraph contains a conclusion of law to which no response is required. To the extent that a response is required, it is specifically denied that Answering Defendant is entitled to relief and contribution in accordance with the Pennsylvania Comparative Negligence Act. 66. Denied. It is specifically denied that if it is determined that Answering Defendant was negligent with regard to any of the allegations contained in, and with respect to Plaintiffs Complaint, said negligence, if any, was superseded by the intervening negligent acts of other persons, parties, and/or organizations other than Answering Defendant and over whom Answering Defendant had no control, right, responsibility and, therefore, Answering Defendant is not liable. 67. Denied. It is specifically denied that the acts or omissions of Answering Defendant alleged to constitute negligence were not substantial causes, factual causes, or factors contributing to the injuries and damages alleged in Plaintiff's Complaint. 68. Denied. It is specifically denied that Plaintiffs injuries and losses were not caused by the conduct or negligence of Answering Defendant but rather were caused by pre-existing medical conditions and/or causes beyond the control of Answering Defendant, and Plaintiff may not recover against them. 69. Denied. It is specifically denied that Plaintiffs' claims are barred by the applicable Statute of Limitations. 70. Denied. It is specifically denied that all claim that might have been asserted by Plaintiff including claims for medical expenses are barred by operation of the applicable statute of limitations. 71. Denied. It is specifically denied that Plaintiff's claims are limited and barred by Section 103, 602 and 606 of the Health Care Services Malpractice Act of 1974. 72. Denied. It is specifically denied that Plaintiffs claims are limited and barred by the provisions of the Medical Care Availability and Reduction of Errors (MCARE) Act. 73. Denied. It is specifically denied that damages alleged by Plaintiff did not result from acts or omissions of Answering Defendants, their agents, servants or employees, but, rather, from acts or omissions of person and/or entities over whom Answering Defendant had no right of control. 74. No response is required to this paragraph as it is an averment of law. 75. Admitted. 76. Denied. It is specifically denied that Plaintiffs claims may be reduced and/or limited by any collateral source or compensation and/or benefit in accordance with the Pennsylvania Supreme Court decision in Moorhead v. Crozer Chester Medical Center. WHEREFORE, Plaintiff respectfully requests this Honorable Court deny Answering Defendants demands for judgment in its favor and dismissal of Plaintiffs Complaint. Respectfully submitted, R.=rze j$?socAtes, P.C. Kobm":"IGI zel , Esquire Attorne ifcation No. 66856 Dated: /l CERTIFICATE OF SERVICE I, Jacqulyn R. Harris, hereby certify that a true and correct copy of the foregoing document was served upon counsel of record this 26th day of April, 2011, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew Foulkrod, Esquire Darlene King, Esq. Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendant Guistwite Craig Stone, Esquire MDWCG 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant CRMC ManorCare 940 Walnut Bottom Road Carlisle, PA 17015 R. J. MARZELLA & ASSOCIATES, P.C. BY: JAC ULYN H IS, W CLERK BURNS WHITE LLC By: William J. Mundy, Esquire Identification No. 57679 By: John M. Skrocki, Esquire Identification No. 49071 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 Shirley and Richard Kazimer, Plaintiffs, V. Manor Care of Carlisle PA, LLC, Manor Healthcare Corp., Manorcare Health Services Carlisle, Health Care and Reiterement Corporation of America, Manor Care of America, Inc., Manor Care, Inc., HCR Manor Care, Inc., HCR Manor Care, Carlisle Regional Medical Center, Darryl K. Guistwite, D.O., Defendants. Attorneys for Defendants, Manor Care of Carlisle PA, LLC, Manor Healthcare Corp., Manorcare Health Services Carlisle, Health Care and Retirement Corporation of America, Manor Care of America, Inc., Manor Care, Inc., HCR Manor Care, Inc., and HCR Manor Care COURT OF COMMON PIcyAS M- , OF CUMBERLAND COUI Yom: , y+ rn co r_.? rn ? M F r_w - No 10-3391 _ . v7? Vic:. Jury Trial Demanded-' i= a PRELIMINARY OBJECTIONS OF THE MANOR CARE DEFENDANTS, MANOR CARE OF CARLISLE PA, LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA, INC., MANOR CARE, INC., HCR MANOR CARE, INC, AND HCR MANOR CARE TO PLAINTIFF'S COMPLAINT Defendants, Manor Care of Carlisle PA, LLC, Manor Healthcare Corp., Manorcare Health Services Carlisle, Health Care and Retirement Corporation of America, Manor Care of America, Inc., Manor Care, Inc., HCR Manor Care, Inc, and HCR Manor Care, (hereinafter as "the ManorCare Defendants"), by and through their counsel, Burns White LLC, hereby file these Preliminary Objections to the Complaint of Plaintiff and aver as follows: I. FACTUAL AND PROCEDURAL BACKGROUND 1. This matter was commenced by a Complaint filed on or about November 3, 2010 in the Court of Common Pleas of Cumberland County. A true and correct copy of Plaintiff s Complaint is attached hereto as Exhibit "A." 2. The Certificates of Merit was thereafter filed on or about March 28, 2011. 3. The undersigned entered his appearance for the Manor Care defendants on May 9, 2011. 4. On May 12, 2011, the undersigned sent a letter to plaintiffs counsel enclosing a copy of a signed arbitration agreement pertaining to Ms. Kazimer's admission to Manor Care. Exhibit "B" is the letter, the arbitration agreement, and the certified mail receipt, indicating service of these documents on counsel for the plaintiff. The letter set forth a demand on the part of the Manor Care entities for arbitration pursuant to the agreement. 5. To date, counsel for the plaintiff has not responded to the demand for arbitration. 6. Plaintiffs Complaint sets forth professional liability negligence claims as to the ManorCare - Carlisle facility. Although the chronology with the complaint is unclear, according to the Complaint, Shirley Kazimer was a resident at the Manor Care facility from `early' February 2008 through April 4, 2008, and from April 11, 2008 until May 26, 2008, and sustained worsening of pressure ulcers, and a left thigh injury during a transfer onto a bedpan. 7. The ManorCare Defendants file these Preliminary Objections on the grounds that the plaintiff and ManorCare entered into a binding arbitration agreement (Exhibit `B"). A. MOTION TO ENFORCE BASED ON A BINDING ARBITRATION AGREEMENT 8. This dispute is subject to the attached arbitration agreement. 9. Pennsylvania Rule of Civil Procedure 1028(a)(6) permits a preliminary objection on the basis of "pendency of a prior action or agreement for alternative dispute resolution." 10. When a party seeks to compel arbitration, the trial court's inquiry is limited to determining whether a valid arbitration agreement was entered into, and, if so, whether the dispute in question is within the scope of the arbitration provision. H.L. Libby Corp. v. Skelly and Loy Inc., 910 F. Supp. 195, 199 (1995), citing PBS Coal Inc. v. Hardhat Mining Inc., 429 Pa.Super. 371, 377, 632 A.2d 903, 905 (1993). 11. "A written agreement to subject any existing controversy to arbitration or a provision in a written agreement to arbitrate any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity relating to the validity, enforceability or revocation of any contract." 42 Pa. C.S.A. § 7303. 12. Pennsylvania Courts strongly favor the settlement of disputes via arbitration. Smith v. Cumberland Group, Ltd., 687 A.2d 1167, 1171 (Pa. Super. 1997). Moreover, "when parties agree to arbitration in a clear and unmistakable manner, the court will make every reasonable effort to favor such agreements." Id. [quotation omitted]. 13. In the instant matter, Plaintiff, Richard Kazimer signed the Arbitration Agreement at the time of Shirley Kazimer's admission to Manor Care. A true and correct copy of the Arbitration Agreement is attached as part of Exhibit "B." 14. The Arbitration Agreement contains a mandatory arbitration provision as follows: "Any and all claims... between the Facility and the Resident arising out of... the Resident's stay and care at the Facility... shall be submitted to final and binding arbitration." Id. 15. The mandatory arbitration provision requires Plaintiff to submit the claims which are the subject of her Complaint, exclusively to arbitration. See Exhibit "B." 16. Since there is a valid, enforceable arbitration agreement that was executed by the parties, and such arbitration agreement requires the parties to submit disputes to a dispute resolution procedure, this Court should order the plaintiffs claims as to Manor Care to be submitted to such private arbitration. WHEREFORE, the Manor Care Defendants respectfully request that this Honorable Court uphold the "Arbitration Agreement," and refer the plaintiffs claims as to Manor Care to arbitration. BURNS WHITE LLC BY: WI J. MUNDY, ESQUIRE JO KROCKI, ESQUIRE Attorneys for the Manor Care Defendants Dated: ?p BURNS WHITE LLC By: William J. Mundy, Esquire Identification No. 57679 By: John M. Skrocki, Esquire Identification No. 49071 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 Shirley and Richard Kazimer, Plaintiffs, V. Manor Care of Carlisle PA, LLC, Manor Healthcare Corp., Manorcare Health Services Carlisle, Health Care and Reiterement Corporation of America, Manor Care of America, Inc., Manor Care, Inc., HCR Manor Care, Inc., HCR Manor Care, Carlisle Regional Medical Center, Darryl K. Guistwite, D.O., Defendants. Attorneys for Defendants, Manor Care of Carlisle PA, LLC, Manor Healthcare Corp., Manorcare Health Services Carlisle, Health Care and Retirement Corporation of America, Manor Care of America, Inc., Manor Care, Inc., HCR Manor Care, Inc., and HCR Manor Care : COURT OF COMMON PLEAS OF CUMBERLAND COUNTY : No. 10-3391 Jury Trial Demanded MEMORANDUM OF LAW IN SUPPORT OF THE PRELIMINARY OBJECTIONS OF THE MANOR CARE DEFENDANTS TO PLAINTIFF'S COMPLAINT 1. FACTUAL AND PROCEDURAL HISTORY This matter was commenced by on or around November 3, 2010 in the Court of Common Pleas of Cumberland County. The Plaintiffs Complaint is attached hereto as Exhibit "A." The Certificate of Merit was later filed on or about March 28, 2011. The undersigned was assigned to represent Manor Care on or about May 9, 2011. Plaintiff's counsel graciously allowed the undersigned some time to gather and review the file before filing a responsive pleading. The undersigned determined that there was assigned arbitration agreement applicable to the Manor Care admission at issue, and on May 12, 2011, sent plaintiffs counsel a copy of the arbitration agreement, and a demand to proceed under the agreement. To date, plaintiff s counsel has yet to respond to the demand for arbitration. The ManorCare defendants file these Preliminary Objections on the grounds that Plaintiffs claims against Manor Care should be submitted to alternative dispute resolution pursuant to the attached Arbitration Agreement. II. STATEMENT OF QUESTION PRESENTED A. SHOULD THE ARBITRATION AGREEMENT SIGNED BY THE PLAINTIFF AND MANOR CARE BE ENFORCED. Suggested Answer: Yes. III. LAW AND ARGUMENTS A. MOTION TO ENFORCE ARBITRATION AGREEMENT Pennsylvania Rule of Civil Procedure 1028(a)(6) permits a preliminary objection on the basis of "pendency of a prior action or agreement for alternative dispute resolution." When a party seeks to compel arbitration, the trial court's inquiry is limited to determining whether a valid arbitration agreement was entered into, and, if so, whether the dispute in question is within the scope of the arbitration provision. H.L. Libby Corp. v. Skelly and Low, 910 F. Supp. 195, 199 (1995), citing PBS Coal Inc. v. Hardhat Mining Inc., 429 Pa.Super. 371, 377, 632 A.2d 903, 905 (1993). "A written agreement to subject any existing controversy to arbitration or a provision in a written agreement to arbitrate any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity relating to the validity, enforceability or revocation of any contract." 42 Pa. C.S.A. § 7303. In the instant matter, Plaintiff signed an Arbitration Agreement at the time of Shirley Kazimer's admission to Manor Care. The Arbitration Agreement contains a mandatory arbitration provision as follows: "Any and all claims... between the Facility and the Resident arising out of... the Resident's stay and care at the Facility... shall be submitted to final and binding arbitration." See Exhibit "B." The mandatory arbitration provision requires Plaintiff and Manor Care to submit disputes to alternative dispute resolution, as set forth in the Arbitration Agreement itself. The arbitration agreement is valid and enforceable. Accordingly, Objecting Defendants respectfully request that this Honorable Court uphold the "Arbitration Agreement," and refer plaintiff's claims against Manor Care to private arbitration. BURNS WHITE LLC BY: ? IV [/-- WILL J. MUNDY, ESQUIRE JOH SKROCKI, ESQUIRE Attorneys for the ManorCare Defendants Dated: ?0 CERTIFICATE OF SERVICE I John M. Skrocki, Esquire, hereby certify that I am this day serving a copy of the foregoing Preliminary Objections of Manor Care Defendants to Plaintiffs Complaint upon the person(s) and in the manner indicated below which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110-1438 Andrew Foulkrod, Esquire Darline King, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Craig Stone, Esquire MDWCG 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 BURNS WHITE Date: C` J ?YhhB?? i i (?r V ;: FILED-OFFICE OF THE PROTHONOTARY 201.010 -3 AM 11: 15 R.J. MARZELLA&ASSOCIATES, P.C. CUMBERLAND COUNTY BY: RoBIN J, MARZELLA, EsquiRE P E N iI S Y LVA Ii I A PA SUPREME CouRT I.D. No. 3513 NoRTH PRoNT STREET ATTORNEYS FOR PLAINmFF HARRISBURG, PA 17110.1438 SHIRLEY & RICHARD KAzIMER TELEPHONE: (717) 234.7828 FACSIMILE: (717) 234-6883 EMAIL RRMAIt W A(O RIMAR7F IA.MM IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY & RICHARD KAZIMER, PLAINTIFFS VS. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, : CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. , GUISTWITE, D.O. DEFENDANTS DOCK E7 NUMBER: 10-3391-CIVIL PROFESSIONAL MEDICAL NEGLIGENCE JURY TRIAL DEMANDED COMPLAINT 1. Shirley Kazimer and Richard Kazimer are adult individuals and all relevant times herein resided at 519 Shippensburg Road, Cumberland County, Pennsylvania. 2. Defendant, Manor Care of Carlisle PA LLC, Manor Healthcare Corp., Manor Care Health Services Carlisle, Health Care Retirement Corporation of America, Manor Care of America Inc., Manor Care, Inc., HCR Manor Care, Inc., HCR Manor Care, (Hereinafter Defendant Manor Care) is/are corporation(s) duly authorized to conduct business in Cumberland County, Pennsylvania with the principal place of business located at 940 Walnut Bottom Road, Cumberland County, Carlisle, Pennsylvania. 1 3. The Defendant, Carlisle Regional Medical Center, (hereinafter Defendant CRMC) is a corporation and hospital duly licensed under the laws of the Commonwealth of Pennsylvania with a principal place of business at 361 Alexander Spring Road, Cumberland County, Carlisle, Pennsylvania. 4. Danyl K. Guistwite, D.O. (hereinafter "Defendant Guistwite") was a licensed physician practicing general internal medicine at 940 Walnut Bottom Road, Cumberland County, Carlisle, Pennsylvania. S. At all relevant times herein, all physicians, interns, residents, emergency room staff, radiologists, and/or other medical support staff Who provided care and treatment to Mrs. Kazimer from April of 2008 through July of 2008 were the agents, apparent agents, servants and/or employees of Defendant CRMC and were acting within the course and scope of employment when providing professional medical services to Shirley Kaziimer. 6. At all relevant times herein, Defendant Guistwite, all physicians, 'Interns, residents, nurses, nurses aids, and/or other medical support staff who provided care and treatment to Mrs. Kazimer from April of 2008 through July of 2008 were the agents, apparent agents, servants and/or employees of Defendant Manor Care and were acting within the course and scope of employment when providing professional medical services to Shirley Kazimer. 7. In early February of 2008, Shirley Kazimer was admitted to Defendant Manor Care following a recent hospitalization for multiple medical problems including transverse myelitis, atrial fibrillation, diabetes mellitus with concomitant end stage kidney disease and morbid obesity. 8. Upon admission to Defendant Manor Care, it was clear that Mrs. Kazimer required pressure relief measures to prevent/minimize the risk of developing bed ulcers. 9. Mrs. Kazimer's multiple medical conditions, her ensuing treatment and laboratory values at Defendant Manor Care put her at increased risk, or demonstrated that she was at increased risk for the development of pressure ulcers and/or decubiti. 2 10. In addition, due to the past medical history and her immobility, the Defendants knew or should have known that Mrs. Kazimers bones would be prone to fracture. 11. While a resident at Manorcare, Mrs. Kazimer was bedridden and required full assistance to move or turn in her bed. 12. Due to the end stage kidney disease, Mrs. Kazimer required dialysis three times a week. 13. To facilitate the aforementioned, Mrs. Kazimer was transported via ambulance to the dialysis center three times per week. 14. Upon information and belief as detailed below, additional measures required by the applicable standard of care with regard to treatment and/or prevention of pressure ulcers and/or decubiti were not timely and appropriately considered, ordered and/or initiated during Mrs. Kazimer's stay at Defendant Manor Care, thus causing the formation and/or worsening of a left hip ulcer and the other ulcers. 15. On or about April 4, 2008, while being transported back from the dialysis center, Mrs. Kazimer sustained a severe laceration to her left leg. 16. She was transported to Defendant, Carlisle Regional Medical Center, for care and treatment of the wound. 17. Mrs, Kazimer was hospitalized at Defendant, Carlisle Regional Medical Center from April 4°i through April 11, 2008 due to the severity of the injury and the resulting medical complications that ensued. 18. Thereafter, she was transferred back to Manorcare where she remained until May 26, 2008. 19. Upon re-admission, an appropriate risk assessment of Mrs. Kazimer's body and skin was not timely and properly performed. 19. During this time period, the patient was not properly and timely turned and/or repositioned at regular intervals to minimize the risk of developing a pressure (sore. 3 20. Adaptive equipment was not timely and properly employed to minimize the risk of developing a pressure sore. 21. During this time period, the nurses and aids failed to properly monitor Mrs. Kazimer for signs of skin break down or deterioration. 22. Consequently, a large pressure ulcer began to form on her left hip and a second ulcer began to form on her abdomen. 23. The attending physician, Defendant Cuistwite, and/or the other physicians, and residents caring for Mrs. Kazimer failed to identify the developing ulcers and failed to order appropriate pressure relief and medical treatment to stop the progression of the ulcers. 24. Late in the evening on May 24, 2008, Mrs. Kazimer was being helped onto a bedpan by a nurse, nurse's aid, an agent, apparent agent, servant and/or employee of Defendant Manor Care. 25. During the aforementioned assist, the agent, servant and/or employee aggressively twisted and/or manipulated Mrs. Kazimer's leg at the knee area causing a femoral fracture of her left thigh. 26. Mrs. Kazimer immediately cried out in pain, but no treatment and/or evaluation was performed that evening. 27. The following day, Mrs, Kazimer was in severe pain and reported the same to the staff at Manorcare. 28. The following afternoon, she was transferred back to Defendant, CRMC for evaluation of her left leg pain. 29. X-rays revealed a displaced distal femur fracture on the left. 30. A consult was obtained from an orthopedic surgeon and after discussion of the risks and benefits of operative versus non-operative management, it was decided that surgery to repair the fracture was too risky. 