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HomeMy WebLinkAbout04-3572RONALD L. CRESSLER, Individually IN THE COURT OF COMMON PLEAS and as Administrator of the Estate of CUMBERLAND COUNTY, PENNA CLAIRE D. CRESSLER, Deceased, Plaintiffs NO. V. VRONAL PERINI SERVICES/SOUTHAMPTON CIVIL ACTION - LAW MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, JURY TRIAL DEMANDED Defendant PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue a writ of summons in the above-captioned action. X Writ of Summons shall be issued and forwarded to ( ) Attorney and (X) Sheriff ( )Defendant Michael J. Navitsky, Esquire Navitsky, Olson & Wisneski LLP ??o??? 2040 Linglestown Road, Suite 303 V ° l Harrisburg, PA 17110 Si ture o Attorney (717) 541-9205 I.D. o. 58 3 Dated: J - g ' 0 w D ?' I RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER, Deceased, Plaintiffs V. PERM SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA NO. 04 L'U ;(MMINAL. CIVIL ACTION - LAW JURY TRIAL DEMANDED WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HA COMMENCED AN ACTION AGAINST YOU. Prothonotary Dated:q,? ' a, a nay by ?-> - uz ((( D uty RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER, Deceased, Plaintiffs V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA ORONAL CIVIL ACTION - LAW t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, JURY TRIAL DEMANDED Defendant CUMBERLAND COUNTY SHERIFF DIRECTIONS Please serve the Writ of Summons in this matter upon Defendant, Perini Services/Southampton Manor Limited Partnership, t/d/b/a The Shippensburg Healthcare Center, at its place of business located at 121 Walnut Bottom Road, Cumberland County, Shippensburg, Pennsylvania, by leaving a photocopy of the enclosed Writ of Summons, with the adult person in charge of the business at that time. Respectfully submitted, Date: ?-A) NAVITSKY, OLSON & WISNESKI LLP Michh el J. a itsky, Esq I.D. No. 588 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 717/541-9205 Counsel for Plaintiffs MCKISSOCK & HOFFMAN, P.C. BY: William J. Mundy Identification No. 57679 BY: Edwin A. Schwartz Identification No. 75902 1818 Market Street, 130' Floor Philadelphia, PA 19103 (215)246-2100 RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER VS. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER Attorneys for Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 04-03572 Civil Term JURY DEMAND ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance as attorneys for defendant, Perini Services/Southampton Manor Limited Partnership, t/d/b/a The Shippensburg Healthcare Center, in the above matter. Defendant, Perini Services/Southampton Manor Limited Partnership, t/d/b/a The Shippensburg Healthcare Center, demands a jury of twelve. McKiss6ck & Hoffman, P.C. BY: r- William J. Mundy Edwin A. Schwartz Attorneys for Defendant T ? -: r - ?* c: s -n ?n 1 `U? N i_!C3 r : i:, (; . i .; 6.,? .c? -«, W MCKISSOCK & HOFFMAN, P.C. BY: William J. Mundy Identification No. 57679 BY: Edwin A. Schwartz Identification No. 75902 1818 Market Street, 13`s Floor Philadelphia, PA 19103 (215)246-2100 RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER VS. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER Attorneys for Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 04-03572 Civil Term JURY DEMAND PRAECIPE TO FILE COMPLAINT TO THE PROTHONOTARY: Please enter a Rule upon plaintiff to file a Complaint within twenty (20) days hereof or suffer the entry of a Judgment of Non Pros. MCKISSOCE. & HOFFMAN, P.C. BY: U William J. Mundy Edwin A. Schwartz RULE TO FILE COMPLAINT AND NOW, this o7nod day of 6 , 2004, a Rule is hereby granted upon plaintiff to file a Complaint herei ithin twenty (20) days after service hereof of suffer the entry of a Judgment of Non Pros. Prothonotary / 1 r'. r : ra l:J ? ca y._ -Tl ? _. 4 ? _? ?' Ti f I'i r..e ? c? ?)1..) ` ^7 "(1 f?J C-) r ?-ni s„ ?. r.> ?C -: McKissock & Hoffman, P.C. By: William J. Mundy Identification No. 57679 By: Edwin A.D. Schwartz Identification No. 75902 By: David L. Wortman Identification No. 88529 2040 Linglestown Road; Suite 302 Harrisburg, PA 17110 (717) 540-3400 RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER, Plaintiff V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-03572 CIVIL TERM JURY DEMAND PRAECIPE FOR CHANGE OF ADDRESS TO THE PROTHONOTARY: Please note the change of address and phone number for Edwin A.D. Schwartz at the law office of McKissock & Hoffman, P.C. on behalf of Defendant, Perini Serivices/Southampton Manor Limited Partnership, t/d/b/a The Shippensburg Healthcare Center, in the above- captioned matter: McKissock & Hoffman,P.C. 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Respectfully submitted, McKisso H By: Edwin A.D. ch Esquire I.D. No.: 75902 David L. Wortman, Esquire I.D. No.: 88529 2040 Linglestown Road; Suite 302 Harrisburg, PA 17110 Date: o Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Praecipe for Change of Address 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: Michael Navitsky, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Road Suite 303 Harrisburg, PA 17110 (Counsel for Plaintiff) McKissock & ffman, P.C. By: Edwin A.D. Schwartz, uire I.D. No.: 75902 David L. Wortman, Esquire I.D. No.: 88529 2040 Linglestown Road; Suite 302 Harrisburg, PA 17110 Date: a Attorneys for Defendant c? c? s- - Flit Ir. ; TI I U1 r?? . rl) ?-irC1 r SHERIFF'S RETURN - REGULAR CASE NO: 2004-03572 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CRESSLER RONALD L VS PERINI SERVICES/SOUTHHAMPTON CPL. MICAHEL BARRICK Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon PERINI SERVICES/SOUTHAMPTON MANOR LP TDBA SHIPPENSBURG HEA the DEFENDANT , at 1655:00 HOURS, on the 23rd day of July 2004 at 121 WALNUT BOTTOM ROAD SHIPPENSBURG, PA 17257 by handing to LARRY COTTLE, ADMINISTRATOR, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 14.06 Affidavit .00 Surcharge 10.00 .00 42.06 Sworn and Subscribed to before me this _qtE- day of Hof o(ft) A.D. othonotary So Answers: R. Thomas Kline 07/26/2004 NAVITSKY OLSON DJEISN KI By: Deputy S iff RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER, Deceased, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. ORIQ4'1u" NO. 04-3572 Civil Term V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER I, Michael J. Navitsky, Esquire, certify that: an appropriate licensed professional has supplied a written statement to the undersigned E211 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 ? 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 11 expert testimony of an appropriate licensed professional is unnecessary for prosecution of cause in bringing about the harm; OR the claim against this defendant. Date: ('44 ' v, -- O0 Respectfully submitted, NAVITSKY, OLSON & WjSNESKI LLP 1A I, I 0 / „1 -J Michael J. NSvitsky, Es# I.D. No. 58803 UV 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 717/541-9205 Counsel for Plaintiff CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do r, ff hereby certify that I am this day of oc? - 2004 serving a true and correct copy of Plaintiffs Certificate of Merit upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edwin A. Schwartz, Esquire David L. Wortman, Esquire McKissock & Hoffman 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Counsel for Defendant Jessie K. Walsh ?.... n.? ? ? ?J 1`i 9 ?, . ? i 1. I ?: C l (-'i RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER, Deceased, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA NO. 04-3572 Civil Term V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER, Deceased, Plaintiffs V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA NO. 04-3572 Civil Term r(i GINAL CIVIL ACTION - LAW JURY TRLAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER, Deceased, Plaintiffs V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA NO. 04-3572 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff, Ronald L. Cressler, is a person of the full age of majority, resident of Shippensburg, Pennsylvania and Administrator of the Estate of Claire D. Cressler, his deceased grandmother. 2. The Defendants, Perini Services/South Hampton Manor Limited Partnership, are in the business of managing, operating, controlling and owning a nursing home in Cumberland County, Pennsylvania, doing business as The Shippensburg Healthcare Center, located at 121 Walnut Bottom Road, Shippensburg, Pennsylvania. The Defendants operate The Shippensburg Healthcare Center for profit and are a for profit enterprise. Defendants are licensed professionals and Plaintiff is asserting a professional liability claim against Defendants. 3. At all times relevant to this Complaint, the Defendants received payment from Medicare and Medicaid to provide nursing home care, treatment and related services, and were subject to the requirements of Federal and State Regulations including the requirements of 42 U.S.C. § 1396 et. seq., as amended by the Omnibus Budget Reconciliation Act of 1987 (OBRA) and 42 C.F.R. §483 setting forth Medicare and Medicaid requirements for long term facilities, such as The Shippensburg Healthcare Center. 4. At all times relevant to this Complaint, The Shippensburg Healthcare Center was a "nursing facility" as defined by Federal and State Regulations, including 42 U.S.C. § 1396. 5. The Defendants provided services to residents at The Shippensburg Healthcare Center and received compensation from those residents for these services. 6. At all times relevant to this Complaint, the Defendants held themselves out as specialists in the field of adult nursing care with expertise necessary to maintain the health and safety of persons unable to care adequately for themselves. 7. The Shippensburg Healthcare Center was and is a licensed nursing home as defined under Federal and Pennsylvania law, including 35 P.S. §448.803 and 28 Pa. Code §201.29. 8. Miss Cressler had been a resident of The Shippensburg Healthcare Center from July 1, 2000 through the time of her death on October 25, 2002. She was 92 years of age. 9. Before entering The Shippensburg Healthcare Center, Miss Cressler and her family were assured by Defendants that the nursing home and was and would be fully and well staffed, that the nursing home specialized in the field of adult care with expertise to maintain the health and safety of persons unable to care for themselves, such as was Miss Cressler, that a Plan of Care would be desired and carefully followed, that each staff member that provided care for Miss Cressler would be well trained and supervised, that injuries and serious medical conditions would accurately and promptly be reported to a physician for care and treatment, that Miss Cressler would be properly and regularly monitored for any change in her medical condition or to determine if she was suffering from any acute medical problems, that a comprehensive assessment of Miss Cressler's functional capacity would be conducted to include her ability to perform daily life functions and whether there existed impairments in her functional capacity, specifically with her known difficulties of chewing and swallowing, and Plaintiff and his entire family relied upon these representations in placing Miss Cressler in Defendant's care. 10. Miss Cressler had a known and recorded medical history of a chewing and swallowing problem (dysphagia). Defendants had noted this problem in a Minimum Data Sets (MDS), a federally mandated assessment form used for the development of an interdisciplinary plan of care in February of 2002, although Defendants unfortunately failed to make note of this medical condition in a subsequent 2002 assessment. 11. Without any plan of care for addressing Miss Cressler's chewing and swallowing problem, she was given regular pills and regular food, and on October 22, 2002 she experienced an acute episode of choking. The nursing note for that day documented "called by LPN to assess resident due to choking/coughing episode. Resident positioned upright I bed. Synosis noted around nose and mouth. Shortness of breath/respiratory rate 40 per minute. Oxygen saturation 75-85% on room air. Right lung with rhonchi throughout. Oxygen applied via nasal canula. Call to Dr. Wellman to report assessment. Orders received. Call to son, Ronald, to report change in condition." 12. Verbal orders recorded on October 22, 2002 from Dr. Wellman include a chest x-ray that was to be performed, a speech therapy evaluation that was to be performed, oxygen via nasal canula in order to maintain oxygen saturation levels of 92% or greater, and an assessment of the resident's pulse oximetry every hour for four hours, then every shift was to be performed. The time of this order was not recorded by Defendants, however, the nurse's note describing the above orders was recorded at 11:00 a.m. 13. A subsequent nurse's note was recorded at 2:00 p.m., three hours later. The documentation noted that Miss Cressler's oxygen saturation was 93% on 3.5 liters of oxygen. Vital signs were obtained indicating the presence of a low-grade fever (99. 1), a rapid heart rate of 100 and a rapid respiratory rate of 28. Miss Cressler's blood pressure was 110/60. The nurse recorded, "right lung very congested." 14. At 4:30 p.m., five and a half hours after the initial choking episode, Miss Cressler was noted to be "calling out, wanting nurse." At 5:15 p.m., the nurse recorded she attempted to feed the resident a few sips of liquids, however the nurse did not indicate that Miss Cressler was able to swallow. 15. A note recorded at 7:00 p.m. indicated that Miss Cressler was "Calling out again. Wanted bed fixed. Head on bed elevated. On and off bed pan but did not void." By 8:15 p.m. the nurse's notes documented that Miss Cressler's family had visited, however she did not respond to them. At this time, Miss Cressler's oxygen saturation was only 81 %. The oxygen flow rate was increased to 4.5 liters. The nurse documented at 8:30 p.m. that she attempted to contact Dr. Wellman again. Miss Cressler's respiratory rate was 40 and becoming more shallow. 911 was finally called. The nurse's notes indicate that 10 minutes elapsed between notifying 911 and the time the first ambulance arrived at the facility. By this point, Miss Cressler was hypotensive at 80/40. 16. West Shore EMS was dispatched to The Shippensbuxg Health Care Center at 8:42 p.m. on October 22, 2002. Its crew arrived at the home shortly thereafter. EMT Shannon Foster interviewed the staff. He reported that, "the patient started to run a fever today and the patient vomited and possibly aspirated some of the vomit. The patient is normally alert and oriented but has declined rapidly this evening. The patient went unresponsive for about 45 minutes before the staff called for the ambulance. The patient had no complaints today before this episode stated by the staff." Physical examination at the time revealed that Miss Cressler was unresponsive to verbal or painful stimuli. Her pupils were slow to react to light. There were no distal pulses palpable. Cardiac monitor showed sinus tact and the patient's respirations were assisted with supplemental oxygen. She was intubated in the field. Her blood pressure was 80 palpable with a heart rate of 120. Her respiratory rate was 18, assisted by EMS. Pulse oximetry results were unable to be obtained. A second set of vital signs were taken, however the blood pressure could not be obtained. She was started on an IV and transported to Carlisle Hospital." 17. Cumberland Valley EMS also responded to the call and arrived at the patient's bed at 8:50 p.m. Miss Cressler was reported to be cyanotic at the time that the ambulance crews arrived. It was recorded that, "nursing home staff stated that this afternoon, patient vomited and then aspirated it. Patient developed a fever and could not get out of bed as usually could. Patient's oxygen saturation began dropping into the 50s. Home's increased patient's oxygen to 4 liters per minute via nasal canula. Patient then became unresponsive. Home's staff first phoned patient's family, waited 45 minutes, and then phoned for EMS. Physical examination revealed a cyanotic patient with no pulses in any of the extremities." 18. Miss Cressler arrived at Carlisle Medical Center at 9:24 p.m. The hospital recorded a history of dysphagia (swallowing problem), and that Miss Cressler had difficulty swallowing her pills on the morning of October 22, 2002. The hospital chart also recorded that, "apparently this morning the patient had a problem swallowing her pills and may have aspirated one or more of them. She also may have aspirated some food contents at lunch. She did poorly throughout the day increase FI02 and she became hypoxic. She also became hypotensive this p.m. and was brought to the Carlisle Emergency Department and she was intubated en route to the ER." 19. Despite the use of pressure agents, Miss Cressler died on October 25, 2002 as a direct result of the choking and aspirating incidents that occurred at The Shippensburg Healthcare Center three days earlier on October 22, 2002. 20. The Pennsylvania Department of Health investigated Miss Cressler's death along with the deaths of other residents and injuries to other residents and imposed sanctions (a monitory fine) and limited the home's license to a provisional status because of its finding in this case and others where residents suffered and died from aspiration as a result of negligent care. In Miss Cressler's case, the Pennsylvania Department of Health found that Defendants', "facility had failed to provide appropriate and timely care and services to (Miss Cressler) and they failed to properly assess her change in condition." 21. The negligent care of Defendants as identified from the Pennsylvania Department of Health in its investigation directly caused Miss Cressler's death. COUNT I - NEGLIGENCE 22. Paragraphs one through twenty-one of this Complaint are incorporated herein by reference. 23. Defendants, through their employees, agents, staff, administrators, and nurse managers had a non-delegable duty to provide ordinary and reasonable care and exercise the degree of care and skill exercised by nursing homes in the community and consistent with the expertise that the Defendants advertised and represented to the community and Miss Cressler and her family. 24. The Defendants breached their duty and failed to provide ordinary and reasonable care to Miss Cressler in the following particulars: a. Failure to provide a plan to address Miss Cressler's dysphagia which was identified in February 2002; b. Failure to provide interventions to reduce Miss Cressler's risk of choking on medications and food; c. Failure to communicate with nursing staff anti the attending physician regarding the events on the morning of October 22, 2002 when Miss Cressler choked on medications and then later food, vomited and aspirated the vomitus; d. Failure to render care in accordance with the residents advance directives; e. Failure to obtain a chest x-ray in accordance with the physician's orders; f. Failure to assess the residents respirator status at appropriate intervals and to document that assessment; g. Failure to obtained pulse oximetry readings in accordance with the physician's orders and to document these findings; h. Failure to identify the resident's calling out for help a change in her mental status and as a symptom of respiratory distress; i. Failure to summon emergency medical services in a timely manner; and j. Failure to provide adequate numbers of trained nursing staff to provide care for Miss Cressler. 