Loading...
HomeMy WebLinkAbout04-3065ANGINO & ROVNER, P.C. James DeCinti, Esquire LD. No. 77421 4503 North Front Street Harrisburg, PA 17110-1708 (717)238-6791 FAX (717) 238-5610 &mail : jdecinti@angino-rovner.com ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES - CARLISLE, HCR MANORCARE, and MANORCARE, INC. Defendants Attorneys for Plaintiff: Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CNIL ACTION -LAW JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice ate served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You aze warned that if you fail to do so the case may proceed without you and a judgment maybe entered against you by the Court without further notice for any money claimed in the Complaitt or for any other claim or relief requested by the Plaintiff You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted en la torte. Si usted quiere defenderse de estas demandas expuestas en las paginas sugnuientes, usted tiene viente (ZO) dixs de plazo al partir de la fecha de la demanda y la notification. Usted debe presentaz una apariencia escrita o en persona o por abogado y azchivar en la torte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la torte tomara medidas y puede entraz una Orden contra usted sin previo aviso o notification y por ctralquier queja o alivio que es pedido en la petition de demands. Usted puede perder dinero o sus propiedades o otros derechos importantes paza usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 276556-I ANGINO & ROVNER, P.C. James DeCinti, Esquire I.D. No. 77421 4503 North Front Street Harrisburg, PA 17110-1708 (717)238-6791 FAX (717)238-5610 E-mail : jdecin[i@angino-rovneccom ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES -CARLISLE, HCR MANORCARE, and MANORCARE, INC. Defendants Attorneys for Plaintiff: Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CNIL ACTION -LAW NO. Oil - .3~0(p.~ ~tvt~~~ JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff Ann Wilson is an adult individual and is the Executrix of the Estate of Helen Kelly, Deceased, by letters of testamentary duly issued by the Register of Wills, Cumberland County, Pennsylvania. 2. Defendants ManorCaze Health Services, Inc., ManorCaze Health Corporation, t/d/b/a ManorCaze Health Services -Carlisle, HCR ManorCaze, and ManorCaze, Inc., are various names for a large national corporation in the business of operating nursing homes around the country, including the facility at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania, where Plaintiffs decedent was allowed to become so severely dehydrated that she died. Plaintiff believes and therefore avers that one or more of the corporate entities identified in this paragraph and in the caption is (are) the proper defendant(s) in this case. Plaintiff is asserting a professional negligence claim against this defendant. 1 276556-1 3. The facts and occurrences hereinafter related took place between September 12, 2002, and March 18, 2003. 4. On or about September 12, 2002, Helen Kelly, was admitted to Defendant HCR ManorCaze -Carlisle facility located at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania, in an effort to be with her husband Edward Kelly, who was dying of cancer and who was residing at Defendant HCR ManorCare - Cazlisle located at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania. 5. At that same time that Helen Kelly was admitted to HCR ManorCare, clinical record review revealed that employees, agents, and servants of Defendant HCR ManorCare were aware that Helen Kelly was diagnosed upon admission to the facility with muscular dystrophy, an ileostomy, and urinazy incontinence. 6. The Nutrition Risk Assessment dated September 18, 2002, indicated that Helen Kelly had a history of good appetite and had aseventy-one percent (71%) meal intake average. Data sheets for February 2003 revealed that Helen Kelly consistently ate eighty percent (80%) to one hundred (100%) of each meal. 7. At all times, the above administrators, practical nurses, licensed practical nurses, social workers, and aides attending Helen Kelly were employees, agents, and servants of the Defendant HCR ManorCare and were acting in the scope of that relationship. 8. Review of the facility's current policies regarding physician notification expressly state that staff are to notify a resident's physician when the resident had a significant change in mental, physical, or emotional condition or an acute episode including a behavioral change. 2 276556-1 9. On or about March 2, 2003, at approximately 11:30 a.m., Helen Kelly complained to the HCR ManorCaze staff of having a sore throat and took only cleaz liquids for lunch. 10. On or about March 6, 2003, at approximately 6:15 p.m., physician's progress notes indicate that Helen Kelly was lethargic and continued to complain to the staff of HCR ManorCare that she was still experiencing a sore throat and poor appetite. 11. At this time Helen Kelly was no longer watching television or attending meals at the dining room as was normally her daily routine. 12. On March 6, 2003, physician's progress notes revealed that Helen Kelly complained of nausea and vomiting and a decrease in appetite. At that time the physician ordered antibiotic therapy for seven days and directed staff to continue to provide Helen Kelly with clear liquids for two more days. 13. On March 7, 2003, at approximately 3:30 a.m., Helen Kelly took only small amounts of fluids resulting in a decreased output from her ileostomy, as well as a small amount of urine output. Later that same day, at approximately 11:15 p.m., the nursing staff documented that Helen Kelly required a lot of encouragement to ingest the clear fluids due to the extreme discomfort resulting from a continuing sore throat that Helen Kelly was experiencing. 14. On March 7, 2003, subsequent to the significant changes in Helen Kelly's medical condition a related care plan was implemented which expressly required each shift to monitor Helen Kelly's vital signs and report any changes to the resident's physician immediately. 15. On March 8, 2003, at approximately 10:20 a.m., interdisciplinary progress notes revealed that Helen Kelly appeared to be weak. Additionally noted was the fact that Helen Kelly had a decrease in blood pressure . 3 nessv-i 16. Helen Kelly's blood pressure readings on an average since the time of her admittance to HCR ManorCare were approximately 118/62; however, the interdisciplinary notes indicate that on March 8, 2003, Helen Kelly was experiencing a significant reduction in blood pressure to 90/58. 17. On March 9, 2003, at approximately 4:30 p.m., interdisciplinary progress notes revealed that Helen Kelly continued to be weak. Additionally noted was the fact that Helen ~ Kelly still was experiencing a decrease in blood pressure . 18. Since March 2, 2003, no attempt was made at any time to notify Helen Kelly's physician of the decrease in Helen Kelly's blood pressure readings, or decrease in her ability to ingest life sustaining liquid nutrients; and there is no evidence that Helen Kelly was comprehensively assessed at that time by any administrators, practical nurses, licensed practical nurses, social workers, or aides attending Helen Kelly. 19. On March 12, 2003, dietary progress notes reveal that Helen Kelly was experiencing a great loss in appetite and that her intake was recorded at a decrease of 15% from her preexisting levels. 20. On March 12, 2003, review of the vital statistics flow sheet discloses that Helen Kelly was continuously experiencing a decrease in blood pressure, which at this point in time was recorded as being 76/40. 21. No attempt was made to notify a licensed nurse of the decrease in Helen Kelly's blood pressure readings, an<i there is no evidence that Helen Kelly was comprehensively assessed at that time by any administrators, practical nurses, licensed practical nurses, social workers or aides attending Helen Kelly. 276556-1 4 __ 22. On March 16, 2003, at approximately 12:15 a.m., interdisciplinary notes reveal that Helen Kelly had not been feeling well for several weeks. At that same time Helen Kelly was noted as being very lethargic and too weak to be able to get out of her bed. 23. Interdisciplinazy notes reveal that from the period of March 6, 2003, through March 16, 2003, Helen Kelly continued to take only liquids and soft foods, consistently complained to the staff of HCR ManorCare that she was experiencing discomfort due to a sore throat, and had a drastic decrease in her appetite 24. Data sheets for the period of March 6, 2003, through the period of March 16, 2003, reveal Helen Kelly had exhibited an average intake of sixteen percent (16%). 25. Helen Kelly's caze plan failed to address the risk for dehydration secondary to her poor intake, and there is no evidence that Helen Kelly's fluid status relative to her intake or output was monitored. 26. There is no evidence that the nursing staff consistently or comprehensively assessed Helen Kelly's changes in condition and behaviors every shift as directed by the HCR ManorCare Acute Episodic Charting policy, nor is there any evidence that Helen Kelly's physician was notified of the continual decline in Helen Kelly's condition until Mazch 17, 2003. 27. There is no evidence that the nursing staff consistently or comprehensively assessed Helen Kelly's complaints of a severe sore throat and a significant decrease in appetite and intake every shift as directed by the HCR ManorCaze Acute Episodic Charting policy, nor is there any evidence that Helen Kelly's physician was notified of the continual decline in Helen Kelly's condition until March 17, 2003. 28. There is no evidence that the nursing staff consistently or comprehensively assessed Helen Kelly's continuous decrease in vita] statistics every shift as directed by the HCR 5 276SSG I ManorCare Acute Episodic Charting policy, nor is there any evidence that Helen Kelly's physician was notified of the continual decline of vital signs in Helen Kelly's condition until March 17, 2003 29. On March 17„ 2003, Helen Kelly was increasingly lethargic and could only open her eyes with the aide of stimulation. 30. At that same time Helen Kelly was experiencing low blood pressure and chest congestion with a decreased oxygen saturation in her blood. 31. On March 17, 2003, Helen Kelly's physician was notified of the aforementioned continuous decline in Helen Kelly's condition. 32. On March 17, 2003, Helen Kelly was emergently transported to Harrisburg Hospital and admitted with pneumonia and acute renal failure secondary to severe dehydration. 33. Helen Kelly expired on March 18, 2003, with the cause of death listed as acute renal failure secondary to severe dehydration. 34. On August 18, 2003, an interview with Helen Kelly's physician revealed that he was never notified of the continued decrease in meal and fluid intake, identified weight loss, complaints of a sore throat, change in blood pressure, and changes in behavior exhibited by Helen Kelly. 35. On August 18, 2003, an interview with the Director of Nursing for HCR ManorCare and the Director of Administration revealed that they were unaware of why Helen Kelly's physician had not been notified of the serious life threatening changes in the condition of Helen Kelly. 6 276556-I 36. As a direct and proximate result of the conduct of Defendant through its administrators, employees, agents, apparent agents, and/or servants, Plaintiffs decedent, Helen Kelly, died of acute renal failure secondary to severe dehydration. 37. Defendant deliberately operated its facility in order to place the maximum number of "heads in the beds," while providing inadequate staffing and care and willfully violating the rules and regulations of the Department of Health of the Commonwealth of Pennsylvania as follows: a. failing to have adequately trained and competent personnel; b. failing to have adequate staffing; c. failing to provide adequate evaluation and care planning for Helen Kelly; d. failure to promptly notify Helen Kelly's physician or an interested family member when there was a significant change physical, medical, or psychological status as required by law; e. failure to report any changes in vital signs as was expressly required under related care plan in a timely fashion; f. failing to enforce its own standards and protocols for protection of residents from sickness and injury; and g. negligently allowing Plaintiffs decedent to die of acute renal failure secondary to severe dehydration. 38. Defendant willfully ignored the potential for serious injury to Helen Kelly by not adhering to the express policies regarding notification of a resident's physician when there was a significant change in the vital signs that were to be monitored at each and every shift. 39. Defendant willfully ignored the potential for serious injury to Helen Kelly by not adhering to the express policies regarding notification of a resident's physician when there was a significant change in the intake of food and fluids by Helen Kelly including; a. failing to have adequately trained and competent personnel; 7 276556-I b. failing to have adequate staffing; c. failing to provide adequate evaluation and care planning for Helen Kelly; d. failure to promptly notify Helen Kelly's physician or an interested family member when there was a significant change physical, medical or psychological status as required by law; e. failure to report any changes in vital signs as was expressly required under related caze plan in a timely fashion; f. failing to enforce its own standazds and protocols for protection of residents from sickness and injury; and g. negligently allowing Plaintiffs decedent to die of acute renal failure secondary to severe dehydration. 40. The conduct of Defendant, through its agents, apparent agents, employees, and/or servants, was reckless and outrageous warranting the imposition of punitive damages. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of Twenty-Five Thousand ($25,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. CLAIM I -SURVIVAL ACTION 41. Paragraphs 1 tl>rough 40 are incorporated herein by reference. 42. Plaintiff Ann Wilson brings this action on behalf of the Estate of Helen Kelly, under and by virtue of the Act of 1976, July 9, P.L. 586, No. 42, §2, Pa.C.S.A. §8302. 43. Defendants are liable to the Estate of Helen Kelly for damages as set forth herein. 44. Plaintiff Ann Wilson, Executrix of the Estate of Helen Kelly, claims on behalf of said Estate the damages suffered by the said Estate by reason of the death of the decedent, for the pain and suffering the decedent underwent prior to death, loss of earnings and earning power for 8 276556-1 decedent's life expectancy, minus costs and personal maintenance and for all other damages sustained by the said Estate by reason of the death of the decedent. WHEREFORE, Plaintiff demand judgment against Defendant in an amount in excess of Twenty-Five ($25,000) thousand dollars exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. CLAIM II -WRONGFUL DEATH 45. Paragraphs 1 through 44 are incorporated herein by reference. 46. Plaintiff Ann Wilson, Executrix of the Estate of Helen Kelly, brings this action for the wrongful death of Helen Kelly on behalf of all persons entitled to recover, therefore, under and by virtue of the Act of 1976, July 9, P.L. 589, No. 142 §2, 42 Pa.C.S.A. §8301(b). 47. Decedent Helen Kelly did not bring an action for these injuries during her lifetime. 48. The following are the names of all persons entitled by law to recover damages for such wrongful death and their relationship to the decedent: Name Ann Wilson David Kelly Daniel Kelly Relationship Daughter Son Son 49. As a result of the aforementioned events, the individuals identified in Paragraph 48 above sustained considerable emotional trauma as well as pain and suffering, and claim is made therefor. 50. As a result of the death of the decedent, the individuals identified above have suffered a pecuniary loss and have been, and in the future will be deprived of the decedent's companionship, contribution, support, comfort, services and so on, for all of which damages are claimed. 9 27fi556-1 51. As a direct acid proximate result of the death of Helen Kelly, Ann Wilson has incurred funeral, burial, and related expenses, as well as expenses for the executrix of the decedent's estate, for all of which claim is made. WHEREFORE, Plaintiff demands judgment against Defendant, in an amount in excess of Twenty-Five Thousand ($25,000) Dollazs, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully submitted, ANGINO & R~OVN~ER, P.C ~' ` \ Date: ~°(,3c J D`f 276556-I James DeCinti, Esquire I.D. No. 77421 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 10 VERIFICATION I, ANN WILSON, verify that the facts set forth in the foregoing COMPLAINT are true and correct to the best of my knowledge, information or belief. I understand that this Verification is made subject to the provisions of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. ~~, ~~~ ANN WILSON, Executnx of t e , Estate of HELEN E. KELLY, deceased, DATED~~~~%d/p ~j ~~ (~~/~ ~ ~ ~~ ~~ ~~ ~~ ~u ~~R c ~~ SHERIFF'S RETURN - REGULAR CASE NO: 2004-03065 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WILSON ANN EXEC EST OF HELEN VS MANORCARE HEALTH SERVICES ETAL GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MANORCARE HEALTH SERVICES INC the DEFENDANT at 1520:00 HOURS, on the 8th day of July 2004 at 940 WALNUT BOTTOM ROAD CARLISLE, PA 17013 by handing to STEVE COETZEE, ADMINISTRATOR, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.70 Affidavit .00 Surcharge 10.00 .00 31.70 Sworn and Subscribed to before me//t~~his ~ day of l..Jk,(..,~_ ~yPUw~I A . D . 77 ~~ Protho~tar So Answers: ~'~,.~ R. Thomas Kline 07/09/2004 ANGINO & ROVNER Deputy She f SHERIFF'S RETURN - REGULAR CASE NO: 2004-03065 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WILSON ANN EXEC EST OF HELEN VS MANORCARE HEALTH SERVICES ETAL GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MANORCARE HEALTH CORP T/D/B/A MANORCARE HEALTH SERVICES-CARL the DEFENDANT at 1520:00 HOURS, on the 8th day of July 2004 at 940 WALNUT BOTTOM ROAD CARLISLE, PA 17013 by handing to STEVE COETZEE, ADMINISTRATOR, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me~this /y`` day of a-~U`f A.tDQa.~' /// <otho ot~aryP~~; r ' So Answers: .*l .o .rn ~. R. Thomas Kline 07/09/2004 ANGINO & ROVNER By . ~~ ~~~i~- Deputy Sh ff SHERIFF'S RETURN - REGULAR CASE NO: 2004-03065 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WILSON ANN EXEC EST OF HELEN VS MANORCARE HEALTH SERVICES ETAL GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon HCR MANORCARE the DEFENDANT at 1520:00 HOURS, on the 8th day of July 2004 at 940 WALNUT BOTTOM ROAD CARLISLE, PA 17013 by handing to STEVE COETZEE, ADMINISTRATOR, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before m/e/'t~~his ~~_ day of p. D, a(h~y A.D. prothonotary So Answers: y.~~~~~ R. Thomas Kline 07/09/2004 ANGINO & ROVNER By . -~. ~A.f'~~ri Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2004-03065 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WILSON ANN EXEC EST OF HELEN VS MANORCARE HEALTH SERVICES ETAL GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MANORCARE INC the DEFENDANT at 1520:00 HOURS, on the 8th day of July 2004 at 940 WALNUT BOTTOM ROAD CARLISLE, PA 17013 by handing to STEVE COETZEE, ADMINISTRATOR, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6,00 Service ,00 Affidavit ,00 Surcharge 10.00 .00 16,00 Sworn and Subscribed to before me this !5~ day of ~,' ~1..(~~ A.D. /- 6 L ~. Q ~ ~., Prothonotary So Answers: R. Thomas Kline 07/09/2004 ANGINO & ROVNER By: )) Deputy Sh f ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES - CARLISLE, HCR MANORCARE, and MANORCARE, INC., Defendants IN THE COURT' OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 04-3065 -Civil Term JURY TRIAL DEMANDED ENTRY OF APPEARANCE Kindly enter our appearance on behalf of Defendants, Pulanorcare Health Services, Inc., Manorcare Health Corporation, tld/b/a Manorcare Health Services -Carlisle, HCR Manorcare, and Manorcare, Inc., in the above-captioned. Respectfully submitted, McKissock & Hoffman, P.C. ~~7 By: Cam-- ~ Edwin A.D. Sch squire I.D. No.: 7'5902 William J. Mundy, Esquire I.D. No.: Ei7679 David L. N/ortman, Esquire I.D. No.: £38529 2040 Ling4estown Road Suite 302 Harrisburg, PA 17110 (717) 540••3400 Dated: 7~?/~6?~ Attorneys for Defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, t/d/b/a Manorcare Health Services -Carlisle, HCR Manorcare, and Manorcare, Inc. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Entry of Appearance 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: James DeCinti, Esquire Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) McK:issock & Hoffman, P.C. G~ By: Edwin A.D. Schwa uire I.D. No.: 75902 William J. Mundy, Esquire I.D. No.: 57679 David L. Wortman, Esquire I.D. No.: 88529 20410 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: 7~t~i~e~ Attorneys 'for Defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, t/d/b/a Manorcare Health Services ~- Carlisle, HCR Manorcare, and Manorcar<;, Inc. ~, ca ~, _- ;, ., , f_ ' ~.'~ . t.: ~__ _ _.-. ,~i i~ rrn C' - ~; r,a cn MCKISSOCK & HOFFMAN, P.C. BY: William J. Mundy Identification No. 57679 BY: Edwin A. Schwartz Identification No. 49071 Attomeys for Defendants 1818 Mazket Street, 13"' Floor Philadelphia, PA 19103 (215)246-2100 ANN WII.SON, Executrix of the Estate of COURT OI' COMMON PLEAS HELEN E. KELLY, Deceased CUMBERLAND COUNTY VS. NO. 04-306:5 CIVIL TERM MANOR CARE HEALTH SERVICES, JURY DEN[AND INC., MANOR CARE HEALTH CORPORATION, t/d/b/a MANOR CARE HEALTH SERVICES -CARLISLE, HCR MANOR CARE and MANOR CARE, INC. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance as attorneys for defendants, Manor Caze Health Services, Inc., Manor Care Health Corporation, t/d/b/a Manor Care Health Services -Cazlisle, HCR Manor Care And Manor Care, Inc., in the above matter. Defendants, Manor Care Health Services, Inc., Manor Care Health Corporation, t/d/b/a Manor Care Health Services -Cazlisle, HCR Manor Care And Manor Caze, Inc., demand a jury of twelve. McKissock & ffrnan, P.C. BY: 1, William J. Mundy Edwin A. Schwartz Attorneys for Defendants n~ caa = 7 A ti ~~~ r . --, m --, "" . ~ ?' _ ; ~ ' ;:-.-~t r; C .., -i C~ .,. ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES - CARLISLE, HCR MANORCARE, and MANORCARE, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 04-3065 -Civil Term JURY TRIAL DEMANDED NOTICE TO: ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased c/o James DeCinti, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-17-8 You are hereby notified to file a written response to the enclosed Preliminary Objections within 20 days of service hereof or a default judgment may be entered against you. PRELIMINARY OBJECTIONS OF DE PENDANTS, MANORCARE HEALTH SERVICES INC. MANORCAP;E HEALTH CORPORATION Ub/d/a MANORCARE HEALTH SERVICES -CARLISLE HCR MANORCARE and MANORCARE, INC.. TO PLAINTIFF'S COMPLAINT Defendants, ManorCare Health Services, Inc., ManorCare Health Corporation, t/b/d/a ManorCare Health Services -Carlisle, HCR ManorCare, and ManorCare, Inc., (hereinafter referred to collectively as "Defendants" unless otherwise indical:ed by syntax), by and through their counsel, McIGssock & Hoffinan, P.C., hereby file these Preliminary Objections to Plaintiff s Complaint and, in the support thereof, aver as follows,: The present civil action was commenced with the filing of a Complaint in the Court of Common Pleas in Cumberland County on July 1, 2004 . I. PRELIMINARY OBJECITON IN THE NATURE OF A MOTION TO STRIKE FOR LACK OF SPECIFICITY PURSUANT TO 1028(al(21&(3) 2. Pa.R.C.P. 1028(a)(2) permits the filing of preliminary objections in the nature of a Motion to Strike for failing to conform to law or rule of court. 3. Pa.R.C.P. 1028(x)(3) permits the filing of preliminary objections in the nature of a Motion to Strike for insufficient specificity in a pleading. 4. Rule 1019(a) requires that all material facts upon which a cause of action is based to be stated in a concise and summary form. 5. Instantly in her Complaint, Plaintiff has failed to specifically identify the specific Defendants that are the subject ofher claims and allegations. 6. Specifically, in Paragraph 2 of Plaintiff s Complaint, it states as follows: 2. Defendants ManorCare Health Services, Inc., ManorCare Health Corporation, t/d/b/a ManorCare Health Services -- Carlisle, HCR ManorCare, and ManorCare, Inc., are various names for a large national corporation in the business of operating nursing l,~omes around the country, including the facility at 9'40 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania, where Plaintiff's decedent was allowed to become so severely dehydrated that shc~ died. Plainti believes and therefore avers that one or more o the corporate entities identified in this DaraFraDh and in the caption is /are) the proper de endant(s) in this case Plaintiff' is asserting a professional negligence claim against this pendant. (Emphasis added.) 7. Plaintiffhas merely named five (5) different Manor Care entities that may or may not be proper Defendants in this matter and as such, Plaintiff has failed to make any direct allegations of negligence or damages against any one specific Defendant.. 8. It is Plaintiff s duty and obligation to exercise <iue diligence in her pre-complaint investigation to determine the proper party defendant. It is improper for Plaintiff to simply name all the different Manor Caze entities as Defendants and "let the; chips fall where they may." Plaintiff's action in this regard is nothing more than an attempt to shift the burden from Plaintiff (to prove negligence by one of the Defendants) to the improperly named Manor Caze Defendants (forcing these defendants to prove their non-involvement). 9. Pennsylvania law requires a plaintiff to plead sufficient facts to give defendant notice as to what plaintiff's claims aze and to adequately inform the defendant as to all relevant issues as relative to that specific defendant. 10. Plaintiff has failed to assert allegations of negligence and damages against specific Defendants in this matter. Plaintiff has merely named several different Manor Care entities as Defendants thereby causing the non-involved and improperly named Manor Care Defendants to expend time and incur costs in responding to an aiction for which they are not a proper party. Defendants are therefore prejudiced in that they are unable to respond to Plaintiff's broad, boilerplate allegations that may or may not be applicable to a specific Defendant. 11. Because Plaintiff's Complaint lacks the requisite; specificity as required under the Pennsylvania Rules of Civil Procedure, Plaintiff's Complaint must be dismissed as failing to comply with law or rule of court. 12. In addition to the lack of factual specificity regarding the proper party Defendant in this action, Plaintiffs Complaint also lacks factual specificity which would enable any Defendant (whichever one is proper) to knowingly and intelligently respond thereto. 13. Specifically, in Paragraph 39(a-g), including all subparagraphs thereunder, Plaintiffs allege as follows: 39. Defendant wildly ignored the,votential for serious injury to Helen Kelly by not adhering to the express policies regarding notification of a resident's physician when there was a significant change in the intake of food and fluia's by Helen Kelly including; a. failing to have adequately trained and competent personnel; b. failing to have adequate :naffing; c. failing to provide adequate evaluation and care planning for Helen 1~elly; d. failure to promptly no~.rify Helen Kelly's physician or an interested family member when there was a significant change in physical, medical or psychological status as required by law; e. failure to report any changes in vital signs as was expressly required under related care plan in a timely fashion; f. failing to enforce its oivn standards and protocols for protection of residents from sickness and injury; and g. negligently allowing Plaintiff's decedent to die of acute renal failure secondary to severe dehydration. 14. The averments contained in Pazagraph 39, and all subpazagraphs contained thereunder, fail to provide any factual specificity in support of such allegations inasmuch as such allegations fail to provide any information as to dates in which the alleged actions and/or omissions are alleged to have occurred and further fails to identify the personnel of the Defendants for whom Plaintiff is attempting to impose liability tiipon Defendants. 