31. Consequently, non-surgical management was undertaken which included an immobilizer. 4 32. In addition to the fractured femur, the staff at Defendant CRMC discovered multiple bedsores, the largest on her hip could not be staged due to its large size. 33. The wounds required immediate debridement and the patient was placed on antibiotics because of infection. 34. After the fracture was stabilized and the pressure sores were no longer infected, Mrs. Kazimer was again transferred back to Defendant Manor Care. 35. Over approximately the next 6 weeks, Mrs. Kazimer required constant care at the wound care center for the ulcer on her hip. 36. With appropriate care and treatment, the wound care staff was able to close the wound. 37. On or about July 9, 2008, Mrs. Kazimer was again taken to Defendant Carlisle regional Medical Center due to complications from multiple medical problems. 38. While attempting to move Mrs. Kazimer, an agent, apparent agent, servant and/or employee inappropriately twisted Mrs. Kazimer's right leg causing a second femur fracture. 39. Again, due to Mrs. Kazimer's health and the location of the fracture, conservative management was recommended. 40. Defendants are jointly and severally liable for the injuries and damages claimed herein. 41. As a direct and proximal result of this negligence of the Defendants described above and detailed below, Shirley Kazimer suffered serious injury, including a left hip ulcer, a left femoral fracture, and/or a right femoral fracture and a claim is made therefore. 42. As a direct and proximal result of the negligence of the Defendants, Plaintiff has incurred significant medical expenses and will continue to incur such expenses in the future and a claim is made therefore. 43. As a direct and proximal result of the negligence of the Defendants as described herein, Mrs. Kazimer has experienced extreme pain and suffering, extensive 5 and permanent scarring and disfigurement, embarrassment, humiliation and loss of the enjoyment of life's pleasures and will continue to suffer such losses in the future for all of which damages are claimed. 44. The negligence of the Defendants increased the risk that Plaintiff would suffer serious injury and was a substantial factor in causing the damages listed above. COUNT I- 45. The allegations contained in paragraphs 1 through 44 of the Complaint are incorporated herein by reference as If set forth at length. 46. Defendant Manor Care, et al acting through it's agents, `apparent agents, servants and/or employees is liable for the negligent medical care and treatment rendered to Shirley Kazimer by: (a) failing to timely order or obtain an appropriate pressure relief mattress or other pressure relief measures for the patient; (b) failing to ensure the prompt utilization of an appropriate mattress or other pressure relief measures for the patient; (c) failing to timely order and/or utilize a specialty bed for the patient; (d) failing to order a metabolic study for the patient; (e) failing to ensure the timely performance of a metabolic study for the patient; 6 (0 failing to follow the recommendations of the physicians and/or other consultants pertaining to. the care and treatment of the patient with respect to the prevention and/or treatment of pressure ulcers; (g) failing to timely and appropriately consult with specialists pertaining to the pressure ulcer; (h) failing to appropriately treat the pressure ulcer so as to stop the progression or promote healing; (i) failing to timely and properly culture the pressure ulcers; 0) failing to perform timely and thorough skin checks of the patient; (k) failing to ensure the timely and thorough skin checks of the patient; (1) failing to order or administer the appropriate antibiotic creams, slaves, dressings, or other medicines to treat the developing ulcers and/or resulting infection. (m) failing to properly turn or position the patient to prevent the formation or progression of pressure ulcers; (n) failing to order or institute orders regarding the proper turning or positioning of patients to prevent the formation or progression of pressure ulcers; (o) failing to perform sufficient or adequate examinations of the patient with regard to pressure ulcers; (p) failing to accurately and timely communicate to the appropriate healthcare providers the condition of the patient and/or the pressure ulcer; (q) failing to accurately and thoroughly document the condition of the patient and/or the pressure ulcer and the treatment rendered; (r) failing to timely and properly monitor the pressure ulcer (s) failing to appropriately treat the pressure ulcer so as to stop it's progression and promote healing; 7 (t) failing to timely refer Mrs. Kazimer to or consult with an appropriate specialist to evaluate and treat the pressure ulcer sustained by the patient; (u) failing to timely or properly institute the recommendations of the specialist and/or consultants with respect to the treatment of the pressure ulcer; (v) Failing to timely perform a nutritional assessment; (w) Failing to use appropriate medical devises such as pillows or wedges to minimize pressure on certain areas, like hips, etc. (x) Failing to perform and re-perform a pressure ulcer risk assessment; (y) Failing to clean and moisturize the patient's skin appropriately to minimize the risk of pressure ulcers; (z) failing to properly and appropriately assist the patient onto the bedpan; (aa) failing to summon the assistance of other individuals to aid in assisting Mrs. Kazimer to the bedpan; (bb) inappropriately twisting Mrs. Kazimer's left leg causing a femur fracture; (cc) exerting excess force on Mrs. Kazimer's leg when assisting her on the bedpan; (dd) Failing to employ mechanical lifting equipment to safely assist Mrs. Kazimer to the bedpan; (ee) failing to take the patient for immediate evaluation and treatment following the fracture that occurred on or about May 24, 2008. 47. The negligence of Defendants increased the risk and was a substantial factor in causing the injuries and harm to Mrs. Kazimer as alleged above which allegations are incorporated herein as if fully set forth at length. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of $50,000.00 together with interest and costs thereon as allowed by law. 8 COUNT 11 - SHIRM KAZIMER VS. DARRYL K. GUIS'PA TE. D.O. 48. The allegations contained in paragraphs 1 through 40 and Count I of the Complaint are incorporated herein by reference as if set forth at length. 49. Defendant Darryl K, Guistwite, D.O. is liable for the negligent medical care and treatment rendered to Shirley Kazimer by: (a) failing to timely order or obtain an appropriate pressure relief mattress or other pressure relief measures for the patient; (b) failing to ensure the prompt utilization of an appropriate mattress or other pressure relief measures for the patient; (c) failing to timely order and/or utilize a specialty bed for the patient; (d) failing to order a metabolic study for the patient; (e) failing to ensure the timely performance of a metabolic study for the patient; (f) failing to follow the recommendations of the physicians and/or other consultants pertaining to the care and treatment of the patient with respect to the prevention and/or treatment of pressure ulcers; (g) failing to timely and appropriately consult with specialists pertaining to the pressure ulcer; (h) failing to appropriately treat the pressure ulcer so as to stop the progression or promote healing; (i) failing to timely and properly culture the pressure ulcers; 0) failing to perform timely and thorough skin checks of the patient; (k) failing to ensure the timely and thorough skin checks of the patient; 9 (1) failing to order or administer the appropriate antibiotic creams, slaves, dressings, or other medicines to treat the developing ulcers and/or resulting infection. (m) failing to properly turn or position the patient to prevent the formation or progression of pressure ulcers; (n) failing to order or institute orders regarding the proper turning or positioning of patients to prevent the formation or progression of pressure ulcers; (o) failing to perform sufficient or adequate examinations of the patient with regard to pressure ulcers; (p) failing to accurately and timely communicate to the appropriate healthcare providers the condition of the patient and/or the pressure ulcer; (q) failing to accurately and thoroughly document the condition of the patient and/or the pressure ulcer and the treatment rendered; (r) failing to timely and properly monitor the pressure ulcer (s) failing to appropriately treat the pressure ulcer so as to stop it's progression and promote healing; (t) failing to timely refer Mrs. Kazimer to or consult with an appropriate specialist to evaluate and treat the pressure ulcer sustained by the patient; (u) failing to timely or properly institute the recommendations of the specialist and/or consultants with respect to the treatment of the pressure ulcer; (vi) Failing to timely perform a nutritional assessment; (w) Failing to use appropriate medical devises such as pillows or wedges to minimize pressure on certain areas, like hips, etc. (x) Failing to perform and re-perform a pressure ulcer risk assessment; (y) Failing to clean and moisturize the patient's skin appropriately to minimize the risk of pressure ulcers; 10 (z) failing to properly and appropriately assist the patient onto the bedpan; (aa) failing to summon the assistance of other individuals to aid in assisting Mrs. Kazimer to the bedpan; (bb) inappropriately twisting Mrs. Kazimer's left leg causing a femur fracture; (cc) exerting excess force on Mrs. Kazimer's leg when assisting her on the bedpan; (dd) Failing to employ mechanical lifting equipment to safely assist Mrs. Kazimer to the bedpan; (ee) failing to take the patient for immediate evaluation and treatment following the fracture that occurred on or about May 24, 2008. 50. The negligence of Defendants increased the risk and was a substantial factor in causing the injuries and harm to Mrs. Kazimer as alleged above which allegations are incorporated herein as if fully set forth at length, WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of $50,000.00 together with interest and costs thereon as allowed by law. COUNT III - SHIRLU KAZIMER M CARLISLE REGIONAL MEDICAL CENTER 51. The allegations contained in paragraphs 1 through 44 of the Complaint are incorporated herein by reference as if set forth at length. 52. Defendant Carlisle Regional Medical Center acting through it's agents, apparent agents, servants and/or employees is liable for the negligent medical care and treatment rendered to Shirley Kazimer by: 11 (a) failing to properly, appropriately and safely assist the patient in repositioning; (b) failing to summon the assistance of other individuals to assist in moving Mrs. Kazimer; (c) inappropriately twisting Mrs. Kazimer's right leg causing a femur/hip fracture; (d) exerting excess force on Mrs. Kazimer's right leg causing a femur/hip fracture; (e) Failing to employ mechanical lifting equipment to safely assist Mrs. Kazimer in repositioning; 53. The negligence of Defendants increased the risk and was a substantial factor in causing the injuries and harm to Mrs. Kazimer as alleged above which allegations are Incorporated herein as if fully set forth at length. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of $50,000.00 together with interest and costs thereon as allowed by law. COUNT N RICHARD KAZIMER VS.; LOSS OF CONSORTIUM 54. Paragraphs 1 through 44 and Counts I through III are incorporated herein by reference as if fully set forth at length. 12 55. Defendants Manor Care, Darryl K. Guistwite, D.O. and Carlisle Regional Medical jointly and severally liable to Plaintiff Richard Kazimer For damages as set forth herein. 56. By reason of the aforesaid injuries sustained by his wife, Plaintiff Richard Kazimer was forced to incur liability for medical treatment, medicines and similar miscellaneous expenses in an effort to restore his wife to health and because of the nature of her condition, he will be forced to incur similar miscellaneous expenses in the future and a claim is made therefore, 57. By reason of the aforesaid injuries sustained by his wife, Plaintiff Richard Kazimer, has been, and in the future will be deprived of the assistance, companionship, consortium, and sod ety of his wife, all of which has been and will continue to be to his great damage and loss and a claim is made therefore. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of $50,000.00 together with interest and costs thereon as allowed by law. Respectfully submitted, DATED: i'll-.1,11116 13 FILED-OFFICE OF TH RARY 2011 MAR 28 PM 4 ? I 0 R J. MARZELLA & ASSOCIATES, P.C. BY R J M CUMBERLAND COUNTY : OBIN . ARZELLA, ESQUIRE PENNSYLVANIA PA SUPREME COURT I.D. NO. 3513 NORTH FRONT STREET ATTORNEYS FOR PLAINTIFF HARRISBURG, PA 17110-1438 SHIRLEY & RICHARD KAZIMER TELEPHONE: (717) 234-7828 FACSIMILE: (717) 234-6883 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY & RICHARD KAZIMER, PLAINTIFFS VS. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DOCKET NUMBER: 10-3391-CIVIL PROFESSIONAL MEDICAL NEGLIGENCE DEFENDANTS JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO CARLISLE REGIONAL MEDICAL CENTER FOR VICARIOUS LIABILITY I, Robin J. Marzella, Esquire, attorney for Plaintiffs, Shirley & Richard Kazimer, hereby, certify that: O an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR the claim that the defendant deviated from an acceptable professional standard is also based solely on allegations that other licensed professionals for whom the defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. OR ? expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. 2 Respectfully submitted, Dated:( /'Oah/ sociates, P.C. 3. squire Attorney Identification No. 66856 3513 North Front Street Harrisburg, PA 17110 (717) 234-7828 Attorneys for Plaintiff, Shirley & Richard Kazimer r CERTIFICATE OF SERVICE I, Catherine Nguyen, hereby certify that a true and correct copy of the foregoing document was served upon counsel of record this 28th day of March, 2011, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew Foulkrod, Esquire Darlene King, Esq. Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendant Guistwite Craig Stone, Esquire MDWCG 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant CRMC ManorCare 940 Walnut Bottom Road Carlisle, PA 17015 R. J. MARZELLA & ASSOCIATES, P.C. . -27 BY: CATHERINE NGUYE t,'6 / T i ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: c? ?o?`c ,? ,(J(o?r?.l ley C? C? ??-l a PA- 7 116-1 A. Signatu X ? Agent ? Addre B. Re ived by (Printed Name) 1?' Date of D'eIli (6. N D. Is delivery address different from item 1? ? Yes If YES, enter delivery address below: ? No 3. Service Type Certified mail ? Express Mail ? Registered ? Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number 7010 3090 0001 6363 6474 , (7)ans/erfnm?sen*91a6ef) -- - ---- Ps Form 3811, February 2004 Domestic Retum Receipt 102595-02-M-1540 ft ATTORNEYS AT LAW loo Four Falls, Suite 515 iooi Conshohocken State Road West Conshohocken, PA 19428 t: 484.567.5700 f: 484.567.5701 w: www.burnswhite.com John M.Skrocki Attorney-at-Law (484) 567-5715 jmslcrocki@burnswhite.com May 12, 2011 - i F i. 1 k f 3 3 { 1 i 1 1 I ' Via U.S. First Class Mail and Certified Mail Return Receipt Requested Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110-1438 Re: Kazimer v. Manor Care of Carlisle, et al. Our File No. 10996-197647 Dear Ms. Marzella: Thank you for your courtesy in allowing additional time for me to review the file and file an appropriate responsive pleading. In reviewing the matter, I have become aware of a signed Arbitration Agreement pertaining to Ms. Kazimer's admission. I enclose a copy of that Agreement for your review. Please allow this letter to serve as a demand on the part of the Manor Care entities for arbitration pursuant this Agreement. Please contact me to discuss, once you have had a chance to review the matter. Thank you. JMS:maa Enclosure Very truly yours, John M. Skrocki Burns White A Limited Liability Company May 10 2011 1:34PM ,., CRRLISE MRIM 7172490647 p.4 This agreement sets forth a dispute resolution procedure by which the parties intend to resolve all s which may arise between them concerning the Resident's stay in the Facility. The procedure is d to be a speedy and eoonomic alternative to court litigation which is often slow, time-consuming pensive. By using private arbitration without the right to appeal, the parties are able to avoid .d court dockets and lengthy appellate procedures. Further, the stream-lined discovery procedures the parties to reduce overall costs and expenses while maintaining the opportunity to develop all nt facts. . The Resident acknowledges that he/she voluntarily enters into this agreement and to be bound by the terms and conditions stated herein. AGREEMENT CONTAINS A WAIVER OF STATUTORY RIGHTS. PLEASE READ CAREFULLY A. ARBPTRATIUN PROVLSIONS 1.1 Any and all claims or controversies between the Facility and the Resident arising out of or in any way related to or connected to the Resident's stay and care at the Facility, including, but not limited to, disputes regarding alleged personal injury to the Resident caused by improper or inadequate care, allegations of medical malpractice, and interpretation of this Agreement, whether arising out of State or Federal law, and whether based upon statutory duties, breach of contract, tort theories or other legal theories under Pennsylvania law, including provisions relating to the Resident's rights under Pennsylvania law, or a claim for unpaid musing home or related charges, shall be submitted to final and binding arbitration. Except as expressly set forth herein, the provisions of the Pennsylvania Uniform Arbitration Act, 42 Pa_ Cons. Stat. § 7301, et. seg., shall govern the arbitration. Each party hereby waives its right to file a court action for any matter covered by this Agreement. v 1.2 Demand for Arbitration shall be made in writing and be submitted to the other party to this Agreement via certified mail, return receipt requested; the party submitting the Demand for Arbitration is referred to as the "Submitting Party"; the party opposing the Demand for Arbitration is referred to as the "Opposing Party". The term "Facility" refers to ManorCare Carlisle. its corporate owners, agents, employees, administrators and licensees, and all affiliates thereof. The term "Resident" means Shirley A Kazimer and includes any legal representative, family member, agent, executor, guardian, power of attorney or any other person acting for, on behalf of or through Shirley A Kazimer. 1.3_ The arbitration proceedings shall take place in 111 t '° County, Pennsylvania. May 10 2011 1:35PM CARLISE MAIN 7172490647 P•5 .1.4 The' arbitration panel shall be composed of one (1) arbitrator. Subject to the requirements of Section 1.5 herein, the parties shall agree upon an arbitrator who must either be a retired Pennsylvania civil circuit court or federal judge or a member of the Pennsylvania Bar with at least ten 10 years of experience as an attorney. If the parties cannot reach an agreement on an arbitrator within 30 days of receipt of the demand for arbitration, then the selection of an arbitrator shall be submitted to the American Arbitration Association ("AAA"), but the arbitrator selected through AAA must still be a retired Pennsylvania state or federal judge or a member of the Pennsylvania Bar with at least 10 years of experience practicing as an attorney. 1.5 The arbitrator shall be independent of all parties, witnesses, and legal counsel, and no officer, director, affiliate, subsidiary,' or employee of a party, witness, or legal counsel may serve as an arbitrator in the proceeding. 