25. Defendants were not only negligent, they deviated from both Federal and State regulations as identified by the Pennsylvania Department of Health during a complaint investigation on November 5, 2002 in the following particulars: a. Defendants violated 42 C.F.R. §483.25 regarding quality of care. This regulation mandates that each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practical physical, mental, and psychosocial well being in accordance with the comprehensive assessment and plan of care. The survey found that the LPN who was aware that Miss Cressler had choked and coughed when taking her medications at 10:30 a.m. failed to assess the resident and failed to notify the RN in charge of the unit of the incident. There was no documentation of assessments being performed between 11:00 a.m. and 2:00 p.m. or from 2:00 p.m. to 4:30 p.m. despite her worsening condition. No vital signs were taken between 2:00 p.m. and 8:30 p.m. These failures not only constitute negligence, but a direct violation of Federal and State regulations that directly caused Miss Cressler's death. b. Defendants violated 42 C.F.R. §483.30 regarding nursing services. The regulation requires that the facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practical physical, mental, and psychosocial well-being. The Shippensburg Healthcare Center failed to have sufficient numbers of nursing staff according to the Pennsylvania Department of Health when it conducted its investigation into numerous complaints against the Defendant's facility at The Shippensburg Healthcare Center. c. Defendants violated 42 C.F.R. §483.10 regarding notification of change in condition. This regulation requires that a facility must immediately inform the resident, consult with the physician, and the resident's legal representative when there is an accident, a significant change in the resident's condition, or a need to alter treatment significantly. The Permsylvania Department of Health cited the staff of The Shippensburg Healthcare Center for its failure to inform Miss Cressler's family of antibiotic use. d. Defendants violated 42 C.F.R. §483.20 regarding resident assessment. The facility must develop a comprehensive care plan for each resident that includes measurable objectives and time tables to meet a resident's medical, nursing, mental, and psychosocial needs that are identifiable in the comprehensive assessment. Defendants failed to develop a care plan to address Miss Cressler's dysphagia that had been identified in February 2002. Her medications were to be crushed, however, this was not written on the care plan. This negligence and regulatory violation directly caused Miss Cressler's death. 26. A direct and proximate result of Defendants' negligence and regulatory violations, Miss Cressler developed acute respiratory failure. Efforts to provide medical and nursing interventions were provided late as a result of Defendant's aforesaid negligence, and proved futile. 27. The nursing and administrative staff of The Shippensburg Healthcare Center provided care to Miss Cressler that fell below acceptable standards of care which was the direct and proximately cause of her death. WHEREFORE, Plaintiff demands judgment for compensatory and delay damages as applicable against the Defendants in an amount in excess of the compulsory arbitration limits of Cumberland County and for a trial by jury on all issues presented in this case. COUNT II - PUNITIVE DAMAGES 28. Paragraphs one through twenty-one and Count I of this Complaint are incorporated by reference. 29. Defendants' failures with respect to Miss Cressler that caused her death as delineated in Count I of this Complaint, evidence a much larger pattern and practice of a reckless and wanton disregard for the lives and safety of the helpless people entrusted to their care, and warrants the imposition of punitive damages. 30. The Pennsylvania Department of Health interviewed the Defendant's staff and administration during its November 5, 2002 investigation of Miss Cressler's death and of the deaths and injuries suffered by other residents of The Shippensburg Healthcare Center in November and December 2002 investigations. 31. During its November 5 and December 5, 2002 investigation of The Shippensburg Healthcare Center, the Pennsylvania Department of ;Elealth observed numerous and systemic violations. The choking incident involving Miss Cressler, the delay in treatment, disregard for physician instructions, and then a delay in calling for emergency medical services was, of course, investigated and reported. Another resident with a broken leg was ignored for hours, even after the home's physician ordered that an x-ray be taken "stat." The staff ignored the resident for over 15 hours. Even after knowing that the resident's leg was broken, Defendants' staff waited over six hours before transporting him to a hospital. Just as with Miss Cressler's case, the Defendants' staff recognized and acknowledged that their services were unacceptable. Another resident developed pressure sores that were :ignored by the Defendant's staff. Still another resident died of aspiration pneumonia following careless feeding at the home. 32. The Pennsylvania Department of Health also found that Defendants failed to have a quality assurance policy and committee in effect during the relevant period of time. This was a direct violation of Federal law, 42 C.F.R. §483.75, that requires each home to have a quality assessment and assurance committee meet at least quarterly to identify issues with respect to which quality assessment and assurance activities are necessary and to develop and implement appropriate plans of action to correct deficiencies. When questioned about the Defendant's failure to have any of these policies or procedures in effect at The Shippensburg Healthcare Center, its Director of Nursing, stated on November 5, 2002 at 4:20 p.m. that the facility's quality assurance policy was "so antiquated, we don't use it anymore." Even worse, Defendant's Assistant Director of Nursing and the Administrator of the entire facility stated on the same date that they were unaware of any quality assurance committee or how it functioned in the facility. The facility provided no documentation or policy that supported that care and services were being monitored to ensure the health and safety of its residents, in violation of state and federal regulation. 33. The Pennsylvania Department of Health found that The Shippensburg Healthcare Center was, during the relevant time period, understaffed in violation of 42 C.F.R. §483.30. It was determined that the facility failed to provide services by a sufficient number of nursing personnel to provide nursing care to all residents in accordance with the resident care plans and facility policies. The nursing home's administrator told the Pennsylvania Department of Health that he felt that. the deficient practices identified during the survey (which included the incident involving Miss Cressler) were, in part, a result of inadequate staffing. 34. The Pennsylvania Department of Health also determined that Defendants failed to provide qualified persons to provide for the residents' needs in violations of 42 C.F.R. §483.20. 35. The Pennsylvania Department of Health also found that Defendants violated Federal and State regulations by failing to inform the resident and to consult with the resident's physician and family when an accident involving the resident which results in injury and has the potential for requiring physician intervention occurred or a significant change in the resident's physical, mental or psychosocial status with a need to alter treatment significantly or which necessitates a decision to transfer the resident to another facility, such as a hospital, in violation of 42 C.F.R. §483.10. Specifically, with regard to Miss Cressler, The Shippensburg Healthcare Center failed on multiple occasions to notify her family with respect to drug treatment, in violation of both State and Federal regulations. 36. The Pennsylvania Department of Health cited Defendant's facility for failing to develop and follow a comprehensive care plan for Miss Cressler; specifically, her diagnosis of dysphagia (swallowing problem). Miss Cressler's chart at the nursing home revealed that a diagnosis of dysphagia was added on March 8, 2002. The physician notes at the facility on March 22 and April 4, 2002 noted that Miss Cressler had difficulty swallowing whole pills and the physician would continue to follow the resident's progress. The physician's order dated August 2, 2002 directed Defendants' staff to provide Miss Cressler with a mechanical soft diet and that medications could be crushed prior to their administration. When interviewed after Miss Cressler's death, one of Defendants' licensed practical nurses stated, on November 1, 2002 at 10:40 a.m. that Miss Cressler would occasionally cough while taking medications. The nursing notes for October 22, 2002 recorded that Miss Cressler choked while ingesting medications on October 22, 2002 and that there was no evidence whatsoever that the Defendants' facility had developed a care plan to address Miss Cressler's dysphagia in direct violation of State and Federal regulations. 37. Defendants were cited by The Department of Health for numerous and varied violations of State and Federal law that applied to Miss Cressler and other residents of the facility, all of which, when considered as a whole, and in some instances, individually, clearly reflect a pattern and practice of reckless indifference and wanton disregard for the safety of residents such as Miss Cressler, thereby warranting the imposition of punitive damages. WHEREFORE, Plaintiff demands judgment against Defendants for compensatory, punitive and delay damages as applicable against Defendants in an amount in excess of the compulsory arbitration limits of Cumberland County and for a trial by jury on all issues presented in this case. COUNT III - VICARIOUS LIABILITY 38. Paragraphs one through twenty-one of this Complaint and Counts I and II of this Complaint are incorporated herein by reference. 39. Defendants, as well as their employees, agents, managers, nurse managers and administrators had a non-delegable duty to provide o:rdinary and reasonable care and to exercise the degree of care and skill exercised by nursing homes in the community and consistent with the expertise that the Defendants advertised and represented to the community and Miss Cressler and her family. 40. Defendants further had a non-delegable duty, as a for profit long-term nursing home to comply with all applicable Federal and State regulations. 41. Defendants through their agents, employees, managers, nurse managers, and administrators, failed to do so for reasons set forth above in this Complaint and Defendants are therefor vicariously liable for such failures and answerable to Plaintiff for all damages thereby sustained. WHEREFORE, Plaintiff demands judgment against Defendants for compensatory, punitive and delay damages as applicable against Defendants in an amount in excess of the compulsorily arbitration limits of Cumberland County and for a trial by jury on all issues presented in this case. COUNT IV - WRONGFUI. DEATH 42. Paragraphs one through twenty-one and Count I, II and II of this Complaint are incorporated herein by reference. 43. Miss Cressler was survived initially by her son, Ronald E. Cressler, who subsequently died on October 1, 2003. Miss Cressler was thereafter survived by her three grandchildren, Ronald L. Cressler, Ray E. Cressler, and Debbie A. Chestnut. Ronald L. Cressler is the named Plaintiff in this action and has been appointed as the Administrator of the Estate of Claire D. Cressler by the Cumberland County Register of Wills. He resides at 8 Koser Lane in Shippensburg, Pennsylvania. His brother, Ray E. Cressler resides at 12 Koser Lane in Shippensburg, Pennsylvania. Ronald and Ray's sister, Debbie A. Chestnut, resides at 10 Koser Lane in Shippensburg, Pennsylvania. 44. The Plaintiff, Ronald L. Cressler, brings this action pursuant to the Pennsylvania Wrongful Death Act. 45. The decedent did not bring an action for personal injuries during her lifetime, and no other action for the death of Miss Cressler has been commenced against Defendants. 46. For the reasons and causes of action stated above, Ronald L. Cressler, as Administrator of Miss Cressler's Estate, seeks damages under the Wrongful Death Act for funeral expenses, administrative expenses, medical expenses, pecuniary losses for maintenance, services and gifts both in the past and in the future and for all damages recoverable under the Wrongful Death Act. WHEREFORE, Plaintiff demands judgment for compensatory, punitive and delay damages as applicable against the Defendants in an amount in excess of the compulsory arbitration limits of Cumberland County, and for a trial by jury on all issues presented in this case. COUNT V - SURVIVAL ACTION 47. Paragraphs one through twenty-one and Counts I, 11, 111 and IV of this Complaint are incorporated herein by reference. 48. Plaintiff brings this survival action under the Pennsylvania Survival Act. 49. As a direct result of the actions of the Defendants as described above, the Defendants are liable to Miss Cressler for the pain and suffering she experienced from October 22 through October 25, 2002. Miss Cressler's Estate is entitled to recover for her pain and suffering, both physical and emotional, from the time of the claimed negligence through the time of her death and for all damages recoverable under the Survival Act. WHEREFORE, Plaintiff demands judgment for compensatory, punitive and delay damages as applicable against the Defendants in an amount in excess of the compulsory arbitration limits of Cumberland County and for a trial by jury on all issues presented in this case. Date:?L 1q (V0"1 Respectfully submitted, NAJITSK'Y, OLSON & W SNESKI LLP I l A n l r -i ich el J.1 a itsk , Esq 'r I.D. No. 58 3 2040 Linglestown Road, Suite 3 Harrisburg, PA 17110 717/541-9205 Counsel for Plaintiff VERIFICATION I, Ronald L. Cressler, Individually and as Administrator of the Estate of Claire D. Cressler, Deceased, verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that this Verification is made subject to the provisions of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. WITNESS Ronald L. Cressler, Individually and as Administrator of the Estate of CAair D. Cressler C laC(Q CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do hereby certify that I am this 0 ?ay of 2004 serving a true and correct copy of Plaintiff's Complaint upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edwin A. Schwartz, Esquire David L. Wortman, Esquire McKissock & Hoffinan 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Counsel for Defendants J Jessie K. Walsh A'?w _? ?. • .1 (•? ;3 ? .n 1 -., +. ? 1.: ? lr) C. i , .. ? C?a ,? RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER, Deceased, Plaintiffs V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. 04-3572 Civil Term ORIGINAL CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER I, Michael J. Navitsky, Esquire, 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 ? 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. 2040 Linglestown Road, Suit Harrisburg, PA 17110 717/541-9205 ' U I (?? Counsel for- Plaintiff Date: ` l ?C ?/ Respectfully submitted, NAVITSK'Y, OLSON & WI NESKI LLP ho. A . I A Michael J. N yr ky, Esquire I.D. No. 588 3 CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do hereby certify that I am this 17`h day of November, 2004 serving a true and correct copy of Plaintiffs Certificate of Merit upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edwin A. Schwartz, Esquire McKissock & Hoffman 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Counsel for Defendant Jessie K. Walsh r._ , r`? ??i ..,. ! ? :? '? E ? +_,_ v+ ?; ?? j ?_r ? [: . j I l ..? .i f ? 1?, --' ?. ? ? i RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER, Plaintiff V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-03572 CIVIL TERM JURY DEMAND NOTICE TO PLEAD To: Ronald Cressler c/o Michael Navitsky, Esq. 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 You are hereby notified to plead to the enclosed Preliminary Objections pursuant to the Pennsylvania Rules of Civil Procedure within 20 days from service hereof or judgment may be entered against you. DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAIN7r AND NOW comes Defendant, Perini Services/SoutharTipton Manor Limited Partnership, t/d/b/a The Shippensburg Healthcare Center, by and through its attorneys, McKissock & Hoffman, P.C., and hereby files the foregoing Preliminary Objections to Plaintiff's Complaint and as such, respectfully provides as follows: PRELIMINARY OBJECTION IN THE NATURE OF DEMURRER 1. Throughout Plaintiff's complaint (specifically 1125, 32, 33, 34 and 35) Plaintiff appears to attempting to set forth claim of negligence pursuant to various statutes and/or regulations. 2. Specifically, in Paragraph 25, Plaintiffs avers as follows: 25. Defendants were not only negligent, they deviated from both Federal and State regulation as identified by the Pennsylvania Department of Health during a complaint investigation on November 5, 2002 in the following particulars: a. Defendants violated 42 C.F.R. §483.25 regarding quality of care. This regulation mandates that each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practical physical, mental, and psychosocial well being in accordance with the comprehensive assessment and plan of care. The survey found that the LPN who was aware that Miss Cressler had choked and coughed when taking her medications at 10:30 a.m. failed to assess the resident and failed to notify the RN in charge of the unit of the incident. There was no documentation of assessments being performed between 11:00 a.m.and 2:00 p.m. or from 2:00 p.m. and 8:30 p.m. These failures not only constitute negligence, but a direct violation of Federal and State regulations that directly caused Miss Cressler's death. b. Defendants violated 42 C.F.R. §483.30 regarding nursing services. The regulation requires that the facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practical physical, mental and psyc:hosocial well-being. The Shippensburg Healthcare Center failed to have sufficient numbers of nursing staff according to the Pennsylvania Department of Health when it conducted its investigation into numerous complaints against the Defendant's facility at The Shippensburg Healthcare Center. c. Defendants violated 42 C.F.R. §483.10 regarding notification of change in condition. This regulation requires that a facility must immediately inform the resident, consult with the physician, and the resident's legal representative when there is an accident, a significant change in theresident's condition, or a need to alter treatment significantly. The Pennsylvania Department of Health cited the staff of The Shippensburg Healthcare Center for its failure to inform Miss Cressler's family ofantibiotic use. d. Defendants violated 42 C.F.R. §483.20 regarding resident assessment. The facility must develop a comprehensive care plan for each resident that includes measurable objectives and time tables to meet a resident's medical, nursing, mental, and psychosocial needs that are identifiable in the comprehensive assessment. Defendants failed to develop a care plan to address Miss Cressler's dysphagia that had been identified in February 2002. Her medications were to be crushed, however, this was not written on the care plan. This negligence and regulatory violation directly caused Miss Cressler's death. 