15. In addition to the vague and non-specific allegations set forth in Pazagraph 39 of Plaintiff's Complaint, Paragraphs 44 and 50 also contain vague and unspecific allegations of damages allegedly suffered by Plaintiff. Specifically, in these Pazagraphs, Plaintiff alleges: 44. Plaintiff Ann Wilson, Executrix of the Estate of Helen Kelly, claims on behalf of said Estate the damages suffered by the said Estate by reason of the death of the decedent, for the pain and suffering the decedent underwent prior to death, loss of earnings and earning power ,for decedent's life expectancy, minus costs and personal maintenance and for all other damages sustained by the said Estate by reason of the deatiz of the decedent. (Emphasis added.) 50. Asa result of the death of the decedent, the individuals identified above have suffered pecuniary loss and have been, and in .'he future will be deprived of the decedent's companionship, contribution, support, comfort services and so on. for all of which damages are claimed. (Emphasis added.) 16. Such boilerplate averments and open-ended claims for alleged damages fail to contain the requisite specificity necessary to provide a factual basis or explanation as to what damages Plaintiffbelieves she maybe entitled to recover. 17. Vague allegations of negligence and damages affords Plaintiff with the opportunity to introduce new theories of recovery at any time prior to trial and after the expiration of any applicable statute of limitations. See, Connor v. Alleghenv Hospital, 501 Pa. 306, 461 A.2d 600 (1983). 18. Defendants aze prejudiced inasmuch as they do not know the specific acts or omissions which constitute the alleged negligence for which Plaintiff complains. Further, Defendants aze unable to respond to specific allegations of damages because of the vagueness and open-ended nature of Plaintiff pleading. Defendants aze„ therefore, unable to prepare a proper defense to the factual allegations as set forth in Plaintiff's Complaint and as such, cannot intelligently and knowingly answer the allegations set forth in Plaintiff's Complaint. 19. Plaintiffs Complaint lacks the requisite specificity as required under the Pennsylvania Rules of Civil Procedure, and therefore, Plaintifi:'s Complaint must be dismissed as failing to comply with law or rule of court. WHEREFORE, Defendants respectfully request this Honorable Court dismiss Paragraphs 39, 44 and 50 of Plaintiff's Complaint with prejudice and further grant all such further relief as is proper and just. III. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO PARAGRAPH 40 OF PLAINTIFF'S COMPLAINT' ALLEGING RECKLESS AND OUTRAGEOUS CONDUCT -PUNITIVE DAMAG}ES 20. Pazagraph 1 through 19 aze hereby incorporated by reference as if set forth at length. 21. Pa.R.C.P. 1028(a)(4) permits the filing of preliminary objections in the nature of a demurrer for failing to plead an action with the requisite legal sufficiency. 22. In Paragraph 40 of Plaintiffs Complaint, Plaintiff pleads that Defendants' conduct was reckless and outrageous warranting the imposition of punitive damages. Specifically, Plaintiff alleges the following: 40. The conduct of Defendant, through its agents, apparent agents, employees, and/or servants, rovas reckless and outrageous warranting the imposition of punitive damages. 23. Notwithstanding the lack of specificity and broaci nature of Plaintiff's pleading in this Pazagraph, Plaintiff's Complaint fails to set forth any specific factual averments as required by law to support the allegations of reckless and outrageous conduct on part of the Defendants as specifically directed to Plaintiff, Helen E. Kelly. 24. Absent specific factual allegations which support a claim of reckless and outrageous conduct directed to the rights of Helen E. Kelly specifically, Plaintiff cannot, as a matter of law, sustain an action for punitive damages, and thus, the demand for punitive damages must be dismissed as a matter of law. Chambers v. Monteomerv, 411 Pa. 339, 192 A.2d 355 (1963); Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). 25. In order to determine whether or not Defendants exhibited "reckless and outrageous conduct" to Helen E. Kelly, this Honorable Court must analyze whether Defendants actually knew or had reason to know of the facts which created a high risk of physical harm specifically to Plaintiff, Helen Kelly. See, Field v. Philadelrohia Electric Company, 388 Pa. Super. 400, 565 A.2d 1170, 1183 (1989). 26. Punitive damages cannot stand alone; they must stem from the actionable conduct of the Defendants. Thus, if no actual damages flow from the conduct giving rise to the punitive damage, an award is not appropriate. 27. Plaintiff, in her Complaint, has failed to enumerate any specific conduct directed to Plaintiff, Helen E. Kelly, individually, that would constitute reckless and outrageous conduct on behalf of Defendants. At most, Plaintiff's averments as set forth in her theories of negligence, i.e. failing to have adequate staffing, etc., may only be interprel:ed as gross negligence. 28. Pennsylvania law does not allow for an awaa~d of punitive damages for mere inadvertence, mistake, error of judgment and the like which constitutes ordinary and/or gross negligence. Field v. Philadelrohia Electric Company, Supra. WHEREFORE, Defendants respectfully request this Honorable Court dismiss Plaintiff s claims for punitive damages with prejudice and further grant all such further relief as is proper and just. IV. PRELIMINARY OBJECTION TO PARAGRAPHS 49 & 50 OF PLAINTIFF'S COMPLAINT IN THE NATURE OF A DEMURRER 28. Paragraph 1 through 27 are hereby incorporated by reference as if set forth at length. 29. In Paragraph 49 of Plaintiff s Complaint, Plaintiff allege that Plaintiff, Helen E. Kelly's sons and daughter have "sustained considerable emotional trauma as well as pain and suffering, and a claim is made therefore." 30. Specifically, in Paragraph 50 of the Complaint„ Plaintiff states: 50. Asa result of the death of the decedent, the individuals identified above have suffered a pecuniary loss and have been, and in the future will be deprived of the decedem''s companionship, contribution, support, comfort services and so on, for all of which damages are claimed. 31. It is well-established in Pennsylvania law that only a spouse may bring a claim for loss of consortium in civil actions, and that there is no recognized claim or allegation of familial consortium. 32. More generally, consortium means "conjugal fellowship of husband and wife, and the right of each to the company, society, co-operation, affection and aid of the other in every conjugal relationship." BLACK'S LAW DICTIONARY 309 (6`h ed. 1990). A loss of consortium claim arises from the marital relationship and is based on the loss of a spouse's services resulting from an injury. Cleveland v. Johns-Manville Coro, 547 Pa. 402, 690 A.2d 1146, 1149 (Pa. 1997). 33. Based on the previous paragraphs, Plaintiff's adult children are not entitled to the damages alleged in Paragraph 49 and 50. WHEREFORE, Defendants respectfully request this F.[onorable Court dismiss Pazagraphs 49 and 50 of Plaintiffls Complaint with prejudice and further grant all such further relief as is proper and just. Respectfully submitted, McKissock & Hoffman, P.C. BY~_S~~ Edwin A.D. Schwartz, Es I.D. No.: 75902 William J. Mundy, Esquire I.D. No.: 57679 David L. Wortman, Esquire I.D. No.: 88529 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated:~s/ Zee ~ Attorneys for Defendants, Manorcaze Health Services, Inc., Manorcaze Health Corporation, t/d/b/a Manorcaze Health Services - Cazlisle, HCR Manorcare, and Manorcaze, Inc. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Defendants' Preliminary Objection to Plaintiff s Complaint upon the per;con(s) and in the manner indicated below, which service satisfies the requirements of the Pennsyllvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: James DeCinti, Esquire Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (Counsel for Plaintiff McKissock & Hoffinan, P.C. By: G~ Edwin A.D. Schwartz, re I.L). No.: 75902 Wiilliam J. Mundy, Esquire LLI. No.: 57679 David L. Worhnan, Esquire I.L. No.: 88529 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (71.7) 540-3400 Dated: mss.. •5/ Zoay~ Attorneys for Defendants, Manorcaze Health Services, Inc., Manorcaze Health Corporation, t/d/b/a Manorcaze Health Services -- Carlisle, HCR Manorcare, and Manorcare; Inc. ro ~ r, :,, r-,, a `" ,, r >a ,~.:~° ` .,5 rn ~., e ,~ ~. ANGINO & ROVIVER P.C. Lisa M. B. Woodburn, Esquire I.D. No. 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717)238-6791 FAX (717) 238-5610 E-mail : Iwoodburn @angi no-rovner. corn ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. MANORCARE HEALTH SERVICES, INC., t/d/b/a MANORCARE HEALTH SERVICES -CARLISLE Defendants AMENDEI Attorneys for Plaintiff: Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PA CIVIL ACTION -LAW NO. 04-3065 -Civil Term Civil Action - Medical Professional Liability Action NRY TRIAL DEMANDED COMPLAINT 1. Plaintiff Ann Wilson is an adult individual and is the Executrix of the Estate of Helen Kelly, Deceased, by letters of testamentary duly issued by the Register of Wills, Cumberland County, Pennsylvania. 2. Defendant ManorCare Health Services, Inc., t/d/b/a ManorCare Health Services - Carlisle (hereinafter referred to as "ManorCare") is a Delaware corporation licensed to do business in the Commonwealth of Pennsylvania, with a principal office and nursing care facility at 940 Walnut Bottom Road, Carlisle, Pennsylvania. Plaintiff is asserting a professional negligence claim against this Defendant. A Certificate of Merit is filed herewith. 3. The facts and occurrences hereinafter related took place between September 12, 2002, and March 18, 2003. 4. On or about September 12, 2002, Helen Kelly, was admitted to Defendant ManorCare located at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania, in an effort to be with her husband Edward Kelly, who was dying of cancer and who was residing at Defendant ManorCare. 1 295383 5. At that same time Helen Kelly was admitted to Defendant ManorCare, clinical record review revealed employees, agents, and servants of Defendant ManorCare were aware Helen Kelly was diagnosed upon admission to the facility with muscular dystrophy, an ileostomy, and urinary incontinence. 6. Upon admission to Defendant ManorCare Helen Kelly issued an Advanced Directive Declaration whereby she delineated decisions about her care in the event she became unable to make her own decisions. 7. In the aforementioned Advanced Directive Declaration, Helen Kelly elected tube feedings, or any other artificial or invasive forms of hydration or nutrition as well as, elected diagnostic tests, surgery and/or antibiotics should they be deemed necessary. 8. At the same time Helen Kelly made the aforementioned Directive she named her daughter, Ann Wilson as her surrogate to make medical decisions for her, if necessary. 9. The Nutrition Risk Assessment dated September 18, 2002, indicated Helen Kelly had a history of good appetite and had aseventy-one percent (71%) meal intake average. Data sheets for February 2003 revealed that Helen Kelly consistently ate eighty percent (80%) to one hundred (100%) of each meal. 10. At all relevant times, administrators, practical nurses, licensed practical nurses, social workers, and aides attending Helen Kelly were employees, agents, and servants of the Defendant ManorCare and were acting in the scope of that relationship. 11. Review of the facility's current policies regarding physician notification expressly state that staff are to notify a resident's physician when the resident had a significant change in mental, physical, or emotional condition or an acute episode including a behavioral change. 2 295383 12. On or about March 2, 2003, at approximately 11:30 a.m., Helen Kelly complained to Defendant ManorCare staff of having a sore throat and took only clear liquids for lunch. 13. On or about Mazch 6, 2003, at approximately 6:15 p.m., physician's progress notes indicate Helen Kelly was lethargic and continued to complain to the staff of Defendant ManorCare that she was still experiencing a sore throat and poor appetite. 14, At or around this same timeframe, March 6, 2003, Helen Kelly was no longer watching television or attending meals at the dining room as was normally her daily routine. 15. On March 6, 2003, physician's progress notes revealed Helen Kelly complained of nausea and vomiting and a decrease in appetite and the physician ordered antibiotic therapy for seven days as well as directed staff of Defendant ManorCare to continue to provide Helen Kelly with clear liquids for two more days. 16. On March 7, 2003, at approximately 3:30 a.m., Helen Kelly took only small amounts of fluids resulting in a decreased output from her ileostomy, as well as a small amount of urine output. Later that same day, at approximately 11:15 p.m., the nursing staff documented Helen Kelly required a lot of encouragement to ingest the cleaz fluids due to the extreme discomfort resulting from a continuing sore throat that Helen Kelly was experiencing. 17. On March 7, 2003, subsequent to the significant changes in Helen Kelly's medical condition a related care plan was implemented which expressly required each shift to monitor Helen Kelly's vita] signs and report any changes to the resident's physician immediately, 18. On March 8, 2003, at approximately 10:20 a.m., interdisciplinary progress notes revealed that Helen Kelly appeazed to be weak. Additionally noted was the fact that Helen Kelly had a decrease in blood pressure . 3 295383 19. Helen Kelly's blood pressure readings on an average since the time of her admittance to Defendant ManorCare were approximately 118/62; however, the interdisciplinary notes indicate that on March 8, 2003, Helen Kelly was experiencing a significant reduction in blood pressure to 90/58. 20. On March 9, 2003, at approximately 4:30 p.m., interdisciplinary progress notes revealed that Helen Kelly continued to be weak. Additionally noted was the fact that Helen Kelly still was experiencing a decrease in blood pressure . 21. Since March 2, 2003, no attempt was made at any time to notify Helen Kelly's physician of the decrease in Helen Kelly's blood pressure readings, or decrease in her ability to ingest life sustaining liquid nutrients; and there is no evidence that Helen Kelly was comprehensively assessed at that time by any administrators, practical nurses, licensed practical nurses, social workers, or aides attending Helen Kelly. 22. On March 12, 2003, dietary progress notes reveal that Helen Kelly was experiencing a great loss in appetite and that her intake was recorded at a decrease of 15% from her preexisting levels. 23. On March 12, 2003, review of the vital statistics flow sheet discloses that Helen Kelly was continuously experiencing a decrease in blood pressure, which at this point in time was recorded as being 76/40. 24. No attempt was made to notify a licensed nurse of the decrease in Helen Kelly's blood pressure readings, and there is no evidence that Helen Kelly was comprehensively assessed at that time by any administrators, practical nurses, licensed practical nurses, social workers or aides attending Helen Kelly. 4 295383 25. On March 16, 2003, at approximately 12:15 a.m., interdisciplinary notes reveal that Helen Kelly had not been feeling well for several weeks. At that same time Helen Kelly was noted as being very lethargic and too weak to be able to get out of her bed. 26. Interdisciplinary notes reveal that from the period of March 6, 2003, through March 16, 2003, Helen Kelly continued to take only liquids and soft foods, consistently complained to the staff of Defendant ManorCare she was experiencing discomfort due to a sore throat, and had a drastic decrease in her appetite 27. Data sheets for the period of March 6, 2003, through the period of March 16, 2003, reveal Helen Kelly had exhibited an average intake of sixteen percent (16%). 28. Helen Kelly's care plan failed to address the risk for dehydration secondary to her poor intake, and there is no evidence that Helen Kelly's fluid status relative to her intake or output was monitored. 29. There is no evidence that the nursing staff consistently or comprehensively assessed Helen Kelly's changes in condition and behaviors every shift as directed by the Defendant ManorCare Acute Episodic Charting policy, nor is there any evidence that Helen Kelly's physician was notified of the continual decline in Helen Kelly's condition until March 17, 2003. 30. There is no evidence that the nursing staff consistently or comprehensively assessed Helen Kelly's complaints of a severe sore throat and a significant decrease in appetite and intake every shift as directed by Defendant ManorCare Acute Episodic Charting policy, nor is there any evidence that Helen Kelly's physician was notified of the continual decline in Helen Kelly's condition until March 17, 2003. 5 295383 31. There is no evidence the nursing staff consistently or comprehensively assessed Helen Kelly's continuous decrease in vital statistics every shift as directed by the Defendant ManorCaze Acute Episodic Charting policy, nor is there any evidence that Helen Kelly's physician was notified of the continual decline of vital signs in Helen Kelly's condition until March 17, 2003 32. On March 17, 2003, Helen Kelly was increasingly lethargic and could only open her eyes with the aide of stimulation. 33. At that same time Helen Kelly was experiencing low blood pressure and chest congestion with a decreased oxygen saturation in her blood. 34. On Mazch 17, 2003, Helen Kelly's physician was notified of the aforementioned continuous decline in Helen Kelly's condition. 35. On March 17, 2003, Helen Kelly was emergently transported to Harrisburg Hospital and admitted with pneumonia and acute renal failure secondary to severe dehydration. 36. Helen Kelly expired on March 18, 2003, with the cause of death listed as acute renal failure secondary to severe dehydration. 37. On August 18, 2003, an interview with Helen Kelly's physician revealed that he was never notified of the continued decrease in meal and fluid intake, identified weight loss, complaints of a sore throat, change in blood pressure, and changes in behavior exhibited by Helen Kelly. 38. On August 18, 2003, an interview with the Director of Nursing for Defendant ManorCaze and the Director of Administration revealed they were unaware of why Helen Kelly's physician had not been notified of the serious life threatening changes in the condition of Helen Kelly. 6 295383 39. At all relevant times herein, Helen Kelly, deceased, reasonably relied upon the appazent expertise, confidence, diagnosis, conclusions and authority of Defendant ManorCare. 40. At all relevant times herein, Defendant ManorCare, owed a duty to Helen Kelly, deceased, to provide adequate and appropriate medical care. 41. As a direct and proximate result of the conduct of Defendant ManorCare through its administrators, employees, agents, apparent agents, and/or servants, Plaintiffs decedent, Helen Kelly, died of acute renal failure secondary to severe dehydration. 42. Defendant ManorCare, through its administrators and staff, deliberately operated its facility in order to place the maximum number of "heads in the beds," while providing inadequate staffing and care and willfully violating the rules and regulations of the Department of Health of the Commonwealth of Pennsylvania as follows: a. failing to have adequately trained and competent personnel; b. failing to have adequate staffing; c. failing to provide adequate evaluation and care planning for Helen Kelly; d. failure to promptly notify Helen Kelly's physician or an interested family member when there was a significant change physical, medical, or psychological status as required by law; e. failure to report any changes in vital signs as was expressly required under related care plan in a timely fashion; f. failing to enforce its own standards and protocols for protection of residents from sickness and injury; and g. negligently allowing Plaintiffs decedent to die of acute renal failure secondary to severe dehydration. 43. Defendant ManorCare, through its Administrators and staff, willfully ignored the potential for serious injury to Helen Kelly by not adhering to the express policies regarding 7 295383 notification of a resident's physician when there was a significant change in vital signs that were to be monitored at each and every shift. 44. Defendant ManorCare, through its administrators and staff, willfully ignored the potential for serious injury to Helen Kelly by not adhering to the express policies regarding notification of a resident's physician when there was a significant change in the intake of food and fluids. 45. Defendant ManorCare, provided inadequate medical care and medical care that fell below the appropriate standard of care, and was therefore negligent with respect to the care provided to Helen Kelly by: a. failing to monitor intake and output when it became apparent that her intake, as documented in the medical records, had been severely compromised; b. failing to respond appropriately when an obvious decrease in fluid intake occurred; c. failing to provide even minimal nutrition and hydration; d. failure to promptly notify Helen Kelly's family member when there was a significant change in her status as required by law; e. failure to perform and document a proper nursing assessment of the patient upon a noted change in her baseline vital signs; f. failure to report any changes in vital signs as was expressly required under related care plan in a timely fashion; g. failing to provide a safe environment to a patient who was documented to be dependent on ADL's including feeding; h. negligently allowing Plaintiffs decedent to die of acute renal failure secondary to severe dehydration; and i. failing to adequately administer diagnostic testing, artificial means of nutrition and/or hydration, or implement measures to maintain her comfort as evidenced by her repeated complaints of pain and not feeling well. 8 295383 46. As a direct and proximate result of Defendant ManorCare's negligence, as alleged herein, and incorporated herein by reference, as if set forth at length, Helen Kelly died. Her death could have been prevented and would not have occurred but for Defendant ManorCare's negligence. 47. The conduct of Defendant ManorCare, through its agents, apparent agents, employees, and/or servants by failing to adhere to policies for notification of family members and patient physicians when there is a noted change in the patient's status was reckless and outrageous warranting the imposition of punitive damages. 48. Defendant ManorCare knew or should have known the actions or inactions set forth above would create a high risk of physical harm to Helen Kelly. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of Twenty-Five Thousand ($25,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. CLAIM I -SURVIVAL ACTION 49. Pazagraphs 1 through 48 are incorporated herein by reference as it set forth in full and at length. 50. Plaintiff Ann Wilson brings this action on behalf of the Estate of Helen Kelly, under and by virtue of the Act of 1976, July 9, P.L. 586, No. 42, §2, Pa.C.S.A. §8302. 51. Defendants are liable to the Estate of Helen Kelly for damages as set forth herein. 52. Plaintiff Ann Wilson, Executrix of the Estate of Helen Kelly, claims on behalf of said Estate the damages suffered by the said Estate by reason of the death of the decedent, for the 9 295383 pain and suffering the decedent underwent prior to death, and for all other damages allowed by law and seen by reason of Helen Kelly's death, as recognized by Pennsylvania's Survival Act. WHEREFORE, Plaintiff demand judgment against Defendant in an amount in excess of Twenty-Five ($25,000) thousand dollars exclusive of interest and costs, and in excess of airy jurisdictional amount requiring compulsory arbitration. CLAIM II -WRONGFUL DEATH 53. Paragraphs 1 through 52 are incorporated herein by reference. 54. Plaintiff Ann Wilson, Executrix of the Estate of Helen Kelly, brings this action for the wrongful death of Helen Kelly on behalf of all persons entitled to recover, therefore; under and by virtue of the Act of 1976, July 9, P.L. 589, No. 142 §2, 42 Pa.C.S.A. §8301(b). 55. Decedent Helen Kelly did not bring an action for these injuries during her lifetime. 56. The following aze the names of all persons entitled by law to recover damages for such wrongful death and their relationship to the decedent: Name Ann Wilson David Kelly Daniel Kelly Relationshiv Daughter Son Son 57. As a result of Helen Kelly's death, her surviving son, Daniel Kelly, who is blindlMR disabled, has been deprived of the comfort, aid, assistance, society, consortium, tutelage and maintenance he would have received from Helen Kelly for the remainder of his natural life and claim is made for damages resulting thereby. 58. Plaintiff Ann Wilson, Executrix of the Estate of Helen Kelly, brings a claim for damages under and by virtue of Pennsylvania's Wrongful Death Act. In this regard, she seeks recovery for all damages recoverable under and by virtue of Pennsylvania Wrongful Death Act. 10 295383 59. As a direct and proximate result of the death of Helen Kelly, Plaintiff has incurred funeral, burial, pecuniary, and related expenses, as well as expenses for the executrix of the decedent's estate, for all of which claim is made. WHEREFORE, Plaintiff demands judgment against Defendant, in an amount in excess of Twenty-Five Thousand ($25,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. Date: 5 ~ ~~ /~ 11 Respectfully submitted, ANGINO & ROVNER, P.C. ~G%~~-- Lisa M. B. Woodburn, Esquire I.D. No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 295383 VERIFICATION I, Ann Wilson, Plaintiff, have read the foregoing Amended Complaint and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of my knowledge, information and belief I understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. fitness Dated: ,,~~~~ Ann Wilson Date: ~3~/~~~~ CERTIFICATE OF SERVICE I, Katherine D. Zimmerman, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of Amended Complaint via United States certified mail, return receipt requested, postage prepaid, upon the following, addressed as follows: Edwin A. D. Schwartz, Esquire William J. Mundy, Esquire McI{issock & Hoffinan, P.C. 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Dated: ~ ~ ~5 ~b~ 12 295383 y ~t . ~ t „~' 4 ~~Y ~~ 11 ~~1 .r 7 ~ f9 ~-. (.~~ ANGINO & ROVNER, P.C. Lisa M. B. Woodburn, Esquire LD. No. 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717)238-6791 FAX (717) 238-5610 E-mai I : I woodbum@angi no-rovn er. corn ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff Attorneys for Plaintiff Ann Wilson, Execu[rix of the Estate of Helen E. Kelly, deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW v. MANORCARE HEALTH SERVICES, INC., NO. 04-3065 Civil Term MANORCARE HEALTH CORPORATION, Civil Action- t/d/b/a MANORCARE HEALTH SERVICES Medical Professional Liability Action - CARLISLE, HCR MANORCARE, and MANORCARE, INC. Defendants JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO DENY OR REMOVE NON-PROS PURSUANT TO RULE 1042.6 AND NOW, comes Plaintiff by and through her attorneys, Angino & Rovner, P.C., and respectfully request the Court to deny or remove the non-pros which was filed by Defendant ManorCare for the following reasons: 1. On or about March 17, 2005, Defendant ManorCare filed a Praecipe to Enter Judgment against Plaintiff in the above-captioned action. 2. Plaintiff filed an Amended Complaint in the above-captioned action on or about March 16, 2005. 296843 3. The Amended Complaint states a Certificate of Merit is attached hereto. 4. Due to an inadvertence the Certificate of Merit was not attached to the Amended Complaint. See, Exhibit "A," Affidavit of Attorney. 5. Plaintiff avers the Certificate of Merit should be filed nunc pro tune as of the date of the Amended Complaint. 