1.6 Discovery in the arbitration proceeding shall be governed by the Pennsylvania Rules of Civil Procedure. However, discovery shall be limited to the following methods: (1) if the Submitting Party is a Resident, the Resident shall provide the Facility with all of the following documents within 30 days after Demand for Arbitration is submitted (and Facility shall reimburse Resident .25¢ per copy): (a) all nursing home, assisted living facility, hospital, physician, psychiatric, psychological and/or Department of Children and Families or ombudsmen records regarding the Resident and within Resident's possession or control, and concerning the time period of the Resident's stay at the Facility and the ten (10) years prior and after. (b) a list of all nursing homes, assisted living facilities, hospitals, clinics, and physicians or other health we providers that have provided care or treatment to the Resident including an executed Medical Authorization allowing Facility to obtain copies of all such records, at Facility's expense (Facility shall provide Resident with copies of all such records upon receipt of written request from resident, but Resident must reimburse Facility .25¢ per page); (c) resident's birth certificate; (d) resident's death certificate; (e) resident's autopsy report; (fl documentation regarding any a.nd all medical expenses which the Resident claims were incurred due to the legal fault of the Facility; 2 Mau 10 2011 1:3GPM CRRLISE MRIN 71724SOG47 p-6 -ftlfdiiig`tlie' which were taken or recorded during the Resident's stay at the Facility; (h) all records, memos, outlines, diaries, letters, etc_ drafted by the Resident during the Resident's stay at the Facility or drafted by the Resident's family or friends if such document concerns in any fashion the Resident's stay at the Facility; (i) any sworn recorded statements to be relied upon at the arbitration hearing and including the full name, title, address and phone number of the person making the sworn statement; and 0) proof of authority to act on behalf of the Resident. (2) Facility shall provide the following to the Resident within 30 days after the Demand for Arbitration is received (and Resident shall reimburse Facility 25¢ per copy): (a) the Facility's chart regarding the Resident; (b) the Facility's business office file regarding the Resident; (c) any 24 Hour Reports/ "Supervisors Daily Reports" regarding the Resident; (d) any photographs taken of the Resident while at the Facility; (e) any sworn recorded 'statements to be relied upon at the arbitration hearing and including the full name, title, address and phone number of the person. making the sworn statement; (3) The Submitting party shall designate expert witnesses, if any, within 65 days after Demand for Arbitration is submitted; . (4) The Opposing Party shall have thirty (30) days after expect designation is received in which to depose such expert; (5) The Opposing Party shall designate experts, if any, within 105 days after Demand for Arbitration is submitted; (6) The Submitting Party shall have thirty (30) days after the Opposing party's expert designation is received in which to depose such experts; (7) any report or affidavit of an expert, and a list of all. records contained in the expert's file, must be exchanged no later than ten (10) working days before the date of the expert's deposition; 3 May 10 2011 1_36PM CRRLISE MAIN 7172490647 P.7 11 -•':.r.. ? - °?G'?.t?y?Y.l?LiVU?dIIU VYW 5?411UG ??f G7L?+lL? ?.Ll??????g?::: •::..' :: ... . physicians. No other individuals may be deposed. Each deposition shall be limited to six (6) hours per witness; (9) the following shall be exchanged no later than fourteen (14) working days before the arbitration hearing: (a) list of witnesses to be called at the hearing (frill name, title, address and phone number if known) and an outline of each witnesses' intended testimony; (b) list of documents to be relied upon at hearing; (c) any sworn recorded statements to be relied upon at hearing including the frill name, title, address and phone number of the statement's declarant; (10) The arbitration hearing shall be held no later than 180 days after Demand for Arbitration is submitted. 1.7 The arbitrator shall designate a time and place within Cumberland County, Pennsylvania for the final arbitration hearing and shall provide 30 days' notice to the parties of the final hearing. 1.8 The arbitrator shall apply the Pennsylvania Rules of Evidence and Pennsylvania Rules of Civil Procedure in the arbitration proceeding except where otherwise stated in this Agreement. Also, the arbitrator shall apply, and the arbitration award shall be, consistent with, Pennsylvania law except as otherwise stated in this Agreement. 1.9 The • arbitration award shall be made and delivered in accordance with Section 7310 of the Pennsylvania Uniform Arbitration Act, and shall be delivered to the- parties -and their counsel no later than thirty (30) days following the conclusion of the arbitration. The award shall set forth in detail the arbitrator's findings of fact and conclusions of law. 2.0 The arbitrator's award shall be final and binding without the right of appeal except as may be provided under Pennsylvania law. 2.1 The arbitrator's fees and costs associated with the arbitration shall be paid by the Facility except in the case of a dispute involving non-payment of Facility charges. If the dispute involves non-payment of charges, the arbitrator's fees and costs associated with the arbitration will be divided equally between the parties. The parties shall bear their own attorney's fees and costs and hereby expressly waive any statutory right to recover attorney-fees or costs. ?' 4 May 10 2011 1:37PM CARLISE MRIN 7172490647 P.B --_.-_-_ -- -------Iu------._- -_---------- --------_--- b "ti proceeding in all respects, including all arbitration filings, depositions, deposition transcripts, documents produced or obtained in discovery, or other materials provided by and exchanged between the parties and the arbitrator's award, findings of fact and conclusions of law. In addition, following receipt of the arbitrator's award, each party agrees to return to the producing party within 30 days the original documents exchanged in discovery and at the arbitration hearing. . 2.3 All claims based in whole or in part on the same incident, transaction, or related course of care or services provided by the Facility to the Resident, shall be arbitrated in one proceeding. A claim shall be waived and forever barred if it arose prior to the date upon which notice of arbitration is given to the Facility or received by the Resident, and is not presented in the arbitration proceeding. 2.4 The Limitation of Liability Provision below is incorporated by reference into this Arbitration Agreement May 10 2011 1:37PM CARLISE MAIN 7172490647 p-9 B. LIIVIITATION OF LIABILITY PROVISION: Read Carefully Before Signing. 1.1 The parties to this Agreement understand that the purpose of this "Limitation of Liability Provision" is to limit, in advance, each party's liability in relation to this Agreement. 1.2 Liability for any claim brought by a party to this Agreement against the other party, including but not limited to a claim by the Facility for unpaid nursing home charges, or a claim by a Resident, arising out of the care or treatment received by the Resident at the Facility, including, without limitation, claims for medical negligence or violation(s) of Pennsylvania Code et. seq., arising from simple or gross negligence, shall be limited as follows: 1. Net economic damages shall be awardable, including, but not limited to, past and future medical expenses, off set by any collateral source payments; any outstanding liens shall be satisfied from the damages awarded. 2. Non-economic damages shall be limited to a maxindum of $250,000. 3. Interest on unpaid nursing home charges shall not be awarded. 4. Punitive damages shall not be awarded. The parties hereto each acknowledge that these limitations of liability are fair and reasonable under the circumstances. C. WITHDRAWAL PERIOD Each party shall have three (3) business days from the execution of this agreement to cancel the agreement by notifying the other party in writing, by certified mail return receipt requested, of its desire to cancel. D. ACKNOWLEDGEMENTS Li This Agreement constitutes the entire Agreement between the ties •hereto with. respect to the subject matter of this Agreement and supersedes any or understandings, agreements, or representations by or among the parties, written oral. 1.2 It is the intention of the Facility and the Resident that this . bitration Agreement shall inure to the benefit of and bind the Facility, its parents, Mates, and subsidiary companies, owners, officers, directors, employees, successors, signs, agents and insurers; and the Resident, his/her successors, assigns, agents, 6 +Ma? 10 2011 1:38PM CHRLISE MAIN 7172490647 p.10 - - - ---- - n- - - -- - - -- - -- - --- --- -- --- - -- - - -- --- --- - --- - "' rdyd.' fit mutor of his or her estate; and his/her successors, assigns, agents, insurers, heirs, stees, and representatives. 1.3 This Arbitration Agreement is intended to be enforceable to the permitted by law, and shall only be limited to the extent that it is expressly ited or limited under applicable federal, state or local law. 1.4 In the event that any portion of the Arbitration Agreement is :ermined to be invalid or unenforceable, the remainder of this Arbitration Agreement 1 be deemed to continue to be binding upon the parties hereto in the same manner if the invalid or unenforceable provision were not a part of the Arbitration 194 A(<-fo8 Faciltty Representative /Date Duly Authorized esident, Guaz ate Other Legal Representative PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court CAPTION OF CASE (entire caption must be stated in full) Shirley and Richard Kazimer, Plaintiffs, DOCKET NO.: 10-3391 V. Manor Care of Carlisle PA, LLC, Manor Healthcare Corp., Jury Trial Demanded Manorcare Health Services Carlisle, Health Care and Retirement Corporation of America, Manor Care of America, Inc., Manor Care, Inc., HCR Manor Care, Inc., HCR Manor Care, Carlisle Regional Medical Center, Darryl K. Guistwite, D.O., ' Defendants. 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Manor Care Defendants to Plaintiffs Com plaint -, 2. Identify counsel who will argue case: MI M (a) for plaintiffs: ;zm c Robin J. Marzella, Esq. Phone: 717-234-7828 r ?°r7l R.J. Marzella & Assoc., P.C. `"' W +> 3 513 North Front Street '? ?, c= Harrisburg, PA 17110-1438 C7 i - e Counsel for Plaintiffs - s (b) for defendants: `'" John M. Skrocki, Esquire Phone: 484-567-5700 Burns, White LLC 100 Four Falls, Suite 515, 1001 Conshohocken State Road West Conshohocken, PA 19428 Counsel for ManorCare Defendants 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument court date: u-? y Sig Date: June 8, 2011 John M. Skrocki, Esquire Print your name ManorCare Defendants Attorney for Manor Care Defendants INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to the argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. CERTIFICATE OF SERVICE I, John M. Skrocki, Esquire, hereby certify that on this date, a true and correct copy of the foregoing Praecipe for Listing Case for Argument on Defendant's Preliminary Objections, with accompanying copy of Preliminary Objections was served by United States First-Class Mail, postage prepaid, as follows: Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110-1438 Andrew Foulkrod, Esquire Darline King, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Craig Stone, Esquire MDWCG 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: 2 W_" ,; (' R. J. MARZELLA & ASSOCIATES, P.C. BY: ROBIN J. MARZELLA, Esquire Pennsylvania Supreme Court I.D. No. 66856 3513 North Front Street Harrisburg, PA. 17110 Email: cmarsar(a4rimarzella Attorneys for Plaintiffs, Telephone: (717) 234-7828 Shirley Kazimer and Facsimile: (7171234 6883 Richard Kazimer IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY & RICHARD KAZIMER, PLAINTIFFS VS. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS DOCKET NUMBER: 10-3391-CIVIL PROFESSIONAL MEDICAL : NEGLIGENCE • c-? nM JURY TRIAL DEMANDED r.,, ter. -ia ?J PLAINTIFF'S MOTION TO SUBSTITUTE PLAINTIFF IN ACCORDANCE WITH Pa. R.C.P. 2352 AND NOW, Plaintiff, Richard Kazimer, by and through his attorneys, R.J. Marzella & Associates, files this Motion for Leave to Amend the Complaint and avers the following: 1. On or about November 3, 2010 Plaintiffs, Shirley and Richard Kazimer, filed a Complaint in the above-captioned matter. 2. Since that time, Plaintiff Shirley Kazimer has passed away. 3:05-cv-136 .,.d t , 7Fri r 3. Because of Shirley Kazimer's passing Plaintiff Richard Kazimer would like to remove Mrs. Kazimer from the list of plaintiffs in this case. 4. Plaintiff would like to substitute Richard Kazimer individually and as Administrator for Shirley Kazimer. 5. This motion/issue has not been previously ruled on by any other judge. 6. Plaintiffs' counsel has obtained concurrence for this instant motion from Defendants' Counsel. WHEREFORE, Plaintiff, Richard Kazimer, respectfully requests this Honorable Court grant leave to Amend the Complaint. Respectfully Submitted, R. J. Marzella & Associates, P.C. By: Ro 1 a, Esquire I.D. No. 66 Attorneys for the Plaintiff Date: 3:05-cv-136 /0-334/ Na Tam CERTIFICATE OF SERVICE I, Denise Buell, hereby certify that a true and correct copy of Plaintiff's Motion for Leave to Amend the Complaint was served upon counsel of record this 14th day of June, 2011, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew Foulkrod, Esquire Darlene King, Esq. Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendant Guistwite Craig Stone, Esquire MDWCG 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant CRMC r_ L c CrJ ?N rT o? _.q1 R. J. MARZELLA & ASSOCIATES, P.C. By:-0?Qmjr,jg M -??k - 10 0? ENISE $UELL, LA CLERK TO ROBIN J. MARZELLA, EsQuIRE 10- R. J. MARZELLA & ASSOCIATES, P.C. BY: Robin J. Marzella, Esquire zcampbell@rjmarzella.com Pennsylvania Supreme Court I.D. No. 66856 3513 North Front Street Harrisburg, Pennsylvania 17110 Attorneys for Plaintiffs, Telephone: (717) 234-7828 Shirley Kazimer and Facsimile: (7171234-6883 Richard Kazimer IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY & RICHARD KAZIMER, PLAINTIFFS VS. DOCKET NUMBER: 10-3391-CIVIL PROFESSIONAL MEDICAL NEGLIGENCE MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS c? Cri JURY TRIAL DEMANDED RJ C 'ZI v F?3 F6 ?s aw NOTICE OF DEATH PURSUANT TO Pa. R.C.P. 2355 To the Prothonotary of Cumberland County: This is a notification of the death of Shirley Kazimer, a party to the above action, during the pendency of this action is noted upon the record. Dated: _ -" Respectfully submitted, R. J. Marzella & Associates, P.C. By. Attorney Identification No. 66856 R.J. Marzella and Associates 3513 North Front Street Harrisburg, PA 17110 Civil 97-6684 f0-33Q? - 0,;,. !er*- CERTIFICATE OF SERVICE I, Denise Buell, hereby certify that a true and correct copy of the Notice of Death was served upon counsel of record this 14th day of June, 2011, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: rn c Andrew Foulkrod, Esquire M Darlene King, Esq. -, -' Foulkrod Ellis ` 4000 Market Street ' Camp Hill, PA 17011 Attorneys for Defendant Guistwite Craig Stone, Esquire MDWCG 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant CRMC R. J. MARZELLA & ASSOCIATES, P.C. 1 BY: ? QAUtj?n WO I?fNISE BUELL, LA CLERK TO ROBIN J. MARZELLA, ESQUIRE „ FILED-OFFICE OF THE PROTHONOTAR 2D1! JUN 28 PM 3: C' R.J. MARZELLA&ASSOCIATES, P.C. cUMSERL AND COUNTY BY: ROBINJ. MARZELLA, ESQUIRE PENN5YLVANt A PA SUPREME COURT I.D. No. 66856 3513 NORTH FRONT STREET ATTORNEYS FOR PLAINTIFF HARRISBURG, PA 17110-1438 RICHARD KAZIMER AS TELEPHONE: (717) 234-7828 ADMINISTRATOR FOR FACSIMILE: (717) 234-6883 SHIRLEY KAZIMER EMAIL: RRMARZELLACu7RIMARZELLA COM IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RICHARD KAZIMER INDIVIDUALLY DOCKET NUMBER: 10-3391 -CIVIL AND AS ADMINISTRATOR FOR THE ESTATE OF SHIRLEY KAZIMER, DECESASED PLAINTIFF VS. PROFESSIONAL MEDICAL NEGLIGENCE MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO PRELIMINARY OBJECTIONS OF THE MANOR CARE DEFENDANTS, MANOR CARE OF CARLISLE PA, LLC, MANOR HEALTHCARE CORP., MANOR CARE HEALTH SERVICES CARLISLE, HEALTH CARE, AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA, INC., MANOR CARE, INC., HCR MANOR CARE, INC., AND HCR MANOR CARE TO PLAINTIFF'S COMPLAINT COMES NOW, Plaintiff, Richard Kazimer, Individually and as Administrator for the Estate of Shirley Kazimer, deceased, by and through his counsel, R J. Marzella & Associates, and files this Response to Preliminary Objections of the Manor Care Defendants, Manor Care of Carlisle Pa, LLC, Manor Healthcare Corp., Manor Care Health Services Carlisle, Health Care, and Retirement Corporation of America, Manor Care of America, Inc., Manor Care, Inc., HCR Manor Care, Inc., and HCR Manor Care to Plaintiff's Complaint, as follows: 1. Denied. Plaintiff's commenced by filing a Writ of Summons on or about May 21, 2010. Defendants were served with the Writ of Summons on May 28, 2010. The Complaint was filed on or about November 3, 2010. Defendants were served with the Complaint on or about November 3, 2010. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part and denied in part. Admitted that the ManorCare Defendants filed Preliminary Objections. Denied that Plaintiff and the ManorCare Defendants entered into a binding arbitration agreement. 8. This paragraph contains a conclusion of law to which no response is required. To the extent that a response is required, it is specifically denied that this dispute is subject to the attached arbitration agreement. 9. This paragraph contains a conclusion of law to which no response is required. 10. This paragraph contains a conclusion of law to which no response is required. 11. This paragraph contains a conclusion of law to which no response is required. 2 12. This paragraph contains a conclusion of law to which no response is required. 13. This paragraph contains a conclusion of law to which no response is required. To the extent that a response is required, it is specifically denied that there exists a valid, enforceable arbitration agreement that was executed by the parties. WHEREFORE, Plaintiff respectfully requests the ManorCare Defendant's Preliminary Objections to Plaintiffs Complaint be denied. NEW MATTER 14. Plaintiff commenced suit by filing a Writ of Summons in the Court of Common Pleas of Cumberland County on or about May 21, 2010. 15. Defendants were served with the Writ of Summons on May 28, 2010. 16. The Complaint was filed on or about November 3, 2010. 17. The ManorCare Defendant's were served with the Complaint on or about November 3, 2010. 18. Pursuant to 231 Pa. Code § 1026, in relevant part, "every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading." 19. Based on the service date of on or about November 3, 2010, Defendant ManorCare's Preliminary Objections to Plaintiffs Complaint were due to this Honorable Court no later than on or about November 23, 2010. 20. However, seven months after they were due, Defendant ManorCare's Preliminary Objections to Plaintiff s Complaint were filed on June 9, 2011. 21. The ManorCare Defendants have provided no reasoning as to the cause of the delay in filing. 22. Plaintiff has expended a great deal of time and money in discovery with the numerous other defendants in preparation of litigation. WHEREFORE, Plaintiff respectfully requests the ManorCare Defendant's Preliminary Objections to Plaintiffs Complaint be dismissed as being untimely filed. Respectfully submitted, BY; DATED: [2-7 11, 4 R. J. MARZELLA & ASSOCIATES, P.C. R.J. MARZELLA & ASSOCIATES, P.C. BY: ROBIN J. MARZELLA, ESQUIRE PA SUPREME COURT I.D. No. 66856 3513 NORTH FRONT STREET ATTORNEYS FOR PLAINTIFF HARRISBURG, PA 17110-1438 RICHARD KAzIMER AS TELEPHONE: (717) 234-7828 ADMINISTRATOR FOR FAcsIMII.E: (717) 234-6883 SHIRLEY KAZIMER EMAIL: RRMARZELLA@RIMA TEL A COM IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RICHARD KAZIMER INDIVIDUALLY AND AS ADMINISTRATOR FOR THE ESTATE OF SHIRLEY KAZIMER, DECESASED PLAINTIFF vs. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS DOCKET NUMBER: 10-3391-CIVIL PROFESSIONAL MEDICAL NEGLIGENCE JURY TRIAL DEMANDED PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO PRELIMINARY OBJECTIONS OF THE MANOR CARE DEFENDANTS, MANOR CARE OF CARLISLE PA, LLC, MANOR HEALTHCARE CORP., MANOR CARE HEALTH SERVICES CARLISLE, HEALTH CARE, AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA, INC., MANOR CARE, INC., HCR MANOR CARE, INC., AND HCR MANOR CARE TO PLAINTIFF'S COMPLAINT Plaintiff, Richard Kazimer, Individually and as Administrator for the Estate of Shirley Kazimer, deceased, by and through his counsel, R .J. Marzella & Associates, files I the within Memorandum of Law in Opposition of the Preliminary Objections of the Manor Care Defendants, Manor Care of Carlisle Pa, LLC, Manor Healthcare Corp., Manor Care Health Services Carlisle, Health Care, and Retirement Corporation of America, Manor Care of America, Inc., Manor Care, Inc., HCR Manor Care, Inc., and HCR Manor Care to Plaintiffs Complaint, as follows: 1. Matter Before the Court Preliminary Objections of the Manor Care Defendants, Manor Care of Carlisle Pa, LLC, Manor Healthcare Corp., Manor Care Health Services Carlisle, Health Care, and Retirement Corporation of America, Manor Care of America, Inc., Manor Care, Inc., HCR Manor Care, Inc., and HCR Manor Care to Plaintiffs Complaint and Plaintiff's Answer and New Matter with Memorandum of Law in Opposition. 2. Factual and Procedural Background This matter was commenced by filing a Writ of Summons on or about May 21, 2010 in the Court of Common Pleas of Cumberland County. A Complaint was filed on or about November 10, 2010 with service being completed via US Mail on or about November 10, 2010 The Certificate of Merit was filed on or about May 9, 2011. Defense counsel entered their appearance on or about May 5, 2011 and subsequently corresponded with Plaintiffs counsel informing them that an arbitration agreement had been signed and was applicable in this matter and made a demand for arbitration accordingly. Plaintiff did not respond to such demand as the arbitration agreement was not signed by Shirley Kazimer, but was rather signed by her husband, Richard Kazimer. Plaintiff objects to Defendant ManorCare's Preliminary Objections for three I reasons. First, Defendant ManorCare's Preliminary Objections were untimely filed. Second, and in the alternative, Plaintiff objects to the Defendant's Preliminary Objections on the grounds that the arbitration agreement in non-binding on Shirley Kazimer since 2 her husband signed it without legal authority to act on her behalf. Third, and in the alternative, if the Court finds Richard Kazimer did have the authority to sign on behalf of Shirley Kazimer, Plaintiff objects to the arbitration agreement as the agreement is a contract of adhesion and is therefore invalid and unenforceable. 3. Questions Presented A. When a pleading filed subsequent to service of the Complaint is due within twenty (20) days of said service, but is not filed until nearly seven (7) months after service, should be the pleading be striken as untimely filed? a. Yes. B. When a Plaintiff is not incapacitated, is an arbitration agreement signed by an individual other than the Plaintiff unenforceable when the individual who signed it was not the legal guardian, agent or legal representative of the Plaintiff? b. Yes. C. When an arbitration agreement is unilaterally drafted and permits no negotiation between the parties and limits the legal recourse of the weaker party is the arbitration agreement a contract of adhesion and therefore invalid and unenforceable? c. Yes. 4. Ar ument A. Defendant ManorCare's Preliminary Objections are untimely as they were due no later than twenty (20) days after service of the Complaint but were not filed until seven months after service of the Complaint. In deciding to extend the twenty (20) day filing of a pleading upon service of the Complaint, the decision is within the court's discretion and the court may use such discretion to strike the preliminary objections if untimely filed. Francisco v. Ford Motor 3 Co., et al., 397 Pa. Super. 430, 434, 580 A.2d 374, 376 (1990) citing Joyce v. Safeguard Mut. Ins. Co., 362 Pa. Super 522, 524 A.2d 1362 (1987) (citing Pa.R.C.P. 1017(b)(2)). "[Plaintiffs] need not establish prejudice in order to prevail; the burden is on the defendant to provide a basis for the untimely motion." McCullough v. Clark, 2001 Pa. Super. 275, 764 A.2d 156, 158 (2001) citing Francisco v. Ford Motor Co.. et al., 397 Pa. Super. 430, 580 A.2d 374, 378 (1990). In the instant case, the burden sits with Defendant ManorCare to provide adequate reasoning for delay in filing the Preliminary Objections. Since no adequate reasoning for Defendant's delay has been provided, this Honorable Court should use it's discretion to strike Defendant ManorCare's Preliminary Objections as being untimely filed. Alternatively, if this Honorable Court uses its discretion to extend the twenty (20) day pleading requirement and in effect requires Plaintiff to show prejudice of the acceptance of the untimely Preliminary Objections, the Plaintiff has in fact been prejudiced. Since service of process of the Complaint on Defendant ManorCare on or about November 23, 2010, Plaintiff has been continuously conducting and completing discovery with the numerous other defendants in this matter. As such, Plaintiff has spent a great deal of time and money in preparing for litigation. To permit Defendant ManorCare to file Preliminary Objections some seven (7) months after they were initially due would be extremely prejudicial in that the time and money expended by Plaintiff, and arguably the remaining defendants, would be of great loss to all those involved. B. Shirley Kazimer was not incapacitated at the time of her admission to Manor Care and as such had never had another individual appointed as her legal guardian, agent or legal representative and therefore Richard Kazimer's signature on the Arbitration Agreement is non-binding on Shirley Kazimer. There is ample authority to for the proposition that where an agent does not 4 have authority to bind a party to an arbitration agreement, or where the party otherwise does not sign the agreement, the party cannot be bound by its terms. See Volt Info. Sciences. Inc. v. Board of Trustees, 489 U.S. 468, 478, 109 S.Ct. 1248, 1255, 103 L.Ed.2d 488 (1989); Par-Knit Mills, Inc. v. Stockbrindge Fabrics Co., 636 F.2d 51 (3d Cir. 1980); Ferrari v. First Options. Inc., 623 F. Supp. 427 (E.D. Pa. 1985). The "first principle" of arbitration is that "a party cannot be required to submit [to arbitration] any dispute which he has not agreed to submit." Sandvik AB v. Advent International Corp., 220 F.3d 99, 105-09 (3d Cir. 2000). In determining whether an agent relationship exists, the law in Pennsylvania is clear. The three basic elements of agency are: " `the manifestation by the principal that the agent shall act for him, the agent's acceptance of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking.' " Basile v. H&R Block. Inc., 563 Pa. 359, 367, 761 A.2d 1115, 1120 citing Scott v. Purcell, 490 Pa. 109, 117, 415 A.2d 56, 60 (1980), quoting Restatement (Second) of Agency § 1, Comment b (1958). "Apparent authority exists where a principal, by words or conduct, leads people with whom the alleged agent deals to believe that he principal has granted the agent the authority he or she purports to exercise." Triage v. Prime Insurance Syndicate, Inc.,887 A.2d 303, 307 (Pa. Super. 2005) citing_ oyner v. Harleysville Ins. Co., 574 A.2d 664, 667 (Pa. Super. 1990). "The burden of establishing that an agency relationship rests with the party asserting the relationship." Basile v. H&R Block. Inc., 563 Pa. 359, 367-68, 761 A.2d 1115, 1120 citing Scott v. Purcell, 490 Pa. 109, 117, 415 A.2d 56, 60 (1980). When a husband executed an arbitration agreement on behalf of his wife who had suffered a stroke and was incapacitated and had no memory recall, the court held I that "the existence of an agency relationship does not arise from the marital relationship 5 itself. Neither husband nor wife, by virtue of this relationship, has the power to act as agent for the other." See Bradney v. Sakelson, 473 A.2d 189, 191 (Pa. Super. 1984) and cases cited therein. Defendants cannot simply aver that since Richard Kazimer executed the Arbitration Agreement he had the proper authority to do so. Unlike in Bradnev, where the resident was incapacitated, Shirley Kazimer was not incapacitated. Upon her admittance to Manor Care, she was of sound mind and fully capable of making decisions. There is no evidence to suggest that Richard Kazimer was given the authority to sign the Arbitration Agreement and waive Shirley Kazimer's right to a jury trial. Richard Kazimer was never appointed through Court Order to be Shirley Kazimer's legal Guardian or legal representative. Furthermore, there is no evidence to suggest that Manor Care was operating under the assumption Shirley Kazimer had granted authority to Richard Kazimer to act on her behalf when executing the arbitration agreement. As stated in Bradnev, the spousal relationship is not enough to create an agent relationship. Without further words or actions that would lead a reasonable third party to believe Richard Kazimer was entitled to act on behalf of Shirley Kazimer, the execution of the arbitration agreement by Richard Kaizmer is non-binding on Shirley Kazimer. C. The arbitration agreement is a contract of adhesion and therefore unenforceable because Richard Kazimer was not given the ability to amend the contents of the arbitration agreement and the contents of the arbitration agreement create unfairly prejudicial limitations to the arbitration. An arbitration agreement may be set aside for "generally recognized contract defenses such as duress, illegality, fraud and unconscionability." Lytle v. Citifinancial Services, Inc., 810 A.2d 643, 656 (Pa. Super. 2002). Further, in describing a contract of adhesion, the Courts have stated that: 6 Under such a contract, the parties are usually not of equal bargaining power and the weaker party must adhere to the terms of a form contract which are not negotiable. In other words, its terms are not bargained for but rather dictated...Not every such contract is unconscionable. Once a contract is deemed to be one of adhesion, its terms must be analyzed to determine whether the contract as a whole, or specific provision of it are unconscionable. Todd Heller. Inc. v. United Parcel Service Inc., 754 A.2d 689, 700 (Pa. Super. 2000). See also, Huegel v. Mifflin Construction Co. Inc., 796 A.2d 350, 357 (Pa. Super. 2002). In the present case, the arbitration agreement fits this definition. The arbitration agreement is a form contract prepared by Manor Care unilaterally prior to even consulting with Richard or Shirley Kazimer with Shirley's name typed into blank spaces. Richard and Shirley Kazimer are clearly the weaker party because this is their first experience in entering into an assisted-living center whereas Manor Care has experience with admitting patients to their center on a regular basis and it is more probable than not that this arbitration agreement was contained among numerous other paperwork required to have Shirley Kazimer admitted to Manor Care. Richard Kazimer was in a weaker bargaining position and had no meaningful choice as to the contents of the arbitration agreement. A contract of adhesion is not ipso facto unenforeceable. It is unenforceable only to the extent that it is found to be unconscionable. Lytle v. Citifinancial Services Inc., 810 A.2d 643 (Pa. Super. 2002). "Once a contract is deemed to be one of adhesion, its terms must be analyzed to determine whether the contract as a whole, or specific provisions of it, are unconscionable." Denlinger, Inc. v. Dendler, 608 A.2d 1061, 1067 (Pa. Super. 1992). Pennsylvania courts have adopted a two-prong test to determine if a contract is unconscionable. The court must determine that: (1) the contractual terms unreasonably favor the drafter, and (2) there was no meaningful choice on the part of the other party regarding acceptance of the provisions. Todd Heller. Inc. 754 A.2d at 701; Huegel 796 A.2d at 357. In the instant case, the two prong test is satisfied and thus the contract is unconscionable. The first prong is satisfied because the arbitration agreement unreasonably favors Manor Care. The arbitration agreement denies the right to a jury trial as well as the ability to appeal. Furthermore, section 1.6(8) of the arbitration agreement states "the only depositions allowed shall be of experts and any treating physician." By only permitting experts and treating physicians to be deposed, Richard and Shirley Kazimer are forced to forfeit their most valuable witnesses - themselves. If Manor Care is provided the opportunity to depose the treating physician's about the treatment that was given, Richard and Shirley Kazimer should be able to testify as to the treatment that was received. 'The second prong is satisfied because Richard Kazimer had no meaningful choice as to the contents of the arbitration agreement. The arbitration agreement was a requirement of Shirley Kazimer being admitted into the care of Manor Care and therefore Richard Kazimer was left with no meaningful choice but to sign the arbitration agreement as a condition of Shirley Kazimer's treatment. Richard Kazimer never contemplated that his wife would be treated with such carelessness as to create terrible ulcers on her hip and abdomen and would suffer, at the hands of those he entrusted with her care, two broken femurs while being assisted in moving or using a bedpan. Accordingly, both prongs of the test have been satisfactorily met. As such, the contract should be found to be a contract of adhesion as it is unconscionable and should therefore be held invalid and unenforceable. 5. Relief Plaintiff respectfully requests that this Honorable Court deny Defendant's Preliminary Objections of the Manor Care Defendants, Manor Care of Carlisle Pa, LLC, Manor Healthcare Corp., Manor Care Health Services Carlisle, Health Care, and Retirement Corporation of America, Manor Care of America, Inc., Manor Care, Inc., HCR Manor Care, Inc., and HCR Manor Care to Plaintiffs Complaint and permit Plaintiff the right to proceed to a jury trial in this matter. Respectfully submitted, R. J. MARZELLA & ASSOCIATES, P.C. BY: A , E UIRE ID No. 668 DATED: C? CERTIFICATE OF SERVICE I, Jacqulyn R. Harris, hereby certify that a true and correct copy of the foregoing document, Plaintiffs Response To Preliminary Objections Of The Manor Care Defendants, Manor Care Of Carlisle PA, LLC, Manor Healthcare Corp., Manor Care Health Services Carlisle, Health Care, And Retirement Corporation Of America, Manor Care Of America, Inc., Manor Care, Inc., HCR Manor Care, Inc., and HCR Manor Care To Plaintiffs Complaint and Memorandum of Law in Opposition thereof, was served upon counsel of record this 28`h day of June, 2011, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew Foulkrod, Esquire Darline King, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 John K. Skrocki, Esquire William J. Mundy, Esquire 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 Craig Stone, Esquire MDWCG 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 R. J. MARZELLA & ASSOCIATES, P.C. -k ??4?c BY: JAC ?ULYN AR FOULKROD ELLIS PROFESSIONAL CORPORATION Andrew H. Foulkrod, Esquire Attorney I.D. #77394 Darlene K. King, Esquire Attorney I.D. #75898 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 r r-,- ( E O HONOTAnY ..IUMBERLAND COUNTY PENNSYLVANIA Attorneys for Defendants, Darryl K. Guistwite, D.O. SHIKLEY KAZIMER and her husband RICHARD KAZIMER, Plaintiffs V. MANOR CARE OF CARLISLE, PA LLC; MANOR HEALTHCARE CORP.; MANORCARE HEALTH SERVICES CARLISLE; HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA; MANOR CARE OF AMERICA INC.; MANOR CARE INC.; HCR MANOR CARE INC.; HCR MANOR CARE; CARLISLE REGIONAL MEDICAL CENTER; DARRYL K. GUISTWITE, D.O. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. CV-10-3391 JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Shirley Kazimer and her husband Richard Kazimer, Plaintiffs c/o Robin J. Marzella, Esquire R. J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 YOU ARE HEREBY NOTIFIED to plead to the attached NEW MATTER OF DEFENDANT, DARRYL K. GUISTWITE, D.O., within twenty (20) days from service hereof, or a default judgment may be entered against you. Respectfully submitted, Date: FOULKROD ELLIS Professional Corporation By: 6tA-'1 &-`"111 Andrew H. Foulkrod, Esquir Court I.D. No. 77394 Darlene K. King, Esquire Court I.D. No. 75898 FOULKROD ELLIS PROFESSIONAL CORPORATION Andrew H. Foulkrod, Esquire Attorney I.D. #77394 Darlene K. King, Esquire Attorney I.D. #75898 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 torneys for Defendant, Darryl K. Guistwite, D.O. SHIRLEY KAZIMER and her husband IN THE COURT OF COMMON PLEAS OF RICHARD KAZIMER, CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. CIVIL ACTION - LAW MANOR CARE OF CARLISLE, PA LLC; MANOR HEALTHCARE CORP.; MANORCARE HEALTH SERVICES NO. CV-10-3391 CARLISLE; HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA; MANOR CARE OF AMERICA INC.; MANOR CARE INC.; HCR MANOR CARE INC.; HCR MANOR CARE; JURY TRIAL DEMANDED CARLISLE REGIONAL MEDICAL CENTER; DARRYL K. GUISTWITE, D.O. Defendants ANSWER AND NEW MATTER OF DEFENDANT DARRYL K. GUISTWITE, D.O. TO PLAINTIFFS' COMPLAINT AND NOW comes Defendant, Darryl K. Guistwite, D.O. (hereinafter "Dr. Guistwite" or "Answering Defendant"), by and through his counsel, Foulkrod Ellis, P.C., and hereby files this Answer with New Matter to Plaintiffs' Complaint as follows: Denied. After reasonable investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiffs' Complaint; therefore, the averments are denied and strict proof thereof is demanded at trial. Furthermore, it is believed that Plaintiff, Shirley Kazimer, died on August 10, 2010. Plaintiffs filed a Notice of Death and Motion to Substitute Richard Kazimer as administrator on June 17, 2011. 2. - 3. Denied. After reasonable investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraphs of Plaintiffs' Complaint; therefore, the averments are denied and strict proof thereof is demanded at trial. 4. Admitted. Specifically, it is admitted that Dr. Guistwite is a licensed physician, and is board certified in family practice. 5. Denied. At no time relevant hereto was Dr. Guistwite an employee of Defendant CRMC (Carlisle Regional Medical Center). The remaining allegations, including the allegation that Dr. Guistwite was acting as an agent, apparent agent, servant and/or employee of Defendant CRMC (Carlisle Regional Medical Center), are denied as conclusions of law to which no responsive pleading is required. 6. Denied. At no time relevant hereto was Dr. Guistwite an employee of Defendant Manor Care. The allegations that Dr. Guistwite was acting as an agent, apparent agent, servant and/or employee of Defendant Manor Care are denied as conclusions of law to which no responsive pleading is required. 7. - 44. Denied. The corresponding averments of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. No. 1029(e) and/or as conclusions of law to which no responsive pleading 2 is required. By way of further answer, all allegations of negligence directed toward Dr. Guistwite are specifically denied. To the contrary, at all relevant times, Dr. Guistwite met or exceeded the standard of care and at no time caused or contributed to the injuries alleged. Further, Plaintiff, Shirley Kazimer died on August 10, 2010, therefore, all allegations concerning future damages are specifically denied. COUNT I- SHIRLEY KAZIMER VS. MANOR CARE OF CARLISLE PA LLC MANOR HEALTHCARE CORP. MANORCARE HEALTH SERVICES CARLISLE HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA MANOR CARE OF AMERICA INC. MANOR CARE INC., HRC MANOR CARE, INC HRC MANOR CARE 45. Answering Defendant incorporates by reference the responses to the allegations contained in paragraphs 1 through 44 of Plaintiffs' Complaint as though fully set forth herein at length. 46. (a. - ee.) Denied. The corresponding paragraphs are directed to defendants other than Answering Defendant; therefore, Answering Defendant has been advised by counsel that no response is necessary. To the extent a response is required, the corresponding averments of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. No. 1029(e) and/or as conclusions of law to which no responsive pleading is required. Strict proof thereof is demanded at trial. By way of further response, all allegations of negligence directed toward Answering Defendant, Dr. Guistwite, are specifically denied. To the contrary, at all relevant times, Answering Defendant met or exceeded the standard of care and at no time caused or contributed to the injuries alleged. By way of further response, Answering Defendant specifically denies that Dr. Guistwite was acting by and through any unidentified agents, servants, employees and/or ostensible agents, and strict proof thereof is demanded. 