3. In paragraphs 32-35, Plaintiff asserts: 32. The Pennsylvania Department of Health also found that Defendants failed to have a quality assurance policy and committee in effect during the relevant period of time. This was a direct violation of Federal law, 42 C.F.R 6483.75, that requires each home to have a quality assessment and assurance committee meet at least quarterly to identify issues with respect to which quality assessment and assurance activities are necessary and to develop and implement appropriate plans of action to correct deficiencies. When questioned about the Defendant's failure to have any of these policies or procedures in effect at The Shippensburg Healthcare Center, its Director of Nursing, state on November 5, 2002 at 4:20 p.m. that the facility's quality assurance policy was "so antiquated, we don't use it anymore." Even worse, Defendant's Assistant Director of Nursing and the Administrator of the entire facility stated on the same date that they were unaware of any quality assurance committee or how it functioned in the facility. The facility provided no documentation or policy that supported that care and services were being monitored to ensure the health and safety of its residents, in violation of state and federal regulation. 33. The Pennsylvania Department of Health found that The Shippensburg Healthcare Center was, during the relevant time period, understaffed in violation of 42 C.F.R. §483.30. It was determined that the facility failed to provide services by a sufficient number of nursing personnel to provide nursing care to all residents in accordance with the resident care plans and facility policies. The nursing home's administrator told the Pennsylvania Department of Health that he i1elt that the deficient practices identified during the survey (which included the incident involving Miss Cressler) were, in part, a result of inadequate staffing. 34. The Pennsylvania Department of Health also determined that Defendants failed to provide qualified persons to provide for the residents' needs in violations of 42 C.F.R. §483.20. 35. The Pennsylvania Department of Health also found that Defendants violated Federal and State regulations by failing to inform the resident and to consult with the resident's physician and family when an accident involving the resident which results in injury and has the potential for requiring physician intervention occurred or a significant change in the resident's physical, mental or psychosocial status with a need to alter treatment significantly or which necessitates a decision to transfer the resident to another facility, such as a hospital, in violation of 42 C.F.R. §483.10. Specifically, with regard to Miss Cressler, The Shippensburg Healthcare Center failed on multiple occasions to notify her family with respect to drug treatment, in violation of both State and Federal regulations. 4. Congress enacted the Nursing Home Reform Law ("N.H.R.L") as part of the Omnibus Reconciliation Act of 1987 ("O.B.R.A."). 5. O.B.R.A. revised the regulations of nursing homes subject to Medicare and Medicaid, subchapters XVIII and XIX of the Social Security Act, respectively. 42 U.S.C. § 13951-3 (Medicare) and 42 U.S.C. § 1396R (Medicaid). 6. In order to obtain federal reimbursement under Medicare and Medicaid, as state must establish an approved state plan for medical assistance in accordance with federal guidelines. In order to do this, each state promulgates its own statutes and regulations for long- term care facilities. 7. As a general rule, neither a federal nor state statute gives rise to a private cause of action unless the statute itself or its legislative history indicates a congressional intent to create such a remedy. Nichols v. St. Luke Center of Hyde Park, 800 F.Supp. 1564(S.D. Ohio 1992); Weidner v. ANZON, Inc., 453 Pa. Super. 619, 684 A.2d 570, 575 (1996). 8. The N.H.F.A. and the applicable Long-Term Care Facility Regulations do not create a private right of action in favor of a family or of a nursing home resident. See. Chalfin v. Beverly Enterprise, Inc, 745 F. Supp. 1117(E.D. Pa. 1990); and Broadon v. National Healthcare Corp., 103 F. Supp. Et2d, 1322 (N.D. Ga 2000). 9. Similarly, failure to comply with federal and state regulations is neither per se negligence nor evidence of negligence. Chalfin v. Beverly Enterprise, Inc., 741 F.Supp. 1162, ft.n. 10 (E.D. Pa. 1989); 745 F.Supp 1117(E.D. Pa. 1990). 10. In a comprehensive and thorough analysis, the Honorable Lowell Reed of the United States District Court for the Eastern District of Pennsylvania concluded that these types of regulations were not intended to create a tort duty under the principles of negligence per se. Id. 11. Moreover, Section 288 of the Restatement (Second) of Torts defines when a legislation or regulation should not be adopted as a standard of care where the purpose is to "impose upon the actor the performance of a service which the state or any subdivision of it undertakes to give to the public." Restatement (Second) of Torts § 288(c), comment (d); Chalfin 745 F.Supp 1117(E.D. Pa. 1990). 12. Finally, the nebulous nature of the regulations would cause confusion to a jury and introduce speculation. 13. Therefore, Plaintiffs negligence claims based upon alleged violations of O.B.R.A. Regulations, 42 C.F.R. PART 483, et seq. must fail as a matter of law. WHEREFORE, Defendant respectfully requests this Honorable Court grant its Preliminary Objection to Plaintiff's Complaint and dismiss Plaintiff's Complaint with prejudice and further grant all such other relief as is proper and just. II. PRELIMINARY OBJECTION TO COUNT II OF PLAIN'TIFF'S COMPLAINT ALLEGING WANTON AND WILLFUL MISCONTDUCT - PUNITIVE DAMAGES 14. In Count II of Plaintiff's Complaint, Plaintiff pleads that Defendant acted in a repetitive pattern of willful and wanton misconduct to the detriment of Plaintiff. Specifically, Plaintiffs allege the following: 29. Defendants' failures with respect to Miss Cressler that caused her death as delineated in Count I of this Complaint, evidence a much larger pattern and practice of a reckless and wanton disregard for the lives and safety of the helpless people entrusted to their care, and warrants the imposition of punitive damages. 30. The Pennsylvania Department of Health interviewed the Defendant's staff and administration during its November 5, 2002 investigation of Miss Cressler's death and of the deaths and injuries suffered by other residents of The Shippensburg Healthcare Center in November and December 2002 investigations. 31. During its November 5 and December 5, 2002 investigation of The Shippensburg Healthcare Center, the Pennsylvania Department of Health observed numerous and systemic violations. The choking incident involving Miss Cressler, the delay in treatment, disregard for physician instructions, and then a delay in calling for emergency medical services was, of course, investigated and reported. Another resident with a broken leg was ignored for hours, even after the home's physician ordered that an x-ray be taken "stat. " The staff ignored the resident for over 15 hours. Even after knowing that the resident's leg was broken, Defendants' staff waited over six hours before transporting him to a hospital. Just as with Miss Cressler's case, the Defendants' staff recognized and acknowledged that their services were unacceptable. Another resident developed pressure sores that were ignored by the Defendant's staff. Still another resident died of aspiration pneumonia following careless feeding at the home. 32. The Pennsylvania Department of Health also found that Defendants failed to have a quality assurance policy and committee in effect during the relevant period of time. This was a direct violation of Federal law, 42 C.F.R §483.75, that requires each home to have a quality assessment and assurance committee meet at least quarterly to identify issues with respect to which quality assessment and assurance activities are necessary and to develop and implement appropriate plans of action to correct deficiencies. When questioned about the Defendant's failure to have any of these policies or procedures in effect at The Shippensburg Healthcare Center, its Director of Nursing, state on November 5, 2002 at 4:20 p.m. that the facility's quality assurance policy was "so antiquated, we don't use it anymore." Even worse, Defendant's Assistant Director of Nursing and the Administrator of the entire facility stated on the same date that they were unaware of any quality assurance committee or how it functioned in the facility. The facility provided no documentation or policy that :supported that care and services were being monitored to ensure the health and safety of its residents, in violation of state and federal regulation. 33. The Pennsylvania Department of Health found that The Shippensburg Healthcare Center was, during the relevant time period, understaffed in violation of 42 C.F.R. §483.30. It was determined that the facility failed to provide services by a sufficient number of nursing personnel to provide nursing care to all residents in accordance with the resident care plans and facility policies. The nursing home's administrator told the Pennsylvania Department of Health that he fslt that the deficient practices identified during the survey (which included the incident involving Miss Cressler) were, in part, a result of inadequate staffing. 34. The Pennsylvania Department of Health also determined that Defendants failed to provide qualified persons to provide for the residents' needs in violations of 42 C.F.R. §483.20. 35. The Pennsylvania Department of Health also found that Defendants violated Federal and State regulations by failing to inform the resident and to consult with the resident's physician and family when an accident involving the resident which results in injury and has the potential for requiring physician intervention occurred or a significant change in the resident's physical, mental or psychosocial status with a need to alter treatment significantly or which necessitates a decision to transfer the resident to another facility, such as a hospital, in violation of 42 C.F.R. §483.10. Specifically, with regard to Miss Cressler, The Shippensburg Healthcare Center failed on multiple occasions to notify her family with respect to drug treatment, in violation of both State and Federal regulations. 36. The Pennsylvania Department of Health cited Defendant's facility for failing to develop and follow a comprehensive care plan for Miss Cressler, specifically, her diagnosis of dysphagia (swallowing problem). Miss Cressler's chart at the nursing home revealed that a diagnosis of dysphagia was added on March 8, 2002. The physician notes at the facility on March 22 and April 4, 2002 noted that Miss Cressler had difficulty swallowing whole pills and the physician would continue to follow the resident's progress. The physician's order dated August 2, 2002 directed Defendants' staff to provide Miss Cressler with a mechanical soft diet and that medications could be crushed prior to their administration. When interviewed after Miss Cressler's death, one of Defendants' licensed practical nurses state, on November 1, 2002 at 10.40 a.m. that Miss Cressler would occasionally cough while taking medications. The nursing notes for October 22, 2002 recorded that Miss Cressler choked while ingesting medications on October 22, 2002 and that there was no evidence whatsoever that the Defendants' facility had developed a care plan to address Miss Cressler's dysphagia in direct violation of State and Federal regulations. 37. Defendants were cited by The Department of Health for numerous and varied violations of State and Federal law that applied to Miss Cressler and other residents of the facility, all of which, when considered as a whole, and in some instances, individually, clearly reflect a pattern and practice of reckless indifference and wanton disregard for the safety of residents such as Miss Cressler, thereby warranting the imposition of punitive damages. 15. Notwithstanding the Plaintiff's improper reliance upon the Department of Health surveys, Plaintiff's Complaint fails to set forth any specific factual averments as required by law to support the allegation of wanton or willful misconduct conduct on part of the Defendant specifically directed to Plaintiff's decedent, Claire Cressler. 16. Rule 1019(a) as the Pennsylvania Rules of Civil Procedure requires a party to formulate a concise summary of the facts that serve as the basis for a cause of action. Absent specific factual allegations which support a claim of wanton or willful misconduct with an evil motive or reckless indifference to the rights of Claire Cressler specifically, Plaintiffs 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. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963); Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). 17. In order to determine whether or not Defendants exhibited "willful or wanton conduct" to Plaintiff's decedent, Claire Cressler, this Honorable Court must analyze whether Defendant actually knew or had reason to know of the facts which created a high risk of physical harm to the specific plaintiff. See, Field v. Philadelphia Electric Company, 388 Pa. Super. 400, 565 A.2d 1170, 1183 (1989). 18. Punitive damages cannot stand alone; they must stem from the actionable conduct of the Defendant. Thus, if no actual damages flow from the conduct giving rise to the punitive damage, an award is not appropriate. 19. Notwithstanding the extreme length and creative pleading effort of the Plaintiff relative to his Complaint, Plaintiff has failed to enumerate any specific conduct directed to Plaintiff's decedent, Claire Cressler, individually, that would constitute willful or wanton conduct on behalf of Defendant. At most, Plaintiff's averments as set forth in his theories of negligence, (i.e. failing to render proper nursing and medical care), may only be interpreted as gross negligence which is insufficient to support a claim for punitive damages. 20. Pennsylvania law does not allow for an award of punitive damages for mere inadvertence, mistake, error of judgment and the like which constitutes ordinary and/or gross negligence. Field v. Philadelphia Electric Company, supra. WHEREFORE, Defendant respectfully requests this Honorable Court grant its Preliminary Objection to Plaintiff's Complaint and dismiss Plaintiff's Complaint with prejudice and further grant all such other relief as is proper and just. III. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER 21. In Count IV of Plaintiff's Complaint, Plaintiff asserts a claim under the Pennsylvania Wrongful Death Statute. 42 Pa.C.S.A. §8301. 22. In paragraph 43 of Plaintiff's Complaint, Plaintiff identifies Ronald Cressler (Grandson); Ray Cressler (Grandson); and Debbie Chestnut (Granddaughter) as the survivors of Plaintiff's Decedent, Claire Cressler. 23. Furthermore, in paragraph 46 of Plaintiff's Complaint, Plaintiff seeks to recover damages for "pecuniary losses for maintenance, services and gifts in the past and future". 24. The items of recovery sought by Plaintiff, as identified above, are not recoverable under the Pennsylvania Wrongful Death statute. Pursuant to .42 Pa.C.S.A. §8301, if there is no surviving "spouse, children or parents of the deceased" then the recoverable damages are specifically limited to "reasonable hospital, nursing, medical, funeral expenses and expenses of administration". See 42 Pa.C.S.A.§8301(b) and (d). 25. Plaintiff's claims for the recovery of alleged pecuniary losses for maintenance, services and gifts in the past and future is without basis in law. WHEREFORE, Defendant respectfully requests this Honorable Court grant its Preliminary Objection to Plaintiff's Complaint and dismiss Pl'aintiff's Complaint with prejudice and further grant all such other relief as is proper and just. IV. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER 26. In the caption of this action, Plaintiff identifies himself as bringing the instant action "individually and as the Administrator of the Estate of Claire D. Cressler, deceased". 27. However, curiously absent from anywhere in the Complaint is any basis for Plaintiff Ronald Cressler to prosecute any claims in his individual capacity. 28. Plaintiff Ronald Cressler, does not have standing under any colorable theory of law as asserted in the Complaint to bring the instant action in his individual capacity. WHEREFORE, Defendant respectfully requests this Honorable Court grant its Preliminary Objection to Plaintiff's Complaint and dismiss Plaintiff's Complaint with prejudice and further grant all such other relief as is proper and just. IV. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE FOR LACK OF SPECIFICITY 29. 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. 30. 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. 31. Pennsylvania law requires a plaintiff to plead sufficient facts to give defendant notice as to what plaintiff's claims are and to adequately inform the defendant as to all relevant issues. 32. Numerous averments contained in throughout Plaintiff's Complaint refers to various staff, agents or employees of the Defendant for which whose actions Plaintiff is attempting to impose liability upon the facility via vicarious liability. However, Plaintiff's Complaint fails to provide the requisite factual specificity in support of such averments inasmuch as such averments fail to provide any information as to identify the staff, agents and/or employees of the Defendants for whom Plaintiffs are attempting to impose liability upon Defendants. 33. Notwithstanding Plaintiff's possession of the complete medical record and chart in this action, Plaintiff has not identified the specific individuals -For which Plaintiff is asserting his causes of action. Absent any identification of those individuals whose actions serve as the alleged basis for imposing liability, Defendant cannot ascerl:ain the specific actions and/or omissions upon which Plaintiff asserts this action. 34. Boilerplate averments of general acts without specifically identifying the actor, fail to contain the requisite specificity for a claim of vicarious liability and does not afford Defendant with the required explanation as to how Defendant is alleged to have deviated from the specific standard of care by and through its alleged staff, agents and/or employees. 