6. Plaintiff further avers Plaintiffs right to proceed on the merits should not be compromised when no prejudice has come to Defendants. WHEREFORE, Plaintiffs respectfully request Your Honorable Court to deny or remove the non-pros against Plaintiff, Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased, and reinstate the claim against Defendant ManorCaze. Dated: S~ <~,~- C~ Respectfully submitted, ANGINO & ROVNER, P.C. i / ;', i Lis M.B. Woodburn, Esquire LD. No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717)238-6791 Attorney for Plaintiff 2 296843 ~ ~~~ AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN ss I, Lisa M. B. Woodburn, Esquire, being duly sworn according to law, depose and say the Certificate of Merit was not attached to the Amended Complaint filed on March 16, 2005, due to pure clerical error, inadvertence, or mistake. I offer Plaintiffs file and the Statements of Merit signed by the experts who have reviewed the case if the Court wishes to take an in camera look at the issue. The appropriate Statements of Merit and a Certificate of Merit would have been filed prior to the Praecipe for Non-Pros, but for the clerical error. .. ~ _ cl ~ ~~(:t.--~ L' M. .Woodburn Sworn to and subscribed before me thisaa" day of ~,~ C,~ , 2005. ~~, ~QQ Notary Public My Commission Expires: N ~x ~oru~u.~t presrN~r. sKUexm, taa~nrreale 3USQIIEN~NNAIMT., DWflNN CQ YIV COMMISSION OIPIRES FEB.16 200! 295847 CERTIFICATE OF SERVICE I, Katherine D. Zimmerman, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PLAINTIFF'S MOTION TO DENY OR REMOVE NON-PROS PURSUANT TO RULE 1042.6 on the following via postage prepaid, first class United States mail, addressed as follows: Edwin A. D. Schwartz, Esquire William J. Mundy, Esquire McKissock & Hoffinan, P.C. 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 ,/~ Katherine D. Zimrrleyrfian Dated: ~ ~~ ~~ ~ ~~ 3 296843 <^~ l ~ c~ ~tl (_. ~ - fV ~ -i ~. 'Y '~l ~ ~. ~ .- rCi 'J G~ ~' 'y-, (f} ~ a ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES - CARLISLE, HCR MANORCARE, and MANORCARE, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 04-3065 -Civil Term JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS PURSUANT TO RULE 1042.6 To the Prothonotary: Kindly enter judgment of non pros against Plaintiff, Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased, in the professional liability claim against Defendants, ManorCare Health Services, Inc., ManorCare Health Corporation, t/b/d/a ManorCare Health Services - Carlisle, HCR ManorCare, and ManorCare, Inc , in the above-captioned matter. I, Edwin A.D. Schwartz, Esquire, certify that the Plaintiff named above has asserted a professional liability claim against the Defendants named above who are licensed professionals, as defined by Pa.R.C.P. 1042.1(b)(1)(i) and (vii), and that no certificate of merit has been filed within the time required by Pa.R.C.P. 1042.3 and that there is no motion to extend the time for filing the certificate pending before the court. The Complaint in this action was filed on July 1, 2004 and more than sixty (60) days have elapsed without the filing of a certificate of merit or a motion seeking an extension of time for the filing of a certificate of merit. Respecttully submitted, By: Edwin A.D. Schwart Attorney I.D. #: 7590 2040 Linglestown Road, Ste. 302 Harrisburg, PA 17110 (717) 540-3400 Date: March 17, 2005 Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Praecipe for Judgment of Non Pros 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: Lisa M.B. Woodburn, Esquire Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (Counsel for Plaintiffi) McKissock & Hoffman, P.C. By: Edwin A.D. Schwar~Es4u)re I.D. No.: 75902 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: 3/l~~os Attorneys for Defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, t/d/b/a Manorcare Health Services -Carlisle, HCR Manorcare, and Manorcare, Inc. ..~ ,, ~- , ,,- -, ti ~p ; , ,, ~' _ ~ ~~, c ~. ~ _ 6 `,.J 1' _. . r~ . , _. ~-- x... ~ 4, ~~. ~~ ~ -~ ANGINO & ROVNER, P.C. Lisa M. B. Woodburn, Esquire LD. No. 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717)238-6791 FAX (717) 238-5610 E-mail : lwoodburn@angino-rovner. com ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. Attorneys for Plaintiff: Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW MANORCARE HEALTH SERVICES, INC., NO. 04-3065 Civil Term MANORCARE HEALTH CORPORATION, Civil Action - t/d/b/a MANORCARE HEALTH SERVICES Medical Professional Liability Action -CARLISLE, HCR MANORCARE, and MANORCARE, INC. Defendants JURY TRIAL DEMANDED Certificate of Merit as to ManorCare Health Services, Inc., t/d/b/a ManorCare Health Services -Carlisle I, Lisa M. B. Woodburn, 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; OR 296833 (X) the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR ( )expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: March 22, 2005 296833 ~ ~ ~- Lisa M. B. Woodburn, Esquire I.D. No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 2 CERTIFICATE OF SERVICE I, Katherine D. Zimmerman, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of Certificate of Merit on the following via postage prepaid, first class United States mail, addressed as follows: Edwin A. D. Schwartz, Esquire William J. Mundy, Esquire McKissock & Hoffinan, P.C. 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 ~ ~~ Dated: ~ ~ Z~vS ~~ atherine D. Zimmii 296833 3 -t3 ~~r --~ ~ -r-i 1'j.~y4, • ~__;. ~ ~~ ~ V ~ 6 ~ i e ' `~~ - i ~._.., i.J rrt ~' C"" G~ _y -,f ANGINO & ROVNER, P.C. Lisa M. B. Woodburn, Esquire I.D. No. 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX {717) 238-5610 E-mail : lwoodburn@angino-rovner. com ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. LIAR 2 ~ 2tlU~ ~4~ Attorneys for Plaintiff: Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -- LAW MANORCARE HEALTH SERVICES, INC., NO. 04-3065 Civil Term MANORCARE HEALTH CORPORATION, Civil Action - t/d/b/a MANORCARE HEALTH SERVICES Medical Professional Liability Action -CARLISLE, HCR MANORCARE, and MANORCARE, INC. Defendants I JURY TRIAL DEMANDED ORDE~~R AND NOW, this ~~ y of ~~~~"~" - 2005, upon consideration of w Plaintiffs Motion To Deny or Remove Non-Pros Pursuant to Rule 1042.6, i~t-rs °lYereby a s i ~ ~'"'""r J. ~~ ~,. ~~.~~ ~ ~ .. _ __ ~~. ., ~e ~ 296843 ~~~ ~:~~%°`~..I~~i.-~ ANGINO & ROVNER, P.C. Lisa M. B. Woodburn, Esquire I.D. No. 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717)238-6791 FAX (717) 238-5610 E-mail : lwoodburn@angino-rovner.com Attorneys for Plaintiff: Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES -CARLISLE, HCR MANORCARE, and MANORCARE, INC. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 04-3065 Civil Term Civil Action Medical Professional Liability Action JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO DENY OR REMOVE NON-PROS PURSUANT TO RULE 1042.6 AND NOW, comes Plaintiff by and through her attorneys, Angino & Rovner, P.C., and respectfully request the Court to deny or remove the non-pros which was filed by Defendant ManorCare for the following reasons: 1. On or about March 17, 2005, Defendant ManorCare filed a Praecipe to Enter Judgment against Plaintiff in the above-captioned action. 2. Plaintiff filed an Amended Complaint in the above-captioned action on or about March 16, 2005. 296843 _. 3. The Amended Complaint states a Certificate of Merit is attached hereto. 4. Due to an inadvertence the Certificate of Merit was not attached to the Amended Complaint. See, Exhibit "A," Affidavit of Attorney. 5. Plaintiff avers the Certificate of Merit should be filed nunc pro tunc as of the date of the Amended Complaint. 6. Plaintiff further avers Plaintiffs right to proceed on the merits should not be compromised when no prejudice has come to Defendants. WHEREFORE, Plaintiffs respectfully request Your Honorable Court to deny or remove the non-pros against Plaintiff, Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased, and reinstate the claim against Defendant ManorCare. Respectfully submitted, ANGINO & ROVNER, P.C. / ~. Lis ~M. B. Woodburn, Esquire I.D. No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff Dated: S ~~ - ~~ ~ - ~-~ 296843 2 ~~ AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN ss I, Lisa M. B. Woodburn, Esquire, being duly sworn according to law, depose and say the Certificate of Merit was not attached to the Amended Complaint filed on March 16, 2005, due to pure clerical error, inadvertence, or mistake. I offer Plaintiffs file and the Statements of Merit signed by the experts who have reviewed the case if the Court wishes to take an in camera look at the issue. The appropriate Statements of Merit and a Certificate of Merit would have been filed prior to the Praecipe for Non-Pros, but for the clerical error. L' M. .Woodburn Sworn to and subscribed before me this a off" day of ~ C.~_ , 2005. C`-'"'~ ~ Notary Public My Commission Expires: wE~l,~-a fONpS1N1E M. BAl1A6NEA~ NORAIlrl~lltlQ EtlSWIENANNA 1MR, OM)PIRN CQ MY C~iN11SS10N 1)WIRES FEB.16 200! 296847 i CERTIFICATE OF SERVICE I, Katherine D. Zimmerman, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PLAINTIFF'S MOTION TO DENY OR REMOVE NON-PROS PURSUANT TO RULE 1042.6 on the following via postage prepaid, first class United States mail, addressed as follows: Edwin A. D. Schwartz, Esquire William J. Mundy, Esquire McKissock & Hoffman, P.C. 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 J~ ~ ~~. %' Katherine D. Zi an ~/ ~~ Dated: ,.,~ D `~ ~~ 296843 3 °;~` a~ ~ _~~ ~ ~h ~`~~" ~ ~ ~~~ d; .-, r , `-i ~" ~-:- ~`~ LINDA K. ORNDORFF, Plaintiff v. BARRY L. ORNDORFF, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-3056 CIVIL TERM IN DIVORCE REQUEST FOR HEARING OFFICE OF THE PROTHONOTARY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 Dear Sir: Please accept this communication as a Request for Hearing De Novo in the above-referenced alimony pendente lite matter. WEIGLE & ASSOCIATES P.C. _.~ ~/1 oI ~ ~~ .~.~ ~"erry A. We le, Esquire Attorney for laintiff Attorney ID # 01624 126 East King Street Shippensburg, PA 17257 Telephone 717-532-7388 WEIGLE 6c ASSOCIATES, P.C. -ATTORNEYS AT LAW - 126 EAST KING STREE"f - SHIPPENSBURG, PA 17257-1397 t} ~ ~ -~ ~-! ~= ~i ~ .~' ~_~ N ``" tr ~=: N Cr Q Y' C -~ - .--t ~j ~ ~ ~~ ~~ ..t. r ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES - CARLISLE, HCR MANORCARE, and MANORCARE, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 04-3065 -Civil Term JURY TRIAL DEMANDED AND NOW comes Defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, tld/bla Manorcare Health Services -Carlisle, HCR Manorcare, and Manorcare, Inc. (hereinafter referred to collectively as "Defendants" unless otherwise indicated by syntax}, by and through their counsel, McKissock & Hoffman, P.C., and respectfully provide the foregoing Response to Plaintiff's Motion to Deny or Remove Non Pros Pursuant to Rule 1042.6 and as such, provides as follows: 1. It is admitted that on March 17, 2005 that Defendants filed a Praecipe for Entry of Judgment Non Pros pursuant to Rule 1042.6. By way of further response, Plaintiff's original Complaint in this action was filed on or about July 1, 2004. Therefore, pursuant to the mandates of Pa.R.C.P. 1042.1 et seq., Plaintiff's were obligated to file a Certificate of Merit on or before August 30, 2004. Plaintiff's did not file the requisite Certificate of Merit. 2. Admitted. By way of further response, the Amended Complaint as filed by Plaintiff in this action did not contain the requisite Certificate of Merit. 3. Denied as stated. Plaintiff's Amended Complaint, specifically ¶2, indicates that a Certificate of Merit is "filed herewith". 4. Defendants are without sufficient information to admit or deny the alleged basis for Plaintiff's failure to attach the Certificate of Merit to the Amended Complaint. However, by way of further response, given the filing date of Plaintiff's original Complaint as July 1, 2004, Plaintiff was obligated to file the requisite Certificate of Merit on or before August 30, 2004 and as such, any action in Plaintiff's failing to provide the requisite Certificate of Merit with the Amended Complaint cannot be deemed "inadvertence". By way of further response, 259 days lapsed from the date Plaintiff originally filed the Complaint in this action and no Certificate of Merit was filed. Pennsylvania Rule of Civil Procedure 1042.3 requires the filing of a Certificate of Merit within 60 days following the filing of the Complaint. The lapse of almost 200 days beyond the requisite filing date cannot be deemed an "inadvertence". 5. In the instant action, 259 days lapsed from the filing of the original Complaint without any Certificate of Merit being filed by the Plaintiff. Plaintiff's prayer for relief in the form of nunc pro tunc filing of the Certificate of Merit is contrary to the established case law of the Commonwealth. See, Hoover v. Davila, 2004 Pa. Super. 314, 862 A.2d 591 (2004); Jackson v. Sweitzer, 67 Pa. D & C 4th, 239 (CCP -York, July 12, 2004); Helfrick v. UPMC Shadyside Hospital, 65 Pa. D & C 4th, 420 (CCP -Allegheny, October 7, 2003). 6. The averments contained in ¶6 are specifically denied. 7. Plaintiff's failure to comply with the Rules of Civil Procedure warrants the entry of Judgment Non Pros in this matter and the issue of prejudice is an inappropriate analysis as to this issue. See, Helfrick: If a court were to apply Rule 126 to a petition to open a judgment of non pros for failure to file a certificate of merit unless the defendant can show prejudice, the petition would almost always be granted. Defendants are not going to be able to show that they were prejudice by the late filing of a certificate of merit regardless of whether the delay involves 10 days, 30 days or 90 days. Consequently, the use of a prejudice standard would eliminate the rules deadlines for filing certificate of merits... this is not a proper application of Rule 126. Helfrick at 424-25, (Opinion by Judge Wettick). WHEREFORE, Defendants respectfully request this Honorable Court deny Plaintiff's Motion to Deny or Remove Non Pros pursuant to Rule 1042.6 and further grant Defendants all such further relief as is proper and just. Respectfully submitted, McKissock & Hoffman, P.C. By: Edwin A.D. Schwart quire I.D. No.: 75902 William J. Mundy, Esquire I.D. No.: 57679 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated:~.~,~~~! ~S Attorneys for Defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, t/d/b/a Manorcare Health Services - Carlisle, HCR Manorcare, and Manorcare, Inc. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document 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: Lisa Woodburn, Esquire Angino & Rovner, P.C, 4503 N. Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) McKissock & Hoffman, P.C. By: Edwin A. D. Schwart E uire I.D. No.: 75902 William J. Mundy, Esquire I.D. No.: 57679 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: 3 ~ Attorneys for Defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, t/d/b/a Manorcare Health Services -Carlisle, HCR Manorcare, and Manorcare, Inc. ~~ ' _ - _; j ... .` ~ . > ~ ...q7 ~~ ..^_f 1 fi.3 .,s ~ r _ } . .-{,~ _ ~ ~ '-w. -- ANN WILSON, Executrix IN THE COURT OF COMMON PLEAS OF of the Estate of CUMBERLAND COUNTY, PENNSYLVANIA HELEN E. KELLY, deceased VS N0. 2004-3065 CIVIL TERM MANORCARE HEALTH SERVICES, INC., . 'iMANORCARE HEALTH CORPORATION, !t/d/bJa MANORCARE HEALTH SERVICES: CARLISLE, HCR MANORCARE, and CIVIL ACTION - LAW MANORCARE, INC. ORDER OF COURT AND NOW, this 2nd day of May, 2005, it having been elated to the Court that the parties will be able to reach a tipulation as to the disputed facts, there is no need to proceed ith rescheduled hearing. The motion shall be resolved at argument ourt in accordance with the loca,J._.~uies of court. By tp~ Court, isa M.B. Woodburn, Esquire 503 North Front Street arrisburg, PA 17110 win A.D.Schwartz, Esquire 40 Linglestown Road ite 302 rrisburg, PA 17110 u ~~°' , ~~e_ o5a5 . ~, ,~ ,~ _~ , +~~'_ ~~ 1 ~ , ''.~ `~ as~_ ~Q V~~~~~~ ANGINO & ROVNER, P.C. Lisa M. B. Woodburn, Esquire LD. No. 89397 4503 North Front Street Harrisburg PA 17110-1708 (717)238-6791 FAX (717) 238-5610 E-mai I : IwoodbumLangino-rovneccom ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. Attorneys for Plaintiff: Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW MANORCARE HEALTH SERVICES, INC., NO. 04-3065 Civil Term MANORCARE HEALTH CORPORATION, Civil Action t/d/b/a MANORCARE HEALTH SERVICES Medical Professional Liability Action -CARLISLE, HCR MANORCARE, and MANORCARE, INC. Defendants JURY TRIAL DEMANDED STIPULATION OF FACTS 1. Plaintiffs Complaint was filed in the Court of Common Pleas of Cumberland County on July 1, 2004, and states, "Plaintiff is asserting a professional negligence claim against this defendant." A Certificate of Merit was not filed with the Complaint or within sixty (60) days after the filing of the Complaint. 2. Preliminary Objections were filed by Defendant. 3. An Amended Complaint was filed by Plaintiff on March 16, 2005. See, Exhibit "A" attached hereto. 1 299R43 4. Plaintiffs Amended Complaint states, "A Certificate of Merit is filed herewith." See, Exhibit "A" attached hereto. No Certificate of Merit was filed with the Amended Complaint. 5. Defense Counsel accepted service of the Amended Complaint on March 17, 2005. See, Exhibit "B" attached hereto. 6. On March 17, 2005, Defendant filed a Praecipe for Entry of Judgment of Non Pros pursuant to Rule 1042.6. See, Exhibit "C" attached hereto. 7. Plaintiffs counsel received the Praecipe for Non Pros by regular mail on March 21.2005. 8. Plaintiffs counsel placed a phone call to defense counsel requesting his Praecipe for Entry of Judgment of Non Pros pursuant to Rule 1042.6 be withdrawn. 9. Defense counsel returned Plaintiffs counsel's call on March 22, 2005, and indicated he had personally gone through the file in the Prothonotary's office and no Certificate of Merit was present. 10. On March 22, 2005, Plaintiffs counsel filed a Motion to Deny or Remove the Non Pros pursuant to Rule 1042.6. See, Exhibit "D" attached hereto. 11. Defendant responded to Plaintiffs Motion to Deny or Remove Non Pros pursuant to Rule 1042.6 on March 24, 2005. See, Exhibit "E" attached hereto. 12. The Honorable Edward E. Guido issued a Rule upon Defendant to show cause why Plaintiffs Motion to Deny or Remove Non Pros pursuant to Rule 1042.6 should not be granted. 2 299843 13. On May 2, 2005, Plaintiffs counsel informed and showed Defense Counsel three separate statements of merit that predate the Entry of Judgment of Non Pros. See, Exhibit "F" attached hereto. 14. No Certificate of Merit was filed of record with the Prothonotary of Cumberland County prior to Defendant's Praecipe for Entry of Non Pros on March 17, 2005. Respectfully submitted, MCKI~SSO~CK & HOFFMAN, P.C. C:-~- Edward A. D. Schw I.D. No. 75902 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorney for Defendant ANGINO & ROVNER, P.C. Lisa M. B. Woodburn, Esquire LD. No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff Dated: S,~~cs Date: 5/~zc/cS 3 z~<~ha3 Cox ANG1N0 & ROVNER, P.C. Lisa M. Q. Woodburn, Esquire LD. No. 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 E-ma i 1 : Iwoodburn @angino-rovner. corn ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. MANORCARE HEALTH SERVICES, INC., t/d/b/a MANORCARE HEALTH SERVICES - CARLISLE Defendants Attorneys tier Plaintiff: Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION -LAW NO. 04-3065 -Civil Terni Civil Action - Medical Plrofessional Liability Action JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Amended Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writhrg with the Court your defenses or objections to the claims set forth agahvst you. You are warned that if you fail to do so the case may proceed without you and a judgment maybe entered against you by the Corot without further notice for any money claimed in the Amended Complaint or for any other claim or relief requested by the Plahrtiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT DAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted en la Corte. Si usted quiere defenderse de estas demandas expuestas en las paginas sugnuientes, usted tiene viente (20) digs de plazo al partir de la fecha de la demanda y la notification. Usted debe presentar una apaziencia escrita o en persona o por abogado y azchivar en la Corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la torte tomara medidas y puede entrar una order contra usted sin previo aviso o notification y por cualquier queja o alivio que es pedido en ]a petition de demanda. Usted puede perder durero o sus propiedades o otros derechos importantes paza usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TE LEFONO A LA OFICINA CUYA DIItECCION SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)249-3166 ANGINO & ROVNER, P.C. Lisa M. B. Woodburn, Esquire I.D. No. 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717)238-6791 FAX (717) 238-5610 E-mai 1 : lwoodbum @angino-rovner. corn ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff Attorneys for Plaintiff: Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION -LAW v. NO. 04-3065 -Civil Term MANORCARE HEALTH SERVICES, INC., Civil Action - t/d/b/a MANORCARE HEALTH SERVICES Medical Professional Liability Action - CARLISLE Defendants JURY TRIAL DEMANDED ~ , AMENDED COMPLAINT 1. Plaintiff Ann Wilson is an adult individual and is the Executrix of tl~e; Esfate of Helen Kelly, Deceased, by letters of testamentary duly issued by the Register of Wills, Cumberland County, Pennsylvania. 2. Defendant ManorCare Health Services, Inc., t/d/b/a ManorCare Health Services - Carlisle (hereinafter referred to as "ManorCare") is a Delaware corporation licensed to do business in the Commonwealth of Pennsylvania, with a principal office and nursing care facility at 940 Walnut Bottom Road, Carlisle, Pennsylvania. Plaintiff is asserting a professional negligence claim against this Defendant. A Certificate of Merit is filed herewith. 3. The facts and occurrences hereinafter related took place between September 12, 2002, and March 18, 2003. 4. On or about September 12, 2002, Helen Kelly, was admitted to Defendant ManorCare located at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania, in an effort to be with her husband Edward Kelly, who was dying of cancer and who was residing at Defendant ManorCare. 1 II z9s3s3 5. At that same time Helen Kelly was admitted to Defendant ManorCare, clinical record review revealed employees, agents, and servants of Defendant ManorCare were aware Helen Kelly was diagnosed upon admission to the facility with muscular dystrophy, an ileostomy, and urinary incontinence. 6. Upon admission to Defendant ManorCare Helen Kelly issued ati Advanced Directive Declaration whereby she delineated decisions about her care in the event she became unable to make her own decisions. 7. In the aforementioned Advanced Directive Declaration, Helen Kelly elected tube feedings, or any other arti£ciai or invasive forms of hydration or nutrition as well as, elected diagnostic tests, surgery and/or antibiotics should they be deemed necessary. 8. At the same time Helen Kelly made the aforementioned Directive she named her daughter, Ann Wilson as her surrogate to make medical decisions for her, if necessary. 9. The Nutrition Risk Assessment dated September 18, 2002, indicated Helen Kelly had a history of good appetite and had aseventy-one percent (71%) meal intake average. Data sheets for February 2003 revealed that Helen Kelly consistently ate eighty percent (80%) to one hundred (100%) of each meal. 10. At all relevant times, administrators, practical nurses, licensed practical nm-ses, social workers, and aides attending Helen Kelly were employees, agents, and servants of the Defendant ManorCare and were acting in the scope of that relationship. 11. Review of the facility's current policies regarding physician notification expressly state that staff are to notify a resident's physician when the resident had a significant change in mental, physical, or emotional condition or an acute episode including a behavioral change. 2 ~~ 295383 12. On or about March 2, 2003, at approximately 11:30 a.m., Helen Kelly complained to Defendant IvlanorCare staff of having a sore tlu-oat and took only clear liquids for lunch. 13. On or about March 6, 2003, at approximately 6:15 p.m., physician's progress notes indicate Helen Kelly was lethargic and continued to complain to the staff of Defendant ManorCare that she was still experiencing a sore throat and poor appetite. 14. At or around this same timeframe, March 6, 2003, Helen Kelly was no longer watching television or attending meals at the dining room as was normally her daily routine. I5. On March 6, 2003, physician's progress notes revealed Helen Kelly complained of nausea and vomiting and a decrease in appetite and the physician ordered antibiotic therapy for seven days as well as directed staff of Defendant ManorCare to continue to provide Helen Kelly with clear liquids for two more days. 16. On March 7, 2003, at approximately 3:30 a.m., Helen Kelly took only small amounts of fluids resulting in a decreased output from her ileostomy, as well as a small amount of urine output. Later that same day, at approximately 11:15 p.m., the nursing staff documented Helen Kelly required a lot of encouragement to ingest the clear fluids due to the extreme discomfort resulting from a continuing sore throat that Helen Kelly was experiencing. 17. On March 7, 2003, subsequent to the significant changes in Helen Kelly's medical condition a related care plan was implemented which expressly required each shift to monitor Helen Kelly's vital signs and report any changes to the resident's physician immediately. 18. On March 8, 2003, at approximately 10:20 a.m., interdisciplinary progress notes revealed that Helen Kelly appeared to be weak. Additionally noted was the fact that Helen Kelly had a decrease in blood pressure . 3 ~~ 295383 19. Helen Kelly's blood pressure readings on an average since the time of her admittance to Defendant ManorCare were approximately 118/62; however, the interdisciplinary notes indicate that on March 8, 2003, Helen Kelly was experiencing a significant reduction in blood pressure to 90/58. 20. On March 9, 2003, at approximately 4:30 p.m., interdisciplinary progress notes revealed that Helen Kelly continued to be weak. Additionally noted was the fact that Helen Kelly still was experiencing a decrease in blood pressure . 21. Since March 2, 2003, no attempt was made at any time to notify Helen Kelly's physician of the decrease in Helen Kelly's blood pressure readings, or decrease in her ability to ingest life sustaining liquid nutrients; and there is no evidence that Helen Kelly was comprehensively assessed at that time by any administrators, practical nurses, licensed practical nurses, social workers, or aides attending Helen Kelly. 22. On March 12, 2003, dietary progress notes reveal that Helen Kelly was experiencing a great loss in appetite acid that her intake was recorded at a decrease of 15% firom her preexisting levels. 23. On March 12, 2003, review of the vital statistics flow sheet discloses that Helen Kelly was continuously experiencing a decrease in blood pressure, which at this point in tune was recorded as being 76/40. 24. No attempt was made to notify a licensed nurse of the decrease in Helen Kelly's blood pressure readings, and there is no evidence that Helen Kelly was comprehensively assessed at that time by any administrators, practical nurses, licensed practical nurses, social workers or aides attending Helen Kelly. 4 ~~ 295383 25. On March 16, 2003, at approximately 12:15 a.m., interdisciplinary notes reveal that Helen Ke11y had not been feeling well for several weeks. At that same time Helen Kelly was noted as being very lethargic and too weak to be able to get out of her bed. 26. Interdisciplinary notes reveal that from the period of March 6, 2003, tluough March 16, 2003, Helen Kelly continued to take only liquids and soft foods, consistently complained to the staff of Defendant ManorCare she was experiencing discomfort due to a sore throat, and had a drastic decrease in her appetite 27. Data sheets For the period of March 6, 2003, through the period of March 16, 2003, reveal Helen Kelly had exhibited an average intake of sixteen percent (16%). 28. Helen Kelly's care plan failed to address the risk for dehydration secondary to her poor intake, and there is no evidence that Helen Kelly's fluid status relative to her intake or output was monitored. 29. There is no evidence that the nursing staff consistently or comprehensively assessed Helen Kelly's changes in condition and behaviors every shift as directed by the Defendant ManorCare Acute Episodic Charting policy, nor is there any evidence that Helen Kelly's physician was notified of the continual decline in Helen Kelly's condition until March 17, 2003. 30. There is no evidence that the nursing staff consistently or comprehensively assessed Helen Kelly's complaints of a severe sore throat and a significant decrease in appetite and intake every shift as directed by Defendant ManorCare Acute Episodic Charting policy, nor is there any evidence that Helen Kelly's physician was notified of the continual decline in Helen Kelly's condition until March 17, 2003. 