3 47. Denied. The corresponding averments of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. No. 1029(e) and/or as conclusions of law to which no responsive pleading is required. WHEREFORE, Answering Defendant demands judgment in his favor and against Plaintiffs and that Plaintiffs' Complaint be dismissed with prejudice. COUNT II SHIRLEY KAZIMER VS. DARRYL K. GUISTWITE, D.O. 48. Answering Defendant incorporates by reference the responses to the allegations contained in paragraphs 1 through 47 of Plaintiffs' Complaint as though fully set forth herein at length. 49. (a) - (ee) Denied. The corresponding averments of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. No. 1029(e) and/or as conclusions of law to which no responsive pleading is required. By way of further answer, all allegations of negligence directed toward Dr. Guistwite are specifically denied. To the contrary, at all relevant times, Dr. Guistwite met or exceeded the standard of care and at no time caused or contributed to the injuries alleged. By way of further response, Answering Defendant specifically denies that Dr. Guistwite was acting by and through any nurses, technicians or other hospital or nursing home staff or any other unidentified agents, servants, employees and/or ostensible agents, and strict proof thereof is demanded. 50. Denied. The corresponding averments of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. No. 1029(e) and/or as conclusions of law to which no responsive pleading is required. 4 WHEREFORE, Answering Defendant demands judgment in his favor and against Plaintiffs and that Plaintiffs' Complaint be dismissed with prejudice. COUNT III SHIRLEY KAZIMER VS. CARLISLE REGIONAL MEDICAL CENTER 51. Answering Defendant incorporates by reference the responses to the allegations contained in paragraphs 1 through 50 of Plaintiffs' Complaint as though fully set forth herein at length. 52. (a) - (e) Denied. The corresponding paragraphs are directed to a defendant other than Answering Defendant; therefore, Answering Defendant has been advised by counsel that no response is necessary. To the extent a response is required, the corresponding averments of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. No. 1029(e) and/or as conclusions of law to which no responsive pleading is required. Strict proof thereof is demanded at trial. By way of further response, all allegations of negligence directed toward Answering Defendant, Dr. Guistwite, are specifically denied. To the contrary, at all relevant times, Answering Defendant met or exceeded the standard of care and at no time caused or contributed to the injuries alleged. By way of further response, Answering Defendant specifically denies that Dr. Guistwite was acting by and through any unidentified agents, servants, employees and/or ostensible agents, and strict proof thereof is demanded. 53. Denied. The corresponding averments of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. No. 1029(e) and/or as conclusions of law to which no responsive pleading is required. 5 WHEREFORE, Defendant, Darryl K. Guistwite, D.O, demands judgment in his favor and against Plaintiffs and that Plaintiffs' Complaint be dismissed with prejudice. COUNT IV RICHARD KAZIMER VS. MANOR CARE OF CARLISLE, PA, LLC, MANOR HEALTHCARE CORP, MANORCARE HEALTH SERVICES CARLISLE HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA MANOR CARE OF AMERICA INC. MANOR CARE INC., HRC MANOR CARE, INC. HRC MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D O LOSS OF CONSORTIUM 54. Answering Defendant incorporates by reference the responses to the allegations contained in paragraphs 1 through 53 of Plaintiffs' Complaint as though fully set forth herein at length. 55. - 57. Denied. The corresponding averments of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. No. 1029(e) and/or as conclusions of law to which no responsive pleading is required. By way of further answer, all allegations of negligence directed toward Dr. Guistwite are specifically denied. To the contrary, at all relevant times, Dr. Guistwite met or exceeded the standard of care and at no time caused or contributed to the injuries alleged. Further Shirley Kazimer died on August 10, 2010, therefore, all allegations concerning future damages are specifically denied. WHEREFORE, Defendant, Darryl K. Guistwite, D.O. demands judgment in his favor and against Plaintiffs and that Plaintiffs' Complaint be dismissed with prejudice. NEW MATTER 76. The facts set forth in the foregoing Answers to Plaintiffs' Complaint are hereby incorporated by reference as though fully set forth herein at length. 6 77. Plaintiffs' claims may be barred, in whole or in part, by the applicable statute of limitations. 78. Plaintiffs' claims may be barred, in whole or in part, by the doctrines of comparative negligence and assumption of the risk. 79. Plaintiffs' and decedent's injuries, if any, are the result of circumstances beyond the control of Answering Defendants. 80. Plaintiffs' injuries may be the result of acts or omissions of individuals over whom Answering Defendants have no control. 81. Plaintiffs' claims may be barred by the Doctrine of Superseding and/or Intervening Causes. 82. Answering Defendants raise all rights, immunities and damage limitations present in the MCARE Act. WHEREFORE, Defendant, Darryl K. Guistwite, D.O, demands judgment in his favor and against Plaintiffs and that Plaintiffs' Complaint be dismissed with prejudice. Respectfully submitted, FOULKROD ELLIS Professional Corporation Date: By:. Andrew H. Foulkrod, E q ire Court I.D. No. 77394 Darlene K. King, Esquire Court I.D. No. 75898 Attorneys for Defendant, Darryl K. Guistwite, D. 0. 7 VERIFICATION I, DARRYL K. GUISTWITE, D.O., hereby certify that I have read the foregoing Answer and New Matter of Defendant, Darryl K Guistwite, D.O. to Plaintiffs' Complaint, which has been drafted by my counsel on my behalf and that the facts set forth therein are true and correct to the best of my knowledge, information and belief. This statement and Verification are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn fabrication to authorities; I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa.C.S.A. §4904. Date: Darr tr- Guistwite, D.O. CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this day of 2011, by depositing said copy in the United States Mail at Camp Hill, Pennsylvan a, postage prepaid, first class delivery, and addressed as follows: Robin J. Marzella, Esquire R. J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs John M. Skrocki, Esquire Burns White 100 Four Falls, Ste 515 1001 Conshohocken State Road West Conshohocken, PA 19428 Attorney for Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation ofAmerica; Manor Care ofAmerica Inc.; Manor Care Inc.; HCR Manor Care Inc.; and HCR Manor Care Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant, Carlisle Regional Medical Center FOULKROD ELLIS PROFESSIONAL CORPORATION By: Cryst L. Nemetz, Secretary It R.J. MARZELLA & ASSOCIATES, P.C. BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 3513 North Front Street Harrisburg, PA. 17110 Email: cmarsar(a)rimarzella Attorneys for Plaintiffs Telephone: (717) 234-7828 Shirley Kazimer and Facsimile: (717) 234-6883 Richard Kazimer IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY & RICHARD KAZIMER, PLAINTIFFS VS. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS DOCKET NUMBER: 10-3391-CIVIL PROFESSIONAL MEDICAL NEGLIGENCE r rrnrn C-- ? ,n -<> O - o v im , CD n . w JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2011upon consideration of Plaintiffs Motion for Leave to Amend the caption pursuant to Pa. R.C.P. 2352, it is hereby ORDERED that Plaintiffs Motion is G i- / John skrock?, &1;9 Andrmo oolkrod,k R,Tro kiatZeUa CAP O(?J 3:05-CV-136 I R y r? 1.F r ?? ? `.e E? .L 29 P y: 2 , a Er2LA 9D COUtl r R. J. MARZELLA & ASSOCIATES, P.C. BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 3513 North Front Street Harrisburg, PA 17110 Telephone: (717) 234-7828 Facsimile: (717) 234-6883 Attorney for Shirley & Richard Kazimer IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY & RICHARD KAZIMER, PLAINTIFFS VS. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS DOCKETNUMBER: 10-3391 CIVIL PROFESSIONAL MEDICAL NEGLIGENCE JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANT, DARRYL K. GUISTWITE'S, NEW MATTER 76. No response is required to this paragraph. 77. Denied. It is specifically denied that Plaintiffs' claims are barred by the applicable Statute of Limitations. 78. Denied. It is specifically denied that Plaintiffs' claims may be barred, in whole or in part, by the doctrines of comparative negligence and assumption of the risk. 79. Denied. It is specifically denied that Plaintiffs' an decedent's injuries are the result of circumstances beyond the control of the Answering Defendants. 80. Denied. It is specifically denied that Plaintiffs' injuries may be the result of acts of omissions of individuals over whom Answering Defendants have no control. 81. Denied. It is specifically denied that Plaintiffs' claims may be barred by the Doctrine of Superseding and/or intervening Causes. 82. This paragraph contains a conclusion of law to which no response is required. WHEREFORE, Plaintiff respectfully requests this Honorable Court deny Answering Defendants demands for judgment in its favor and dismissal of Plaintiffs Complaint. Respectfully submitted, Dated: 2/ R.J. Mafte"Asso sates, P.C. ?7 By: r Robin J: quire Attorney Identifi ion No. 66856 CERTIFICATE OF SERVICE I, Jacqulyn R. Harris, hereby certify that a true and correct copy of Plaintiffs Response to Defendant, Darryl K. Guistwite's, New Matter, was served upon counsel of record this 27th day of, ujUl ?, 2011, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew Foulkrod, Esquire Darlene King, Esq. Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Craig Stone, Esquire MDWCG 4200 Crums Mill Road Suite B Harrisburg, PA 17112 John M. Skrocki, Esquire Burns White 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 R. J. MARZELLA & ASSOCIATES, P.C. , BY:jo-ov, I d 1"'-) :i(L JA QULY R. R 4S, LAW CLERK TO ROBIN J. MARZ LLA, ESQUIRE r? FOULKROD ELLIS PROFESSIONAL CORPORATION r k `t. ! ? t t R OI Andrew H. Foulkrod, Esquire Attorney I.D. #77394 Darlene K. King, Esquire Attorney I.D. #75898 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7,006 Attorneys for Defendant, Fax: (717) 909-6965 Darryl K. Guistwite, D.O. RICHARD KAZIMER, Individually and as IN THE COURT OF COMMON PLEAS OF Administrator for the Estate of Shirley Kazimer, CUMBERLAND COUNTY, Deceased, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW MANOR CARE OF CARLISLE, PA LLC; et al. NO. CV-10-3391 Defendants JURY TRIAL DEMANDED JOINT STIPULATION OF COUNSEL FOR SCHEDULING ORDER It is hereby stipulated and agreed by and among all parties and their counsel that the following dates will apply in this matter: 1. The close of fact discovery shall be July 1, 2012, unless otherwise mutually extended in writing by all counsel; 2. Plaintiffs will provide Defendants with all expert reports on or before August 1, 2012. 3. Defendants will provide Plaintiffs with all expert reports on or before October 1, 2012. 4. Plaintiff will provide Defendants with rebuttal expert reports on or before October 15, 2012. 5. Defendants will provide Plaintiff with rebuttal expert reports on or before October 31, 2012. 6. Any party may file a Praecipe for Listing Case for Trial after November 1, 2012 placing the case on the January or February 2013 civil trial list. 7. This Stipulation may be executed in counterparts and shall be considered effective when signed by all counsel, even though signed on separate signature pages, and may be filed of record. Facsimile or photocopy reproduction of signatures shall have the effect of original signatures. IN WITNESS WHEREOF, the parties, by their counsel, have caused this Stipulation to be executed and intend to be legally bound thereby. Professional Corporation , Date: l (? By: Andrew H. Foul , Esquire Darlene K. King, Esquire Attorneys for Defendant, Darryl K. Guistwite, D. O. FOULKROD ELLIS R.J. MARZELLA & ASSOCIATES Date: By: Date: Date: Robin J. Marzella, Esquire Attorney for Plaintiff, Richard Kazimer, Individually, and as the Administrator of the Estate of Shirley Kazimer, Deceased MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: Craig A. Stone, Esquire Michael C. Mongiello, Esquire Attorneys for Defendants, Carlisle Regional Medical Center BURNS WHITE By: John M. Skrocki, Esquire Attorney for Defendants, Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care ofAmerica Inc.; Manor Care Inc.; HCR Manor Care Inc. ; and HCR Manor Care 7. This Stipulation may be executed in counterparts and shall be considered effective when signed by all counsel, even though signed on separate signature pages, and may be filed of record. Facsimile or photocopy reproduction of signatures shall have the effect of original signatures. IN WITNESS WHEREOF, the parties, by their counsel, have caused this Stipulation to be executed and intend to be legally bound thereby. Date: By: R.J. SSOCIATES Date: a:2 Z l? By: n . la, Esquire Attorney for Plaintiff, Richard Kazimer, Individually, and as the Administrator of the Estate of Shirley Kazimer, Deceased FOULKROD ELLIS Professional Corporation Andrew H. Foulkrod, Esquire Darlene K. King, Esquire Attorneys for Defendant, Darryl K Guistwite, D. 0. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Date: By: Date: Craig A. Stone, Esquire Michael C. Mongiello, Esquire Attorneys for Defendants, Carlisle Regional Medical Center BURNS WHITE By: John M. Skrocki, Esquire Attorney for Defendants, Manor Care of Carlisle, PA LLC, Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care of America Inc.; Manor Care Inc.; HCR Manor Care Inc.; and HCR Manor Care 7. This Stipulation may be executed in counterparts and shall be considered effective when signed by all counsel, even though signed on separate signature pages, and may be filed of record. Facsimile or photocopy reproduction of signatures shall have the effect of original signatures. IN WITNESS WHEREOF, the parties, by their counsel, have caused this Stipulation to be executed and intend to be legally bound thereby. Date: Date: By: , WARNER, COLEMAN & GOGGIN FOULKROD ELLIS Professional Corporation By: R.J. MARZELLA & ASSOCIATES Andrew H. Foulkrod, Esquire Darlene K. King, Esquire Attorneys for Defendant, Darryl K. Guistwite, D. 0. Robin J. Marzella, Esquire Attorney for Plaintiff, Richard Kazimer, Individually, and as the Administrator of the Estate of Shirley Kazimer, 1 Z Date: 1 ? By: Date: Cr'efig'A. Stone, Esquire hael C. Mongiello, Esquire Attorneys for Defendants, Carlisle Regional Medical Center BURNS WHITE By: John M. Skrocki, Esquire Attorney for Defendants, Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care ofAmerica Inc.; Manor Care Inc.; HCR Manor Care Inc.; and HCR Manor Care 7. This Stipulation may be executed in counterparts and shall be considered effective when signed by all counsel, even though signed on separate signature pages, and may be filed of record. Facsimile or photocopy reproduction of signatures shall have the effect of original signatures. IN WITNESS WHEREOF, the parties, by their counsel, have caused this Stipulation to be executed and intend to be legally bound thereby. Date: Date: FOULKROD ELLIS Professional Corporation By: Andrew H. Foulkrod, Esquire Darlene K. King, Esquire Attorneys for Defendant, Darryl K. Guistwite, D. 0. R.J. MARZELLA & ASSOCIATES By: Robin J. Marzella, Esquire Attorney for Plaintiff, Richard Kazimer, Individually, and as the Administrator of the Estate of Shirley Kazimer, Deceased MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Date: By: Craig A. Stone, Esquire Michael C. Mongiello, Esquire Attorneys for Defendants, Carlisle Regional Medical Center BURNS WHITE Date: l t c3 < < By: John Skrocki, Esquire Atto ey for Defendants, Manor Care of Carlisle, PA LLC, Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation ofAmerica; Manor Care ofAmerica Inc.; Manor Care Inc.; HCR Manor Care Inc.; and HCR Manor Care CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this day of ?- 2011, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Robin J. Marzella, Esquire R. J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs John M. Skrocki, Esquire Burns White 100 Four Falls, Ste 515 1001 Conshohocken State Road West Conshohocken, PA 19428 Attorney for Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care of America Inc.; Manor Care Inc. ; HCR Manor Care Inc.; and HCR Manor Care Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney fc)r Defendant, Carlisle Regional Medical Center FOULKROD ELLIS PROFESSIONAL CORPORATION By: Lv)?A Crystal L. Nemetz, Secretary RICHARD KAZIMER, Individually and as IN THE COURT OF COMMON PLEAS OF Administrator for the Estate of Shirley Kazimer, CUMBERLAND COUNTY, Deceased, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW MANOR CARE OF CARLISLE, PA LLC; et al. NO. CV-10-3391 Defendants JURY TRIAL DEMANDED ORDER AND NOW, this 2"v/ day of V ce.--t Ae-- , 2011, the attached Joint Stipulation of Counsel is hereby approved. Therefore, it is ORDERED and DIRECTED that the following dates will apply in this matter: 1. The close of fact discovery shall be July 1, 2012, unless otherwise mutually extended in writing by all counsel; 2. Plaintiffs will provide Defendants with all expert reports on or before August 1, 2012. 3. Defendants will provide Plaintiffs with all expert reports on or before October 1, 2012. 4. Plaintiff will provide Defendants with rebuttal expert reports on or before October 15, 2012. 5. Defendants will provide Plaintiff with rebuttal expert reports on or before October 31, 2012. 6. Any party may file a Praecipe for Listing Case for Trial after November 1, 2012 placing the case on the January or February 2013 civil trial list. BY THE COURT: DISTRIBUTION LIST: C? /Robin J. Marzella, Esq. rn C v -n R.J. Marzella & Associates, P.C. rn r- 3513 North Front Street J =t-n Harrisburg, PA 17110-1438 t--z --+C? C:) Andrew H. Foulkrod, Esq. ? D l K Ki E C - QV) ar ene . ng, sq. Foulkrod Ellis, PC Q 4000 Market St. Camp Hill, PA 17011 ? Craig Stone, Esq. Marshall Dennehey 4200 Crums Mill Rd., Suite B Harrisburg, PA 17112 V John M. Skrocki, Esq. 100 Four Falls, Suite 515 1001 Conshohocken State Rd. West Conshohocken, PA 19428 CVpf eS jVaA-e4 );)-I 0 ?I I Ot t ;1 ?t I o FOULKROD ELLIS + 4 PROFESSIONAL CORPORATION , T7 1? Andrew H. Foulkrod, Esquire Attorney I.D. #77394 Darlene K. King, Esquire Attorney I.D. #75898 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Attorneys for Defendant, Fax: (717) 909-6955 Darryl K. Guistwite, D.O. RICHARD KAZIMER, Individually and as IN THE COURT OF COMMON PLEAS OF Administrator for the Estate of Shirley Kazimer, CUMBERLAND COUNTY, Deceased, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW MANOR CARE OF CARLISLE, PA LLC; et al. NO. CV-10-3391 Defendants JURY TRIAL DEMANDED JOINT STIPULATION OF COUNSEL FOR SCHEDULING ORDER It is hereby stipulated and agreed by and among all parties and their counsel that the following dates will apply in this matter: 1. The close of fact discovery shall be July 1, 2012, unless otherwise mutually extended in writing by all counsel; 2. Plaintiffs will provide Defendants with all expert reports on or before August 1, 2012. 3. Defendants will provide Plaintiffs with all expert reports on or before October 1, 2012. 4. Plaintiff will provide Defendants with rebuttal expert reports on or before October 15, 2012. 5. Defendants will provide Plaintiff with rebuttal expert reports on or before October 31, 2012. 