35. Vague allegations of negligence, via alleged staff, agents and/or employees of Defendant 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. Allegheny Hospital, 501 Pa. 306, 461 A.2d 600 (1983). 36. Plaintiff's Complaint lacks the requisite specifi6ty (as to the identity of the actors for which Plaintiff attempts to impose vicarious liability upon Defendant) as required under the Pennsylvania Rules of Civil Procedure, and therefore Plaintiff'; Complaint must be dismissed as failing to comply with law or rule of court. WHEREFORE, Defendant respectfully requests this Honorable Court grant its Preliminary Objection to Plaintiff's Complaint and dismiss Plaintiff's Complaint with prejudice and further grant all such other relief as is proper and just. V. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE PLAINTIFF'S COMPLAINT 37. Throughout Plaintiff's Complaint it appears as though Plaintiff is attempting to set forth a cause of action based upon corporate negligence. This appearance is based on the fact that Plaintiff has failed to name any specific individuals associalted with the Defendant relative to their independent actions and/or omissions. 38. The theory of corporate negligence as adopted in Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991) applies only to hospitals and not nursing facilities. Remshifski v. Kraus, No. 1845 Civ. 1992, slip op. (CCP Monroe, September 8, 1995). 39. Plaintiff's efforts in attempting to plead a cause of action based upon corporate negligence is without legal authority and must be precluded as a matter of law. WHEREFORE, Defendant respectfully requests this Honorable Court grant its Preliminary Objection to Plaintiff's Complaint and dismiss Plaintiff's Complaint with prejudice and further grant all such other relief as is proper and just. V. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE SCANDALOUS AND IMPERTINENT MATTER 40. Throughout Plaintiff's Complaint, Plaintiff makers references to "other residents" or "helpless people" and individuals other than Plaintiffs decedent, Claire Cressler. 41. Plaintiff's inclusion of these other individuals or classes of individuals is scandalous and impertinent inasmuch as Plaintiff lacks any standing to assert claims on behalf of these individuals. Furthermore, there is no relevance of these individuals in the ultimate determination of Plaintiff's claims of alleged negligence against: Defendant. 42. Given the fact that Plaintiff would not be permitted to present evidence regarding these other individuals at the time of trial, there in no basis in law or fact that would justify Plaintiff's inclusion of the same in his Complaint. 43. Finally, given the fact that there is no private right of action afforded to nursing care residents or their families exclusively due to the findings of the Pennsylvania Department of Health survey process (which is primarily due to the fact that the survey process is completely one-sided and the nursing care facilities are not offered any substantive option to challenge or rebut the survey results), Plaintiff's inclusion of the survey findings relative to other residents is neither probative nor persuasive but merely asserted for purposes of slander. WHEREFORE, Defendant respectfully requests this Honorable Court grant its Preliminary Objection to Plaintiff's Complaint and dismiss Plaintiff's Complaint with prejudice and further grant all such other relief as is proper and just. Respectfully submitted, McKissock & Hoffmw, P.C. By: Edwin A.D. Schwan ire I.D. No.: 75902 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: Attorneys for Defendant, Perini Services/Southampton Manor Limited Partnership, t/d/b/a The Shippensburg Healthcare Center CERTIFICATE OF SERVICE: I hereby certify that I am this day serving a copy of the foregoing Preliminary Objections of Defendant, Perini Services/Southampton Manor Limited Partnership, t/d/b/a The Shippensburg Healthcare Center to Plaintiffs' Complaint upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Ronald Cressler c/o Michael Navitsky, Esq. 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 McKissock & Hoffman, P.C. Edwin A.D. Schwartz, re Identification No.: 759 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendant, Perini Services/Southampton Manor Limited Partnership, t/d/b/a The Shippensburg Healthcare Center Dated:_ r? r`? r-?a C?') c .? ?_ ?-Tt i , r ?' i __.,_ ?. 7 i ?'.) i Fl _'`e t dt f`ti3 .. RONALD L. CRESSLER, as IN THE COURT OF COMMON PLEAS Administrator of the Estate of CUMBERLAND COUNTY, PENNA CLAIRE D. CRESSLER, Deceased, ORIGINAL Plaintiffs NO. 04-3572 Civil Term V. PERINI SERVICES/SOUTHAMPTON CIVIL ACTION - LAW MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, JURY TRIAL DEMANDED Defendants PLAINTIFFS' RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW, comes the Plaintiffs, Ronald L. Cressler, as Administrator of the Estate of Claire D. Cressler, by and through their attorneys, Navitsky, Olson & Wisneski LLP, to hereby file a response to Defendants' Preliminary Objections to Plaintiffs' Complaint as follows: 1. Preliminary Objection in the Nature of a Demurrer L-3. Admitted. By way of further response, Plaintiffs' Complaint speaks for itself. 4.-6. Admitted. By way of further response, the referenced statutes and regulations speak for themselves. 7. Admitted in part and denied in part. To the extent that the referenced cases from 8-12 years ago accurately portray the law as it existed at the time of their respective decisions, Defendants' averment is admitted. However, it is denied that this averment accurately reflects the present law in Pennsylvania. The current law in Pennsylvania is that a statute may be used as the basis for a negligence per se claim when it is clear that, despite the absence of a private right-of-action, the policy of the statute will be furthered by such a claim because its purpose is to protect a particular group of individuals. McCain v. Beverly Health and Rehabilitation Services, Inc., 2002 WL 1565526 (E.D. Pa. 2002). Moreover, Defendants' cited Pennsylvania case of Wagner v. Anzon, Inc., 684 A.2d 570 (1996) has been distinguished by Cabiroy v. Scipione, 767 A.2d 1078 (Pa. Super 2001). In Cabiroy, the Pennsylvania Superior Court taught us that under Pennsylvania law, the violation of government safety regulations constitutes negligence per se if the regulation was, in part, intended to protect the interest of another as an individual and the interest of the Plaintiff, which was invaded, was one which the Act intended to protect. The Nursing Home Reform Act (included in the Omnibus Reconciliation Act of 1987 - "O.B.R.A."), in particular the subsections cited by Plaintiffs in their Complaint (42 C.F.R. §483.10 et seq.), was clearly intended to protect the interest and rights of residents of nursing facilities, such as Plaintiffs' decedent, Claire Cressler. 8.40. Denied as stated. Neither of Defendants' cited cases addressed the issue of whether violations of OBRA regulations, such as those sections cited by Plaintiffs in their Complaint, can be used to determine a negligence per se claim. Furthermore, in 2002 the District Court for the Eastern District of Pennsylvania abrogated Defendants' cited case of Chalfin v. Beverly EY nterprises, Inc., 745 F.Supp. 1117 (E.D. Pa. 1990) by holding that policies expressed in statutes and regulations could form the basis for a negligence per se claim, despite the lack of a private cause of action. McCain v. Beverly Health and Rehabilitation Services, Inc., 2002 WL 1565526 (E.D. Pa. 2002). In McCain, the District Court held that Plaintiffs' decedent, a nursing home resident, came within the older person's protections intended by O.B.R.A. and the regulations set forth in 42 C.F.R. §483. The same section cited by instant Plaintiffs in their Complaint. Additionally, when the U.S. District Court for the Eastern District of Pennsylvania abrogated Chalfin in McCain they found that the absence of a private right of action in a statutory scheme was found not to be dispositive (see Sharp v. Artifex, 110 F.Supp.2d. 388 ( W.D. Pa. 1999)). It is merely a factor to consider and "does not necessarily preclude the statute's use as the basis of a claim of negligence per se." Fallowfield Development Corp. v. Strunk, 1990 WL 52745 (E.D. Pa. 1990). A statute may still be used as the basis for a negligence per se claim when it is clear, despite the absence of private right of action, that the policy of the statute will be furthered by such a claim because its purpose is to protect a particular group of individuals. It is clear from the language of the OBRA subsections cited by Plaintiffs in their Complaint that the purpose of same is to protect a particular group of individuals, in this case, nursing home residents, such as Plaintiffs' decedent. 11. Denied as stated. The Courts' once narrow view of Section 288(c) of the Restatement (Second) of Torts and its comments, as was used fourteen (14) years ago in the abrogated case of Chalfin, has been expanded (see the Shar ! case cited above and Plaintiffs' response in paragraphs 8.40., above). Moreover, Pennsylvania Courts now recognize §286 of the Restatement (Second) of Torts as the best guide to determine if a claim of negligence per se can be established. See, Maresca v. Mancall, 2003 WL 21652170 (E.D. Pa. 2003) and McCain v. Beverly Health and Rehabilitation Services, Inc., 2002 WL 1565526 (E.D. Pa. 2002). 12. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent a response is deemed to be required, Defendants' averment is specifically denied. 42 C.F.R. §483 et seq provides very clear language as to what a long term care resident's rights are to be, how they are to be assessed, how plans are to be developed and effectuated, the quality of care they are to be exposed to, and the duties of the nursing home's administration regarding quality assessment and assurance. 13. Denied. As a matter of law, Plaintiffs can maintain a negligence per se claim based on the Omnibus Reconciliation Act of 1987 (O.B.R.A.). In addition to the relevant Pennsylvania federal court cases cited in the paragraphs above, the Pennsylvania state court case of Goda v. White Cliff Leasing, Partnership,, 62 Pa. D.&C.4t" 476 (C.P. Mercer 2003) taught us that a plaintiff can maintain a negligence per se claim based on the Omnibus Budget Reconciliation Act of 1987. WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendants' instant Preliminary Objection in the nature of a demurrer. II. Preliminary Objection to Plaintiffs' Punitive Damage Claim (Count II) 14. Admitted. By way of further response, Plaintiffs' Complaint speaks for itself. 15. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent a response is deemed to be required., Defendants' averment is specifically denied. To the contrary, Plaintiffs' Complaint contains greater than ten (10) paragraphs that specifically set forth the facts, which if proven, would support a jury charge for punitive damages. 16. Denied as stated. Rule 1019(a) and the cases cited by Defendants speak for themselves. Moreover, Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent a response is deemed to be required, Defendants' averment is specifically denied. By way of further response, Plaintiffs' Complaint is to be read as a whole, not as Defendants proffer in an isolated mariner. Furthermore, paragraphs 8 through 19 of Plaintiffs' Complaint sufficiently and clearly provide Defendants' with notice of the outrageous conduct and reckless indifference perpetrated upon Ms. Cressler. In particular, Defendants' staff allowed Ms. Cressler to be unresponsive for fort-five 451 minutes before calling an ambulance. 17. Denied as stated. By way of further response, the case cited by Defendants speaks for itself. Moreover, if the factual allegations contained in Plaintiffs' Complaint are proven accurate, they could certainly display to a future factfinder the willful or wanton conduct of Defendants' staff towards Plaintiffs' decedent, Ms. Cressler. 18. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent a response is deemed required, Defendants' averment is specifically denied. Defendants' actions and/or inactions, which factually caused Ms. Cressler's death, could certainly be viewed by a future factfinder as warranting an award for exemplary damages. 19. Defendants' averments are conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, Defendants' averments are specifically denied. When read as a whole, Plaintiffs' detailed Complaint provides numerous examples of how Defendants' staff acted in reckless indifference to the needs of Ms. Cressler. Foremost, is the fact that they waited forty-five (45) minutes after she became unresponsive to call an ambulance. 20. Denied as stated. By way of further response, the: case cited by Defendants speaks for itself. In the matter sub judice, Plaintiffs have plead facts sufficient to enable a future factfinder to consider an award of punitive damages. Importantly, certain plead facts of Defendants' reckless indifference and wanton conduct were derived from the objective observations of eyewitnesses on the ambulance teams who responded to Defendants' facility. Observations that evidence conduct by Defendants, which was more than mere advertence, mistake, or an error of judgment on the part of Defendants' staff. WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendants' Preliminary Objection to Count II-Punitive Damages of Plaintiffs' Complaint. III. Preliminary Objection in the Nature of a Demurrer 21. Admitted. By way of further response, Plaintiffs' Complaint speaks for itself. 22. Admitted. By way of further response, Plaintiff;' Complaint speaks for itself. 23. Admitted. By way of further response, Plaintiff;;' Complaint speaks for itself. 24. Admitted. By way of further response, 42 Pa. C.S.A. §8301 et seq. speaks for itself. 25. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent a response is deemed to be required, Defendants' averment is admitted. WHEREFORE, Plaintiffs will strike the language `pecuniary losses for maintenance, services and gifts both in the past and in the future " from paragraph 46 of Plaintiffs' Complaint. IV. Preliminary Objection in the Nature of a Demurer 26. Admitted. By way of further response, Plaintiffs' Complaint speaks for itself. 27. Admitted. By way of further response, Plaintiffs' Complaint speaks for itself. By way of further response, Ronald L. Cressler is bringing this action as the Administrator of the Estate of the deceased, Claire D. Cressler. 28. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent a response is deemed to be required, Defendants' averment is admitted. WHEREFORE, Plaintiffs will strike the word "Individually " from the caption of Plaintiffs' Complaint. V. (Mislabeled Iv) Preliminary Objection in the Nature of a Motion to Strike for Lack of Specificity 29. Admitted. Pennsylvania Rule of Civil Procedure 1028(a)(2) speaks for itself. By way of further response, it is specifically denied that Plaintiffs have failed to confirm their Complaint to Pennsylvania law or rule of Court. 30. Admitted. Pennsylvania Rule of Civil Procedure 1019(a) speaks for itself. By way of further response, it is specifically denied that Plaintiffs did not provide Defendants with material facts upon which their cause of action is based in a concise and summary form. 31. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent a response is deemed required, Defendants' averment is specifically denied. Plaintiffs have plead sufficient facts to give Defendants notice of what Plaintiffs' claims are and to adequately inform the Defendants as to all relevant issues. 32-34. Defendants' averments are conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, Defendants' averments are specifically denied. Plaintiffs' Complaint is a written document that speaks for itself. By way of further response, it is difficult for Plaintiffs to provide a response to this preliminary objection when Defendants have failed to specify particular quoted language and/or paragraph numbers from Plaintiffs' Complaint as a basis for this objection. It is specifically denied that Plaintiffs' Complaint fails to provide the requisite; facts or specificity required by the Pennsylvania Rules of Civil Procedure. Furthermore, Defendants are in a much better position to interpret the initials and signatures in their own nursing home record to identify the various staff, agents, or employees of Defendants who were responsible for taking care of Ms. Cressler. Moreover, it is Defendants who have exclusive knowledge and access to staffing schedules and perhaps past interviews with staff members in which to ascertain the identities of all individuals who may have come in contact with Ms. Cressler during the relevant times of this action. It will only be through discovery that Plaintiffs are afforded the opportunity to learn the identities of these individuals. Additionally, many individuals who may have come in contact with Ms. Cressler during the relevant times of this action were presumably para-professionals whose initials/names and/or signatures do not typically appear in nursing home records. Furthermore, the factual events described in Plaintiffs' detailed Complaint give Defendants more than enough information to identify which of their employees, staff, and/or agents would have been scheduled to work on those relevant days, and thus, could have come into contact with Ms. Cressler. Defendants are in no way prejudiced by the present pleading language. Whereas, Defendants are in a better position than Plaintiffs to identify the specific individuals. 35. This is a conclusion of law that requires no response. Conner v. Allegheny Hospital speaks for itself. By way of further response, it is specifically denied that Plaintiffs' allegations are vague. Defendants have been presented with more than enough information to identify the culpable members of their staff and to prepare an answer to Plaintiffs' Complaint. A more specific pleading cannot be required when the party filing the objection has or should have more knowledge of the identity of its employees, staff, and/or agents than the pleader. 36. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent a response is deemed required, Defendants' averment is specifically denied. Plaintiffs' Complaint contains the requisite specificity required under the Pennsylvania Rules of Civil Procedure and provides Defendants with sufficient facts to prepare an answer thereto. WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendants' Motion Regarding Specificity. VI.(Mislabelea V) Preliminary Objection in the Nature of a Motion to Strike Plaintiffs' Complaint 37. Denied. Plaintiffs have set forth a cause of action based upon corporate negligence. Plaintiffs have set forth factually specific claims of negligence, corporate negligence, vicarious liability, punitive damages, wrongful death, and survival action to enable Defendants to file a meaningful answer to such claims. 38. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent a response is deemed required, Defendants' averment is specifically denied. By way of further response, the cases of Thompson and Remshifski speak for themselves. Contrary to what Defendants have proffered, the Thompson doctrine has been extended to health maintenance organizations and to other type organizations that play a central role in the total health care of their clients. Moreover, the Remshifski case cited by Defendants, dealt with a group of physicians working in emergency rooms and not with a Defendant nursing home. 39. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent a response is deemed required, Defendants' averment is specifically denied. Defendants' facility provided total health care to Plaintiffs' decedent and thus, is liable to Plaintiffs' estate for their negligence and for factually causing her death. WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendants' instant Preliminary Objection. VIL(Mislabelea as v.)Preliminary Objection in the Nature of a Motion to Strike Scandalous and Impertinent Matter 40. Denied as stated. Plaintiffs' Complaint speaks for itself. 41. Defendants' averments are conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, it is specifically denied that the pattern of neglect evidenced by the actions and/or inactions of the staff, employees, and/or agents of Defendants is not relevant to the ultimate determination of Plaintiffs' claims against Defendants, particularly their exemplary damage claim. 42. Defendants' averments are conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, it is specifically denied that there is no basis in law and fact that would justify Plaintiffs' inclusion of such language in their Complaint. By way of further response, Plaintiffs are permitted to demonstrate how Defendants' pattern of neglect by its employees, staff, and/or agents caused Plaintiffs' decedent's death and how such conduct by Defendants rose to the level of reckless indifference. 43. Defendants' averments are conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, such averments are specifically denied. By way further response, all of the factual allegations in Plaintiffs' Complaint are true and relevant and if they are, in deed, scandalous, this label is as a result of the actions and/or inactions of Defendants' employees, staff, and/or agents with respect to the health and welfare of Ms. Cressler. WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendants' instant Preliminary Objection regarding the alleged scandalous and impertinent language and to further order Defendants to fully and completely answer Plaintiffs' Complaint without further delay. Respectfully submitted, NAVITSKY, OLSON & WISNESKI LLP j. Mic ael J. Navitsky, Es ire I.D. No. 5$803 Duane S. B.arrick, Esquire I.D. No. 77400 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 717/541-9205 Counsel for Plaintiffs Date: 1A /--Z-?-/o -¢ CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do hereby certify that I am this A?ay of December, 2004 serving a true and correct copy of Plaintiffs' Response to Defendants' Preliminary Objections to Plaintiffs' Complaint upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edwin A. Schwartz, Esquire McKissock & Hoffman 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Counsel for Defendant U u ?.aL1G1s? Jessie K. Walsh r -, r., ? i `? ?" t_. -? ' _ i , r,?, ,_, ??*.) ?^ - vi 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 CAPTION OF CASE (entire caption must be stated in full) Ronald L. Cressler. Individually and as Administrator of the Estate (Plaintiff) VS. Perini Services/Southampton Manor Limited Partnership, t/d/b/4 The HealtYrare Center (Defendant) No. 3572 Civil 1. State matter to be argued (i.e., plaintiff's motion foir new demurrer to complaint, etc.): Defendants' Preliminary Objections to Plaintiff's Complain 2. Identify counsel who will argue case: (a) for plaintiff: Michael J. Navitsky, Esquire Address: 2040 Linglestown Road, Harrisburg,,PA I Suite 303 (b) for defendant: Edwin A. Schwartz, Esquire Address: 2040 Linglestown Road, Suite 302, 3. I will notify all parties in writing within two days tat been listed for argument. 4. Argument Court Date: May 4, 2005 Claire D. Cressler, Deceased ibW 2004 defendant's , PA 17110 case bas CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm of Navitsky, Olson & Wisnes i LLP, do hereby certify that I am this 30`x' day of March, 2005 serving a true and correct copy df Praecipe to List Case for Argument upon all counsel of record via postage prepaid first class States mail addressed as follows: Edwin A. Schwartz, Esquire McKissock & Hoffman 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Counsel for Defendant Jessie K. 7-1 t U: RONALD L. CRESSLER, as Administrator of the Estate of CLAIRE D. CRESSLER, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, DEFENDANTS 04-3572 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF DEFENDANTS TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. AND OILER, J. ORDER OF COURT AND NOW, this It h- day of May, 2005, IT IS ORDERED: (1) The words "pecuniary losses for maintenance, services and gifts both in the past and in the future" ARE STRICKEN from paragraph 46 of plaintiffs complaint. (2) The word "Individually" IS STRICKEN from the caption of plaintiff's complaint. (3) The references to "other residents" and "helpless people" and "individual residents other than Claire Cressler," ARE STRICKEN from plaintiff's complaint. (4) All other preliminary objections of defendants to plaintiff's complaint, ARE DISMISSED. as-?a?-o5 Edgar B. By the Court, Duane S. Barrick, Esquire For Plaintiff Edwin A.D. Schwartz, Esquire For Defendants :sal i1??t ,Ii,j, i?') 13 1 ORIGINAL RONALD L. GRESSLER, individually ana as Administrator of the Estate of CLAIRE D. CRESSLER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-03572 CIVIL TERM V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, JURY TRIAL DEMANDED NOTICE TO PLEAD To: Ronald Cressler c/o Michael Navitsky, Esq. Duane Barrick, Esquire 2040 Linglestown Road, Suite 303 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. DEFENDANT'S ANSWER AND NEW MATTER TO PLAINTIFFS' COMPLAINT AND NOW comes Defendant, Perini Services/Southampton Manor Limited Partnership, t/d/b/a The Shippensburg Healthcare Center, by and through its attorneys, McKissock & Hoffman, P.C., and respectfully provides the foregoing Answer and New Matter to Plaintiffs' Complaint and as such, states as follows: 1. Defendant is without sufficient information to admit or deny the averments contained in $1 of Plaintiffs' 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 Perini Services/Southhampton Manor Limited Partnership operates a for profit facility trading under the operation name of The Shippensburg Healthcare Center located at 121 Walnut Bottom Road, Shippensburg, Pennsylvania. The remaining averments, and all inferences to be garnered therefrom, as set forth in T2 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 3. Admitted in part, denied in part. It is admitted that during the relevant time set forth in Plaintiffs' Complaint, Defendant received payments from Medicare and Medicaid by nursing home care, treatment and related services. The remaining averments, and all inferences to be garnered therefrom, as set forth in ¶3 of Plaintiffs' Complaint are specifically denied. By way of further answer, it is specifically denied that any "federal and state regulations, including the requirements of 42 U.S.C. § 1396 et seq. as amended by the Omnibus Reconciliation Act of 1987 (OBRA) and 42 C.F.R. § 483" are " requirements" in relation to any burdens of proof necessary for Plaintiffs to establish a prima facie case of professional negligence against Defendant and as such, these averments are specifically denied. 4. Admitted. By way of further response, it is specifically denied that any federal and/or state regulations, including 42 U.S.C. § 1396, have any relevance to the Plaintiffs' burden in establishing a prima facie case for professional negligence against the Defendant in this action and as such, are specifically denied and strict proof is demanded. 5. Admitted in part, denied in part. It is admitted that Defendant received compensation from or on behalf of Claire Cressler for the care and services provided to her during her residence at The Shippensburg Healthcare facility. The remaining averments, and all inferences to be garnered therefrom, as set forth in ¶5 of Plaintiffs' Complaint as they pertain to individuals and/or other residents of Claire Cressler are irrelevant to Plaintiffs' burden of proof in order to establish a prima facie claim for professional negligence against Defendant and as such, these averments are specifically denied. 6. Admitted in part, denied in part. It is admitted that the Defendant operates a nursing home facility and provides care and services to its residents in compliance with all applicable standards of care. It is specifically denied that there was any "holding out" of any services which are inconsistent and/or deviate from the applicable standard of care charged to nursing home facilities. 7. Admitted in part, denied in part. It is admitted that The Shippensburg Healthcare facility was a licensed nursing home in the Commonwealth of Pennsylvania. The remaining averments, and all inferences to be garnered therefrom, as they pertain to federal and state regulations, including 35 P.S. § 448.803 and 28 Pa. Code § 201.29 as they pertain to the allegations in 17 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 8. Admitted. 9. The averments contained in ¶9 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. By way of further response, Mrs. Cressler at all times relevant to her residence at The Shippensburg Healthcare facility from July 1, 2002 to October 25, 2002 received care and treatment which met and/or exceeded the applicable standard of care. 10. Admitted in part, denied in part. To the extent the averments contained in ¶10 are consistent with the medical records and charts maintained in the ordinary course of business by the Defendant, such averments are admitted. To the extent the averments contained in ¶10 of Plaintiffs' Complaint are inconsistent with the medical records and charts as maintained in the regular course of business, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 11. The averments contained in ¶11 of Plaintiffs' Complaint 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 ¶11 of Plaintiffs' Complaint contain excerpts from the nursing notes maintained in the medical chart of Claire Cressler as maintained in the ordinary course of business by Defendant, such averments are admitted to the extent they are accurately reproduced in ¶11 of Plaintiffs' Complaint, but are specifically denied to the extent they are taken out of context and do not provide clear and concise information relative to the decedent's overall condition. 12. Admitted in part, denied in part. To the extent the averments contained in 112 are consistent with the medical records and charts of Claire Cressler as maintained in the ordinary course of business of the Defendant facility, such averments are admitted. To the extent the averments contained in ¶12 of Plaintiffs' Complaint, and any inferences to be garnered therefrom, are inconsistent with the medical records and charts of the decedent as maintained in the ordinary course of business by the Defendant facility, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 13. Admitted in part, denied in part. To the extent the averments contained in ¶13 are consistent with the medical records and charts of Claire Cressler as maintained in the ordinary course of business of the Defendant facility, such averments are admitted. To the extent the averments contained in 113 of Plaintiffs' Complaint, and any inferences to be garnered therefrom, are inconsistent with the medical records and charts of the decedent as maintained in the ordinary course of business by the Defendant facility, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 14. Admitted in part, denied in part. To the extent the averments contained in ¶14 are consistent with the medical records and charts of Claire Cressler as maintained in the ordinary course of business of the Defendant facility, such averments are admitted. To the extent the averments contained in ¶14 of Plaintiffs' Complaint, and any inferences to be garnered therefrom, are inconsistent with the medical records and charts of the decedent as maintained in the ordinary course of business by the Defendant facility, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 15. Admitted in part, denied in part. To the extent the averments contained in ¶15 are consistent with the medical records and charts of Claim Cressler as maintained in the ordinary course of business of the Defendant facility, such averments are admitted. To the extent the averments contained in ¶15 of Plaintiffs' Complaint, and any inferences to be garnered therefrom, are inconsistent with the medical records and charts of the decedent as maintained in the ordinary course of business by the Defendant facility, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 16. Admitted in part, denied in part. To the extent the averments contained in ¶126are consistent with the medical records and charts of Claire Cressler as maintained in the ordinary course of business of the Defendant facility, such averments are admitted. To the extent the averments contained in ¶16 of Plaintiffs' Complaint, and any inferences to be garnered therefrom, are inconsistent with the medical records and charts of the decedent as maintained in the ordinary course of business by the Defendant facility, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 17. Admitted in part, denied in part. To the extent the averments contained in ¶17 are consistent with the medical records and charts of Claire Cressler as maintained in the ordinary course of business of the Defendant facility, such averments are admitted. To the extent the averments contained in 117 of Plaintiffs' Complaint, and any inferences to be garnered therefrom, are inconsistent with the medical records and charts of the decedent as maintained in the ordinary course of business by the Defendant facility, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 18. Admitted in part, denied in part. To the extent the averments contained in ¶18 are consistent with the medical records and charts of Claire Cressler as maintained in the ordinary course of business of Carlisle Medical Center, such averments are admitted. To the extent the averments contained in ¶18 of Plaintiffs' Complaint, and any inferences to be garnered therefrom, are inconsistent with the medical records and charts of the decedent as maintained in the ordinary course of business by Carlisle Medical Center, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 19. The averments contained in ¶19 of Plaintiffs' Complaint represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in 119 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that any actions and/or omissions which are alleged to have occurred at The Shippensburg Healthcare facility on October 22, 2002 had arty causal relation to the ultimate expiration of the decedent on October 25, 2002. 20. Admitted in part, denied in part. To the extent the averments contained in ¶20 of Plaintiffs' Complaint are consistent with the survey results of the Pennsylvania Department of Health, such averments are admitted. To the extent the averments set forth in ¶20 of Plaintiffs' Complaint are inconsistent with the survey results of the Pennsylvania Department of Health Investigation and to the extent the averments contained in ¶20 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are specifically denied and strict proof thereo is demanded at the time of trial. By way of further response, to the extent the averments contained in ¶20 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are not relevant to Plaintiffs' sustaining their burden of proof in establishing a prima facie case of negligence against Defendant facility relative to the care provided to decedent, Claire Cressler, and as such, are specifically denied. 21. The averments contained in ¶21 of Plaintiffs' Complaint represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in ¶21 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. COUNT I - NEGLIGENCE 22. Paragraphs 1 through 21 are incorporate herein by reference as if more fully set forth at length. 23. The averments contained in ¶23 of Plaintiffs' Complaint represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in ¶23 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 24(a-j). The averments contained in ¶24, and all subparagraphs contained thereunder, of Plaintiffs' Complaint represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in 124, and all subparagraphs contained thereunder, of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial, 25(a-d). The averments contained in ¶25, and all subparagraphs contained thereunder, of Plaintiffs' Complaint represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in ¶25, and all subparagraphs contained thereunder, of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 26. The averments contained in ¶26 of Plaintiffs' Complaint represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in %6 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 27. The averments contained in ¶27 of Plaintiffs' Complaint represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in ¶27 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiffs' Complaint and enter judgment in favor of Defendant and against Plaintiffs and further grant Defendant all such further relief as is proper and just. COUNT II - PUNITIVE DAMAGES 28. Paragraphs 1 through 27 are incorporate herein by reference as if more fully set forth at length. 29. The averments contained in ¶29 of Plaintiffs' Complaint represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in ¶29 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 30. Admitted in part, denied in part. To the extent the averments contained in ¶30 of Plaintiffs' Complaint are consistent with the survey results of the Pennsylvania Department of Health, such averments are admitted. To the extent the averments set forth in ¶30 of Plaintiffs' Complaint are inconsistent with the surrey results of the Pennsylvania Department of Health Investigation and to the extent the averments contained in ¶30 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are specifically denied and strict proof thereo is demanded at the time of trial. By way of further response, to the extent the averments contained in ¶30 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are not relevant and to Plaintiffs' sustaining their burden of proof in establishing a prima facie case of negligence against Defendant facility relative to the care provided to decedent, Claire Cressler, and as such, are specifically denied. 