5 295383 31. There is no evidence the nursing staff consistently or comprehensively assessed Helen Kelly's continuous decrease in vital statistics every shift as directed by the Defendant ManorCare Acute Episodic Charting policy, nor is there any evidence that Helen Kelly's physician was notified of the continual decline of vital signs in Helen Kelly's condition until March 17, 2003 32. On March 17, 2003, Helen Kelly was increasingly lethargic and could only open her eyes with the aide of stimulation. 33. At that same time Helen Kelly was experiencing low blood pressure and chest congestion with a decreased oxygen saturation in her blood. 34. On March 17, 2003, Helen Kelly's physician was notified of the aforementioned continuous decline in Helen Kelly's condition. 35. On March 17, 2003, Helen Kelly was emergently transported to Harrisburg Hospital and admitted with pneumonia and acute renal failure secondary to severe dehydration. 36. Helen Kelly expired on March 18, 2003, with the cause of death listed as acute renal failure secondary to severe dehydration. 37. On August 18, 2003, an interview with Helen Kelly's physician revealed that he was never notified of the continued decrease in meal and fluid intake, identified weight loss, complaints of a sore throat, change in blood pressure, and changes in behavior exhibited by Helen Kelly. 38. On August 18, 2003, an interview with the Director of Nursing for Defendant ManorCare and the Director of Administration revealed they were unawu~e of wiry Helen Kelly's physician had not been notified of the serious life threatening changes in the condition of Helen Kelly. 6 ~~ 295383 39. At all relevant times herein, Helen Kelly, deceased, reasonably relied upon the apparent expertise, confidence, diagnosis, conclusions and authority of Defendant ManorCare. 40. At all relevant times herein, Defendant ManorCare, owed a duty to Helen Kelly, deceased, to provide adequate and appropriate medical care. 41. As a direct and proximate result of the conduct of Defendant ManorCare tluough its administrators, employees, agents, apparent agents, and/or servants, Plaintiffs decedent, Helen Kelly, died of acute renal failure secondary to severe dehydration. 42. Defendant ManorCare, through its administrators and staff, deliberately operated its facility in order to place the maximum number of "heads in the beds," while providing inadequate staffing and care and willfully violating the rules and regulations of the Department of Health of the Commonwealth of Pennsylvania as follows: a. failing to have adequately trained and competent persom7el; b. failing to have adequate staffing; c. failing to provide adequate evaluation and care planning for Helen Kelly; d. failure to promptly notify Helen Kelly's physician or an interested family member .when there was a significant change physical, medical, or psychological status as required by law; e. failure to report any changes in vital signs as was expressly required under related care plan in a timely fashion; f. failing to enforce its own standards and protocols for protection of residents from sickness and injury; and g. negligently allowing Plaintiffs decedent to die of acute renal failure secondary to severe dehydration. 43. Defendant ManorCare, through its Administrators and staff, willfully ignored the potential for serious injury to Helen Kelly by not adhering to the express policies regarding 7 II z9sss3 notification of a resident's physician when there was a significant change in vital signs that were to be monitored at each and every sluff. 44. Defendant ManorCare, through its administrators and staff, willfully ignored the potential for serious injury to Helen Kelly by not adhering to the express policies regarding notification of a resident's physiciui when there was a significant change in the intake of food and fluids. 45. Defendant ManorCare, provided inadequate medical care and medical care that fell below the appropriate standard of care, and was therefore negligent with respect to the care provided to Helen Kelly by: a. failing to monitor intake and output when it became apparent that her intake, as documented in the medical records, had been severely compromised; b. failing to respond appropriately when an obvious decrease in fluid intake occurred; c. failing to provide even minimal nutrition and hydration; d. failure to promptly notify Helen Kelly's family member when there was a significant change in her status as required by law; e. failure to perform and document a proper nursing assessment of the patient upon a noted change in her baseline vital signs; f. failure to report any changes in vital signs as was expressly required under related care plan in a timely fashion; g. failing to provide a safe environment to a patient who was documented to be dependent on ADL's including feeding; h. negligently allowing Plaintiffs decedent to die of acute renal failure secondary to severe dehydration; and i. failing to adequately administer diagnostic testing, artificial means of nutrition and/or hydration, or implement measures to maintain her comfort as evidenced by her repeated complaints of pain and not feeling well. 8 ~~ 295383 46. As a direct and proximate result of Defendant ManorCare's negligence, as alleged herein, and incorporated herein by reference, as if set forth at length, Helen Kelly died. Her death could have been prevented and would not have occurred but for Defendant ManorCare's negligence. 47. The conduct of Defendant ManorCare, through its agents, apparent agents, employees, and/or servants by failing to adhere to policies for notification of family members and patient physicians when there is a noted change in the patient's status was reckless and outrageous warranting the imposition of punitive damages. 48. Defendant ManorCare knew or should have known the actions or inactions set forth above would create a high risk of physical harm to Helen Kelly. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of Twenty-Five Thousand ($25,000) Dollars, exclusive of interest and costs, and hi excess of any jurisdictional aznount requiring compulsory arbitration. CLAIM I -SURVIVAL ACTION 49. Paragraphs 1 through 48 are incorporated herein by reference as it set forth in full and at length. 50. Plaintiff Ann Wilson brings this action on behalf of the Estate of Helen Kelly, under and by virtue of the Act of 1976, July 9, P.L. 586, No. 42, §2, Pa.C.S.A. §8302. 51. Defendants are liable to the Estate of Helen Kelly for damages as set forth herein. 52. Plaintiff Ann Wilson, Executrix of the Estate of Helen Kelly, claims on behalf of said Estate the daznages suffered by the said Estate by reason of the death of the decedent, for the 9 295383 pain and suffering the decedent underwent prior to death, and for all other damages allowed by law and seen by reason of Helen Kelly's death, as recoguzed by Pennsylvania's Survival Act. WHEREFORE, Plaintiff demand judgment against Defendant hi an amount in excess of Twenty-Five ($25,000) thousand dollars exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. CLAIM II -WRONGFUL DEATH 53. Paragraphs 1 through 52 are incorporated herein by reference. 54. Plaintiff Ann Wilson, Executrix of the Estate of Helen Kelly, brings this action for the wrongful death of Helen Kelly on behalf of all persons entitled to recover, therefore; under and by virtue ofthe Act of 1976, July 9, P.L. 589, No. 142 §2, 42 Pa.C.S.A. §8301(b). 55. Decedent Helen Kelly did not bring an action for these injuries during her lifetime. 56. The following are the names of all persons entitled by law to recover damages for such wrongful death and their relationship to the decedent: Name Ann Wilson David Kelly Daniel Kelly Relationshiu Daughter Son Son 57. As a result of Helen Kelly's death, her surviving son, Daniel Kelly, who is blind/MR disabled, has been deprived of the comfort, aid, assistance, society, consortium, tutelage and maintenance he would have received from Helen Kelly for the remainder of his natural life and claim is made for damages resulting thereby. 58. Plaintiff Ann Wilson, Executrix of the Estate of Helen Kelly, brings a claim for damages under and by virtue of Pennsylvania's Wrongful Death Act. In this regaz-d, she seeks recovery for all damages recoverable under and by virtue of Pennsylvania Wrongful Death Act. 10 295383 59. As a direct and proximate result of the death of Helen Kelly, Plaintiff has incurred funeral, burial, pecuniary, and related expenses, as well as expenses for the executrix of the decedent's estate, for all of which claim is made. WHEREFORE, Plaintiff demands judgment against Defendant, in an amount in excess of Twenty-Five Thousand ($25,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully submitted, ANGINO & ROVNER, P.C. ~~ Lisa M. B. Woodburn, Esquire I.D. No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff Date: ~~ r ~~ j t' 11 295}83 VERIFICATION I, Ann Wilson, Plaurtiff, have read fhe foregoing Amended Complaint and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of my larowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. 1W tneSS 7 Dated: ~~ / ~ H Aim Wilson Date: J//~`~ CERTIFICATE OF SERVICE I, Katherine D. Zimmerman, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of Amended Complaint via United States certified mail, return receipt requested, postage prepaid, upon the following, addressed as follows: Edwin A. D. Schwartz, Esquire William J. Mundy, Esquire McI{issock & Hoffman, P.C. 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Dated: ~ ~ ~5 ~b~ 12 295383 ^ 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 tc: c L.U. a ~:~ n ~~,,.:(! :~ti"'1ti/~ K~. /SJ~.Y~ ~G~ L J . ~`~' /, /~ / ^ Agent B. Received by'(Printed Name) D. Is delivery address different from Rem 17 L.! Yes If YES, enter delivery address below: ^ No E~ 3. Service Type l~ertified Mail ^ Express Mail ^ Registered Q!'Return Receipt for Merchandise ^ Insured Mail ^ C.O.D. 4. Restricted Delivery) (Errs Fee) ^ yes 2. Article Number 7003 1680 004 6388 4806 (trans/er /rom service label) PS Form 3811, February 2004 Domestic Return Receipt tozsss-oz-M-l Sao. ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t{d/b/a MANORCARE HEALTH SERVICES - CARLISLE, HCR MANORCARE, and MANORCARE, ING., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANJA CIVIL ACTION -LAW .", ,~ !. NO. 04-3065 -Civil Term JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS PURSUANT TO RULE 1042.6 To tl ie Prothonotary: Kindly enter judgment of non pros against Plaintiff, Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased, in the professional liability claim against Defendants, ManorCare Health Services, Inc., ManorCare Health Corporation, Vb/dfa ManorCare Health Services - Carlisle, HCR ManorCare, and ManorCare, Inc , in the above-captioned matter. I, Edwin A,D. Schwartz, Esquire, certify that the Plaintiff named above has asserted a professional liability claim against the Defendants named above who are licensed professionals, as defined by Pa. R.C.P. 1042.1(b)(1)(i) and (vii), and that no certificate of merit has been filed within the time required by Pa. R.C.P. 1042.3 and that there is no motion to extend the time for filing the certificate pending before the court. The Complaint in this action was filed on July 1, 2004 and more than sixty (60) days have elapsed without the filing of a certificate of merit or a motion seeking an extension of time for the filing of a certificate of merit. Respectfully submitted, By: Edwin A.D. Schwart Attorney I.D. #: 7590 2040 Linglestown Road, Ste. 302 Harrisburg, PA 17110 (717) 540-3400 Date: March 17, 2005 Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Praecipe for Judgment of Non Pros 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: Lisa M.B. Woodburn, Esquire Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) McKissock & Hoffman, P.C. By: Edwin A.D. Schwar re I.D. No,: 75902 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: ~ 7~or Attorneys for Defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, tld/b/a Manorcare Health Services -Carlisle, HCR Manorcare, and Manorcare, Inc. PROTHONOTARY'S OFFICE Court House -Carlisle, PA 170]3 In accordance with Rule 236 of the Pennsylvania Supreme Court, this is ro notify you that the following (ea~er~-(~esr~e) (judgement) was entered against yea in this offiee. Plaintiff ~~v...) LJ~~SD~J Dc(endart C~,~. ~~ ~~ Date 1 ' rZ<1c_ ~ ~_20~ # - ~ ~Tcrm Curtis R. Lnn_ Prnthomriary ~-. n o G,' C. ~ -n > ;'; ' i ~ ~ --i ~_: r 7i t_ 2~ ['f7 ['` G r~ ~ tom} -rl ~.' f =y _ _ -' ANGINO & ROVNER, P.C. Lisa M. B. Woodbwn, Esquire 1.D. No. 59397 A503 North Front Street Harrisburg, PA 17110-1708 (717)238-6791 FAX (717) 238-5610 E-mail : 1 waodbum@angino-rovn er. com ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. Attorneys for Plaintiff: Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW MANORCARE HEALTH SERVICES, INC., NO. 04-3065 Civil Tenn DZANORCARE HEALTH CORPORATION, Civil Action - t(dfbfa MANORCARE HEALTH SERVICES Medical Professional Liability Action -CARLISLE, HCR MANORCARE, and MANORCARE, INC. Defendants ~ 7URY TRIAL DEMANDED PLAINTIFF'S MOTION TO DENY OR REMOVE NON-PROS PURSUANT TO RULE 1442.6 AND NOW, comes Plaintiff by and through her attorneys, Angino & Rovner, P.C., and respectfully request the Court to deny or remove the non-pros which was filed by Defendant ManorCaze for the following reasons: 1. On or about March 17, 2005, Defendant ManorCare filed a Praecipe to Enter Iudgment against Plaintiff in the above-captioned action. 2. Plaintiff filed an Amended Complaint in the above-captioned action on or about March 16, 2005. 296843 3. The Amended Complaint states a Certificate of Merit is attached hereto. 4. Due to an inadvertence the Certificate of Merit was not attached to the Amended Complaint. See, Exhibit "A," Affidavit of Attorney. 5. Plaintiff avers the Certificate of Merit should be filed nunc pro tunc as of the date of the Amended Complaint. 6. Plaintiff further avers Plaintiffs right to proceed on the merits should not be compromised when no prejudice has come to Defendants. WHEREFORE, Plaintiffs respectfully request Your Honorable Court to deny or remove the non-pros against Plaintiff, Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased, and reinstate the claim against Defendant ManorCare. Respectfully submitted, ANGINO & ROVNER, P.C. f~-,~ L ~, ~, . ~, .off ~- Lis M. B. Woodburn, Esquire I.D. No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff Dated: S - ~~.~ - ~/-> 2 z9csa3 AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIIV ss I, Lisa M. B. Woodburn, Esquire, being duly sworn according to law, depose and say the Certificate of Merit was not attached to the Amended Complaint filed on Mazch 16, 2005, due to pure clerical error, inadvertence, or mistake. I offer Plaintiffs file and the Statements of Merit signed by the experts who have reviewed the case if the Court wishes to take an in cm~zera ]ook at the issue. The appropriate Statements of Merit and a Certificate of Merit would have been filed prior to the Praecipe for Non-Pros, but for the clerical error. L' a M. ~. Woodbum Swom to and subscribed before me this~~h dday ( off ~r~,r C/~, , 2005. \~C.~~ Notary Public My Commission Expires: canr~oi wE~rnl ~ rExx p11 aa<wuu s~ gI1tlS71ME M. OAW6HER, NOikKlUBI1C $OSWIEHIIPIIiA iMIP., DAIIPNIN CO. NY CDMMISSIOX E%PIRES FEB.16, 200! zvesa~ CERTIFICATE OF SERVICE I, Katherine D. Zuim~erman, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PLAINTIFF'S MOTION TO DENY OR REMOVE NON-PROS PURSUANT TO RULE 1043.6 on the following via postage prepaid, first class United States mail, addressed as follows: Edwin A. D. Schwartz, Esquire William J. Mundy, Esquire McKissock & Hoffman, P.C. 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 _~ Katherine D_ Ziriuil~la~an '~' ~ '1 Dated: u / ('~ ~'-' ~~ 3 296843 ANGINO & ROVNER, P.C. Lisa M. B. Woodburn, Esquire I.D. No. 89397 4503 North Front Street Harrisburg, PA ] 7110-1708 (717) 238-6991 FAX (717) 238-5610 E-mail : 1 woodbum@an gino-rovner.com ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. r3 ^' ~ C. _. ~-' rr n rn i.U .y:.-,.: ~ ~r 'tl Rl . V ~ ~ r ~~ t''. ,`', N _ 'yG -'~- j "~ _ < -', - Attorneys for Plaintiff: Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CNIL ACTION -LAW MANORCARE HEALTH SERVICES, INC., NO. 04-3065 Civil Term MANORCARE HEALTH CORPORATION, Civil Action - t!dlbJa MANORCARE HEALTH SERVICES Medical Professional Liability Action -CARLISLE, HCR MANORCARE, and MANORCARE, INC. Defendants JURY TRIAL DEMANDED Certificate of Merit as to ManorCare Health Services, Inc., tld/b/a ManorCare Health Services -Carlisle I, Lisa M. B. Woodburn, 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 sub}eot of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR 296833 (X) the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licerued professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR ( )expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: March 22, 2005 (J, (~ ~~-c..---. L' 1 ;'Vi'i"IIr. Lr,.-~ Lis'aM. B. Woodburn, Esquire LD. No. 89397 4503 N. Front Street Hamsburg, PA 17I 10 (717) 238-6791 Attorney for Plaintiff 296533 CERTIFICATE OF SERVICE I, Katherine D. Zimmerman, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that 1 am this day serving a true and correct copy of Certificate of Merit on the following via postage prepaid, fast class United States mail, addressed as foilows: Edwin A. D. Schwartz, Esquire William J. Mundy, Esquire McKissock & Hoffiiian, P.C. 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 ~~ ^' ~ --~ ~`' f Katherine D. Zimmeimari Dated: /'~~ ~io5 ~~ 296833 ~x~;~b,~~ ~. ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t!d/b/a MANORCARE HEALTH SERVICES - CARLISLE, HCR MANORCARE, and MANORCARE, INC., Defendants NO. 04-3065 -Civil Term JURY TRIAL DEMANDED AND NOW comes Defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, tldlbla Manorcare Health Services -Carlisle, HCR Manorcare, and Manorcare, Inc. (hereinafter referred to collectively as "Defendants" unless otherwise indicated by syntax), by and through their counsel, McKissock & Hoffman, P.C., and respectfully provide the foregoing Response to Plaintiff's Motion to Deny or Remove Non Pros Pursuant to Rule 1042.6 and as such, provides as follows: 1. It is admitted that on March 17, 2005 that Defendants filed a Praecipe for Entry of Judgment Non Pros pursuant to Rule 1042.6. By way of further response, Plaintiff's original Complaint in this action was filed on or about July 1, 2004. Therefore, pursuant to the mandates of Pa.R.C.P, 1042.1 et seq., Plaintiff's were obligated to file a Certificate of Merit on or before August 30, 2004. Plaintiff's did not file the requisite Certificate of Merit. 2. Admitted. By way of further response, the Amended Complaint as filed by Plaintiff in this action did not contain the requisite Certificate of Merit. 3. Denied as stated. Plaintiff's Amended Complaint, specifically ¶2, indicates that a Certificate of Merit is'Yiled herewith". 4. Defendants are without sufficient information to admit or deny the alleged basis for Plaintiff's failure to attach the Certificate of Merit to the Amended Complaint. However, by way of further response, given the filing date of Plaintiff's original Complaint as July 1, 2004, Plaintiff was obligated to file the requisite Certificate of Merit on or before August 30, 2004 and as such, any action in Plaintiff's failing to provide the requisite Certificate of Merit with the Amended Complaint cannot be deemed "inadvertence". By way of further response, 259 days lapsed from the date Plaintiff originally filed the Complaint in this action and no Certificate of Merit was filed. Pennsylvania Rule of Civil Procedure 1042.3 requires the filing of a Certificate of Merit within 60 days following the filing of the Complaint. The lapse of almost 200 days beyond the requisite filing date cannot be deemed an "inadvertence". 5. In the instant action, 259 days lapsed from the filing of the original Complaint without any Certificate of Merit being filed by the Plaintiff. Plaintiff's prayer for relief in the form of nunc pro tunc filing of the Certificate of Merit is contrary to the established case !aw of the Commonwealth. See, Hoover v. Davila, 2004 Pa. Super. 314, 862 A.2d 591 (2004); Jackson v. Sweitzer, 67 Pa. D & C 4`", 239 (CCP -York, July 12, 2004); He(frick v. UPMC 8hadyside Hospital, 65 Pa. D & C 4~', 420 (CCP -Allegheny, October 7, 2003). 6. The averments contained in ¶6 are specifically denied. 7. Plaintiff's failure to comply with the Rules of Civil Procedure warrants the entry of Judgment Non Pros in this matter and the issue of prejudice is an inappropriate analysis as to this issue. See, Heifrick: If a court were to apply Rule 126 to a petition to open a judgment of non pros for failure to file a certificate of merit unless the defendant can show prejudice, the petition would almost always be granted. Defendants are not going to be able to show that they were prejudice by the late filing of a certificate of merit regardless of whether the delay involves 10 days, 30 days or 90 days. Consequently, the use of a prejudice standard would eliminate the rules deadlines for filing certificate of merits... this is not a proper application of Rule 126. Helfrick at 424-25, (Opinion by Judge Wettick). WHEREFORE, Defendants respectfully request this Honorable Court deny Plaintiff's Motion to Deny or Remove Non Pros pursuant to Rule 1042.6 and further grant Defendants all such further relief as is proper and just. Respectfully submitted, McKissock & Hoffman, P.C. Edwin A.Q. Schwart quire I.D. No.: 75902 William J. Mundy, Esquire I.D. No.: 57679 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated:~~J~~~~S Attorneys for Defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, t!d(bla Manorcare Health Services - Carlisle, HCR Manorcare, and Manorcare, Inc. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document 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: Lisa Woodburn, Esquire Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (Counsel for Plaintif>) McKissock & Hoffman, P.C. By: Edwin A.D. Schwart E uire I.D. No.: 75902 William J. Mundy, Esquire I.D. No.: 57679 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: 3 ~I Attorneys for Defendants, Manorcare Health Services, Inc., Manorcare Health Gorporaticn, t/d/bla Aanorcare Health Services -Carlisle, HCR Manorcare, and Manorcare, Inc. ~, -~ ~~4~~ Statement of Merit T, Sw.anne Frederick, MSN, RN, am a licensed Registered Nurse. I hereby state that there exists a reasonable probability that the cazc, skill or knowledge exercised or exhibited in the treatment, practice or work done by HCR Manorcare, during the period they were involved in the care of Helen E. Kelly, daccased, fell outside acceptable professional standards and that such conduct was a cause in bringing about or increasing the risk of harm to Helen E. Kelly, deceased y~ ~ J~1lcZG 1~ ~-t, ~tc~fyu.c~-~5r1~1 Suzanne Frederick, MSN, RN DATE: ~--~1-Utf 272532.1 V U\UL Statement of Merit I, William Barnhart, M,D., am a ]icensed physician. I hereby state that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work done by HCR Manorcare, during the period they were involved in the care of Helen E. Kelly, deceased, fell outside acceptable professional standards and that such conduct wa~ cause iu bringing about or increasing the risk of harm to Helen E. Kelly, deceased. i illiam Barnhart, M.D. ~-- ,,__.-__ DATE: ~ ~ ~ /l ~j~~ 291203 StatemenC of Merit 1, Lisa McElheny, R.N.., am a licensed registered nurse. I hereby state that there exists a reasonable prabaUility that the care, skill or knowledge exercised or exhibited in the treatment, practice or work done by HCR Manorcare, during the period they were involved in the care of Helen E. Kelly, deceased, fell outside acceptable professional standards and that such conduct was a cause in bringing about or increasing the risk of harm to Helen E. Kelly, deceased. `. \ R.N. a DATE: ~~,~~~~~~` 3a CERTIFICATE OF SERVICE 1, Megan Moll, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of the foregoing on the following via postage prepaid, first class United States mail, addressed as follows: Edwin A. D. Schwartz, Esquire William J. Mundy, Esquire McKissock & Hoffman, P.C. 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 ~~ ~ ~~~~ MeganIoll r Dated: ~ ~~~ ~~ 299843 ~~ u ANCINO & ROVNER, P.C. Lisa M. B. Woodbum, Esquire LD. No. 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717)238-6791 FAX (717) 28-5610 E-mai I : Iwoodbum@angino-rovner.com ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff Attorneys for Plaintiff: Ann Wilson, Executrix of the Estate of Helen E. Kelly, deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CNII, ACTION -LAW v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES -CARLISLE, HCR MANORCARE, and MANORCARE, INC. Defendants NO. 04-3065 Civil Term Civil Action - Medical Professional Liability Action NRY TRIAL DEMANDED PRAECIPE TO WITHDRAW TO THE PROTHONOTARY: Kindly withdraw the above-captioned case from the 7uly 6, 2005, Argument list. Respectfully submitted, Date: ~~~,~~~ ANGINO & ROVNER, P.C. r Li~I. B. Woodbum, Esquire LD. No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717)238-6791 Counsel for Plaintiff(s) 303421 CERTIFICATE OF SERVICE I, Betty J. Berdanier, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of 1'RAECIPE TO WITHDRAW on the following via postage prepaid, first class United States mail, addressed as follows: Edwin A. D. Schwartz, Esquire William J. Mundy, Esquire McKissock & Hoffinan, P.C. 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 ~~ ~--- Betty 7. er 'er Dated: -Q/~3/~`S 303421 ~. N t" } cy r_ ~i'1 .=n c.; r~ 1 r= N -n rl "7 _ W ;..._i i. ~) .-r. „ ;~~7 (sa -. ~~ ~ .. ~ -: PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the within matter for the next Argument Court. ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTIO]V -LAW v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES -CARLISLE, HCR MANORCARE, and MANORCARE, INC. Defendants Civil Action -- Medical Professional Liability Action NRY TRIAL ]DEMANDED No. 04-3065 Civil Term State matter to be argued (i.e. plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Motion to Deny or Remove Non Pros 2. Identify counsel who will argue case: a. for plaintiff: Lisa M. B. Woodburn b. for defendant: Edwin A. D. Schwartz 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: August 24, 2005 Date: t.~/~3~(j~ Att ~rney or Plaintiff(s) ~~ ~ cn ~ o <- ;~ -„ _. ,~-, -' '< '~~ - "> :~~ ~, .~ ~' N ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLANIJ COUNTY, PENNSYLVANIA CIVIL ACTION -LAW v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, Ud/b/a MANORCARE HEALTH SERVICES - CARLISLE, HCR MANORCARE, and MANORCARE, INC., Defendants NO. 04-3065 -Civil Term JURY TRIAL DEMANDED AND NOW comes Defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, Ud/b/a Manorcare Health Services -Carlisle, HCR Manorcare, and Manorcare, Inc. (hereinafter referred to collectively as "Defendants" unless otherwise indicated by syntax), by and through their counsel, McKissock & Hoffman, P. C., and respectfully submits the following Application for Amendment of this Honorable Court's September 14, 2005 Order granting Plaintiff's Petition for Relief from Judgment Non Pros, and in support thereof provides the following: 1. Plaintiff filed a Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania on or about July 1, 2004. No Certificate of Merit was attached to Plaintiff's Complaint as required by Pa.R.C.P. 1042.1 et seq. 2. Defendants filed Preliminary Objections to P'laintiff's Complaint on or about August 5, 2004. Subsequently, Plaintiff filed an Amended Complaint on or about March 15, 2005. Again, no Certificate of Merit was attached to Plaintiff'so Amended Complaint as required byPa.R.C.P.1042.1 et seq. 3. On March 17, 2005, after a search of the docket revealed that no Certificate of Merit had been filed of record with the Prothonotary, Defendants filed a Praecipe for Judgment Non Pros, as specifically permitted by Pa.R.C.P. 1042.6. 4. Plaintiff filed her Motion to Deny or Remove Non Pros on or about March 22, 2005. Plaintiff's Motion argued that the failure to file a Certificate of Merit was due to "pure clerical error, inadvertence or mistake." 5. Plaintiff filed her Memorandum of Law in Support of Petition to Open Non Pros on or about August 12, 1005. Defendants filed their Memorandum of Law in Opposition of Plaintiff's Petition to Open Non Pros on or about August 17, 20~D5. 