6. Any party may file a Praecipe for Listing Case for Trial after November 1, 2012 placing the case on the January or February 2013 civil trial list. -,IT 7. This Stipulation may be executed in counterparts and shall be considered effective when signed by all counsel, even though signed on separate signature pages, and may be filed of record. Facsimile or photocopy reproduction of signatures shall have the effect of original signatures. IN WITNESS WHEREOF, the parties, by their counsel, have caused this Stipulation to be executed and intend to be legally bound thereby. Date: 1111 Date: Date: FOULKROD ELLIS Professional Corporation By: Andrew H. Foul , Esquire Darlene K. King, Esquire Attorneys.for Defendant, Darryl K. Guistwite, D. 0. R.J. MARZELLA & ASSOCIATES By: Robin J. Marzella, Esquire Attorney for Plaintiff, Richard Kazimer, Individually, and as the Administrator of the Estate of Shirley Kazimer, Deceased MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: Craig A. Stone, Esquire Michael C. Mongiello, Esquire Attorneys for Defendants, Carlisle Regional Medical Center BURNS WHITE Date: By: John M. Skrocki, Esquire Attorney for Defendants, Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation ofAmerica; Manor Care of America Inc. ; Manor Care Inc. ; HCR Manor Care Inc.; and HCR Manor Care 7. This Stipulation may be executed in counterparts and shall be considered effective when signed by all counsel, even though signed on separate signature pages, and may be filed of record. Facsimile or photocopy reproduction of signatures shall have the effect of original signatures. IN WITNESS WHEREOF, the parties, by their counsel, have caused this Stipulation to be executed and intend to be legally bound thereby. FOULKROD ELLIS Professional Corporation Date: By: Andrew H. Foulkrod, Esquire Darlene K. King, Esquire Attorneys for Defendant, Darryl K Guistwite, D. 0. R.J. ASSOCIATES Date: By: - n 70 la, Esquire Attorney for Plaintiff Richard Kazimer, Individually, and as the Administrator of the Estate of Shirley Kazimer, Deceased MAR SHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Date: By: Craig A. Stone, Esquire Michael C. Mongiello, Esquire Attorneys for Defendants, Carlisle Regional Medical Center BURNS WHITE Date: By: John M. Skrocki, Esquire Attorney for Defendants, Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation ofAmerica; Manor Care ofAmerica Inc.; Manor Care Inc.; HCR Manor Care Inc.; and HCR Manor Care 7. This Stipulation may be executed in counterparts and shall be considered effective when signed by all counsel, even though signed on separate signature pages, and may be filed of record. Facsimile or photocopy reproduction of signatures shall have the effect of original signatures. IN WITNESS WHEREOF, the parties, by their counsel, have caused this Stipulation to be executed and intend to be legally bound thereby. FOULKROD ELLIS Professional Corporation Date: By: Date: Andrew H. Foulkrod, Esquire Darlene K. King, Esquire Attorneys for Defendant, Darryl K Guistwite, D. 0. R.J. MARZELLA & ASSOCIATES By: Robin J. Marzella, Esquire Attorney for Plaintiff, Richard Kazimer, Individually, and as the Administrator of the Estate of Shirley Kazimer, , WARNER, COLEMAN & GOGGIN Date: ? < By: C? t'a?ig'A. Stone, 9squire Wchael C. Mongiello, Esquire Attorneys for Defendants, Carlisle Regional Medical Center BURNS WHITE Date: By: John M. Skrocki, Esquire Attorney for Defendants, Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care of America Inc. ; Manor Care Inc. ; HCR Manor Care Inc. ; and HCR Manor Care 7. This Stipulation may be executed in counterparts and shall be considered effective when signed by all counsel, even though signed on separate signature pages, and may be filed of record. Facsimile or photocopy reproduction of signatures shall have the effect of original signatures. IN WITNESS WHEREOF, the parties, by their counsel, have caused this Stipulation to be executed and intend to be legally bound thereby. FOULKROD ELLIS Professional Corporation Date: By: Andrew H. Foulkrod, Esquire Darlene K. King, Esquire Attorneys for Defendant, Darryl K. Guistwite, D.O. Date: R.J. MARZELLA & ASSOCIATES By: Robin J. Marzella, Esquire Attorney for Plaintiff, Richard Kazimer, Individually, and as the Administrator of the Estate of Shirley Kazimer, Deceased Date: MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: Craig A. Stone, Esquire Michael C. Mongiello, Esquire Attorneys for Defendants, Carlisle Regional Medical Center BURNS WHITE l i d By: Date: L John Skrocki, Esquire Attor ey for Defendants, Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care of America Inc.; Manor Care Inc.; HCR Manor Care Inc.; and HCR Manor Care CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this ' day of b 2011, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Robin J. Marzella, Esquire R. J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs John M. Skrocki, Esquire Burns White 100 Four Falls, Ste 515 1001 Conshohocken State Road West Conshohocken, PA 19428 Attorney far Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care of America Inc. ; Manor Care Inc. HCR Manor Care Inc. ; and HCR Manor Care Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant, Carlisle Regional Medical Center FOULKROD ELLIS PROFESSIONAL CORPORATION By: / Crystal L. Nemetz, Secretary FiLEO'O. ;7iC-. O T HE PRO T&,ONOTr" R"! 2012 FFB 24 A l I I: 2'2 CUMBERLAND COUNT'S in E K, .. R. J. MARZELLA & ASSOCIATES, P.C. BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 Attorney for 3513 North Front Street Richard Kazimer, Harrisburg, PA 17110 Individually and as Telephone: (717) 234-7828 Administrator for the Estate Facsimile: (717) 234-6883 of Shirley Kazimer IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RICHARD KAZIMER, INDIVIDUALLY DOCKETNUMBER: 10-3391 CIVIL AND AS ADMINISTRATOR FOR THE ESTATE OF SHIRLEY KAZIMER PLAINTIFFS VS. PROFESSIONAL MEDICAL NEGLIGENCE MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. JURY TRIAL DEMANDED DEFENDANTS PLAINTIFF'S RESPONSE TO DEFENDANTS, MANOR CARE OF CARLISLE PA, LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA, INC., MANOR CARE, INC., HCR MANOR CARE, INC., AND HCR MANOR CARE, NEW MATTER 58. Denied. It is specifically denied that Plaintiffs' claims are barred and/or limited because of his comparative negligence and non-compliance of Mrs. Kazimer and/or Mr. Kazimer. 59. Denied. It is specifically denied that Plaintiff, Richard Kazimer, may have no standing to bring this action. 60. Denied. It is specifically denied that answering Defendants, individually and/or as a group, were not negligent or careless in any respect, and/or had no duty with respect to many of the claims made by the Plaintiff. 61. Denied. It is specifically denied that any injuries or damages claimed by the Plaintiffs were not proximately caused by any action or inaction on the part of Answering Defendants, nor their agents, servants or employees. 62. Denied. It is specifically denied that Plaintiff fails to state claims upon which relief can be granted. 63. Denied. It is specifically denied that Plaintiffs' claims are barred and/or limited as to Answering Defendants because the acts or omissions, if any were caused by some person, party or entity other thatn Answering Defendants. 64. This paragraph contains a conclusion of law to which no response is required. 65. Denied. It is specifically denied that Plaintiffs' claims are fully, and/or in-part time-barred by the applicable statute of limitations. 66. The allegations herein state a conclusion of law to which no response is necessary. To the extent that a response may be required, it is specifically denied that if Plaintiffs should be awarded any money damages, then the amount of said damages must be reduced by the total amount of any and all medical expenses charged, but not actually paid by or on behalf' of the Decedent, any amount recovered by the Plaintiffs must be reduced by the sum of any and all medical expenses written off by a health care provider. 67. Denied. It is specifically denied that Plaintiffs' claims are barred by the doctrine of accord and satisfaction. Furthermore, it is specifically denied Plaintiff's decedent, Shirley Kazimer signed a Release of All Claims on March 6, 2009. Also denied that the release bars and/or limits the recovery in this matter. By way of further response, the release attached to the.Answer with New Matters of Plaintiff's Complaint as Exhibit "A" is a release for an automobile accident and as paragraph two (2) of that release states "this release is intended only to operate as a release of whatever claims the undersigned may have against the releases as a result of the automobile accident."' Paragraph four (4) of the release goes on to state "this release is not intended nor shall it be construed to release any and all professional negligence claims ...." 69. Denied. It is specifically denied that venue and/or jurisdiction in Cumberland Court of Common Pleas is not founded as the Plaintiff, Richard Kazimer, executed an arbitration agreement as regards to the Manner Care admissions, and as such the claims against Manor Care should be heard in an arbitration forum. 70. Denied. It is specifically denied that Plaintiffs' claimed injuries were the natural consequences of her severe, and advanced on-going medical conditions. WHEREFORE, Plaintiff respectfully requests this Honorable Court deny Answering Defendants demands for judgment in its favor and dismissal of Plaintiff's Complaint. Respectfully submitted, J. 31arze Associates, P.C. Attorney Identification No. 66856 Dated: -' - too Four Falls, Suite 515 1oo1 Conshohocken State Road West Conshohocken, PA 19428 ATTORNEYS AT LAW t: 484.567.5700 f: 484.567.5701 w: www.burnswhite.com John M. Skrocki Attorney-at-Law (484) 567-5715 j mskrocki@burnswhite. corn September 30, 2011 Court Administration Cumberland County Courthouse 1 Courthouse Square, Suite 100 Carlisle, PA 17013 Re: Kazimer v. Manor Care of Carlisle, et al. Cumberland County CCP No. 10-3391 Our File No. 10996-197647 Dear Sir or Madam: Enclosed please find the original and one copy of the Answer with New Matter of the Manor Care Defendant to Plaintiffs' Complaint in the above-captioned matter. Please file the original and return the copy, time-stamped, in the envelope provided. Thank you. JMS:maa Enclosure cc Robin J. Marzella, Esquire (w/ enclosure) Andrew Foulkrod, Esquire (w/ enclosure) Craig Stone, Esquire (w/ enclosure) Verb} trul ybuN, John M. Skrocki Burns White :1 Limited Liability Company BURNS WHITE LLC By: William J. Mundy, Esquire Identification No. 57679 By: John M. Skrocki, Esquire Identification No. 49071 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 Richard Kazimer, Individually and as Administrator for the Estate of Shirley Kazimer, Deceased Plaintiff, V. Manor Care of Carlisle PA, LLC, Manor Healthcare Corp., Manorcare Health Services Carlisle, Health Care and Reiterement Corporation of America, Manor Care of America, Inc., Manor Care, Inc., HCR Manor Care, Inc., HCR Manor Care, Carlisle Regional Medical Center, Darryl K. Guistwite, D.O., Defendants. TO THE H REIN PLAfNTIFES YOU ARE H3W NC MREDTO FILE A MUM FE%nOPM TO THE ENCLOSED ANSAM WTH NEW MATTHtWTHN1V1BMj2Q DAYS FROM SBUCE MAY 8E ENTE EEDACPINST Y ? )) John , E9 re r, Attorneys for Defendants, Manor Care of Carlisle PA, LLC, Manor Healthcare Corp., Manorcare Health Services Carlisle, Health Care and Retirement Corporation of America, Manor Care of America, Inc., Manor Care, Inc., HCR Manor Care, Inc., and HCR Manor Care : COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : No. 10-3391 Jury Trial Demanded ANSWER WITH NEW MATTER OF DEFENDANTS, MANOR CARE OF CARLISLE PA, LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA, INC., MANOR CARE, INC., HCR MANOR CARE, INC., AND HCR MANOR CARE TO PLAINTIFFS' COMPLAINT Defendants, Manor Care of Carlisle PA, LLC. Manor Healthcare Corp., Manorcare Health Services Carlisle, Health Care and Retirement Corporation of America, Manor Care of America, Inc., Manor Care, Inc., HCR Manor Care, Inc, and HCR Manor Care, (hereinafter as "the ManorCare Defendants"), by and through their counsel, Burns White LLC, hereby Answer Plaintiffs' Complaint, with New Matter, as follows: 1. Not disputed. 2. Denied as stated. It is admitted that the entity Manor Care of Carlisle, PA, LLC conducts business in Cumberland County, with a nursing home facility located at the address identified. The remaining averments are denied as stated, and proof thereof is demanded. The averments are also not sufficiently specific to allow the defense to provide a specific response. 3. This averment is directed to other defendants and does not require a response by the Answering Defendants. 4. This averment is directed to another defendant. The location identified is the Manor Care facility, not the location of Dr. Guistwite's medical practice. 5. This averment is directed to CRMC and does not require a response by the Answering Defendants. 6. Denied. The averment does not identify any persons other than Dr. Guistwite as being an alleged agent or servant or employee of Manor Care, and as such the Answering Defendants can not provide a specific or meaningful response. Dr. Guistwite was an independent attending physician, and not an agent, servant or employee of Manor Care. T-39. Pursuant to Pa.R.C.P. 1029(e) the corresponding averments are denied generally and are at issue. It is admitted that Ms. Kazimer was a resident at the Manor Care facility intermittently. All averments of negligence, and causal negligence within the complaint are denied specifically, and strict thereof is demanded. 40, Denied. It is specifically denied that the defendants are jointly and/or severally liable for the injuries and/or damages claimed herein. 41.44. Denied. It is specifically denied that the defendants were negligent, or that any alleged acts or omissions were causally related to the multiple problems that Mrs. Kazimer experienced. Pursuant to Pa.R.C.P. 1029(e), the corresponding averments are denied generally, and are at issue. COUNTI 45. The preceding responses are incorporated as though set forth fully at length herein. 46.(a)-(ee). Denied. The Answering Defendants deny specifically each and every allegation of negligence as set forth in the correspondence paragraph. Pursuant to Pa.R.C.P. 1029(e), the averments are also denied generally and are at issue. 47. Denied. It is specifically denied that the defendants were negligent or that any alleged acts or omissions were causally responsible for the claimed injuries. WHEREFORE, the Answering Defendants demand judgment in their favor together with such other relief as the court may deem just and appropriate. COUNT II 48.-50. The corresponding averments are directed to the co-defendant physician, and do not require a response by the Answering Defendants. WHEREFORE, the Answering Defendants demand judgment in their favor together with such other relief as the court may deem just and appropriate. COUNT III 51.-53. The corresponding averments are directed to the co-defendant hospital, and do not require a response by the Answering Defendants, WHEREFORE, the Answering Defendants demand judgment in their favor together with such other relief as the court may deem just and appropriate. COUNT IV 54. The preceding responses are incorporated as though set forth fully at length herein. 55.-57. Denied. It is specifically denied that the defendants were in any way negligent. It is further denied that any alleged acts or omissions were the cause of any claimed injuries on the part of the plaintiff-husband. WHEREFORE, the Answering Defendants demand judgment in their favor together with such other relief as the court may deem just and appropriate. NEW MATTER 58. Plaintiffs' claims are barred and/or limited because of his comparative negligence and non-compliance of Mrs. Kazimer and/or Mr. Kazimer. 59. Plaintiff, Richard Kazimer, may have no standing to bring this action. 60. Answering Defendants, individually and/or as a group, were not negligent or careless in any respect, and/or had no duty with respect to many of the claims made by the plaintiff. 61. Any injuries or damages claimed the by Plaintiffs were not proximately caused by any action or inaction on the part of Answering Defendants, nor their agents, servants or employees. 62. Plaintiff fails to state claims upon which relief can be granted. 63. Plaintiffs' claims are barred and/or limited as to Answering Defendants because the acts or omissions, if any, were caused by some person, party or entity other than Answering Defendants. 64. By way of New Matter, and in defense of the above-captioned matter, the within Answering Defendants herewith incorporates by reference all applicable defenses provided under the Health Care Services Malpractice Act, 40 P.S. §1301.101 et. seq., and the Medical Care Availability and Reduction of Error Act (M-Care) as fully as though were herein set forth at length. 65. Plaintiffs' claims are fully, and/or in-part time-barred by the applicable statute of limitations. 66. If the Plaintiffs should be awarded any money damages, such possibility being specifically denied, then the amount of said damages must be reduced by the total amount of any and all medical expenses charged, but not actually paid by or on behalf of the Decedent, any amount recovered by the Plaintiffs must be reduced by the sum of any and all medical expenses written off by a health care provider pursuant to Pennsylvania Supreme Court's ruling in Morehead v. Crozer-Chester Medical Center, 200 Pa. Lexus 2992 (Pa. December 22, 2000). 67. Plaintiffs' claims are barred by the doctrine of accord and satisfaction. Specifically, Plaintiff's decedent, Shirley Kazimer signed a Release of All Claims on March 6, 2009. The Release bars and/or limits the recovery in this matter. See attached Exhibit "A". 69. Venue and/or jurisdiction in Cumberland County Court of Common Pleas is not founded as the Plaintiff, Richard Kazimer, executed an arbitration agreement as regards the Manor Care admissions, and as such the claims against Manor Care should be heard in an arbitration forum. Please refer to Exhibit "B" attached to the Preliminary Objections filed by the Manor Care Defendants. 70. Plaintiffs' claimed injuries were the natural consequences of her severe, and advanced on-going medical conditions. WHEREFORE, Answering Defendants request this Honorable Court enter judgment in its favor and dismiss Plaintiff's Amended Complaint with prejudice. BURNS WHITE LLC BY: - JOHN SKROCKI, ESQUIRE Attofdeys for the Manor Care Defendants Dated: ''? I VERIFICATION -hereby verify that I am authorized to make this verification and that the facts set forth in the foregoing Answer with New Matter to Complaint are true and correct to the best of my knowledge, information and belief. The language is that of counsel, and I have relied on counsel in signing this verification. This verification is made subject to 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. Dated: 91, z- d Lb90Gf,2L I L W I dW 3S I -INUO WdOS = b I I OZ 62 daS CERTIFICATE OF SERVICE I John M. Skrocki, Esquire, hereby certify that I am this day serving a copy of the foregoing Answer with New Matter to Plaintiffs' Complaint upon the person(s) and in the manner indicated below which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first- class postage prepaid, addressed as follows: Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110-1438 Andrew Foulkrod, Esquire Darline King, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Craig Stone, Esquire MDWCG 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 BURNS WHITF L,LC Date: 0,? ?