31. Admitted in part, denied in part. To the extent the averments contained in 131 of Plaintiffs' Complaint are consistent with the survey results of the Pennsylvania Department of Health, such averments are admitted. To the extent the averments set forth in ¶31 of Plaintiffs' Complaint are inconsistent with the survey results of the Pennsylvania Department of Health Investigation and to the extent the averments contained in ¶31 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are specifically denied and strict proof thereo is demanded at the time of trial. By way of further response, to the extent the averments contained in 131 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are not relevant and to Plaintiffs' sustaining their burden of proof in establishing a prima facie case of negligence against Defendant facility relative to the care provided to decedent, Claire Cressler, and as such, are specifically denied. By way of further response to the extent the averments contained in ¶31 represent conclusions of law, no response is herein provided. If it is later judicially determined that a response is so required, the averments contained in ¶31 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 32. Admitted in part, denied in part. To the extent the averments contained in 132 of Plaintiffs' Complaint are consistent with the survey results of the Pennsylvania Department of Health, such averments are admitted. To the extent the averments set forth in ¶32 of Plaintiffs' Complaint are inconsistent with the survey results of the Pennsylvania Department of Health Investigation and to the extent the averments contained in ¶32 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are specifically denied and strict proof thereo is demanded at the time of trial. By way of further response, to the extent the averments contained in ¶32 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are not relevant and to Plai'ntiffs' sustaining their burden of proof in establishing a prima facie case of negligence against Defendant facility relative to the care provided to decedent, Claire Cressler, and as such, are specifically denied. 33. Admitted in part, denied in part. To the extent the averments contained in ¶33 of Plaintiffs' Complaint are consistent with the survey results of the Pennsylvania Department of Health, such averments are admitted. To the extent the averments set forth in ¶33 of Plaintiffs' Complaint are inconsistent with the survey results of the Pennsylvania Department of Health Investigation and to the extent the averments contained in ¶33 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are specifically denied and strict proof thereo is demanded at the time of trial. By way of further response, to the extent the averments contained in ¶33 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are not relevant and to Plaintiffs' sustaining their burden of proof in establishing a prima facie case of negligence against Defendant facility relative to the care provided to decedent, Claire Cressler, and as such, are specifically denied. 34. Admitted in part, denied in part. To the extent the averments contained in ¶34 of Plaintiffs' Complaint are consistent with the survey results of the Pennsylvania Department of Health, such averments are admitted. To the extent the averments set forth in ¶34 of Plaintiffs' Complaint are inconsistent with the survey results of the Pennsylvania Department of Health Investigation and to the extent the averments contained in ¶34 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are specifically denied and strict proof thereo is demanded at the time of trial. By way of further response, to the extent the averments contained in ¶34 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are not relevant and to Plaintiffs' sustaining their burden of proof in establishing a prima facie case of negligence against Defendant facility relative to the care provided to decedent, Claire Cressler, and as such, are specifically denied. 35. Admitted in part, denied in part. To the extent the averments contained in 135 of Plaintiffs' Complaint are consistent with the survey results of the Pennsylvania Department of Health, such averments are admitted. To the extent the averments set forth in ¶35 of Plaintiffs' Complaint are inconsistent with the survey results of the Pennsylvania Department of Health Investigation and to the extent the averments contained in ¶35 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are specifically denied and strict proof thereo is demanded at the time of trial. By way of further response, to the extent the averments contained in ¶35 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are not relevant and to Plaintiffs' sustaining their burden of proof in establishing a prima facie case of negligence against Defendant facility relative to the care provided to decedent, Claire Cressler, and as such, are specifically denied. 36. Admitted in part, denied in part. To the extent the averments contained in ¶36 of Plaintiffs' Complaint are consistent with the survey results of the Pennsylvania Department of Health, such averments are admitted. To the extent the averments set forth in ¶36 of Plaintiffs' Complaint are inconsistent with the survey results of the Pennsylvania Department of Health Investigation and to the extent the averments contained in 136 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are specifically denied and strict proof thereo is demanded at the time of trial. By way of further response, to the extent the averments contained in ¶36 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are not relevant and to Plaintiffs' sustaining their burden of proof in establishing a prima facie case of negligence against Defendant facility relative to the care provided to decedent, Claire Cressler, and as such, are specifically denied. 37. Admitted in part, denied in part. To the extent the averments contained in ¶37 of Plaintiffs' Complaint are consistent with the survey results of the Pennsylvania Department of Health, such averments are admitted. To the extent the averments set forth in ¶37 of Plaintiffs' Complaint are inconsistent with the survey results of the Pennsylvania Department of Health Investigation and to the extent the averments contained in ¶37 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are specifically denied and strict proof thereo is demanded at the time of trial. By way of further response, to the extent the averments contained in ¶37 of Plaintiffs' Complaint pertain to residents other than the decedent, Claire Cressler, such averments are not relevant and to Plaintiffs' sustaining their burden of proof in establishing a prima facie case of negligence against Defendant facility relative to the care provided to decedent, Claire Cressler, and as such, are specifically denied. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiffs' Complaint and enter judgment in favor of Defendant and against Plaintiffs and further grant Defendant all such further relief as is proper and just. COUNT III - VICARIOUS LIABILITY 38. Paragraphs 1 through 37 are incorporated herein by reference as if more fully set forth at length. 39. The averments contained in ¶39 of Plaintiffs' Complaint represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in 139 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 40. The averments contained in ¶40 of Plaintiffs' Complaint represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in 140 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 41. The averments contained in ¶41 of Plaintiffs' Complaint represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in 141 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiffs' Complaint and enter judgment in favor of Defendant and against Plaintiffs and further grant Defendant all such further relief as is proper and just. COUNT IV - WRONGFUL DEATH 42. Paragraphs 1 through 41 are incorporated herein by reference as if more fully set forth at length. 43. Defendant is without sufficient information to admit or deny the averments contained in ¶43 of Plaintiffs' Complaint and as such, strict proof thereof is demanded at the time of trial. 44. Defendant is without sufficient information to admit or deny the averments contained in ¶44 of Plaintiffs' Complaint and as such, strict proof thereof is demanded at the time of trial. By way of further response, to the extent that the averments contained in ¶44 represent a conclusion of law as they pertain to the authority of Plaintiff, Ronald L. Cressler, to bring the instant action, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 45. Admitted. 46. Defendant is without sufficient information to admit or deny the averments contained in T46 of Plaintiffs' Complaint and as such, strict proof thereof is demanded at the time of trial. By way of further response, to the extent that the averments contained in T446represent a conclusion of law as they pertain to the authority of Plaintiff, Ronald L. Cressler, to bring the instant action, such averments are specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiffs' Complaint and enter judgment in favor of Defendant and against Plaintiffs and further grant Defendant all such further relief as is proper and just. COUNT V - SURVIVAL ACTION 47. Paragraphs 1 through 46 are incorporate herein by reference as if more fully set forth at length. 48. Defendant is without sufficient information to admit or deny the averments contained in 148 of Plaintiffs' Complaint and as such, strict proof thereof is demanded at the time of trial. By way of further response, to the extent that the averments contained in 148 represent a conclusion of law as they pertain to the authority of Plaintiff, Ronald L. Cressler, to bring the instant action, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 49. The averments contained in 149 of Plaintiffs' Complaint represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in 149 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiffs' Complaint and enter judgment in favor of Defendant and against Plaintiffs and further grant Defendant all such further relief as is proper and just. NEW MATTER 50. Paragraphs 1 through 49 are incorporated herein as if more fully set forth at length. 52. The recovery of medical expenses paid by any third-party, including any insurance carrier, is barred pursuant to Section 605 of the Health Care Service Malpractice Act of 1975, as amended (Act of October 15, 1975; P.R. 390, No: 111(40 Pa.S. §1301.605)). 53. Plaintiffs' claims are barred by the applicable Statute of Limitations. 54. Plaintiffs' 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 subsequent discovery may reveal, with such being subject to proof at the time of trial. 55. Plaintiffs' injury and losses, if any, were caused in whole or in part by persons not a party to the within action. To the extent subsequent discovery may reveal, with such being subject to proof at the time of trial. 56. Plaintiffs' 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. To the extent subsequent discovery may reveal, with such being subject to proof at the time of trial. 57. 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. 58. Any acts and/or omissions of Defendant were and are not the proximate cause or a substantial factor giving rise to Plaintiffs' injuries and/or darnages. To the extent subsequent discovery may reveal, with such being subject to proof at the time of trial. 59. To the extent that Defendant elected a treatment modality which is recognized as proper but may differ from another appropriate treatment modality, Defendant invokes the two schools of thought doctrine. 60. Plaintiff may have entered into a Release Agreement with other individuals or entities which has the effect of discharging any and all liability of Defendant. 61. Plaintiffs have failed to state a claim upon which relief can be granted. 62. All claims and causes of action pleaded against Defendant are barred by Plaintiffs' knowing and voluntary informed consent to the care in question. 63. Plaintiffs' claims are barred by the doctrine:; of Comparative or Contributory negligence. To the extent subsequent discovery may reveal, with such being subject to proof at the time of trial. Respectfully submitted, McKissock & Hoffman, P.C. By. ??1 Edwin A.D. Schwf squire I.D. No.: 75902 2040 Linglestown Road Suite 302 Harrisburg, PA 1;7110 (717) 540-3400 Dated: a?/ -1Zwe o.? Attorneys for Defendant, Perini Services/Southampton Manor Limited Partnership, t/d/b/a The Shippensburg Healthcare Center VERIFICATION I, Larry Cottle, hereby verify that the statements in Defendant's Answer and New Matter are 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. v y Coti A m istra or he Shippensburg Healthcare Center 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: Michael Navitsky, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Road Suite 303 Harrisburg, PA 17110 (Counsel for Plaintif ) I.D. No.. 75902 2040 Lingllestown Road Suite 302 Harrisburg, PA 17110 McKissock & Hoffman, P.C. By. Edwin A. D. Schwartz, squire Date: Z/ T+ a? Attorneys for Defendant, Perini Services/Southampton Manor Limited Partnership, Ud/b/a The Shippensburg Healthcare Center N 7 ? ?' '?s?4i'1 ., .-1 c,.- "? -n CJ ?N .J _3 1 .. ?1n1 ., ..a n.] ':? ?`J RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER, Deceased, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. 04-3572 Civil Term V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER 50. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. 51. Defendant's New Matter contained no paragraph 51. 52. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Medical expenses are recoverable in this case. 53. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Plaintiff's claims were timely filed. 54. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Plaintiff's injuries and losses were caused by Defendant's negligence as set forth in Pla.intiff's Complaint. 55. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Plaintiffs injuries and losses were caused by Defendant's negligence as set forth in Plaintiff's Complaint. 56. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Plaintiff's injuries and losses were caused by Defendant's negligence as set forth in Plaintiff's Complaint. 57. Denied. Defendant rendered care to decedent that was inappropriate and negligent and below the standards of care applicable to her care and in violation of all statutes, rules, regulations, protocols and/or procedures applicable to her care as set forth in Plaintiff's Complaint. 58. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Defendant's negligence caused Plaintiff's injuries and damages. 59. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. The "Two Schools of Thought Doctrine" does not apply to this case. 60. Denied. Plaintiff entered into no release agreement. 61. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Plaintiff has stated a claim upon which relief can be granted. 62. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Plaintiff did not knowingly and voluntarily consent to the negligent medical care: that caused her death. Plaintiff once again reiterates the allegations as set forth in her Complaint. 2 63. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Plaintiff was not negligent in any fashion and the doctrines of comparative or contributory negligence do not apply to this case. Respectfully submitted, NAVITSV, OLSON & WISWSKI LLP Miehkl J.1Va ' sk , Esquire I.D. No.5E803 2040 Linglestown Road, Suite Harrisburg, PA 17110 717/541-9205 Counsel for Plaintiff Date: July 6, 2005 3 COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF DAUPHIN I, MICHAEL J. NAVITSKY, being duly sworn according to law, depose and say that I am counsel for Plaintiff, Ronald L. Cressler, and I am authorized to make this affidavit on behalf of said Plaintiff, and verify that the facts set forth in the foregoing Answer to New Matter are true and correct to the best of my knowledge, information and belief, or are true and correct based on the information obtained from Plaintiff. Sworn and subscribed before me this jowl day of 71v l 2005. h'? y eC l Notary Public COMMONW TH F PENNSYLVANIA Lola E. SNI ??« mis w;w; 26county , 2009 CERTIFICATE OF SERVICE I, Lois E. Stauffer, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do hereby certify that I am this 6`h day of July, 2005 serving a true and correct copy of Plaintiff's Reply to Defendant's New Matter upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edwin A. Schwartz, Esquire McKissock & Hoffman 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Counsel for Defendant Lois E. Stauffer (? h) L am.. r CD r C.> rn L? :F. "K 777777777, ?,-- I 1 ORISC` 7?1 RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER, Deceased, Plaintiffs V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. 04-3572 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S PETITION FOR COURT APPROVAL OF DECEDENT'S COMPROMISED SETTLEMENT AND DISTRIBUTION OF PROCEEDS PURSUANT TO PA. R.C.P. 2206 Petitioner, Ronald L. Cressler, Individually and as Administrator of the Estate of Claire D. Cressler, by and through his attorneys, Navitsky, Olson & Wisneski LLP, hereby avers as follows: 1. On or about October 25, 2002, Claire D. Cressler died from what Plaintiffs believe and contend was a choking incident that occurred at Defendant's nursing home on October 22, 2002. The incident lead to respiratory failure and ultimately acute myocardial infarction. A copy of Ms. Cressler's Death Certificate is attached hereto as Exhibit A. 2. Petitioner is the grandson of the Decedent, Claire D. Cressler. 3. Petitioner, Ronald L. Cressler, is the Administrator of the Estate of Claire D. Cressler by virtue of Letters of Administration duly granted by the Register of Wills of York County, Pennsylvania on or about November 25, 2003. A copy of the Short Certificate is attached hereto as Exhibit B. 4. Claire D. Cressler died in testate. A copy of her Will is attached hereto as Exhibit C. 5. At the time of her death, Claire D. Cressler was survived by her only son, Ronald E. Cressler, who then died on October 1, 2003. A copy of his Short Certificate and Will are attached hereto as Exhibit D and E. 6. Therefore, the beneficiaries of Decedent's Estate consists of her three adult grandchildren: Name Ronald L. Cressler Debbie A. Chestnut Ray E. Cressler Relationship Grandson Granddaughter Grandson 7. Ronald L. Cressler, as Administrator of the Estate of Claire D. Cressler, individually and in his own right, retained undersigned counsel to investigate the aforementioned accident at Defendant's nursing home. After thoroughly investigating the facts of the case and having all of the medical records compiled, analyzed, and reviewed by medical experts, and after obtaining appropriate medical expert reports, suit was initiated against Defendant three years ago in 2004. At this juncture of the litigation, Defendants, while disputing liability for the death of Decedent and the damages incurred, has offered Plaintiff Eighty-five Thousand ($85,000.00) Dollars in full and final settlement of the disputed claim. A copy of the proposed Release is attached hereto as Exhibit F. 8. In view of the disputed nature of the claim, your Petitioner considers the offer to be a fair, just, and equitable settlement and to be in the best interest of the Estate and the persons entitled by law to recover damages for the death of the Decedent. 