6. Oral argument was held on August 24, 2005 before Judges Edgar 8. Bayley and Edward E. Guido 7. On September 14, 2005, Judge Bayley entered an Order and Opinion granting Plaintiff's Motion to open Non Pros. A copy of Judge Bayley's Order and Opinion is attached hereto as Exhibit "A". Judge Bayley's Order does not contain the necessary language set forth in 42 Pa.C.S. § 702(b) to allow Defendants to petition the Superior Court for interlocutory appeal. 8. The instant questions of law, namely whether Plaintiff had complied with the requirements of Pa. R.C.P. 1024.1 et seq., or met the mandates of Pa.R.C.P. 3051 such as to justify relief from non pros, involve controlling questions of law as to which there is substantial ground for difference of opinion and there is substantial precedential case law contrary to the Court's Opinion. 9. An immediate appeal from the September 14, 2005 Order may materially advance the ultimate termination of the instant matter. WHEREFORE, Defendants Manorcare Health Services, Inc., Manorcare Health Corporation, t/d/b/a Manorcare Health Services -Carlisle, FICR Manorcare, and Manorcare, Inc., respectfully request that this Honorable Court amend ifs September 14, 2005 Order to permit Defendants to petition the Superior Court for permission to appeal from an interlocutory order. Respectfully submiitted, McKissock & Hoffman, P.C. 7 sy: Edwin A.D. Sch artz, Esquire I.D. No.: 7590 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 .(717) 540-3400 Dated: _September 20. 2005 Attorneys for Defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, Ud/b/a Manorcare Health Services - Carlisle, HCR Manorcare, and Manorcare, Inc. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Application for Amendment of Order of September 14, 2005 upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by U.S. First Class Mail addressed as follows: Lisa Woodburn, Esquirf; Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) McKissock & Hoffman, P.C. By Edwin A.D. Schwartz, Esfjufre Identification No.: 759p 2040 Linglestown Fioad Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: September 20. 2005 Attorneys for Defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, Ud/b/a Manorcare Fiealth Services - Carlisle, HCR Manorcare, and Manorcare, Inc. ~ c~ C, ~ + r m ~=' _ °x' _ ~: ti N U ~~ Ur..,. O i_ t a» Ca = CJ ~ D Cam, ~ y ~ 'A ~. -G - ANN WILSON, EXECUTRIX OF THE IN THE COURT OF COMMON PLEAS OF ESTATE OF HELEN E. KELLY, :CUMBERLAND COUNTY, PENNSYLVANIA DECEASED, PLAINTIFF V. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES -CARLISLE, HCR MANORCARE, AND MANORCARE, INC., DEFENDANTS 04-3065 CIVIL TERM IN RE: MOTION OF PLAINTIFF TO OPEN JUDGMENT OF NON PROS BEFORE BAYLEY. J. AND GUIDO. J. ORDER OF COURT AND NOW, this ~~~'"` day of September, 2005, the motion of plaintiff to open a judgment of non pros, IS GRANTED. ~. By the Court, ~ ,~ Lisa M.B. Woodburn, Esquire Joseph M. Melillo, Esquire For Plaintiff Edwin A. D. Schwartz, Esquire For Defendants Edgar B. Bayley, J. cl - ~~- ~S :sal / iiJ ,~~' fly ~, ~ "'+ ,~... ANN WILSON, EXECUTRIX OF THE IN THE COURT OF COMMON PLEAS OF ESTATE OF HELEN E. KELLY, :CUMBERLAND COUNTY, PENNSYLVANIA DECEASED, PLAINTIFF V. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES -CARLISLE, HCR MANORCARE, AND MANORCARE, INC., DEFENDANTS 04-3065 CIVIL TERM IN RE: MOTION OF PLAINTIFF TO OPEN JUDGMENT OF NON PROS BEFORE BAYLEY. J. AND GUIDO. J. OPINION AND ORDER OF COURT Bayley, J., September 14, 2005:-- On July 1, 2004, plaintiff, Ann Wilson, Executrix of the Estate of Helen Kelly, who died on March 18, 2003, instituted a wrongful death and survival action alleging professional negligence against defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, Ud/b/a Manorcare Health Services -Carlisle, HCR Manorcare, and Manorcare, Inc. On August 5, 2004, defendants filed preliminary objections to the complaint consisting of (1) a motion to strike for lack of specificity, (2) a demurrer to a claim for punitive damages, and (3) a demurrer to the claim on behalf of plaintiff's sons and daughters for emotional trauma and for pain and suffering. The preliminary objections were not listed for argument and no disposition was entered. Plaintiff filed an amended complaint on March 16, 2005. It averred therein that, "A Certificate of Merit is filed herewith." No Certificate of Merit was filed with the amended complaint. On March 17, 2005, counsel for defendants accepted service of the 04-3065 CIVIL TERM amended complaint and filed a Praecipe for Entry of Judgment of Non Pros. On March 22, 2005, plaintiff filed (1) a Motion to Remove the Non Pros, (2) an affidavit setting forth that a "Certificate of Merit was not attached to the Amended Complaint filed on March 16, 2005, due to pure clerical error, inadvertence or mistake," and (3) a Certificate of Merit setting forth: [t]he claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. On May 2, 2005, counsel for plaintiff showed counsel for defendants three Certificates of Merit. One was signed by Suzanne Frederick, MSN, RN, dated March 9, 2004, almost four months before the complaint was filed. The two others, one signed by William Barnhart, MD, dated January 10, 2005, and another signed by Lisa McElheny, RN, dated January 22, 2005, were executed more than six months after the complaint was filed and close to three months before the amended complaint was filed. The motion of plaintiff to remove the non pros was briefed and argued on August 24, 2005. Pa. Rule of Civil Procedure 1042.3(a) provides: In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff ...shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or -2- 04-3065 CIVIL TERM knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or (2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard. (Emphasis added.) Rule 1042.6(a), provides: The prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that there is no pending timely filed motion seeking to extend the time to file the certificate. A petition to open a judgment of non pros is addressed to the equitable powers of the court. Walker v. Pugliese, 317 Pa. Super. 595 (1983). In Hoover v. Davila, 862 A.2d 591 (Pa. Super. 2004), the Superior Court of Pennsylvania stated that relief from a judgment of non pros taken for failure to file a Rule 1042.3 certificate of merit in a timely fashion is subject to the same guidelines as for opening of a judgment of non pros under Rule 3051. Rule 3051(b), provides: If the relief sought includes the opening of the judgment, the petition shall allege facts showing that (1) the petition is timely filed, (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action. In the case sub judice, the petition to remove the judgment of non pros was timely filed five days after the judgment, and a filed Certificate of Merit attests to the meritorious cause of action. The issue, therefore, is whether there is a reasonable explanation or legitimate excuse for the failure to timely file the Certificate of Merit. In Hoover, a complaint was filed on February 12, 2003. It was reinstated on March 10, -3- 04-3065 CIVIL TERM 2003, and again on April 10, 2003. On April 29, 2003, two defendants filed a praecipe for entry of a judgment of non pros because no certificate of merit had been filed nor had plaintiff obtained an extension to file a certificate. A judgment of non pros was entered. On May 28, 2003, plaintiff filed a motion to extend the time for filing a certificate of merit. Because a judgment of non pros was already entered in favor of two defendants, the trial court treated it as a motion for an extension with respect to the third defendant. Plaintiff subsequently filed a petition to open and strike the judgment of non pros against the other two defendants. That petition contained certificates of merit dated July 3, 2004, against all three defendants. The trial court denied that petition to open or strike the judgment of non pros and the motion for an extension of time to file a certificate of merit. On appeal, the Superior Court of Pennsylvania affirmed. Plaintiff argued that the non pros should have been stricken because the sixty day time period under Rule 1042.3(a) ran from the date the complaint was last reinstated, not the date it was filed. The Court noted that while Rule 1042.3(d) does not impose any restriction on the number of extension orders that a court may enter, the sixty day time period for the filing of a certificate of merit or for requesting an extension of time "clearly runs from the date of the filing of the original complaint ..." In O'Hara v. Randall, 879 A.2d 240 (Pa. Super. 2005), the plaintiff filed a complaint against physicians and health care providers alleging negligence. Some of the doctors filed preliminary objections. One of the doctors filed a praecipe for entry of judgment of non pros. After the prothonotary entered the judgment, the same doctor filed preliminary objections to plaintiffls second amended complaint. Judgments of non pros -4- 04-3065 CIVIL TERM for all defendants were then entered. Plaintiff filed a motion to strike the judgments on the ground that they were entered prematurely. She maintained that she was not required to file certificates of merit until sixty days from the filing of her second amended complaint. The trial court, striking the judgments of non pros, held that plaintiff had sixty days from her last amended complaint to file a certificate of merit. The Superior Court of Pennsylvania reversed and ordered reinstatement of the judgments of non pros, stating: Assuming arguendo that Appellee had no choice but to file amended complaints in response to preliminary objections filed by Dr. Richterman and Dr. Carey, we are not persuaded by her argument that the sixty-day filing period started anew each time she filed an amended complaint. Rule 1042.3 states that the plaintiff must file a certificate of merit as to each licensed professional against whom a claim is asserted within sixty days of the filing of the complaint; the rule does not contain an exception for cases where an amended complaint is filed, and we will not create one. As this Court noted in [Hoover v. Davila, 862 A.2d 591 (Pa. Super. 2004)], the term "filing" refers to the "initial commencement of an action," i.e., the date on which the initial complaint was delivered to court personnel. Therefore, consistent with Hoover, we hold that the filing of an amended complaint does not afford the plaintiff an additional sixty days in which to file a certificate of merit. (Emphasis added.) In Harris v. Neuburger, 877 A.2d 1275 (Pa. Super. 2005), the Superior Court, referring to Rule 1042.3, stated that "clearly, the underlying purpose of this rule is to prevent the filing of baseless medical professional liability claims." The Court affirmed the opening of a judgment of non pros, concluding that there was substantial compliance where defense counsel had provided certificates of merit to defendant before the complaint was filed, but failed to file those certificates within sixty days of the filing of that complaint. The Court stated that "since [plaintiff) has satisfied the purpose of Rule 1024.3, he should not be barred from his day in court because he mistakenly, -5- 04-3065 CIVIL TERM but reasonably believed he had met his obligations [under the rule]." In Almes v. Burket, 2005 W.L. 1869863 (2005 Pa. Super. 289 (August 9, 2005)), a complaint was filed on October 23, 2003, alleging professional negligence. The sixtieth day for filing a certificate of merit was December 22, 2003. On December 18, 2003, a certificate of merit was mailed to plaintiffs counsel. On the same day, counsel learned that his mother-in-law was gravely ill. She died on December 22. Counsel reopened his office on December 26 and found the certificate of merit and a praecipe by defendant dated December 22, 2003, for a judgment of non pros that was entered on December 26. On December 31, a petition for relief from the judgment was filed. It was denied but reversed by the Superior Court on an abuse of discretion standard. The Court noted that generally errors of counsel which indicate an oversight rather than a deliberate decision not to defend, have been held to constitute sufficient legal justification to open a default judgment. It concluded that "we are not prepared to assert that an attorney who forgets that the certificate was due or who fails to take the above mentioned actions when faced with a family crisis like the one presented here is so derelict in his obligations that the oversight should not be excused." In the case sub judice, notwithstanding the filing of the amended complaint, since the original complaint was filed on July 1, 2004, the sixtieth day to file a Certificate of Merit under to Rule 1042.3(a) was August 30, 2004.' Hoover and O'Hara, supra. ' No motion for an extension under Rule 1042.3(d) was ever filed. -6- 04-3065 CIVIL TERM Defense counsel filed a praecipe for a judgment of non pros six and a half months later on March 17. On March 22, plaintiffs counsel, seemingly oblivious that the last day to file a Certificate of Merit had been August 30, filed an affidavit that the "Certificate of Merit was not attached to the Amended Complaint filed on March 16, 2005, due to pure clerical error, inadvertence or mistake." (Emphasis added.) That was over seven and a half months late. That is hardly the type of conduct that was excused in Almes, supra. Notwithstanding, plaintiffs counsel was in possession of a Certificate of Merit dated March 9, 2004, months before the complaint was filed on July 1, 2004. These facts are more closely akin to those in Harris, supra, than in Hoover, supra. While counsel in Harris, missed the filing date but obtained Certificates of Merit prior to the filing of the complaint and provided them to defendant, in the present case, the underlying purpose of Rule 1042.3 has been met because counsel obtained a Certificate of Merit before the filing of the original complaint even though it was not shown to defendants. Pa. Rule of Civil Procedure 126 provides Liberal Construction and Application of Rules The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. (Emphasis added.) -7- 04-3065 CIVIL TERM The substantial rights of the parties have not been affected.Z Exercising equity, Walker, supra, we will not deny plaintiff her day in court because of counsel's oversight. ORDER OF COURT AND NOW, this ~~~ day of September, 2005, the motion of plaintiff to open a judgment of non pros, IS GRANTED. Lisa M.B. Woodburn, Esquire Joseph M. Melillo, Esquire For Plaintiff By the~oUrt, . Edgar B. Edwin A. D. Schwartz, Esquire For Defendants :sal : Although aware of the oversight, defense counsel conveniently waited until March 17, 2005, to file a praecipe for a judgment of non pros which could have been filed as early as September 1, 2004. March 17, 2005 was the last day of the two year period of statute of limitations. 42 Pa.C.S. § 5524(2). There is dicta in Moore v. Luchsinger, 862 A.2d 631 (Pa. Super. 2004), that following the entry of a judgment for non pros, plaintiff can refile because a non pros is not res judicata and therefore, is not a bar to commencing another action based upon the same cause of action within the applicable statute of limitations. -8- ~~~_~l,~ fib.. J~. .;~ -~ -:1 ~4! t,., fn ~~ RECEIVED SEP 202005 ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA CIVIL ACTION -LAW v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, Ud/b/a MANORCARE HEALTH SERVICES - CARLISLE, HCR MANORCARE, and MANORCARE, INC., Defendants NO. 04-3065 -Civil Term JURY TRIAL DEMANDED ORDER AND NOW to WIT this ~O day of __~~~ 2005, upon consideration of Defendants' Petition for Amendment of the Court's September 14, 2005 Order, it is hereby ORDERED that said Order is amended to include the following sentence: "This Order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter." ~. "/ By the Court: ~~ r ~~ ~~ o`~ o:~ 0 J. ,~. ~.:_ -, w `_ ~; ~ ;'>; « ~ , o °'~ ~ ~ `< ~~~ ~, . = o .n ° , `~ , oRi~iNA~ ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COLfNTY, PENNSYLVANIA v. MANORCARE HEALTH SERVICES, INC. t/d/b/a MANORCARE HEALTH SERVICES -CARLISLE, Defendant CIVIL ACTION -LAW NO. 04-3065 -Civil Term JURY TRIAL DEMANDED NOTICE TO PLEAD To: Ann Wilson c/o Lisa Woodburn, Esquire Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 You are hereby notified to file a written response to the enclosed Answer and New Matter pursuant to Pa.R.C.P. 1030 within 20 days from service hereof or a judgment may be entered against you. ANSWER AND NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT AND NOW comes Defendant, ManorCare Health Services, Inc., t/d/b/a ManorCare Health Services -Carlisle (hereinafter referred to as "Defendant"), by and through its counsel, McKissock & Hoffman, P.C., and respectfully provides the foregoing .Answer and New Matter to Plaintiff's Amended Complaint and as such, provides as follows: 1. Defendant is without sufficient information to admit or deny the averments in 9[1 of Plaintiff's Amended Complaint and as such, strict proof thereof is demanded at the time of trial. 2. Admitted in part, denied in part. It is admitted that Defendant is a Delaware Corporation licensed to do business in the Commonwealth of Pennsylvania and maintains a nursing care facility at 940 Walnut Bottom Road, Carlisle, PA. The remaining averments set forth in 9[2 of Plaintiff's Amended Compliant, and such inferences to be garnered therefrom, are specifically denied and strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that there is any basis in law or fact for which Plaintiff may successfully assert a professional negligence claim against Defendant. 3. To the extent the averments contained in 9[3 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[3 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 4. To the extent the averments contained in ~[4 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[4 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 5. To the extent the averments contained in 9[5 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[5 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. By way of further response, to the extent the averments contained in y[5 contain conclusions of law, no response is herein provided. If it is later judicially determined that a response is so required, such averments which may be construed as conclusions are specifically denied and strict proof thereof is demanded at the time of trial. 6. To the extent the averments contained in 9[6 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[6 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 7. To the extent the averments contained in 9[7 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[7 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 8. To the extent the averments contained in 9[8 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[8 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 9. To the extent the averments contained in 9[9 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[9 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 10. To the extent the averments contained in 9[10 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[10 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. By way of further response, to the extent the averments contained in 9[10 contain conclusions of law, no response is herein provided. If it is later judicially determined that a response is so required, such averments which may be construed as conclusions are specifically denied and strict proof thereof is demanded at the time of trial. 11. Admitted in part, denied in part. To the extent the averments contained in 9[11 of Plaintiff's Amended Complaint are consistent with the facility operating policies regarding physician notification, such averments are admitted. To the extent the averments contained in 9[11 of Plaintiff's Amended Complaint are inconsistent and/or misconstrued, the facility policies regarding physician notification, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 12. To the extent the averments contained in 9[12 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[12 of Plaintiff's Amended ComplainC are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 13. To the extent the averments contained in 9[13 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[13 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 14. To the extent the averments contained in 9[14 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[14 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 15. To the extent the averments contained in 9[15 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[15 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 16. To the extent the averments contained in 9[16 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[16 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 17. To the extent the averments contained in 9[17 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[17 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 18. To the extent the averments contained in 9[18 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[18 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 19. To the extent the averments contained in y[19 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[19 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 20. To the extent the averments contained in 9[20 of Plaintiffs Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[20 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 21. The averments contained in 9[21 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 22. To the extent the averments contained in 9[22 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in Che ordinary course of business, such averments are admitted. To the extent the averments contained in 9[22 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that Helen Kelly experienced a "great loss in appetite" and as such, strict proof thereof is demanded at the time of trial. 23. To the extent the averments contained in 9[23 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[23 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 24. The averments contained in 9[24 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial 25. To the extent the averments contained in 9[25 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[25 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 26. To the extent the averments contained in 9[26 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[26 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that Helen Kelly complained of "discomfort" or that Helen Kelly made any complaints and had experienced a "drastic" decrease in her appetite and as such, strict proof thereof is demanded at the time of trial. 27. To the extent the averments contained in 9[27 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[27 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 28. The averments contained in 9[28 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 29. The averments contained in 9[29 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 30. The averments contained in 9[30 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 31. The averments contained in 9[31 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial 32. To the extent the averments contained in 9[32 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[32 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that Helen Kelly was "increasingly lethargic and could only open her eyes with the aide of stimulation" and as such, strict proof thereof is demanded at the time of trial. 33. To the extent the averments contained in 9[33 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[33 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 34. To the extent the averments contained in 9[34 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[34 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by the Defendant in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 35. To the extent the averments contained in 9[35 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[35 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by Harrisburg Hospital in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 36. To the extent the averments contained in 9[36 of Plaintiff's Amended Complaint are consistent with the medical records and charts maintained by Defendant in the ordinary course of business, such averments are admitted. To the extent the averments contained in 9[36 of Plaintiff's Amended Complaint are inconsistent with the medical records and charts maintained by Harrisburg Hospital in the ordinary course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 37. The averments contained in 9[37 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 38. averments contained in 9[38 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 39. The averments contained in 9[39 of Plaintiff's Amended Complaint represent conclusion of law to which no response is required. If it is later judicially determined that a response is required, the averments contained in 9[39 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 40. The averments contained in 9(40 of Plaintiff's Amended Complaint represent conclusion of law to which no response is required. If it is later judicially determined that a response is required, the averments contained in 9[40 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 41. The averments contained in 9[41 of Plaintiff's Amended Complaint represent conclusion of ]aw to which no response is required. If it is later judicially determined that a response is required, the averments contained in 9[41 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 42(a-g). The averments contained in 9[42, and all subparagraphs contained thereunder, of Plaintiff's Amended Complaint represent conclusion of law to which no response is required. If it is later judicially determined that a response is required, the averments contained in 9[42, and all subparagraphs contained thereunder, of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 43. The averments contained in 9[43 of Plaintiff's Amended Complaint represent conclusion of law to which no response is required. If it is later judicially determined that a response is required, the averments contained in 9[43 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 44. The averments contained in 9[44 of Plaintiff's Amended Complaint represent conclusion of law to which no response is required. If it is later judicially determined that a response is required, the averments contained in 9[44 of Plaintiff's .9mended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 45(a-i). The averments contained in 9[45, and all subparagraphs contained thereunder, of Plaintiff's Amended Complaint represent conclusion of law to which no response is required. If it is later judicially determined that a response is required, the averments contained in 9[45, and all subpazagraphs contained thereunder, of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 46. The averments contained in 9[46 of Plaintiff's Amended Complaint represent conclusion of law to which no response is required. If it is later judicially determined that a response is required, the averments contained in 9[46 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 47. The averments contained in 9[47 of Plaintiff's Amended Complaint represent conclusion of law to which no response is required. If it is later judicially determined that a response is required, the averments contained in 9[47 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 48. The averments contained in 9(48 of Plaintiff's Amended Complaint represent conclusion of law to which no response is required. If it is later judicially determined that a response is required, the averments contained in 9[48 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's Amended Complaint with prejudice and enter judgment in favor of the Defendant and further award Defendant all such further relief as is proper and just. CLAIM I -SURVIVAL ACTION 49. Paragraphs 1 through 48, and all subparagraphs contained thereunder, of the foregoing Answer are incorporated herein by reference as if more fully set forth at length. 