( John M? Skrocki ,i i RELEASE OF ALL CLAIMS KNOW ALL MEN BY THESE PRESENTS: What the undvisngned. `ring o` lawful ages. for sole consideration of One h red ten thousand dollars and 001/00Dollars 15110.000.001 to be paid to a& vKazimerdo/does hereby and for my/ourdts heirs, executors, ?ron HonydULi3= o. and administrators. successors and assigns release and forever discharge Manor Cam. ! e ;.W hwher/their, or its agents, servants. successors. heirs, executors, administrators and all other persons, firms, corporations, associations or partnerships of and from any and all claims. actions, causes of action. demands, rights. damages. costs. loss of services. expeiises and compensation whatsoever, which the Undersigned now has/have or which may hereafter accrue on account of or :n any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damages and the consequence thereof resulting or to result from the automobile accident. which occurred on ni about the 4`" day orAnri/1008. at or near Ed. Furthermore. this release is intended only to operate as a release of whatever claims the undersigned may have against the releases as a result of the automobile accident. The releases expressly reserve any and all claims they may have against the tinder signed. ur anv others. Moreover. this release is not intended nor Fhall it be construed to release any and all professional negligence claims that the undeisigned now has_haye or which may hereafter accrue on account of professional negligence against the releases. It is understond and agreee. that this settlement is the compromise of a doubtful and disputed claim. and that the payment made is n)ot to be construed as an admission of liability on the pan of the parry of parties hereby released, and that said releases deny any liahilny therefore and intend merely to avoid litigation and buy their peace. The Unders:,„nrd hereby cleclincisl and represent(s) that the injuries sustained are or may be permanent and I:• ogrecsive arc: ;ha; iecoxe-y A,vwf w n is unce-.a•n and indefinite and :n making this Release it is understood and agi eed. that the Unde; signed eely'te:i wholly : pun the Undersigned's judgment. belief and knowledge of the nature. extent, effect and duration of said mjui:zs and liability and is made without reliance upon any statement or representation of the party or parties hereby released or, heir representatives or by any physician or surgeon by them employed. This release i< entered .r,,.n in t ood faith and for the purpose of complerelY discharging Manor Care. Inc.. American Home Assurance Co.. it is further understood and agreed that in further consideration to idey Kazimer. and as an inducement to settle, that Shirley Kazimer. agi vvs ro hold hanniess and indemnify Manor Care Inc American Home Assuracne Co.. their agents. servants. employees. offices. insurers and attorneys from any and all claims, damages, costs, expenses, attorneys fees. demands and actions on suic< that may be hroaght against them by any person, corporation or entity arising out of the aforesaid accident The Undersigned further declarelsl and represent(s) that no promise, inducement or agreement not herein expressed has been made to the Undersigned. and that this Release contains the entire agreement between the parties hereto, and that the :r n:s of ;hs Release are cn:ntractual wad not a mere recital. THE UNDERS:C•KI:U HAS R: ,1D THE FOREGOING RELEASE AND FULLY UNDERSTANDING IT. Signed. ,calcd and delivered this, day of -=I Witness CAUTION: READ BEFORE SIGNING BELOW , S ey Kazi O r STATE OF 1" IL //tt COUNTY OF On the U 1-i- clay of Mma before me personally appeared Jo me known to be the person(s) na n s herein and who executed a fore oing Release and O&n acknowledged to me that ?f voluntarily xecute h Itr• 1. A My term expires 1= ILO-Or ??lic: THE PROTHONOTARY ,? I b 33? f Civ,l 2012 FEB 24 AH 11:23 C11MR R1N9WT' PENNSYLVANIA CERTIFICATE OF SERVICE I, Denise Buell, hereby certify that a true and correct copy of the Notice of Death was served upon counsel of record this 22"d day of February, 2012, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew Foulkrod, Esquire Darlene King, Esq. Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendant Guistulte Craig Stone, Esquire MDWCG 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant CRM( R. J. MARZELLA & ASSOCIATES, P.C. BY: D ENISE BUELL, LA CLERK TO ROBIN J. MARZELLA, ESQUIRE FILED-OFFicE or ME PROTHONOTARY 2012 JUN 27 PH 1: 38 FOULKROD ELLIS PROFESSIONAL CORPORATION Andrew H. Foulkrod, Esquire Attorney I.D. 977394 Darlene K. King, Esquire Attorney I.D. 075898 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Attorneys for Defendant, Fax: (717) 909-6955 Darryl K. Guistwite, D.O. RICHARD KAZIMER, Individually and as IN THE COURT OF COMMON PLEAS OF Administrator for the Estate of Shirley Kazimer, CUMBERLAND COUNTY, Deceased, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW MANOR CARE OF CARLISLE, PA LLC; et al. NO. CV-10-3391 Defendants JURY TRIAL DEMANDED P)RAMPF TO WITHDRAW APPEARrt C TO THE PROTHONOTARY: Kindly withdraw the appearance of Darlene K. King, Esquire on behalf of Defendant, Darryl K. Guistwite, D.O., in the above-captioned acti 72?v. Z' Darlene K. King, Esquire Court I.D. No. 75898 TO THE PROTHONOTARY: Kindly enter the appearance of Andrew H. Foulkrod, Esquire on behalf of Defendant, Darryl K. Guistwite, D.O., in the above-captioned action. Date: - lit Respectfully submitted, FOULKROD ELLIS Professional Corpo do By: Andrew H. Foul rod, Esquire Court I.D. No. 77394 andrew0foulkrod.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this a day of _ 2012, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Robin J. Marzella, Esquire R. J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 1.7110 Attorney for Plaintiffs John M. Skrocki, Esquire Burns White 100 Four Falls, Ste 515 1001 Conshohocken State Road West Conshohocken, PA 19428 Attorney for Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation ofAmerica; Manor Care ofAmerica Inc.; Manor Care Inc.; HCR Manor Care Inc. ; and HCR Manor Care Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant, Carlisle Regional Medical Center FOULKROD ELLIS PROFESSIONAL CORPORATION By: TJ) Crystal L. Nemetz Secretary s= LED-Oe= FlCii ITCRAIG A. STONE, ESQUIRE (x? PROTHONOTAM I.D. No. 15907 MICHAEL C. MONGIELLO,, ESQUIRE 12 JUL 21 PSI 2. 11 I.D. No. 87532 MELISSA L. KELSO, ESQUIRE "UMBERLAND COUNTY I.D. No. 306793 p;:!. NSYLVANIA Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorney for Defendant Carlisle Regional Medical Center RICHARD KAZIMER, Individually and as IN THE COURT OF COMMON PLEAS Administrator of the Estate of CUMBERLAND COUNTY, PA Shirley Kazimer, Deceased Plaintiffs No: 10-3391-Civil v. MANOR CARE OF CARLISLE, PA, LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES, CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA, INC., MANOR CARE, INC., HCR MANOR CARE, INC., HCR MANOR: CARE, CARLISLE REGIONAL MEDICAL: CENTER, DARRYL K. GUISTWITE, D.O. : Professional Medical Negligence JURY TRIAL DEMANDED Defendants MOTION OF DEFENDANT CARLISLE REGIONAL MEDICAL CENTER TO AMEND ITS ANSWER AND NEW MATTER AND NOW COMES Defendant, Carlisle Regional Medical Center (hereinafter "CRMC") by and through its attorneys Marshall, Dennehey, Warner, Coleman and Goggin, and hereby files this Motion for Leave of Court to Amend Its Answer and New Matter and in support thereof avers: 1. Plaintiff Richard Kazimer, Individually and as Administrator of the Estate of Shirley Kazimer, Deceased (hereinafter "Plaintiff') commenced this medical professional negligence action by the filing a Praecipe for a Writ of Summons on May 21, 2010. 2. Plaintiff filed his complaint on or about July 22, 2010. 3. On or about April 7, 2011, after the filing of Certificates of Merit in support of Plaintiffs claims, CRMC filed its Answer with New Matter to Plaintiffs' complaint. 4. Subsequently, an entry of appearance was entered on behalf of Co-Defendant Manor Care and Co-Defendant Manor Care filed Preliminary Objections to Plaintiffs' Complaint. 5. Co-Defendant Manor Care filed an Answer with New Matter to Plaintiffs Complaint on September 30, 2011, in which it raised the affirmative defense of accord and satisfaction based on a "Release of All Claims" (hereinafter "Release") signed by Plaintiff-wife on March 6, 2009. Co-Defendant Manor Care attached a copy of the Release to its Answer with New Matter as Exhibit "A." 6. Counsel for CRMC did not have copy of the Release signed by Plaintiff-wife until the filing of Co-Defendant Manor Care's Answer with New Matter. 7. CRMC now files the instant motion and respectfully requests that the Court grant it permission to amend its Answer and New Matter to plead the Release as an affirmative defense 8. Pennsylvania Rules of Civil Procedure 1033 provides in relevant part: A party, either by a filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party, or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original complaint, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. 2 9. By email correspondence dated November 9, 2011, the undersigned counsel requested the consent of Plaintiffs counsel to amend its New Matter, but received no response to its request. 10. Interpreting Pennsylvania case law provides that the court should liberally grant requests to amend a pleading in the absence of undue prejudice to Plaintiffs. See Beckner v. Copeland Corporation, 785 A.2d 1003 (Pa. Super. 2001). 11. The filing of CRMC's Amended Answer with New Matter will not cause prejudice to Plaintiffs, as Plaintiff-wife obviously had prior knowledge of the Release she personally signed on March 6, 2009. 12. A copy of CRMC's proposed Amended Answer with New Matter, along with a copy of the Release are attached hereto collectively as Exhibit "A". WHEREFORE, CRMC respectfully requests that this Honorable Court grant it leave to file an Amended Answer with New Matter consistent with Exhibit "A" attached hereto. Dated: -?- Ito `( 05/787974.v1 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Craig A. Stone, Esquire Michael C. Mongiello, Esquire Melissa L. Kelso, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 3 CERTIFICATE OF SERVICE I hereby certify that I am this k day of 2012, serving a copy of the foregoing document upon the person(s) and in the manner indicated below by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Robin J. Marzella, Esquire Andrew H. Foulkrod, Esquire RJ Marzella & Associates, P.C. Foulkrod Ellis 3513 N. Front Street 4000 Market Street Harrisburg, PA 17110 Camp Hill, PA 17011 John M. Skrocki, Esquire Burns White 100 Four Falls, Suite 515 1001 Conshohocken State Road Conshohocken, PA 19428 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Craig A. Stone, Esquire Michael C. Mongiello, Esquire Melissa L. Kelso, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 05/787974.v I 4 CRAIG A. STONE, ESQUIRE I.D. No. 15907 MICHAEL C. MONGIELLO, ESQUIRE I.D. No. 87532 MELISSA L. KELSO, ESQUIRE I.D. No. 306793 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorney for Defendant Carlisle Regional Medical Center RICHARD KAZIMER, Individually and as IN THE COURT OF COMMON PLEAS Administrator of the Estate of CUMBERLAND COUNTY, PENNSYLVANIA Shirley Kazimer, Deceased Plaintiffs V. MANOR CARE OF CARLISLE, PA, LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES, CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA, INC., MANOR CARE, INC., HCR MANOR CARE, INC., HCR MANOR: CARE, CARLISLE REGIONAL MEDICAL: CENTER, DARRYL K. GUISTWITE, D.O. : Defendants No: 10-3391-Civil Professional Medical Negligence JURY TRIAL DEMANDED AMENDED ANSWER WITH NEW MATTER OF DEFENDANT CARLISLE REGIONAL MEDICAL CENTER TO PLAINTIFF'S COMPLAINT And now comes the Defendant, Carlisle Regional Medical Center (hereinafter referred to as "CRMC" and/or "Answering Defendant") by its attorneys Marshall, Dennehey, Warner, Coleman and Goggin, who file an Amended Answer to Plaintiffs Complaint, with New Matter as follows: Page 1 of 4 I . The averments of Paragraphs 1 through 76 of Answering Defendant's Answer with New Matter are incorporated by referenced as though fully set forth. AMENDED NEW MATTER 1. On October 3, 2011 Answering Defendant received the Answer with New Matter of Co-Defendant Manor Care attached to which was a General Release marked as "Exhibit A" thereto. 2. Prior to receiving Co-Defendant Manor Care's Answer with New Matter, Answering Defendant was unaware that, on March 6, 2009, Ms. Kazimer signed a General Release of all claims. 3. Plaintiffs claims against Answering Defendant Carlisle Regional Medical Center are barred by the doctrine of accord and satisfaction. Specifically, Decedent, Shirley Kazimer signed a Release of all claims on March 6, 2009. The Release bars or limits recovery against Carlisle Regional Medical Center in this matter. See attached Exhibit "A". MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Craig A. Stone, Esquire Michael C. Mongiello, Esquire Melissa L. Kelso, Esquire 4200 Crums Mill Road, Suite B 11 /I, Harrisburg, PA 17112 Dated: (717) 651-3500 Page 2 of 4 VERIFICATION I, AMY TRIMMER, BSN, R.N., hereby states that I am authorized to make this Verification, and verify 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 the statements herein made are subject to the penalties of 18 PA. C.S. §4904 relating to the unworn falsification to authorities. Amy T ' mer, BSN, R.N. Director of Risk Management Carlisle Regional Medical Center Dated: 'j I - Z-Page 3 of 4 CERTIFICATE OF SERVICE l I hereby certify that I am this day of 2012, serving a copy of the foregoing document upon the person(s) and in the mann i dated below, which service satisfies the requirements of the Pa. Rules of Civil Procedure and by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Robin J. Marzella, Esquire Andrew H. Foulkrod, Esquire RJ Marzella & Associates, P.C. Foulkrod Ellis 3513 N. Front Street 4000 Market Street Harrisburg, PA 17110 Camp Hill, PA 17011 John M. Skrocki, Esquire Burns White 100 Four Falls, Suite 515 1001 Conshohocken State Road Conshohocken, PA 19428 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Craig A. Stone, Esquire Michael C. Mongiello, Esquire Melissa L. Kelso, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 05/776037.v t Page 4 of 4 RELEASE OF ALL CLAIMS KNOW ALL MEN BY THESE PRESENTS: That the undersigned. 'wing of lawful ages, for sole consideration of One hundred ten thousand dollars and 00//OO Dollars f$1 /0.000.001 tt1 be I)aid to &ir{eyKazimerdoldoes hereby and for my/ourhts heirs, executors, administrators. successors and assigns release and forever discharge Manor Care Inc.. American Home Assurance Co and li.s/herhheir, or its agents. servants. successors, heirs, executors. administrators and all other persons, firms, corporations, associations or partnerships of and from any and all claims. actions, causes of action, demands, rights. damages. costs, loss of services. expenses and compensation whatsoever. which the Undersigned now has/have or which may hereafter accrue on account of or :n any way -rowing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and proprny damages and the consequence thereof resulting or to result from the automobile accident. which occurred on of about the 41" day of A rile 0 . at or near PA. Furthermore, this release is intended only to operate as a release of whatever claims the undersigned may have against the releases as a result of the automobile accident. The releases expressly reserve any and all claims they may have against the undersigned. or or.%• others. Moreover, this release is not intended nor shall it be construed to release any and all professional negligence claims that the undei>agned now has.-have or which may hereafter accrue on account of professional negligence against i he releases. It is understood aid agrece that this settlement is the compromise of a doubtful and disputed claim, and that the payment made is not to be coastmied as an admission of Itability on the pan or the party or parties hereby released, and that said releases deity any habihty therefore and intend merely to avoid litigation and buy their peace. The Linder.:grtvd t:? ieb. clrclaictat and representist that the injuries sustained are or may be permanent and p•ogre-zsnc and Jia: iecme•l• :1•vief•i-rn is unce-a•n and indefinite and :it making this Release it is understood and agi eed. that the Undo: sr, nrd : clyae:r wholly capon the Undersigned's judgment. belief and knowledge of the nature. extent, effect and Jura-.ion of said unjui:es and liability and is made without reliance upon any statement or representation of the party or parties here' y released or their representatives or by any physician or surgeon by them employed. This release i• entered :ran in Pod faith and for :he purpose of completely discharging Manor Care. Inc.. American Home Assurance Co.. It is further understood and agreed :hat in further consideration to Shidev Kazimer. and as an inducement to settle, that Shirley Kazimer, agi cis to hold harmtess and indemnify Manor Care. Inc.. American Home Assurance Co.. their aeenrs. servants. employees. offices. insurers and attorneys from any and all claims, damages, costs, expenses, attorneys fees. demands and actions on suits that may be brought against them by any person, corporation or entity arising out of the aforesaid accident The Undersigned further declarels? and represent(s) that no promise, inducement or agreement not herein expressed has been made to the Undersigned. and that this Release contains the entire agreement between the parties hereto, and that the ;e• ir., of ;its Release are contractual and not a mere recital. THE UNDERS:GNED HAS R*-AD THE FOREGOING RELEASE AND FULLY UNDERSTANDING IT. Sigced.,ealed avid clelttvered this to day of /i'1 ptt?r? ?, ?q CAUTION: READ BEFORE SIGNING BELOW as,? Witness S ley Kazi r STATE OF 1 // COUNTY OF emaz&JAIIJ On the day of /27121,x_ before me personally appeared lo me known to be the personls) na -is herein and who executed a fore oing Release and C.,YU acknowledged to me that hhvoluntarily xecut h M} teen expires t0?? NOT $Y p1K 0 _OFFICE CRAIG A. STONE, ESQUIRE I.D. No. 15907 MICHAEL C. MONGIELLO, ESQUIRE ?2LG I.D. No. 87532 N? '01uNjv MELISSA L. KELSO, ESQUIRE '?l)L1(A11Q I.D. No. 306793 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorney for Defendant Carlisle Regional Medical Center RICHARD KAZIMER, Individually and as IN THE COURT OF COMMON PLEAS Administrator of the Estate of CUMBERLAND COUNTY, PA Shirley Kazimer, Deceased Plaintiffs V. No: 10-3391-Civil MANOR CARE OF CARLISLE, PA, LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES, CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA, INC., MANOR CARE, INC., HCR MANOR CARE, INC., HCR MANOR: CARE, CARLISLE REGIONAL MEDICAL: CENTER, DARRYL K. GUISTWITE, D.O. : Defendants Professional Medical Negligence JURY TRIAL DEMANDED AMENDED MOTION OF DEFENDANT CARLISLE REGIONAL MEDICAL TO AMEND ITS ANSWER AND NEW MATTER AND NOW COMES Defendant, Carlisle Regional Medical Center "CRMC") by and through its attorneys Marshall, Dennehey, Warner, Coleman and Goggin, hereby files this Motion for Leave of Court to Amend Its Answer and New Matter and in thereof avers: 1. Plaintiff Richard Kazimer, Individually and as Administrator of the Estate lof Shirley Kazimer, Deceased (hereinafter "Plaintiff") commenced this medical negligence action by the filing a Praecipe for a Writ of Summons on May 21, 2010. 2. Plaintiff filed his complaint on or about July 22, 2010. 3. On or about April 7, 2011, after the filing of Certificates of Merit in support Plaintiffs claims, CRMC filed its Answer with New Matter to Plaintiffs' complaint. 4. Subsequently, an entry of appearance was entered on behalf of Manor Care and Co-Defendant Manor Care filed Preliminary Objections to Plaintiffs' 5. Co-Defendant Manor Care filed an Answer with New Matter to Plaint4s Complaint on September 30, 2011, in which it raised the affirmative defense of accord satisfaction based on a "Release of All Claims" (hereinafter "Release") signed by Plaintiff on March 6, 2009. Co-Defendant Manor Care attached a copy of the Release to its Answer New Matter as Exhibit "A." 6. Counsel for CRMC did not have copy of the Release signed by Plaintiff-wife the filing of Co-Defendant Manor Care's Answer with New Matter. 7. CRMC now files the instant motion and respectfully requests that the Court it permission to amend its Answer and New Matter to plead the Release as an affirmative 8. Pennsylvania Rules of Civil Procedure 1033 provides in relevant part: A party, either by a filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party, or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original complaint, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. 2 9. By email correspondence dated November 9, 2011, the undersigned requested the consent of Plaintiffs counsel to amend its New Matter, but received no response Ito its request. 10. By email correspondence dated August 1, 2012, the undersigned requested Plaintiffs concurrence in this Motion. Plaintiffs counsel responded and provided Plaintiff does not concur in this Motion. 