9. Your Petitioner retained the law firm of Navitsky, Olson & Wisneski LLP to prosecute this action and entered into a contingency fee agreement with said attorneys for their professional services, plus expenses. A copy of the Power of Attorney and Fee Agreement is attached hereto as Exhibit G. 10. Pursuant to the Power of Attorney and Fee Agreement, Navitsky, Olson & Wisneski LLP is entitled to a fee of 35% of the gross settlement, plus expenses. 11. Navitsky, Olson & Wisneski LLP, on behalf of the Estate of Claire D. Cressler, spent considerable time and effort in the investigation and preparation of the case. Expenses in this matter total $1,675.13. 12. A Medicare lien in the amount of $16,220.19 has been asserted and is subject to compromise. For example, the lien amount will be reduced by 35%, as this is the amount to be paid by your Petitioner for attorney fees. 13. There are sufficient assets in Decedent's Estate to satisfy any other outstanding debts, of which the only known debt would be the subrogation lien of Medicare. 14. By reason of the death of Decedent, one cause of action exists against the Defendants in favor of Decedents' grandchild; namely, a Survival Claim. 15. Petitioner's counsel has received approval from the Department of Revenue to allocate all of the settlement proceeds to the survival action. A letter from the Pennsylvania Department of Revenue is attached hereto as Exhibit H. 16. Your Petitioner believes, in accordance with the terms of the Power of Attorney and Fee Agreement and the Department of Revenue's acknowledgement letter, a fair, just and equitable distribution of all settlement proceeds would be as follows: a. Estate of Claire D. Cressler's Survival Action Allocation (100% of net proceeds of $43,031.75) $43,031.75 b. Navitsky, Olson & Wisneski LLP Legal Fees (35% of settlement proceeds) $29,750.00 i f c. Medicare lien $16,220.19 reduced by 35% ($5,677.07) $10,543.12 d. Navitsky, Olson & Wisneski LLP expenses $ 1,675.13 TOTAL $85,000.00 17. The net settlement proceeds shall be divided equally among the beneficiaries of Decedent's Estate. 18. An Affidavit signed by the Petitioner requesting Court Approval in accordance with the terms of this Petition is attached hereto as Exhibit I. WHEREFORE, your Petitioner prays that this Honorable Court enter an Order approving said compromise settlement, directing distribution of proceeds in accordance with the terms of the Petition and authorizing the Petitioner to sign a Release and to mark the above captioned matter settled and discontinued. Respectfully submitted, NAVITSKY, OLSO & WISNESKI LLP III A / 1 et Mickael J vitsky, uire I.D. No. 03 2040 Linglestown Road, uite 303 Harrisburg, PA 17110 7171541-9205 Counsel for Petitioner Date: au G7 CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do hereby certify that I am this a I day of 2007 serving a true and correct copy of Petitioner for Approval of Compromise Settlement upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edwin A. Schwartz, Esquire McKissock & Hoffinan 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Counsel for Defendant ^ ?W Jessie K. Walsh i of T his is to cer*i.=Y' iroa r atien here given is correctly copied from an original ?Prtificate of death duly filed with[ me as Local Registrar. The original certificat, 11 he forwarded to the State Vital Records ce for permanent filing. WARNING: It is illegal to duplicate this copy by photostat or photograph. Fee for this certificate, $2.00 P 8711088 No. %..2w OF Pf 41,11 le Local Registrar 1 ` qq =99jMENT OE??P?,. C' Z /i 2iQ1?2- 'i Date • COMMOW*VALTNW PEIMf311WM1 m e.OM MTUM OF HiALTH VITAL ftCOMS CERTIFICATE OF DEATH IM. MOM ur % MCVMm ONE OF OEAtN awe.. 0.. s, To. till, -- 07- '742M .4 10-25-2002 Mlaa.r OAN VIM t Ub"M .aww.: Gli Y..n y??« 4 3R «+ra. -.i .. enaYw _._ w 10-. 4- 9 Fit' ; ?] uM9.r.n?. G ow ? 92 ar. C3 s.rr C3 aim ? • w. w .Ii..a.M•F11 .Aar.a.MMwlMFM. FFMe wa 1, 3F. ?lEIK yFOyaMw N Canis ... ...:. . , na1.. - ;-:.,. ShM.- M I . 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C.T.A. in common form were granted by the Register of said County, on the estate of CLAIRED CRESSLER late of SHIPPENSBURG TOWNSHIP (first, Midd/81 Lestl in said county, deceased, to RONALD L CRESSLER !First, Middle, Lestl and that same has not since been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said office at CARLISLE, PENNSYLVANIA, this 3rd day of July Two Thousand and Seven. File No. 2003-00568 PA File No. 21- 03- 0568 Date of Death 1012512002 S . S . # 183-0-'-8344 - NOT VALID WITHOUT ORIGINAL SIGNATURE AND IMPRESSED SEAL as LAST WILL AND TESTAMENT I, CLAIRE D. CRESSLER, of 13 Koser Lane, Shippensburg, Southampton Township, Cumberland County, Pennsylvania, being of sound mind, memory and disposition, do hereby make, publish and declare this my Last Will and Testament, hereby revoking and making void all wills by me at any time heretofore made. FIRST. I order and direct the payment of all my just debts and funeral expenses as soon as may be convenient after my decease: SECOND. I give and bequeath my marble top stand to my son, RONALD E. CRESSLER, with the request that it shall remain in the Cressler family and be passed down to the oldest living male of each generation who bears the Cressler family name. In the event the said Ronald E. Cressler should predecease me, I then give and bequeath said marble top stand to my grandson, Ronald L. Cressler, on the same terms and conditions as hereinbefore set forth. THIRD. I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever situate, to my son, RONALD E. CRESSLER. In the event the said Ronald E. Cressler should.predecease me or fail to survive me by thirty (30) days, I then give, devise and bequeath all the rest, residue and remainder of my estate, in equal shares, to my three grandchildren, RONALD L. CRESSLER, DEBBIE A. CHESTNUT, and RAY E. CRESSLER, on a per stirpes distribution basis. FOURTH. I direct that my personal representatives shall not be required to give bond for the faithful performance of their duties in any jurisdiction. f},l (SEAL) MARK. WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA. 17257 r r ILA WITNESS WHEREOF, I, CLAIRE D. CRESSLER, have hereunto set my hand and seal to this my Last Will and Testament, written on two pages, the first page signed for identification only, this 27th day of December, 1993. l r t _cSEAL) This instrument was by the-Testatrix, CLAIRE D. CRESSLER, on the date hereof, signed, published and declared by her to be her Last Will and Testament, in our presence, who at her request and in her presence and in the presence of each other, we believing her ..to be of. sound and disposing mind and memory, have hereunto subscribed our names as witnesses. r -2- MARK, WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA. 17257 I / COMMONWEALTH OF PENNSYLVANIA : SS. COUNTY OF CUMBERLAND I, CLAIRE D. CRESSLER, the Testatrix whose name is signed to the foregoing instrument, having been duly qualified according to law, do hereby acknowledge that I signed and executed the instrument as my Last Will; that I signed it willingly; and that I signed it as my free and voluntary act for the purposes therein expressed. Sworn or affirmed to and acknowledged before me by CLAIRE D. CRESSLER, the Testatrix, this 2, day of AkQot jam-- 19 NOTARIAL SrEA!- Jwy A. W19te, NaMri R;bPP. ape eberg, PA Cumbvrlsnd County My Commission Ex- ins j;:1y 31, 1914 MARK, WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA. 17257 COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND , We,. gcw?? and the witnesses whose names are signed to the foreg ng instrument, being duly qualified according to law, do depose and say that we were present and saw CLAIRE D. CRESSLER, Testatrix, sign and execute the instrument as her Last Will; that she signed willingly and that she executed it as her free and voluntary act for the purposes therein expressed; that each of us in the hearing and sight of the Testatrix, signed the will as witnesses; and that to the best of our knowledge the Testatrix was at the time eighteen (18) or more years of age and of sound mind and under no constraint or undue influence. Sworn or aff e. to ands scribed before me. by and , witnesses, is -7 ay of 1993. A t IgOTASIAL SEAL Jerry A. we s, I.OWY Public Mippensberg. PA Curnbe:t Id Courtly my corumisslon EXPT93 July 31, 1994 MARK. WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA. 17257 ??' ?xHi??i? IJ I STATE OF PENNSYLVANIA SHORT CERTIFICATE COUNTY OF CUMBERLAND I, GLENDA FARNER STRASBAUGH Register for the Probate of Wills and Granting Letters of Administration in and for CUMBERLAND County, do hereby certify that on the 16th day of October, Two Thousand and Three Letters TESTAMENTARY in common form were granted by the Register of said county, on the estate of RONALD E CRESSLER late of SOUTHAMPTON TOWNSHIP (Fftf, Midge, Last) in said county, deceased, to RONALD L CRESSLER (First M kW, Last) and that same has not since been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said office at CARLISLE, PENNSYLVANIA, this 11th day of July Two Thousand and Seven. File No. PA File No. Date of Death S.S. # 2003- 00844 21- 03- 0844 10/01/2003 194-26-6870 NOT VALID WITHOUT ORIGINAL SIGNATURE AND IMPRESSED SEAL '', `.. ?x???? LAST WILL AND TESTAMENT I, RONALD E. CRESSLER, of 11 Koser Lane, Shippensburg, Southampton Township, Shippensburg, Cumberland County, Pennsylvania, 17257, being of sound mind, memory and disposition, do hereby make, publish and declare this my Last Will and Testament, hereby revoking and making void all wills by me at any time heretofore made. FIRST. I order and direct the payment of all my just debts and funeral expenses as soon as may be convenient after my decease. SECOND. I give and devise my real estate situate at 13 Koser Lane, Shippensburg, Southampton Township, Cumberland County, Pennsylvania, to my three children: RONALD L. CRESSLER, DEBBIE A. CHESTNUT, and RAY E. CRESSLER, subject to a life estate interest in CLAIRE D. CRESSLER, for the length and duration of her life. The said Claire D. Cressler shall be required to bear the cost of real estate taxes assessed against said real estate, the cost of homeowner's hazard insurance, and the cost of any and all repairs to said dwelling house incurred during her life tenancy. THIRD. I give and bequeath my mother's marble top stand to my son, RONALD L. M CRESSLER. In the event the said Ronald L. Cressler should' predecease me, I then give and bequeath said marble top stand to the oldest living male issue of Ronald L. Cressler who bears the Cressler Family name, with the request that it shall remain in the Cressler Family and be passed down to the oldest living male of each generation who bears the Cressler Family name. In the event that my son, Ronald L. Cressler, should predecease me and die without male issue who bear the Cressler Family name and who survive me, I then give and bequeath said stand to my son, RAY E. CRESSLER, on jT 9 Z/ I C?l MARK, WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA. 17257 I the same terms and conditions as hereinbef ore set forth. It is my intent and my request that the marble top starid shall stay in the Cressler Family and be passed down to the oldest living male of each generation who bears the Cressler Family name. FOURTH. I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever situate, in equal shares, to my three children, RONALD L. CREP..SLER, DEBBIE A: CHESTNUT, AND RAY E. CRESSLER, on a per stirpes distribution basis.. FIFTH. I nominate, constitute and appoint my son, RONALD L. CRESSLER, to be the Executor of this my Last Will and Testament; if he be unable to fulfill the duties of Executor, I then nominate, constitute and appoint my daughter, DEBBIE A. CHESTNUT, to be the Executrix of this my Last Will and Testament. In the further event that neither the said Ronald L. Cressler nor the said Debbie A. Chestnut be able to fulfill the duties of Executor, I then nominate, constitute and appoint my son, RAY E. CRESSLER, to be the Executor of this my Last Will and Testament. SIXTH. I direct that my personal representatives shall not be required to give bond for the faithful performance of their duties in any jurisdiction. IN WITNESS WHEREOF, I, RONALD E. CRESSLER, have hereunto set my hand and seal to this my Last Will and Testament, written on two pages, the first page signed for identification only, this ) 7 day of 1993. 42ea? & " J (SEAL) -2- MARK, WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA. 17297 This instrument was by the Testator,-RONALD E.. CRESSLER, on the date hereof, signed, published and declared by him to be his Last Will and Testament, in our presence, who at his request and in his presence and in the presence of each other, we believing him to be of sound and disposing mind and memory, have hereunto subscribed our names as witnesses. COMMONWEALTH OF PENNSYLVANIA . SS. COUNTY OF CUMBERLAND I, RONALD E. CRESSLER, the Testator whose name is signed to the foregoing instrument,- having been duly qualified according to law, do hereby acknowledge that I I signed and executed the instrument as my Last Will; that I signed it willingly; and that I signed it as my free and voluntary act for the purposes therein expressed. /?K L- L "s Sworn or affirmed to and acknowledged before m by RONALD E. C SSLER, the Testator, this? #day of 93. NOTARIAL SEAL Jerry A. WOW10, Notary Public Shippensbun, My Co missim E putn?bsrlan3 00unty 1994 MARK, WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSHURG, PA. 17257 1 1 COMCi WEALTH OF PENNSYLVANIA y _ // L T _ , We, and 'UNA the witnesses whose names are signed to the foregoing in trument, being duly qualified according to law, do depose and say that we were present and saw RONALD E. CRESSLER, Testator, sign and execute the instrument as his Last Will; that he signed willingly and that he executed it as his free and voluntary act for the purposes therein expressed; that each of us in the hearing and sight of the Testator signed the will as witnesses; and that to the best of our knowledge the Testator was at the time eighteen (18) or more years of age and of sound mind and under no constraint or undue influence. S D.A 0 . a- - jW! ?; -, Sworn or 4f rme to an s scribed before mg y? Q $Il4X - y .. . witnesses, ins` , ' day of 1993. Jerry A. Weigle, Notary Public ghippemburg, PA Cumberland CwnV W Cgmmissloc? Expires July 31, M4 MARK, WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA. 17257 s i? F,X A )-2, L ? RELEASE AND SETTLEMENT AGREEMENT The undersigned, RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER, by and through his counsel, Michael Navitsky, Esquire (hereinafter referred to as the "Releasor"), declares that, for and in consideration of EIGHTY FIVE THOUSAND AND NO/100 DOLLARS ($85,040.00) to be paid on behalf of PERIM SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER and CNA INSURANCE COMPANIES, the receipt of which is hereby acknowledged for himself, his heirs, administrators, successors and assigns, does forever release and discharge, PERIM SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER and CNA INSURANCE COMPANIES, their heirs, insurance carriers, predecessors, successors and assigns, and all other persons, firms, attorneys, corporations, associations, partnerships, affiliates, subsidiaries, employees, vendors and entities whatsoever, whether named above or not (hereinafter collectively referred to as "Releasees"), of and from any and all actions, causes of actions, claims, demands, damages, costs, loss of services or use, expenses and compensation of whatever kind or nature on account of or in any way growing out of any and all property damage and bodily injuries and consequences thereof, including, but not limited to, medical bills and expenses and lost wages, and for any damages which may develop at some time in the future, and for any and all unforeseen developments arising from known or unknown injuries or property damage, resulting to or resulting from all injuries alleged and in particular all claims which were the subject matter of the lawsuit entitled, Ronald L. Cressler. Ndividually And As Administrator Of The Estate Of Claire D Cressler vs. Perini Services/Southampton Manor Limited Partnership, T/DB/A The Shigpensburs Healthcare Center, as filed in the Court of Common Pleas for Cumberland County, Pennsylvania and docketed to number 04-03572, which shall be dismissed with prejudice in accordance with the Rules of Court. The undersigned Releasor hereby declares and represents that all claims which have or may be sustained, including conditions, which were or may have been permanent and that recovery therefrom was uncertain and indefinite are released, and that in making this Release it is understood and agreed that the undersigned relied wholly upon his independent judgment, belief, 1 and knowledge of the nature, extent, effect and duration of said injuries, possible injuries claims and liability therefore, and that this Release is made without reliance upon any statement or representation by the Releasees or their representatives, the making of any such statements or representations being specifically denied. It is understood and agreed that the undersigned and their counsel will remain solely and exclusively responsible to satisfy any outstanding liens and will further indemnify and hold harmless all Releasees from any and all liability arising from any subrogation claims and/or liens under any compensation, medical payments, or other economic damages due or claimed to be due under the law, state or federal regulation or contract including, but not limited to, payments made by any Federal or State agency or entity or any private or public health or welfare insurance. It is further understood and agreed that that the undersigned will undertake any and all action necessary to obtain approval of this settlement by the Pennsylvania Department of Revenue and that the undersigned shall be responsible for the payment of any and all sums due to any taxing authority. It is expressly understood and agreed that this Release and Settlement Agreement is intended to apply to and does apply to not only all now known injuries, losses and damages, but further operates to release, acquit and forever discharge any and all claims or actions for any further injuries, losses and damages which arise from or are related to, the occurrence set forth in the lawsuit noted above, even if said injuries, losses, and damages are unknown at this time and develop in the future. It is understood and agreed that this settlement is a compromise of a doubtful and disputed claim, and that the payment made is not to be construed as an admission of liability on the part of the parties hereby released, and that said Releasees deny any and all liability and intend merely to avoid litigation and buy their peace. Except to the extent required by applicable law, court order or subpoena and disclosure to legal tax advisors, Releasor further understands and agrees that neither the Releasor nor his attorneys, agents, servants nor other representatives or individuals will in any way publicize or disclose or cause to be publicized or disclosed