50. The averments contained in 9[50 of Plaintiff's Amended Complaint represent conclusion of law to which no response is required. If it is later judicially determined that a response is required, the averments contained in 9[50 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 51. The averments contained in 9[51 of Plaintiff's Amended Complaint represent conclusion of law to which no response is required If it is later judicially determined that a response is required, the averments contained in 9[51 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 52. The averments contained in 9[52 of Plaintiff's Amended Complaint represent conclusion of law to which no response is required. ff it is later judicially determined that a response is required, the averments contained in 9[52 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's Amended Complaint with prejudice and enter judgment in favor of the Defendant and further award Defendant all such further relief as is proper and just. CLAIM II -WRONGFUL DEATH 53. Paragraphs 1 through 52, and all subparagraphs contained thereunder, of the foregoing Answer are incorporated herein by reference as if more fully set forth at length. 54. The averments contained in 9[54 of Plaintiff's Amended Complaint represent conclusion of law to which no response is required If it is later judicially determined that a response is required, the averments contained in 9[54 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 55. Admitted. 56. Defendant is without sufficient information to admit or deny the averments contained in 9[56 of Plaintiff's Amended Complaint and as such, strict proof thereof is demanded at the time of trial. By way of further response, to the extent the avern~ents contained in 9[56 of Plaintiff's Amended Complaint represent conclusions of law regarding entitlement to recovery, no response is herein provided. If it is later judicially determined that a response is required, the averments contained in 9[56 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 57. The averments contained in 9[57 of Plaintiff's Amended Complaint represent conclusion of law to which no response is required. If it is later judicially determined that a response is required, the averments contained in 9[57 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 58. The averments contained in 9[58 of Plaintiff's Amended Complaint represent conclusion of law to which no response is required. If it is later judicially determined that a response is required, the averments contained in 9[58 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 59. The averments contained in 9[59 of Plaintiff's Amended Complaint represent conclusion of law to which no response is required If it is later judicially determined that a response is required, the averments contained in 9[59 of Plaintiff's Amended Complaint are specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's Amended Complaint with prejudice and enter judgment in favor of the Defendant and further award Defendant all such further relief as is proper and just. NEW MATTER 60. Paragraphs 1 through 59, and all subparagraphs contained thereunder, of the foregoing Answer are incorporated herein by reference as if more fully set forth at length. 61. Plaintiff's injuries and losses, if any, were caused in whole or in part by persons or events outside of the control of Defendant, to the extent future discovery may implicate. 62. Plaintiff's injury and losses, if any, were caused in whole or in part by persons not a party to the within action, to the extent future discovery may implicate. 63. Plaintiff's injuries, if any, were sustained as a result of natural and unknown causes and not as a result of any action or inaction on behalf of Defendant. 64. At all times relevant hereto, Defendant rendered care in an appropriate manner, within the standards of care applicable thereto and in compliance with all statutes, rules, regulations, protocols and/or procedures applicable thereto. 65. Any acts and/or omissions of Defendant were and are not the proximate cause or a substantial factor giving rise to Plaintiff's alleged injuries and/or damages. 66. All claims and causes of action pleaded against Defendant are barred by Plaintiff's knowing and voluntary consent to medical treatment. 67. Plaintiff's Amended Complaint fails to state a cause of action upon which any relief may be granted. 68. The incident and/or damages as alleged in Plaintiff's Amended Complaint were caused and/or contributed by Plaintiff and/or natural causes. 69. Plaintiff's Amended Complaint has failed to set forth a valid claim for punitive damages. Respectfully submitted, McKis~sock~&%H'~offman, P.C. By: ~-~~ '_ Edwin A.D. Schw z~ squire I.D. No.: 75902 J 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 (717)540-3400 Dated: U 7 [~£~ ~'' Attorneys for Defendant, Manorcare Health Services, Inc. t/d/b/a Manorcare Health Services - Carlisle Dec ~06 OS 03:57p p.2 VERIFICATION I, Steven Coetzee, hereby verify that the statements in Defendant's Answer and New Matter aze true and correct to the best of my information, knowledge and belief. I understand that the statements are made subject to the penalties of PA.C.S. Section 4904, relating to the unsworn falsification to authorities. _ ~/ Steve Coetzee, Admini r Dated: /~ ~ ~~ CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Answer and New Matter 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: Lisa Woodburn, Esquire Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (Counsel for Plainrif~ Mc~Kis~so~ck & Hoffman, P.C. G_s~-- ~_~ -.. By: Edwin A.D. Schw , squire LD. No.: 75902 -' 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: c~7 ~~ ~`~ Attorneys for Defendant, Manorcare Health Services, Inc. t/d/b/a Manorcare Health Services -Carlisle ANCII~'O & RO VNEI2, P.C. Lisa M. B. Woodburn, Esquire LD. iu o. 89397 4503 forth Front Strcct I larrisbur¢.. PA 171 IU-1708 (717)235-6791 FAX (717) 238561 U E-mail : Ioodburn `a?angino-rovncr-com ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. Attorneys Cor Plainti Ff: Ann Wilson, Executrix of [he Estate of Helen E. Kelly, deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW MANORCARE HEALTH SERVICES, INC., NO. 04-3065 Civil Term MANORCARE HEALTH CORPORATION, Civil Action tldlbla MANORCARE HEALTH SERVICES Medical Professional Liability Action -CARLISLE, HCR MANORCARE, and MANORCARF., INC. Defendant JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDAN"T AND NOW, comes Plaintiff by and through her attorneys, Angino & Rovner, P.C., and respectfully replies to the New Matter of Defendant as follows: 60. Plaintiff reiterates her Complaint in response to this averment. 61. Denied as a conclusion of law to which no response is required. To the extent that a response is deemed necessary, it is hereby denied that Plaintiffs injuries and losses were caused in whole or in part by persons or events outside of the; control of the Defendant. To the avosa~ contrary, Plaintiffs injuries and losses were caused solely by the Defendant as stated in Plaintiffs Complaint. 62. Denied as a conclusion of law to which no response is required. To the extent that a response is deemed necessary, it is hereby denied that PLaintiffs injuries and Losses were caused in whole or in part by persons not a party to the present action. To the contrary, Plaintiff's injuries and losses were caused solely by the Defendant as stated in Plaintiffs Complaint. 63. Denied as a conclusion of law to which no response is required. To the extent that a response is deemed necessary, it is hereby denied that Plaintiffs injuries were sustained as a result of natural or unknown causes and not as a result of a.ny inaction or action on the part of the Defendant. To the contrary, Plaintiffs injuries and losses were caused solely by the Defendant as stated in Plaintiffs Complaint. 64. Denied as a conclusion of law to which no response is required. To the extent that a response is deemed necessary, it is hereby denied that Defendant rendered care and in an appropriate manner and within the standards of care applicable and in compliance with all statutes, rules, regulations, protocols, and/or procedures. To ~rhe contrary, as stated in Plaintiffs Complaint, Defendant deviated from the acceptable standard of care causing Plaintiffs losses and injuries. 65. Denied as a conclusion of law to which no response is required. To the extent that a response is deemed necessary, it is hereby denied that Defendant was not the proximate cause or substantial factor of Plaintiff's injuries and damages. To the contrary, Defendant's actions and omissions were a proximate cause or a substantival factor in Plaintiffs injuries and damages. zeasa3 66. Denied as a conclusion of law to which no response is required. To the extent that a response is deemed necessary, it is hereby denied that Plaintiffs causes of action are barred by Plaintiff's laiowing and voluntarily consent to medical treatment. To the contrary, Plaintiff at no lime consented to negligent medical care. 67. Denied as a conclusion of law to which no response is required. To the extent that a response is deemed necessary, it is hereby denied that Plaintiff s Amended Complaint fails to state a cause of action upon which relief may be granted. To the contrary, Plaintiff reiterates her Complaint in response to this averment. 68. Denied as a conclusion of law to which no response is required. To the extent that a response is deemed necessary, it is hereby denied that Plaintiffs injuries andlor damages were caused and/or contributed by the Plaintiff andlor natural causes. To the contrary, the Plaintiff in no way contributorily or comparatively contributed to her injuries and all of Plaintiff's injuries and losses were due to the negligent care provided by Defendant. 69. Denied as a conclusion of law to which no response is required. To the extent that a response a deemed necessary, it is hereby denied that Plaintiffs Amended Complaint has failed to set forth a valid claim for punitive damages. To 'the contrary, Plaintiffs Complaint adequately set forth a valid claim for punitive damages. 3 z~esa3 WHEREFORE, Plaintiffs respectfully request Your Honorable Court to dismiss Defendant's New Matter and enter judgment in favor of Plaintiff and against Defendant. Respectfi.illy submitted, & ROVNER, P.C. .~1>,-' £~ M. E3. Woodburn, Esquire I. No. X39397 403 N. Front Sircct Harrisburg, PA 17110 (717) 238 6791 Attorney for Plaintiff Dated: c~ ~~~ ~Cl~ j 4 296843 ~~ . ATTORNEY AFFIDAVIT I, Lisa M. B. Woodburn, Esquire, state that I am counsel far Plaintiff, that I am authorized to make this Verification on behalf of said Plaintiff, and have read the foregoing and do hereby declare and affirm that the facts set forth in the foregoing are correctly derived from the discovery record. 1 understand that this Verification is made subject to the penalties of 28 U.S.C. §1746, relating to unsworn falsification to authorities. ~ > ,,~ i Lisa . B. Woodbum, Esquire Sworn to and subscribed to fore me on this =~C1 x~ day of ~ y /~'.i./ , 2005 _ ~. (- / / . Notary Public NDTARIALSEAL SUSAN L.M. HEPP, Notary Pudic City of Harristwrg, Daupght C66ftgy M Commission Expires Ma 8, 2f1U6 z~~zaa CERTIFICATE OF SERVICE 1, Betty K. Sheaffer, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of Plaintiff's Reply to New Matter of Defendant on the following via postage prepaid, first class United States mail, addressed as follows: Edwin A. D. Schwartz, Esquire William J. Mundy, Esquire McKissock & Hoffman, P.C. 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Dated: ~~-~ ~=" ~c~ Betty K~~ reaffer z~~asa3 c~ ^' ~ o c ,~ -~, ~ .,,~r ~;~~ ~_~ ~. ~!~ fet , W _i ) i~ .y ~.~ 1NC1~0 & ROVNER, RC. Li51~ N1. B. Woodburn, Gsyuire L0. Ko-S93J7 0303 North Front Street Il~rrisbure. NA 171 IO-1703 (717) 335-(791 PAX (717) 338-SGIO F-mail : lwoodbum(a;angino-rovncr.com ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff MANORCARE HEALTH SERVICES, WC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES - CARL]SLE, HCR MANORCARE, and MANORCARE, INC. Defendant Aaorncys for Pluincifr~ Ann Wilson, Fsrcu[rix of the Esi¢tc of Helen G. Kelly, dcce~scd TE COURT OF COMMON PLEAS BERLAND COUNTY, PENNSYLVAN[A ACTION -LAW 04-3065 Civil Term Action -- Professional Liability Action Y TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANTS' REQUEST FOR ADMISSIONS-SET I RF,QUF,ST FOR ADMISSION N9. 1 On September 27, 2002, Decedent, Helen E. Kelly was diagnosed with major depression and dementia. ANSIVER: It is admitted only that a Consultation Report dated September 27, 2002, indicates Helen E. Kelly's diagnosis to be, "major depression and dementia." Ann Wilson believes her mother was diagnosed with depression because her father, the husband of Decedent, Helen E. Kelly, passed away in the early hours of September 14, 2002. Helen E. Kelly had just become a resident of ManorCare on September 12, 2002. Ann W ikon was only ever aware her mother suffered ~iaaas fi om depression related to her father's dead and never made aware her mother suffered from major depression. REQUEST FOR ADMISSION NO. 2 Frederick E. Henry, MS~V, LS~~, on or around February 6, 2003, noted increasing depression in Decedent, Helen E. Kelly and noted that her mood were dysphoric. ANSWER: Admitted in part; denied as stated, in that this request is overly broad and does not adequately reflect the full content of the findings on February 6, 2003, or the reasons for the findings of increasing depression and dementia, as noted. It is admitted only that a Consult Report dated February 6, 2003, by Frederick E. Henry, MSW, LSW notes, "Increasing depression with care refusals. History of MS. Patient seen in room. Mood dysphoric. Patient verbal, noted she has been experiencing increasing bilateral leg pain over the past 1+ month. She noted that it is like an electrical shock running down her legs and that it is extremely painful. She noted that she is reluctant to ask for pain coeds on a routine basis out of fear that (1) she will get addicted and (2) they will stop working to control pain with ongoing use. She is quite distressed, and stated when the pain is severe, this is when she refuses to be moved or physically manipulated by staf£° The February 6, 2003, note from Frederick E. Henry. MSW, LSW, contains additional findings. diagnosis and recommendations not mentioned in this request. RF.QUF,ST FOR ADMISSION NO. 3 On or around March 2, 2003, Plaintiff, Ann Wilson was notified by nursing staff that Decedent, Helen E. Kelly was complaining of a sore Chroat and that she had a clear liquid diet for lunch. ANSWER: It is admitted only that a March 2, 2003, Interdisciplinary Progress Note indicates, "Plaintiff s daughter, Ann Wilson notified of changes in condition." The remainder of this request is denied as stated, in that it attempts to characterize a conversation between nursing staff and Ann Wilson, without the benefit of sworn testimony from either party and without reflecting the full content of the Interdisciplinary Progress Notes from that date. Ann Wilson does not recall being nolitied by ManorCara that her mother had a sore throat but she knew her mother had a sore throat because she had visited her moQier and her mother told her. REQUES'C FOR ADMISSION NO. 4 On or around March 3, 2003, Plaintiff, Ann Wilson, was notified that the doctor issued a new order for a clear liquid diet and Amoxicillin for Decedent, Helen E. Kelly. 316441 2 ANSWER: Admitted in part; denied as stated. It is admitted only that the Interdisciplinary Progress Notes for March 6, 2003, indicates, "Ann Wilson notified of new orders" and in a separate part of the Interdisciplinary Progress Notes for March 6, ?003, indicates, "New orders for amoxicillin and clear liquids received." The remainder of this request is denied as stated, in that it attempts to characterize a conversation between nursing staff and .Ann Wilson, without the benefit of sworn testimony from either party and without reflecting the full content of the hnterdisciplinary Progress Notes from that date. Ann Wilson recalls a conversation whereby she ~a~as notified that her mother, Helen E. Kelly had been placed on an antibiotic for her sore throat but does not recall being made aware of the order for the clear liquid diet. REQUEST FOR ADMISSION NO. 5 On or around March 12, 2003, ManorCare Health Services -Carlisle developed an Acute Care Plan to address Decedent's weight loss and the plan included encouraging fluids, offering foods of choice, offering between meal snacks, and setting up trays and assisting with eating as needed. ANSWER: Admitted in part; denied as stated. It is admitted only that on March 12, 2003, ManorCare Health Services -Carlisle developed an Acute Care Plan which included, "Plan of Approach: encouraging fluids, offering foods of choice, offering between meal snacks, and setting up trays and assisting with eating as needed". The remainder of this request is denied as stated in that it is a paraphrase of the record and does not rellcet the full content of the Acute Care Plan which indicates, "Problems, Needs, Strengths or Potential Concerns of decrease in by mouth/oral intake related to illness and a Goal to increase intake to prevent fiurther weight loss." REQUEST FOR ADMISSION NO. 6 On or around March 16, 2003, Decedent Helen E. Kelly only ate with much encouragement and said that she was depressed about everything. ANSWER: Admitted in part; denied as stated. It is admitted only that a March l6, ?003, Interdisciplinary Progress Note indicates, "Only eats with much encouragement." In a separate sentence in the same Progress Note it reads, "resident stating she is depressed about everything when inquired how she feels." The remainder of this request is denied as stated in that it is overly broad and attempts to characterize the lima frame and interactions on or around March 16, 2003, in one sentence and out of context, zioaaa 3 REQUEST FOR ADMISSION NO. 7 On or around March 16, 2003, the medical records reflect that ManorCare Health Services - Carlisle staff continued to encourage Decedent, Helen Kelly, to increase herby mouth intake. ANSWER: Admitted in part; denied as stated. It is only admitted that a portion of the Interdisciplinary Progress Note for March 16, 2093 indicates, "Will continue to encoui~ge increase oral intake." The remainder of this request is denied as stated in that it is not an accurate representation of the record for March 16, 2003, on its own and out of the context of the record for the time frame and events around March l6, ?003. REOUEST FOR ADMISSION NO. 8 On March l7, ?003, Plaintiff, Ann Wilson was notified of Decedent, Helen Kelly's declining health and Plaintiff, Ann Wilson stated that she prefer Decedent, Helen Kelly be taken to Harrisburg Hospital. ANSWER: Admitted in part; denied as stated. 1t is admitted only that the TnterdisciplinaryProgrws Note for March 17, 2003, indicates, "Daughter notified, prefers Harrisburg Hospital." The remainder of this request is denied as stated in that it attempts to characterize an entire conversation in one sentence and without the benefit of the sworn testimony of either party to the conversation. In addition Ann Wilson contends she was contacted on two occasions on March 17, 2003. The first conversation with a member of the nursing staff was with regard to whether her mother, Helen E. Kelly should be checked for dehydration. Ann Wilson recalls this nursing staff member indicating "she might be a little bit dehydrated." During the first phone call Ann Wilson recalls being asked for her opinion as to whether she believed her mother needed to be checked for dehydration. The second conversation occurred about fifteen minutes later and after a doctor had been consulted. Ann Wilson was not aware of the gravity of her mother's health and had she been aware of her mother's true condition would have requested the closest hospital. REQUEST FOR ADMISSION NO. 9 Decedent, Helen Kelly died on March 18, ?003 in Harrisburg Hospital. ANSWER: Admitted, s i aa~a q Respectfully submitted, Date: ~~~ y~~(7~/ic ANGIN & ROVNER, P.C. - _.-. G ~~i~,~~CC~-_._. Lisa B. Woodburn, Esquire I.D. No. 89397 4503 N. Front Street Harrisburg, PA 17] 10 (717)238-6791 Counsel for Plaintiffs 116444 VERIFICATION 1, Ann Wilson, Executrix of the Estate of Helen E. Kelly, Plaintiff, have read the foregoing responses to discovery and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of my knowledge, inforn~ation, and belief. I understand that this Verification is made subject to die penalties oC 18 Pa.C.S.A. Section 4904, relating to unsworn falsi$cation to authorities. Dated: ~~ ~~~~ ~' ~ Ann Wilson aioa~i ATTORNEY AFFIDAVIT 1, Lisa M. Q. Woodburn, Esquire, state that (am counsel for Plaintiffs, that I am authorized to make this Verification on behalf of said Plaintiffs, and have read the foregoing and do hereby declare and affirm that the facts set forth in the foregoing are correctly derived from the discovery record. I understand that tlvs Verification is made subject Co the penalties of 28 U.S.C. §1746, relating to unsworn falsification to authorities. ..~; f~ rb -~ L Lisa M. B. Woodburn, Esquire Sworn to and subscribed to -b-~e~fo~~re me on this o~ ~~ ~ay o f -~Vu1Y a ~rl< , 2006. MMDNYIEA[1H OF PENN NDTARIAL SEAL ENRISTINE M. GAtfAGHER, NOlARYMMIIQ SUSDUERANNA TWP., DAUPHIN CO. NY COMMISSION EXPIRES FEB.16 2 rn~a3 CERTIFICATE OF SERVICE I, Megan Moll, an employee of the law firm of Angino & Rovner, P.G, do hereby certify that I am this day serving a true and correct copy of Plaintiffs Response Yo Defendants' Request for Admissions - Set I on the following via postage prepaid, first class United States mail, addressed as follows: Edwin A. D. Schwartz, Esquire William J. Mundy, Esquire McKissock & Hoffman, P.C. ?040 Linglestown Road, SuiTe 302 Han~isburg, PA 17] 10 1 li~~ti ~ i'•~ i ~ 'l l ~C'~-~--> Megan oll Dated: ~~ZL~~~J~G 316444 -, ;; _~ :`} t,~ ~ _ CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: WILSON MANOR CAER COURT OF COMMON PLEAS TERM, CUMBERLAND -VS- CASE N0: 04-3065 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 40D9.22 MCS on behalf of EDWIN A.D. SCHWARTZ, ESQ. 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. J DATE: 03/20/2006 ~ MD N AbD.aSC AR~, ESQ.~~ Attorney for DEFENDANT DEll-616030 1 1 0 5 0- L 0 1 C O MM O NW EAL T H O F P E NN S Y L VAN 2 A COUNT Y O F C UM B E 12 LAN D IN THE MATTER OF: COURT OF COMMON PLEAS WILSON -VS- MANOR CAER NOTICE OF INTENT T THINGS FOR HARRISBURG HOSPITAL OTHER TERM, CASE N0: 04-3065 TO PRODUCE T0: LISA M. B. WOODBURN, ESQ., PLAINTIFF COUNSEL MCS on behalf of EDWIN A.D. SCHWARTZ, ESQ. intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 02/28/2006 MCS on behalf of EDWIN A.D. SCHWARTZ, ESQ. Attorney for DEFENDANT CC: EDWIN A.D. SCHWARTZ, ESQ. - 748-69 Any questions regarding this matter, contact THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-325840 1 1 0 5 0- C 0 1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND WILSON File No. 04-3065 vs. MANOR CAER SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for HARRISBURG HOSPITAT (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you aze ordered by the court to produce the following documents or things: **** SEE ATTA H D TD R **** at The M S roan Inc 1601 M rket Str t C~ '+ R00 Philad lphia PA 14103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: EDWIN A.D. SCHWARTZ ES ADDRESS: 2040 LINGT.F,STnWN RnAn HA1zR1 B nt .PA 17110 TELEPHONE: (2151246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant ~~~ , MAR 2 0 2006 Date: ~ ~ h/I (~ BY THE OURT: S ~. rot onotary/Clerk, C~iv7Il~Divi ~ ~ ~ ~ / ~~i04 lv~~ Deputy Seal of the Court EXPLANATION OF REQUIKED RECORDS TO: CUSTODIAN OF RECORDS FOR: HARRISBURG HOSPITAL 111 S. FRONT STREET HARRISBURG, PA 17101 RE: 11050 HELEN E. KELLY, DECEASED Prior approval is required for fees in excess of $100.00 for hospitals, $50.00 for all other providers. ANY AND ALL RECORDS FROM 5!1996 TO 5(2003. 5ubjed :HELEN E. KELLY, DECEASED 940 WALNUT BOTTOM ROAD, CARL~•F., PA 17013 Social Security #: 194-11x6589 Date of Birth: 01-05-1922 SU10-608480 1 1 0 5 0- L 0 1 r>> C: <- ~ ' CJ r <-~.-. . ~ -rf .. _ i ~.~~~t _,. ri r.~ ` ° ~ W ' *y ' ~ ;_~ '" ~~i; j+ r.,~ `< C, _; ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES - CARLISLE, HCR MANORCARE, and MANORCARE, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 04-3065 -Civil Term JURY TRIAL DEMANDED DEFENDANTS' MOTION FOR RECONSIDERATION OF THE COURT'S SEPTEMBER 14 2005 ORDER GRANTING PLAINTIFF'S PETITION FOR RELIEF FROM JUDGMENT NON PROS AND NOW comes Defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, t/d/b/a Manorcare Health Services -Carlisle, HCR Manorcare, and Manorcare, Inc. (hereinafter referred to collectively as "Defendants" unless otherwise indicated by syntax), by and through their counsel, McKissock & Hoffman, P.C., and respectfully submits the following Motion for Reconsideration of this Honorable Court's September 14, 2005 Order granting Plaintiff's Petition for Relief from Judgment Non Pros, and in support thereof provides the following: 1. Plaintiff filed a Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania on or about July 1, 2004. No Certificate of Merit was attached to Plaintiff's Complaint as required by Pa.R.C.P. 1042.1 et seq. 2. Defendants filed Preliminary Objections to Plaintiff's Complaint on or about August 5, 2004. Subsequently, Plaintiff filed an Amended Complaint on or about March 15, 2005. Again, no Certificate of Merit was attached to Plaintiff's Amended Complaint as required by Pa. R.C. P. 1042.1 et seq. 3. On March 17, 2005, after a search of the docket revealed that no Certificate of Merit had been filed of record with the Prothonotary, Defendants filed a Praecipe for Judgment Non Pros, as specifically permitted by Pa.R.C.P. 1042.6. 4. Plaintiff filed her Motion to Deny or Remove Non Pros on or about March 22, 2005. Plaintiff's Motion argued that the failure to file a Certificate of Merit was due to "pure clerical error, inadvertence or mistake." 5. Plaintiff filed her Memorandum of Law in Support of Petition to Open Non Pros on or about August 12, 1005. Defendants filed their Memorandum of Law in Opposition of Plaintiff's Petition to Open Non Pros on or about August 17, 2005. 6. Oral argument was held on August 24, 2005 before the Honorable Judges Edgar B. Bayley and Edward E. Guido. 7. On September 14, 2005, Judge Bayley entered an Order and Opinion granting Plaintiff's Motion to open Nan Pros finding that the law (regarding the strict application of Pa.R.C.P. 1042., et seq.) was unclear. 8. On September 20, 2005, counsel for Defendants sought an amendment to Judge Bayley's Order for the purpose of pursuing an interlocutory appeal to the Pennsylvania Superior Court. On that same date, the Honorable Judge Bayley entered an Order amending the previous Order of September 14, 2005. 9. Defendant's ultimately filed a Petition for Permission to Appeal with the Pennsylvania Superior Court. That Petition was ultimately denied by the Superior Court. 10. On October 17, 2006, the Pennsylvania Supreme Court issued an Opinion and Order in the matter of Womer v. Hilliker, 2006 Pa. LEXIS 1991, which is directly on point to the issue previously presented to this Court relative to Plaintiff's Petition to Deny or Remove Non Pros. A true and correct copy of the Supreme Court's Opinion in Womer is attached hereto and made a part hereof as Exhibit "A". 11. The Womer matter involved counsel's failure to file the requisite certificate of merit which resulted in the entry of non pros. Counsel sought relief from the judgment, arguing that his failure to file a Certificate of Merit was mere mistake or oversight of counsel; that he had provided an expert report to defense counsel during discovery, and that said expert report contained all the information required by Pa.R.C.P. 1042.3; that he was not notified of the t defendant's intention to take judgment non pros; that the spirit and intent of Pa.R.C.P. 1042.3 had been met; and that his client's case was meritorious and should not be penalized for the inadvertence or oversight of counsel. Counsel further alleged that because he believed that. he had substantially complied with Pa.R.C.P. 1042.3, he had provided a "reasonable excuse" for his failure to produce a Certificate of Merit. Womer, 2006 Pa. LEXIS 1991 at 4. The Superior Court granted Womer's Petition and opened the judgment non pros. 12. On appeal, the Supreme Court reversed the Superior Court's decision and reinstated non pros. The Supreme Court determined that Womer's argument of "substantial compliance" was without merit. The Supreme Court noted as follows: Rule 1042.3 is clear and unambiguous in its mandate that in every professional liability action a specific representation about the plaintiff's claim must be filed in the official record in a document called a "certificate of merit" at the time the Complaint is filed or within sixty days thereafter... Moreover, [the rule] sets forth the one and only step that a plaintiff is to take if he finds himself unable to secure a certificate of merit and desires to avoid the consequences of not satisfying [the rule's] certificate of merit filing requirement in a timely fashion. In contending that even though he made no effort to follow Pa.R.C.P 1042.3's requirements, Rule 126 can apply in [Womer's] circumstances because he fulfilled Rule 1042.3's purpose, Womer is essentially arguing that the doctrine of substantial compliance in Rule 126 not only excuses a party who commits a procedural misstep in attempting to do that which a rule instructs, but also excuses a party who does nothing that a rule requires, but whose actions are consistent with the objectives he believes the rule serves. This is simply not so... Rule 126 is available to a party who makes a substantial attempt to conform, and not to a party who disregards the terms of a rule in their entirety and determines for himself the steps he can take to satisfy the procedure that we have adopted to enhance the functioning of the trial courts. Womer, 2006 Pa. LEXIS 1991 at 22-24. 