11. Interpreting Pennsylvania case law provides that the court should liberally requests to amend a pleading in the absence of undue prejudice to Plaintiffs. See Copeland Corporation, 785 A.2d 1003 (Pa. Super. 2001). 12. The filing of CRMC's Amended Answer with New Matter will not prejudice to Plaintiffs, as Plaintiff-wife obviously had prior knowledge of the Release personally signed on March 6, 2009. 13. A copy of CRMC's proposed Amended Answer with New Matter, along with a copy of the Release are attached hereto collectively as Exhibit "A". 14. The Honorable Albert H. Masland has previously issued a Scheduling Order this matter. 15. The Honorable Wesley J. Oler, Jr., has previously ruled on Plaintiffs Motion Amend the Caption of his Complaint. WHEREFORE, CRMC respectfully requests that this Honorable Court grant it leave file an Amended Answer with New Matter consistent with Exhibit "A" attached hereto. 3 Respectfully submitted, MARSHALL, DENNEHEY, W COLEMAN & GOGGIN -I- K4jj-z Craig A. Stone, Esquire Michael C. Mongiello, Esquire Melissa L. Kelso, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 Dated: q'ar I a- 05/787974.vl 4 CERTIFICATE OF SERVICE I hereby certify that I am this day of t 2012, serving a copy of the foregoi document upon the person(s) and in the manner indicated below by depositing a copy of same the United States Mail, first-class postage prepaid, addressed as follows: Robin J. Marzella, Esquire RJ Marzella & Associates, P.C. 3513 N. Front Street Harrisburg, PA 17110 John M. Skrocki, Esquire Burns White 100 Four Falls, Suite 515 1001 Conshohocken State Road Conshohocken, PA 19428 Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 MARSHALL, DENNEHEY, W COLEMAN & GOGGIN 05/787974.vl Craig A. Stone, Esquire Michael C. Mongiello, Esquire Melissa L. Kelso, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 5 RICHARD KAZIMER, Individually IN THE COURT OF COMMON PLEAS OF and as Administrator of the Estate of CUMBERLAND COUNTY, PENNSYLVANIA Shirley Kazimer, Deceased, PLAINTIFF V. MANOR CARE OF CARLISLE, PA, LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES, CARLISLE, HEATH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA, INC., MANOR CARE, INC., HCR MANOR CARE, INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O., DEFENDANTS U1 ? 11 r,'?C_ V? • 10-3391 CIVIL TERM ORDER OF COURT AND NOW, this 6% day of August, 2012, upon consideration of the amended motion of Defendant Carlisle Regional Medical Center to amend its answer and new matter, a Rule is issued upon Plaintiff to show cause why the relief requested should not be granted. Rule returnable twenty (20) days after service. Within seven (7) days thereafter, either party may request argument on this motion. Notice of the entry of this order shall be provided to all parties by Defendant Carlisle Regional Medical Center. By the Court, Albert H. Masland, J. V Robin J. Marzella, Esquire V John M. Skrocki, Esquire ,/ Andrew H. Foulkrod, Esquire ? Melissa L. Kelso, Esquire :saa 6 . e6 nu~ Jed g?-/7lj a AL FILED-OFFICE 1:1 THE PROTHONOTA R`r; 2012 AUG -8 PM 2: 48 R. J. MARZELLA & ASSOCIATES, P.C. 17EfivNSYLVAI'i BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 3513 North Front Street Harrisburg, PA 17110 Telephone: (717) 234-7828 Facsimile: (717) 234-6883 Attorney for Richard Kazimer, Individually and as Administrator for the Estate of Shirley Kazimer IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RICHARD KAZIMER, INDIVIDUALLY AND AS ADMINISTRATOR FOR THE ESTATE OF SHIRLEY KAZIMER PLAINTIFFS : VS. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUISTWITE, D.O. DEFENDANTS DOCKETNUMBER: 10-3391 CIVIL PROFESSIONAL MEDICAL NEGLIGENCE JURY TRIAL DEMANDED PLAINTIFF'S OBJECTION TO THE MOTION OF DEFENDANT CARLISLE REGIONAL MEDICAL CENTER TO AMEND ITS ANSWER AND NEW MATTER AND NOW, Plaintiff, Richard Kazimer, by and through his attorneys, R.J. Marzella & Associates, files this Objection to the Motion of Defendant Carlisle Regional Medical Center to Amend Its Answer and New Matter and avers the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part and denied in part. It is admitted that Defendant Manor Care filed an Answer with New Matter to Plaintiffs Complaint on September 30, 2011, in which it raised the affirmative defense of accord and satisfaction based on a "Release of all Claims" (hereinafter "Release") signed by Mrs. Kazimer on March 6, 2009. It is denied that the Release effectively releases Defendant CRMC from all claims. As stated in paragraphs one and two of the Release, it is clear the Release is only intended as a release from the claims arising out of the automobile accident which occurred on April 4, 2008. Furthermore, paragraph three specifically states the Release "shall [not] be construed to release any and all professional negligence claims ... against the releases." 6. Admitted. 7. Admitted in part and denied in part. It is admitted that CRMC has filed this instant motion. It is denied that said Motion should be plead to permit an amendment of CRMC's Answer and New Matter to please the Release as an affirmative defense. 8. Admitted. 9. Admitted. 10. This paragraph contains a conclusion of law to which no response is required. 11. Denied. Plaintiffs will be prejudiced by the CRMC's Amended Answer and New Matter in that Plaintiff's will be forced to litigate an issue that is irrelevant to the instant case. 12. Admitted. WHEREFORE, Plaintiff respectfully requests this Honorable Court deny Defendant CRMC's Motion to Amend Its Answer and New Matter. Respectfully submitted, R. J_Marze3ia-& Associates, P.C. By: Dated: /'W RobinT. May. Esquire Attorney Identification No. 66856 CERTIFICATE OF SERVICE I, Jacqulyn R. Harris, hereby certify that a true and correct copy of Plaintiff Objection to the Motion of Defendant Carlisle Regional Medical Center to Amend It: Answer and New Matter was served upon counsel of record this 2°d day of August, 2012 by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postag( prepaid, first class delivery, and addressed as follows: John Skrocki, Esq. Burns White 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 Craig Stone, Esquire MDWCG 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Andrew Foulkrod, Esquire Darlene King, Esq. Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 R. J. MARZELLA & ASSOCIATES, P.C. BY: A,.J, ts"', '(:? JAC ULYN . H R , LAW CLERK TO R IN J. ARZELLA, ESQUIRE ~ 1~.~.1'l.'~~' ~IC~ $= ~~;~~~~~R{~TH0~0TARY 2~ t 2 BUG 15 AM t t~ 4 fi R.J. MARZELLA & ASSOCIATES, P.C. ~ BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 3513 North Front Street Harrisburg, PA 17110 Telephone: (717) 234-7828 Facsimile: (?17) 234-6883 Attorney for Richard Kazimer, Individually and as Administrator for the Estate of Shirley Kazimer IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RICHARD KAZIMER, INDIVIDUALLY DOCxET NuMaER: 10-3391 CIVIL AND AS ADMINISTRATOR FOR THE ESTATE OF SHIRLEY KAZIMER PLAINTIFFS VS. MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC., MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, CARLISLE REGIONAL MEDICAL CENTER, DARRYL K. GUI5TWITE, D.O. DEFENDANTS PROFESSIONAL MEDICAL NEGLIGENCE JURY TRIAL DEMANDED PLAINTIFF'S OBJECTION TO THE AMENDED MOTION OF DEFENDANT CARLISLE REGIONAL MEDICAL CENTER TO AMEND ITS ANSWER AND NEW MATTER AND NOW, Plaintiff, Richard Kazimer, by and through his attorneys, R J. Marzella & Associates, files this Objection to the Motion of Defendant Carlisle Regional Medieal Center to Amend Its Answer and New Matter and avers the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part and denied in part. It is admitted that Defendant Manor Care filed an Answer with New Matter to Plaintiffs Complaint on September 30, 201 l , in which it raised the affirmative defense of accord and satisfaction based on a "Release of all Claims" (hereinafter "Release") signed by Mrs. Kazimer on March 6, 2009. It is denied that the Release effectively releases Defendant CRMC from all claims. As stated in paragraphs one and two of the Release, it is clear the Release is only intended as a release from the claims arising out of the automobile accident which occurred on April 4, 2008. Furthermore, paragraph three specifically states the Release "shall [not) be construed to release any and all professional negligence claims ...against the releases." 6. Admitted. 7. Admitted in part and denied in part. It is admitted that CRMC has filed this instant motion. It is denied that said Motion should be plead to permit an amendment of CRMC's Answer and New Matter to please the Release as an affirmative defense. 8. Admitted. 9. Admitted. 10. Admitted. 1 l .This paragraph contains a conclusion of law to which no response is required. l2. Denied. Plaintiffs will be prejudiced by the CRMC's Amended Answer and New Matter in that Plaintiffs will be forced to litigate an issue that is irrelevant to the instant case. 13. Admitted. 14. Admitted. 15. Admitted. WHEREFORE, Plaintiff respectfully requests this Honorable Court deny Defendant CRMC's Motion to Amend Its Answer and New Matter. Respectfully submitted, Dated: ~' & Associates, P.C. ~Il~ Esquire Identification No. 66856 CERTIFICATE OF SERVICE 1, Jacqulyn R. Harris, hereby certify that a true and correct copy of Flai Objection to the Amended Motion of Defendant Carlisle Regional Medical Center Amend Its Answer and New Matter was served upon counsel of record this 9~' day August, 2012, by depositing said copy in the United States Mail at H Pennsylvania, postage prepaid, first class delivery, and addressed as follows: John Skrocki, Esq. Burns White 100 Four Falls, Suite 5] S 1001 Conshohocken State Road West Conshohocken, PA 19428 Craig Stone, Esquire MDWCG 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Andrew Foulkrod, Esquire Darlene King, Esq. Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 R. J, MARZELLA & AssoCUTES, P.C. BY• JA ULYN S W CLERK TO R BIN J. RZE ,ESQUIRE OF 1 NE PRO THONG TAR . 2013 tfAY 15 PH 2: 51 rOULKRODELLIS CU BERLAN COU�dTY r r1 PROFESSIONAL CORPORATION C Andrew H. Foulkrod, Esquire PENNSYLVANIA LVANIA Attorney I.D.#77394 Jennifer M. Heilman, Esquire Attorney I.D.#82305 Attorneys for Defendant, 4000 Market Street Darryl K.Guistwite,D.O. Camp Hill, PA 17011 Phone: (717)909-7006 Fax: (717)909-6955 Richard Kazimer, Individually and as the IN THE COURT OF COMMON PLEAS OF Administrator of the Estate of Shirley Kazimer, CUMBERLAND COUNTY, Deceased, PENNSYLVANIA Plaintiff V. CIVIL ACTION—LAW Manor Care of Carlisle, PA, LLC; Manor Healthcare Corp.; Manorcare Health Services NO. CV-10-3391 Carlisle; Health Care and Retirement Corporation of America; Manor Care of JURY TRIAL DEMANDED America, Inc.; Manor Care, Inc.; HCR Manor Care, Inc.; HCR Manor Care; Carlisle Regional Medical Center; Darryl K. Guistwite, D.O, Defendants PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Jennifer M. Heilman, Esquire on behalf of Defendant, Darryl K. Guistwite,D.O., in the above-captioned action. Respectfully submitted, FOULKROD ELLIS Professional Corporation /r✓ . Date: Q 02 /3 By:_ Andre H. Foulkrod, Esquire Court I.D. No. 77394 andrew@foulkrod.com Jennifer M. Heilman, Esquire Court I.D.No. 82305 jennifer@foulkrod.com w CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this L( " day of 2013, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania,postage prepaid, first class delivery, and addressed as follows: Robin J. Marzella, Esquire R. J. Marzella&Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs John M. Skrocki, Esquire Burns White 100 Four Falls, Ste 515 1001 Conshohocken State Road West Conshohocken, PA 19428 Attorney for Manor Care of Carlisle, PA LLC; Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation ofAmerica; Manor Care ofAmerica Inc.; Manor Care Inc.; HCR Manor Care Inc.; and HCR Manor Care Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant, Carlisle Regional Medical Center FOULKROD ELLIS PROFESSIONAL CORPORATION By: /l> Crystal L. 14emetz, Secretary OF T E PRO T flo p TA 13 Sir' R� 18 AM,,: 2 PSOU LKRODCORPORATION PENijS YL COU 1 Y Andrew H. Foulkrod, Esquire ANNA Attorney I.D.#77394 Jennifer M. Heilman, Esquire Attorney I.D.#82305 4000 Market Street Camp Hill, PA 17011 Phone: (717)909-7006 Attorneys for Defendant, Fax: (717)909-6955 Darryl K.Guistwite, D.O. Richard Kazimer, Individually and as the IN THE COURT OF COMMON PLEAS OF Administrator of the Estate of Shirley Kazimer, CUMBERLAND COUNTY, Deceased, PENNSYLVANIA Plaintiff V. CIVIL ACTION—LAW Manor Care of Carlisle, PA, LLC; Manor Healthcare Corp.; Manor Care Health Services NO. CV-10-3391 Carlisle; Health Care and Retirement Corporation of America; Manor Care of JURY TRIAL DEMANDED America, Inc.; Manor Care, Inc.; HCR Manor Care, Inc.; HCR Manor Care; Carlisle Regional Medical Center; Darryl K. Guistwite, D.O, Defendants PRAECIPE TO FILE STIPULATION TO DISCONTINUE ACTION WITH PREJUDICE AS TO DEFENDANT DARRYL K. GUISTWITE,D.O. TO THE PROTHONOTARY: Kindly file of record the attached Stipulation to Discontinue Action with Prejudice as to Defendant Darryl K. Guistwite, D.O. in the above-referenced matter. Respectfully submitted, FOULKROD ELLIS Professional orporation Date: 9 l 7�020�3 By: ndrew k Foulkrod, Esquire Attorney I.D. No. 77394 andrew@foulkrod.com Jennifer M. Heilman, Esquire Attorney I.D.No. 82305 jennifer@foulkrod.com am 4 s FOULIMOD ELLIS PROFESSIONAL CORPORATION Andrew H.Foulkrod,Esquire Attorney I.D.#77394 Jennifer M.Heilman,Esquire Attorney I.D.#82305 4000 Market Street Camp Hill,PA 17011 Attorneys for Defendant, Phone: (717)909-7006 Fax: (717)909-6955 Darryl K.Guistwite,D.O. Richard Kazimer, Individually and as the IN THE COURT OF COMMON PLEAS OF Administrator of the Estate of Shirley Kazimer, CUMBERLAND COUNTY, Deceased, PENNSYLVANIA Plaintiff V. CIVIL ACTION—LAW Manor Care of Carlisle,PA,LLC; Manor Healthcare Corp.; Manor Care Health Services NO. CV-10-3391 Carlisle; Health Care and Retirement Corporation of America; Manor Care of JURY TRIAL DEMANDED America, Inc.;Manor Care,Inc.; HCR Manor Care, Inc.;HCR Manor Care; Carlisle Regional Medical Center;Darryl K. Guistwite, D.0, Defendants STtj. VECTION WITH A ,PREJU ICE" PULAT-1-TON TP-DISCONTIN 'E ENDANT; ,01- 1 , .,.,�,A$3 GUIST,,W TkI, Q:D F PM�` - AND NOW comes Plaintiff,by and through his counsel,Robin J. Marzella,Esquire of R.J. Marzella&Associates,P.C.; Defendants Manor Care of Carlisle,PA,LLC;Manor Healthcare Corp.; Manor Care Health Services Carlisle;Health Care and Retirement Corporation of America; Manor Care of America Inc.; Manor Care Inc.;HCR Manor Care Inc.; and HCR Manor Care by and through their counsel,John M. Skrocki, Esquire of Bums White; Defendant Carlisle Regional Medical Center by and through its counsel, Craig A. Stone,Esquire of Marshall,Dennehey, Warner, Coleman&Goggin; and Defendant Darryl K. Guistwite,D.O. by and through his counsel Andrew Foulkrod and Jennifer Heilman of Foulkrod Ellis,P.C. and stipulate as follows: This action is hereby discontinued with prejudice as to Defendant Darryl K. Guistwite, D.D. This Stipulation may be executed in counterparts and shall be considered effective when signed by all counsel,even though signed on separate signature pages, and may be filed of record. Facsimile or photocopy reproduction of signatures shall have the effect of original signatures. Counsel have the authority of their clients to enter into this Stipulation. IN WITNESS WHEREOF,the foregoing parties by their counsel or for themselves have caused this Stipulation to be executed and intend to be legally bound thereby. R LA SSOCIATES,P.C. Date: By. Robin J, arz la,Esquire 3513 ront Street Harrisburg,PA 17110 Attorney for Plaintiff BURNS WHITE Date: By: John M. Skrocki,Esquire 100 Four Falls,Ste 515 1001 Conshohocken State Road West Conshohocken,PA 19428 Attorney for Defendants Manor Care of Carlisle, PA, LLC;Manor Healthcare Corp.;Manor Care Health Services Carlisle;Health Care and Retirement Corporation of America;Manor Care of America Inc.;Manor Care Inc.;HCR Manor Care Inc.; and HCR Manor Care 2 This action is hereby discontinued with prejudice as to Defendant Darryl K. Guistwite, D.O. This Stipulation may be executed in counterparts and shall be considered effective when signed by all counsel,even though signed on separate signature pages, and may be filed of record. Facsimile or photocopy reproduction of signatures shall have the effect of original signatures, Counsel have the authority of their clients to enter into this Stipulation. IN WITNESS WHEREOF,the foregoing parties by their counsel or for themselves have caused this Stipulation to be executed and intend to be legally bound thereby. R.J.MARZELLA&ASSOCIATES,P.C. Date: By: Robin J. Mar7ella,Esquire 3513 North Front Street Harrisburg,PA 17110 Attorney for Plaintiff BUftNS IT Date: By: ocki,E Esquire Z5 Is, 5 Jo M Skrocki,Esquire 100 ur Falls, Ste 515 1001 Conshohocken State Road West Conshohocken,PA 19428 Attorney for Defendants Manor Care of Carlisle, PA, LLC;Manor Healthcare Corp.;Manor Care Health Services Carlisle; Health Care and Retirement Corporation of America; Manor Care of America Inc.;Manor Care Inc.;HCR Manor Care Inc.; and I-JCR Manor Care 2 jM= ,D EHEY,WARNER, N & GIN SEP 10, 201'3 By: Date: Craig A. ne P1,squire 4200 Crums M Road,Suite B Harrisburg,P 17112 Attorney for Defendant Carlisle Regional Medical Center FOULKROD ELLIS Date: By. Andrew .. Foulkrod,Esquire Jennifer M. Heilman,Esquire 4000 Market Street Camp Hill,PA 17011 Attorney for Defendant Darryl K. Guistwite, D.0. 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this_J:Lt day of /jt/n bCj— 2013, by depositing said copy in the United States Mail at Camp Hill, Penr(sylvania,postage prepaid, first class delivery, and addressed as follows: Robin J. Marzella,Esquire R. J. Marzella& Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs John M. Skrocki,Esquire Bums White 100 Four Falls, Ste 515 1001 Conshohocken State Road West Conshohocken,PA 19428 Attorney for Manor Care of Carlisle, PA LLC,- Manor Healthcare Corp.; Manor Care Health Services Carlisle; Health Care and Retirement Corporation ofAmerica; Manor Care ofAmerica Inc.; Manor Care Inc.; HCR Manor Care Inc.; and HCR Manor Care Craig A. Stone,Esquire Marshall, Dennehey, Warner, Coleman& Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant, Carlisle Regional Medical Center FOULKROD ELLIS PROFESSIONAL CORPORATION By Christina W. Shaffer, Paralegal MARSHALL,DENNEHEY, WARNER, COLEMAN&GOGGIN r '_ ' },,ii r.- M� e,F By: Craig A. Stone, Esquire ,2P'?v' � ir c 2 Attorney I.D.No. 15907 I f 1. By: Michael C. Mongiello, Esquire „L`` ` Attorney I.D.No. 87532 PANS ° Y Q C°b". 100 Corporate Center Drive, Suite 201 N/,q Camp Hill, PA 17011 Telephone: (717) 651-3502 castone(a mdwcg.com; mcmongiello @mdwcg.com Attorney for Defendant, Carlisle Regional Medical Center RICHARD KAZIMER, Individually and as • IN THE COURT OF COMMON PLEAS OF Administrator of the Estate of Shirley : CUMBERLAND COUNTY, PENNSYLVANIA Kazimer, Deceased, . Plaintiff . . NO. 10-3391 v. . • MANOR CARE OF CARLISLE, PA, LLC, : CIVIL ACTION—LAW MANOR HEALTHCARE CORP., PROFESSIONAL MEDICAL NEGLIGENCE MANORCARE HEALTH SERVICES, . CARLISLE, HEALTH CARE AND . RETIREMENT CORPORATION OF JURY TRIAL DEMANDED AMERICA, MANOR CARE OF . AMERICA, INC., MANOR CARE, INC., . HCR MANOR CARE, INC., HCR MANOR : CARE, CARLISLE REGIONAL MEDICAL : CENTER, DARRYL K. GUISTWITE, D.O., : Defendants . PRAECIPE FOR CHANGE OF ADDRESS TO THE PROTHONOTARY: Please note the change of address of counsel for Defendant, Carlisle Regional Medical Center from 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112 to: Marshall, Dennehey, Warner, Coleman & Goggin 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 MARSHAL I,E'4' L ' , WARNER COLEMAN r ill it I I... irpt BY: Date: November 20, 2013 Craig A. Stone, 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 20th day of November, 2013, via United States First-Class Mail,postage prepaid: Robin J. Marzella, Esquire RJ Marzella& Associates, P.C. 3513 N. Front Street Harrisburg, PA 17110 Andrew H. Foulkrod, Esquire Jennifer M. Heilman, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 John M. Skrocki, Esquire Burns White 100 Four Falls, Suite 515 1001 Conshohocken State Road Conshohocken, PA 19428 MARSHALL, P C i WARNER COLEMAN & I, BY: Craig A. St. e 05/1134638.v1