in any individual, news or communications media, including but not limited to, legal publications, newspapers, magazines, radio and television, the facts or terms and conditions of this settlement or of the claim from which the settlement arises. All 2 parties to this agreement expressly agree to decline comment on any aspect of this settlement, or the claim for which the settlement arises, to any and all individuals and/or members of the news media and to refrain from engaging any individual or the news media in any such comment. Releasor further understands and agrees that neither the Releasor nor his attorneys, agents representatives or other individuals will initiate, cause to be initiated or participate in any action legal, administrative, disciplinary or otherwise which is or may be construed as adverse to the Releasees resulting from or relating to the aforementioned lawsuit. The spirit and intention of this paragraph is to maintain confidentiality regarding the settlement itself and of the claim from which the settlement arises. This paragraph is intended to become part of the consideration flowing to both Releasor and Releasees and is integral to the settlement of Releasor's claim(s). It is further understood and agreed that this is the complete Release and Settlement Agreement, and that there are no written or oral understandings, or agreements, directly or indirectly connected with this Release and Settlement that are not incorporated herein. If it is determined that Court approval of this settlement is required, it is further understood that the undersigned will file a Petition for Court Approval of this Settlement Agreement and that this settlement and payment hereunder is expressly contingent on that court approval. It is agreed that in the event this settlement is ever contested, challenged or subject to review by any court of competent jurisdiction by any person(s), groups, agencies, entities or authorities, the undersigned, individually and collectively, agree to indemnify and defend Releasees for any and all costs, expenses and liability associated with such action. Further, this agreement shall be binding upon and inure to the benefit of the successors, assigns, heirs, beneficiaries, executors, administrators, and legal representatives of the Releasor and Releasees. It is further understood that Ronald L. Cressler, Individually and as Administrator of the Estate of Claire D. Cressler, has and maintains authority to execute this Release and Settlement Agreement on behalf of himself and the Estate of Claire D. Cressler, and that his execution of this Release and Settlement Agreement shall be binding on all the heirs, executors, administrators and beneficiaries of the Estate of Claire D. Cressler and himself. . Ronald L. Cressler, hereby declares that the terms of this Release and Settlement Agreement have been completely read; that he has discussed the terms of this settlement with the legal counsel of his choice, Michael Navitsky, Esquire and that said terms are fully understood 3 and voluntarily accepted for the purpose of making a full and final compromise of any and all claims on account of the damages and losses mentioned above and further for the express purpose of precluding forever any further or additional suits by Releasor and their heirs, assigns or beneficiaries of the Estate of Claire D. Cressler. CAUTION. READ BEFORE SIGNING! IN WITNESS WHEREOF, we have hereunto set or hand and seal this _day of 2007. Ronald L. Cressler, Individually and as Administrator of the Estate of Claire D. Cressler On this day of , 2007, before me, a Notary Public, personally appeared Ronald L. Cressler, to me known as the person who executed the foregoing Release, and who acknowledged to me that he voluntarily executed the same. NOTARY PUBLIC Michael Navitsky, Esquire Counsel for Ronald L. Cressler, Individually and as Administrator of the Estate of Claire D. Cressler 4 F?xv?\Z?l .5 . POWER OF ATTORNEY AND FEE AGREEMENT BY SIGNING THIS AGREEMENT, I (WE) ACKNOWLEDGE THAT I (WE) HAVE ENGAGED THE LAW FIRM OF NAVITSKY, OLSON & WISNESKI LLP (HEREINAFTER NOW), TO REPRESENT ME (US) UNDER THE FOLLOWING TERMS AND CONDITIONS: 1. NOW may on my (our) behalf secure medical, work and other similar records, conduct an investigation, negotiate, and if necessary start suit against anyone responsible for my (oar) injuries and losses with respect to a meth cai ma7 nracti ce •Laim for Claire D. Cressler , with full power and authority to appear on behalf of the undersigned in any Court of record or in any administrative or other proceeding, to do and perform all and every act and thing whatsoever that may be requisite and necessary to be done in connection with the above claim as fully as the undersigned might or could do if personally present; hereby ratifying and confirming all that said attorney shall lawfully do or cause to be done therein by virtue of this power of attorney. 2. I (we) understand that so long as the case is handled by a NOW attorney, -I (we) will not be responsible for any fees and/or expenses unless a recovery or benefit is obtained 3. H my (our) case is handled to a sueeessfah completion by a NOW attorney, I (we) agree to pay NOW all reasonable oat-d- pocket expenses without the payment of interest, plus a fee for tome expended as follows: ME NOW Lip a. SETTLEMENT PRIOR TO STARTING SUIT 700/9 300/9 b. SE ITLE M ENT FOLLOWING SUIT BUT PRIOR TO TRIAL OR ARBITRATION 65°/9 35% c. SETTLEMENT OR VERDICT AT TRIAL OR ARBITRATION. AFTER TRIAL, ARBITRATION, OR APPEALS OR SHORTLY BEFORE TRIAL AND AFTER CASE HAS BEEN TOTALLY PREPARED 600/9 40% Id. C7TIiER CASES 4. If for any reason I (we) take my (our) case to another attorney or law firm or hawk it myself (ourselves), I (we) recognize that NOW has, in good faith, expended money and time for my (our) benefit and I (we) therefore agree to pay, or have my (our) new attorney pay, immediately, upon severing the NOW attorney/client relationship, all the oat-oI'-pocket epenses incurred9n. my (our) can pins interest at the rate of 6°/9 per arum from the dot of each cacpenditure. In addition, when the case is successfully concluded, I (we) agree to pay or to direct my (oar) new attorney to pay as a fee 20% of the gross recovery to NOW. . 5. In the event that any settlement is made on a structured or deferred payment basis, NOW shall be entitled to receive their percentage based on the present value of the structured settlement, if paid as a lamp sum at the time of settlement I (we) agree not to settle or discuss settlement of my (our) case without the written consent of NOW. BY SIGNING THIS AGREEMENT, THIS I 8 DAY OF -D 200.-L I (WE) ACKNOWLEDGE THAT I (WE) HAVE READ, UNDERSTOOD, AND RECEIVED A COPY OF SAME AND AGREE WITH ITS TERMS AND CONDITIONS. WITNES CL (S)_ A- - ,/ SEAL Ronald L. Cressler, Achainistrator of the Es _ _ of e - re- B -Giceselei: (SEAL) EX oi si-T ?? BURUIJ IMVIDUAL DmsTAXES INH INHERITMCE ITANCE TAx X DNISION COMMONWEALTH OF PENNSYLVANIA P08ox28MI DEPARTMENT OF REVENUE HARRIsBuRG, PA 17128-0601 WEB ADDRESS www.state.Da.us August 7, 2007 Michael J. Navitsky, Esq. Navitsky, Olson & Wisneski LLP 2040 Linglestown Rd., Ste. 303 Harrisburg, PA 17110 Re: Estate of Claire D. Cressler File Number 2103-0568 Court Number CCP Cumberland Co. No. 04-3572 Dear Mr. Navitsky: The Department of Revenue received the Petition for Approval of Settlement Claim to be filed on behalf of the above-referenced Estate in regard to a wrongful death and survival action. It was forwarded to this Bureau for the Commonwealth's approval of the allocation of the proceeds paid to settle the actions. Pursuant to the Petition, the 92-year-old-decedent died as a result of injuries associated with a chocking incident that occurred at a facility the decedent was staying at. Decedent is survived by her grandchildren. Please be advised that pursuant to the Pennsylvania Judicial Code, only a spouse, children or parents of a decedent may bring a wrongful death action to recover damages for a decedent's death. 42 Pa. C.S.A. §8301. Therefore, as decedent is survived only by grandchildren and not by any party eligible to bring a wrongful death action, all of the proceeds of the settlement at issue must be allocated to the Estate's survival action. Proceeds of a survival action are an asset included in the decedent's estate and are subject to the imposition of Pennsylvania inheritance tax. 42 Pa.C.S.A. §8302; 72 P.S. §§9106,9107. I trust that this letter is a sufficient representation of the Department's position on this matter. Please contact me if you or the Court has any questions or requires anything additional from this Bureau. a Sin rely, WIC14 0--t Holly A. McClintock Trust Valuation Specialist PHONE: 717-787-1794 • FAx: 717-783-3467 • EMAIL: hmccHntoc@state.Da.us C CX ?11??? AFFIDAVIT OF CONCURRENCE I, Ronald L. Cressler, individually and as Administrator of the Estate of Claire D. Cressler, do hereby certify and affirm that I have reviewed the terms of Petition for Approval of Decedent's Compromise Settlement and Distribution of Proceeds, that I agree that the terms of the settlement and distribution of proceeds as outlined in the petition are fair and appropriate, and request that Your Honorable Court approve the terms of the settlement and distribution of proceeds. 71L. /- / za P? - - . /. Ronald L. Cressler, individually and as Administrator of the Estate of Claire D. Cressler, Deceased Date: 0 X 9A , aOO-I Sworn to and subscribed before me this 91-Wh day of Pru2;%j&+ 92007. Notary Public My Commission expires: F Lob L , tba'?o?+??..a.Ti Mr.'?e c? co z ^? z 4 C l1 co RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER, Deceased, Plaintiffs V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA NO. 04-3572 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S AMENDED PETITION FOR COURT APPROVAL OF DECEDENT'S COMPROMISED SETTLEMENT AND DISTRIBUTION OF PROCEEDS PURSUANT TO PA. R.C.P. 2206 Petitioner, Ronald L. Cressler, Individually and as Administrator of the Estate of Claire D. Cressler, by and through his attorneys, Navitsky, Olson & Wisneski LLP, hereby avers as follows: 1. On or about October 25, 2002, Claire D. Cressler died from what Plaintiffs believe and contend was a choking incident that occurred at Defendant's nursing home on October 22, 2002. The incident lead to respiratory failure and ultimately acute myocardial infarction. A copy of Ms. Cressler's Death Certificate is attached to Plaintiff s Petition for Court Approval as Exhibit A. 2. Petitioner is the grandson of the Decedent, Claire D. Cressler. 3. Petitioner, Ronald L. Cressler, is the Administrator of the Estate of Claire D. Cressler by virtue of Letters of Administration duly granted by the Register of Wills of York County, Pennsylvania on or about November 25, 2003. A copy of the Short Certificate is attached to Plaintiff s Petition for Court Approval as Exhibit B. 4. Claire D. Cressler died in testate. A copy of her Will is attached to Plaintiff's Petition for Court Approval as Exhibit C. 5. At the time of her death, Claire D. Cressler was survived by her only son, Ronald E. Cressler, who then died on October 1, 2003. A copy of his Short Certificate and Will are attached to Plaintiffs Petition for Court Approval as Exhibit D and E. 6. Therefore, the beneficiaries of Decedent's Estate consists of her three adult grandchildren: Name Ronald L. Cressler Debbie A. Chestnut Ray E. Cressler Relationship Grandson Granddaughter Grandson 7. Ronald L. Cressler, as Administrator of the Estate of Claire D. Cressler, individually and in his own right, retained undersigned counsel to investigate the aforementioned accident at Defendant's nursing home. After thoroughly investigating the facts of the case and having all of the medical records compiled, analyzed, and reviewed by medical experts, and after obtaining appropriate medical expert reports, suit was initiated against Defendant three years ago in 2004. At this juncture of the litigation, Defendants, while disputing liability for the death of Decedent and the damages incurred, has offered Plaintiff Eighty-five Thousand ($85,000.00) Dollars in full and final settlement of the disputed claim. A copy of the proposed Release is attached to Plaintiff's Petition for Court Approval as Exhibit F. 8. In view of the disputed nature of the claim, your Petitioner considers the offer to be a fair, just, and equitable settlement and to be in the best interest of the Estate and the persons entitled by law to recover damages for the death of the Decedent. 9. Your Petitioner retained the law firm of Navitsky, Olson & Wisneski LLP to prosecute this action and entered into a contingency fee agreement with said attorneys for their professional services, plus expenses. A copy of the Power of Attorney and Fee Agreement is attached to Plaintiff's Petition for Court Approval as Exhibit G. 10. Pursuant to the Power of Attorney and Fee Agreement, Navitsky, Olson & Wisneski LLP is entitled to a fee of 35% of the gross settlement, plus expenses. 11. Navitsky, Olson & Wisneski LLP, on behalf of the Estate of Claire D. Cressler, spent considerable time and effort in the investigation and preparation of the case. Expenses in this matter total $1,675.13. 12. A Medicare lien in the amount of $16,220.19 has been asserted and is subject to compromise. For example, the lien amount will be reduced by 35%, as this is the amount to be paid by your Petitioner for attorney fees. 13. There are sufficient assets in Decedent's Estate to satisfy any other outstanding debts, of which the only known debt would be the subrogation lien of Medicare. 14. By reason of the death of Decedent, one cause of action exists against the Defendants in favor of Decedents' grandchild; namely, a Survival Claim. 15. Petitioner's counsel has received approval from the Department of Revenue to allocate all of the settlement proceeds to the survival action. A letter from the Pennsylvania Department of Revenue is attached to Plaintiff's Petition for Court Approval as Exhibit H. 16. Your Petitioner believes, in accordance with the terms of the Power of Attorney and Fee Agreement and the Department of Revenue's acknowledgement letter, a fair, just and equitable distribution of all settlement proceeds would be as follows: a. Estate of Claire D. Cressler's Survival Action Allocation (100% of net proceeds of $43,031.75) $43,031.75 b. Navitsky, Olson & Wisneski LLP Legal Fees (35% of settlement proceeds) $29,750.00 c. Medicare lien $16,220.19 reduced by 35% ($5,677.07) $10,543.12 d. Navitsky, Olson & Wisneski LLP expenses $ 1,675.13 TOTAL $85,000.00 17. The net settlement proceeds shall be divided equally among the beneficiaries of Decedent's Estate. 18. An Affidavit signed by the Petitioner requesting Court Approval in accordance with the terms of this Petition is attached to Plaintiff's Petition for Court Approval as Exhibit I. 19. The Honorable Edgar B. Bayley had ruled upon the Preliminary Objections filed to Plaintiff's Complaint by way of Order dated May 11, 2005. Petitioner provides this information to comply with Cumberland County Local Rule 208.3(a)(2). 20. Counsel for the Defendants concurs with this Petition. illli; WHEREFORE, your Petitioner prays that this Honorable Court enter an Order approving said compromise settlement, directing distribution of proceeds in accordance with the terms of the Petition and authorizing the Petitioner to sign a Release and to mark the above captioned matter settled and discontinued. Respectfully submitted, NAVITSKY, OLS N & ,?I_„ n I/ Date: 130to 1 Michael J. T" sky, sky, Esc I. D. No. 5,18 0 2040 Lingle wn Road, Harrisburg, PA 17110 717/541-9205 Counsel for Petitioner LLP CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do hereby certify that I am this ''day of 2007 serving a true and correct copy of Petitioner for Approval of Compromise Settlement upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edwin A. Schwartz, Esquire McKissock & Hoffman 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Counsel for Defendant Jessie K. Walsh c? `' - 5 1 c? - nib ? 00. 4 ? r- r ?L € C_7 C._ `7rn 7 ? RONALD L. CRESSLER, Individually IN THE COURT OF COMMON PLEAS and as Administrator of the Estate of CUMBERLAND COUNTY, PENNA CLAIRE D. CRESSLER, Deceased, Plaintiffs NO. 04-3572 Civil Term V. PERINI SERVICES/SOUTHAMPTON CIVIL ACTION - LAW MANOR LIMITED PARTNERSHIP, : t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, JURY TRIAL DEMANDED Defendant ORDER AND NOW, this day of c? A i A , 2007, upon consideration of the attached Petition for Approval of Decedent's Compromise Settlement and Distribution of Proceeds, IT IS HEREBY ORDERED THAT: 1) Settlement of the above-captioned action by Ronald L. Cressler, Individually and as Administrator of the Estate of Claire D. Cressler, deceased, in accordance with the terms of the Petition, is hereby ratified and approved. Ronald L. Cressler is authorized to execute the Release in this matter and mark the above-captioned action settled, discontinued, and ended as to Defendant. 2) All proceeds will be allocated as set forth in paragraph 15 of Petitioner's Petition for Approval of Decedent Compromise Settlement and ?n N %- 6 010 ,1? BY J. iti a i? co Q ? RONALD L. CRESSLER, Individually IN THE COURT OF COMMON PLEAS and as Administrator of the Estate of CUMBERLAND COUNTY, PENNA CLAIRE D. CRESSLER, Deceased, Plaintiffs NO. 04-3572 Civil Term V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this day of %?9 , 2007, upon consideration of the attached Petition for Approval of Decedent's Compromise Settlement and Distribution of Pr ,,-Jk 0.11a^ IT IS HEREBY ORDERED HAT: 1) Settlement of the above-captioned action by Ronald L. Cressler, Individually and as Administrator of the Estate of Claire D. Cressler, deceased, in accordance with the terms of the Petition, is hereby ratified and approved. Ronald L. Cressler is authorized to execute the Release in this matter and mark the above-captioned action settled, discontinued, and ended as to Defendant. 2) All proceeds will be allocated as set forth in paragraph 16 of Petitioner's Petition for Approval of Decedent Compromise Settlement and Distribution of Proceeds. CO) -? n =r ? r-' N ? RONALD L. CRESSLER, Individually and as Administrator of the Estate of CLAIRE D. CRESSLER, Deceased, Plaintiffs V. PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP, t/d/b/a THE SHIPPENSBURG HEALTHCARE CENTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA NO. 04-3572 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE Please mark the above matter settled, ended and discontinued. Respectfully submitted, NAVITSKY, OLSON WISNESKI LLP w Date: T/19 j 7 Michae J. avitskffquire I.D. No. 8803 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 717/541-9205 Counsel for Plaintiff CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do hereby certify that I am this 18`x' day of September, 2007 serving a true and correct copy of Praecipe to Discontinue upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edwin A. Schwartz, Esquire McKissock & Hoffman 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Counsel for Defendant Jessie K. Walsh ",+ -h Fri x-L - ?V t n