13. The Womer decision is directly applicable to the instant matter. Instantly, Plaintiff never filed a certificate of merit prior to the filing for Judgment non pros; rather, Plaintiff argued that the failure to file a certificate of merit was due to "pure clerical error, inadvertence or mistake," and that Plaintiff had substantially complied with Pa.R.C.P. 1042.3 because a certificate of merit was present in counsel's file. 14. The action of this Honorable Court in opening the judgment non pros, via the Order of September 14, 2005, is in direct conflict to the decision of the Supreme Court on the same issue. 15. Absent this Honorable Court's reconsideration and reversal of its prior Order of September 14, 2005, the parties to this action will be forced to proceed in litigating Plaintiff's claims with the anticipated result being an appeal to the Superior Court for the reinstatement of the judgment non pros in conformity with the established case law of this Commonwealth. Both parties are expected to expend considerable time and money in the prosecution/defense of this action while ultimately, the matter is anticipated to be presented to the Superior Court on an appeal of this Honorable Court's opening the judgment non pros that was properly entered on March 17, 2005. WHEREFORE, Defendants Manorcare Health Services, Inc., Manorcare Health Corporation, t/d/b/a Manorcare Health Services -Carlisle, HCR Manorcare, and Manorcare, Inc., respectfully request that this Honorable Court reconsider and reverse its Order of September 14, 2005 and reinstate the judgment non pros that was entered on March 17, 2005. Respectfully submitted, McKissock & Hoffman, P.C. By: Edwin A.D. Schwa quire I.D. No.: 75902 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: T..~. dt~ cS ~ Attorneys for Defendants, Manorcare Health Services, tnc., Manorcare Health Corporation, t/d/b/a Manorcare Health Services - Carlisle, HCR Manorcare, and Manorcare, Inc. P ~. ~.,exisNexis(TM) Basic Case Law & Statutes ~ Search - 1 Result - "certificate of merit" and date(ge... Page 1 of 13 Source: All Sources > Cases > PA State Cases, Combined Terms: "certificate of merit" and date(geq 09/24/2006) (Edit Search) 2006 Pa. LEXIS 1991, GARTH WOMER, Appellee v. ]AN HILLIKER, M.D., Appellant No. 25 MAP 2005 SUPREME COURT OF PENNSYLVANIA 2006 Pa. LEXIS 1991 December 5, 2005, Argued October 17, 2006, Decided PRIOR HISTORY: [*1] Appeal from the Order of the Superior Court entered on August 11, 2004, at No. 1947 MDA 2003, reversing the Order of the Court of Common Pleas of Union County entered on December 3, 2003, at No. 03-0382, and remanding with instructions. Womer v. Hilliker, 860 A.2d 1144 2004 Pa. Super. LEXIS 4083 ~Pa. Super. Ct., 2004) JUDGES: MR. CHIEF JUSTICE CAPPY. Madame Justice Newman and Messrs. Justice Saylor and Eakin join in this opinion. Former Justice Nigro did not participate in the consideration or decision of this matter. Mr. Justice Baer files a dissenting opinion in which Mr. Justice Castille joins. OPINION BY: CAPPY OPINION: MR. CHIEF JUSTICE CAPPY This appeal concerns Pa.R.C.P. No. 1042.3, which requires that a certificate of merit ("COM") be filed in any professional liability action in which it is alleged that a licensed professional deviated from the acceptable standard of care. Presently, we consider whether the Superior Court correctly reversed the trial court's order denying Appellee Garth Womer ("Womer") relief from the judgment of non pros that was entered against him due to his failure to file a COM. For all of the reasons that follow, the order of the Superior Court is reversed. The relevant facts and procedural[*2] history are straightforward. On June 25, 2003, Womer commenced a civil action against Appellant Jan K. Hilliker, M.D ("Hilliker") by filing a praecipe for issuance of a writ of summons. On August 18, 2003, Womer filed atwo-count complaint against Hilliker for negligence and lack of informed consent. In his complaint, Womer alleged that Hilliker is a practicing opthomologist whose services were engaged to perform corrective surgery on Womer's eyes; that Hilliker performed the surgery on June 7, 2001; that Hilliker failed to warn Womer of the risks, use the proper procedure, take the proper precautions, and treat the surgery's complications; and that as a result of Hilliker's actions, Womer suffers from permanent visual limitations, which have caused him to sustain a variety of losses. Womer did not file a COM with his complaint nor did he file a COM within sixty days of its filing, as is required under Pa.R.C.P. No. 1042.3(a). In addition, Womer did not file a motion to extend the time for the filing of a COM, as is allowed under Pa.R.C.P. No. 1042.3(d). ni --------------Footnotes--------------- ni Rule 1042.3 provides in relevant part: Rule 1042.3. Certificate of Merit (a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for http://www3.lexi snexis.com/bcls/auth?cacheKey=T3231042&srv=ols_B ooleanRetrieve&form_Vi... 10/24/200 ~. ~,exisNexis(TM) Basic Case Law & Statutes' Search - 1 Result - "certificate of merit" and date(ge... Page Z of 13 the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that... (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm... ~** (d) The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days. The motion to extend the time for filing a certificate of merit must be filed on or before the filing date that the plaintiff seeks to extend. The filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the court rules upon the motion. Pa.R.C.P. No. 1042.3(a)(1),~. ------------End Footnotes--------------[*3] On October 20, 2003, Hilliker filed a Praecipe for Entry of Judgment of Non Pros Pursuant to Pa.R.C.P. No. 1042.6 for failure to file a COM. n2 On that same day, the Prothonotary entered a judgment of non pros in Hilliker's favor. --------------Footnotes--------------- n2 Pa.R.C.P. No. 1042.6 states in pertinent part: Rule 1042.6. Entry of Judgment of Non Pros for Failure to File Certification (a) The prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that there is no pending timely filed motion seeking to extend the time to file the certificate. Pa.R.C.P. No. 1042.6. ------------End Footnotes-------------- On October 22, 2003, Womer filed a Motion to Open Judgment of Non Pros and Allow the Filing of a Certificate Nunc Pro Tunc ("Motion"). In the Motion, Womer sought relief from the judgment, alleging that he served an expert report[*4] on Hilliker in discovery before Pa.R.C.P. No. 1042.3's time limit expired; that the information he provided to Hilliker included all of the information that Pa.R.C.P. No. 1042.3 requires; that his failure to file the required COM was due to his counsel's oversight or mistake; that he was not notified of Hilliker's intent to secure the judgment of non pros; that Hilliker would not be prejudiced by the granting of the Motion; that the purpose of Pa.R.C.P. No. 1042.3 had been served; that he promptly took steps to open the judgment upon learning of its entry; and that he possessed a meritorious case. One of the exhibits attached to the Motion included the curriculum vitae of an optometrist, Dr. Keith S. Hillard ("Hillard"), and a report ("Report") that Hillard authored. The Report described Hiliard's consultation with Womer on June 5, 2002 regarding Womer's visual status. In the Report, Hillard opined that Womer was not a good candidate for the particular surgical procedure that Hilliker used; that due to Womer's myopia and pupil size, he was exposed to a higher http://www3.lexi snexis.com/bcls/auth?cacheKey=T3231042&srv=ols_BooleanRetrieve&form_Vi... 10/24/200 ~..exisNexis(TM) Basic Case Law & Statutes ~ Search - 1 Result - "certificate of merit" and date(ge... Page 3 of 13 risk of harm than are others; and[*5] that following the surgery, Hilliker did not treat a manageable complication promptly. Another exhibit attached to the Motion was a COM as to Hilliker dated October 21, 2003. In response to the New Matter included in Hilliker's Answer to the Motion, n3 Womer further alleged that if relief from a judgment of non pros secured under Pa.R.C.P. No. 1042.6 is governed by Pa.R.C.P. No. 3051, n4 then Rule 3051(b)(2)'s requirement that he provide a reasonable explanation for his inactivity was satisfied inasmuch as he was under the belief that providing the Report to Hilliker met the requirements of Pa.R.C.P. No. 1042.3. In the alternative, Womer contended that Pa.R.C.P. No. 237.1, and not Pa.R.C.P. No. 3051, applies to the opening of such a judgment. Referring to Pa.R.Civ.P. No. 126, n5 Womer also alleged that a trial court's strict adherence to Rule 1042.3 in his case would undermine this Court's intent in adopting the Rule, which was to eliminate the filing of non-meritorious professional liability actions and that the[*6] entry of a judgment of non pros, which would put him permanently out of court for a technical violation of Rule 1042.3, was too drastic a result in light of his substantial compliance. --------------Footnotes--------------- n3 In New Matter, Hilliker alleged that if Womer relied on a written statement from Hillard to file a COM, the COM would be insufficient under Pa.R.C.P. No. 1042.3 because an optometrist is not an "appropriate licensed professional" under Pa.R.C.P. No. 1042.1(b)(1) who is authorized to supply the statement that Pa.R.C.P. No. 1042.3(a)(1) requires concerning the treatment that an ophthalmologist, like Hilliker, provides. Given the questions before us in this case and our resolution of them, we do not address this issue. n4 Pa.R.C.P. No. 3051 provides: Rule 3051. Relief from Judgment of Non Pros (a) Relief from a judgment of non pros shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition. (b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that(1) the petition is timely filed,(2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and(3) there is a meritorious cause of action. Pa.R.C.P. No. 3051.[*7] n5 Pa.R.C.P. No. 126 states: Rule 126. Liberal Construction and Application of Rules The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. Pa.R.C.P. No. 126. ------------End Footnotes-------------- The trial court denied Womer`s Motion. The trial court first rejected Womer's argument that the discovery materials he served on Hilliker complied with the terms of Pa.R.C.P. No. 1042.3, concluding that such an argument contradicted the rule's plain language. Next, the trial court http://www3.lexisnexis.com/bcls/auth?cacheKey=T3231042&srv-ols_BooleanRetrieve&form_Vi... 10/24/200 ~„exisNexis(TM) Basic Case Law & Statutes ~ Search - 1 Result - "certificate of merit" and date(ge... Page 4 of 13 determined that Womer was incorrect that his Motion should be evaluated under Pa.R.C.P. No.237.1, and held that Womer's entitlement to relief from the judgment of non pros was to be assessed under Pa.R.C.P. No. 3051. The trial court[*8] then considered whether Womer's belief that his discovery responses satisfied Rule 1042.3's requirements provided a reasonable explanation under Rule 3051 b 2 for his failure to file a COM, and concluded that Womer's belief was insufficient. In this regard, the trial court was of the view that discovery responses, particularly information not of record, neither substituted for a Rule 1042.3 COM nor explained why Womer neglected to request an extension of time under Pa.R.C.P. No. 1042.3(d) within which to secure a COM. Finally, the trial court determined that Womer's assertions that Pa.R.C.P. No. 126 should excuse him were ~ inappropriate since Rule 126's application in the present circumstances would effectively nullify the terms of Pa.R.C.P. No. 1042.3. Accordingly, the trial court entered an order dated December 3, 2003, denying Womer's Motion requesting that the judgment of non pros be opened, and denied the Motion for Reconsideration he filed thereafter by order dated December 15, 2003. n6 --------------Footnotes--------------- n6 The trial court also determined that because a judgment was actually entered against Womer, it would not reach the question as to whether Womer could have requested leave to file the COM as to Hilliker that was attached to the Motion Hunt pro tunc. Due to our resolution, there is no issue for us to decide in this regard. ------------End Footnotes--------------[*9] Womer filed a timely appeal. In the Superior Court, Womer abandoned his argument that Pa.R.C.P. No. 237.1 governed his request for relief from the judgment of non pros, and argued his entitlement to relief from the judgment under Pa.R.C.P. No. 3051. Womer made all the same assertions in support of his Motion in the Superior Court that he made in the trial court, and added to his arguments in his Superior Court brief by stating that the judgment of non pros should be opened because Pa.R.C.P. No. 1042.3 was newly promulgated and the statute of limitations had run on his cause of action as of the date the judgment was entered. In an unpublished opinion, the Superior Court applied Pa.R.C.P. No. 3051 to Womer's Motion, and concluded that Womer satisfied Rule 3051(b)(1) and ~, by acting promptly and having a cause of action to file, and Pa.R.C.P. No. 3051~b)~2~, by providing a reasonable explanation for his lack of compliance with Pa.R.C.P. No. 1042.3. As to the latter, the Superior Court focused on Womer's contention[*10] that he did not file a COM because he believed that by giving Hillkier the Report he substantially complied with Pa.R.C.P. No. 1042.3, and found Womer's belief "not wholly unreasonable" due to the lack of case law on the issue. The Superior Court stated: [W]e conclude that given the instant circumstances a legitimate excuse for the failure to comply with Rule 1042.3 exists. This includes the lack of decisional law at the time of the lawsuit; the fact that plaintiff supplied defendant with more information than Rule 1042.3 requires, i.e., a copy of the report instead of a certification that he has such a report; and the fact that [plaintiff] appellant is out of court on his claim if the nvn pros is affirmed. It is true that Rule 1042.3 allows for a generous period before the filing of a certificate and that the rule provides for unlimited extensions of the sixty day period pursuant to timely requests. However, in the context of the case, it was not wholly unreasonable for a litigant to have concluded that this transmittal of an expert report represented substantial compliance with Rule 1042.3. (Superior Court Memorandum Opinion at 5.) The Superior Court[*11] also observed that even though it did not disagree with the trial court's opinion espousing a literal interpretation of Pa.R.C.P. No. 1042.3, it disagreed with the trial court's result for several reasons. The reasons the Superior Court listed without discussion were: equitable principles; the statute of limitations; the recent http://www 3 .lexisnexis.tom/bcls/auth?cacheKey=T3231042&srv=ols_B ooleanRetrieve&form_ Vi ... 10/24/200 • , ~.,exisNexis(TM) Basic Case Law & Statutes ~ Search - 1 Result - "certificate of merit" and date(ge... Page 5 of 13 promulgation of Rule 1042.3; the sparseness of decisions regarding the permissibility of substantial compliance as a substitute for a COM; and the existence of Pa.R.C.P. No. 126. Accordingly, the Superior Court reversed the trial court's order and remanded the case to the trial court. On remand, the trial court was to obtain proof of facts by evidence or stipulation that Womer supplied the Report to Hilliker and, if shown, to enter an order vacating the judgment of non pros and consider the objection that Hilliker raised to Hillard's qualifications under Pa.R.C.P. No. 1042.1 to supply the statement Pa.R.C.P. No. 1042.3 (a)(11 requires. See supra n.3. Hilliker filed a Petition for Allowance of Appeal. This Court granted review, limited to[*12] whether the Superior Court erred in concluding that Womer alleged sufficient facts to warrant the opening of the judgment of non pros, and directed the parties to address whether Pa.R.C.P. No. 1042.3 should be deemed subject to equitable exceptions. Womer v. Hilliker 582 Pa. 92~, 869 A.2d 482 (Pa. 2005 (per curiam) . By way of background, we begin with the circumstances of Pa.R.C.P. No. 1042.3's adoption. Pa.R.C.P. No. 1042.3 is one in a series of rules that "govern procedure in a civil action in which a professional liability claim is asserted against a licensed professional." Pa.R.C.P. No. 1042.1(a). See Pa.R.C.P. Nos. 1042.1-1042.8. We adopted these rules in January of 2003, having determined that malpractice actions were being commenced in the Pennsylvania courts more frequently. We were concerned that this trend would lead to an increase in the filing of malpractice claims of questionable merit, and sought to avoid the burdens that such claims impose upon litigants and the courts. [*13] Therefore, we exercised our rule-making authority to devise an orderly procedure that would serve to identify and weed non-meritorious malpractice claims from the judicial system efficiently and promptly. See pa const. art.V, § 10(c); 42 Pa.C.S. § 1722. The procedure we provided in the professional liability action rules centers on the filing of a COM. On the one hand, the presence in the record of a COM signals to the parties and the trial court that the plaintiff is willing to attest to the basis of his malpractice claim; that he is in a position to support the allegations he has made in his professional liability action; and that resources will not be wasted if additional pleading and discovery take place. See Pa.R.C.P. No. 1042.4, Pa.R.C.P. No. 1042.5. n7 On the other hand, the absence from the record of a COM signals to the parties and the trial court that none of this is so and that nothing further should transpire in the action, except for the lawsuit's termination. See Pa.R.C.P. No. 1042.6 --------------Footnotes--------------- n7 Under Pa.R.C.P. No. 1042.4, a defendant against whom a professional liability action is asserted is to file a responsive pleading within the time required under Pa.R.C.P. No. 1026 or within twenty days after the COM is served, whichever is later. Under Pa.R.C.P. No. 1042.5, only limited discovery is allowed without leave of court before the COM is filed. ------------End Footnotes--------------[*14] In this appeal, our primary focus is on Pa.R.C.P. No. 1042.3 and whether it is subject to equitable exceptions. We first observe that the Pa.R.C.P. No. 1042.3 itself sets forth no exceptions, equitable or otherwise, to its terms. See supra n.l. Therefore, in this regard, we focus, as did the lower courts and the parties, on Pa.R.C.P. No.126, and consider whether the Superior Court should have allowed Rule 126 to play any part in excusing Womers' failure to file a Rule 1042.3 COM. n8 --------------Footnotes--------------- n8 This issue raises a question of law, and thus, our standard of review is de novo. Our scope of review, to the extent necessary to resolve the legal question before us, is plenary. Gardner v. Workers' Compensation Appeal Board (Genesis Health Ventures, 585 Pa 366, 888 A 2d 758761 n.4 (Pa. 2005. http://www3.lexisnexis.com/bcls/auth?cacheKey=T3231042&srv=ols_BooleanRetrieve&form Vi... 10/24/200 ~.exisNexis(TM) Basic Case Law & Statutes ~ Search - 1 Result - "certificate of merit" and date(ge... Page 6 of 13 ------------End Footnotes-------------- It is self-evident that our Rules of Civil Procedure are essential to the orderly administration and efficient functioning[*15] of the courts. Accordingly, we expect that litigants will adhere to procedural rules as they are written, and take a dim view of litigants who flout them. See Wood v. Ganett, 353 Pa. 63146 A.2d 321, 324 (Pa. 1946). That said, we have always understood that procedural rules are not ends in themselves, and that the rigid application of our rules does not always serve the interests of fairness and justice. Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 12801281 (Pa. 1978). It is for this reason that we adopted Rule 126, which provides in pertinent part that "[t]he court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties." Pa.R.C.P. No. 126. With this language, we incorporated equitable considerations in the form of a doctrine of substantial compliance into Rule 126, giving the trial courts the latitude to overlook any "procedural defect" that does not prejudice a party's rights. Sahutsky v. H.H. Knoebel Sons, 566 Pa. 593, 782 A.2d 996, 1001 ~Pa. 2001), (quoting Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804, 806 ~Pa. 1989[*16] (emphasis in original)); Pomerantz, 387 A.2d at 1281. Thus, while we look for full compliance with the terms of our rules, we provide a limited exception under Rule 126 to those who commit a misstep when attempting to do what any particular rule requires. Moreover, we made Rule 126 a rule of universal application, such that the trial court may disregard any such procedural defect or error at every stage of any action or proceeding to which the civil procedural rules apply. See id. Therefore, as a general proposition, Rule 126 is available in professional liability actions and may be applied to Pa.R.C.P. No. 1042.3, as long as its requirements, as we have articulated them, are met. As to the parameters of the substantial compliance doctrine that is reflected in Pa.R.C.P. No. 126, two of our cases are instructive. In Pomerantz, we determined that the error the defendant committed under former Pa.R.C.P. No. 1038~d) was the sort of procedural defect that could be overlooked under Rule 126. Following an adverse decision in a non-jury trial, the defendant filed "Defendant's Motions[*17] for New Trial" even though Pa.R.C.P. No. 1038~d) stated that within twenty days after notice of the filing of the trial court's decision "exceptions" that "set forth a specific objection precisely and without discussion" were be filed to rulings on objections or to any other matters that occurred during trial. Pomerantz 387 A.2d at 1280. The plaintiffs filed a motion to dismiss the defendant's motion, asserting that former Rule 10380 did not permit the filing of a motion for a new trial, but instead only permitted a party to file exceptions to the trial court's decision. In response, the defendant countered that but for the title on his pleading, he complied with the former rule. The trial court granted the plaintiffs' motion to dismiss, and the Superior Court affirmed the judgment. We, however, reversed the order of the Superior Court, vacated the trial court's order, and remanded the case to the trial court to consider the defendant's motion as properly-filed exceptions and to enter a final disposition thereon. Id, at 1282. We observed that the defendant's pleading was filed in a timely fashion; that the objections it contained[*18] were set forth just as the rule required; and that had the pleading been properly titled, it would have been disposed of on the merits, rather than upon the erroneous caption. Id. at 1281. In reaching our decision, we stated that it was our policy to overlook such procedural errors when a party had substantially complied with the requirements of a rule and no prejudice would result, and cited Rule 126 as the source of our authority to disregard procedural errors that do not affect substantial rights. Id. at 1282. By contrast, in Sahutskv, we determined that the plaintiffs' failure to take any steps to comply with the terms of Pa.R.C.P. No.3051 was not the sort of default that Pa.R.C.P. No. 126 was meant to cover. In Sahutsky, when the plaintiffs neglected to pursue their action, the defendant filed a motion for a judgment of non pros. The trial court granted the defendant's motion, entering the judgment of non pros and dismissing the plaintiffs' complaint with prejudice. The plaintiffs did not file a petition to open the judgment of non pros under Pa.R.C.P. No. 3051. but rather, [*19] filed a direct appeal from the judgment in the Superior Court. On appeal, the defendant argued that Rule 3051's clear language required the plaintiffs to file a petition to open in the trial court, and that their failure to file such a petition was fatal to their appeal, operating as a waiver of the issues they raised. Based on its http://www3.lexisnexis.com/bcls/auth?cacheKey=T3231042&srv=ols_BooleanRetrieve&form_Vi... 10/24/200 i , ~,,exi sNexis(TM) Basic Case Law & Statutes ~ Search - 1 Result - "certificate of merit" and date(ge... Page 7 of l: prior cases, the Superior Court rejected the defendant's argument, reasoning that the trial court's order, which included a judgment and dismissal, could be considered final and directly appealable. Accordingly, the Superior Court reversed the trial court's order, and remanded to the trial court far reconsideration of the judgment of non pros it entered. This Court reversed the Superior Court. We concluded that the terms of Pa.R.C.P. No. 3051 clearly directed that a petition to open be filed initially with the trial court, and that plaintiffs' failure to do so operated as a waiver of any of the claims of error concerning the judgment of non pros entered by the trial court. 782 A.2d at 998-1000. With respect to the plaintiffs' arguments that such a result was unacceptably harsh, especially in light of the fact[*20] that the Superior Court followed its own precedent, and that the equities involved in their particular case should cause us to ignore Pa.R.C.P. No. 3051's clear language, we observed that the plaintiffs failed to file even a procedurally flawed Rule 3051 petition, and reiterated that Pa.R.C.P. No. 126 was not meant to excuse non-compliance with our rules when a party had made no attempt to conform. Id. at 1000-01. Turning to Pa.R.C.P. No. 126's application in the instant action, Hilliker argues that since Womer did not file a COM, even one that was defective, the trial court correctly determined that this was a situation of a party's non-compliance and that therefore, Pa.R.C.P. No. 126 should not be considered. Womer counters that since the Report he gave to Hilliker set forth the information that a COM would have provided and fulfilled Pa.R.C.P. No. 1043's purpose to show that he had a meritorious claim, he demonstrated substantial compliance, such that the Superior Court properly overlooked his failure to file a COM under Pa.R.C.P. No. 126[*21] ,given the equities he presented. n9 --------------Footnotes--------------- n9 As we noted, we do not address whether the Report set forth the information that a Rule 1042.3 COM would have provided. See supra n. 3. Likewise, given our resolution, we take no position as to Womer's contention that the Report fulfilled Pa.R.C.P. No. 1042.3's purpose. ------------End Footnotes-------------- In our view, Hilliker's position is the correct one, since Womer took no steps to comply with Pa.R.C.P. No. 1042.3. Rule 1042.3 is clear and unambiguous in its mandate that in every professional liability action a specific representation about the plaintiff s claim must be filed in the official record in a document called a "certificate of merit" at the time the complaint is filed or within sixty days thereafter. Pa.R.C.P. No. 1042.3~a). Pa.R.C.P. No. 1042.8 provides that "the certificate required for filing by Rule 1042.3(a) shall be substantially in the following form....," and displays[*22] a sample COM that shows precisely what Rule 1042.3 requires. Moreover, Pa.R.C.P. No. 1042.3(d), which allows for the filing and granting upon good cause shown of a motion to extend the time for filing a COM, sets forth the one and only step that a plaintiff is to take if he finds himself unable to secure a COM and desires to avoid the consequences of not satisfying Rule 1042.3(a)'s COM filing requirement in a timely fashion. Womer, however, did nothing of the sort. Rather, he served discovery materials on Hilliker, which included an expert report. In our view, this was no procedural misstep within the meaning of Pa.R.C.P.No. 126. It was instead, a wholesale failure to take any of the actions that one of our rules requires, of the type that we have heretofore refused to overlook under Rule 126. See Sahutsky, 782 A.2d at 1001. In contending that even though he made no effort to follow Pa.R.C.P. No. 1042.3's requirements, Rule 126 can apply in his circumstances because he fulfilled Rule 1042.3's purpose, Womer is essentially arguing that the doctrine of substantial compliance in Rule[*23] 126 not only excuses a party who commits a procedural misstep in attempting to do that which a rule instructs, but also excuses a party who does nothing that a rule requires, but whose actions are consistent with the objectives he believes the rule serves. This is simply not so. The equitable doctrine we incorporated into Rule 126 is one of substantial compliance, not one of no compliance. We reiterate what our case http://www3.lexisnexis. com/bcls/auth?cacheKey=T3231042&srv=ols_BooleanRetrieve&form_Vi... 10/24/200 ~. ~,exisNexis(TM) Basic Case Law & Statutes ~ Search - 1 Result - "certificate of merit" and date(ge... Page 8 of law has taught: Rule 126 is available to a party who makes a substantial attempt to conform, and not to a party who disregards the terms of a rule in their entirety and determines for himself the steps he can take to satisfy the procedure that we have adopted to enhance the functioning of the trial courts. See Sahutsky, 782 A.2d at 1001; Commonwealth v. Metz, 534 Pa. 341,633 A.2d 125 127~Pa. 1993). Therefore, we conclude that Womer did not substantially comply with Pa.R.C.P. No. 1042.3 for purposes of Pa.R.C.P. No. 126's application, and hold that the Superior Court erred in including Pa.R.C.P. No. 126 as a factor in its analysis as to whether the[*24] trial court correctly denied Womer's request that the judgment of non pros be opened. n10 --------------Footnotes--------------- n10 We disapprove of any decision to the extent that it holds that a plaintiff substantially complied with Pa.R.C.P. No. 1042.3 by providing an expert report to a defendant or that Pa.R.C.P. No. 126 may be applied in such circumstances. See, e.g., Harris v. Neuburger, 2005 PA Super 228, 877 A.2d 1275 (Pa. Super. 2005). ------------End Footnotes-------------- This does not mean, however, that a plaintiff who, like Womer, fails to file a Rule 1042.3 COM and against whom a Rule 1042.6 judgment of non pros is entered, has no avenue by which to save his action. Under Pa.R.C.P. No.3051, which allows a trial court to grant relief from a judgment of non pros, such a plaintiff has the opportunity to demonstrate that his failure to follow Pa.R.C.P. No. 1042.3 should be excused. In that the nature of an appeal under Pa.R.C.P. No. 3051[*25] is equitable, and is a matter of grace and not of right, Pa.R.C.P. No. 3051 is then, yet another means by which Pa.R.C.P. No. 1042.3 is subject to equitable considerations. See Mazer v. Sargent Electric Co., 407 Pa. 169, 180 A.2d 63, 65 (Pa. 196. At this point, we observe that it has been held that a Pa.R.C.P. No. 1042.6 judgment of non pros may not be opened under Pa.R.C.P. No. 3051. See Hoover v. Davila, 64 D. & C. 4th 449~Lawrence County 2003), aff'd on other grounds, 2004 PA Super 314, 862 A.2d 591 (Pa Super Ct 200. The language of Rules 1042.6 and 3051, however, do not support this holding. In addition, the rules' respective Notes and Explanatory Comments, which we consult in rule construction, show otherwise. See Pa.R.C.P. No. 129(e) ("A note to a rule or an explanatory comment is not part of the rule but may be used in construing the rule."). The Note that follows Pa.R.C.P. No. 1042.6 states specifically that "Rule 237.1 does not apply to a judgment of non[*26] pros entered under this rule." Pa.R.C.P. No. 1042.6 (Note). Significantly, the Note does not also state that Pa.R.C.P. No. 3051 is inapplicable. Further, the Explanatory Comment to Pa.R.C.P. No. 3051 clarifies that the rule's application is universal, stating that "[t]he rule adopts a uniform procedure...~and] will apply in all cases in which relief from a judgment of non pros is sought, whether the judgment has been entered by praecipe as of right or by the court following a hearing." Pa.R.C.P. No. 3051 (1991 Explanatory Comment) (emphasis added). Therefore, we hold that a Pa.R.C.P. No. 1042.6 judgment of non pros is subject to a Pa.R.C.P. No. 3051 petition, and disapprove of any decision, like Hoover, that holds to the contrary. As to the merits of the Superior Court's decision that the trial court erred in refusing to open the judgment of non pros entered in Hilliker's favor under Pa.R.C.P. No. 3051, n11 we begin with the standard of review that applies in such a matter. [*27] It is well-settled that the ruling that a trial court makes under Pa.R.C.P. No. 3051 is reviewed on appeal for an abuse of discretion. Sklar v. Harleysville Ins. Co., 526 Pa. 617 587 A 2d 1386 1387 (Pa 1991). This means that the trial court's decision will be overturned only if reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous. See Grady v. Frito-Lay Inc., 576 Pa 5461 839 A.2d 1038, 1046 Pa 2003. ------------,--Footnotes--------------- http://www3.lexi snexis. com/bcls/auth?cacheKey=T3231042&srv=ols_B ooleanRetrieve&form_Vi ... 10/24/2001 ~exisNexis(TM) Basic Case Law & Statutes ~ Search - 1 Result - "certificate of merit" and date(ge... Page 9 of 13 nll It is not disputed that Womer satisfied prongs one and three of Pa.R.C.P. No. 3051's requirements. The present case hinges upon the rule's second prong -- whether or not there was a reasonable explanation or legitimate excuse for Womer's default under Pa.R.C.P. 1042.3. See Pa.R.C.P. 3051; supra n.4. ------------End Footnotes-------------- In the instant case, the Superior Court determined that given the relatively recent[*28] adoption of Pa.R.C.P. No. 1042.3 and the resulting lack of decisional law, the trial court abused its discretion in rejecting as reasonable the excuse Womer gave under Pa.R.C.P. No. 3051 for not filing a COM -- his belief that he did not need to do so since he substantially complied with Pa.R.C.P. No. 1042.3 by giving Hilliker the Report. Presently, Womer argues that the Superior Court should be upheld because his belief was honestly held and the equities demand it. Hilliker counters that it is the trial court that should be upheld because it did not abuse its discretion in its application of Pa.R.C.P. No. 3051. Here too, we conclude that Hilliker is correct. The fact upon which the Superior Court relied to legitimize Womer's position -- that Pa.R.C.P. No. 1042.3 was not adopted until January of 2003 -- is irrelevant. The principle that demonstrates the correctness of the trial court's determination, that is, that Pa.R.C.P. No. 126 reflects a doctrine of substantial compliance and does not excuse a party's non-compliance, [*29] see supra pp.9-12, was not new or novel when Womer filed his complaint in August of 2003. Further, this principle was fully available in our case law for Womer to consult at that time, as was, of course, Pa.R.C.P. No. 1042.3, which sets forth its requirements unambiguously and clearly. Accordingly, we have no hesitation in concluding that the trial court acted well within its discretion in finding that Womer did not provide a reasonable excuse under Pa.R.C.P. No. 3051 for not filing a COM. Indeed, in light of the foregoing, we conclude that it would be manifestly unreasonable and therefore, an abuse of discretion, see GradX, 839 A.2d at 1046, for a trial court to conclude that a plaintiff in Womer's circumstances, making the same arguments, presents a reasonable explanation or legitimate excuse for his failure to file a COM. n12 Therefore, we hold that the Superior Court erred in reversing the trial court's order denying Womer's Motion. --------------Footnotes--------------- n12 We disapprove of any decision to the extent that it sets forth such a conclusion. See, e.g., Harris v. Neuburger, 877 A.2d at 1275. ------------End Footnotes--------------[*30] For all of these reasons, the order of the Superior Court is reversed. Further, this matter is remanded to the Superior Court to remand it to the trial court with instructions to reinstate the order denying Womer's Motion. Madame Justice Newman and Messrs. Justice Saylor and Eakin join in this opinion. Former Justice Nigro did not participate in the consideration or decision of this matter. Mr. Justice Baer files a dissenting opinion in which Mr. Justice Castille joins. DISSENT BY: BAER DISSENT: DISSENTING OPINION MR. JUSTICE BAER http://www3.lexisnexis.com/bcls/auth?cacheKey=T3231042&srv=ols_BooleanRetrieve&form_Vi... 10/24/2006 ~, ~;exisNexis(TM) Basic Case Law & Statutes ~ Search - 1 Result - "certificate of merit" and date(... Page 10 of I believe that in the circumstances of this case the plaintiff, Garth Womer, substantially complied with the certificate of merit (COM) requirement, and that the Superior Court properly held that the trial court abused its discretion by refusing to open the judgment of non pros entered for the defendant Jan Hilliker. Thus, I respectfully dissent. Pa.R.C.P. 1042.3 requires that a plaintiff in a medical malpractice action file a COM with the complaint or within sixty days thereafter attesting that "an appropriate licensed professional has supplied a written statement that there exists a reasonable probability[*31] that the [medical service described] in the complaint fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm." Upon good cause, the court may extend the time for filing a COM past the initial sixty days. Pa.R.C.P. 1042.3. If the plaintiff fails to file a COM or motion to extend the time within sixty days, the defendant may praecipe for entry of a judgment of non pros against the plaintiff. Pa.R.C.P. 1042.6. I completely agree with the majority that when a defendant takes a judgment of non pros under Pa.R.C.P. 1042.6 for failure to file a COM, a plaintiff's potential remedy lies in Pa.R.C.P. 3051, which authorizes the filing of a petition to open. Such a request, like a petition to open a default judgment taken for failure to respond to a complaint, is in the nature of an appeal to the equitable powers of the court. To gain relief, a plaintiff must show 1) the petition for relief from the judgment has been timely filed; 2) there is a reasonable explanation or legitimate excuse for the delay; and 3) there is [*32] a meritorious cause of action. Pa.R.C.P. 3051; Hutchison v. Hutchison, 492 Pa. 118, 422 A.2d 501 (Pa. i980~. There is no dispute in this case that Womer satisfied prongs one and three of this test in that he filed his petition to open the judgment within one day of receiving notice of the judgment of non pros and asserted a meritorious cause of action. Thus, this case hinges upon whether there was a reasonable explanation or legitimate excuse for Womer's failure to file a COM within sixty days. The majority concludes that there was not. I respectfully disagree that such conclusion can be reached under the facts of this case. Womer filed a medical malpractice complaint against Hilliker on August 18, 2003. Pursuant to Pa.R.C.P. 1042.3, he had until Friday, October 17, 2003, to file either a COM or a request for an extension of time. Within this time period, on October 8, 2003, during discovery, Womer forwarded to Hilliker an expert report detailing the manner in which Womer alleged that Hilliker failed to adhere to acceptable professional medical standards resulting in harm to Womer. nl Womer, acting through[*33] counsel, obviously believed that providing Hilliker with the expert report not only met the intent and spirit of Pa.R.C.P. 1042.3 and its requirement that a COM be filed, but exceeded that intent and spirit by furnishing not just a certificate that an expert report could be produced, but the report itself. As noted in the Superior Court's opinion, the recent promulgation of Pa.R.C.P. 1042.3 provided scant guidance regarding the applicability of the doctrine of substantial compliance to the COM requirement, making these assumptions all the more reasonable. Under these circumstances, I find Womer's belief that he had essentially complied with the COM requirement by forwarding the actual expert report to Hilliker within sixty days of filing the complaint a reasonable explanation and legitimate excuse for his actions, sufficient to open the judgment of non pros under Pa.R.C.P. 3051. --------------Footnotes--------------- n1 Hilliker asserts that he is a licensed ophthalmologist whereas the author of Womer's report is an optometrist, and therefore the expert report may be legally insufficient. While this may or may not be true, the question of the report's validity is simply not before us today. The majority opinion and this dissent are limited to the sufficiency of Womer's petition to open the judgment of non pros. If it had opened, the trial court certainly could have addressed the validity of the expert report as part of pre-trial proceedings. ------------End Footnotes--------------(*34] http://www3.lexisnexis.com/bcls/auth?cacheKey=T3231042&srv=ols_BooleanRetrieve&form_Vi... 10/24/200 ~, ,~;,exisNexis(TM) Basic Case Law & Statutes ~ Search - 1 Result - "certificate of merit" and date(... Page 11 of 13 The timing of the events leading to this litigation provides further justification for equitable intervention. The COM was due to be filed on Friday, October 17, 2003. On Monday, October 20, 2003, the next business day, Hilliker filed for and obtained an entry of judgment of non pros pursuant to Pa.R.C.P. 1042.6, notwithstanding that he had Womer's expert report in his office. The next day, immediately upon receiving notice of the judgment of non pros, Womer filed a motion to open the judgment in accord with Pa.R.C.P. 3051, attaching his COM to his motion. Accordingly, this is not a case where a party disregarded the rule's requirements. Rather, not only did Womer substantially comply with the COM requirement, but within hours of being put on notice that he mistakenly did not meet all the technical requirements of the rule, he moved to rectify that mistake and supplied the technically missing COM. The trial court refused to open the judgment, rejecting Womer's assertion of a reasonable explanation or legitimate excuse. We may only disturb a judgment of non pros if the trial court has committed an abuse of discretion.[*35] Sklar v. Harleysville Ins. Co., 526 Pa. 617, 587 A.2d 1386, 1387 (Pa. 1991). An abuse of discretion occurs where "in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable." Jung v. St. Paul's Parish, 522 Pa. 167, 560 A.2d 1356, 1358 (Pa. 1989). I agree with the Superior Court that this is such a case. The trial court abused its discretion by rejecting Womer's reasonable explanation and legitimate excuse for not filing a COM with the court within sixty days. Womer promptly filed a COM upon the first indication that he had not complied with the COM requirement to the court's satisfaction, the expert report provided to Hilliker revealed a meritorious claim, and Womer had a reasonable excuse for noncompliance with Pa.R.C.P. 1042.3. Therefore, logic, as well as conscience, a polestar of equity, compel a finding that the Superior Court properly held that Pa.R.C.P. 1042.3 should be liberally construed in order to secure the just determination of this potentially meritorious action, see Pa.R.C.P. 126, and that the[*36] trial court abused its discretion in refusing to open the judgment. Case law also supports this outcome. Indeed, the courts of this Commonwealth have historically been loathe to put a litigant out of court on a potential meritorious claim for missing a filing deadline due to lawyer oversight. "While, generally speaking, a litigant is bound by the actions or inactions of his counsel, there is authority for the proposition that when a plaintiff places his case in the hands of reputable counsel he will not be turned out of court if the delay complained of was almost entirely on account of neglect or oversight of his counsel." Manson v. First Nat'I Bank 366 Pa 211 77 A.2d 399 (Pa. 1951. Accordingly, we have found that "errors of counsel ~ which indicate an oversight rather than a deliberate decision not to defend, have been held to constitute sufficient legal justification to open a default judgment." Jung, 560 A.2d at 1360. Thus, where the reasonable excuse proffered for failing to file timely a complaint was counsel's secretary's confusion and mistake, we held that the trial court abused its discretion in refusing to open a judgment of non pros[*37] . Id. Rather, we found that equity required the judgment of non pros be opened. Id. Similarly, in a case where counsel's quickly deteriorating health prevented him from timely filing a complaint, we found that the trial court abused its discretion in denying plaintiff's motion to strike judgment of non pros. Thorn v. Borough of Clearfield, 420 Pa. 584, 218 A.2d 298, 299 Pa 1966).. The diminished health of the attorney, followed by his eventual death, were equitable considerations sufficient to set aside a judgment of non pros and reasonably explained the delay in filing .the complaint. Id. ("Appellants in this case should not be denied their day in court because of the diminished health of their counsel. Appellants had no way of knowing this case was not being diligently prosecuted and should not be made to suffer because of the health of their attorney"). In accordance with this principle, in Moyer v. Americana Mobile Homes, Inc., 244 Pa Super 441 368 A.2d 802 (Pa. 1976, the Superior Court excused the failure to file a timely answer to a complaint where the delay was caused in part by the misplacing of the file in[*38] the attorney's office: It is well settled that the power to open a default judgment entered as a result of mistake or oversight of counsel is frequently exercised where the petition is promptly filed and a reasonable excuse for the delay is presented. Alexander v. Jesrav http://www3.lexisnexis.com/bcls/auth?cacheKey=T3231042&srv=ols_BooleanRetrieve&form_Vi... 10/24/2006 ~,exisNexis(TM) Basic Case Law & Statutes ~ Search - 1 Result - "certificate of merit" and date(... Page 12 of 13 Construction Co , 237 Pa Suer 99, 346 A.2d 566 (1975). The purpose of the rules in authorizing the entry of default judgments is to prevent a dilatory defendant from impeding the plaintiff in establishing his claim. The rules are not primarily intended to provide the plaintiff with a means of gaining a judgment without the difficulties which arise from litigation. Kraynick v Hertz f 443 Pa. 105, 277 A.2d 144 (1971) 1; Slott v. Triad Distributors, Inc , 230 Pa Super 545, 327 A.2d 151 1974 . Therefore, in most cases such as the instant case, when judgment is taken on the twenty-first day after the filing of the complaint, the purpose of the rules is not served when a timely filed petition to open is denied. Such "snap" judgments are disfavored by the law. Id. at 804-05. See also Nardulli v. John Carlo, Inc., 274 Pa. Super. 34, 417 A.2d 1238 ~Pa. Super. 1979 [*39] (reversing the entry of a default judgment due to an attorney's mistakes, stating that "errors of counsel which indicate an oversight rather than a deliberate decision not to defend, have been held to constitute sufficient legal justification to open a default judgment"). In accordance with this point of view, in Almes v. Burket 2005 PA Super 289, 881 A.2d 861 (Pa. Super. 2005), the Superior Court found that the plaintiff had proffered a reasonable excuse for failing to file the COM within sixty days sufficient to open the judgment of non pros pursuant to Pa.R.C.P. 3051, where counsel failed to have the COM filed after he left the office upon learning that his mother-in-law was gravely ill and then being faced with her subsequent death and burial on the day the COM was due. The Superior Court refused to find that where an attorney who forgets that the COM is due or who fails to take the steps to file it when faced with a family crisis is so derelict in his obligations that the oversight should not be excused. In support of this position, the Superior Court properly articulated the view that the law "is not so cold hearted as to demand[*40] vigilance of an attorney who experiences a death in the family or is so cold as to be unwilling to excuse failure under these circumstances." Id. at 866. Similarly, the Superior Court in Harris v. Neuburger, 2005 PA Super 228, 877 A.2d 1275 (Pa. Super. 2005), affirmed the trial court's excusal of a failure to file a COM within the time allowed by Pa.R.C.P. 1042.3 due to attorney misapprehension, where, in facts similar to the case sub judice, the attorney erroneously believed that he had substantially complied with the COM requirement by forwarding an expert report to the defendant within sixty days of filing the complaint. In addition to this general case law granting equitable relief where counsel has failed with justification to take some action, there is also ample law in Pennsylvania abhorring the practice of entering a snap judgment in response to such a mistake. See queen City Elec. Supply Co., Inc. v. Soltis Elec. Co.l Inc., 491 Pa. 354, 421 A.2d 174, 177-78 (Pa. 1980) ("[W]e note that snap judgments taken without notice are strongly disfavored by the courts"); Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144, 147 (Pa. 1971)[*41] (considering the equities and viewing the totality of the circumstances to hold that justice demanded opening the default judgment entered at 8:39 on the morning of the twenty-first day); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623, 627 ~Pa. 1970). ("No one is happy with 'snap' judgments, probably including the lawyer who takes one"); Grone v. Northern Ins. Co. of New York, 388 Pa. 169, 130 A.2d 452 (Pa. 1957 (upholding the striking of judgments that bore the stigma of being "snap"); Reilly Assocs. v. Duryea Borough Sewer Auth., 428 Pa. Super. 460, 631 A.2d 621, 624 (Pa. Super. 1993j. (noting that snap judgments entered without notice are disfavored); Safeguard Inv. Co. v. Energy Service Assocs., Inc., 258 Pa. Super. 512393 A.2d 476, 477 ~Pa. Super. 1978 ("Snap judgments taken without notice are strongly disfavored by the courts"). Jung, 522 Pa. 167, 560 A.2d 1356, typifies all of these cases. There, exactly 20 days after filing a Praecipe for Rule to File Complaint upon the plaintiff, Defendant praeciped for and obtained a judgment of non pros. The next day, immediately upon receiving notice of[*42] the taking of judgment, the plaintiff filed a petition to open asserting that the delay was caused by counsel's secretary's confusion and mistake. The trial court denied the petition, and the Superior Court affirmed. This Court reversed, finding that the request to open a judgment of non pros is directed to the conscience of the court and required the balancing of equities supportive of the entry of judgment and the opening thereof. Id. at 1358. We then opined that "[a] court reviewing denial of a http://www3.lexisnexis.com/bcls/auth?cacheKey=T3231042&srv=ols_BooleanRetrieve&form_Vi... 10/24/2006 "~ ~..exisNexis(TM) Basic Case Law & Statutes ~ Search - 1 Result - "certificate of merit" and date(... Page 13 of 1; petition to open judgment by default must ascertain whether there are present any equitable considerations in the factual posture of the case which require that it grant to a plaintiff against whom the judgment has been entered an opportunity to have his 'day in court' and to have the cause decided upon the merits. In so doing, it acts as a court of conscience." Id. at 1360. In Jung, which is case remarkably similar to the case before us, this Court found petitioner`s excuse for unintentional dilatory conduct justifiable, and opened the snap judgment. Notwithstanding all of the foregoing precedent and the clear trend for literally decades in favor of trials on the merits[*43] and against the snap of default judgments, this Court, today, takes a giant step backward. Sadly, a plaintiff entitled to his day in court is being denied that opportunity, and a conscientious attorney who made an understandable, reasonable, and, importantly, wholly non-prejudicial mistake, finds his client out of court. I believe that the Superior Court below as well as the many courts referenced herein have properly followed principles of modern jurisprudence in opening default judgments and judgments of non pros. To decide inconsistently with these many cases, including the Superior Court's decision herein is to return to the unfortunate days of the past where counsel snatched judgments with impunity, avoiding facing the merits of a case. In 2006, it is inconceivable to me that this Court would take such action. Mr. Justice Castille joins this dissenting opinion. Source: Ali Sources > Cases > PA State Cases, Combined Terms: "certificate of merit" and date(geq ~9l24/2006) (Edit Search) View: Full Date/Time: Tuesday, October 24, 2006 - 3:35:23 PM EDT Products & Services I LexisNexis Bookstore I LexisNexis by Credit Card I Feedback I i n Off I Heln About LexisNexis ~ Terms and Conditions I Support Identifier Copyright ©2004 LexisNexis, a division of Reed Elsevier, Inc. All rights reserved. http://www3.lexisnexis.com/bcls/auth?cacheKey=T3231042&srv=ols_B ooleanRetrieve&form_Vi... 10/24/2006 .: V_ CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Motion for Reconsideration upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by U.S. First Class Mail addressed as follows: Lisa Woodburn, Esquire Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) McKissock & Hoffman, P.C. By: Edwin A.D. Schwartz, Eilire Identification No.: 75902 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated:~'p~~~ Attorneys for Defendants, Manorcare Health Services, Inc., Manorcare Health Corporation, tld/b/a Manorcare Health Services - Carlisle, HCR Manorcare, and Manorcare, Inc. r- ~ ~ c-~ r ._' r-- 7 ^~ ,~„ ~ '~ ~ "G' ---may ~.... ' _.~ '1 I~ .~ - f~~ s 4..v __ +~~ SM1..` ~. ~) r e ., 7 i~ °` .}+ } s ,_i „~, CT tuuo ~' ~ 30 9 . r ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES - CARLISLE, HCR MANORCARE, and MANORCARE, INC., Defendants NO. 04-3065 -Civil Term JURY TRIAL DEMANDED ORDER AND NOW to WIT this day of , 2006, upon consideration of Defendants' Motion for Reconsideration of this Court's Order of September 14, 2005, it is hereby ORDERED that said Order revoked and the judgment non pros entered on March 17, 2005 is hereby reinstated. By the Court: J. C ~ ~tJ~"r~ ~`r,~Fr\~F~Y r_- ~,~~~ ~~ ...i i J r ; EP 1 ~ o- ` :f .Z i,,~lJ ~ , ~ t.i ~ Y ly ~ ,' OCT 3 0 tuuo ~` ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES - CARLISLE, HCR MANORCARE, and MANORCARE, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 04-3065 -Civil Term JURY TRIAL DEMANDED ORDER AND NOW to WIT this day of , 2006, upon consideration of Defendants' Motion for Reconsideration of this Court's Order of September 14, 2005, it is hereby ORDERED that said Order revoked and the judgment non pros entered on March 17, 2005 is hereby reinstated. By the Court: J. N~,~~-- b~~-u°~, i ~ ~~ ~1~ - ~=s 0~-,.u, r c ~ ~ , f ~ n °,~~ y f r, ~ .! f 'k 1_`~'d ~ ~,~ e^'~lr~'t ~'~ i t ~~' ~ ~-,: } ' ~Vr.~ ` ,, ~'. ANN WILSON, Executrix of the Estate of HELEN E. KELLY, deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW v. MANORCARE HEALTH SERVICES, INC., MANORCARE HEALTH CORPORATION, t/d/b/a MANORCARE HEALTH SERVICES - CARLISLE, HCR MANORCARE, and MANORCARE, INC., Defendants NO. 04-3065 -Civil Term JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE To the Prothonotary: Please mark the above captioned matter discontinued with prejudice. o,,. ~ a3 ~7 Resp tfully supmitt , By: GaG L' M.B. Woodburn, Esquire Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiff CERTIFICATE OF SERVICE I, Lauren M. Heckman, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of the foregoing on the following via postage prepaid, first class United States mail, addressed as follows: Edwin A. D. Schwartz, Esquire McKissock & Hoffinan, P.C. 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Dated: w~,d a3 ,,~,~ n ~~~ Lauren M. Heckman 342873 ~~ N =v : ~ i . s ~ C' w '~i `~ a ."~_' ,_ --_ 's'i r.7 -;; c~.a =% --< ..~ ~